CMS Expert Guide to Digital Litigation in France

In recent years, the French justice system has evolved to follow the general trend aiming at introducing some form of digitalisation in the judicial process. Although digitalisation has also spread to criminal litigation, this Expert Guide will only focus on the digitalisation of civil and commercial litigation.

The digitalisation of the civil justice system is now partially provided for by the French Code of Civil Procedure, which contains specific provisions regulating communication by electronic means before all courts (Articles 748-1 to 748-9 of the Code of Civil Procedure).  These provisions are intended to guarantee identification of the parties, integrity of the files exchanged, confidentiality and to offset the risk of breakdowns by extending the deadlines.

The use of these electronic means varies between the different actors in the justice system (i.e. courts, lawyers and litigants).

On the side of the courts (e.g. judicial tribunals, courts of appeal and certain commercial courts), the most used tool is the lawyers’ virtual private network (Réseau pivé virtuel des avocats or RPVA), which allows the courts to receive electronic submissions and to communicate directly with lawyers (for more details see Question 2).

On the side of the lawyers, electronic submissions are now filed and communicated to the court and the other parties through the RPVA.

Other digital or technical measures available to lawyers are in development, such as the use of electronic discovery tools to search and review large amounts of electronic data. Indeed, some French start-ups have entered the open data market and offer powerful databases to law firms, such as “Doctrine”, which provides a larger panel of legal data and sets up an intuitive search tool for law firms that allows a significant saving of time and efficiency.

Litigants benefit from an extended access to the law, for example through websites created by the government that provides information on their rights. They also benefit from digitalised access to justice in civil (contract and family) and commercial litigation, especially in matters in which representation by a lawyer is not mandatory. In this regard, since 11 April 2019, a digital court (Tribunal Digital) is available to any company director or business owners registered with the Trade and Company Register who want to bring a case before the competent commercial court (see more details below in Question 2).

The primary and most complete element of digitalisation currently used in the French civil justice system is the RPVA. Created in 2005 to facilitate the work of legal professionals, the RPVA is a secured computer network designed for the dematerialisation of procedures with jurisdictions, allowing lawyers to:

• communicate electronically with the tribunal and the representatives of the other parties; 
• file their submissions and exhibits; 
• accomplish some procedural acts (e.g. filing of the writ of summons, registration of the lawyer as representative of a party, etc.);
• and more generally, follow up the whole procedure. 

Lawyers access the RPVA through a USB key called “clé e-barreau” or “clé RPVA”.

The RPVA brings many advantages in terms of time and efficiency since it suppresses the need to file a paper version of the submissions at each procedural hearing, and as a consequence makes it unnecessary to travel to the court for each of these procedural hearings that only aim for the parties to file alternatively their respective submissions. Passed as a law on 23 March 2019 and in effect since 1 July 2021, the use of the RPVA has been extended, creating an obligation for lawyers who intend to deliver a writ of summons before the Judicial tribunal (court of first instance) to select a date for the first hearing. This process, however, requires that the lawyer first communicate a draft of the summons (Article 751 of the Code of Civil Procedure). Through this process, the launch of the proceedings is digitalised by eliminating the need to call the court to obtain a hearing date and submit a paper version of the writ of summons.

Recently, thanks to the work of the National Bar Council (Conseil national des barreaux), the RPVA has undergone various improvements. The available storage space has been enlarged (from 150 MB to 5 GB), an electronic calendar displays hearing dates, the interface has been rendered more intuitive to facilitate the use of the network, and a mobile application (“e-barreau-mobile”) allows lawyers to receive real-time notifications on the follow-up of their files.

It should, however, be noted that the RPVA is only used before the Judicial tribunal and before the court of appeal. Commercial courts are only slowly starting to use it.

For citizens, the creation of fully dematerialised platforms at the service of litigants is developing in matters where representation by a lawyer is not mandatory.

As mentionned, the digital court (Tribunal Digital) is one of the leading examples of these developments. On 11 April 2019, the National Council of Commercial Court Clerks (Conseil national des Greffiers des Tribunaux de commerce) developed a digital court giving company directors and business owners access to the 134 commercial courts in France in a simple and secure manner. 
For this purpose, a digital identity called “MonIdenum” has been developed and assigned to each entrepreneur registered with the Trade and Companies Registry. With this personal key, the entrepreneur should be able to access the digital court site and his personal space. Through this platform, the user has a dashboard allowing him or her access to the different procedures (e.g. summons on the merits, summary proceedings, collective proceedings, request for an injunction to pay, declaration of opposition, request to the President), to consult the digital file of a case, to transmit any supporting file and to follow the progress of the procedure until a decision is rendered.  This platform, however, is not used in practice, and is only in the early stages of development.
Furthermore, the “Portal of the citizen” is a platform that should allow everyone to get information on rights, on the process to access the courts, and to follow cases. This portal is also designed to make it possible for anyone to initiate a procedure online although this process is available only for certain procedures without mandatory representation by a lawyer.

