Do you feel that you have suffered an injustice, a loss or a violation of your rights? Naturally, you may be thinking of going to court to obtain compensation or put an end to a harmful situation. But the mere fact that you think you are "right" on the merits is not enough to guarantee that your case will be heard by a court. Before even delving into the details of your dispute, the judge will first check whether your approach meets certain preconditions. This is the crucial admissibility stage.
To prevent the courts from being clogged with unfounded, misdirected or premature claims, French law requires anyone wishing to take legal action to demonstrate that they meet the conditions for doing so. If these conditions are not met, the judge will declare your action inadmissible, without even having to consider your arguments on the merits. This is a kind of essential filter.
This article explores these fundamental conditions of admissibility. At the heart of these requirements is the notion of interest to actAccording to the law and case law, this must be legitimate, serious, born, current, direct and personal. What does this mean in practical terms for you?
The fundamental requirement: an interest in acting
Article 31 of the Code of Civil Procedure sets out the principle: "the action is open to all those who have a legitimate interest in the success or rejection of a claim...".. The interest in taking action is quite simply the benefit, the advantage (not necessarily financial) that you would gain if the judge were to grant your request. Without this concrete interest, why take legal action? This requirement makes it possible to rule out actions that have no tangible purpose for the plaintiff. But this interest must have several cumulative qualities.
A "legitimate" interest
Your action must comply with the law and public policy. A claim based on an unlawful situation or seeking to obtain a result prohibited by law will be deemed inadmissible.
- For example, you cannot ask the judge to force the performance of a contract whose purpose is illegal (sale of prohibited products, fraudulent agreement, etc.).
- Similarly, if you have suffered harm as a result of an unlawful activity in which you were involved, your claim for compensation may be deemed inadmissible because your interest is not considered legitimate.
- The notion of "good morals" is also sometimes invoked, although its importance tends to decline as society evolves. It may still play a very marginal role in certain very specific family contexts.
In addition to compliance with the law, the legitimacy of the interest also implies a certain degree of "legitimacy". consistency in your approach. The law disapproves of the contradictory attitude that would consist of supporting one thing one day and its opposite the next, with the aim of harming others. This is the principle known as "estoppel" or, more simply, the prohibition on contradicting oneself to the detriment of others (non venire contra factum proprium). If your legal action is based on a position that completely contradicts your previous behaviour, and this contradiction causes harm to your adversary who relied on your initial attitude, your action may be declared inadmissible.
A "serious" interest
The interest in bringing an action must also be serious. This is intended to rule out claims that are purely fanciful, vexatious or whose stakes are so obviously derisory as not to justify mobilising the legal system. It is not a question of preventing actions for small amounts - a dispute over a small sum may perfectly well justify an action if it is based on a real right - but of avoiding actions that are clearly a joke or an abuse.
Beware, however, that "serious" is not a question of quantity. Even a seemingly minor loss can justify an action if it corresponds to a real infringement of a right. The classic example is encroachment on real property: case law consistently holds that even an encroachment of a few centimetres on neighbouring land constitutes an infringement of the right of ownership justifying an action for demolition, without the victim owner having to prove any particular harm other than the encroachment itself. The defence of a fundamental right such as property is always considered to be a serious interest.
The right time to act: "born and present" interest
Taking legal action is also a question of timing. Your interest must be "born and present" at the time you take your case to court. This means that you should act neither too early nor too late.
Premature claims: don't act too soon
Your action will be inadmissible if, at the time you bring it, the right you are claiming has not yet fallen due or if the disturbance you are complaining of has not yet occurred.
- You cannot sue for payment of an invoice before its due date.
- In principle, you cannot ask a judge to settle a dispute that does not yet exist, or to guarantee you against a purely hypothetical risk. The judge is not there to give advice about the future.
A frequent cause of inadmissibility for prematurity is the failure to comply with a mandatory prior conciliation or mediation clause. Many contracts (in business, construction, sometimes leases, etc.) stipulate that the parties must try to settle their dispute amicably, often with the help of a third party (conciliator, mediator), before to be able to go to court.
- Capital importance : If such a clause exists and you take the matter directly to court without having complied with this preliminary stage and without being able to prove that there was a genuine attempt to implement the clause, your action will be declared inadmissible. The case law of the Court of Cassation (in particular a decision of the Mixed Chamber dated 14 February 2003) is very strict on this point.
- Serious consequences: This inadmissibility cannot generally be "rectified". In other words, if you have gone to court too early, you will not be able to "make up" for the oversight by launching conciliation after the event. Your action will be dismissed on this ground and, if it is still possible, you will have to start all over again once you have complied with the clause (which may pose a problem if a limitation period has expired in the meantime). You should therefore be extremely careful when dealing with these clauses.
