Fixed-date summons (Art. 840 CPC): choosing between summary proceedings, the fixed-date procedure and proceedings on the merits

On a Thursday, a fund learns that its main tenant has changed the locks on an office floor and refuses any handover. A lender finds that its debtor has begun selling the assets that made up its security. A manager discovers that a distributor is diverting its customer file before the notice period expires. In all three cases, the operational question is never "should we act quickly" but "through which procedural vehicle", because the choice governs the time needed to obtain a decision, its legal scope, its enforcement and the opponent's ability to neutralise it on appeal. This guide compares summary proceedings (référé), the fixed-date procedure (procédure à jour fixe) of Articles 840 et seq. of the French Code of Civil Procedure (CPC) and the ordinary written procedure, from the angle of the decision timetable: when to apply, on what basis, with what file, and what a wrong routing costs.

Three vehicles, three procedural logics

Summary proceedings: a fast, provisional decision with no authority on the merits

Summary proceedings rest on two distinct bases, and confusing them is the first cause of failure. Article 834 CPC allows the president of the judicial court (tribunal judiciaire), in cases of urgency, to order any measures that do not meet any serious dispute. Article 835 authorises, even where there is a serious dispute, protective measures or measures to restore the previous situation intended to prevent imminent damage or to put an end to a manifestly unlawful disturbance, and allows an interim payment (provision) to be awarded where the obligation is not seriously open to dispute. The scope of Article 835 and its two paragraphs are detailed in our article on useful measures in summary proceedings before any trial on the merits.

Speed has a price. A summary order does not have the force of res judicata on the merits (Article 488 CPC): it settles a situation, it does not decide the right. It is provisionally enforceable as of right (Article 489 CPC), where necessary on the original copy (sur minute) in cases of necessity, and the appeal must be lodged within fifteen days (Article 490 CPC). For an institutional creditor, this means that an interim payment obtained in summary proceedings remains an advance on a future trial, not a final settlement of the dispute.

Summary proceedings from hour to hour (référé d'heure à heure), provided for by Article 485, second paragraph, CPC where the case requires speed, allow a summons to be issued for a specified hour, including on public holidays. It is the tool for physical blockages of assets and imminent cessations of operations, provided one accepts that the decision obtained remains provisional.

The fixed-date procedure: a judgment on the merits within a constrained timetable

Article 840 CPC opens another route, before the trial panel and not before the summary proceedings judge.

The president of the court may, in cases of urgency, authorise the claimant, on application, to summon the defendant for a fixed date.

The fixed-date procedure is not an accelerated form of summary proceedings: it is the ordinary written procedure, stripped of the pre-trial phase (mise en état). The court rules on the merits, with the force of res judicata, on submissions and documents filed from the time of the application. This vehicle therefore presupposes a completed file at the time the president is seised, which moves the effort upstream and concentrates the cost into a few days of intensive work.

Two points on scope must be reserved. First, the fixed-date procedure of Articles 840 to 844 forms part of the written procedure before the judicial court, with mandatory representation by a lawyer (Article 760 CPC). Second, certain appeals require it: in insolvency proceedings, Article R. 661-6 of the French Commercial Code subjects several appeals to the fixed-date procedure, which makes it a mandatory step, not a strategic option, for the creditor or manager challenging an opening judgment or a related decision.

The ordinary procedure on the merits: the pre-trial phase as the cost of time

The ordinary written procedure with a pre-trial phase remains the normal route. It provides time for investigation, access to incidents before the pre-trial judge (juge de la mise en état), the possibility of a court-appointed expert report and a full adversarial debate. It costs months, sometimes more depending on the congestion of the court seised, and exposes the claimant to the risk of the defendant's progressive insolvency.

Alongside these three vehicles stands the accelerated procedure on the merits (procédure accélérée au fond) of Article 481-1 CPC, which results from Decree No. 2019-1333 of 11 December 2019, which removed the references to "in the form of summary proceedings". It leads to a decision on the merits within a tightened timetable, but is available only where a special provision provides for it. It is therefore not a matter of choice: it either applies or is closed. On the place of this procedure among the fast routes, see our analysis of the choice between summary proceedings, fixed-date summons and accelerated procedure on the merits.

