Who can take legal action? Acting for yourself or for others

We have seen in previous articles that taking legal action is not simply a question of being right, but requires that specific conditions be met for the claim to be deemed admissible. One of the fundamental conditions is that of a direct and personal interest: in principle, only the person directly concerned by a dispute can take a case to court. This is the application of the well-known adage: "No one pleads with a lawyer".

But this rule, however logical, raises complex practical issues. What happens when a loss affects not an isolated individual, but the interests of a company, an association, a trade union, or even a large group of people such as consumers or local residents? How do you defend the interests of a legal entity or a community? Is the isolated individual always the only one who can act?

This article explores the rule in principle against acting on behalf of another person and, more importantly, the many important exceptions to this rule in French law. Understanding who has 'standing' is essential, because an action brought by the wrong person will be irretrievably declared inadmissible.

The principle: prohibition on acting on behalf of others

The basic rule, stemming from the requirement of a direct and personal interest (set out in Article 31 of the Code of Civil Procedure), is clear: you can only take legal action to defend your own interests. You must be the one who would directly suffer the negative consequences if your claim were rejected, and the one who would directly benefit from its success.

This rule has important practical implications in various situations:

• The partner and the company : If you are a shareholder or partner in a company, you cannot personally take legal action to claim compensation for a loss suffered. by the company itself. For example, if an unfair competitor causes financial damage to your company, or if a customer fails to pay its bills to the company, it is not up to you, as a partner, to take legal action. It is up to the company, a legal entity distinct from its members and represented by its legal directors (manager, chairman, etc.), to do so. Your personal loss (the potential fall in the value of your shares, for example) is considered to be indirect.
• The parent company and its subsidiary : Similarly, a parent company cannot take legal action on behalf of its subsidiary, even if it controls 100%. They are two distinct legal entities, each with its own rights and legal actions. If the subsidiary suffers a loss, it is up to it to take action, through its own representatives.
• The member and the association/trade union : An individual member of an association or trade union may not, on his or her own initiative, take action on behalf of the organisation to defend the collective interest it represents. Conversely, the organisation cannot act to defend a purely individual interest of one of its members (except in the case of a specific mandate or legal authorisation, as we shall see below). It is important to distinguish between the personal prejudice suffered by a member and the prejudice caused to the object or collective mission of the organisation.

This principle is designed to ensure a degree of clarity in proceedings and to guarantee that the person acting has the legitimacy and direct motivation to defend the claim submitted to the judge.

Exceptions: when the law permits action on behalf of others (empowerment to act)

While the prohibition on acting on behalf of others is the principle, the law has introduced a large number of exceptions to take account of situations where this rule would be unfair, ineffective or contrary to the general interest. These exceptions take the form ofauthority to act These are specific permissions, granted by statute (or sometimes by case law), that authorise a person or organisation to take legal action to defend interests that are not directly their own.

It is essential to distinguish the empowerment to act from a simple mandate (like the one you give to your lawyer). The lawyer acts on your behalf and for your accountto defend your personal interests; you could act yourself. Entitlement to act, on the other hand, allows a person (the holder of the entitlement) to act on your behalf. in its own name (even if it is for the benefit of others) in a situation where, without this authorisation, it would not have had the required direct and personal interest.

These authorisations are diverse and respond to different rationales. Here are the most significant cases:

Oblique action: acting in the place of a negligent debtor

Under article 1341-1 of the French Civil Code, an action oblique allows a creditor to exercise the rights and actions of his own debtor, when the latter neglects to do so and this neglect compromises the creditor's chances of being paid.

• Case in point: You are a creditor of Mr Durand. Mr Durand is himself a creditor of Mr Dupont, but he does nothing to claim what is owed to Mr Dupont. If there is a risk that Mr Durand's inaction will make him insolvent and prevent you from being paid, you can bring an action oblique. instead Mr Durand against Mr Dupont to have the sum due returned to Mr Durand's estate.
• Main conditions: You need to prove that the debtor (Mr Durand) has failed to act (wrongfully) and that this failure compromises your rights as a creditor (risk of insolvency). Your own claim must be certain.
• Effect: Please note that the money recovered from Mr Dupont does not go directly into your pocket, but into Mr Durand's estate, where it can be seized by you... but also by Mr Durand's other potential creditors.

The "ut singuli" action: the partner defends his partnership

We have seen that a partner may not act on behalf of the partnership. The major exception is corporate action carried out on behalf of the partnership. ut singuli (individually) or ut plures (by several partners).

