Discontinuance of an appeal (désistement d'appel) without reservations, where it has not been preceded by any cross-appeal (appel incident) or any incidental claim, immediately extinguishes the appeal proceedings. A respondent who then files submissions containing a cross-appeal, even on the same day, comes up against that extinction. Two options remain open to the respondent: bringing a main appeal (appel principal) within the appeal period, or bringing a cross-appeal before the expiry of the period laid down in Article 909 of the French Code of Civil Procedure.
Key points
- An unreserved discontinuance of an appeal, not preceded by a cross-appeal or an incidental claim, extinguishes the appeal proceedings as soon as the discontinuance submissions are filed.
- A cross-appeal filed after that discontinuance can no longer produce any effect, since no appeal proceedings remain.
- Discontinuance of an appeal needs to be accepted only if it contains reservations, or if the party concerned has previously brought a cross-appeal or an incidental claim.
- Reservations expressed by the respondent when entering an appearance, as to the possibility of bringing a cross-appeal, do not amount to a cross-appeal.
- Article 909 of the French Code of Civil Procedure, in the version resulting from Decree No. 2017-891 of 6 May 2017, gives the respondent three months from service of the appellant's submissions provided for in Article 908, failing which the submissions are inadmissible, this being raised by the court of its own motion; nothing prevents the respondent from filing earlier.
A discontinuance filed nine hours before the cross-appeal
The second civil chamber dismisses the employer's appeal to the Cour de cassation (France's highest civil court): an unreserved discontinuance of an appeal, not preceded by a cross-appeal, extinguishes the proceedings as soon as it is filed (Civ. 2e, 11 June 2026, No. 23-20.884). The cross-appeal filed a few hours later by the respondent can therefore no longer succeed, the appeal proceedings having already ceased to exist.
An employee appealed, on 20 October 2022, against a judgment of a labour court given in their dispute with their employer. On 20 January 2023, at 11.44 a.m., the appellant electronically filed submissions discontinuing the appeal, without reservations. On the same day, at 8.27 p.m., the respondent employer filed its first submissions, containing a cross-appeal. When entering an appearance, that respondent had expressed reservations as to the possibility of bringing a cross-appeal.
The case management judge (conseiller de la mise en état) recorded the extinction of the proceedings and the divestment of the court of appeal. The employer referred that order to the court of appeal, which upheld it and rejected its application for a preliminary reference to the Conseil d'État on the lawfulness of Articles 401 and 909 of the French Code of Civil Procedure (CA Rennes, 16 June 2023, No. 23/00811).
The second civil chamber approves that reasoning, combining Articles 385, 401 and 909 of the French Code of Civil Procedure. Proceedings are extinguished by the effect of discontinuance; discontinuance of an appeal needs to be accepted only if it contains reservations or if the party concerned has previously brought a cross-appeal or an incidental claim. The decision draws the following consequence (free translation):
It follows that, where the discontinuance by the appellant of the main appeal, made without reservations, has not been preceded by a cross-appeal or an incidental claim, it immediately produces its effect of extinguishing the appeal proceedings and defeats any subsequent cross-appeal.
What discontinuance of an appeal changes for the respondent
The respondent's window for bringing a cross-appeal closes the moment the appellant files unreserved discontinuance submissions. A cross-appeal is grafted onto appeal proceedings opened by another party. Once those proceedings are extinguished, the cross-appeal no longer has any procedural support and the first-instance judgment regains its full authority.
Time-stamping becomes decisive. In this case, the gap between the discontinuance and the cross-appeal was a matter of a few hours on the same day, and that gap was enough. The discontinuance was complete as soon as it was filed, without any decision being required to record it. The respondent cannot therefore rely on any time to react: the race between the two filings is decided at the exact moment of their transmission.
One precaution does not work: reservations. When entering an appearance, the employer had announced that it was contemplating a cross-appeal. The court of appeal held, with the approval of the second civil chamber, that such an announcement does not constitute a cross-appeal. Only submissions actually containing a cross-appeal, filed before the discontinuance, would have made acceptance of that discontinuance necessary.
A rule held compatible with the right of access to a court
The decision confirms the immediate extinguishing effect of discontinuance and rejects the complaint based on Article 6 of the European Convention on Human Rights. The second civil chamber carries out the proportionality review called for by the appeal, and resolves it in favour of the procedural rule.
