Article 46 of the Code of Civil Procedure offers the claimant a territorial jurisdiction option that goes beyond the classic principle of the defendant’s domicile. In contractual matters, it allows for the jurisdiction of the place of actual delivery or performance of the service to be seized. In tort matters, the court of the place where the harmful act occurred or the one within whose jurisdiction the damage was suffered can be chosen.
This mechanism, seemingly simple, raises concrete questions as soon as one must prove where a contract has actually been executed.
Burden of proof of the place of execution: an underestimated obstacle
Most legal briefs present Article 46 as a simple option offered to the claimant. They overlook a crucial point: the claimant must prove the place of execution they invoke. Without this proof, the judge seized may declare themselves incompetent, and the procedure starts over before another jurisdiction.
Recent case law emphasizes the nature of the documents admissible to establish this place. Judges expect tangible evidence: intervention slips, delivery reports, visit reports, or correspondence explicitly mentioning the site of execution. A simple contract mentioning a billing address is not sufficient.
For disputes related to installation or control work, this requirement takes on a particular dimension. Territorial jurisdiction is determined by actual execution, not by the place specified in the contract.
A service provider who intervenes on a site in Lyon while the contract was signed in Paris opens the possibility of seizing the judicial court of Lyon, provided they produce evidence of intervention on site. To obtain a more detailed explanation of Article 46 of the Code of Civil Procedure, it is essential to understand that this evidentiary issue conditions the admissibility of the jurisdiction option itself.
Territorial jurisdiction in tort matters: the trap of diffuse damage
Article 46 distinguishes two connections in tort matters: the place of the harmful act and the place where the damage was suffered. This distinction seems clear when an accident occurs at a specific location. It becomes considerably more complicated with digital disputes.
Consider the case of a defamatory publication online or an act of unfair competition on the internet. The damage may be suffered in several jurisdictions simultaneously. The Court of Cassation has gradually framed this situation, but field reports diverge on the degree of proof expected to locate the main prejudice.
In international disputes involving EU member states, Article 46 yields to the Brussels I bis regulation. The jurisdiction of French courts in tort matters is then determined according to European provisions, not according to the French Code of Civil Procedure. This relationship has been recalled notably in cases of comparative advertising between companies from different countries.
Criteria used by courts to locate the damage
- The place where the turnover was affected, documented by accounting records showing localized decline
- The jurisdiction in which the affected clientele is primarily established, evidenced by a geolocalized client file
- The main place of dissemination of the disputed content, demonstrated by audience data or timestamped screenshots
Without these elements, the claimant risks having their summons contested by an exception of incompetence, which prolongs the procedure by several months.
Article 46 and recent reforms of civil procedure
Article 46 itself has not been modified by recent reforms. However, the procedural context in which it is situated has significantly evolved, with practical consequences for its use.
Recent developments in the appeal procedure modify the litigation strategy upstream. The choice of the court of first instance, based on Article 46, must now take into account the judicial map of the appeal and the specific deadlines of each court. Seizing a court far from the opponent’s seat may seem tactically advantageous, but if the relevant court of appeal is congested, the initial gain turns into a loss of time.
This expedited procedure can influence the choice of forum: a claimant whose claim is liquid and certain will have an interest in seizing the most efficient jurisdiction to handle this type of request, rather than the one offering the most favorable territorial connection.
Points of caution for articulating Article 46 with the new rules
- Ensure that the jurisdiction chosen under Article 46 is indeed competent regarding the nature of the request (judicial court, commercial court, enforcement judge)
- Anticipate the appeal phase by considering the jurisdiction of the competent court and its average processing times
- Prepare the evidence file for the place of execution as early as the pre-litigation phase, even before drafting the summons
- In the case of cross-border disputes within the EU, check whether the Brussels I bis regulation does not take precedence over Article 46
Summons and territorial jurisdiction: what Article 46 does not cover
Article 46 does not apply in real estate matters. Article 44 of the same code then imposes the exclusive jurisdiction of the court of the location of the property. This rule is of public order: no contractual clause can derogate from it.
Similarly, certain matters have specific rules that exclude the option of Article 46. Residential leases, commercial leases, and agricultural leases are governed by specific texts designating the competent court. A claimant who attempts to invoke Article 46 to circumvent these rules would see their summons successfully contested.
The option offered by Article 46 is also subordinate to territorial jurisdiction clauses, when they are valid. Among professionals, a clause designating a specific court in the contract can neutralize the choice that Article 46 would otherwise have allowed. Between a professional and a consumer, however, this type of clause is deemed unwritten.
Article 46 constitutes a real procedural lever, but its effectiveness depends almost entirely on the preparation of the file upstream. A claimant who gathers their execution evidence before drafting the summons empowers themselves to truly choose their jurisdiction. Without this prior work, the jurisdiction option remains theoretical.
