Commercial Lease Disputes in France: Which Court Has Jurisdiction?

The Three-Court Framework

Article R 145-23 of the Commercial Code establishes a special jurisdiction for disputes relating to the application of the commercial lease statute. Within that framework, the type of dispute determines whether it goes to the president of the tribunal judiciaire sitting as juge des loyers commerciaux (rent disputes) or to the full tribunal judiciaire (all other statute-based disputes). The tribunal de commerce comes into play only where both parties are merchants and the dispute is grounded in ordinary contract law rather than the statute. The procedural rules under Article R 145-23 are mandatory in character: their violation vitiates the entire procedure (Cass. 3e civ. 10-6-1971 n° 70-12.678).

The Juge des Loyers Commerciaux: Rent and Revision Disputes

What Falls Within This Jurisdiction

The president of the tribunal judiciaire, sitting as juge des loyers commerciaux, has exclusive jurisdiction over disputes relating to the fixing of rent on a revised or renewed commercial lease, whatever the amount in dispute (C. org. jud. Art. R 213-2 ; C. com. Art. R 145-23 al. 1). This covers: fixing the renewed lease rent where landlord and tenant cannot agree; triennial legal revision under Article L 145-38; and revision of the rent on a lease containing an index clause under Article L 145-39. The juge des loyers may also settle the accounts between the parties that flow from that fixing (Cass. 3e civ. 17-9-2020 n° 19-20.589). However, the Cour de cassation has clarified that this ancillary accounting jurisdiction does not extend to issuing a condemnatory judgment: the juge des loyers may settle the account but may not condemn a party to pay (Cass. 3e civ. 11-5-2022 n° 20-21.689).

What Falls Outside This Jurisdiction

The jurisdiction of the juge des loyers is exceptional and must be construed strictly. Matters expressly outside its competence include: disputes over the principle of renewal itself; the date of renewal; the binding effect of a valuation by an expert appointed by the parties; fixing an indemnité d'occupation; disputes about the security deposit or calculation of the impôt foncier; validity of a clause-recettes (turnover rent clause); validity of the congé; and rent adjustment based on a floor-area error (Cass. 3e civ. 7-7-2016). The tribunal judiciaire has concurrent jurisdiction over rent disputes where the rent question arises as an accessory to a principal claim properly before that court (Cass. 3e civ. 27-11-2002 ; Cass. 3e civ. 25-1-2023 n° 21-20.009).

The Tribunal Judiciaire: All Other Statute Disputes

All disputes arising under the commercial lease statute that do not concern rent-fixing fall to the full tribunal judiciaire (C. com. Art. R 145-23 al. 2). This is a jurisdiction of exclusive public order: it cannot be contracted out of by agreement between the parties, and it belongs to the tribunal judiciaire for the whole range of actions founded on Articles L 145-1 to L 145-60 of the Commercial Code (C. org. jud. Art. R 211-3-26, 11° and R 211-4, 2°).

The Tribunal de Commerce: Residual Jurisdiction

The exclusive jurisdiction of the tribunal judiciaire over statute-based disputes displaces the tribunal de commerce from those matters entirely. The commercial court retains a residual jurisdiction for disputes concerning a commercial lease that are grounded purely in the general law of obligations, where both landlord and tenant are merchants (C. com. Art. L 721-3). A non-merchant claimant has the option of bringing such a claim before either court.

The Juge des Référés: Urgent Interim Measures

The president of the tribunal judiciaire sitting in summary proceedings (référé) has jurisdiction within the limits of Articles 834 and 835 of the Code of Civil Procedure. Main powers exercised in the commercial lease context include: finding that a resolutory clause has been acquired or suspending its effects by granting the tenant a grace period (under Art. L 145-41), where there is no serious dispute as to the breach (Cass. 3e civ. 18-12-1991); ordering a mesure d'instruction; authorising landlord access to the premises during a pending rent revision; and ordering eviction of persons occupying without title.

The juge des référés cannot pronounce the resiliation of a lease (Cass. 3e civ. 20-12-2018) and has no power to forfeit the tenant's right to an eviction indemnity or right of continued occupation (Cass. 3e civ. 15-12-2021). Where the underlying dispute on the merits would fall within the jurisdiction of the juge des loyers, the juge des référés' general summary jurisdiction yields to the juge des loyers' specialised role.

The Expertise In Futurum (Pre-Trial Expert Appointment)

Under Article 145 of the Code of Civil Procedure, a party may ask the juge des référés to appoint an expert before any proceedings, to preserve or establish evidence. In commercial lease disputes this is most commonly used to evaluate eviction and occupation indemnities after a congé with refusal of renewal (Cass. 3e civ. 18-12-2002 n° 01-14.202). The potential dispute must already exist on the day the judge rules (Cass. 3e civ. 8-4-2010 n° 09-10.226). It cannot be obtained before the congé has been served or where no right of option has yet been exercised: pre-congé applications are inadmissible for want of a potential dispute (Cass. 3e civ. 16-4-2008 n° 07-15.486). Similarly, the application cannot be entertained once proceedings on the same subject are already pending before the substantive court (Cass. 2e civ. 16-7-1992).

Territorial Jurisdiction

For the juge des loyers and for the tribunal judiciaire exercising its exclusive statute-based jurisdiction, the territorially competent court is the one for the place where the property is situated (C. com. Art. R 145-23 al. 3). This rule cannot be overridden by a clause attributing jurisdiction to another court in a lease between a merchant and a non-merchant (CA Paris 30-3-2022). For leases between two merchants, a jurisdiction attribution clause is valid under Article 48 of the Code of Civil Procedure, provided it is specific and clearly visible (CA Paris 21-6-2001 ; CA Paris 24-10-2024). This does not extend to non-merchant parties.

The Mandatory Preliminary Mémoire Before the Juge des Loyers

Proceedings before the juge des loyers commerciaux for rent-fixing are governed by a special mémoire procedure under Articles R 145-23 to R 145-33 of the Commercial Code. Legal representation by a lawyer (ministère d'avocat) is mandatory for proceedings commenced since 1 January 2020 (C. com. Art. R 145-29). A preliminary mémoire must be served before any application to the court in three situations: following a tenant's renewal request; following a landlord's congé with offer of renewal; and following a request for triennial legal revision of the rent (Cass. 3e civ. 26-1-2017 n° 16-10.304).

Failure to serve the preliminary mémoire before seizing the juge des loyers gives rise to an inadmissibility (fin de non-recevoir) that cannot be remedied after the fact (Cass. 3e civ. 8-2-2024 n° 22-22.301). This is a strict rule: even where parties are sent back to the juge des loyers following a ruling of incompetence by another court, they must serve a fresh mémoire before proceeding (Cass. 3e civ. 14-9-2011).

Form, Content, and Service of the Mémoire

The preliminary mémoire must be served by lettre recommandée avec accusé de réception (recorded delivery) and must be signed by the parties' lawyers (C. com. Art. R 145-26). It must be served separately on each defendant: a single mémoire addressed collectively to multiple landlords or multiple tenants is not sufficient (Cass. 3e civ. 3-7-2013 n° 12-13.780). Service by acte extrajudiciaire (bailiff service) is also valid (Cass. 3e civ. 16-10-2013 n° 12-19.352).

This article is for general information and educational purposes only. It does not constitute legal advice. Laws may have changed since publication. Always seek qualified French legal advice before commencing or defending commercial lease proceedings.