Can the defaulting respondent conclude before the referring court after cassation?

Reminder of the Court of Cassation's previous solutions

On appeal, when the case falls under pre-trial proceedings, the respondent has a period of 3 months from the notification of the appellant's findings to file his initial submissions:

The respondent has, on pain of inadmissibility declared ex officio, a period of three months from the date of notification of the appellant's conclusions provided for in Article 908 to submit his findings to the Registry and file, where appropriate, an incidental or provoked appeal. — Article 909 of the Code of Civil Procedure

Respecting this deadline is essential: the Court of Cassation judges that the respondent who has allowed this period to expire can no longer conclude during the entire duration of the appeal proceedings (Civ. 2, January 28, 2016, 2016, January 28, 2016, January 28, 2016, January 28, 2016, January 28, 2016, no. 14-18.712). In practice, the appellant therefore has no adversary.

In the event of a cassation of the judgment delivered by the Court of Appeal, the respondent cannot plead before the Court of Appeal either. Indeed, the order of the Pretrial Counsellor declaring the respondent's findings inadmissible is also binding on the referring court (Civ. 2, January 18, 2024, no. 21-22.798).

A slight relaxation of the case-law of the Court of Cassation

In its judgment of 11 September 2025 (no. 24-13.160), the Court changed its position by considering that, when a legal ground not discussed before the trial judges was raised ex officio during the cassation appeal, the respondent must however be able to conclude within the limits of this plea before the referring court.

It must therefore be considered that, when the Court of Cassation refers ex officio to a legal ground that the parties did not discuss contradictorily in front of the trial judges, that circumstance constitutes an event subsequent to the order of the State Counsellor in such a way as to modify the terms of the debate between the parties, and that therefore, the respondent must have the opportunity to draw the consequences before the Court of Reference. Therefore, he must be able to conclude on the plea raised ex officio and within the limits of that plea. — Civ. 2, September 11 2025, no. 24-13.160

In particular, the Court ruled under Article 6§1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and noted that only such relaxation is “Such as to ensure the fairness of the trial by allowing the respondent to defend himself”.

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Frequently Asked Questions

Why does the respondent have to file its initial submissions within 3 months?

Since the 1^Er January 2011 and the entry into force of the first Magendie decree, the appeal procedure is strictly governed by imperative deadlines that are imposed on the appellant and the respondent.

The appellant must therefore submit his findings to the registry office within 3 months from the date of the declaration of appeal, otherwise the declaration of appeal recorded ex officio will lapse (article 908 of the Code of Civil Procedure).

As for the respondent, he must file his submissions in response, and if necessary, file an incidental or provoked appeal, within 3 months from the notification of the appellant's findings (article 909 of the Code of Civil Procedure).

The introduction of these time limits, which were often criticized by practitioners, was intended to reduce the length of appeal procedures.

To note : the deadline of 3 months to conclude only concerns the procedure with preparation. For the short-term procedure, this period is reduced to 2 months.