“La lettre de jurisprudence” normally doesn’t have an editorial. It’s simply meant to be a selection of French Supreme Court decisions by French lawyers for their fellow-lawyers all over the world. The idea came to me when speaking with non-French speaking lawyers who wanted to have an access to French jurisprudence but could not find any materials in any other language besides French.

It is not meant to be an authoritative academic publication but simply a short introduction to a few French cases chosen to give a diverse overview of the French legal scene.

Please let us know if you found it useful and tell us what subject areas would be of interest to you.

Marc Jobert
caei@cnb.avocat.fr

Prepared under the direction of Mr Marc Jobert
Vice-President of the Commission des Affaires Européennes et Internationales
Special thanks to her Honour Judge Judith C. Gibson for translating this issue

Adoption orders for a child, if prohibited by the law of the child's origin, cannot be made unless the child is born in and usually resident of France
CNB [2006] 1- -Cour de Cassation, 1ère Chambre civile, 10 October 2006 , pourvoi n° 06-15 264
CNB [2006] 2- -Cour de Cassation, 1ère Chambre civile, 10 October 2006 , pourvoi n° 06-15 265

Environmental pollution and latent defects in sale goods
CNB [2006] 3- Cour de Cassation, 3ème Chambre Civile, 8 June 2006 pourvoi n° 04-19 069

The obligations of bailment cease only when the goods are returned, and not after completion of the works contracted for
CNB [2006] 4- -Cour de Cassation 1ère 30 May 2006, pourvoi n° 05-13980

No authorial rights for the creation of perfume fragrance
CNB [2006] 5- Cour de Cassation, 13 June 2006 Pourvoi n° 02-44718

Jurisdictional power of the Bâtonnier  
CNB [2006] 6- Conseil d'Etat, 2 October 2006 Recours n°282028

Freedom of marriage: a principle reaffirmed in the battle against sham marriages
CNB [2006] 7- -Conseil Constitutionnel, decision n° 2006 - 542 DC of 9 November 2006

Protecting Civil Liberties: extension of the administrative judge's power in pursuit of freedom
CNB [2006] 8- -Conseil d'Etat, 18 October 2006, recours n° 298101

Useful link : the Cour de Cassation

The French National Council of the Bars (Conseil National des Barreaux) is the official representative body for the French Legal profession (avocats).

The National Council of the Bars is mainly in charge of promoting and defending the French Lawyers’ interests, regulating the ethical and educational standards of the Lawyers, and influencing Law reform to achieve a better system of justice.

In the aim of promoting French lawyers and the Legal profession abroad the National Council of the Bars works closely with European and International organisations

Adoption orders for a child, if prohibited by the law of the child's origin, cannot be made unless the child is born in and usually resident of France
The two appeal judgments set out below are of interest for two reasons.
Firstly, they deal with relationships not only between conflicting legal systems in the private international law sense but also between cultural equivalents in each country’s system. These judgments apply, for the first time to our knowledge, article 370-3 of the Civil Code concerning the law of 6 February 2001 which brought reforms to adoption law.

Previously it had been ruled, solely for reasons of public policy, that the law prohibiting the adoption of a Moroccan child although the child had lived almost exclusively in France was not contrary to the French view of international public policy.

Article 370-3 of the Civil Code now provides that the adoption of a child is subject to the law of the adopting parents. It is however subject to a preliminary requirement of inquiry into the law of the child’s nationality to determine whether it would authorise the adoption. There can be an exception to this rule only where the child is born in France and France is the usual place of his residence, elements not present in the cases in point.

The question was therefore one of determining whether, in the context of adoption being prohibited for this reason, the authorisation of the Islamic ‘Kafala’ Courts could be interpreted as the equivalent of adoption. Whereas Islamic Law prohibits expressly the adoption, the « Kafala » can be compared to a guardianship or a delegation of parental rights allowing the taking care of the child and ending with his majority. The difference lies in the sole creation of a relationship of filiation, purpose of the adoption. However, the creation of a relationship of filiation is forbidden by the Islamic Law.

The Cour de Cassation rejected this argument, applying a strict interpretation of article 370-3 of the Civil Code and referring with emphasis to the consequences of Algerian and Moroccan laws that expressly prohibit adoption.

These judgments are additionally of interest in that they were handed down on an appeal brought for the determination of issues of law rather than by the parties.

Civil proceedings are primarily for the resolution of the disputes of the respective parties. However, the Ministère Public (the Public Prosecutor) maintains a supervisory role in the implementation of the correct legal principles.

This is particularly the case in legal disputes considered to be important test cases, where the court papers have been forwarded to him so that he can make his opinion known, an opinion that will be noted on the court file and can of course be discussed by the parties in the proceedings.

The Ministère Public can, in general terms, invoke his right to appear before the Cour de Cassation when he has been informed of a decision contrary to laws and regulations. However, in order to have regard to “the rights of the parties to the proceedings”, his appeal right is only exercised after the expiry of the time limitation for exercising their rights of appeal. Further, the decision given on the basis of his appeal cannot be opposed by the parties. Appeals brought in the interest of determining the law permit the maintaining of the Rule of Law and send a strong message for future litigations, reaffirming the exactitude of the law without the result of the litigation in which the intervention took place being affected.

