The legal mandate of the State's Judicial Agent: who can defend the State in court?

The French State, a major player in the legal world, regularly finds itself involved in litigation. For an in-depth understanding oforigin and essential tasks of the State Judicial AgentIn the case of a claim, it is crucial to know who can represent it before the courts. The answer is not left to chance: the Agent judiciaire de l'État (AJE) has a legal monopoly on representation, instituted by article 38 of the law of 3 April 1955. This specific legal mechanism deserves to be understood by both practitioners and litigants faced with a dispute with the State.

An exclusive representation monopoly

The legal mandate gives the AJE an exclusive monopoly to represent the State before the courts. Case law has clearly established this: "the State could not, in proceedings to have it declared a debtor for reasons unrelated to taxes and property, be legally represented by a civil servant other than the judicial agent of the Treasury, the only person authorised to do so". (Civ. 2e, 25 Oct. 1995, no. 94-11.930, Bull. civ. II, no. 267).

This monopoly, which is a matter of public policy, is sanctioned by the nullity of any proceedings that do not comply with this rule. It should not be confused with the specific rules governing the responsibility of judges and magistrates. No administration can therefore replace AJE in representing the State before the courts.

In practice, this means that a litigant wishing to sue the State must direct his or her action against the AJE and not against the ministry concerned or the administration in question.

Timing and methods of intervention

AJE's involvement is governed by different rules depending on the nature of the proceedings:

In civil matters

The AJE is remarkably flexible, since it can intervene at any stage of the proceedings, including on appeal or in cassation. The Court of Cassation confirmed this in a 1966 ruling concerning a dispute over a civil servant's entitlement to death benefits (Civ. 2e, 7 July 1966, Bull. civ. II, no. 749).

This flexibility makes it possible to regularise an initially misdirected procedure without obliging the applicant to reassign the State's legal representative.

In criminal matters

The situation is radically different. The AJE is subject to the common rules governing civil actions before the criminal courts. They must be joined as a civil party "at the latest before the public prosecutor's submissions on the merits" (Crim. 1 March 1990, no. 88-86.692). No preferential treatment is granted.

Appeal procedures and their specific features

There are a number of specific features to the use of appeals by the AJE:

1. The time limits for appealing against the AJE only run if the notification was sent to the AJE personally. Notification to the Ministry concerned is ineffective (Soc. 31 March 2003, no. 02-30.765, Bull. civ. V, no. 123).
2. The AJE, even if it was not a party to the initial proceedings, may appeal if it has an interest in doing so. The Court of Cassation has thus ruled that an appeal lodged by the AJE against a decision holding the State liable for the consequences of an inexcusable fault without it having been able to be legally represented is admissible (Soc. 17 Apr. 1996, no. 94-15.365, Bull. civ. V, no. 166).
3. Only the AJE may validly waive the right to appeal, without being bound by the undertaking of an administrative authority (Aix-en-Provence, 25 May 1988).

A precisely defined area of competence

It is important to note that exceptions to the legal mandate of the judicial agent of the State These include tax, property and customs matters. That said, the legal mandate of the AJE applies only to actions brought before the courts of the judicial order and seeking to have the State declared a creditor or debtor for causes unrelated to taxes and property.

Two essential conditions therefore limit its jurisdiction:

Exclusively judicial jurisdiction

The AJE only acts before the courts, whether judicial tribunals, industrial tribunals, commercial tribunals, courts of appeal or the Court of Cassation.

According to case law, this jurisdiction even extends to foreign courts, provided that the dispute is between private individuals and the French State concerning acts of private law.

An action for damages

The AJE only has jurisdiction over actions seeking, primarily, a declaration that the State is a creditor or debtor. This condition excludes :

• Requests for expert appraisal alone, without provision (Civ. 1re, 27 Feb 1990, no. 87-15.335)
• Requests for periodic penalty payments made in isolation (Civ. 2e, 16 July 1992, no. 91-11.813)
• Claims under Article 700 of the Code of Civil Procedure considered as ancillary (Civ. 2e, 25 Feb 2010, no. 08-21.474)
• Precautionary measures (Civ. 2e, 14 Apr. 1983, no. 79-14.008)

This restriction explains why the Court of Cassation ruled that the AJE did not have to be involved in summary proceedings aimed exclusively at requesting an expert opinion (Rennes, 5 June 2006, RG no. 06/00641).

What is in it for the litigant?

For any dispute with the State before a court of law involving a principal pecuniary claim :

1. The summons must be addressed to the Agent judiciaire de l'État, domiciled in Paris (13e).
2. To avoidinadmissibility of your actionIt is crucial to know that any procedure that disregards this monopoly will be null and void.
3. AJE does not represent the State in tax, customs or property disputes
4. Its jurisdiction does not extend to disputes before the administrative courts.

In these complex circumstances, the expertise of a lawyer is essential to avoid procedural pitfalls and secure your action. Our firm can support you in your legal action against the State by scrupulously respecting these rules of competence. Do not hesitate to consult us before starting any procedure.

Sources

• Article 38 of Act No. 55-366 of 3 April 1955 on the development of appropriations for expenditure by the Ministry of Finance
• Civ. 2e, 25 October 1995, no. 94-11.930, Bull. civ. II, no. 267
• Civ. 2e, 6 January 1965, no. 59-60.611, Bull. civ. II, no. 5
• Crim. 1st March 1990, no. 88-86.692
• Soc. 31 March 2003, no. 02-30.765, Bull. civ. V, no. 123
• Civ. 1st, 27 February 1990, no. 87-15.335, Bull. civ. I, no. 56
• Civ. 2e, 16 July 1992, no. 91-11.813, Bull. civ. II, no. 207
• Civ. 2e, 10 December 1986, no. 85-16.359, JCP 1987. IV. 60
• Civ. 2e, 14 April 1983, no. 79-14.008, Bull. civ. II, no. 91