Defaulting respondent and filing of submissions before the remand court

Previous solutions from the French Supreme Court (Cour de cassation)

In most appeal proceedings, the respondent has three months from the notification of the appellant’s submissions to file their first submissions:

The respondent shall, under penalty of inadmissibility raised ex officio, have a period of three months from the notification of the appellant’s submissions provided for in Article 908 to file their submissions with the court and, where applicable, lodge an incidental or provoked appeal. – Article 909 of the French Code of Civil Procedure

Compliance with this deadline is crucial: the Cour de cassation has ruled that a respondent who allows this period to expire cannot file submissions for the entire duration of the appeal proceedings (Civ. 2, 28 January 2016, No. 14-18.712). In practice, this leaves the appellant without an adversary.

If the appellate judgment is overturned before the French Supreme Court, the respondent still cannot file submissions before the remand court. The decision declaring the respondent’s submissions inadmissible before the appellate court remains binding on the remand court (Civ. 2, 18 January 2024, No. 21-22.798).

A slight relaxation of previous solutions

In its ruling of 11 September 2025 (No. 24-13.160), the French Supreme Court softened its position: when a legal issue not previously debated before the appelate court is raised ex officio, the respondent must be allowed to submit arguments on that issue before the remand court.

The Court held that when it raises a new legal point ex officio, this constitutes a subsequent event altering the scope of the debate, entitling the respondent to address it before the remand court. Therefore, the respondent may file submissions limited to that specific legal issue (Civ. 2, 11 September 2025, No. 24-13.160).

This decision was based on Article 6(1) of the European Convention on Human Rights, emphasizing that such flexibility is necessary to ensure a fair trial and allow the respondent to defend themselves.

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Frequently Asked Questions

Why must the respondent file their first submissions within three months before French Courts of Appeal?

Since 1 January 2011, following the Magendie Decree, appeal proceedings are strictly governed by mandatory deadlines for both appellants and respondents:

The appellant must file submissions within three months of the notice of appeal, failing which the appeal is automatically void (Article 908 CPC).
The respondent must file submissions in response – and, if necessary, lodge an incidental or provoked appeal – within three months of receiving the appellant’s submissions (Article 909 CPC).

These deadlines, often criticized by practitioners, were introduced to reduce the length of appeal proceedings.

Note: The three-month period applies only to the most common appellate proceedings. In fast-track appeals, the deadline is reduced to two months.