In the judgments set out below, the adoption orders made by the judges still remain valid court orders. However the judges’ attention will be drawn in future decisions to have regard to the principles of law that have been reaffirmed as being the correct approach in such cases: they have to inquiry into the national law of the child to determine whether it authorises the adoption; the “Kafala” of the Islamic law is not an adoption.

CNB [2006] 1- -Cour de Cassation, 1ère Chambre civile, 10 October 2006 , pourvoi n° 06-15 264

The Court :
This is an appeal brought on the interest of the Law on 23 May 2006 by the Procureur Général to the Cour de Cassation.

The relevant law is article 17 of the law of 3 July 19 67 and article 370-3 sub-section 2 of the Civil Code.

Adoption orders for a foreign minor cannot be made if the personal law applicable to the child prohibits this practice, unless the minor was born in and usually resident in France.

Mr and Mrs X made applications to adopt and on 15 June 2000 obtained a valid agreement for 5 years. Rayane Y (born on 6 February 2003 in Morocco), who had been declared an abandoned child, was put into their care by a decision of the Moroccan Kafala on 10 March 2003 . This decision required Mr and Mrs X to undertake the education of the child in Islamic principles and to consult on matters arising from this with a Moroccan judge. On 4 November 2003 Mr and Mrs X brought proceedings before a French judge and sought orders principally for a plenary adoption and in the alternative a simple adoption.

The judgment appealed from, in making a simple adoption of the child by Mr and Mrs X , noted that the Moroccan code of Personal status provides that “adoption has no legal standing and does not permit any of the benefits of filiation to apply”. However, the judgment went on to compare the practical effects of adoption and a Kafala order; and noted that the latter placed upon persons appointed tutors by the Kafala parental obligations of the kind found in French law and that these consisted of care, education and protection of the abandoned child. By comparison, a simple adoption order conferred on the adopter the rights and obligations of parental authority with regard to the child without affecting his origins and without imposing a fictitious relationship of filiation.

In arriving at this decision while having noted that Moroccan law forbade adoption, that the Kafala is not an adoption, and in circumstances where the child was neither born in nor usually resident in France, the Court of Appeal had erred in its interpretation of the law.

For these reasons the decision was set aside and annulled without right of review; but only in the interests of the law and without prevailing over the parties’ rights in the judgment appealed from.

CNB [2006] 2- -Cour de Cassation, 1ère Chambre civile, 10 October 2006 , pourvoi n° 06-15 265
The Court:
This is an appeal brought on the interest of the Law on 23 May 2006 by the Procureur Général to the Cour de Cassation.

The relevant law is article 17 of the law of 3 July 19 67 and article 370-3 sub-section 2 of the Civil Code.

Adoption orders for a foreign minor cannot be made if the personal law applicable to the child prohibits this practice, unless the minor was born in and usually resident in France.

Mr and Mrs Y, holders of a agreement delivered on 4 April 2000 for 5 years, received, according to a Kafala order made by an Algerian judgment on 30 December 2003 , the child named Hichem, born on 28 June 2002 in Algeria and who had been abandoned by his biological mother. They brought proceedings before a French judge and sought orders for a plenary adoption of the child.

The judgment appealed from, in making a simple adoption, also requested on appeal, noted that the national law of the child forbade the adoption and decided that the Algerian law, under the name of Kafala, provides an institution with similar effects to those of a simple adoption.

In arriving at this decision while having noted that Algerian law prohibits adoption, that the Kafala is not an adoption, and in circumstances where the child was neither born in nor usually resident in France, the Court of Appeal had erred in its interpretation of the law.

For these reasons the decision was set aside and annulled without right of review, but only in the interests of the law and without prevailing over the parties’ rights in the judgment appealed from.

Environmental pollution and latent defects in sale goods
The vendor has a primary obligation to deliver the item that has been sold in good order. He must give a warranty to the buyer that it is free from latent defects.

Latent defects are the opposite of patent defects, which are defects that can be seen by a buyer carrying out a basic inspection.

When latent defects rendered the goods unfit for their purpose, for example in the case of materials for building on a previously acquired building site, the buyer could request the court to award the price of the goods, and so he has to refund the goods. Such relief must be sought within two years of the discovery of the latent defect. It is also possible to seek damages and interest when the vendor knew of the latent defects.

This appeal judgment is an example of the application of these principles concerning latent defects in an environmental issue setting.

CNB [2006] 3- Cour de Cassation, 3ème Chambre Civile, 8 June 2006 pourvoi n° 04-19 069

The Court :
According to the judgment appealed from (Paris, 8 September, 2004 ), Total Solvents Company (Total Fluids) sold on 23 December 1991 a “building kit” to SEM Plaine Communal Development (SEM). This kit had previously been used for the stocking of hydrocarbons with the intention of setting it up as a construction site after the demolition of some buildings. SEM entered into a contract for the sale of a part of the site withFerinel Company, whose rights were assigned to the George V Industry Society and then to Sari Development.

