France ● Focus on compulsory attempt at amicable settlement for certain civil disputes from 1 October 2023

CIVIL - Amicable dispute resolution - COMPARED LAW - France

French Decree no. 2023-357 of 11 May 2023 on the mandatory prior attempt at mediation, conciliation or participatory proceedings in civil matters has reinstated, with the clarifications required by the Conseil d'Etat, article 750-1 of the Code of Civil Procedure (CPC), which makes the admissibility of certain civil claims before the Tribunal judiciaire subject to a prior attempt at amicable resolution of the dispute. The new wording will apply to proceedings commenced on or after 1 October 2023.

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Presentation

Article 750-1 CPC has been reintroduced in an amended version following its annulment by the Conseil d'Etat in its previous wording resulting from Decree no. 2019-1333 of 11 December 2019 reforming civil procedure resulting from Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for justice due to the indeterminacy of criteria concerning a case of exemption from the obligation to attempt amicable resolution, "such as to undermine the right to an effective remedy before a court, guaranteed by article 16 of the Declaration of the Rights of Man and of the Citizen" (CE, 6th - 5th joint chambers, 22 September 2022, Application no. 436939).

The development of compulsory recourse to attempts at amicable resolution in the neighbouring country is intended to "promote calmer and quicker methods of settling disputes for citizens" and to "lighten the workload of the courts". On 13 January 2023, the "innovative amicable settlement policy" was launched, a "key component of the action plan resulting from the Estates General on Justice", with the aim of "halving the time required for [French] civil proceedings by 2027".

In Monaco

There is no provision in the Monegasque Code of Civil Procedure equivalent to article 750-1 of the French CPC. However, Monegasque legislation does provide for the compulsory use of a conciliation attempt prior to legal proceedings in certain specific cases, such as divorce (article 200-2 of the Civil Code) or employment (article 1 of Law no. 446).

The Monegasque legislature recently took the view that it did not appear "necessary to extend the cases in which recourse to mediation would be made compulsory" in Monaco, on the grounds that "It has to be said that the development of amicable methods of settling disputes, such as mediation, is developing above all in States where the courts are very congested and where justice is considered to be too slow, which is not the case in Monaco". (Explanatory memorandum to Bill 991 on the introduction of a right to an account).

However, because it is a tool for pacifying relationships, mediation is also likely to develop in Monaco, for example in family matters at the suggestion of the judge since Law no. 1.450 of 4 July 2017 (article 202-4 of the Civil Code) or in criminal matters at the request or with the agreement of the victim since Law no. 1.533 of 9 December 2022 (article 34-1 of the Code of Criminal Procedure).

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SUMMARY

Cases in which an attempt at amicable resolution of the dispute (choice of 3 methods) is compulsory before legal action can be taken:

Article 750-1 CPC states that a claim for payment of a sum not exceeding 5,000 euros or relating to one of the actions mentioned in articles R. 211-3-4 and R. 211-3-8 of the Code de l'organisation judiciaire (Code of Judicial Organisation) or to an abnormal neighbourhood disturbance, must be preceded, at the choice of the parties, by an attempt at conciliation conducted by a court conciliator (free of charge), an attempt at mediation or an attempt at participatory procedure, failing which the case will be inadmissible, which the judge may order ex officio.

An attempt at amicable resolution is thus a compulsory prerequisite for the following actions (before the Tribunal judiciaire (including the Tribunal de proximité):

• action for payment of a sum of up to €5,000 ;
• demarcation action ;
• action relating to the distance prescribed by law, special regulations and local usage for planting or pruning trees or hedges;
• action relating to constructions and works near or against a wall, mentioned in article 674 of the Civil Code (wells or cesspools, chimneys or fireplaces, forges, ovens or furnaces, stables, salt shops or piles of corrosive materials):
• actions relating to the cleaning of ditches and canals used for the irrigation of properties or the movement of factories and mills;
• disputes relating to the establishment and exercise of easements instituted by articles L. 152-14 to L. 152-23 of the Code rural et de la pêche maritime (aqueduct, support and drainage easements), 640 and 641 of the Civil Code (easements deriving from the location of the land) and compensation due in respect of these easements;
• disputes relating to easements established for the benefit of syndicated associations under Ordinance no. 2004-632 of 1 July 2004 relating to syndicated associations of owners (easements for establishment, development, passage and support);
• action relating to an abnormal neighbourhood disturbance (behaviour-related neighbourhood noise, noise from professional activities, odour nuisance).

Excluded from the scope of Article 750-1 CPC are disputes relating to the application of the provisions mentioned in Article L. 314-26 of the Consumer Code: consumer credit, property credit, credit consolidation, personal sureties, grace period, bills of exchange and promissory notes, rules of conduct and remuneration, training of lenders and intermediaries (pursuant to Article 4 of Act No. 2016-1547 of 18 November 2016 on the modernisation of justice in the 21st century).

Cases where the parties are exempt from the obligation to attempt to resolve the dispute amicably:

Article 750-1 CPC provides for 5 cases in which the parties are exempt from the obligation to attempt to resolve the dispute out of court:

1. if at least one of the parties seeks homologation of an agreement ;
2. if a prior appeal to the author of the decision is required;
3. if the absence of recourse to one of the methods of amicable resolution mentioned is justified by a legitimate reason relating either to manifest urgency, or to the circumstances of the case making such an attempt impossible or necessitating that a decision be rendered without adversarial proceedings, or to the unavailability of judicial conciliators leading to the organisation of the first conciliation meeting within a period of more than 3 months from the referral to a conciliator*; the claimant must provide proof by any means of the referral and its consequences;
4. if the court or administrative authority is required, under a specific provision, to make a prior attempt at conciliation;
5. if the creditor has unsuccessfully initiated a simplified procedure for the collection of small claims by the court commissioner, in accordance with article L. 125-1 of the Code of Civil Enforcement Procedures.

* The Conseil d'Etat annulled the previous wording of Article 750-1 CPC, on the grounds that "although the provisions of 3° of Article 750-1 of the Code of Civil Procedure make it clear that the unavailability of judicial conciliators, making it possible to derogate from the obligation to make a prior attempt at amicable settlement (. ...) must be assessed in relation to the date on which the first conciliation meeting can be organised, merely specifying that this meeting must not take place 'within a period of time that is manifestly excessive having regard to the nature and stakes of the dispute', they have not defined in a sufficiently precise manner the procedures and the timeframe(s) according to which this unavailability may be considered as established". (CE, 6th - 5th joint chambers, 22 September 2022, Application no. 436939).

However, the Conseil d'Etat rejected the argument that the principle of equality before the law had been infringed. The claimants alleged "that certain litigants may have recourse to a paid method of amicable dispute resolution, which would enable them more easily to avoid having their claim inadmissible in court, whereas other litigants, who can only have recourse to conciliation, which is the only free method of amicable dispute resolution, would find themselves exposed to having their claim inadmissible if they were unable to establish the unavailability of court conciliators". The Conseil d'Etat considered that none of the contested provisions established "a difference in treatment between litigants who choose to have recourse to a judicial conciliator".

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