• Specific context : This action is only possible where the company suffers loss as a result of a fault committed by its own managers (manager, directors, etc.). As managers cannot be expected to bring a liability action against themselves in the name of the company, the law allows one or more shareholders to do so in their place (articles 1843-5 of the Civil Code, L. 223-22 and L. 225-252 of the Commercial Code).
• Objective: Repairing the damage suffered by the company.
• Effect: If the action is successful, damages are paid. to the companyand not to the partners who acted. It is an action exercised on behalf of the legal entity.

Union action: collective interest and substitution

Trade unions have extensive powers to take legal action. There are two main types of action:

• Defending the collective interests of the profession (Art. L. 2132-3 C. trav.) : This is a very broad authorisation. Any trade union (whether representative or not) can act to defend the collective interests of the profession it represents. This may concern compliance with a collective agreement, the fight against illegal employment, the defence of working conditions in general, etc. The aim of the action is to compensate for harm to the profession as a whole, irrespective of the individual harm suffered by any particular employee.
• Alternative actions : In specific cases provided for by law (combating discrimination, harassment, non-compliance with gender equality, illegal temporary work, etc.), a representative trade union may take action to instead of an employee who has been a victim, to assert the rights individuals of the latter. The union takes the place of the employee. Generally, the employee must be informed of this and not oppose it. It is a powerful tool for protecting employees who might be reluctant to act on their own.

The actions of associations: a highly regulated framework

Associations can also take legal action, but their ability to do so is more restricted than that of trade unions, especially when defending interests other than their own.

• Defending the collective interests of their members: Like trade unions, an association can act to defend the collective interests of its members, provided that this interest falls within its statutory object (case law known as the "defence leagues"). For example, a local residents' association can take action against a nuisance that affects the whole neighbourhood.
• Defending a "great cause" (environment, consumers, anti-racism, etc.): This is where vigilance is called for. An association cannot act to defend a general cause, even if that is its corporate purpose, unless expressly authorised by a specific law. The legislator has granted such powers to certain associations in specific areas (environment, consumer affairs, anti-discrimination, defence of certain victims, etc.). These authorisations are often subject to strict conditions, in particular a administrative authorisation and a certain length of time. Without this specific legal authorisation, the association's action will be inadmissible, even if the cause is noble. Examples of authorisations: article L. 621-1 of the Consumer Code for approved consumer associations, article L. 142-2 of the Environmental Code for approved nature protection associations.

Group actions: a specific form of collective action

Introduced more recently into French law (since the Hamon law of 2014, then extended), group action is a special procedure.

• Objective: Enable an approved association (mainly for consumers or users of the healthcare system, but also in other areas such as the environment or discrimination) to take legal action to obtain compensation for damages. individuals suffered by a large number of people, the victims of a even breach by a even professional.
• Simplified mechanism : The association first acts to have the professional's liability recognised. If it is successful, the judgement defines the "group" of victims concerned. People who consider themselves to be part of this group then have a period of time in which to make themselves known and join the action in order to receive compensation (known as the "opt-in" system).
• Areas concerned : Consumer affairs, health, discrimination, environment, personal data protection.

The special role of the public prosecutor

The Public Prosecutor acts primarily on behalf of society to prosecute criminal offences. However, in certain very specific cases provided for by law, he is also empowered to act in civil matters to defend the interests of particularly vulnerable people, such as minors in danger or adults unable to look after their own interests.

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Knowing who has legal standing is a complex issue that goes far beyond simply identifying the direct victim of a loss. Representation mechanisms, collective actions and specific legal powers create a nuanced legal landscape. In disputes involving companies, associations, trade unions or groups of individuals, determining who is the right actor to bring the action is a fundamental strategic step.

An error in standing may result in the claim being inadmissible. To navigate these issues and define the best approach for asserting your rights or those of a group you represent, the assistance of a lawyer is often essential. Do not hesitate to contact our firm to analyse your specific situation.

Sources

• Code of Civil Procedure: Article 31.
• Civil Code: Articles 1341-1 (action oblique), 1843-5 (action ut singuli).
• French Commercial Code: Articles L. 223-22, L. 225-252 (action ut singuli).
• Labour Code: Article L. 2132-3 (trade union action in the collective interest), and various articles on substitute actions (e.g. L. 1134-1, L. 1154-2, etc.).
• Consumer Code: Articles L. 621-1 et seq. (actions by consumer associations), L. 623-1 et seq. (group action).
• French Environment Code: Article L. 142-2 (actions by nature protection associations).
• Case law relating to the standing of partners, parent companies and members of associations, and to specific legal powers.