Having realised that the goods were affected by a latent defect because of the spread of pollution, SEM brought proceedings against Total Fluids concerning the resolution of the sale agreement by payment of damages and interest and an indemnity for compensation orders made for the benefit of Sari Development and SCI Saint Denis Aubervilliers Lafargue. These companies had sought orders against Total Fluids to compensate for the damage flowing from the loss of the promise of sale.

On the first ground of appeal:
Total Fluids appealed the judgment against them for damages for the loss of the SEM sale, arguing:

  1. Judges cannot accept or reject claims brought before them without examining all of the evidentiary material provided by the parties in support of their claims. In the present case, in its appeal argument, Total Fluids company had expressly relied on a new expert’s report outlining the risks (EDR) commenced in 2003, which report contained the provisional conclusions on these issues that “the [disputed] site is certainly suitable for construction”, providing precise technical specifications could be met (these specifications were the placing of a geomembrane or a draining mat under the building, “venting” preliminary to all installation). These additional specifications would result in additional costs equal to about 10 per cent of the construction cost. As a result, by failing to consider this new evidence produced by Total fluids on appeal, concerning the way to establish that the land that had been sold could be made fit for construction without the risk of serious health injury, and for a limited cost having regard to the overall costs of construction, the Court of Appeal had violated article 1353-2 of the Civil Code together with articles 455 and 563 of the new Civil Procedure Code.
  2. The Court of Appeal had purported to come to its conclusion as to the unsuitable character of the land for its use from the fact that construction would only be possible “with the assistance of additional funding that SEM Plaine could not have foreseen having to include in the project”, additional costs that were “in excess of the 9 per cent retained by SOCOTEC”, set out in a report making findings about the land’s suitability for construction. However the Court did so without inquiring if the additional costs of construction (which the court did not assess) were such that the land could be considered unfit for the use to which it was intended to be put. In so doing the Court of Appeal had tainted its judgment with legal error, having regard to the provisions of article 1641 of the Civil Code, because the mere existence of additional costs of an unspecified nature did not give the land the fatal flaw of latent defect.
  3. In its appeal argument Total Fluids, adopting the conclusions of the judicially appointed expert and the statements in the judgment at first instance, submitted that SEM Plaine Development’s activities were the construction and transformation of building sites. For a project that involved work on an industrial site in the course of closing down, it was contrary to normal diligent professional practice for the company not to have obtained an in-depth environmental assessment report on a site suspected of having a pollution problem, although the obtaining of such a report had been common practice in France for the last 10 years. Such a report would have enabled the company to measure the spread of the pollution immediately and this would have exposed the latent defect of what was being offered for sale, which could not have the character of latent defect if it was only latent by reason of failure to take this essential step. Accordingly the Court of Appeal had breached article 455 of the new Civil Procedure Code.

However, first it should be noted that the Court of Appeal had retained the services of a judicial expert, whose very comprehensive analysis of the works already commenced and of the other evidence, led him to opine that the site remained polluted even at surface level, that total decontamination was problematic and that any construction on the site was fraught with risk. The Court of Appeal, in considering the evidence put before it, should not be required to spell out the evidence it had decided to reject, nor to proceed on an inquiry concerning the importance of additional costs when its decision rendered an assessment of these otiose. The Court had essentially found that the spread of the pollution, a defect unknown to SEM, constituted a latent vice rendering the building unsuitable for its use when any building on the site was a risk for the health or security both for the building workers and for future users of the site.

Further, Total Fluids Society had not established in its submissions that the failure to obtain an in-depth environmental assessment report for the site prevented SEM Society from discovering the latent defect. This ground of appeal also failed.

The grounds for appeal were accordingly not made out.

The obligations of bailment cease only when the goods are returned, and not after completion of the works contracted for.
A contract for work or service can include a provision that it should be performed on the property of the servicer, who is called the works master. Compliance with this provision also requires the return of the goods to the entrepreneur, or owner of the goods. In such cases the contract for work also functions as an ancillary contract for bailment, with provisions that the recipient accepts the goods from the person depositing them on condition that the goods are looked after and returned in good order on the due date of the contract.

The question in this case was to determine when these obligations to return, ancillary to the obligation to perform work, ended. In particular, this case concerns the determining of whether the obligation to look after and return the goods continued despite the completion of the obligations arising from the contract to perform the work. Does the completion of work discharge the entrepreneur from his obligations to take care of, or retain, the goods left with him?

The Cour de Cassation held that his duties did not end there. Only the return of the item put an end to the obligations of the tradesman/bailee, not the completion of the work envisaged in the work contract.

When the proceedings are remitted for rehearing by the Court of Appeal the question will be to analyse if the person receiving the goods satisfied all his obligations as the keeper of the goods until the date of the fire that occurred. In effect, if the owner is not entitled to damages incurred because of force majeure, he would however be entitled to damages incurred by his fault, by the wrong committed in the period during which care had to be given to the goods left in bailment. These are issues that will need to be analysed by the Court of Appeal.

CNB [2006] 4- -Cour de Cassation 1ère 30 May 2006 , pourvoi n° 05-13980
The Court:
On the first argument on the first ground of appeal:

The relevant law is article 1915 of the Civil Code.

