The Council of State abolishes the obligation to resort to amicable dispute resolution

Council of State, decision of 22 September 2022, N° 436939

Referred to in particular by the Conseil National des Barreaux and the Conférence des Bâtonniers, the Conseil d’Etat ruled a few days ago on an application for annulment on the grounds of excess of power of Decree No. 2019-1333 of 11 December 2019 reforming civil procedure, a decree amending several provisions of the Code of Civil Procedure.

The latter maintained much of the content of the decree, in particular with regard to the provisions on the provisional enforcement of court decisions. On the other hand, it chose – more unexpectedly – to “annul” Article 750-1 of the Code of Civil Procedure.

I. The provisions of Article 750-1 of the Code of Civil Procedure in their version resulting from Decree No. 2019-1333 of 11 December 2019

Article 750-1 of the Code of Civil Procedure, specific to proceedings before the Judicial Court, read as follows

“On pain of inadmissibility, which the judge may declare ex officio, the legal action must be preceded, at the option of the parties, by an attempt at conciliation by a court conciliator, an attempt at mediation or an attempt at a participatory procedure, 5,000 or when it relates to one of the actions mentioned in Articles R. 211-3-4 and R. 211-3-8 of the Code de l’organisation judiciaire.

It follows from this provision that for a number of disputes (a large proportion of those falling within the jurisdiction of the Chambre de proximité), the parties have been obliged since 2019 to resort to an amicable dispute resolution method, before bringing the proceedings before the courts.

What methods of amicable resolution were allowed?

The parties had the choice of how to settle their dispute.

Therefore, they were free to opt for :

• Conciliation
• Mediation
• The participatory procedure

Article 750-1, paragraph 2 of the CPC provided for several exceptions to the requirement of recourse to an amicable dispute resolution method prior to referral to the court.

More specifically, the parties were exempted in one of the following cases:

1. If at least one of the parties sought approval of an agreement ;
2. When the exercise of a prior recourse was compulsory (mainly tax disputes, with social security bodies);
3. If the absence of recourse to one of the methods of amicable resolution was justified by a legitimate reason, which could be characterised by ” the manifest urgency“, ” circumstances of the case making such an attempt impossible or requiring a decision to be rendered without an adversarial process” or finally by the unavailability of judicial conciliators leading to the organisation of the first conciliation meeting within a timeframe that is manifestly excessive in view of the nature and the stakes of the dispute
4. Where the judge or administrative authority is required by a particular provision to make a preliminary attempt at conciliation;

Failure to implement one of these alternative dispute resolution methods or failure to provide an exemption was sanctioned by the inadmissibility of the claim formulated before the Court.

The parties were therefore invited to turn to one of these procedures, and in case of failure to return to the Court.

II. A prejudicial vagueness justifying an annulment of the text in force

The main elements justifying the annulment of this provision, according to the various organisations that referred the matter to the Council of State, were the following:

• the lack of clarity and intelligibility of the standard,
• -the difference in treatment between litigants (those acting for less or more than €5,000)
• the infringement of contractual freedom contained in the text (impossibility in the context of a private law contract to derogate from this rule).

However, the Council of State did not accept any of these arguments to justify its decision.

On the other hand, it relied on the lack of precision as to the modalities and deadlines that could be invoked by a party in order to be discharged from this prior obligation.

As this is a condition for the admissibility of a judicial remedy, the Council of State specifies that the indeterminacy of certain criteria is an infringement of the right to exercise an effective remedy guaranteed by Article 16 of the Declaration of the Rights of Man and the Citizen.

A little background: the disputed text allowed for exemption from this obligation to make a prior attempt at amicable resolution of the dispute, in particular in the event of a “legitimate reason”, as mentioned above.

In a decision handed down on 21 March 2019, the Constitutional Council declared this text to be in conformity with the Constitution, but had already expressed reservations about the notions of “legitimate reason” and “reasonable time“. According to him, these are a matter for the sovereign appreciation of the judges of the court of first instance, even though they determine in the text the admissibility or not of an appeal.

The Council of State, after noting that the decree did not incorporate the reservations expressed by the Constitutional Council and left certain admissibility criteria undetermined, rightly deduced that this situation was likely to infringe on the right of individuals to exercise an effective remedy before a court.

The Council of State therefore considered that the terms of the derogation provided for in Article 750-1 of the Code of Civil Procedure were not sufficiently precise, since they did not specify either the methods or the deadlines for characterising the “unavailability” of the conciliator, which, as a reminder, is one of the hypotheses validated for the “legitimate reason”.

In practice, the obligation to have recourse to the amicable settlement of disputes is therefore abolished on pain of inadmissibility 5,000 or when it relates to one of the actions mentioned in articles R. 211-3-4 and R. 211-3-8 of the Code of Judicial Organisation or to an abnormal neighbourhood disturbance.

Decisions taken before the annulment of the text will however be considered as final, the Council of State said in its ruling.

The annulment of the provision will therefore take effect from 22 September 2022 for any action brought on or after that date.

There is therefore currently no legal obligation to make a preliminary attempt at amicable dispute resolution.

This provision, which was intended to relieve the courts of their workload, should undoubtedly be rewritten very quickly by the legislator, in a version that should ensure that it is not vetoed again.