Plea of Lack of Jurisdiction: The Procedural Error That Loses Your Case

Imagine: you own a commercial premises in Pithiviers and let it to a company that stops paying rent. You start legal proceedings, but the court declares itself lacking jurisdiction. You appeal, and then your lawyer raises a plea of lack of jurisdiction without specifying which court of appeal should decide. Result: your plea is rejected, and you lose valuable time and money. This mishap is what happened to a litigant in the case decided by the Court of Cassation on 6 July 2011 (No. 10-17.118).

The question every litigant asks: how can I prevent a simple formality from wrecking my defence? The answer lies in one article: Article 75 of the Code of Civil Procedure. But its application is not that simple.

This decision clarifies an essential rule: the obligation to indicate the competent appellate court applies only to a plea of lack of jurisdiction raised at first instance. On appeal, this formality is not required. A nuance that can change everything.

The facts: a story that happens every day

Mr. X, owner of a business in Orléans, had granted the company Cool Jet a commercial lease-purchase agreement on a building. The contract included a promise to assign the lease. Alas, the company ceased payments. Mr. X sued the company to obtain the forced assignment of the lease.

Before the tribunal de grande instance, the company Cool Jet raised a plea of lack of jurisdiction, arguing that the dispute fell within the jurisdiction of the commercial court. But it omitted to indicate which court of appeal would be competent in the event of an appeal. The court rejected the plea and declared itself competent. The company appealed.

Before the court of appeal, the company repeated its plea of lack of jurisdiction, still without mentioning the appellate court. The court of appeal declared it inadmissible, on the ground that Article 75 requires specifying the competent appellate court, even on appeal. The company appealed to the Court of Cassation.

Twist: the Court of Cassation quashed the appeal decision. It recalled that Article 75 applies only to a plea raised at first instance. On appeal, no sanction is provided for this lack of mention. The case was remitted to another court of appeal.

The reasoning of the court — dissected

Article 75 of the Code of Civil Procedure provides: "If it is alleged that the court seised lacks jurisdiction, the party raising this plea must, on pain of inadmissibility, indicate the court which it considers to have jurisdiction." The text adds that this mention must include, where applicable, the appellate court.

The Court of Cassation interprets this text strictly: the sanction of inadmissibility only affects the plea raised at first instance. On appeal, if a party raises lack of jurisdiction again, it is not required to repeat the mention of the appellate court. Why? Because the purpose of Article 75 is to inform the first-instance judge of the competent court and to avoid unnecessary referrals. On appeal, the debate is already framed.

The lower courts had nevertheless considered that the formality had to be complied with at every stage. But the Court of Cassation censured this overly rigid reading. It emphasised that the rule in Article 75 is a rule of first-instance procedure, not a general rule for appeals.

This decision is a confirmation of previous case law (Civ. 2e, 10 June 2004, No. 02-19.091). It prevents litigants from being caught out by a formality that has no place on appeal.

What this means for you — concretely

For landlord owners: if you are sued and you believe the court lacks jurisdiction, you must imperatively, in your first written submissions, indicate the court you consider to have jurisdiction and the court of appeal that would be competent in the event of an appeal. Forget this mention, and your plea will be inadmissible. Example: in Orléans, if you think the dispute falls within the commercial court, you must specify "the Orléans Court of Appeal."

For commercial tenants: if you are on appeal and wish to contest jurisdiction, you do not have to repeat the mention of the appellate court. But beware: you must have done so at first instance. Otherwise, the defect is irreparable.

For real estate professionals (agents, notaries): this decision concerns you if you are a party to a dispute over a sale or a lease. Ensure that your advisors comply with this rule.

In practice, an oversight can be costly: months of proceedings cancelled, additional legal fees. A concrete example: in Pithiviers, a dispute over €15,000 in unpaid rent can generate €3,000 in costs if the plea is poorly formulated, compared to €1,500 if it is regular.

Four tips to avoid this type of dispute

• Check jurisdiction from the outset: Before suing or filing submissions, identify the competent court (tribunal judiciaire, commercial court, etc.) via the Ministry of Justice website or a lawyer.
• Draft the plea of lack of jurisdiction with precision: Expressly mention the court you consider to have jurisdiction and, at first instance, the court of appeal. Example: "I request that the Orléans tribunal judiciaire declare itself lacking jurisdiction in favour of the Orléans Commercial Court, and on appeal, the Orléans Court of Appeal."
• Respect the time limit: The plea must be raised before any defence on the merits or procedural bar, on pain of inadmissibility (Article 74 of the Code of Civil Procedure).
• On appeal, do not repeat the error: If you already raised the plea at first instance without mentioning the court of appeal, you are precluded. On appeal, simply contest the first-instance decision.

Further reading: related case law and developments

The Court of Cassation had already ruled similarly in a decision of 10 June 2004 (No. 02-19.091): a plea of lack of jurisdiction raised on appeal is not subject to Article 75. A more recent decision (Civ. 2e, 12 January 2017, No. 15-28.576) confirms that the mention of the appellate court is required only at first instance, even if the plea is raised for the first time on appeal? No, because on appeal, the plea is inadmissible if it was not raised at first instance (except for matters of public policy). The trend is therefore consistent: the Court of Cassation ensures that appeal proceedings are not burdened with unnecessary formalities.

For the future, this case law protects litigants against overly formalistic interpretations by courts of appeal. It also encourages lawyers to be rigorous from the first instance.

Frequently asked questions

1. Can I raise a plea of lack of jurisdiction for the first time on appeal?
No, unless the lack of jurisdiction is a matter of public policy (e.g., a matter falling within the administrative courts). In other cases, the plea must be raised at first instance.

2. What if I forgot to indicate the appellate court in my plea?
The plea will be inadmissible. You will no longer be able to contest jurisdiction. You must then argue the merits before the court seised.

3. What is the time limit for raising a plea of lack of jurisdiction?
Before any defence on the merits or procedural bar. In practice, in the first submissions.

4. Does this rule apply to proceedings before the interim relief judge?
Yes, Article 75 applies to all first-instance proceedings, including interim relief.

5. Can I challenge a decision on jurisdiction by another means?
Yes, by way of objection (Article 78) or appeal, but the lack of mention at first instance renders the plea inadmissible.

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