While the Agent judiciaire de l'État (AJE) has a monopoly on representing the State before the judicial courts, particularly in cases involvingengage the responsibility of the State and magistratesHowever, there are important limits to this principle. In certain areas, the representation of the State is entrusted to other entities. These exceptions may go unnoticed by litigants, with sometimes critical consequences for their proceedings.
1. Exceptions provided for in article 38 of the law of 3 April 1955
Tax matters
Article 38 explicitly excludes AJE from tax litigation, thereby defining one of the exceptions to its legal mandate. The tax authorities have exclusive jurisdiction in this area, both for disputes relating to the tax base and for tax collection.
However, a ruling by the Court of Cassation (Com. 29 Nov. 1988, no. 86-17.921) specifies that the tax authority's accountant is not empowered to take certain actions indirectly related to collection. Article 26 of law no. 86-1318 of 30 December 1986, codified in article L.252 of the Livre des procédures fiscales, clarified this situation by stating that ". actions indirectly linked to debt recovery […] are carried out by the accountants referred to in Article L. 252 of the Book of Tax Procedures" .
There is one important nuance: the AJE retains jurisdiction over liability claims against the State arising from a fault committed by a tax administration official, particularly in the context of enforcement proceedings (Com. 13 Nov. 1973, no. 70-14.374).
State property
In litigation relating to State property, the State Property Department (DIE) is responsible for representation, in accordance with articles R. 2331-1 to R. 2331-3 of the General Code on the Ownership of Public Property.
The DIE is particularly involved in:
- State real estate and movable property not assigned to a service
- Issues relating to the public or private ownership of assets
- Rights in rem in movable or immovable property
- The validity of acquisition, management or disposal agreements
In some cases, the State may be represented alternately by the DIE and the AJE, depending on the nature of the dispute. For example, in a dispute arising from an administrative lease, the AJE is responsible for implementing the lease, while the DIE is responsible for interpreting it.
Customs matters
Article 38 also excludes the AJE from customs disputes. The customs authorities have specific prerogatives in this area.
This delimitation has been clarified by case law. The Court of Cassation, in a decision of the plenary session of 26 March 1999 (No. 95-20.640), ruled that ". Article 26 of the Law of 30 December 1986 applies not only to disputes concerning the assessment and collection of customs duties, but also to liability actions brought by debtors against the State for seizures made in connection with customs offences." .
2. Exceptions provided for in other legislation
Expropriation in the public interest
Article L. 311-1 of the Expropriation Code entrusts the expropriating administration or the Prefect with the task of representing the State in the procedure for setting compensation before the expropriation judge.
However, the AJE retains jurisdiction over certain related issues, such as the award of damages to an expropriated owner where it is impossible to return the property, or compensation for loss of use following the cancellation of a compulsory sale.
Teaching
Article L. 911-4 of the Education Code sets out a special liability regime for members of the public education system. If they are held liable as a result of a harmful act committed by pupils under their supervision, the action is brought against the competent academic authority and not against the AJE.
The text states: " An action for damages brought by the victim [...] shall be brought before a court of law [...] and shall be brought against the competent academic authority." . The limitation period is three years from the date on which the harmful event occurred.
Attachment
The public accountant represents the State in attachment proceedings. Article R. 143-3 of the French Code of Civil Enforcement Procedures requires that "the public accountant shall represent the State. any act of seizure must be notified to the public accountant responsible for the expenditure" .
The AJE is not empowered to challenge the validity of a seizure. It only regains jurisdiction if the garnishee (the State) is itself sued, for example for failing to indicate the amount of money owed to the debtor.
3. Other specific exceptions
Requisition
In the case of compensation for the requisition of goods and services, the action must be brought against the minister who is the beneficiary of the requisition, the authority designated by him or the prefect.
The Second Civil Chamber of the Court of Cassation confirmed this principle in a decision dated 15 September 2005 (no. 03-21.185), overturning a judgment which had declared admissible a claim for compensation brought against the AJE by requisitioned doctors.
Statement of claim
Public accountants are responsible for declaring the State's claims in collective proceedings (receivership or compulsory liquidation).
In a ruling dated 31 January 2017 (no. 15-15.983), the Court of Cassation ruled that ". the accounting officer of a legal person governed by public law [...] has sole authority to declare the claims of that legal person "in the context of collective proceedings.
Heritage protection
Where cultural property is concerned, the division of powers is particularly complex:
- For nullity actions concerning historic monuments, the Minister responsible for Culture is competent.
- For compensation actions in the event of classification, AJE intervenes
- To claim archaeological remains, the regional prefect is empowered to take action
- AJE regains jurisdiction over actions for damages following illegal excavations
4. Practical consequences for litigants
The multiplication of exceptions to the legal mandate of the AJE creates a fragmented legal landscape, which can lead to procedural errors or the inadmissibility of your legal action. For litigants, identifying the right contact person is becoming a challenge. A mistake in the summons can invalidate the proceedings.
Several rulings illustrate the practical difficulties. In a case decided by the Toulouse Court of Appeal (19 April 2011, RG no. 09/04310), the Court set aside a judgment served on the Toulouse treasury, even though AJE had its offices in Paris.
The correct writ of summons must be addressed to the precise body with jurisdiction according to the nature of the dispute. If the litigant hesitates between several grounds, it is sometimes necessary to multiply the summonses to avoid any risk of dismissal.
Practitioners must therefore rigorously analyse the nature of the dispute before taking action against the State. This analysis not only enables them to identify the appropriate contact person, but also the applicable procedural rules, which may vary depending on the entity concerned.
In practical terms, bringing an action against the AJE in a matter falling within the remit of the tax or customs authorities will result in the claim being dismissed. Similarly, referring a dispute to the DIE where the AJE has jurisdiction will result in the claim being dismissed. The limitation periods continue to run despite these procedural errors.
It is essential to understand the specific powers of the AJE, in particular with regard to statutes of limitation and settlements. A misdirected summons cannot be put right if the limitation period has expired. This underlines the importance of correctly identifying, from the outset, the entity competent to represent the State.
Our firm helps litigants to identify precisely the entity authorised to represent the State, depending on the nature of the dispute. Do not hesitate to consult us before commencing proceedings - this first step may determine the outcome of your case. For detailed information, consult our services for disputes against the StateOur expertise includes the precise identification of the entity competent to defend the State, even in cases of exceptions to the AJE mandate.
Sources
- Law no. 55-366 of 3 April 1955, article 38
- Code général de la propriété des personnes publiques, articles R. 2331-1 to R. 2331-3
- Education Code, article L. 911-4
- Code of Civil Enforcement Procedures, article R. 143-3
- Court of Cassation, Com. 29 November 1988, no. 86-17.921
- Court of Cassation, Plenary Session, 26 March 1999, No. 95-20.640
- Court of Cassation, 2nd Civil Division, 15 September 2005, no. 03-21.185
- Court of Cassation, Com. 31 January 2017, no. 15-15.983
- Toulouse Court of Appeal, 19 April 2011, RG no. 09/04310
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