Abuse of process (procédure abusive)

Abuse of process is the wrongful exercise of the right to bring or defend legal proceedings, which exposes the person responsible to a civil fine and to damages. Article 32-1 of the French Code of Civil Procedure allows a person who brings proceedings in a dilatory or abusive manner to be ordered to pay a civil fine of up to 10,000 euros, without prejudice to any damages claimed under Article 1240 of the Civil Code. Similar provisions cover abusive appeals and abusive appeals to the Court of Cassation.

Establishing abuse

The right to bring legal proceedings is a fundamental freedom, and its exercise amounts to abuse only where there is clear fault. The Court of Cassation requires the court to identify malice, bad faith, an intention to harm or culpable recklessness, and the mere failure of the claim is not enough. The civil fine lies within the sole power of the court, which may impose it of its own motion, and it is paid to the Treasury, not to the opposing party.

Abuses specific to intellectual property

Abuse arises where a right holder sues on the basis of a right it knows to be fragile, multiplies proceedings to exhaust a competitor or diverts a saisie-contrefaçon from its evidentiary purpose to gain access to confidential information. Sending a competitor’s customers a warning letter referring to an action that has not been decided may, for its part, be characterised as disparagement. Competition law treats litigation as abusive only in exceptional circumstances, where the action cannot reasonably be regarded as an attempt to assert rights and forms part of a plan to exclude a competitor, which falls under abuse of a dominant position.

Compensation

The victim of an abuse of process obtains compensation for harm distinct from that covered by the award of legal fees (frais irrépétibles), such as damage to reputation, loss of customers or disruption of its business. The claim often takes the form of a counterclaim. It must be substantiated, as courts award such damages sparingly, the order to pay court costs and legal fees usually being sufficient to offset the cost of the proceedings.

Key points

Abuse of process is rarely pleaded successfully. A defendant relying on it must show a specific fault, distinct from the claimant’s failure, and harm of its own. The right holder, for its part, should check the strength of its right and the proportionality of its approach before any communication to the opponent’s customers.

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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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