In 1999 Mrs X placed a boat with Hyères Espace Plaisance Company for repair work. In February 2000, several months after completion of the work, the boat was destroyed in a fire which occurred in the boat repairer’s premises. The boat owner started proceedings against the repair company and the insurer, Société Generali Assurances, intervened in the proceedings.

In dismissing Mrs X’s claim, the judgment under appeal first noted the parties entered into a contract for work coupled with bailment, and then noted that the contract had ended with the completion of these works, no later than October 1999, three months before the boat was destroyed. The arrangement which then replaced this was a procedure called “port à sec”, comparable to simply leaving an item with another person, and the rules of bailment were not applicable.

In coming to this decision, the Court failed to have regard to the provision of the Civil Code referred to above. The law was that the workman had an item in his workshop for repair and he was not freed of his obligation as a bailee by the completion of the works, as he remained obliged to keep and look after this item until it was returned.

For these reasons, since there was no need to consider the other grounds of appeal, the decision was set aside and remitted to the Court of Appeal in Aix-en-Provence for hearing by a differently constituted bench.

No authorial rights for the creation of perfume fragrance
A former employee of a perfume retailer sought compensation for sales of perfumes she had created for the company.

Her application was dismissed on the basis that perfume fragrance cannot be considered a “work” of the kind referred to in articles L112 – 1 and L112 – 2 of the Intellectual Property Code and could not give rise to rights of authorship.

What this means is that perfume fragrance is included in the category of “work produce arising from skilled knowledge”, which denies the artistic creativity of perfumers.

CNB [2006] 5- Cour de Cassation, 13 June 2006 Pourvoi n° 02-44718

The Court:
On the sole ground of appeal :
Mrs X appeals from a decision (Versailles, 5 March 2002 ) dismissing her claim for compensation against the company Haarman & Reimer for the rights to perfume fragrances she created for the company. The court below held such creations do not fall within the protection afforded to creations for which a right of authorship can be asserted. According to the appellant, the provisions of the Intellectual Property Code protect the rights of authors of all creative works, whatever their nature, form or expression, merit or use. This Code contains a list, which is not exhaustive, of what is considered to be a creative work and the fragrance of a perfume, which is a creation of the intellect, should be considered, by reasons of originality, as a creative work protected by the rights for creative works. Mrs X claimed relief on this basis for the perfumes she created by relying on the provisions of the Intellectual Property Code protecting creative works and submitted that in deciding that the creation of perfumes fell outside this protection the Court of Appeal had failed to have regard to articles L 112 – 1 and L 112 – 2 of the Intellectual Property Code.

However perfume fragrance, which is the product of the simple application of skilled knowledge, does not constitute, in the sense of these provisions, the creation of a form of expression warranting the protection available for creative works by the right of authorship. It follows that the appeal argument has not been made out.

Jurisdictional power of the Bâtonnier
Each Bar elects a president (Bâtonnier) to represent its members. There are 182 Bars in France, one for each Tribunal de Grande Instance (the first degree jurisdiction). Assisted by the Bar Council (the Conseil de l'Ordre), the president of the Bar ensures that ethical standards are maintained within the Bar and resolves (although only at first instance) disputes between lawyers and clients. This is particularly the case in relation to a dispute concerning legal fees.

The applicant made an application to the Prime Minister to abrogate certain provisions in decree n° 91 – 1197 of 27 November 2001 regulating the legal profession and in particular provisions relating to the compulsory procedure for regulating disputes about professional costs and disbursements before the Bâtonnier as well as provisions relating to proceedings concerning employed lawyer’s work contracts.

According to the applicant, the Bâtonnier became a jurisdiction when he made these decisions. Articles 174 to 179 of the decree of 27 November 2001 could only have legal standing in conformity with article 34 of the Constitution because only the Parliament could create a new legal jurisdiction.

The Bâtonnier not being a valid jurisdiction, his decisions could only be enforceable by decision of the First President of the Court of Appeal. The Conseil d’Etat rejected the applicant’s argument on this point.

Nevertheless, as to articles 150 to 152 of the decree of 27 November 2001 , providing a complete lack of public access or information concerning arguments both before the Bâtonnier and before the Court of Appeal for the resolution of the litigations relating to employer/employee work contracts for lawyers, the Conseil d’Etat considered these provisions were manifestly in breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus the refusal to abrogate these provisions was criticised by the Conseil d’Etat.

Following this decision a draft law was proposed to the Ministry of Justice to ensure publicity of debates before the Bâtonnier and the Court of Appeal concerning the litigations with regard to the contracts of employed lawyers.

CNB [2006] 6- Conseil d’Etat, 2 October 2006 Recours n°282028
[…]

The relevant law is the European Convention for the Protection of Human Rights and Fundamental Freedoms;
[...]

Law N° 71 – 1130 of 31 December 1971 and subsequent regulations, notably law n° 2004 – 130 of 11 February 2004 ;
Decree n° 2005 – 531 of 24 May 2005 ;
Decree n° 2005 – 790 of 12 July 2005
[...]