Via a secured access named “France Connect” on the justice.fr and service-public.fr websites, any creditor can resort to an injunction to pay procedure (procédure d’injonction de payer), which is a procedure by which a party may obtain a legal title allowing the recovery of contractual debts by filling in an online form. However, for debts of less than EUR 5,000, creditors may also recover their debt through a digital platform set up by the national chamber of bailiffs known as “CREDICYS”, enabling creditors to secure a bailiff who will take measures to secure payment. Should that process fail, the creditor must start formal legal proceedings.

Since 4 January 2021, any litigant may file a request for protection measures for adults before the guardianship judge and make claims before the family court judge (for all types of claims related to the organisation of the family life: divorce, contribution to the expenses of the marriage, all applications relating to parental authority, etc.) through the website justice.fr.  By proceeding to this online site, the claimant may also consent to continue the whole procedure through the dematerialised platform.

In addition, during the COVID-19 pandemic, the government authorised by special decree the use of virtual hearings in all civil and commercial matters. In this context, more than 700 virtual hearings were held in the 141 commercial courts via a French software called “Tixeo”.

The use of video conferencing during the pandemic has therefore allowed French law to move forward in the field of virtual hearings.  Indeed, hearings can now be held by video at the request of the parties and their lawyers (see Question 5).

However, it appears that even if they are permitted, virtual hearings are rarely used with the parties involved (i.e. the parties themselves, lawyers, and judges) favouring in-person hearings or opting for no hearings at all (having the court decide the case on the basis of the written submissions of the parties).

As of today, the only mandatory digital tool is the RPVA.

The RPVA, however, is only mandatory in certain types of procedures: “written procedures” (as opposed to oral procedures in which there is no obligation to file written submissions), which include procedure on the merits in first instance before the Judicial tribunal, and procedures before the court of appeal (Article 930-1 of the Code of Civil Procedure).

Before the commercial court, the use of the RPVA is only optional. Recently, however, some commercial courts have started to require that lawyers communicate a dematerialised version of the pleading file in addition to the paper pleading file.

For procedures without mandatory representation by lawyers, litigants are encouraged to use the digital platforms developed by the government, thus facilitating access to justice for individuals.

In recent years, there has been a clear desire on the part of the French government to move towards a digital transformation of the judicial system, both to facilitate access to justice and to improve the working conditions of those involved in the justice system.

As indicated above, there have been many initiatives carried out to improve the digitalisation of the litigation process. Litigation in France, however, cannot be considered a fully digitalised process and we are still in the early stages of digitalisation.

The main issue is the lack of equipment and facilities of French courts. As a matter of fact, Eric Dupond-Moretti, the French Minister of Justice, highlighted during a press conference held in February 2023 that an audit of the French justice system revealed the need to proceed to a serious digital upgrade of the courts and, in particular, start with the installation of optical fibre, wifi and videoconference tools.

As a matter of fact, the files on which judges work are not entirely digitalised and the communication of submissions between the parties and the court is still often carried out on paper, especially in oral proceedings with representation by a lawyer. Few courts are equipped with a videoconferencing system and some judges are reluctant to use it.

Considering this state of play, it is obvious that the French justice system still needs to improve the resources allocated to digitalisation.

For many years, we have been witnessing the expansion of digitalisation in the organisation and functioning of the public service of justice. This has created a new way of apprehending justice, and in particular digital justice.

However, these processes have not been implemented through rules or laws specifically focusing on the use of technology in litigation, but rather through larger reforms aimed at modernising justice and implementing new technologies in civil litigation.

The law of 20 December 2007 for the simplification of justice introduced the possibility to resort to a videoconferencing system in various types of procedures if the parties agree. The audiovisual means of telecommunication used must, however, guarantee the confidentiality of the transmission.
This law was brought to completion by the law of 22 December 2021 for confidence in the judicial institution, applicable from 15 May 2022, that further confirmed the possibility of using videoconferencing and to hold virtual hearing while also introducing the possibility for experts, witnesses or parties to be heard through electronic means, if agreed to by the judge.

More recently, the law of 23 March 2019 on the reform of justice aimed at having the civil procedure enter the digital age.

This law introduced the possibility of resorting to the procedure of injunction to pay by dematerialised means before the competent court. However, even if the filing of the procedure can be done in a dematerialised way (even if this is not mandatory), the request will be analysed and decided by a judge.

This reform brings clarity to the law applicable to open data. The principle is now that court decisions are made available to the public free of charge in electronic form, with anonymisation of the public.

All decisions rendered by the Court of Cassation and by the courts of appeal in civil, social and commercial matters have been made available. In 2023, a new step is to be taken with the opening of civil, social and commercial decisions of nine judicial tribunals. This will be of great help in preparing litigation files.

