The cross-appellant (appelant incident) does not have to set out, in the operative part of its submissions, the heads of the judgment it seeks to have overturned. The second civil chamber so held on 11 June 2026, citing Articles 542, 909 and 954 of the French Code of Civil Procedure, in their version prior to the decree of 29 December 2023. An application to overturn appearing in the operative part, filed within the prescribed time limit, cannot therefore be disregarded on the sole ground of that omission.
Key points
- The cross-appellant is not required to list, in the operative part of its submissions, the heads of the judgment it seeks to have overturned.
- A court of appeal cannot declare that no cross-appeal (appel incident) has been brought before it solely because that list is missing from the operative part.
- Time limit: the respondent has three months to file its submissions with the court registry and, where appropriate, to bring a cross-appeal or a consequential appeal (appel provoqué). Starting point: notification of the appellant's submissions provided for in Article 908 of the French Code of Civil Procedure. Sanction: inadmissibility raised by the court of its own motion.
- The court of appeal rules only on the claims set out in the operative part: the claims must appear there; only the list of the challenged heads is not required.
- The solution concerns the provisions in their version prior to Decree No. 2023-1391 of 29 December 2023.
A cross-appeal disregarded by the court of appeal
The second civil chamber holds that the cross-appellant does not have to set out in the operative part of its submissions the heads of the judgment challenged, and quashes the decision that had held the contrary (Civ. 2e, 11 June 2026, No. 23-22.048). The quashing is partial: it affects only the head by which the court of appeal had declared that no cross-appeal had been brought before it. The case is remitted to the Caen court of appeal.
A company appealed on 13 October 2021 against certain heads of a judgment given by a commercial court, in a dispute between it and three companies. The plan supervisor (commissaire à l'exécution du plan) of two of them was a party to the proceedings, and a second plan supervisor, who was also an official receiver (mandataire judiciaire), was brought in by way of third-party joinder proceedings (intervention forcée) before the court of appeal. The respondent companies brought a cross-appeal by submissions filed within the time limit prescribed by Article 909 of the French Code of Civil Procedure. They sought variation of the judgment without indicating, in the operative part, the heads expressly challenged.
The decision under appeal (CA Rouen, 7 September 2023, No. 21/03941) had held that a court of appeal is seised, by the devolutive effect of a cross-appeal, only if the operative part of the respondent's submissions contains the application to overturn together with an indication of the heads expressly challenged. In the absence of that indication, the court of appeal had held that no appeal by the respondents had been brought before it and had upheld the judgment on the heads referred to by them.
On the basis of Articles 542, 909 and 954, paragraphs 1, 2 and 3, of the French Code of Civil Procedure, in their version resulting from Decree No. 2017-891 of 6 May 2017, the Cour de cassation (France's highest civil court) sets out the applicable rule (free translation):
It follows from all these provisions, in their version prior to Decree No. 2023-1391 of 29 December 2023, that the cross-appellant is not required to set out, in the operative part of its submissions filed within the prescribed time limit, the heads of judgment it seeks to have overturned.
The respondents therefore did not have to set out in the operative part the heads of the operative part of the judgment they sought to have overturned. In holding the contrary, the court of appeal infringed the provisions relied on. The second ground of appeal did not warrant a specially reasoned decision, as it was not manifestly such as to lead to quashing.
What the operative part of a respondent's submissions must contain
The operative part of the respondent's submissions must set out its claims, but it does not have to list the heads of the judgment challenged. Article 954, paragraph 3, of the French Code of Civil Procedure requires the court of appeal to rule only on the claims set out in the operative part. A claim omitted at that point therefore has no effect. By contrast, listing the heads of the judgment challenged is not a requirement imposed on a respondent bringing a cross-appeal.
The distinction is a practical one for a defendant company on appeal. It retains an interest in clearly identifying, in the discussion section, what it criticises in the first-instance judgment. But omitting that list from the operative part no longer deprives its cross-appeal of effect, provided that the application to overturn appears there and that the submissions were filed within the time limit.
The timetable remains the harshest breaking point. Under Article 909 of the French Code of Civil Procedure, in the version cited by the decision:
- Time limit: three months to file the submissions with the court registry and, where appropriate, to bring a cross-appeal or a consequential appeal.