Concerning the provisions relevant to disputes over lawyers’ fees and disbursements: Articles 174 – 179 of the Decree under challenge provide a compulsory procedure for the disputes concerning legal costs and disbursements. By reason of article 175, each litigant or lawyer concerned may make submissions to the bâtonnier, who considers these submissions before taking a ruling. By reason of articles 176 – 178 this decision is capable of review before the First President of the Court of Appeal. When it is not referred to the First President of the Court of Appeal it can be executed by order of the President of the Tribunal de Grande Instance at the request of either the lawyer or the litigant.

Since the bâtonnier intervenes in the determination of disputes about professional costs and disbursements, decisions which can only be capable of execution on the order of the President of the Tribunal de Grande Instance, his role is neither that of a jurisdictional authority nor of a tribunal in the sense of article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It follows, firstly, that the ground of appeal according to which the regulatory provisions in relation with the bâtonnier’s powers would misunderstand the constitutional provisions which reserve to the Law the provisions relating to the creation of new legal jurisdictions, must be dismissed; secondly, the ground of appeal dealing with the incompatibility of these provisions with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is invalid.
[...]

On the issue of the provisions concerning disputes over employed solicitors’ work contracts:

Article 7 subsection 7 of the law of 31 December 1971 provides, concerning employed lawyers, that “litigations arising from a work contract must go to arbitration before the bâtonnier, with a right of appeal to the Court of Appeal sitting as Chambre du Conseil.” Articles 142 – 153 of the Decree deal with these disputes. Article 150 provides that “arguments before the bâtonnier take place in a closed court”. As to the procedures in the Court of Appeal, Article 152 refers to Article 16 of the decree which sets out the procedure before the Court of Appeal, consisting of submissions by a lawyer who considers his professional interests have been infringed by a decision or deliberation of a local Bar Council (Conseil de l’Ordre) but excludes, significantly, the applicability of subsection 4, which provides that the court gives a ruling as a chamber in counsel unless the interested parties ask for the debate to be held in open court.

Notwithstanding the fact that the bâtonnier is himself a lawyer, or that in the application of article 153 of the Decree, the bâtonnier’s decisions are by law executory and provisional in nature when they involve an order for the payment of remuneration for a maximum period of nine months of salary, and in other cases the orders can be made executory by the President of the Tribunal de Grande Instance when they have not been referred to the Court of Appeal, however these provisions are not such as to make this provision inconsistent with article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

However, the disputes the subject of these arguments have dealt with rights and obligations of a civil nature in the sense of article 6 of the Convention. If these stipulations do not impede the right for proceedings to be heard in open court so that justice can be seen to be done, particularly in circumstances where for particular matters the availability of a public hearing would be in the interests of justice, then the exclusion of any possibility of arguments in open court, both before the bâtonnier and on appeal, is incompatible with article 6 paragraph 1 of the Convention.

A demand having been made to abrogate articles 150 and 152 of the Decree on the basis of this argument, the Prime Minister was obliged to do right in such circumstances. His refusal, implicit through non-reply, to abrogate the articles insofar as they excluded the right of public hearings for these debates when they are litigation arising from an employed solicitor’s work contract, was a wrongful exercise of power.

Considering the history of the matter, and without necessity to approach the European Court of Justice on this question of prejudice, the applicant has a ground to seek the annulling of the decision implicit in the Prime Minister’s silence in response to his demand, only to the extent that the Prime Minister refused to abrogate articles 150 and 152 in the Decree of 27 November 1991 in which the right of public audience is denied [...].

ORDERS :
Article 2: The rejection inferred from the silence of the Prime Minister on the request made by M. A. is annulled insofar as this decision refuses to abrogate articles 150 and 152 of the Decree of 27 November 1991 in that these articles exclude all possibility of open court hearings.
[…]

Freedom of marriage: a principle reaffirmed in the battle against sham marriages
Law n° 2006 – 1376 of 14 November 2006 concerning the regulation of validity of marriages is intended to combat more efficiently the performing of forced or sham marriages in overseas countries and to combat falsification of records or fraudulent administrative decisions made in foreign countries.

The law has been subject to two reviews by more than 60 Senators and Deputies who put before the Conseil Constitutionnel the submission that article 3 of this law together with Part II of the article 7 were contrary to the freedom of marriage and the right to lead a normal family life.

In accordance with article 61 of the Constitution, the Conseil Constitutionnel can review a law and determine its conformity to the existing Constitution and constitutional principles only before the law is promulgated.

Article 3 of this law contains general provisions for marriages entered into between French nationals, or a French national and a foreigner, where the ceremony is performed overseas, prescribing preliminary requirements to the celebration, and specifying the conditions and the effects of entry on the French civil register of the marriage details.

By establishing different procedures intended to ensure the validity of marriages entered into by a French national which are performed overseas by a foreign authority, the legislation is having regard to the many different situations likely to arise from the form and content of these overseas marriage ceremonies.

The Parliament has foreshadowed delays adapted to the characteristics of each of these situations and guaranteed effective recourse to the courts to challenge the decisions, explicit or implicit, concerning foreign authorities. In particular, none of these provisions constitutes a bar to the celebration of a marriage by an overseas authority. Finally, transcription into the French civil register is solely for the purpose of, and does no more than implement, the opposability to third parties of the marriage in the ranks of the French legal system. Its absence is no obstacle to a marriage having full force and effect, in France, between spouses and their children.