As of today, the digitalisation of justice is a debated topic in France, and since there is a strong will to make progress, many projects are in discussion. Concrete progress, however, is happening slowly.

Firstly, it should be noted that many provisions of the law of 23 March 2019, which aimed at moving France forward in the development of digital justice, have still not been implemented.

The issue of open data discussed in the law also goes beyond the simple communication of court decisions to third parties and raises the question of the creation of a single case-law database containing all the decisions of the French courts.

The Minister of Justice recently presented a digital transformation plan for 2023-2027, which is the subject of a draft law. The objectives include putting open data at the heart of the reflections and articulating the legal framework and digital development.

It is important to note that this draft reform does not aim at a fully digitalised litigation process.
As mentioned, even if the will to develop digitalisation is strong, France must first ensure that the jurisdictions have suitable digital equipment. Thus, the actions programmed for 2023 also includes providing the courts with the equipment needed (e.g. double screens, videoconferences, copiers and scanners), facilitating the dematerialisation of files, improving the software available to judges and clerks, and hiring computer technicians in the courts.

Discussions are also underway about the possible creation of a mobile application for citizens, allowing access to online referral services currently on the justice.fr website, and the modernisation of this site.

Currently, French law does not provide any specific rule regarding the use of an AI in litigation.

In the absence of specific provisions, reference should be made to the French general procedural law. In that matter, Article 12 of the French Code of Civil Procedure provides that any dispute shall be decided by the judge in accordance with applicable rules of law. This means that judicial power is entrusted to a judge and, by deduction, can not be delegated to AI.

However, the European Commission recently proposed two texts, which should result in member states amending their laws:

• The Artificial Intelligence Act (COM/2021/206 final, AI Act) published on 21 April 2021, specifically addresses the use of AI systems in the judiciary by classifying it in three levels of risks: unacceptable risks, high risks and acceptable risks. According to Annex III, no. 8 of the draft regulation “AI systems intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts” are considered to be high risk and are therefore subject to specific regulatory requirements under Articles 8 to 15 of the draft AI regulation;
• The Directive on tort liability applicable to Artificial Intelligence tools intended to complete the future Artificial Intelligence Act (COM/2022/496 final, sept. 28 2022). This draft directive aims at establishing a liability for fault of suppliers, developers and users of AI, aiming to obtain compensation for any type of damage (e.g. life, health, property, privacy etc.) and for any type of victim (e.g. individuals, companies, organisations). 

In France, no specific rules have been adopted to regulate the development of digital litigation.

The two legal bases that govern the use of data to prevent unwanted access or breaches of computer security are the Law of 6 January 1978 relating to data processing, files and freedoms and the General Data Protection Regulation (GDPR).

There is a will to adapt the legislation on digital justice to the principles governing the protection of privacy. Based on the GDPR, the algorithmic processing of court decisions is framed by the law of 20 June 2018 on the protection of personal data, which requires the respect of the privacy and security of the natural persons mentioned in the decision.

More and more consumers are using legal tech companies, which process legal claims on their behalf.

As an example, some legal tech companies entered the market of air litigation by offering passengers the possibility to simplify the procedures to obtain compensation from airline companies in cases of delays, for instance. To that end, consumers must complete their claims on an online form available on the legal tech company’s website and attach any relevant documentation to support their claims.

Although the existence of these legal tech companies facilitates access to justice for litigants, the automated processing of consumer claims also prevents any personalised study of the specific circumstances of each case with the risk that the processing of the case is less reliable than if it had been entrusted to a lawyer. Furthermore, automated processes may generate more litigation before already overloaded jurisdictions and mass litigation against private companies.

As a result, some legal techs have tried to encourage consumers to use their services, by displaying high success rates at the outcome of procedures that they initiated.

The National Bar Council (Conseil national des barreaux), however, initiated a procedure against one of these legal techs that advertised its successes and was ultimately ordered to remove misleading information on its website under penalty. 

There is a growing desire to use digital resources to promote access to justice and the intelligibility of justice with more information and transparency of the litigation process, as can be seen in the two following examples:

• the decree of application of 31 March 2022 of the law for confidence in the judicial institution authorises the audio or audiovisual recording of judicial and administrative hearings, which developed the recording of the hearings of the highest French courts. As it was already the case with the Constitutional Council (Conseil constitutionnel), public hearings before the Court of Cassation (Cour de cassation) and the Council of State (Conseil d’état, which is the highest administrative court in France) may also be broadcasted with agreement of the parties. The first filmed hearing before the Court of Cassation was held on 10 March  2023;
• the French government has developed two websites. The first one, service-public.fr, provides users with legal information and in particular information on how to exercise their rights. The second one, justice.fr, is the official website of the Ministry of Justice. As mentioned in Question 2, this second website allows access to procedures without mandatory representation by lawyers. 
  Finally, no state platform or software exists regarding legal chatbots. However, some private companies have created their own legal chatbot or platforms to connect lawyers and citizens.