Have you discovered that a court decision affects your rights even though you were not a party to the proceedings? Third-party proceedings could be your solution. This extraordinary remedy allows people who are not involved in the proceedings to challenge a judgment that is prejudicial to them.
Introduction: what is third-party opposition?
Third-party proceedings are defined by article 582 of the Code of Civil Procedure as a remedy that "seeks to have a judgment set aside or amended in favour of the third party challenging it". It calls into question the points judged so that a new decision can be made on the facts and the law.
Classified as an extraordinary remedy under article 580 of the Code of Civil Procedure, third-party proceedings are distinguished from ordinary remedies (opposition and appeal) by their exceptional nature. It coexists with applications for judicial review and appeals to the Supreme Court.
Contrary to what its classification might suggest, article 585 of the Code of Civil Procedure states that "any judgment may be opposed by a third party unless the law provides otherwise". This generous provision opens up the possibility of third-party proceedings, provided that the specific admissibility criteria are met.
Conditions for admissibility of third-party proceedings
Interest in acting
In order to lodge third-party proceedings, you must have an interest. Article 583 of the Code of Civil Procedure is clear: "Any person who has an interest may lodge third-party proceedings, provided that he or she was neither a party nor represented in the judgment that he or she is contesting".
This interest must be :
- Legitimate (in accordance with Article 31 of the Code of Civil Procedure)
- Direct and personal
- Current
Case law gives a broad interpretation of this concept. In a decision of 17 June 2020, the Commercial Chamber of the Court of Cassation specified that it is not necessary to demonstrate actual prejudice; it is sufficient that the judgment is likely to cause such prejudice (Com. 17 June 2020, no. 18-25.262).
The lower courts have full discretion to assess this interest on the day on which they rule (Civ. 2e, 29 Sept. 2022, no. 21-14.926).
Standing to bring third-party proceedings
Having an interest is not always enough. In some areas, the law reserves the right to bring an action to certain people ("designated" actions). For example, in divorce proceedings, third-party proceedings are generally closed because the action is reserved for the spouses.
Jurisprudence has clarified this rule: "the third party opposition remedy is not available when the decision that it seeks to challenge has been rendered following an action that the law reserves to certain persons that it designates" (Civ. 1re, 11 June 1991, no. 89-20.962).
Notable exceptions:
- Parentage (article 324 of the Civil Code)
- Adoption in the event of fraud or deceit (article 353-2 of the Civil Code)
- Nationality (article 29-5 of the Civil Code)
Not to have been a party or represented at the judgment
This is the fundamental condition: the opposing third party must be a genuine stranger to the initial proceedings. They must not have been a party to or represented in the judgment they are challenging.
The concept of representation sometimes poses practical difficulties. Case law has clarified certain points:
- A syndicate of co-owners does not represent the co-owners (Civ. 3e, 28 Jan 2015, no. 13-19.080)
- A purchaser does not represent the seller (Civ. 3e, 23 June 2016, no. 14-25.645)
- An executive who resigns before the commencement of proceedings does not represent the company (Com. 12 May 2015, no. 14-12.483)
In company law, the issue is particularly sensitive. Traditionally, shareholders were considered to be represented by the company's legal representative. However, since an important ruling on 19 December 2006, the Commercial Chamber has accepted that a shareholder may file a third-party objection if he or she alleges fraud against his or her rights or relies on a plea of his or her own (Com. 19 Dec. 2006, no. 05-14.816).
The effects of third-party proceedings
Effect on the contested decision
Third-party proceedings have no suspensive effect (article 579 of the Code of Civil Procedure). However, article 590 allows the court to suspend enforcement of the contested judgment.
If the third-party proceedings are successful, the judgment is retracted or amended, but only on the points that are prejudicial to the third party. Article 591 of the Code of Civil Procedure states: "The decision that upholds the third party objection shall retract or reform the contested judgment only in respect of the points that are prejudicial to the third party objector".
Scope of withdrawal
A crucial point: withdrawal has effect only for the opposing third party. The original judgment retains its effect between the original parties, even on the points that have been set aside (article 591 of the Code of Civil Procedure).
It is this characteristic that leads some authors to doubt whether the third party opposition can be described as a 'means of withdrawal'. It would be more a case of the third party opposing the decision not being able to enforce it.
Important exception: in the event of indivisibility (article 584 of the Code of Civil Procedure), a ruling on third-party proceedings has effect in respect of all the parties to the proceedings.
Limits to the effects of third-party proceedings
Third-party proceedings do not give rise to a new dispute or new claims. The Court of Cassation has reiterated that "the devolutive effect of third-party proceedings is limited to calling into question, in relation to the person lodging them, the points deemed to be criticised by the third-party opponent" (Civ. 3e, 4 March 2021, no. 20-14.195).
Judgments handed down on third-party opposition are subject to the same appeals as decisions of the court from which they originate (article 592 of the Code of Civil Procedure).
Practical advice for assessing the relevance of a third-party objection
When to consider this recourse
Third-party opposition is useful in a number of situations:
- You discover that a judgment affects your rights even though you were not a party to the proceedings
- You are a creditor and find that a judgment has been given in fraud of your rights
- You are a partner in a company and a judgement affects your personal interests
In commercial matters, third-party proceedings are often used in the context of insolvency proceedings. Article L. 661-3 of the French Commercial Code explicitly provides for third-party proceedings against judgments adopting or amending the safeguard or recovery plan.
Essential preliminary analysis
Before initiating third-party proceedings, an in-depth analysis is required:
- Check your interest and standing
- Make sure you were neither a party nor represented in the proceedings
- Identify precisely the aspects of the judgment that are prejudicial to you
- Respect the time limits (30 years in principle, but often much less in special procedures)
For insolvency proceedings, the deadline is only 10 days from publication in the BODACC (article R. 661-2 of the French Commercial Code).
Limits and risks
Third-party opposition involves significant risks:
- Action deemed abusive or dilatory: risk of being fined and ordered to pay damages
- Procedural complexity, particularly in demonstrating the existence of "own means" or fraud
- Limited effect if the judgment has already been enforced
In certain complex situations, other avenues may prove more effective, such as voluntary intervention in ongoing proceedings.
The choice between main third-party proceedings (before the court that handed down the judgment) or incidental third-party proceedings (in ongoing proceedings) may also influence the outcome of the appeal.
Our firm has developed particular expertise in third-party proceedings, particularly in the areas of insolvency proceedings and company law. If you believe that your rights have been infringed by a court decision to which you were not a party, contact us for a personalised analysis of your situation.
Sources
- Code of Civil Procedure, articles 579 to 592
- French Commercial Code, Articles L. 661-2, L. 661-3 and R. 661-2
- Civil Code, articles 29-5, 324 and 353-2
- Court of Cassation, Commercial Division, 17 June 2020, no. 18-25.262
- Court of Cassation, 2nd Civil Division, 29 September 2022, no. 21-14.926
- Court of Cassation, 1st Civil Division, 11 June 1991, No. 89-20.962
- Court of Cassation, 3rd Civil Division, 28 January 2015, no. 13-19.080
- Court of Cassation, 3rd Civil Chamber, 23 June 2016, no. 14-25.645
- Court of Cassation, Commercial Division, 12 May 2015, no. 14-12.483
- Court of Cassation, Commercial Division, 19 December 2006, no. 05-14.816
- Court of Cassation, 3rd Civil Division, 4 March 2021, no. 20-14.195
- DEHARO Gaëlle, "Tierce opposition", Répertoire de procédure civile, November 2023
EN 
FR