However, there are exceptions where you can act "ahead of the game":
- The declaratory actions make it possible to ask the court to formally establish the existence or extent of a right or legal situation, even in the absence of an immediate dispute, in order to prevent a future challenge or remove a prejudicial uncertainty.
- The conservation actions are aimed at taking urgent measures to safeguard a threatened right (for example, obtaining a precautionary seizure of the assets of a debtor whose insolvency is feared, even before a final judgement has been handed down).
Late claims: don't act too late
This is undoubtedly the most common and most formidable pitfall: the expiry of time limits for bringing an action. Every legal action is subject to a time limit. limitation period or a foreclosure period. Acting after the expiry of this period will result in the action being irremediably inadmissible. You permanently lose your right to take legal action for this claim.
- The diversity and complexity of deadlines: There is no single time limit. The ordinary time limit for personal or movable actions is 5 years (Article 2224 of the Civil Code), but there are a multitude of specific time limits, often much shorter, in almost all areas of law:
- Commercial law (sometimes 1 year, 2 years...)
- Construction law (guarantee of perfect completion: 1 year; two-year guarantee: 2 years; ten-year guarantee: 10 years)
- Consumer law (guarantee of conformity: 2 years)
- Insurance law (often 2 years)
- Employment law (various deadlines for disputing dismissal, claiming wages, etc.)
- Property law, family law, etc.
- The starting point of the period : Not only does the duration vary, but the starting point of the period (the day from which it begins to run) is also a complex issue, depending on the nature of the action and the circumstances (the day of the harmful event, the day of knowledge of the event, the day of consolidation of the damage, etc.).
- Suspension and interruption : To complicate matters further, certain events can suspend (stop temporarily) or interrupt (reset to zero) the course of the prescription.
The advice is therefore imperative and absolute: As soon as you consider taking legal action, or even as soon as you become aware of a situation that could lead to legal action, the initial emergency is to check the applicable limitation or foreclosure period. Given the complexity of the rules, it is strongly recommended that you consult a lawyer immediately to clarify this point. A mistake about the time limit is often fatal and cannot be forgiven.
Finally, an action may also be considered late if, between the time when the right to act arose and the time when the action is brought, the dispute itself has disappeared. For example, if you take action to request the removal of an illegal clause in a standard contract, but the professional has already removed this clause from his contracts before you take action, your request could be deemed irrelevant and therefore inadmissible.
Acting for oneself: "direct and personal" interest
The last major condition of admissibility relates to the person acting: in principle, you must be acting to defend your own interestsand not someone else's. It is the requirement of an interest direct and personal.
This principle derives from the traditional adage "No one pleads by attorney", which means that, unless you give a specific mandate to someone to represent you (such as a lawyer), you cannot instruct another person to act in your place to defend your interests, nor can you act yourself to defend the exclusive interests of a third party. You must be the one who is personally and directly concerned by the case. The benefit you expect to derive from the court decision must accrue to you.
This condition has important practical consequences:
- You cannot go to court because your neighbour is suffering a disturbance, even if it indirectly annoys you. It is up to your neighbour to take action, if he so wishes.
- Parents generally cannot take legal action on behalf of their adult children (except in cases of legal incapacity). It is up to the adult child, if he or she deems it necessary, to initiate the proceedings himself or herself.
- If you are a partner in a company, you cannot personally take legal action to obtain compensation for a loss that has been caused by to the company (for example, by an unfair competitor or a bad-paying customer). It is up to the company itself, represented by its legal directors, to take action. Your personal loss (the fall in value of your shares, for example) is only indirect.
It is essential to identify who is the real owner of the right or loss in order to determine who has standing to sue. Misidentifying the rightful claimant is a frequent cause of inadmissibility.
Of course, this principle of direct and personal interest has its limits. important exceptionsThese "powers to act" (such as oblique action, derivative action, etc.) are provided for by law, and in certain cases authorise a person or organisation to act on behalf of others. These "empowerments to act" (such as oblique action, action ut singuli or the actions of certain unions and associations) will be the subject of our next article.
Checking whether your proposed legal action meets all these conditions for admissibility - legitimate and serious interest, born and present interest (watch out for time limits!), direct and personal interest - is an absolutely crucial step. A rigorous legal analysis of your situation by a professional can prevent you from embarking on proceedings that are doomed to failure for purely procedural reasons, and enable you to build a solid legal strategy.
For a personalised analysis of your case and to assess the admissibility of your potential claim, our firm is at your disposal.
Sources
- Code of civil procedure: Articles 31, 122, 125, 126, 750-1.
- Civil Code: Articles 1302, 1355, 1965, 2052, 2224 et seq.
- Case law relating to prior conciliation clauses (in particular Cass. mixte, 14 February 2003).
- Case law relating to res judicata and conditions of standing.
EN 
FR