Judicial officer’s report (constat de commissaire de justice)

A judicial officer’s report is the instrument by which this public and ministerial officer, who succeeded bailiffs and judicial auctioneers under the ordinance of 2 June 2016, records the purely factual findings that he or she has personally made, at the request of a party or on the instruction of the court. By virtue of the officer’s status, those findings are deemed accurate until proven otherwise. The report is one of the most widely used evidentiary tools in intellectual property, to establish an offer for sale, an online reproduction, a display or the condition of a product.

Scope and limits of the report

The judicial officer describes what he or she sees, hears or measures, without giving an opinion on the legal or factual consequences. The officer may neither question third parties to collect testimony nor personally carry out acts that would amount to entrapment, which is why a third party is used for a test purchase report. The officer may not enter private premises without the occupant’s consent or court authorisation. For the seizure of products or documents, or detailed descriptions, on the premises of the alleged infringer, the appropriate tool is the saisie-contrefaçon, ordered on ex parte application, not the report.

Online reports

The reliability of findings made online is subject to technical requirements that the case law has progressively laid down and that a professional standard formalises. The judicial officer describes the hardware and browser used, states the IP address, clears the cache and temporary files before starting, disables any proxy server connection, synchronises the clock, records each address visited and keeps the pages captured. A report that omits these steps is not void, but its evidential weight may be challenged and the court may disregard it or accept only part of it. The report must also not be misused to access areas requiring identification under a false identity.

Role of the report in litigation

The report serves to secure evidence before any action, to establish that acts continued after a formal notice, to document compliance or non-compliance with an injunction backed by a penalty payment, and to preserve the priority of a creation when combined with a deposit. It is often preferred to a company’s own internal minutes or to a screenshot produced by the party itself, whose evidential weight is lower. The report may also be ordered within the framework of an in futurum evidentiary measure, the court then defining the task.

Key points

The report is deemed accurate until proven otherwise as regards factual findings made by a public officer, without legal assessment. Its value depends on compliance with the technical steps, particularly online. Have a report drawn up as soon as the facts are discovered, before any formal notice likely to cause the evidence to disappear, and reserve the saisie-contrefaçon for cases where access to the infringer’s premises or documents is necessary.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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