The routing test: five criteria for the choice

The choice between summary proceedings and the fixed-date procedure is decided on five parameters, which should be examined in this order.

• The nature of the measure sought: an end to a disturbance, the eviction of an occupant without right or title, or the handing over of documents naturally fall within summary proceedings under Article 835; judicial termination, a final order to pay, the nullity of an act or the return of a disputed asset require a judgment on the merits.
• The degree of dispute: where the defendant has a serious argument, however fragile, summary proceedings based on Article 834 are exposed to dismissal on the ground of a serious dispute. The fixed-date procedure absorbs this difficulty since the court decides the dispute.
• The state of preparation of the file: the fixed-date procedure requires submissions on the merits and a complete schedule of documents from the time of the application. A file whose decisive documents remain to be obtained, by formal notice to produce or by an investigative measure, is not eligible.
• Economic exposure and the risk of dissipation: where the aim is to preserve the base for recovery, a protective measure on application to the enforcement judge (juge de l'exécution) often takes precedence over summary proceedings, and can be combined with the fixed-date procedure.
• The effect sought on negotiation: a hearing date on the merits set at short notice changes the balance of a settlement discussion more effectively than a summary order open to appeal within fifteen days.

A sixth parameter, often overlooked, concerns how the two routes fit together. Evidence-preserving summary proceedings under Article 145 CPC require neither urgency nor an existing dispute: they require a legitimate reason to preserve or establish, before any trial, evidence of facts on which the outcome of a dispute may depend. In construction, off-plan sale (VEFA) or defective workmanship disputes, the expert report obtained on this basis conditions the entire case on the merits. Starting a fixed-date procedure without an expert report in a technical case amounts to asking the court to decide without evidence.

The application to the president (Article 841 CPC): what makes it succeed or fail

Demonstrating urgency through its consequences, not through adjectives

The application to the president for a fixed date sets out the grounds of urgency, contains the submissions on the merits and refers to the supporting documents, a copy of which is handed over to be placed on the court's file (Article 841 CPC). Urgency cannot be declared: it is demonstrated by a dated chain of causation. A refinancing deadline falling on a known date, a building permit whose validity is expiring, an asset being marketed whose sale is blocked by a registration, or a tenant whose business deteriorates month after month are objectively verifiable elements. Conversely, the age of the dispute works against the applicant: urgency invoked two years after the triggering event will be read as urgency created by the claimant's own inaction.

Three drafting points make the difference. The application must link the urgency to the harm that would result from waiting for a conventional pre-trial phase, quantified or at least documented. It must show that the case is ready to be tried, meaning that the debate is circumscribed and the documents are complete. Finally, it must indicate to the president the desired date, taking into account the time the defendant needs to prepare its defence, because a date that is too close turns against the claimant at the hearing.

An act of judicial administration, and therefore not open to appeal

The president's decision authorising or refusing the fixed-date summons is analysed as a measure of judicial administration (mesure d'administration judiciaire), not open to appeal. A refusal therefore has no direct remedy: all that remains is to summon under the ordinary procedure, possibly seeking a shortened timetable before the pre-trial judge, or to redeploy the strategy towards summary proceedings. This absence of a right of appeal must be factored into the risk calculation: an insufficiently reasoned application cannot be remedied, and is paid for in lost weeks.

The real timetable, step by step

The urgent procedure before the judicial court follows a sequence in which each step carries its own sanction.

The president's order sets the hearing date and, where applicable, the period for serving the summons. The summons, drawn up under Article 842 CPC, contains a copy of the application and of the order and warns the defendant that it must appoint a lawyer before the hearing date. This is a structural difference from summary proceedings: the fixed-date procedure requires the defendant to get organised immediately, under the constraint of a date already set.

Handing a copy of the summons to the court registry before the hearing date conditions the seising of the court: failing this, the summons lapses (Article 843 CPC). This lapse is the most commonplace and most costly accident of the procedure, because it occurs after the opponent has learned of the strategy, the submissions and the documents.

