The judgment delivered by the second civil chamber of the Court of Cassation on February 2, 2023 leads to a return to the notion of defense on the merits… to set it aside. It certifies, once again, that this notion, to be fundamental and of the most classic, is in reality difficult to define, whereas the stakes are high: the litigant who has presented a defense on the merits is no longer on the threshold of the case…
The facts are quite complex – as evidenced by the judgment of the Versailles Court of Appeal dated February 18, 2021 (No. 20/04243), which must be read.
A company entrusts the Belgian shipyard Meuse et Sambre with work to be carried out on a boat hull, in particular the installation of a Cummins brand engine.
Damage is observed on this engine. An expert report was ordered in summary proceedings, following which the client sued Cummins France and its insurer for payment of various sums on the basis of the guarantee against latent defects before the Commercial Court of Nanterre. Subsequently, Cummins sued the Austrian company Robert Bosch, manufacturer of the engine injectors, as a guarantee before the same commercial court; by conclusions, the Cummins company is requesting joinder with the main action brought by the victim of the damage.
The Robert Bosch company notifies conclusions in response, where it “positions itself on the request for joinder”: it issues a “protest […] with regard to his questioning, because of a possible unenforceability of the expertise”.
The Commercial Court of Nanterre rejects the request for joinder.
The Robert Bosch company then lodged at the hearing pleas of incompetence: it requests that the absence of a connecting link with the Commercial Court of Nanterre be noted because of the absence of joinder between the main proceeding and the proceeding against Cummins.
The Commercial Court of Nanterre declares the objection of incompetence inadmissible and declares itself competent.
The Robert Bosch company is appealing to the Versailles Court of Appeal. The latter also declares the objection of incompetence inadmissible: it considers that “the protest of the Bosch company with regard to its questioning, because of a possible unenforceability of the expertise, constitutes indeed a plea which tends to dismiss as unjustified the claim of the Cummins company tending to its guarantee “and deduces from this that the procedural exception, which had not been raised on the threshold of the casewas inadmissible.
The Robert Bosch company is appealing in cassation for violation, by the Court of Appeal, of article 74 of the code of civil procedure, together articles 71 and 368 of the same code: the opposition of the Bosch company to the request for joinder proceedings did not constitute a defense on the merits such as to render inadmissible a procedural objection raised subsequently.
The second civil chamber quashes the appeal judgment for violation of articles 74 and 71 of the code of civil procedure, of which it recalls the content: “it follows from the first of these texts that procedural exceptions must, on pain of inadmissibility , be raised before any defense on the merits or plea of inadmissibility. According to the second, constitutes a defense on the merits any means which tends to have the adversary’s claim rejected as unjustified, after examination of the merits of the law.
However, “the Bosch company did not ask that the expert report be declared unenforceable against it and had limited itself to defending the request for the joinder of the proceedings in guarantee concerning it with that on the basis of latent defects brought against the company Cummins France, without asserting a defense on the merits of the law”.
Code of Civil Procedure, Article 74
Each of the “protagonists” invoked Article 74 of the Code of Civil Procedure, which lays down a principle consisting in concentrating litigation on procedural exceptions at the start of the proceedings; this makes it possible to avoid the late appearance of ancillary procedural debates. More specifically, the text contains a rule of principle applicable to exceptions of lack of jurisdiction, lis pendens and nullity for defects of form. They do not apply to the other procedural exceptions:…
