The State as a subject of law: when the Judicial Agent of the State defends public interests

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When the State enters into a legal relationship with a private person, it becomes a a subject of law like any other. This special position requires appropriate representation before the courts. This is the role of the State's Judicial Agent (AJE), whose legal mandate dates back to 1790 and who has been entrusted with the essential task of representing the State in all legal disputes of a pecuniary nature.

The State party to the civil proceedings

Although it is a public authority, the State enters into contracts on a daily basis, manages property and acts as an employer. These activities give rise to private law disputes, which are dealt with by the courts.

Economic and financial litigation

In economic terms, AJE intervenes in particular in challenges to assignments of receivables (Dailly Act), guarantee calls in construction contracts, and cases of unlawful right of way.

For example, in a recent judgment of the Albi Judicial Court (10 September 2019, RG no. 18/00291), the State had to respond to a warranty claim concerning a construction defect on a public building. AJE represented the State in this dispute, in which the rules of private law were fully applicable.

Labour law and social security

AJE also defends the State as an employer for its private-law contractual employees. The Papeete Labour Court ruled on several cases in 2019 (RG no. 18/00301 and RG no. 19/00068) in which the State was sued in its capacity as a private employer.

In the area of social security, the AJE is involved in the payment of social security contributions for casual workers, as well as in disputes relating to the employer's inexcusable fault. The Paris Court of Appeal (14 June 2019, RG no. 14/11246) dealt with one such dispute concerning the payment of social security contributions by the State.

Liability for damage caused by a vehicle

One of the main areas in which the AJE intervenes concerns accidents involving State vehicles. Act no. 57-1424 of 31 December 1957 gives the courts exclusive jurisdiction to deal with these disputes, substituting the liability of the State for that of its employees, and applies to all types of vehicle (land, sea and air).

This legislation is based on the desire to unify traffic accident litigation while relieving the administrative courts. For the litigant, this provision is favourable as it guarantees compensation by a solvent public entity.

The requesting State in criminal matters

The State as a social security body

When its employees suffer accidents in the course of their work or occupational illnesses, the State covers medical expenses and compensation. As a third-party payer, it can then take action against those responsible to obtain reimbursement of the sums paid.

Article 25 of Law No. 2006-1640 of 21 December 2006 amended the system of subrogation by third-party payers by introducing three major reforms:

• Recourse on a loss-by-loss basis
• A preferential right for partially compensated victims
• Limiting recourse to covered losses

In a number of rulings handed down in May and June 2009, the Court of Cassation ruled that disability benefits can be offset not only against loss of earnings but also, for the excess portion, against permanent functional impairment. This was followed by case law confirming that early retirement pensions can be set off against economic loss only (Civ. 2e, 25 October 2012, no. 11-24.029).

The State as direct victim of an offence

Bringing a civil action

The State can also be direct victims of crime and exercise the rights accorded to civil parties. In particular, it intervenes in cases of misappropriation of public funds, damage to its property or theft of works of art belonging to it.

In cases of damage to public roads, the AJE can bring a civil action for compensation. The police courts have jurisdiction to order compensation for damage caused to the public highway, at the request of the public prosecutor.

Recognition of the State's moral prejudice

Case law has gradually recognised the existence of non-material damage for the State. In a ruling dated 10 March 2004, the Court of Cassation recognised that the State could claim compensation for non-material damage resulting from offences committed by its employees, where such actions "bring discredit on the entire civil service and weaken the authority of the State" (Crim. 10 March 2004, no. 02-85.285).

This development in case law has been confirmed by subsequent decisions, such as the Lyon Court of Appeal's decision of 25 May 2016 (RG no. 16/00420) concerning the misappropriation of funds by a registrar-regisrar. The court recognised non-material damage resulting from damage to the credit of the State and the judicial authority.

Misappropriation of European funds

In the case of misappropriation of European funds, the AJE is competent to take action before the French courts. European legislation, in particular Article 280 of the Treaty establishing the European Community, requires Member States to take the same measures to combat fraud against the financial interests of the Union as they do for their own interests.

In a case heard by the Aix-en-Provence Court of Appeal (25 October 2011, RG no. 11/00376), the AJE sued as a civil party to obtain compensation for the financial loss suffered by the State as a result of the misappropriation of European subsidies (ERDF funds).

Strategies for litigants

1. Identifying the right contact In disputes with the State involving a pecuniary claim, the AJE is the exclusive legal representative, failing which the proceedings will be null and void.
2. Assessing the applicable prescription The State benefits from a four-year statute of limitations for the payment of its debts, which reduces the time taken to take action compared with ordinary law.
3. Examine transaction possibilities AJE has a transaction power once proceedings have been initiated. This often results in a quicker and less costly settlement.
4. Anticipating specific procedural requirements the rules governing the enforcement of judgments against the State differ from ordinary law, in particular the fact that it is impossible to resort to compulsory enforcement.

Litigation with the State has a number of technical features that can be confusing. A legal supportThis ensures that specific formalities and deadlines are complied with right from the start of the procedure. Never forget that behind the State, an abstract entity, there is a specific representative whose identity conditions the very validity of the action.

Sources

• Law no. 57-1424 of 31 December 1957 on litigation relating to damage caused by a vehicle
• Article 38 of Act No. 55-366 of 3 April 1955 on the development of appropriations for expenditure by the Ministry of Finance
• Law no. 2006-1640 of 21 December 2006 (article 25) modifying the subrogatory recourse of third-party payers
• Case law: Crim. 10 March 2004, no. 02-85.285; Civ. 2e, 25 October 2012, no. 11-24.029
• Tribunal judiciaire d'Albi, 10 September 2019, RG n° 18/00291
• Paris Court of Appeal, 14 June 2019, RG no. 14/11246
• Lyon Court of Appeal, 25 May 2016, RG no. 16/00420
• Aix-en-Provence Court of Appeal, 25 October 2011, RG no. 11/00376

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