Dismissal: when your right to act is challenged

Do you think you have a solid case for taking legal action? Beware: even before examining the merits of your case, your opponent may raise a plea of inadmissibility. This formidable defence is aimed not at the merits of your claim, but at your very right to take legal action.

1. Dismissal by nature

There is no action

A claim may be dismissed when the action simply does not exist. This situation arises in a number of cases:

• Lack of interest According to article 31 of the Code of Civil Procedure, "an action may be brought by anyone who has a legitimate interest in the success or rejection of a claim". Without an interest in bringing an action, no action is possible.
• Lack of quality you must belong to the category of persons to whom the action is reserved. For example, in the judgment of 9 May 2001 (Civ. 1re, no. 98-19.145), the Cour de cassation held that summoning a broker in place of an insurer constituted a plea of inadmissibility for lack of standing on the part of the defendant.

I remember a case where my client sued a company that was not his real co-contractor. The case was immediately dismissed, without the judge even examining the substantive arguments.

Action no longer exists

Your action may also have existed, but then died out:

• The prescription The time limit for taking action has expired. Article 2219 of the Civil Code defines prescription as "a mode of extinction of a right resulting from the inaction of its holder for a certain period of time".
• Foreclosure Unlike the statute of limitations, this period is generally prefixed, i.e. it cannot be interrupted or suspended.
• Res judicata the case has already been heard. Article 122 of the Code of Civil Procedure expressly refers to this ground of non-admissibility.
• Stopping individual prosecutions In the event of collective proceedings, individual lawsuits are suspended (article L. 622-21 of the French Commercial Code).

The share does not yet exist

Sometimes you act too soon:

• Waiting period certain actions are subject to prior deadlines. For example, under article L. 145-38 of the French Commercial Code, an application for a review of the commercial rent can only be made three years after the tenant has taken possession of the premises.
• Due diligence In other cases, you must complete certain formalities before taking your case to court. In a judgment of 14 February 2003 (Ch. mixte, no. 00-19.423), the Court of Cassation confirmed that failure to comply with a contractual clause requiring a prior conciliation procedure constitutes a bar to the proceedings.

2. Legal grounds for dismissal

Direct qualification

The legislator sometimes explicitly qualifies a plea as an objection. Article 122 of the Code of Civil Procedure gives some examples:

"A plea of inadmissibility is any ground that seeks to declare an adversary's claim inadmissible, without examination of the merits, for lack of right to sue, such as lack of standing, lack of interest, prescription, time limit or res judicata.

Article 125 adds the absence of an available remedy. This provision applies when a litigant uses a remedy that is not available against the decision he is challenging.

Indirect qualification

Sometimes the law simply states that a claim is inadmissible without explicitly qualifying it as a plea in law. This is the case for :

• Challenging SAFER pre-emption and retrocession decisions after the deadline has expired (articles L. 143-13 and L. 143-14 of the French Rural Code).
• Failure to publish an application for annulment or resolution of a deed subject to land registration (article 30, § 5, of the decree of 4 January 1955).

In such cases, despite the absence of an explicit qualification, these pleas do constitute grounds for dismissal.

Extension of case law

Case law has sometimes extended the scope of grounds for dismissal. For example, while the Court of Cassation had initially described a contractual clause requiring prior conciliation as an exception, it reversed its position in 2003 and made it a ground for dismissal (Ch. mixte, 14 February 2003, no. 00-19.423).

3. Grounds for dismissal based on case law assimilation

Developments in case law

Case law has created grounds for dismissal outside their natural domain. These grounds for dismissal "by assimilation" sanction serious irregularities relating to the referral of a case to a court.

Until 2006, case law distinguished between :

• Minor irregularities (formal defects)
• Serious "omissions", equivalent to failure to make a referral

Since the judgment of the Mixed Chamber of 7 July 2006 (no. 03-20.026), the Court of Cassation has abandoned this distinction, while maintaining that certain irregularities in the referral of cases constitute grounds for dismissal.

Method of referral and content of the document

The Court of Cassation now distinguishes between two types of irregularity:

• Irregularities in the referral procedure They give rise to a plea of inadmissibility. For example, using a writ of summons where the Code requires a declaration at the registry (Civ. 2e, 12 July 2001, no. 99-19.940).
• Irregularities in the content of the referral document They are merely formal defects.

This distinction was clearly set out in the judgment of 15 April 2021 (Civ. 2e, no. 19-20.416).

Persistent difficulties

In some cases, the dividing line between a plea of inadmissibility and a plea of nullity remains blurred:

• Failure to sign a statement of appeal: for a long time considered as an objection, this is now sanctioned by nullity on formal grounds (Soc. 4 October 2011, no. 10-23.677).
• The statement of appeal does not mention the points of the judgment being challenged: after holding that the appeal was null and void on formal grounds, case law now refers to the absence of devolutive effect, which is similar to a plea of inadmissibility.

These procedural subtleties may seem technical, but they have considerable practical consequences. A plea of nullity must be raised in limine litis (before any defence on the merits), whereas a plea of inadmissibility may be raised in any event, even on appeal.

As you will have realised, correctly identifying the defence best suited to your strategy can swing the outcome of a trial. When the stakes are high on these legal qualifications, sound advice can prove decisive.

Do you need an in-depth analysis of the defences available in your case? Our firm is at your disposal to assess the admissibility of your action or to identify the grounds for dismissal likely to be raised against your opponent.

Sources

• Code of Civil Procedure, articles 31, 70, 71, 72, 73, 74, 107, 122, 123, 125 and 126
• Civil Code, articles 2219 et seq.
• French Commercial Code, Articles L. 145-38, L. 622-21
• Civ. 1st, 9 May 2001, no. 98-19.145, Bull. civ. I, no. 128
• Ch. mixte, 14 February 2003, no. 00-19.423, Bull. ch. mixte, no. 1
• Ch. mixte, 7 July 2006, no. 03-20.026, Bull. ch. mixte, no. 6
• Civ. 2nd, 15 April 2021, no. 19-20.416, Bull. civ.
• Soc. 4 October 2011, no. 10-23.677, Bull. civ. V, no. 222
• Civ. 2e, 12 July 2001, no. 99-19.940, Bull. civ. II, no. 141