Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 23 FRENCH COURT STRUCTURE CIVIL AND CRIMINAL COURTS March 11, 2002

2. Wrap-up: German Court Structure • The German court system has a much greater degree of specialization than the U.S. system. • There are 5 different hierarchies of courts with different areas of jurisdiction (ordinary, administrative, labor, social, fiscal). There are also constitutional courts

3. Wrap-up: German Court Structure • There are both Land and federal courts. The lower courts in each hierarchy are Land courts; the higher courts are Federal. Courts are thus located throughout the country. • The idea of a specialized and decentralized court system is to make justice more accessible and faster.

4. Separation of French Ordinary and Administrative Courts • Why is there a separation between ordinary (ordre judiciare) and administrative courts (ordre administratif)in the French system?

5. Separation of French Ordinary and Administrative Courts • The philosophical reason: The separation of ordinary and administrative courts is an application of the doctrine of the separation of powers. French revolutionaries, influenced by Montesquieu, believed that disputes about the exercise of the executive power should not be heard by the judiciary because this would subjugate the executive branch to the judicial branch.

6. Separation of French Ordinary and Administrative Courts • The cynical reason: Revolutionaries did not trust the judiciary, remembering the problems the kings of France had had with the conservative opposition of the Parlements. • The separate court systems have a legal basis in statute and constitutional law.

7. Legal Basis for Separation of Administrative and Ordinary Courts • August 16-24, 1790 Act (Still in force today): The competences of the judiciary are and remain distinct and separate from those of the administration. Judges shall not interfere with the exercise of administrative powers nor summon administrators to appear before them in order to account for their functions. To do so could be regarded as an abuse of judicial authority.

8. Legal Basis for Separation of Administrative and Ordinary Courts • Décret of 16 Fructidor An III (1795) (Still in force today): Courts are constantly forbidden from subjecting administrative acts, whatever their nature, to judicial review. • At the time these laws were enacted, there was no special court that could review administrative acts. What court eventually gets the power to do this?

9. Conseil d’Etat • In 1800 Conseil d’Etat was created, but it was not yet a real judicial body. It had only limited judicial powers and could only suggest legal solutions to the Head of State. • It was not until 1872 that the Conseil d’Etat was recognized as a court with the power to review the administration.

10. Constitutional Basis for Separation • 1958 Constitution Title VIII expressly provides for an independent system of ordinary courts. • 1958 Constitution does not provide expressly for administrative courts, but the Conseil Constitutionnel has found the dual system constitutional. In decisions of July 22, 1980 and January 23, 1987, the Conseil Constitutionnel found the existence of a system of administrative courts with powers to judicially review administrative acts was based on fundamental principles recognized by the laws of the Republic.

11. Ordre Judiciaire • 2 functions of the ordinary courts: • 1. Civil – they adjudicate disputes between individuals under civil private law • 2. Criminal – pass sentences against those who have committed offences under criminal law. • Do different ordinary courts exercise these civil and criminal functions separately?

12. Ordre Judiciaire • No – the same court will exercise civil and criminal functions jointly. For example, the tribunal d’instance hears minor civil law disputes, and the same court, sitting as tribunal de police, hears minor criminal offences. • In some very low level courts, the same judge may sit either as a criminal or a civil judge

13. Jurisdictions de droit commun et d’exception • Some courts have general jurisdiction to hear all cases other than those where jurisdiction has been expressly allocated by statute. They are jurisdictions de droit commun – what is an example? • Other courts are jurisdictions d’exception – they can only hear cases of the kind allocated to them by statute. What is an example? • Does the American system have such a distinction between courts of general and limited jurisdiction? Give some examples.

14. Jurisdictions de droit commun et d’exception • Some courts have general jurisdiction to hear all cases other than those where jurisdiction has been expressly allocated by statute. They are jurisdictions de droit commun – what is an example? Tribunal de grande instance • Other courts are jurisdictions d’exception – they can only hear cases of the kind allocated to them by statute. What is an example? Tribunal de commerce, conseil de prud’hommes

15. FRENCH GENERAL CIVIL COURTS • What are the two civil courts of first instance within the territorial jurisdiction of each French Court of Appeal? • (See the Code de l’Organisation Judiciaire (COJ)

16. GENERAL CIVIL COURTS • What are the two courts of first instance within the territorial jurisdiction of each French Court of Appeal? • 1. Tribunal d’instance • 2. Tribunal de grande instance (court of general jurisdiction – can generally try cases within territorial jurisdiction unless allocated by statute to specialist courts (e.g. commercial, employment) or less than 7,600 EUR in which case must be heard by Tribunal d’instance) • Both created in 1958

