A court of appeal cannot uphold a judgment on the ground that the operative part of the appellant's submissions does not seek its overturning, without first inviting the parties to comment on that point. The second civil chamber bases this solution on Article 16 of the French Code of Civil Procedure: any ground raised by the court of its own motion requires a prior debate, if necessary by way of post-hearing written observations (note en délibéré).
Key points
- A judge who raises a point of law of their own motion must invite the parties to present their observations before ruling, in application of Article 16 of the French Code of Civil Procedure.
- The absence of a request to overturn in the operative part of the appeal submissions is a ground which the court of appeal cannot rely on of its own motion without prompting the parties' explanations.
- Post-hearing written observations are expressly identified as a means of reopening the debate where the ground emerges after the close of the oral hearing.
- Failure to observe the adversarial principle exposes the decision to quashing, the case then being remitted to a different court of appeal.
- The drafting of the operative part of appeal submissions remains a point to watch: the ruling penalises the absence of debate, not the substance of the requirement.
What the Cour de cassation (France's highest civil court) held on a ground raised of its own motion
The second civil chamber quashes the decision of the court of appeal (Civ. 2e, 18 June 2026, No. 24-11.608): the court of appeal could not uphold the judgment by raising of its own motion the absence of a request to overturn in the operative part of the submissions, without first inviting the parties to comment on it. Two insurance companies, acting as insurers of two businesses, appealed against a judgment given by a tribunal judiciaire (first-instance civil court) in a dispute with a commonhold association (syndicat des copropriétaires). The court of appeal upheld the judgment in all its provisions and dismissed the appellants' claims.
To rule as it did, the decision under appeal (CA Bourges, 30 November 2023, No. 23/00528) held that the operative part of the appellants' submissions contained no request to overturn the judgment. Yet the commonhold association had not advanced that argument. The court of appeal therefore raised it on its own initiative and immediately applied it, without reopening discussion between the parties.
The Cour de cassation restates the rule before quashing the decision (free translation):
Under that provision, the judge must, in all circumstances, ensure that the adversarial principle is observed and observe it themselves.
It draws the direct consequence: by ruling as it did, without first inviting the parties to present their observations, if necessary by post-hearing written observations, on that ground raised of its own motion, the court of appeal infringed the provision relied on. The quashing is pronounced save in so far as the decision dismissed the commonhold association's claim for damages for abuse of process. The case is remitted to the Orléans court of appeal. The second complaint in the appeal to the Cour de cassation was not examined.
What changes when a judgment is upheld without adversarial debate
A party cannot lose its appeal on an argument it has never had the opportunity to discuss. In this case, the appellants saw their appeal deprived of any useful effect for a reason relating to the drafting of their written submissions, never raised by their opponent nor mentioned at the hearing. Upholding the judgment placed them in the position of a party that has lost without being able to reply.
The ruling puts debate back at the centre. Where a judge identifies for themselves a difficulty that is decisive for the outcome of the dispute, they must submit it to the parties. That obligation applies at any stage of the proceedings, including after the oral hearing: post-hearing written observations then make it possible to obtain each party's position without reopening a hearing. For a business engaged in litigation, this means that a decisive ground cannot appear for the first time in the decision itself.
The scope of the ruling for pending appeal proceedings
The decision confirms the strength of the adversarial principle without ruling on the substance of the requirement as to the drafting of the operative part on appeal. The second civil chamber does not say that the court of appeal was wrong on the substance of the ground. It penalises only the method: the ground was relied on without debate. The question of what the operative part of appeal submissions must contain remains open and is not settled here.
The quashing is partial. It leaves standing the dismissal of the claim for damages for abuse of process brought by the commonhold association. On the remainder, the court of appeal to which the case is remitted will have to rule afresh. The Cour de cassation did not examine the second complaint in the appeal, which leaves the substantive discussion open before the court to which the case is remitted. As the case law stands at 18 June 2026, the sanction for a failure to respect the adversarial principle remains the quashing of the decision that results from it.
What to do when the judge raises a ground
Monitoring the deliberation stage and re-reading the operative part of the submissions are the two useful checkpoints. A ground raised of the court's own motion may emerge at the hearing, in a question from the presiding judge or in an observation from the reporting judge. Where that signal appears, requesting time to file submissions, or filing post-hearing written observations, makes it possible to put forward one's position before the decision is given.
Reading the decision deserves the same attention. A decisive ground that corresponds to no earlier exchange between the parties may amount to an infringement of the adversarial principle. That infringement is a self-standing basis for challenge, distinct from disagreement on the merits of the dispute. It does not, however, remove the need to draft written submissions with care: the ruling under review penalises the absence of debate, it does not validate incomplete submissions.
Checks to carry out on your appeal submissions
- Check that the operative part of your appeal submissions expressly states what you are asking the court to do, including the overturning of the judgment where that is the purpose of the appeal.
- Note any point raised by the court at the hearing which none of the parties has debated in their written submissions.
- Consider post-hearing written observations as the means of putting your position on a point that has emerged late.
- Compare the reasoning of the decision given with the grounds actually exchanged: a discrepancy may found a self-standing challenge.
Frequently Asked Questions
What is a ground raised by a judge of their own motion?
A ground raised by the court of its own motion is a point of law which the judge introduces into the dispute, although no party has relied on it. The judge may do so, but subject to an obligation: the point must be submitted to the parties for discussion before the decision rests on it. In the case under review, the court of appeal relied on the absence of any request to overturn in the operative part of the submissions without prompting that prior debate.
What purpose do post-hearing written observations serve in French civil procedure?
Post-hearing written observations allow a party to send written comments to the court after the close of the hearing, while the case is under deliberation. The decision under review expressly identifies them as a means for the judge to obtain the parties' explanations on a ground the court is considering raising of its own motion. They therefore offer a way of restoring adversarial debate without reopening the hearing.
What happens after a partial quashing with remittal?
After a partial quashing, the case goes back before a different court of appeal, which must rule again on the points quashed. The provisions not affected by the quashing survive. In the decision under review, the dismissal of the commonhold association's claim for damages for abuse of process stands, while the remainder of the dispute is remitted to the Orléans court of appeal. No outcome is prejudged: the court to which the case is remitted rules afresh.
Can a French judge dismiss my claim on a point nobody raised?
A judge may base a decision on a point of law that they have identified themselves only after inviting the parties to comment on it. The adversarial principle requires that prior debate in all circumstances. If the decision rests on an argument never discussed, the party concerned has a basis for challenge, distinct from any disagreement on the merits. It must still be possible to show that the point was never exchanged between the parties.
How can I tell whether my appeal submissions are properly drafted?
The general rule is that the operative part of the submissions, that is the final section listing the requests made, determines what the court rules on. An appellant is therefore well advised to state expressly there the overturning or amendment sought, and not merely its claims on the merits. A targeted reading of the operative part before filing, separate from reading the reasoning, limits the risk of omission.