At the hearing, the court checks that the summoned party has had sufficient time to prepare its defence (Article 844 CPC). The safeguard is therefore not mechanical but functional. If the court considers the case insufficiently investigated, it may refer it to the pre-trial phase: the claimant then loses the benefit of acceleration while having borne the cost of a file closed in a hurry. If the case is retained, it is argued and reserved for judgment, with a judgment delivered within a period generally out of all proportion to that of a conventional pre-trial phase.

For a creditor, the complete sequence reads like a calendar: authorisation, service, filing, appointment of the opposing lawyer, hearing, deliberation, service of the judgment, enforcement. Each segment is a potential breaking point, and each must be assigned an owner and a date.

Interplay with protective measures: the creditor's real sequence

Where the risk is one of organised insolvency, the first decision is neither summary proceedings nor the fixed-date procedure, but an application to the enforcement judge for a protective attachment or a provisional judicial mortgage, on the basis of Article L. 511-1 of the French Code of Civil Enforcement Procedures (CPCE), which requires a claim that appears well founded in principle and circumstances threatening its recovery. The measure is taken without a prior adversarial hearing, which preserves the element of surprise.

The rest of the timetable is constrained. The measure must be notified to the debtor within eight days of its execution on pain of lapse (Article R. 511-8 CPCE), and the creditor must, within one month of execution, commence proceedings or complete the formalities needed to obtain an enforceable title (Article R. 511-7 CPCE). The fixed-date procedure is precisely the vehicle that allows a provisional security to be converted into a final title within a period compatible with the conversion of the measure. This combination, protective attachment followed by the fixed-date procedure, is the most effective sequence where the stake is the preservation of ranking and of the asset base, and not merely the recognition of the right.

Provisional enforcement: the real exit question

The principle laid down by Article 514 CPC

Since Decree No. 2019-1333 of 11 December 2019, applicable to proceedings commenced from 1 January 2020, first-instance decisions are provisionally enforceable as of right (Article 514 CPC). A judgment delivered under the fixed-date procedure is therefore immediately enforceable, unless otherwise provided. The judge may, however, set aside provisional enforcement as of right, in whole or in part, if he or she considers it incompatible with the nature of the case (Article 514-1 CPC), and may make it subject to guarantees.

This rule narrows the gap, often overestimated, between summary proceedings and the fixed-date procedure at the enforcement stage. A summary order and a judgment on the merits are both immediately enforceable. The real gap lies in the authority of the decision and its resilience over time.

Stay of provisional enforcement before the First President

The defendant ordered to pay has a lever: Article 514-3 CPC allows the First President of the court of appeal, in the event of an appeal, to stay provisional enforcement as of right where there is a serious ground for annulment or reversal and enforcement risks having manifestly excessive consequences. The procedural condition is decisive: the application is in principle admissible only if the party made its observations on provisional enforcement before the first-instance judge, except where the manifestly excessive consequences came to light afterwards.

This requirement has a direct tactical consequence. The claimant who does not want its judgment neutralised must anticipate the debate on provisional enforcement from the submissions attached to the fixed-date application. The defendant, symmetrically, must make its observations at the hearing on pain of losing the benefit of Article 514-3. Many urgent disputes are won or lost on this point, dealt with in a few lines at the end of the submissions.

Removal of the appeal from the list and fixed-date procedure before the court of appeal

Two mechanisms complete the framework. Article 524 CPC allows the First President to remove the case from the list where the appellant does not show that it has complied with the decision under appeal, unless compliance is likely to have manifestly excessive consequences. This is a pressure tool for the creditor holding an enforceable judgment.

In the opposite direction, the party ordered to pay may ask the First President for leave to summon for a fixed date on appeal, under Articles 917 et seq. CPC, where rights are in jeopardy. The application there follows a logic comparable to that of Article 841: statement of the jeopardy, submissions on the merits, documents. Urgent litigation therefore does not stop at the first-instance judgment: it continues before the First President, on three simultaneous fronts, stay of provisional enforcement, removal from the list and accelerated fixing.

