Stay of proceedings (sursis à statuer)

A stay of proceedings (sursis à statuer) is the decision by which the court suspends the proceedings for a period, or until the occurrence of an event, that it specifies. It is governed by Articles 378 et seq. of the French Code of Civil Procedure. It may be required by law or left to the discretion of the court, which orders it in the interests of the proper administration of justice.

Mandatory and discretionary stays

Certain provisions make a stay mandatory. A civil court hearing a claim for damages arising from a criminal offence must await the criminal decision once a prosecution has been brought, and a court that refers a question for a preliminary ruling to the Court of Justice of the European Union necessarily stays its proceedings until it receives the answer. In all other cases, the stay is discretionary and the court has sole discretion to assess whether it is appropriate. A decision ordering a stay may be appealed only with the leave of the first president of the court of appeal, on proof of a serious and legitimate reason.

Stays in patent litigation

The issue arises mainly when the validity of the patent is being challenged in parallel before the EPO, in opposition proceedings. French courts do not grant a stay as a matter of course and weigh the progress of the opposition, the likelihood of an early outcome and the risk that a suspension would unduly prolong an alleged infringement. Where the invalidity action is brought before another court, the analysis shifts to lis pendens and related actions.

Stays before the UPC

Article 33(10) of the Agreement on a Unified Patent Court allows the court to stay proceedings where a rapid decision may be expected from the European Patent Office, and the parties must inform it of any pending opposition proceedings. The Rules of Procedure specify the circumstances in which a stay may be ordered. The practice of the Unified Patent Court is cautious, the court preferring to deal with validity in its own proceedings, in particular by way of a counterclaim for revocation.

Key points

A stay of proceedings is a discretionary decision, rarely a foregone conclusion. A defendant considering it must document precisely the timetable of the opposition or parallel proceedings, as well as the strength of its case. The claimant, conversely, has an interest in stressing the foreseeable length of the suspension and the harm it would prolong. A decision ordering a stay may be appealed only with the leave of the first president.

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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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