Having regard to the whole of the precautionary provisions envisioned by the Parliament, article 3 of the law under constitutional review has not put either the freedom of marriage or the right to lead a normal family life at risk.

CNB [2006] 7- -Conseil Constitutionnel, decision n° 2006 – 542 DC of 9 November 2006
[...]

CONCERNING ARTICLE 3

  2. Article 3 of the law under consideration inserted into title V of the first volume of the Civil Code a new Chapter II bis composed of articles 171 – 1 to 171 – 8 and relating to marriages celebrated overseas between French nationals or a French national to a foreigner. Article 171 – 1 refers to the principle of validity of marriage celebrated by a foreign authority or by diplomatic authorities or French consuls. Articles 171 – 2 to 171 – 4 set out the formalities which must be a preliminary requirement for the celebration of marriage by a foreign authority and set out the circumstances in which the Procureur can oppose them. Articles 171 – 5 and 171 – 8 set out the conditions for entry, on the French civil registries, of a marriage celebrated overseas by a foreign authority, andsubordinate from now on to this transcription the opposability of this marriage to the third parties on the French territory.
  3. The applicants submit that these provisions put the very principle of marriage and the right to lead a normal family life, by initiating a system of check “manifestly disproportionate” with regard to the asserted objective of the fight against fraudulent marriages. The argue in this regard that the powers conferred on the Procureur of the Republic of France, before the celebration of a marriage as well as at the time of transcription onto the registries, can create obstacles for an excessive time period to the form and purpose of marriage.
  4. The fact that, on the one hand, freedom to marry, forming part of the personal liberty protected by articles 2 and 4 of the Declaration of Human Rights and of the Citizen of 1789, does not prevent the Parliament taking steps to prevent or fight against the contracting of marriages for aims foreign to the nature of marriage.
  5. Further, and in addition, subsection 10 of the Preamble to the Constitution of 1946 provides: “The Nation shall provide the individual and the family with the conditions necessary to their development.” The right to lead a normal family life finds its source in this provision.
  6. In order to fight against the increase in the number of forced or fraudulent marriages the legislature has reinforced the control of the validity of marriages celebrated overseas by a foreign authority when at least one of the two parties is a French national who is temporarily overseas.
  7. Concerning the preliminary stage to the celebration of the marriage, article 171 – 2 of the Civil code required future spouses to obtain from the diplomatic or consular authority a certificate of capacity for marriage. The provision of this document is subject to the completion of the same formalities as those set out in article 63 of the Civil Code for the celebration of a marriage in France. Article 171 – 4 prescribes that this authority should notify the Procureur in cases where there is compelling evidence leading to the presumption that the marriage may be a sham, this should be done “without delay”. The Procureur has two months to bring any application concerning the marriage. Withdrawal of opposition can be sought at any time from the Tribunal de Grande Instance which must stipulate in 10 days as to its findings, as must the Court of Appeal which is subject to the same time restraints.
  8. Regarding the stage subsequent to the ceremony, a marriage entered into despite the opposition of the Procureur of the Republic or without the preliminary formalities having been respected can nevertheless be registered in the conditions prescribed by the relevant law.
  9. Thus, firstly, the withdrawal of opposition can be sought by the spouses relying on article 171 – 6, and transcription in the registries cannot be refused, if the jurisdiction has granted this request.
  10. Secondly, by reason of article 171 – 7, the circumstance in which the marriage has been celebrated without the certificate of capacity being delivered is not an insuperable obstacle to its transcription on the register. This can be achieved if the parties at a hearing, which should proceed in accordance with the diplomatic or consular authorities, do not reveal compelling evidence that the marriage could be a sham or nullity. It will also not be necessary to have such a hearing if the authorities referred to above dispense with compliance with the requirements to establish the validity of the marriage. It is only the presence of compelling evidence giving rise to the presumption that the marriage could be a nullity that caused transcription to be suspended and the Procureur of the Republic to be informed. He has six months to authorise transcription into the register, or to move the Tribunal de Grande Instance for a declaration of nullity of the marriage and if he does not do so, because of his delay, the parties to the marriage can demand the registration of their marriage from the Tribunal de Grande Instance which must make such and order after a delay of one month. The same time limitation applies to the Court of Appeal, if applicable.
  11. Conformably with article 171 – 8, it cannot therefore be an obstacle to the transcription in the registry of details of a marriage celebrated after the delivery of a certificate of capacity that new evidence can be brought, based on persuasive information that leads to the presumption that the marriage could be a nullity. The diplomatic or consular authority must then immediately inform the Procureur of the Republic who has six months to ask the Tribunal de Grande Instance to annul the marriage. In the absence of a decision of the Procureur during this period, the diplomatic or consular authority must enter the marriage details onto the register.
  12. All the above findings make clear that in establishing these various procedures the Parliament has taken into account the diversity of situations having regard to the respect for the freedom to marry. It has provided for delays adapted to the characteristics of each of these situations and guaranteed effective recourse to the courts to challenge the decisions, explicit or implicit, of the authorities concerned. Each of these dispositions does not of itself prevent the celebration of a marriage by a foreign authority. Registration has the sole aim and effect the opposability of the marriage in the ranks of the French judicial order. Its absence does not deprive the marriage of any of its civil consequences to or between the spouses or between them and their children.
  13. Having regard to all of these precautions taken by the Parliament, article 3 of the law does not put at risk either the right to marry or the right to lead a normal life; and the claims brought against this provision should be rejected. [...]

