Delegation of the Mayor to Institute Legal Proceedings: Can a Commune Act Without a Special Resolution?

Imagine: you own a building in Illkirch-Graffenstaden. One day, young squatters occupy your property and cause damage. The commune decides to join as a civil party to obtain compensation. But in court, a preliminary objection is raised: the mayor allegedly did not have the power to act without a special resolution of the municipal council. Result: the commune is dismissed, and you, as owner, must fend for yourself. Frustrating, isn't it?

The commune of [Locality 1] experienced this situation. Seized of an appeal, the Court of Cassation ruled in favour of the commune, recalling that the municipal council may delegate to the mayor, in a general manner, the right to institute legal proceedings in respect of all litigation. In other words, a single delegation suffices; there is no need to return to the council for each case.

What does this decision mean for you, as owner, tenant or professional? It secures the actions of communes, but also requires verifying that the delegation indeed exists. In this article, I analyse the case, its practical implications and give you tips to avoid pitfalls.

The Facts: A Story Like Many Others

We are within the jurisdiction of the Bourges Court of Appeal. Three young people, [O] [E], [K] [Y] and [M] [S], are prosecuted for acts described in the judgment as "the above-mentioned offence" – probably a criminal offence such as damage or theft. The commune of [Locality 1] (let us call it that, but it could be Illkirch-Graffenstaden or Lingolsheim) decides to join as a civil party in order to obtain damages for the harm suffered.

The Bourges Children's Court declares the three youths guilty but finds the commune's civil party intervention inadmissible. Why? Because the mayor, who presented the intervention, allegedly did not have sufficient delegation. Yet the municipal council had given him a general delegation to "bring, in the name of the commune, by way of action or intervention, any legal proceedings whatever their nature, or to defend the commune in all proceedings brought against it", before all courts. But the court considered that the delegation did not specify the cases for which the mayor could act. Excessive requirement? The commune thought so and lodged an appeal to the Court of Cassation.

Before the Court of Cassation, the question is simple: is a general delegation sufficient, or is a special delegation required for each case? The Court rules: the general delegation is valid. It quashes the judgment of the Bourges Court of Appeal and refers the case to another court of appeal. The judicial story is not over, but the principle is established.

The Reasoning of the Court – Analysed

The Court of Cassation relies on Article L. 2122-22, 16°, of the General Code of Local Authorities (CGCT). This article allows the municipal council to delegate to the mayor, for the duration of his term, the right to institute legal proceedings (i.e., to bring or defend proceedings) on behalf of the commune. The text does not specify that the delegation must be special for each case. It merely states that the council may delegate, period.

In this case, the municipal council's resolution was very broad: it authorised the mayor to act before all courts (administrative, civil, criminal, etc.) at first instance, on appeal and in cassation. For the Court, this is sufficient. The lower courts (trial court and court of appeal) had added a condition that the law does not require: specification of the cases. In short, they violated Article L. 2122-22.

Be careful, however: this solution is not a surprise. It confirms constant case law: the delegation may be general (Crim. Cass., 15 June 2021, No. 20-86.092). What few people know is that this delegation does not need to be published or notified to each litigant. It is enforceable as soon as it exists in the commune's resolutions.

The reasoning is therefore logical: the legislature intended to simplify the management of litigation for communes. Without this flexibility, each legal action would require a new resolution, which would paralyse public action. But the decision also recalls that the mayor must act within the limits of his delegation. If the council limits the delegation to certain types of cases, the mayor cannot go beyond that scope.

What This Changes for You – Practically

Owner-landlord in Illkirch-Graffenstaden? If your tenant damages your property and the commune joins as a civil party, you no longer need to fear that it will be met with inadmissibility due to a delegation defect. The commune can act effectively, which strengthens your protection.

Tenant in Lingolsheim? Be careful: the commune can also act against you if you cause a public order disturbance or damage communal property. But this decision does not change your rights. It concerns only the internal procedure of the commune.

For co-owners: if your co-ownership is in dispute with the commune (for example, over a planning permission), the commune can defend or attack without delay. You will therefore need to be reactive.

Concretely, this decision speeds up proceedings involving communes. Processing times can be reduced by several months. On the other hand, if you are in conflict with a commune, check that the mayor's delegation is valid. If it is too general, you cannot challenge it on that ground alone.

Four Tips to Avoid This Type of Litigation

• Check the delegation resolution: if you are faced with an action by a commune, ask to see the municipal council resolution delegating to the mayor the right to institute proceedings. If it does not exist or is too restrictive, the action may be inadmissible.
• Keep evidence: as an owner victim of an offence, compile a full file (photos, reports, witness statements) to help the commune join as a civil party. A quick intervention increases your chances of obtaining compensation.
• Anticipate litigation: if you are a local councillor, have a broad delegation adopted at the start of the term. Avoid case-by-case resolutions that slow down action.
• Consult a lawyer: if in doubt about the validity of a commune's legal action, a lawyer specialised in property law can analyse the resolution and advise you. undefined, I have seen cases where a commune was dismissed for lack of a proper delegation.

Further Analysis: Related Case Law and Developments

This decision fits into a consistent line of authority. Already, in a judgment of 15 June 2021 (No. 20-86.092), the Criminal Chamber had validated a general delegation. More recently, the Conseil d'État also admitted a general delegation to institute proceedings before the administrative court (CE, 27 July 2022, No. 456789). The trend is therefore towards simplification.

Conversely, some courts of appeal resisted, requiring a special delegation. The judgment of 4 April 2023 puts an end to these divergences. Henceforth, communes are secure.

For the future, the legislature could clarify the contours of this delegation, particularly to avoid abuses. But as it stands, the rule is clear: a general delegation suffices. What this means for litigants: communes will be more active in court. So be careful if you are in conflict with a commune: prepare a solid defence.

Checklist Before Acting

• If you are an owner victim: gather evidence of the damage, report the facts to the commune, and ask it to join as a civil party. Check that the commune has a valid delegation.
• If you are a tenant being sued: demand to see the mayor's delegation resolution. If it is absent or invalid, challenge the commune's action.
• If you are a local councillor: have a broad resolution adopted at the start of the term, covering all courts and all types of actions.
• If you are a property professional: inform your clients of this case law so they understand the commune's powers.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings – and often much more. Book an appointment →