The cost of a wrong routing

Summary proceedings brought on a disputed claim end in dismissal on the ground of a serious dispute. The claimant loses twice: the time consumed, and the argument the opponent will draw from that decision in negotiation, even though it has no authority on the merits. A fixed-date procedure sought without a completed file exposes the claimant to a refusal of authorisation, without appeal, or to referral to the pre-trial phase at the hearing, after all the documents have been communicated. The conventional procedure on the merits, started in a case where the asset is deteriorating, produces an enforceable title against a debtor who has become insolvent.

Three configurations illustrate the choice. An institutional landlord facing a tenant in payment default whose lease contains a termination clause (clause résolutoire) brings summary proceedings, the clause being acquired and depriving the defence of seriousness; the same landlord seeking judicial termination for multiple breaches, without a usable clause, falls within the merits and, if the operation of the site is threatened, within the fixed-date procedure. A lender who finds asset disposals first secures its position by a protective measure, then summons for a fixed date to obtain its title within the month. An investor facing a site blockage with technical defects goes through summary proceedings under Article 145 before any claim on the merits, failing which the court will rule on an unusable technical file.

Conclusion: choose the vehicle after defining the exit objective

The reflex of treating every urgency by summary proceedings costs more than it appears. Summary proceedings deal with situations, the fixed-date procedure deals with rights. In cases with high economic exposure, where the target is a final title that is enforceable and resistant on appeal, the fixed-date procedure is the most efficient vehicle, provided one accepts investing the entire effort of argument and evidence before the president is even seised. The choice must be made in reverse: define the exit objective and the state of the defendant's assets at the foreseeable deadline, and only then choose the vehicle.

Our emergency litigation practice, informed by the Conférence du barreau de Paris, leads us to a simple operational recommendation: before any summons, draw up a written procedural timetable, dated step by step, covering the lapse under Article 843 CPC, the position you will take on provisional enforcement and, if a protective measure has been taken, the one-month period under Article R. 511-7 CPCE. This document, more than the choice of legal basis, determines the outcome.

Frequently asked questions

Can a fixed-date summons be sought before the commercial court? The fixed-date procedure of Articles 840 to 844 CPC is specific to the ordinary written procedure before the judicial court. Before the commercial court, and before the economic activity courts (tribunaux des activités économiques) arising from the experiment opened on 1 January 2025, the procedure is oral and the summons already states the hearing date, the urgent route being commercial summary proceedings under Articles 872 and 873 CPC or a request for fixing at a closer date. The reasoning for the choice remains identical: provisional measure against decision on the merits.

What is the real period between the application to the president and the fixed-date hearing? The period depends on the court seised, the chamber concerned and the intensity of the urgency shown. It is generally counted in weeks, against several months for an ordinary pre-trial phase. To this must be added the period for serving the summons set by the order, the time left to the defendant to appoint a lawyer and file submissions, and then the deliberation. A reliable forecast requires asking the court beforehand about its fixing practices.

Can a refusal of authorisation to summon for a fixed date be appealed? No. The order ruling on the application made under Article 840 CPC is treated as a measure of judicial administration, which makes it not open to appeal. In the event of a refusal, the ordinary procedure remains available, possibly with a request for a shortened timetable before the pre-trial judge, as does an application to the summary proceedings judge if the conditions of Articles 834 or 835 are met.

Summary proceedings or fixed-date procedure where the claim is disputed? Where the debtor raises a serious argument, the interim payment under Article 835 CPC presupposes an obligation that is not seriously open to dispute and becomes uncertain. The fixed-date procedure is then preferable, since the court decides the dispute on the merits with the force of res judicata. If the risk concerns the debtor's assets, the most robust sequence combines a protective measure on application with a fixed-date summons in order to obtain the enforceable title within the one-month period under Article R. 511-7 CPCE.

Is provisional enforcement automatic on a judgment delivered under the fixed-date procedure? Yes, since Decree No. 2019-1333 of 11 December 2019, provisional enforcement applies as of right to first-instance decisions (Article 514 CPC), unless the judge sets it aside as incompatible with the nature of the case (Article 514-1 CPC). It may be stayed on appeal by the First President where there is a serious ground for annulment or reversal and manifestly excessive consequences (Article 514-3 CPC). The party contemplating this application must have made its observations on provisional enforcement before the first-instance judge; failing this, its application is admissible only if the manifestly excessive consequences came to light after the first-instance decision.