The course of the proceedings at a glance
Civil cassation proceedings begin when, following a positive opinion from a cassation lawyer, an appeal is lodged against a lower court’s judgment with which a party disagrees. The appeal is initiated by the cassation lawyer filing an introductory procedural document (the ‘initiating document’). This document is similar to the summons and the application used in the lower courts, and sets out the grounds on which the contested judgment is considered to be incorrect. The proceedings in cassation conclude with a judgment of the Supreme Court. As a rule, Supreme Court proceedings take about a year and a half, though they can be completed far more quickly where necessary.
Claim proceedings and application proceedings
If a party lodges an appeal before the Supreme Court in proceedings that began with a summons, those proceedings become ‘claim proceedings’ at the cassation stage. In proceedings that were initiated in the lower courts by application, the proceedings are referred to as ‘application proceedings’ at the cassation stage. The proceedings begin with the submission of an initiating document in both cases. However, the course followed in application proceedings is more compact than that in claim proceedings.
An appeal in cassation must be lodged within the applicable time limit
The cassation lawyer must lodge the appeal within a specified time limit (the time limit for appeal in cassation). The relevant time limit begins to run on the date of the lower court’s judgment against which the appeal is being lodged. The length of the time limit depends on the nature of the proceedings. The standard time limit for appeal is three months, but certain proceedings are subject to shorter time limits. For example, in preliminary relief proceedings the time limit is eight weeks, and in insolvency proceedings it is just eight days. Once the time limit for an appeal in cassation has expired, the appeal can no longer be lodged. It is therefore essential to seek the opinion of a cassation lawyer as soon as possible following an unfavourable judgment by a lower court.
Suspensive effect
In principle, an appeal to the Supreme Court suspends the effect of the judgment against which the appeal is brought. This means that an order contained in that judgment cannot be enforced while the appeal in cassation is pending. However, courts often declare judgments ‘provisionally enforceable’. In that case, an order in that judgment can be enforced notwithstanding the appeal.
The respondent’s appearance or failure to appear
In claim proceedings, the respondent in cassation – the opposing party to the appellant – may decide to ‘appear’ in the Supreme Court proceedings after receiving the initiating document and obtaining an opinion on cassation. A respondent appears in the proceedings through a cassation lawyer, who notifies the Supreme Court of the representation. The cassation lawyer can subsequently file a statement of response, in which the respondent may also raise complaints against the judgment (with a ‘cross-appeal in cassation’).
Alternatively, the respondent in claim proceedings can elect not to appear (‘fail to appear’). In that case, the Supreme Court proceedings will continue in the respondent’s absence. That does not mean that the appeal in cassation will automatically succeed. Even without a response, the Supreme Court will assess whether the cassation complaints are well-founded.
In application proceedings, any interested party can file a statement of response. In these proceedings, the concepts of respondents ‘appearing’ or ‘failing to appear’ do not apply.
Stages in Supreme Court proceedings
Supreme Court proceedings consist of several stages, which differ somewhat depending on whether claim proceedings or application proceedings are involved. In claim proceedings, the parties may, several months after the statement of response has been filed, simultaneously submit written explanations elaborating on their positions. They can subsequently respond to one another’s explanations. Application proceedings are generally more concise, being typically confined to the initiating document and the statement of response.
In all cases, the procurator general issues non-binding advice (the ‘opinion’), to which the parties can also respond. The proceedings conclude with the Supreme Court’s judgment.
A more detailed overview of the various stages is available here.
Costs of Supreme Court proceedings
A party that lodges an appeal in cassation or that appears in the proceedings before the Supreme Court must pay a court fee. The amount payable depends on the status of the party and the type of case, and is set out in a table that is updated annually. In most cases, the Supreme Court orders the unsuccessful party to reimburse the court fees paid by the other party.
In addition, the unsuccessful party generally has to contribute to the other party’s lawyers’ fees. Cost orders usually consist of fixed sums (a few thousand euros) which are substantially lower than the costs actually incurred. Finally, the cost orders in any referral proceedings should be taken into account.