ORDER :

First particular . – Articles 3 and 7 of the law relating to the control of the validity of marriage are not contrary to the Constitution.

Protecting Civil Liberties: extension of the administrative judge's power in pursuit of freedom
Compared with the ability of the administrative bodies to review administrative decisions, judicial bodies are traditionally seen as having a role to protect essential freedoms. This role is expressly recognized by article 66 of the Constitution.

Administrative courts can use their special knowledge of how the system operates so as to put in place, on a case by case basis, adequate measures to cope with delays in a timely fashion. The administrative judge has thus seen his powers to grant relief in administrative matters considerably increased over the last 25 years, leading up to the law of 30 June 2000 which created the Administrative Justice Code.

Drawing on the lessons learned over the years, the Administrative Justice Code has conferred on the administrative judge the ability to intervene to grant urgent “référé” relief for the defence of fundamental liberties. This is the purpose of the “référé-liberté”, or “protection of civil liberties” which is discussed in the appeal decision of the Conseil d’Etat of 18 October 2006 set out below.

Two essential preconditions must be met. Firstly, the situation must be one of urgency and secondly, there must be a serious and manifestly illegal attack on a fundamental liberty that is as flagrant as it is evident.

This second requirement is of particular importance. The requirement of a manifestly illegal attack on a liberty permits the intervention of the administrative judge on a “référé” basis as long as the attack is flagrant or obvious.

The attack must be so manifest in nature that, both a priori and traditionally, there should be no necessity for interpretation of the legal basis for action.

The Conseil d’Etat does not need to consider any such legal issue in its judgment of 18 October 2006 . The Conseil clearly saw the problem. The problem was how should the word “flight” be interpreted in the provisions of the EC regulation of 18 February 2003 ? Having decided on this interpretation, the absence of manifest attack could be ascertained. The Conseil d’Etat decided to solve this legal difficulty as of the stage of the référé remedy, thereby legitimating its intervention.

This has permitted the extension of the areas for application of the “référé” procedure for the protection of civil liberties and reinforced its use, with the cooperation of the judicial judge, in the service of protecting fundamental civil liberties.

CNB [2006] 8- -Conseil d’Etat, 18 October 2006 , recours n° 298101

An application was lodged on 12 October 2006 with the Section du Contentieux of the Conseil d’Etat by Mrs Milana A, the wife B, claiming domicile at la CIMADE, 13 quai Saint-Nicolas, Strasbourg (67000). Mrs A, wife B, asked the referring judge of the Conseil d’Etat:

  1. to annul the ordinance of 5 October 2006

[...]

The relevant law is the Constitution, notably the Preamble and article 53 – 1.

[...]

Article 234 of the Treaty (CE) is relevant: “ The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

  • the interpretation of this Treaty;
  • the validity and interpretation of acts of the institutions of the Community and of the ECB;
  • the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

Regulation (CE) n° 343/2003 of the Conseil of 18 February 2003 established the criteria and mechanisms for determination of the responsible member States for the examination of a demand for asylum presented to one of the member States by a number of countries outside the EU.

[...]

Article L 521 – 2 of the Administrative Justice Code provides: “When seized with a demand of justifiable urgency, the referring judge can order such measures as are necessary for the safeguarding of a fundamental liberty to which a public body would have cause in the exercise of his powers, a grave and manifestly illegal attack.” According to article L 523 – 1 of the same Code, decisions handed down which apply article L 521 – 2 are, except in cases where there has been no evidence led, can be appealed to the Conseil d’Etat.

According to the information in the files before the court, Mrs A (also called Wife B), a person of Russian nationality and Chechen origin, left her country in November 2004 to enter Poland where she notified the authorities of a claim for asylum. Despite this she came to France with her husband and three minor children asking, on 4 March 2005 , for political asylum. In a decision of 28 July 2005 the Prefect of Bas-Rhin rejected her request and ordered her return to Polish authorities on the basis that, by application of rule (CE) n° 343/2003 of 18 February 2003 , Poland was the country responsible for considering her application for asylum and had already agreed to do so in a decision dated 23 June 2005 . Mrs A refrained from taking up the invitation that was made to her in a letter from the Prefect dated 28 July 2005 to present herself within 8 days thereafter at the Entzheim Airport to “organise the details” of her departure. In the interim she advised the Prefect, on 9 January 2006 , of a request for permission to stay for medical reasons and then on 29 March 2006 sought a review of her request for asylum. These requests were jointly refused in a judgment of 4 September 2006 . Mrs A brought an appeal from the order by which the referring judge of the administrative tribunal at Strasbourg rejected her arguments holding it was enjoined with the Prefect of Bas-Rhin to admit her provisionally to remain and to give her a right of asylum.

