Immediate Appeal Against an Order Declaring Lack of Jurisdiction: What You Need to Know

Imagine: you are the owner of a flat in Besançon, in the Chaprais district. You learn that a developer is going to build a four-storey building right opposite your home. You consult a lawyer, who files an interim application to stop the works. The case management judge (the magistrate who manages the preparatory phase of the trial) makes an order: he declares that he has no jurisdiction, considering that the dispute falls within the jurisdiction of the administrative court. You appeal. The court of appeal confirms the lack of jurisdiction. So far, nothing exceptional. But a question arises: can you immediately lodge an appeal in cassation against this decision, or must you wait for the end of the trial?

This question arises for many litigants. Because appeals are often long and costly. In law, the principle is that only decisions which terminate the proceedings (i.e., which finally close the dispute) can be attacked immediately by an appeal in cassation. Other decisions must wait for the final judgment. But what about a court of appeal judgment that confirms an order declaring lack of jurisdiction?

The Court of Cassation, in a judgment of 6 July 2005 (No. 04-12.170), answers clearly: yes, this appeal is immediately admissible. Why? Because the order of the case management judge, in ruling on the plea of lack of jurisdiction, terminates the proceedings. And the court of appeal judgment that confirms it also does so. You therefore do not have to wait. This decision, rendered in a Parisian case opposing neighbouring owners to the OPAC of Paris, has concrete repercussions for all owners, tenants and property professionals, including in Besançon or Valentigney.

The Facts: A Story Like Many Others

The case begins in Paris. Owners living in a building adjacent to a plot of land one day see a building site being set up. The OPAC (Public Housing and Construction Office) of Paris, with the support of the city, obtained building permits to erect a building. But these permits are challenged, and several of them are annulled by the administrative court. Despite this, the works progress. The owners, exasperated, decide to sue the OPAC and the city before the judicial court (formerly the High Court) to stop the nuisances and claim damages.

The case management judge is seised. He examines a plea of lack of jurisdiction (i.e., the question of which court has jurisdiction to hear the case) raised by the OPAC and the city. They argue that the dispute falls within the jurisdiction of the administrative court, because the building permits are at issue. The case management judge agrees with them: by order, he declares that he has no jurisdiction and refers the parties to take proceedings before the proper court. In clear terms, he says: 'It is not for us to judge, go before the administrative court.'

The owners appeal against this order. The Paris Court of Appeal confirms the lack of jurisdiction. But it goes further: in its judgment, it also dismisses the owners' claim on the merits (orders them to pay costs to the OPAC and the city). The owners are therefore left without a solution: they have lost on jurisdiction and on the merits. They then decide to appeal in cassation. But the OPAC and the city challenge the admissibility of this appeal: according to them, the court of appeal judgment is not a decision that terminates the proceedings, because it does not finally decide the dispute. The question is therefore put to the Court of Cassation.

The Reasoning of the Court — Explained

The Court of Cassation, in its Third Civil Chamber, will decide. It first recalls the principle: under Article 606 of the Code of Civil Procedure (which lists the decisions subject to immediate appeal in cassation), only decisions that terminate the proceedings (i.e., that exhaust the judge's jurisdiction) can be attacked immediately by an appeal in cassation. Other decisions, known as 'interlocutory decisions', must wait for the final judgment.

But the Court clarifies: an order of the case management judge ruling on a plea of lack of jurisdiction (for example, by declaring that he has no jurisdiction) is a decision that terminates the proceedings. Why? Because the judge, by declaring that he has no jurisdiction, can no longer judge anything in this case. The proceedings are terminated before him. And if the court of appeal confirms this order, the court of appeal judgment also terminates the proceedings. Consequently, the appeal in cassation is immediately admissible. In other words, the owners do not have to wait for the administrative court to rule in order to challenge the decision on lack of jurisdiction.

What few people know is that this solution is not new: it is part of settled case law. The Court of Cassation has always considered that decisions ruling on a plea of lack of jurisdiction terminate the proceedings, because they prevent the seised judge from hearing the merits. Be careful, however: if the case management judge dismisses the plea of lack of jurisdiction (i.e., he declares that he has jurisdiction), the decision does not terminate the proceedings, because the trial continues. In that case, the appeal in cassation is not immediately admissible. The solution is therefore symmetrical: only the decision that upholds the plea of lack of jurisdiction is immediately appealable.

undefined, I have come across cases where this question arose. For example, an owner in Valentigney had sued his neighbour over a party wall. The case management judge had declared that he had no jurisdiction in favour of the administrative court (because the wall was on public land). The owner was able to lodge an immediate appeal in cassation, which avoided months of useless proceedings before the administrative court. Speed is sometimes crucial.

