In the judicial arena, the State has a single representative: the State Judicial Agent (AJE). This legal representative, often unknown to the general public, has specific prerogatives while being subject to ordinary law. The AJE's power of settlement is a strategic tool for resolving disputes involving the State, particularly those relating to the State responsibility for failings in the justice systemThis avoids lengthy and costly procedures.
1. Specific rules enforceable by the State
The four-year limitation period: a time shield
For avoid the pitfalls that can derail legal actionFor example, it is crucial to be aware of specific rules such as the four-year statute of limitations. The State has a special four-year limitation period for its debts. Article 1 of law no. 68-1250 of 31 December 1968 stipulates that claims against the State that have not been paid within four years are time-barred. The starting point for this limitation period has evolved through case law.
The Court of Cassation changed its position in 2001: "the forfeiture by the State of the claim brought against it begins to run on the first day of the year in which the event giving rise to the alleged damage occurred". (Cass., ass. plén., 6 July 2001, no. 98-17.006).
This limitation period may be interrupted by any request for payment or claim addressed to the administration concerning the event giving rise to the claim, its existence or the amount of the claim. A simple letter may suffice, as the Court of Cassation has pointed out (Civ. 1re, 28 May 2008, no. 06-21.042).
Declining jurisdiction: redirecting litigation
In order to direct your action properly and avoid procedural pitfalls, it is essential to understand the limits of AJE's legal mandate and specific situations where its jurisdiction is excluded. When the Administration considers that a dispute falls within administrative rather than judicial jurisdiction, it may initiate a positive conflict procedure. The declination of jurisdiction is the document that initiates this procedure, sent by the prefect to the clerk of the court's office.
This procedure may be used before any court of first instance or appeal, but not before the Cour de cassation. It must be initiated before any judgment on the merits or final decision on jurisdiction.
Filing of appeal
Decree no. 80-367 of 19 May 1980 provides the State with financial protection. When a public body appeals to the Court of Cassation against a ruling against it, the First President of the Court of Appeal may make enforcement of the ruling subject to the provision of a guarantee. This measure protects the State against recovery difficulties if the Court of Cassation overturns the ruling.
Enforcement of court rulings
Enforcement proceedings cannot be brought against the State because its assets cannot be seized. A summons to pay sent to AJE is therefore ineffective. Article 650 of the Code of Civil Procedure stipulates that the costs of unnecessary actions are to be borne by the bailiffs who carried them out.
2. The role of the State in the procedure
Despite these prerogatives, the State remains subject to the same procedural rules as any other litigant.
In criminal matters
The State, represented by the AJE, has the same rights as any other civil party. It must bring its civil action before the public prosecutor (article 421 of the Code of Criminal Procedure).
Law no. 2006-1640 of 21 December 2006 amended article 475-1 of the Code of Criminal Procedure, enabling third-party payers, including the State, to obtain reimbursement of costs not included in the legal costs.
In civil matters
The State is treated in the same way as the other parties. In disputes involving compensation for personal injury, the AJE obtains compensation up to the limit of the indemnity payable by the third party (article 31 of law no. 85-677 of 5 July 1985).
Since 2006, the State no longer has a preferential right over victims. It only receives additional compensation if the debt owed by the party responsible has not been fully absorbed by the priority settlement with the victim.
3. AJE's settlement power
To better understand the framework within which the AJE exercises its rights and its power of transaction, it is useful to take a closer look at the following points its essential missions and organisation. The public authorities strongly encourage settlements as an alternative means of resolving disputes. The Prime Minister's circular of 6 April 2011 emphasises the importance of this mechanism for settling disputes amicably.
Transactional skills
The jurisdiction of the AJE varies according to the stage of the dispute:
- At the pre-litigation stage: each minister is responsible for matters falling within the remit of his or her department
- For claims in excess of €76,000: the AJE is authorised to reach a settlement
- As soon as proceedings are initiated: the AJE has sole jurisdiction, in collaboration with the liquidating minister
Practical benefits of the transaction
The transaction has a number of advantages:
- Speeding up the settlement of disputes
- Improving administrative efficiency
- Reduced litigation costs (lawyers' fees, expert appraisal costs)
- Reduction in interest on late payments
- Improving the Administration's image
Preferred areas of transaction
The Badinter Act (Law no. 85-677 of 5 July 1985) makes personal injury road traffic accidents a particularly favourable area for settlement. The expert medical report facilitates negotiation by providing an objective basis for assessment.
Litigation relating to malfunctions in the public justice system (article L. 141-1 of the Code of Judicial Organisation) and compensation for pre-trial detention (article 149 of the Code of Criminal Procedure) also lend themselves well to this approach.
4. Service and enforcement of decisions
The enforcement of court rulings follows specific rules depending on the nature of the dispute and the position of the State.
Before the criminal courts
When the AJE has a claim to assert, service varies according to the type of decision:
- For decisions on public and civil proceedings: the public prosecutor serves decisions rendered in absentia.
- For decisions ruling solely on civil interests: the AJE must have all decisions served.
Once the decision has been served, the AJE notifies the public accountant responsible for collection.
Before the civil courts
When the State is the plaintiff and wins the case, AJE has its lawyer serve the decision, unless the opposing party expressly agrees.
In the case of judgements deemed to be contradictory, notification must be made within six months, failing which the judgement is null and void (article 478 of the Code of Civil Procedure).
Collection and payment
AJE never enforces decisions itself. For claims against the State :
- In criminal cases: recovery is carried out by the accounting officer responsible for the jurisdiction of the court.
- In civil matters: recovery is handled by the accountant of the debtor's place of residence
In the case of sums owed by the State, payment is made by the ministry concerned. Decree no. 2008-479 of 20 May 2008 sets a deadline of two months from notification for payment to be made.
As you would expect, litigation involving the State involves some very specific technical issues. A specialist lawyer can help you to understand these specific rules and to benefit from a expert support in your disputes with the StateWhether you are taking action against the State or are the victim of damage for which the State is liable. Our firm has expertise in these complex procedures and can assist you at every stage, whether in litigation or through settlements.
Sources
- Law no. 68-1250 of 31 December 1968 on the limitation of claims against the State
- Law no. 85-677 of 5 July 1985 (Badinter Law)
- Article L. 141-1 of the Code of Judicial Organisation
- Article 149 of the Code of Criminal Procedure
- Decree no. 80-367 of 19 May 1980 on the provision of guarantees
- Prime Minister's circular of 6 April 2011 on the development of the use of transactions
- Decree no. 2008-479 of 20 May 2008 on the enforcement of financial penalties
- Cass. plenary session, 6 July 2001, no. 98-17.006
- Civ. 1st, 28 May 2008, no. 06-21.042
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