On the question of an attack on a fundamental liberty:

The right of asylum is a fundamental liberty in the sense of the provisions of article L 521 – 2 of the Administrative Justice Code.

By reason of 1° of article L 741 – 4 of the Code for the entry and stay of foreigners and the right of asylum, admission to France of a foreigner asking for asylum could notably be refused if the examination of the request invoked the decision making process of another State. (CE) n° 343/2003 of the Conseil of 18 February 2003 set out the criteria and mechanisms for the determination of the State member responsible for the examination of the claim for asylum put to one of the State members by a person coming from one of the third party countries, obligations identical to those envisaged by this regulation, agreed to with other State members.

Article 19 of Regulation (CE) n° 343/2003, which sets out the conditions in which a person seeking asylum who has made such a demand of another member State, has been the law in Poland since 1 May 2004 by reason of the treaty of membership of the European Union. This treaty states in paragraph 3 that “t he transfer of the applicant from the Member State in which the application for asylum was lodged to the Member State responsible shall be carried out in accordance with the national law of the first Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken or of the decision on an appeal or review where there is a suspensive effect.” According to paragraph 4 of the same article, “where the transfer does not take place within the six months' time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds”.

The administrative judge on a “référé” application cannot, in such an urgent case, refer the proceedings for interpretation to the European Court of Justice so as to use the procedure to make sure there is a uniform application of EC regulation (CE) n° 343/2003. Instead the judge must, on a provisional basis, determine the nature and effect of the provisions of EC Regulation he has to apply. In this regard, the reference to “flight” in the text referred to should be understood to include in particular a case where the foreigner who is departing has not been given a right of residence would be restrained intentionally and as a matter of course by the administrative authority with the intention of preventing his departure. If the refusal of such a person to defer to the invitation of the public authority to present herself to airport and border police to organise the circumstances of her departure following such a refusal constituted a sign of such a conduct, it would not be enough to establish that the person had taken flight in terms of the EC Regulation.

Mrs A (wife B)’s application for temporary residence and asylum was made in accordance with the provisions of article 14 of the decree of 30 June 19 46 referred to above, as to making an election of domicile at the site of an agreed place of residence, and on 31 August 2005 after having interviewed and then detained her husband M Khizir, so that he could be returned to Poland, the administrative authority was not proceeding equally having regard to his wife and his minor children concerning their travel documents. Following the request for residence made for medical reasons on 9 January by Mrs A, the doctor who was the Public Health Inspector, in a report sent by fax to the Prefect on 12 May 2006 , said that her state of health warranted medical supervision for a foreshadowed six month period and that if this did not occur it would have “consequences of exceptional gravity” for her, although she could benefit in Poland from appropriate treatment. Having considered all these matters and notwithstanding the circumstances in which the applicant absented herself from the meeting of 28 July 2005 to organise her departure, it could not be validly submitted that Mrs A could be considered to have taken flight in the sense of article 19, paragraph 4 of Regulation (CE) n° 343/2003. Consequently, by refusing, in his decision of 4 September 2006 , her request for residence while waiting for asylum the Prefect of Bas-Rhin was responsible for a serious and manifestly illegal attack on her right to asylum, having regard to his letter of 15 December 2005 in which he informed the Polish authorities of his intention to extend the period of time for the taking into charge of the applicant.

On the question of urgency:

Having regard to the fact that the decision under challenge noted the administrative body intended to take immediate action to send the applicant and her three children (two of whom were enrolled in school in France) back to Poland, although this country could not be held responsible for consideration of her request for asylum, in these circumstances; the requirement for urgency set out in article L 521 – 2 of the Administrative Justice Code is made out.

It follows from all these findings that the Prefect of Bas-Rhin is enjoined, not from refusing to give residency to the applicant (an order which does not fall within the competence of a référé judge) but from proceeding to a re-examination of the request for residence which was before him having regard to the provisions of the relevant ordinance, and that he should give his decision in 10 days. It is unnecessary to match, in these circumstances, this injunction of a compel. The ordinance under challenge should be revised to as to conform with this judgment of the référé judge.

[...]

DECISION:

First Article: The Prefect of Bas-Rhin is enjoined from proceeding to re-examine the request for residency pending asylum brought by Mrs A (wife B), in view of the findings resulting in these orders, in 10 days as from the notification of this order.

[...]

Article 5: Mrs A (wife B), the Prefect of Bas-Rhin, the Minister of State and the Minister of the Interior are to be served with copies of these orders.

Useful link : the Cour de Cassation
In order to have an exhaustive presentation of the Cour de Cassation (its role, its organisation and its functioning), please refer to its website : link
“The Jurisprudence Bulletin of the Conseil National des Barreaux” has been prepared under the direction of Mr Marc Jobert, an advocate at the Paris bar and the Vice-President of the Commission des Affaires Européennes et Internationales, with help from David Levy, Head of the Legal Department of the Conseil National, Alexandre Huot, Webmaster of the Conseil National and Ms Charlotte Spencer and Mr Jeremy Blond, students-at-law at the Ecole de formation du Barreau de Paris.
The English version has been prepared with the assistance of Judge Judith Gibson, a judge of the District Court of New South Wales.
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