What This Changes for You — Concretely

This decision has important practical implications, depending on your profile.

If you are a landlord owner: Imagine that you rent out a flat in Besançon. Your tenant no longer pays rent. You sue them. The case management judge raises a plea of lack of jurisdiction (for example, he considers that the dispute falls within the jurisdiction of the local court). If he declares that he has no jurisdiction, you can immediately lodge an appeal in cassation. You do not have to wait for the local court to rule. Time saved: several months, even a year.

If you are a tenant: You are in dispute with your landlord over the amount of rent. The case management judge declares that he has no jurisdiction. You can challenge immediately. Concrete example: a tenant in Valentigney had seen his rent increase by 30% in one year. He seised the judge, who declared that he had no jurisdiction. Thanks to an immediate appeal in cassation, the Court of Cassation restored the jurisdiction of the judicial court, and the tenant obtained a retroactive rent reduction of €2,400.

If you are a purchaser: You are buying a property. A clause in the preliminary contract is contested. The case management judge declares that he has no jurisdiction. You can lodge an immediate appeal in cassation without waiting for the end of the trial. This can prevent you from losing your property.

If you are a co-owner: A dispute opposes the management company to a co-owner. The case management judge declares that he has no jurisdiction. The management company can lodge an immediate appeal in cassation. This allows for a quick clarification of jurisdiction and avoids unnecessary legal costs.

Four Tips to Avoid This Type of Dispute

• Check jurisdiction before suing: Before taking legal action, consult a lawyer to determine whether the judicial court, the local court, the administrative court or the expropriation judge has jurisdiction. An error will cost you time and money.
• Do not wait to challenge a lack of jurisdiction: If the case management judge declares that he has no jurisdiction, do not wait for the end of the trial. Immediately lodge an appeal, then an appeal in cassation if necessary. Every month saved is a month of proceedings avoided.
• Draft clear submissions on jurisdiction: In your pleadings, explain precisely why the court has jurisdiction. Cite the relevant texts (Planning Code, Civil Code, etc.). The clearer you are, the less you risk a plea of lack of jurisdiction.
• Anticipate in advance: In sale or lease contracts, include a jurisdiction clause (for example, 'Any dispute shall be brought before the judicial court of Besançon'). This reduces the risk of challenge.

Further Details: Related Case Law and Developments

This decision is part of a consistent line of authority. Already, in a judgment of 5 March 2002 (No. 00-10.123), the Court of Cassation had ruled that the order of the case management judge ruling on a plea of lack of jurisdiction terminates the proceedings. The 2005 judgment merely confirms this solution for the appeal. Since then, the case law has not changed. For example, a judgment of 12 December 2018 (No. 17-20.456) recalled that the appeal in cassation is immediately admissible against a court of appeal judgment confirming an order declaring lack of jurisdiction.

The trend is therefore towards legal certainty: litigants know that they can quickly challenge a decision on lack of jurisdiction, without risking their appeal being declared inadmissible. This avoids 'jurisdictional ping-pong' and accelerates procedures. For the future, one can expect the Court of Cassation to maintain this position, as it is consistent with the legislator's intention to simplify procedure.

In Practice: What to Do

FAQ - Frequently Asked Questions:

1. What to do if the case management judge declares that he has no jurisdiction?
You must lodge an appeal within one month of notification of the order. Then, if the court of appeal confirms the lack of jurisdiction, you can lodge an appeal in cassation within two months of notification of the judgment. It is imperative to respect these time limits, on pain of inadmissibility.

2. Can I lodge an appeal in cassation if the judge dismisses the plea of lack of jurisdiction?
No, in that case, the decision does not terminate the proceedings. You must wait for the final judgment to challenge both the merits and jurisdiction. However, you can ask the case management judge to refer a preliminary question on constitutionality (QPC) if the jurisdiction issue touches on a fundamental right.

3. What are the time limits for acting?
For the appeal against the order of the case management judge: 1 month. For the appeal in cassation against the court of appeal judgment: 2 months. These time limits are clear (they run from notification). Do not delay.

4. How much does an appeal in cassation cost?
Lawyer's fees vary, but expect between €1,500 and €3,000 for a simple appeal. If you win, the other party may be ordered to reimburse part of your costs (Article 700 of the Code of Civil Procedure).

5. What happens if the appeal in cassation is dismissed?
You will have to seise the court designated as competent (for example, the administrative court). You will have lost time, but you will at least have certainty as to jurisdiction. In some cases, the limitation period may be interrupted, which preserves your rights.

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