Appeal to the Court of Cassation (pourvoi en cassation)

An appeal to the Court of Cassation (pourvoi en cassation) is the extraordinary means of recourse by which a party asks the Court of Cassation to quash a decision given at last instance for failure to comply with the rules of law, under Article 604 of the French Code of Civil Procedure. It is most often directed against the judgment given on appeal. The Court is not a third tier of jurisdiction and does not retry the facts. The time limit for filing is in principle two months from service of the decision.

Conditions of the appeal

Representation by an attorney admitted to the Conseil d’État and the Court of Cassation is mandatory in civil matters. The appellant files a full brief (mémoire ampliatif) setting out the grounds of appeal, each of which must specify the rule allegedly infringed and the part of the decision criticised. New grounds that mix fact and law are inadmissible. The appeal has no suspensive effect in civil matters, and the first president may strike the case from the register where the appellant fails to show that it has complied with the decision under appeal, unless compliance would have manifestly excessive consequences or is impossible.

Scope of review

The Court reviews breaches of the law, lack of legal basis, failure to state reasons and distortion of documents. The assessment of facts and evidence falls within the sovereign discretion of the lower courts. In patent matters, the boundary between fact and law is debated, the Court reviewing compliance with the statutory criteria of patentability and infringement while leaving the technical analysis of the evidence to the lower courts. The non-admission procedure allows appeals that are manifestly incapable of leading to cassation to be dismissed swiftly.

Outcome of the appeal

Cassation in principle entails remittal of the case to another court of the same kind, which rules afresh on the facts and the law within the limits of the cassation. The Court may also quash without remittal where the facts found by the lower court allow it to apply the appropriate rule of law. As a court of last instance, it must refer a question for a preliminary ruling to the Court of Justice of the European Union where the interpretation of EU law is necessary and is not obvious. Decisions of the UPC Court of Appeal are not subject to this review, as the Unified Patent Court has no third tier.

Key points

An appeal to the Court of Cassation neither reopens the technical debate nor suspends enforcement. An attorney admitted to the Conseil d’État and the Court of Cassation should be consulted as soon as the appeal judgment is served, to assess within the two-month period the prospects of a ground based purely on law. Compliance with the decision under appeal must also be anticipated, failing which the appeal may be struck out.

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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. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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