C.H. van Rhee, ‘The Influence of the French Code de Procédure Civile (1806) in 19th Century Europe’, in: L. Cadiet & G. Canivet (eds.), De la Commémoration d’un code à l’autre: 200 ans de procédure civile en France, Paris: LexisNexis/Litec, p. 129-165
The number of European jurisdictions where Napoleon’s Code de procédure civile (1806) left its mark, either directly or indirectly, is vast. According to R.C. van Caenegem, this is partly due to the fact that this code suited the needs of the 19th century and also embodied much of the common European procedural heritage. Even so, the influence of the French code remains remarkable since no one will deny that this code was defective in many ways. In addition, it was far from innovative. After all, the code was largely based on the 1667 Code Louis. That the 1806 code was very similar to the preexisting procedural law is clear; the main drafter of the code, E.-N. Pigeau (1750-1818), was said to have not been obliged to introduce many changes in post-1806 editions of his introductory work on French civil procedure.
One may ask why, in the light of the above, such a mediocre piece of legislation proved to be able to dominate the procedural debate for a large part of the 19th century and even beyond. It seems that this is largely due to the fact that the code was used as a (positive or negative) point of departure when in the 19th century legislation was drafted in various European countries.
In the present text I will especially focus on Geneva, The Netherlands and Belgium. However, before doing so I will give an overview of the various European jurisdictions (1) where the 1806 code for a shorter or longer period became the law of the land or (2) where it was not introduced but where its model nevertheless influenced subsequent national legislation. Within the first group, I will distinguish the countries where the 1806 code was repealed shortly after the defeat of the French emperor and the countries where the code remained in force for a longer period of time. Within the second group, the jurisdictions where French influence was direct may be distinguished from jurisdictions where this influence can only be noticed through an intermediate source which in its turn had been influenced by the French code (either directly or indirectly).
- 2.1 Jurisdictions where the French code became the law of the land
- 2.2 Jurisdictions where the French code itself was never introduced but where nevertheless French influence may be noticed
- 3. The Geneva Loi sur la procédure civile (1819)
- 4. The Dutch Code of Civil Procedure (1838)
- 5. Procedural Reform in Belgium (1869)
The French Code de procédure civile (1806) shaped civil procedural law for a longer or shorter period of time in many European countries. Even in countries where this code was never officially introduced, it was taken as an example for national codification efforts. Whether the popularity of the French code was due to its intrinsic qualities may however be doubted. The example of Geneva, The Netherlands and Belgium shows that in the19th century one was well aware of the various shortcomings of the French code and this resulted in several amendments to the French procedural model. The Geneva code and the Belgian draft show the largest number of amendments, whereas the Dutch code was more conservative in its outlook.
In Chapter 3 of the present article a selection of innovations from the Geneva code has been presented. To a large extent these innovations formed a reaction against the perceived deficiencies of the French code. Several innovations are presented in Bellot’s commentary as a return to Geneva practice that predated the introduction of the 1806 Code. References to jurisdictions other than France and Geneva are scarce.
The innovations did, however, not mean that the Geneva Code left the French family of civil procedural law. The basic concepts of civil procedure remained the same, whereas many important features of the French code were maintained. Examples are the fact that the action had tobe commenced by way of a summons served by a bailiff without the involvement of the court andthe fact that the judgment needed to contain grounds.
The innovations of the Geneva Code may be brought together under at least four headings. First, attempts were made to regulate the same subj ect-matter more concisely and to structure this subject-matter better This resulted in a Code that contained a smaller number of Articles than the French Code. These Articles were also arranged according to a different scheme.
Secondly, several procedural techniques from the French code were abolished. Compulsory preliminary conciliation is a good example. As stated above, it was replaced by the power of the judge to attempt conciliation at a moment in the action he deemed most fit for this. Another example is the interrogatoire sur faits et articles. It was replaced by the possibility of hearing the parties in open court without having to inform them in advance of the facts on which they would be questioned. A final example is the abolition of the so-called qualités.
