Inadmissibility of the appeal in cassation lodged against a decision of the Court of Appeal to refer a question to the ECJ for a preliminary ruling

French Cour de cassation, 1st Civil Chamber, 18 November 2015, No. 14-26.482

On 18 November 2015, the French Cour de assation declared inadmissible the appeal in cassation of the decision of the Court of Appeal dated 23 September 2014, that ordered a stay of the procedure and submitted a preliminary ruling in competition law to the European Court of Justice (“ECJ”), since the Court of Appeal had not yet controlled the award, control that is the object of the Cour de cassation’s assessment in accordance with Article 1520, 5° of French Code of Civil Procedure.

As a reminder, the Court of Appeal had decided, in application of Article 267 of European Union Treaty (EU Treaty), to stay the procedure and to refer a request for a preliminary ruling to the ECJ as follows: “Should the provisions of […] Article 101 of the Treaty on the Functioning of the European Union [be] interpreted as prohibiting that be given effect to a license agreement requiring the licensee to pay royalties for the sole use of rights attached to the licensed patents, when these patents are annulled?

An appeal in cassation was lodged against the decision of the Court of Appeal, on the sole ground that the Court of Appeal has decided to stay the procedure to request a preliminary ruling from the ECJ for the interpretation of a competition law legal issue.

The French Cour de cassation decided: the appeal in cassation is inadmissible on the ground that the Court of Appeal, by referring a question to the ECJ for a preliminary ruling, did not control the award’s regularity to international public policy, under Article 1520, 5° of the French Code of Civil Procedure and only used the faculty offered under Article 267 of the EU Treaty to request the ECJ to rule on a question concerning the interpretation of the Treaty on the Functionning of the European Union.

The French Cour de cassation thereby confirms the power of the Court of Appeal to request the ECJ to issue a preliminary ruling in the context of its power to control the regularity of the award with respect to international public policy.

With this decision, it seems that the French Cour de cassation confirms actual trend pursuant to which:

  • The Court of Appeal refers the question of the violation of international public policy to the ECJ. As we had already commented, the risk of this trend is that in most matters interesting international public policy, the Court of Appeal may apply more and more for preliminary rulings, which will have for consequence to extend the duration of challenge proceedings.
  • It appears that the criterion of flagrancy of the violation of international public policy is may be more and more abandoned to set aside awards under Article 1520, 5° of the French Code of Civil Procedure.

Indeed, in the case at hand, the violation was obviously not flagrant since the Court of Appeal decided to refer the issue to the ECJ.

In a decision of 11 September 2013, the French Cour de cassation already seemed to come back on the requirement of flagrancy of the violation of public policy by not referring expressly to the usual requirements of “efficiency, concreteness and flagrancy” of the violation (French Cour de cassation, 1st Civil Chamber, 11 September 2013, No. 11-17.201) (see our report here).

The decision is available here.

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