This procedural rule pursues a legitimate aim within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms, namely the speed and effectiveness of proceedings.
The substance of the right of access to a court is not impaired, the decision notes, because the respondent had two options. It could bring a main appeal within the appeal period. It could also bring a cross-appeal before the period allowed by Article 909 of the French Code of Civil Procedure, without waiting for the appellant's first submissions. The court of appeal had already rejected the opposite reading of that provision, and the second civil chamber holds that reading to be correct.
The point remains confined to unreserved discontinuance not preceded by a cross-appeal. Where the discontinuance contains reservations, or where the respondent has already brought a cross-appeal or an incidental claim, Article 401 of the French Code of Civil Procedure requires acceptance of the discontinuance. The solution under discussion does not rule out those situations: it outlines their boundary by implication.
What steps secure a cross-appeal?
A respondent intending to challenge the judgment should not let their position depend on the appellant's perseverance. Two strategies are open to a party seeking to have its own challenge adjudicated, and they do not offer the same degree of security.
- Bringing a main appeal within the appeal period: this route makes the challenge independent of whether the other side's appeal is maintained.
- Filing submissions without delay: the respondent may bring a cross-appeal even before the appellant files its first submissions.
- Not relying on a statement of intention: reservations expressed when entering an appearance produce no cross-appeal effect.
- Monitoring the time-stamping of electronic filings: priority is proved to the minute.
- Bearing in mind the time limit in Article 909 of the French Code of Civil Procedure, in the version resulting from Decree No. 2017-891 of 6 May 2017: three months from service of the appellant's submissions, failing which the submissions are inadmissible, this being raised by the court of its own motion.
Checks to carry out as soon as the other side files a notice of appeal (déclaration d'appel)
On receipt of a notice of appeal, the respondent assesses whether it has an interest of its own in challenging the judgment, and on which heads. If the answer is yes, timing becomes decisive: waiting for the appellant's submissions creates the risk of a discontinuance that definitively closes the proceedings. A main appeal brought within the appeal period neutralises that risk. Failing that, submissions containing a cross-appeal, filed as early as possible, remain the only useful protection. No announcement and no reservation can replace those steps.
Frequently Asked Questions
The appellant discontinued in the morning: can I still file a cross-appeal in the afternoon?
No, provided the discontinuance is unreserved and no cross-appeal or incidental claim preceded it. In the case decided on 11 June 2026, the discontinuance was filed at 11.44 a.m. and the cross-appeal at 8.27 p.m. on the same day: the Cour de cassation upheld the extinction of the proceedings. Discontinuance takes effect as soon as it is filed, without any decision recording it.
Do reservations expressed when entering an appearance amount to a cross-appeal?
No. The court of appeal, with the approval of the Cour de cassation, held that reservations expressed by the respondent as to the possibility of bringing a cross-appeal do not constitute a cross-appeal. Only submissions actually containing a cross-appeal, filed before the discontinuance, oblige the appellant to obtain acceptance of the discontinuance. A statement of intention therefore offers no protection at all.
Must a respondent wait for the appellant's submissions before filing a cross-appeal?
No. The decision of 11 June 2026 holds that Article 909 of the French Code of Civil Procedure does not prevent the respondent from bringing a cross-appeal before the appellant files its first submissions. That provision, in the version resulting from the decree of 6 May 2017, sets a three-month period from service of the appellant's submissions, failing which the submissions are inadmissible, raised by the court of its own motion. It is a limit, not a mandatory starting point.
What is the difference between a main appeal and a cross-appeal for a respondent company?
A main appeal is brought by the party taking the initiative within the period open to it; it creates the appeal proceedings. A cross-appeal is brought by the opposing party within proceedings already opened, and therefore depends on their continuation. A company seeking to have the judgment varied on its own claims secures its position far better by bringing a main appeal itself.
My opponent has appealed: should I still lodge an appeal of my own?
It depends on whether there are heads of the judgment you wish to have varied yourself. If there are none, the other side's appeal is enough to open the debate. If there are, your challenge rests on proceedings opened by another party, who may abandon them. Bringing your own appeal within the applicable period removes that dependence and avoids discovering too late that the route has closed.