An ex parte order (ordonnance sur requête) based on Article 145 of the French Code of Civil Procedure states reasons where it refers to the application it grants: it thereby necessarily adopts its reasoning. A judge hearing an application for revocation (rétractation) must verify, even of their own motion, that the application or the order sets out the circumstances justifying dispensing with an adversarial hearing.
Key points
- An order that refers to the Article 145 application it grants necessarily adopts its reasoning: the requirement to give reasons is satisfied.
- A judge hearing an application for revocation must satisfy themselves, even of their own motion, that the application and the order set out circumstances justifying not proceeding on an adversarial basis.
- Where the order does not state those circumstances but refers to the application, the judge looks for them in the application itself.
- The application is therefore the decisive document: it is the application that must set out the risk of evidence disappearing which justifies the element of surprise.
- A revoked investigative measure entails the annulment of the operations, a prohibition on using the official reports (procès-verbaux) and documents obtained and the return of the seized documents.
Does referring to the application amount to giving reasons for the order?
Yes: an ex parte order that refers to the Article 145 application it grants necessarily adopts its reasoning. The second civil chamber so holds and partly quashes the decision under appeal (Civ. 2e, 5 March 2026, No. 23-13.723). A company suspected acts of unfair competition attributed to another company and to a former employee. It obtained an ex parte order of 16 October 2015 authorising an investigative measure at the premises of the suspected company and at the former employee's home.
The company targeted by the measure applied to the president of the tribunal judiciaire (first-instance civil court) for revocation of the order, and the former employee intervened voluntarily in the proceedings. The order in summary proceedings (référé) of 4 June 2021 dismissed their claims. The court of appeal (CA Colmar, 11 January 2023, No. 21/02924) revoked the order, annulled the investigative measures, prohibited the use of the official reports and documents obtained, then ordered the return of the seized documents subject to a periodic penalty payment (astreinte). It held that the order referred to the application without adopting its reasoning.
The second civil chamber quashes that reasoning on the basis of Article 495, first paragraph, of the French Code of Civil Procedure, under which an ex parte order must state reasons (free translation).
An order which, referring to the application based on Article 145 of the aforementioned code that it grants, thereby necessarily adopts its reasoning satisfies that requirement.
The second limb of the ground of appeal leads to the same quashing, on the basis of Articles 145 and 493 of the French Code of Civil Procedure. The court of appeal had held the reasoning of the order insufficient to establish a risk of evidence being lost. It did not examine whether the application, to which the order referred, set out circumstances justifying departing from the adversarial principle. The quashing is partial: it leaves standing the admissibility of the revocation claims and the inadmissibility of the claim for an interim payment brought by the former employee.
What the ruling changes for the applicant
It is the application, and not the order alone, that carries the justification for the absence of an adversarial hearing. A business that suspects diversion of clientele or unfair conduct may ask the court for an investigative measure without its opponent being heard. That departure from the adversarial principle comes at a price: the circumstances justifying it must be set out somewhere. The decision specifies where the judge must look for them when the order itself remains terse.
The brevity of the order is therefore no longer enough to secure its revocation. Where the order refers to the application it grants, it is deemed to adopt its reasoning. The party targeted by the measure cannot simply denounce formulaic or stereotyped reasons. It must show that neither the order nor the application sets out circumstances justifying the absence of a prior hearing.
Article 145 ex parte orders: what remains subject to review
Reasons given by reference do not neutralise the review of the substance of the departure from the adversarial principle. The decision discussed here draws a clear distinction between two questions: the reasons given for the order, on the one hand, and the existence of circumstances justifying ex parte proceedings, on the other. The first is satisfied by the reference to the application granted. The second calls for an examination of the content of the application.
A judge hearing an application for revocation of an ex parte order which ordered a measure on the basis of Article 145 of the French Code of Civil Procedure must satisfy themselves, even of their own motion, that the application and the order contain circumstances justifying not proceeding on an adversarial basis.
Where the order does not state the circumstances justifying not carrying out the measure on an adversarial basis but refers to the application, the revocation judge must satisfy themselves that such circumstances are mentioned in the application.
The quashing does not, however, validate the measure ordered in 2015. The case is remitted to the Metz court of appeal, which will have to examine whether the application set out circumstances justifying departing from the adversarial principle. The ruling allocates the burden of the review without prejudging its outcome. As the case law stands at 5 March 2026, an application that says nothing about the risk of evidence disappearing remains fragile.
What good practice applies when drafting an Article 145 application?
The justification for the element of surprise is prepared in the application, even before the matter comes before the judge. The application must set out in concrete terms why a prior adversarial hearing would cause the evidence sought to be lost. The nature of the suspected facts, the medium on which the material to be seized is held and the conduct attributed to the party targeted make up the substance of that demonstration. An abstract statement of the risk exposes the measure to later revocation.
The party targeted by an investigative measure adapts its challenge accordingly. Criticising the mere brevity of the order is not enough where the order refers to the application. The discussion shifts to the content of the application and to the reality of the circumstances alleged in it. The revocation judge may, moreover, raise the absence of such circumstances of their own motion, which makes that examination unavoidable.
Points to check before applying to the court
Check that the application sets out, in detail, the reasons why the measure cannot be ordered after an adversarial hearing. Make sure that the order obtained expressly refers to that application, since that reference entails adoption of its reasoning. Document the indicators of unfair competition that underpin the risk of evidence disappearing, rather than relying on a general formula. Finally, anticipate the challenge: annulled operations deprive the claimant of the official reports and the documents seized, which must be returned.
Frequently Asked Questions
Can a very brief ex parte order be set aside for failure to give reasons?
No, not where the order refers to the application it grants. Under the decision of 5 March 2026, an order that refers to an application based on Article 145 of the French Code of Civil Procedure necessarily adopts its reasoning and satisfies the requirement to give reasons. The judge therefore cannot revoke it merely because it does not expressly take up the reasoning of the application.
What does the judge check when asked to revoke a measure obtained without an adversarial hearing?
The judge must be satisfied, even of their own motion, that circumstances justified not proceeding on an adversarial basis. Those circumstances are sought both in the order and in the application. Where the order is silent on the point but refers to the application, the judge must examine whether the application mentions them. A judge who revokes the order without carrying out that examination deprives the decision of a legal basis.
What happens to seized documents if the investigative measure is revoked?
Revocation entails the annulment of the operations carried out. In the case decided, the court of appeal annulled the investigative measures, prohibited the applicant company from using the reports and documents obtained, and then ordered the return of the seized documents subject to a periodic penalty payment. The Cour de cassation partly quashed that decision and remitted the case to another court of appeal: the fate of that material remains to be determined.
How can a business gather evidence of unfair competition by a former employee?
Evidence is built before litigation begins, since the burden in principle lies on the party alleging the facts. Verifiable material counts for more than suspicion: misappropriated files, canvassing of customers, suspicious similarities between offers, statements from customers approached. Where the decisive material is held by the opposing party, a court-ordered evidentiary measure may be considered, provided its necessity is precisely justified.
What is the risk of relying on documents obtained through a measure later annulled?
The main risk is losing the core of the case. Documents produced by annulled operations may be excluded from the proceedings, and their use may be prohibited. A litigation strategy built entirely on that material then collapses, although the alleged facts do not cease to exist. It is therefore better to secure the justification for the measure in advance and to keep, in parallel, evidence obtained by other means.