What is a Summary Proceeding?

A summary proceeding is a judicial procedure that allows the judge to conduct a rapid, or even immediate, examination of the dispute. They can order a provisional measure. This single judge does not examine the merits of the case.

The summary proceedings judge issues a decision in the form of an order which has only a provisional value and does not bind the judge on the merits. However, it is provisionally enforceable.

There are many types of summary proceedings (administrative summary proceedings, civil summary proceedings, summary proceedings of the Court of Auditors, tax summary proceedings, criminal summary proceedings) but all have the same general functions: to order provisional, conservatory or anticipatory measures.

The summary proceeding procedure therefore has three characteristics:

• The judge issues an order for provisional measures. The dispute will be definitively settled by a main trial, which is called a trial “on the merits”;
• The summary proceeding procedure offers the possibility for an applicant to obtain from the judge any useful measure to preserve their rights and interests;
• The summary proceeding procedure is based on the principle of adversarial proceedings, as the judge can only rule after hearing the defendant’s arguments.

The summary proceeding procedure is to be distinguished from an accelerated procedure on the merits which allows the judge to rule quickly and definitively and which only exists when provided for by a special text.

The summary proceeding procedure is also different from the ex parte procedure, which is another urgent procedure but does not require adversarial debate between the parties.

What can be requested in a summary proceeding?

The summary proceeding procedure allows one to ask the judge for:

• All urgent measures that do not face any serious challenge (Article 834 of the Code of Civil Procedure), for example, ordering the payment of a sum of money under a contract.

The conditions of urgency are assessed by the judge on the date when they make their decision (Cass. 3rd civ., Oct. 5, 1976, No. 75-13.645). A serious challenge is assessed according to the obviousness of the rights claimed by each party.

• Conservatory measures even in the presence of a serious challenge:

1. Either to prevent imminent harm;
2. Or to stop a manifestly unlawful disturbance.

A manifestly unlawful disturbance can be defined as “any disturbance resulting from a material or legal fact which, directly or indirectly, constitutes an obvious violation of the rule of law” (Court of Cassation, Dec. 9, 2020, No. 19-21.118). This could involve, for example, stopping work that causes harm to neighbors.

Civil summary proceeding:

Article 484 of the Code of Civil Procedure defines the summary order as “a provisional decision made at the request of one party, the other being present or summoned, in cases where the law confers on a judge who is not seized of the main issue the power to immediately order the necessary measures.”

The administrative judge can also issue summary orders:

Regarding the liberty summary proceeding, there must be “a direct relationship between the illegality noted against the administrative authority and the seriousness of its effects with regard to the exercise of the fundamental freedom in question” (Council of State, November 12, 2001, Commune de Montreuil-Bellay, req. No. 239840). This could involve, for example, a refusal to authorize the opening of a place of worship or its closure (CE November 9, 2015, Muslim Assoc., req. no. 394333). In principle, the judge can only pronounce provisional measures, however, when expressly authorized or when the situation requires it, they can take irreversible measures.

The Summary Proceeding Procedure

How to initiate a summary proceeding before civil courts?

The summary proceedings judge is generally the president of the court seized. Regarding the judicial court, the president of the judicial court or the judge of protection disputes can order summary measures. The powers of the president of the judicial court extend to all matters where there is no particular summary procedure (Art. 836 Code of Civil Procedure).

a) The summons

The procedure is initiated by a summary proceeding summons, addressed to the opposing party and delivered by a justice commissioner (since July 1, 2022, bailiffs and judicial auctioneers have become justice commissioners).

b) The use of a lawyer

In principle, a lawyer is mandatory before the judicial court (art. 760 of the Code of Civil Procedure). As an exception, the use of a lawyer is not mandatory (art. 761 of the Code of Civil Procedure) in certain cases, notably:

• If the value of the dispute is less than or equal to €10,000.
• In disputes relating to parental authority, guardianship, eviction, residential leases, consumer credit.

c) Oral and adversarial procedure

The court must ensure that the opposing party has had time to prepare their defense before making its decision. The procedure can also, with the agreement of the parties, take place without a hearing (art. 836-1 of the Code of Civil Procedure).

The decision is generally rendered immediately after the hearing, but it can also be rendered at a later date set by the court.

The plaintiff must then have the order served to the opposing party, who will then have to execute the measures prescribed by the order. The summary order is legally enforceable on a provisional basis, like first instance decisions (art. 514 of the Code of Civil Procedure).

How to initiate a summary proceeding before the administrative judge?

If the dispute falls under the jurisdiction of the administrative judge, it is possible to file a summary proceeding request at the court registry, via Télérecours (online) or send it by mail, with acknowledgment of receipt, indicating the mention ‘summary proceeding’ on the request and on the envelope (art. R522-3 of the Code of Administrative Justice).
The assistance of a lawyer is not mandatory for the administrative procedure except:

• For the interim payment proceeding (which allows you to quickly obtain an advance on a sum owed by an administration);
• If it concerns a contract concluded with an administration or a public body.

Appeals

• If you are not satisfied with the decision rendered by the summary judge, you can contest it before the Court of Appeal within a period of fifteen (15) days after the notification of the order, as can the opposing party. In two cases, an appeal is not possible (art. 490 of the Code of Civil Procedure):

1. When the order comes from the first president of the Court of Appeal;
2. When the order has been rendered as a final decision due to its amount or the object of the request.

• Some decisions rendered in the first instance by the administrative judge cannot be appealed; in this case, a cassation appeal must be made before the Council of State within a period of fifteen (15) days (art. R523-1 of the Code of Administrative Justice). The Council of State will rule within a period of one (1) month (art. R523-2 of the Code of Administrative Justice).

The contestation must be based on illegality; the Council of State does not retry the case but verifies if the law has been correctly applied.

The assistance of a lawyer before the Council of State is mandatory except for decisions regarding pensions or social aid.

In all cases, the decision is applied on a provisional basis pending the appeal decision or the main judgment.

APPLICABLE REFERENCES

Civil law: Art. 145 of the Code of Civil Procedure (CCP) (investigative measure); articles 484 to 492-1 of the CCP (summary proceeding); art. 761 of the CCP (lawyer constitution); art. 834 of the CCP (urgent measures); art. 835 of the CCP (measures in case of dispute); art. 834 to 838 of the CCP (summary orders); Decree No. 2019-1333 of December 11, 2019 reforming civil procedure; Decree No. 2020-1452 of November 27, 2020 on various provisions relating in particular to civil procedure and the procedure for compensating victims of terrorist acts and other offenses.

Administrative law: Articles L511-1 to L511-2 of the Code of Administrative Justice (summary judge); articles L521-1 to L521-4 of the Code of Administrative Justice (powers of the summary judge); articles R522-1 to R522-14 of the Code of Administrative Justice (procedure); articles R523-1 to R523-3 of the Code of Administrative Justice (appeals); LAW No. 2000-597 of June 30, 2000 relating to summary proceedings before administrative courts.

Case Law: Court of Cassation, 3rd Civil Chamber, Oct. 5, 1976, No. 75-13.645; Court of Cassation, Dec. 9, 2020, No. 19-21.118; Council of State, Nov. 12, 2001, Commune of Montreuil-Bellay, Application No. 239840.