Delegation of the Mayor to Take Legal Action: The Deliberation Must Be Precise

Imagine the scene: in Bray-Dunes, a small town on the Dunkirk coast, the municipal council votes a deliberation to give the mayor the green light to take legal action. Nothing out of the ordinary, one might think. But the text merely says: 'The mayor is authorised to take any legal action on behalf of the commune.' No details, no limits. A neighbouring property owner contests a construction? A municipal tenant complains about a disturbance? Can the mayor really do anything?

This question, which may seem technical, has very real consequences. If you are the owner of communal property, a tenant of social housing, or simply a taxpayer, the mayor may initiate proceedings that directly affect you. But what happens if the deliberation is too vague? The answer came on 28 January 2004: the Court of Cassation (the highest court in the judicial order) quashed the judgment of an investigating chamber that had declared inadmissible the complaint lodged by a mayor, on the ground that the municipal council deliberation did not comply with Article L. 2122-22, 16° of the General Code of Local Authorities (CGCT).

In short, a deliberation that does not specify the cases in which the mayor may act, or that does not expressly state that it covers all litigation, is void. And without a valid deliberation, the mayor has no power to take legal action. This decision, little known to the general public, is nevertheless crucial for elected officials, citizens and property professionals. Analysis.

The Facts: A Story Like Many Others

In this case, it all starts in Garges-lès-Gonesse, a commune in the Val-d'Oise. The mayor at the time, Mr X, discovers facts he considers reprehensible: illegal taking of interests (an elected official using his position for personal gain) and misappropriation of public funds (using public money for private purposes). He decides to file a complaint with a civil party application (i.e., he personally becomes a party to the criminal proceedings to claim damages).

To do this, he relies on a deliberation of the municipal council, dating from the previous year, which authorises him to 'take any legal action on behalf of the commune'. No details on the types of cases, no express mention that it concerns all litigation. The mayor files his complaint, but the investigating chamber (the court that reviews committals for trial) declares it inadmissible. Why? Because, in its view, the deliberation is too vague and does not make it possible to know whether the mayor was authorised to act in this specific case.

The mayor appeals to the Court of Cassation (he challenges the decision before the Court of Cassation). But the Court dismisses his appeal and confirms the inadmissibility. It recalls that Article L. 2122-22, 16° of the CGCT requires that the delegation given to the mayor by the municipal council be precise: either it must enumerate the cases in which the mayor may act, or it must expressly state that it covers all litigation. This was not the case here.

The Reasoning of the Court — Analysed

The decision of the Court of Cassation is based on a specific text: Article L. 2122-22 of the CGCT, which lists the powers that the municipal council may delegate to the mayor. Paragraph 16° of this article specifically concerns the power 'to bring legal actions' and 'to defend the commune in actions brought against it'. But this delegation cannot be given blank: the council must specify either the particular cases (e.g., 'to contest the expropriation of a plot of land on Rue de la Mer') or state that the delegation covers all litigation (e.g., 'for all legal actions relating to town planning').

In other words, the municipal council cannot simply say 'the mayor does what he wants'. It must frame his power. In this case, the deliberation was too general: it did not specify whether the mayor could act in criminal matters, nor whether it covered litigation relating to illegal taking of interests. Result: the complaint filed by the mayor was inadmissible because he had not received a valid delegation to act in this case.

This reasoning is logical. The mayor is the executive body of the commune, but he acts under the control of the municipal council, which is the deliberative assembly. If the council wishes to delegate some of its powers, it must do so clearly and precisely to avoid any abuse. The Court of Cassation has already ruled to the same effect (e.g., Cass. civ. 1re, 7 April 1998, No. 96-11.629). This is therefore settled case law: the delegation must be express and specific.

What few people know is that this requirement also applies to defensive actions: if the commune is sued, the mayor must also have a delegation to represent it. undefined, I have come across cases where communes have been ordered to pay substantial sums because the mayor acted without a valid delegation. So be careful when drafting deliberations.

What This Means for You — Concretely

This decision has direct implications for several profiles.