- Starting point: notification of the appellant's submissions provided for in Article 908 of the French Code of Civil Procedure.
- Sanction: inadmissibility, raised by the court of its own motion.
Scope of the solution: provisions and periods concerned
The decision settles a formal requirement relating to the operative part, without relaxing the time limits or the rule that only the claims in the operative part seise the court of appeal. What changes is the additional requirement the court of appeal had added: listing the challenged heads in the respondent's operative part. That requirement is censured. What is confirmed is the rest of the regime: claims in the operative part, grounds in the discussion section, submissions filed within the three-month time limit.
The temporal scope is defined by the decision itself. The rule is stated for the provisions in their version resulting from Decree No. 2017-891 of 6 May 2017, prior to Decree No. 2023-1391 of 29 December 2023. The second civil chamber does not rule on the state of the provisions after that decree. Nor does it rule on the requirements specific to the principal appellant.
As the quashing is partial, the dispute is not settled on the merits on this point. The court of appeal to which the case is remitted will have to examine the respondent companies' cross-appeal, without the solution of 11 June 2026 prejudging the outcome of their claims.
Practical steps to secure a cross-appeal
A respondent company secures its cross-appeal by attending to two points: the date on which the submissions are filed and the content of the operative part. The date of notification of the appellant's submissions sets the starting point of the three-month time limit: it should be identified and recorded as soon as it is received. The operative part must summarise each claim, including the application to overturn the judgment, since the court of appeal rules only on what it contains.
The discussion section retains its own function. The grounds of fact and law are developed there, claim by claim, with an indication of the exhibits relied on and their numbering. A head of judgment challenged without a corresponding claim in the operative part exposes the respondent to a decision that will not take it into account. The converse is no longer true: the absence of a list of the challenged heads from the operative part does not neutralise the cross-appeal.
Checks before filing submissions in defence
- Check the date of notification of the appellant's submissions: it triggers the three-month time limit under Article 909 of the French Code of Civil Procedure.
- Verify that the operative part summarises all the claims, including the application to overturn the judgment.
- Ensure that each claim is supported by grounds presented in the discussion section, with the exhibits relied on and their numbering.
- Identify the version of the provisions applicable to the proceedings, since the solution of 11 June 2026 concerns their version prior to the decree of 29 December 2023.
Frequently Asked Questions
Can my cross-appeal be disregarded because I did not list the heads of the judgment in the operative part?
No, that omission alone is not enough. In its decision of 11 June 2026, the second civil chamber holds that the cross-appellant is not required to set out, in the operative part of the submissions filed within the prescribed time limit, the heads of judgment it seeks to have overturned. This solution applies to the provisions in their version prior to the decree of 29 December 2023. The application to overturn must, however, appear in the operative part.
How long do I have to file submissions and bring a cross-appeal after the appellant's submissions?
Three months. Under Article 909 of the French Code of Civil Procedure, in the version cited by the decision of 11 June 2026, the respondent has three months from notification of the appellant's submissions provided for in Article 908 to file its submissions with the court registry and, where appropriate, to bring a cross-appeal or a consequential appeal. The sanction is inadmissibility, raised by the court of its own motion.
The court of appeal upheld the judgment, saying my cross-appeal was not before it: is everything lost?
No, such a decision can be challenged. In the case decided on 11 June 2026, the Cour de cassation quashed the decision on that point alone and remitted the case to another court of appeal, which will have to examine the cross-appeal. That quashing does not prejudge the outcome of the claims: the court to which the case is remitted will rule afresh, and the merits remain entirely open.
What is the difference between a principal appeal and a cross-appeal in France?
A principal appeal is brought by the party that takes the initiative in challenging the judgment; a cross-appeal is brought by the opposing party, which responds by criticising the first-instance decision in turn. In principle, a cross-appeal allows a party that did not act first to raise its own complaints against the judgment, within the appeal proceedings already under way and according to the applicable procedural timetable.
Why is the operative part of submissions so important on appeal?
The operative part is the section of the submissions that summarises the claims addressed to the court. In principle, a court rules only on what is actually asked of it: a claim developed in the body of the pleadings but missing from the final summary risks not being examined. The discussion section sets out the arguments of fact and law; the operative part fixes the scope of what will be decided.