Yes, we can (change)
By the end of 2019 The French Supreme Court will change the structure and motivations in all its decisions. The ‘most important’ decisions will be provided with an ‘extended’ motivation.
The French Supreme Court (la Cour de cassation) is to change the structure and motivation of its judgments. In short, by the end of 2019, in all its decisions the line-up of considerations introduced by the words “attendu que” will be abandoned in favour of a new structure. In addition, the ‘most important’ decisions will be provided with an ‘extended’ motivation.
The run-up to the reform
In July 2014, when he took office as President of the Cour de cassation, Bertrand Louvel called for a reflection on the place, role and methods of the Court. This was followed by several initiatives. An important initiative was the setting up of a special commission to reflect on a reform of the Court (Commission de réflexion sur la réforme de la Cour de cassation). In April 2017, this commission published a voluminous report in which it proposed changes with regard – inter alia – to the decisions of the Cour de cassation, suggesting to make them more comprehensible. In the summer of 2017, another commission was installed to implement the propositions. The findings of this commission were laid down in a memorandum (Note relative à la structure des arrêts et avis et à leur motivation en forme développée) in December 2018 and underlie the changes in the (formulation of the) Court’s judgments. The changes will be implemented by the end of 2019.
The reform: what will change and why?
The reform is twofold. On the one hand, it concerns – in the (French) words of the Court – “le style de rédaction”; all decisions of the Cour de cassation will get a new structure. Instead of a line-up of considerations introduced by “attendu que”, each decision will consist of three distinctive, titled and numbered parts. Each decision will start with the facts and procedure (“faits et procedure”). Subsequently, the grounds for cassation will be given (“examen des moyens du pourvoi”). Lastly, the decision itself (“dispositif de l’arrêt”) will follow.
On the other hand, some decisions will be given an extended motivation, or in the (French) words of the Court: “une motivation développée (enrichie)”. This ‘developed’ motivation consists, inter alia, of giving an insight into the methods of interpretation applied, making an explicit reference to previous case law (in order to make the Cour de cassation’s case law more readable) and/or making a reference to or relying upon impact studies (“études d’incidences”) if they played an important role in the solution adopted. The motivation may even include an outline of possible alternative solutions (as well as the reasons for not adopting them). Six categories of decisions that will benefit from this extended motivation have been distinguished. First of all, judgments in which the Cour de cassation departs from its previous case law (“revirement de jurisprudence”). Secondly, cases in which the Court decides on a matter of principle or that play an important role (“un intérêt marqué”) in the development of the law. Thirdly and fourthly, decisions that interpret a new text and/or secure the unity of the case law. Fifthly, decisions in which the guarantee of a fundamental right is at stake. Finally, an extended motivation must also be included in the questions for preliminary rulings addressed to the Court of Justice of the European Union and the European Court of Human Rights.
The reform pursues several goals. In the words of the Cour de cassation, the extended motivation has to contribute to a more precise and informed access to the law (“un accès au droit plus précis et plus informé”). In addition, the Court aims to take the reader’s point of view in order to make its reasoning clear for a broad public (“se placer du point de vue de son lecteur”) to guarantee legal certainty (“un gage de sécurité juridique”). Furthermore, its (new) case law would contribute inter alia to the dissemination of French law in other countries (“la diffusion du droit français dans le champ juridique international”).
Context and future reform?
Although the described reform appears to be the work of ‘just’ a few years, the discussion around (the lack of) motivation and comprehensibility of French judgments dates from – at least – the end of the eighteenth century. Before the Revolution in 1789, French judges were not even obliged to give reasons for their verdict. This changed after the Revolution: any form of (possible) ‘arbitrariness’ that could be caused by a lack of motivation had to be banned, and the obligation to give reasons was given a place in the law. As a consequence, as any subjectivity in the reasoning had to be avoided, and judges had to be (just) “la bouche de la loi”, the Cour de cassation began to use a more formalistic, indirect style.
In 1911 French law Professor Demogue openly opposed this style. He argued that judgments should be given the underlying reasons of the adopted solutions (“les motifs profonds de leurs solutions”). His argument was repeated and further elaborated on by Attorney General at the Court Touffait and French law Professor Tunc in 1974. Their publication “Pour une motivation plus explicite des décisions de justice, notamment de celles de la Cour de cassation” appeared to give the go-head for a critical reflection of the Court’s drafting style. In more recent years, the readability and comprehensibility of judgments of the Court have become the subject of criticism. Illustrative are the recent words of the European Court of Human Rights in March 2019 when it stated that a more ‘developed’ motivation could have helped the ECHR to better take into consideration the reasoning of the Cour de cassation (“Une motivation plus développée aurait permis à la Cour de mieux prendre en considération le raisonnement de la Cour de cassation”).
From a broader perspective, the current reform does not stand on its own, as witnessed by the reference on the website of the Cour de cassation to “Réformes en mouvement”. Another interesting project concerns the (possible) reform of the handling of cassation appeals (“la réforme du traitement des pourvois”). This would allow the Court to be more selective in cases that are most relevant for the development of law. As a consequence, more time could perhaps be dedicated to drafting a more elaborated motivation. In addition, it is interesting to note that (already) since January 2019, the French Council of State (le Conseil d’État) has ceased to use the words “considérant que” and has adopted a more direct style for its decisions in order to make them more comprehensible to a large audience (“de les rendre mieux compréhensibles à un public plus large”).
By joining (the) aspirations for (inter alia) a more informed access to the law, the reform outlined above shows: yes, the Cour de cassation can (contribute to) change as well.