17. JURISDICTION OF TRIBUNAL DE GRANDE INSTANCE • Usually D’s home actor sequitur forum rei • Some exceptions e.g. property dispute where property is located, tort where P can choose where D lives or where damage occurs, contract where P can choose where D lives or where contract carried out

18. EXCLUSIVE JURISDICTION OF TRIBUNAL DE GRANDE INSTANCE • Exclusive jurisdiction over marriage, divorce, road accidents etc… • Right of appeal to Cour d’Appel except where case falls within these areas of exclusive jurisdiction and matter in dispute is 3800 EUR or less

19. TRIBUNAL DE GRANDE INSTANCE • 181 of these in metropolitan France and overseas territories • Have at least 1 president and 2 judges; if more than 5 judges (like Paris, Marseilles, Nanterre), it is divided up into 2 chambres and judges specialize (but rotate). Usually sit in open court with 3 judges • Single judges can adjudicate certain cases, e.g. juvenile offenders, road accidents, matrimonial issues, enforcement of judgments

20. TRIBUNAL DE GRANDE INSTANCE • Remember – an advocate must represent a client in the TGI • Besides judges, TGI also have parquet (prosecution), which consists of the procureur de la République and 1 or 2 substituts. Administrative work of the court is carried out by the secretariat-greffe

21. SPECIALIZED CIVIL ORDINARY COURTS • What are some of the civil ordinary courts with specialized jurisdiction?

22. SPECIALIZED CIVIL ORDINARY COURTS • Tribunal d’instance • Tribunal de commerce • Conseil de prud’hommes • Tribunaux des affaires de sécurité sociale • Tribunaux paritaires des baux ruraux

23. Tribunal d’Instance • 473 of these courts – usually corresponds to arrondissement, adminstrative subdivision of département • Has certain exclusive jurisdiction, e.g. cases involving residential leases etc. • Hears small civil cases about persons and property (not land and buildings) up to 3800 EUR without appeal (like a small claims court) and up to 7600 EUR subject to appeal to Cour d’Appel • Have multiple judges, but cases are heard by 1 judge - lent from TGI or part-time.

24. Tribunal de commerce (Commercial Court) • This court deals with disputes relating to trade and commerce, as well as bankruptcy • The unpaid lay judges from business community are elected by an electoral college of representatives elected from the local business community. • Elected for 2 years and then for 4 years for almost indefinite term • A prosecutor held by the procureur de la Republique of the relevant TGI • Also a greffier

25. Tribunal de commerce (Commercial Court) • Jurisdiction – where D is domiciled, or where contract performed. • There are 227 of these courts. Note that some areas of France (like Haute Savoie) don’t have a Tribunal de commerce - the TGI will hear commercial cases there. • Informal procedure • Now appeal always possible • What are the pros and cons of French commercial courts?

26. Conseil de prud’hommes (Industrial Tribunal) • Hear disputes in the area of labor law (dismissal, but not collective bargaining or cases involving civil servants) • The court is composed of representatives of employers and employees (you can be involuntarily unemployed), who are elected every 5 years by all workers/empoyers. Next election: Dec. 2002 • 267 tribunals

27. Jurisdiction of conseil de prud’hommes • Often have 5 sections of 8 members each – each section for different sectors of economy: management, industry, agriculture, commerce, miscellaneous • Court where work is carried out usually has jurisdiction • Judgments up to a 3720 EUROS are not appealable

28. Tribunaux des affaires de sécurité sociale (Social Security Tribunal) • Has 3 judges, 2 lay assessors (one representing employers and one representing employees) and one judge from the TGI who acts as president. • Lay assessors are not elected • Hears social security disputes involving e.g. contribution and benefit

29. Tribunaux paritaires des baux ruraux (Agricultural Land Tribunals) • Created in 1994 • Hears disputes between agricultural landlords and tenants -without appeal up to 3800 EUR • Has 5 members: President (a judge from Tribunal d’instance) plus 4 lay assessors (2 are representatives of tenants and 2 of landlords) who are elected by their peers • Territorial jurisdiction is similar to tribunal d’instance • Can sit as single judge court or as full bench divided into 2 divisions (sharecropping and leasehold rents).

30. Legal Representation in Court • Parties may only represent themselves before certain courts. Parties need to be represented by an avocat before the Tribunal de grande instance, the Cour d'appel, the Cour de cassation and the Conseil d'Etat (except in the case of labor disputes, where parties can represent themselves before the Cour d'appel and the Cour de cassation.

31. Legal Representation in Court • Otherwise, as a rule, parties may represent themselves before the courts or instruct third parties to do so. • Anyone can be instructed to represent a party before the Commercial Courts, a party may instruct anyone to represent them. • More limitations on third party representation before the Tribunal d'instance: e.g. a spouse, significant other, parent. • Before conseil de prud’hommes, usually represented by attorneys, union officials, or trade associations.