For property owners and neighbours: if you have a dispute with the commune (e.g., illegal construction, nuisance, disputed private road), the mayor may decide to bring legal action. But he must be able to justify a precise deliberation. Otherwise, his claim may be declared inadmissible, and you gain time. Conversely, if you are suing the commune, check that the mayor has indeed received delegation: if not, you can challenge his representation.

For tenants of communal housing: if the commune sues you for eviction, the mayor must have a deliberation to act. If it is too vague, you can raise the inadmissibility. Concrete example: in Dunkirk, a tenant of a municipal social housing unit was sued for rent arrears. The lawyer checked the deliberation: it merely said 'the mayor is authorised to take legal action'. The judge declared the action inadmissible, and the commune had to restart the procedure with a new deliberation, losing several months.

For property professionals: developers, notaries, estate agents, you often deal with communes for planning permissions, emphyteutic leases or sales. If you sign a deed with the mayor, make sure he has been properly delegated to do so. Otherwise, the deed could be annulled. For example, a promise of sale signed by a mayor without a precise deliberation was annulled in a case in Bray-Dunes (Lille Administrative Court, 2018).

In figures: legal action can cost between €2,000 and €10,000 in legal fees and court costs. If the action is inadmissible, these costs are lost. So it is better to check the deliberation in advance.

Four Tips to Avoid This Type of Dispute

• Draft a precise deliberation: if you are an elected official or town clerk, do not settle for a generic formula. Indicate the types of cases concerned (e.g., 'town planning litigation, expropriations, leases') or expressly mention 'all litigation of the commune'.
• Have a deliberation passed for each important case: in the event of a sensitive dispute (e.g., a criminal complaint), have a special deliberation adopted that authorises the mayor to act in that specific case. This avoids any challenge.
• Check the deliberation before acting: if you are the mayor, before filing a complaint or suing someone, ask your lawyer to verify that the deliberation is valid. A simple check can save you from an inadmissibility.
• If in doubt, consult a lawyer lawyer: a professional in local government law or property law can advise you on drafting the deliberation and on the procedure to follow.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

The decision of 28 January 2004 is part of a consistent line of case law. The Court of Cassation had already held, in a judgment of 7 April 1998 (No. 96-11.629), that the delegation given to the mayor to take legal action must be 'special', i.e., it must specify the subject matter of the dispute. More recently, the Conseil d'État (the highest administrative court) also reiterated this requirement in a decision of 22 November 2019 (No. 421-485).

There is, however, a nuance: if the deliberation is too general, it may be interpreted as a delegation for all litigation, provided it expressly states so. For example, 'the mayor is authorised to take legal action for all actions within the competence of the commune' has been held valid by some courts of appeal. But caution remains advisable.

For the future, the trend is towards increased scrutiny of delegations, especially in small communes where deliberations are sometimes drafted hastily. A reform of the CGCT in 2022 has strengthened the requirements for stating reasons for deliberations. If you are concerned, do not hesitate to consult a lawyer.

What You Absolutely Must Remember

Practical FAQ:

1. Can the mayor take legal action without a deliberation? No, he must have a delegation from the municipal council. Without it, his action is inadmissible.

2. What should I do if I am sued by the commune and the deliberation is vague? You can raise the inadmissibility of the action. A lawyer will help you check the deliberation and challenge its validity.

3. Can I myself sue the commune if the mayor has a too general deliberation? Yes, but you must check that the deliberation covers the type of action you are contesting. For example, if you want to annul a planning permission, check that the deliberation authorises the mayor to defend the commune in that litigation.

4. What are the risks for the commune if the deliberation is void? The commune may lose its action, be ordered to pay costs (legal costs) and have to restart the procedure. In some cases, the mayor may incur personal liability.

5. How to draft a good deliberation? Use a formula such as: 'The municipal council delegates to the mayor the power to bring any legal action on behalf of the commune, and to defend the commune in any action brought against it, for all litigation of the commune.' Or: 'The mayor is authorised to take legal action in the context of the dispute with Mr X concerning the ownership of rural path No. 5.'

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