Information Note on the Court’s case-law 263

June 2022

Xavier Lucas v. France - 15567/20

Judgment 9.6.2022 [Section V]

Article 6

Civil proceedings

Article 6-1

Access to court

Overly formalistic decision finding a legal challenge barred for failure to e-file, practical hurdles notwithstanding: violation

Facts – The Court of Cassation held that the applicant’s application to set aside an arbitral award should have been filed electronically pursuant to Articles 1495 and 930-1 of the Code of Civil Procedure (CPC). Accordingly, it quashed the decision whereby the Court of Appeal had permitted the set‑aside application to proceed – without remitting the case for further proceedings – and declared the Court of Appeal’s judgment on the merits of the application void as a consequence. In so doing it deprived the applicant of the opportunity to have the legality of the arbitral award reviewed by the judge hearing the set‑aside application.

Law – Article 6 § 1:

1. Applicability

There was no doubt that the dispute submitted to arbitration in this case had concerned civil rights and obligations. The applicant had consented freely to the settlement of that dispute by arbitration. His only complaint was that he had been deprived of access to the judge hearing the application to set aside the arbitral award.

Domestic law provided that an arbitral award, once made, became res judicata and extinguished the jurisdiction of the arbitral tribunal. It also provided that, on an application to set aside the award, the Court of Appeal could rule on the merits de novo . However, a long line of authority held that the Convention did not guarantee a right to have a terminated case reopened. Extraordinary proceedings in which the reopening of a civil case was sought did not in principle involve the determination of “disputes” ( contestations ) concerning “civil rights and obligations”, so that Article 6 § 1 was not applicable to them. It therefore fell to the European Court to decide whether a French-law application to set aside an arbitral award sought the reopening of a case which had been finally determined.

Of note in this regard was that the award of an arbitral tribunal was not in principle open to appeal and that an application could instead be made to set it aside. Upon such an application the legality of the arbitral award would be scrutinised by a court, which would confine itself primarily to ascertaining whether the award conformed to certain essential legal rules. Such an application lay, as of right, within a certain period following notification of the arbitral award and had the effect of suspending execution of the award unless otherwise ordered.

Conclusion: Article 6 § 1 applicable ratione materiae

2. Merits

Mindful of the rapid shift taking place in member States towards paperless court processes – and of the issues arising from that shift – the Court was satisfied that digital technologies could help improve the administration of justice and could be harnessed to promote the rights guaranteed by Article 6 § 1. It therefore agreed that such an aim was legitimate.

(a) Foreseeability of the restriction

Article 1495 CPC provided that challenges to arbitral awards had to conform to the requirements of Article 930-1 CPC, a provision applying to all Court of Appeal proceedings in which litigants were required to be represented by counsel. Article 930-1 expressly required the electronic transmission of court papers ( actes de procédure ).

It was true that neither the Order of March 2011 (specifying the technical arrangements for electronic communication in the Courts of Appeal) nor the local procedure agreement of January 2013 (between this particular Court of Appeal and the bar associations in its jurisdiction) had expressly provided that applications to set aside arbitral awards were to be made electronically. The fifth paragraph of Article 930‑1 adverted to an implementing order only for specification of the technical arrangements for electronic communications. In any case, neither the implementing order nor the local procedure agreement had been capable of varying or restricting the scope, as prescribed by the CPC, of electronic communication in the Courts of Appeal.

The Court of Cassation had set out its reasons clearly. The fact that this was the first time it had applied those instruments in combination did not mean that the restriction at issue had been in any way unforeseeable or arbitrary vis-à-vis the applicant, who, the Court pointed out, had been represented by counsel.

(b) Determination as to who was to bear the consequences of procedural mistakes

The requirement to use an electronic means of communication that was in issue in this case concerned proceedings in which litigants were required to be represented by counsel. In practice, it meant using a digital platform common to the first- and second-instance general and commercial courts and to which only lawyers had access. It was not unrealistic or unreasonable to require legal professionals, for whom computers had long been a tool of the trade, to use such a platform.

The applicant had not made his application to set aside the arbitral award electronically by entering it on the e‑barreau platform, which he had acknowledged to be in working order.

However, in order to do so, his lawyer would have had to fill out a form using inaccurate legal terms, since only in appeals was there such a thing as an appelant (appellant) and an intimé (respondent). Although the Government had claimed that a notice on the e-barreau site had instructed users to proceed in this way, they had failed to substantiate that claim, and the bailiff’s report supplied by the applicant pointed to the opposite conclusion. More broadly, the Government had not established that specific information about how to lodge such an application had been available to users. Nor had there been any decided cases, in the Courts of Appeal or elsewhere, on which to rely at the time.

It followed from these considerations that the applicant’s lawyer had not been particularly remiss in making the application on paper, in circumstances where the second paragraph of Article 930-1 CPC had seemed to permit such a course by way of exception. Accordingly, the applicant could not be held accountable for the procedural mistake in issue. It would therefore be excessive to make him bear the consequences.

(c) Overly formalistic approach

The specific consequences of the Court of Cassation’s reasoning seemed particularly harsh. By giving precedence to the rule that applications to the Court of Appeal had to be made electronically, while disregarding the practical hurdles faced by the applicant in doing so, the Court of Cassation had adopted a formalistic approach which was not necessary to ensure legal certainty or the proper administration of justice and which therefore had to be regarded as excessive.

(d) Proportionality

A disproportionate burden had thus been placed on the applicant, upsetting the proper balance between the legitimate concern of ensuring adherence to the formalities for issuing court proceedings and the right of access to a court.

Conclusion: violation (unanimously).

Article 41: claim for pecuniary damage dismissed; EUR 3,000 awarded for non-pecuniary damage.

(See also Stichting Landgoed Steenbergen and Others v. the Netherlands , 19732/17, 16 February 2021, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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