Thirdly, various innovations aimed at improving existing procedural rules and concepts. Often these involved increasing the judge’s powers to influence the course of the lawsuit. It was the judge who had to strictly guard the time-limits; the par tie la plus diligente’ disappeared from the Geneva Code. The exchange of statements of case was also brought under the control of the court, as was the appointment of experts. At the same time considerable attention was paid to increasing immediacy in the hearing of cases. The code provided that witnesses should be heard before the panel of judges instead of being questioned in private by a judge-commissioner. Also, the judges who attended the hearing of witnesses had to be the same as the ones attending oral pleading. The inspection of a locality by the whole panel of judges instead of by a judge-comissioner aimed at increasing immediacy too.
Finally, various measures sought to reduce the amount of time needed for hearing actions. An example is the reduction of the length of oral pleading by limiting the possibility to present an oral reply and rejoinder. Another example is the abolition of intermediate appeals of the ‘interlocutory judgments’ of the French code, due to their classification as ‘preparatory’ in the Geneva code. More generally, the rather blunt division of cases in ordinary and summary cases of the French code was replaced by an approach which allowed the judge to differentiate more precisely on the basis of the character of the case.
As stated, the Belgian draft was also very innovative. Just as in the case of the Geneva code, this did, however, not mean that Belgium would have abandoned the French procedural tradition if the country would have adopted this draft. Not only was a deliberate decision made to only consult the legislation of countries belonging to the French tradition whenever a comparative approach was chosen, but also French procedural treatises were very much favoured by the commission as a source for the Belgian draft.
The innovations of the draft can be brought together under the same headings as those of the Geneva Code. First – and in this the Belgian draft chose an approach similar to that of the Geneva code – the subject-matter was presented more concisely and structured differently. In addition, subject-matter that had not been regulated by the French code but which nevertheless played a role in case law, such as counterclaims, was now specifically regulated.
Secondly, several procedural techniques from the French code were abolished. Compulsory preliminary conciliation and the interrogatoire sur faits et articles are good examples. More original are the abolition of opposition against a default judgment by the defaulter, third party opposition and the cautio judicatum solvi. Surprisingly, the qualités were not abolished by the draft, although some improvements were introduced regarding the moment these needed to be submitted.
Thirdly, various innovations aimed at improving existing procedural rules and concepts. Just as in Geneva, these often involved increasing the judge’s powers to influence the course of the lawsuit. The approach to the legal action was ‘que le juge peut, d’office, ordonner toutes les mesures qu’il croit indispensable à son instruction.’ At the same time attention was paid to increasing immediacy in the hearing of cases. For example, the draft provided that witnesses should not be heard by a judgecommissioner but by the court. Also, the judges who attended the hearing of witnesses had to be the same as the ones attending oral pleading.
Finally, various measures sought to reduce the amount of time needed for hearing actions. Several measures were similar to those of the Geneva code, for example the reduction of the length of oral pleading by limiting the possibility to present an oral reply and rejoinder, and the abolition of intermediate appeals against the ‘interlocutory jud gments’ of the French code, this time due to their classification as ‘jugements d’instruction.’ More generally, the ordinary procedure was simplified in order to reduce the time necessary for hearing the action.
When compared with the Geneva Code and Belgian draft, the Dutch Code of Civil Procedure was extremely French in its outlook, even though originally plans were made to introduce a purely Dutch code. However, the creation in 1815 of the Kingdom of The Netherlands which resulted in the union of the Southern Netherlands (Belgium) and the Northern Netherlands resulted in the abolition of these plans. Under Belgian pressure, the French code was taken as an example that was closely followed. In the Dutch Code the powers of the judge were comparable with those of the French code (the ‘partie la plus diligente’ continued its existence, whereas the exchange of statements of case was not brought under the control of the court), the di stinction between the summary and ordinary procedure was maintained and the manner in which these procedures was organised was in line with the French example, whereas the interrogatoire sur faits et articles was only slightly modified.
Important innovations were limited in number Examples are the introduction of a new code structure which was thought to be more logical than that of the French code, the reduction of the number of Articles in the code, the abolition of compulsory preliminary conciliation (in fact, the approach of the Geneva code was adopted in The Netherlands), third party opposition, the requirement to submit so-called qualités, and the introduction of rules regulating the counterclaim as well as the option to hear witnesses in open court in all cases. Generally speaking the Dutch code continued to demonstrate many of the shortcomings of the French code and, consequently, 19th century legal literature on the Dutch code is full of complaints. Major reforms were only introduced at the end of the 19th century.