When a court ruling affects your rights even though you were not a party to the proceedings, the third party is your legal shield. This recourse is particularly strategic in company law, where the interests of shareholders and creditors can be adversely affected by judgments handed down without their participation.
1. A legal mechanism at the service of third parties
Third-party proceedings allow you to challenge a judgement made between other people when it is prejudicial to your rights. Article 582 of the Code of Civil Procedure defines it as a remedy that "tends to have a judgment retracted or reformed in favour of the third party challenging it".
In company law, this question takes on a singular dimension. Shareholders and creditors often find themselves in an ambiguous position: neither fully involved in, nor completely excluded from, decisions affecting the company.
2. Can a partner file a third-party objection?
The principle of representation
Traditionally, the courts considered that partners were represented by the company director in disputes involving the company. The Court of Cassation thus held that "the shareholders are represented by the company officers" (Com. 28 Feb 1972, no. 69-13.325). This representation therefore closed the door to third-party proceedings.
A salutary reversal in case law
Developments in fundamental rights have changed the situation. On 19 December 2006, the Commercial Chamber made a major about-turn (Com. 19 Dec. 2006, no. 05-14.816). The right of access to the courts, guaranteed by article 6 of the European Convention on Human Rights, prompted this development.
Current opening conditions
From now on, the shareholder may file a third-party objection if he can demonstrate:
- Fraudulent exercise of rights, or
- The existence of a means of its own
The "specific plea" is understood as an argument relating to the personal situation of the shareholder. According to a recent decision, "infringement of the status of shareholder and of the pre-emptive right to subscribe constitutes a specific plea" (Com. 31 March 2021, no. 19-14.839).
3. Distinction by type of company
Partners of companies with indefinite risk
Third-party proceedings are more widely accepted in the case of SCI partners, who are indefinitely liable for the company's debts. The Commercial Chamber has clearly validated this for challenging the opening of a judicial liquidation (Com. 26 June 2010, no. 09-14.241).
The Third Civil Chamber confirmed this more recently: "the partner of a non-trading company, sued for payment of the company's debts, is entitled to lodge third-party proceedings against the decision ordering the company to pay" (Civil Chamber 3e, 23 March 2023, no. 21-18.120).
Members of limited-risk companies
After a long period of uncertainty, it is now a foregone conclusion that third-party proceedings may be brought against partners in limited liability companies. The aforementioned decision of 31 March 2021 clarified that "it is less the form of the company that matters than the effect of the decision on the fate of the partner".
4. Third-party opposition by the creditor
Controlled recourse in insolvency proceedings
In terms of business difficulties, article L. 661-3 of the French Commercial Code specifically provides for third-party proceedings against decisions adopting a safeguard or recovery plan.
But creditors face a twofold difficulty:
- In principle, they are represented in the collective proceedings
- They must provide proof of their own means or fraud.
The Court of Cassation has set strict requirements: "the plea that the safeguard plan failed to comply with the obligation to provide for the settlement of all declared claims, even if contested, does not constitute a plea in law" (Com. 21 Oct. 2020, no. 18-23.749).
The case of the mortgagee
The situation of the mortgagee deserves attention. According to the Cour de cassation, "mortgagees are represented by their debtors within the limits of their rights and obligations" (Civ. 3e, 18 May 2017, no. 16-12.169). His ability to file third-party proceedings is therefore limited.
5. Practical aspects: deadlines and procedures
Strict deadlines to be met
The ordinary time limit is thirty years (article 586 of the CPC), but there are special time limits:
- Two months if the third party has been notified of the judgment
- Ten days for collective proceedings (article R. 661-2 of the French Commercial Code)
Precise formalities
In business distress cases, third-party proceedings must be filed by declaration at the court registry, failing which they will be inadmissible (Com. 17 Feb. 2021, no. 19-16.470). Alternative referral methods (by registered letter or via the Internet) are excluded.
6. The community of interest issue
The "community of interests" between the third party opponent and a party may compromise his third-party opposition. According to the First Civil Chamber, "an obvious community of interests" may prevent an action from being brought if the third party "was in a position to assert its rights" in the initial proceedings (Civil Chamber 1st, 5 March 2008, no. 07-11.667).
This concept requires a detailed analysis of the relationships between the various players.
As a partner or creditor, you are not condemned to passively suffer the effects of a court decision in which you had no part. Third-party opposition is a strategic lever for preserving your rights.
Our firm regularly assists partners and creditors with these technical procedures. We have developed a rigorous methodology for identifying the "own resources" likely to pave the way for effective third-party opposition.
Contact us for a personalised analysis of your situation and possible litigation strategies.
Sources
- Code of Civil Procedure, articles 582 to 592
- French Commercial Code, Articles L. 661-2, L. 661-3 and R. 661-2
- Court of Cassation, Commercial Division, 19 December 2006, No. 05-14.816
- Court of Cassation, Commercial Division, 26 June 2010, No. 09-14.241
- Court of Cassation, Commercial Division, 31 March 2021, No. 19-14.839
- Court of Cassation, 3rd Civil Chamber, 23 March 2023, no. 21-18.120
- Court of Cassation, Commercial Division, 21 October 2020, no. 18-23.749
- Court of Cassation, 3rd Civil Chamber, 18 May 2017, no. 16-12.169
- Court of Cassation, 1st Civil Division, 5 March 2008, no. 07-11.667
- DEHARO Gaëlle, "Tierce opposition", Répertoire de procédure civile, Dalloz, November 2023
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