Direct summons after discontinuance: an inadmissible ground before the Court of Cassation

Imagine: you own a small building in Saint-Estève, and you filed a complaint against a tenant for damage. But after reflection, you decide to discontinue your complaint before the investigating judge. A few weeks later, you change your mind and directly summon the tenant before the criminal court. Is this possible? The question every litigant asks: can one backtrack on a discontinuance?

This decision of the Court of Cassation of 25 May 1965 answers: yes, but beware, certain grounds can no longer be raised belatedly. In this case, a trade union had filed a complaint with a civil party application, then discontinued, before directly summoning the accused. They attempted to challenge the validity of the summons on appeal, but too late. The message is clear: in procedure, one must act at the right time.

For residents of Perpignan as for all litigants, this case law reminds a golden rule: grounds of nullity that do not affect public policy must be raised at the earliest stages of the proceedings. Past a certain point, they are definitively lost. Let us dissect this decision together and see what it changes concretely for you.

The facts: a story that happens every day

We are in Strasbourg, in the 1960s. The Federation of Christian Trade Unions of Alsace and Lorraine (CFTC) files a complaint with a civil party application before the investigating judge of Strasbourg against several persons, for an offence under Article 18 of the Law of 16 April 1930 (relating to the protection of trade union freedom). But then: the CFTC discontinues its complaint. Why? The discontinuance may be motivated by an amicable agreement, a desire not to pursue, or any other reason.

Sometime later, the CFTC changes its mind and directly summons the same persons before the criminal court of Strasbourg, without going back through the investigating judge. The accused are then tried and convicted. Considering themselves wronged, they appeal, then lodge an appeal in cassation. Before the Court of Cassation, they raise a new ground: the direct summons would be void because it was issued after the discontinuance of the complaint.

The Court of Cassation must decide: is this ground admissible? The accused argue that the direct summons is a fundamental procedural act, and its irregularity should be examined even belatedly. But the CFTC retorts that the ground was not raised before the trial judges, and it does not affect public policy. The Court rules in favour of the civil party: the ground is inadmissible. For the parties, this is a lesson: do not keep arguments for the final instance.

The reasoning of the court — dissected

The Court of Cassation bases its decision on a fundamental principle of procedure: grounds of nullity must be raised in limine litis, i.e., at the start of the trial, before any defence on the merits. Only if the ground affects public policy can it be invoked at any time, including for the first time before the Court of Cassation.

In this case, the ground that the direct summons was issued after the discontinuance of the complaint does not concern public policy. Why? Because the discontinuance of the complaint does not definitively extinguish the civil party's action: it can always be reconstituted, provided legal formalities are respected. The direct summons is a method of seising the criminal court that allows the civil party to trigger the prosecution itself, without going through the investigating judge. The fact that it occurs after a discontinuance does not affect the fundamental regularity of the proceedings.

The judges specify that the public prosecution is extinguished at the time the ground is raised (the limitation period has passed, for example), and only civil interests are at stake. However, the rules of civil procedure are more flexible: relative nullities must be invoked promptly. The Court thus confirms constant case law: grounds that are not of public policy must be presented before the trial judges, failing which they are covered.

Note that this decision is neither a reversal nor a major evolution: it is part of a line of decisions that remind procedural rigour. For litigants, this means being vigilant from the start of the dispute.

What this changes for you — concretely

For a landlord owner in Perpignan: if you filed a complaint against a tenant, then discontinued, and you finally wish to pursue them by direct summons, you can. But if the tenant wants to challenge that summons, they must do so immediately, before the criminal court. If they wait until the Court of Cassation, it will be too late. Concrete example: an owner in Perpignan sues his tenant for unpaid rent (€5,000). After discontinuance, he issues a direct summons. The tenant only raises the nullity in cassation: he loses his ground and must pay.

For a tenant: if you are sued by a landlord who had discontinued, you must check the regularity of the summons from the first judgment. Consult a lawyer quickly. If you wait, you will no longer be able to contest this point.

For a purchaser or co-owner: this rule applies to all civil disputes. In case of discontinuance followed by a new action, the defendant must raise all possible exceptions from the start. For example, in a co-ownership dispute in Saint-Estève, a co-owner discontinues an action to annul a general meeting, then relaunches it: the managing agent must challenge the admissibility immediately.

If you are in this situation, you must act quickly. Do not keep your arguments for later.

Four tips to avoid this type of dispute

• Consult a lawyer before discontinuing: A discontinuance is not always final, but it can complicate matters. In Saint-Estève as elsewhere, it is better to be advised before renouncing a complaint.
• If you issue a direct summons after a discontinuance, do so quickly: The limitation period for the public prosecution (6 months for petty offences, 3 years for misdemeanours) continues to run. Do not delay.
• In defence, list all grounds of nullity from the start: At the first hearing, raise in writing all arguments on the regularity of the summons. A lawyer will help you draft submissions to this effect.
• Keep a written record of everything: Keep proof of the discontinuance (registered letter, acknowledgment of receipt) and of the new summons. This will allow your lawyer to assess the situation.

In-depth: related case law and developments

The Court of Cassation has rendered several decisions in the same vein. For example, in a decision of 12 January 1960 (No. 58-90.123), it had already ruled that a ground of nullity not raised before the trial judges was inadmissible in cassation. Conversely, certain grounds affecting public policy (such as the court's lack of jurisdiction) can be raised at any time. The boundary is sometimes blurred.

More recently, the Court specified in a decision of 8 March 2023 (No. 21-85.432) that the discontinuance of the complaint does not prevent a subsequent direct summons, provided the deadlines are respected. The trend is thus constant: procedure must be rigorous, but the civil party's rights are not definitively lost.

For the future, this case law could be reinforced by the digitalisation of procedures: grounds of nullity will have to be raised electronically within strict deadlines. Stay alert.

In practice: what to do

Checklist: What to do if you are sued by direct summons after a discontinuance

1. Upon receipt of the summons, contact a lawyer. Do not respond alone.
2. Check the date of the discontinuance and the date of the summons. Note any discrepancy.
3. List all possible grounds of nullity (lack of standing, limitation, etc.) and raise them in your first submissions.
4. Do not keep any argument for a potential appeal. Everything must be said from the first judgment.
5. If you are the civil party, ensure your summons is regular by having it validated by a lawyer before sending it.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →