Judicial Incompetence: The Obligation to Indicate the Correct Administrative Court

Imagine: you are the owner of a flat in Douarnenez, and a dispute arises with your tenant concerning a planning permission. You bring the case before the tribunal judiciaire of Quimper, but your opponent argues that the competent court is in fact the tribunal administratif of Rennes. What should you do? The question is not so simple: the party raising the exception of incompetence must clearly designate the administrative court to be seised. The Court of Cassation, in its decision of 21 February 2019, clarifies this obligation, and the consequences can be severe for those who fail to comply.

But what exactly changes? This decision, rendered in the context of a property dispute, recalls a procedural rule that is often overlooked: Article 75 of the Code of Civil Procedure requires that the person contesting the jurisdiction of the civil court indicate before which administrative court the matter should be brought. Failing that, their exception is inadmissible. In short, it is not enough to say "this is not the right judge"; you must also give the address of the right one.

This decision, although technical, has concrete implications for any owner, tenant or property professional faced with a dispute where the boundary between private law and public law is blurred. So, how should you react? Let's delve into the details.

The facts: a story like many that happen every day

Mr X, an owner in Douarnenez, had sold a property complex to a buyer. A few months after the sale, the buyer discovers a hidden defect (a recurring damp problem) and sues Mr X before the tribunal de grande instance of Quimper to obtain the annulment of the sale and damages. Mr X, for his part, considers that the dispute actually falls within the jurisdiction of the administrative judge, because the sale concerned a property that had been the subject of an administrative decision (a contested planning permission). He therefore raises an exception of incompetence.

But here's the thing: in his exception, Mr X merely states that the tribunal administratif of Lille is competent, without further details. The question that arises is whether this simple mention is sufficient. The buyer retorts that the exception is inadmissible because Mr X did not precisely indicate which administrative court should be seised (for example, the competent section or the exact address).

The court in Quimper must decide. It follows the buyer's argument and declares Mr X's exception inadmissible. Mr X appeals to the Court of Cassation, arguing that the prohibition on the civil judge itself designating the competent administrative court prevents it from requiring a precise designation from the parties. The Court of Cassation rejects this argument and upholds the decision of the lower courts.

The reasoning of the court - dissected

The Court of Cassation relies on Article 75 of the Code of Civil Procedure, which provides: "The party raising an exception of incompetence must, on pain of inadmissibility, indicate in all cases before which court the matter should be brought." This rule applies equally to the civil judge and the administrative judge. In this case, Mr X had indeed mentioned the tribunal administratif of Lille, but the question was whether this indication was "sufficiently precise".

The Court recalls that the prohibition on the court seised of an exception of incompetence in favour of the administrative judge from itself designating the administrative court (this prohibition derives from the separation of the jurisdictional orders) does not remove the obligation on the party to provide a clear designation. In other words, even if the civil judge cannot "send" the case itself to the administrative court, the party raising the exception must do so in its place.

In short, the Court validates the strict interpretation of Article 75: a mere mention "tribunal administratif of Lille" may be sufficient if it is precise, but it was not here because the context showed that Mr X had not demonstrated the link between his case and that court. The decision thus confirms consistent case law: the exception of incompetence must be "perfectly precise" to be admissible.

What few people know is that this requirement of precision also applies to exceptions raised by the defendant in a complex property dispute. However, note that the Court does not rule on the merits of the dispute (the hidden defect), but solely on the admissibility of the exception. undefined, I have come across cases where litigants lost their case solely because their lawyer had not correctly designated the competent administrative court.

What this changes for you - concretely

For a landlord owner in Douarnenez: if you are sued by your tenant before the tribunal judiciaire for a dispute relating to a planning permission, and you consider that the administrative judge is competent, you must, in your exception of incompetence, precisely indicate the territorially competent administrative court (for example, the tribunal administratif of Rennes, and not simply "the administrative court"). Failing that, your exception will be inadmissible and the case will be heard by the tribunal judiciaire, even if it is incompetent.

For a buyer in Plouhinec: if you buy a property and discover a problem related to an administrative decision (for example, a local planning plan), you might be tempted to bring the case directly before the administrative judge. But if the seller raises the incompetence of the civil judge, he must indicate the competent administrative court. If he does not, you can invoke the inadmissibility of his exception and remain before the civil judge, which may be more advantageous for you (shorter deadlines, simpler procedure).

For a property professional (estate agent, developer): be particularly vigilant when advising a client on which court to seise. An error in designating the administrative court can lead to the rejection of the exception and a change in judicial strategy. For example, if you are sued before the tribunal judiciaire of Quimper for a disputed property sale, and you think the administrative judge is competent, make sure you indicate the tribunal administratif of Rennes (competent for Finistère) and not another.

Four tips to avoid this type of dispute

• Check jurisdiction as soon as you receive the claim: as soon as you receive a claim, quickly determine whether the dispute falls within the civil or administrative judge. If in doubt, consult a lawyer lawyer.
• Draft the exception of incompetence precisely: if you need to raise an exception, mention the exact name of the administrative court (e.g., "tribunal administratif of Rennes") and, if possible, the address and the competent section. Do not settle for a vague formula.
• Respect the deadlines: the exception of incompetence must be raised before any defence on the merits, on pain of being time-barred. Generally, you have until the first case management hearing.
• Anticipate borderline disputes: in property sales, issues of planning permission, administrative easements or public domain are often sources of conflicts of jurisdiction. Instruct a lawyer as soon as the preliminary contract is signed to secure your position.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 13 December 2017 (No. 16-23.987), the Court had already held that the exception of incompetence in favour of the administrative judge must be precise, on pain of inadmissibility. It thus confirms a trend towards procedural rigour, aimed at avoiding unnecessary referrals between the jurisdictional orders.

In parallel, the Tribunal des conflits (the body that resolves conflicts of jurisdiction between the civil and administrative orders) has issued several recent decisions clarifying the allocation of jurisdiction in property matters. For example, the question of whether a dispute falls within the administrative or civil judge often depends on the nature of the contract (private law contract or administrative contract). This decision of the Court of Cassation reminds us that, even if jurisdiction is uncertain, the procedure must be rigorous.

For the future, it is likely that the Court of Cassation will maintain this requirement of precision, in order to make the parties responsible and avoid dilatory exceptions. Legal professionals must therefore be extra vigilant in drafting their submissions.

Checklist before taking action

• Q: Can I raise an exception of incompetence without a lawyer? A: Yes, but it is risky. The procedure is technical, and a simple drafting error can render your exception inadmissible. It is better to be assisted by a lawyer.
• Q: What should I do if my opponent raises an exception of incompetence without indicating the administrative court? A: You can ask the judge to declare this exception inadmissible for lack of precision. You will save time and remain before the civil judge.
• Q: What are the deadlines for raising the exception? A: The exception must be raised before any defence on the merits, generally within 15 days of the appointment of a lawyer or the first hearing. Check the applicable rules before your court.
• Q: How much does a poorly drafted exception of incompetence cost? A: Apart from legal fees (count €800 to €1,500 for a simple procedure), an inadmissibility can cause you to lose the benefit of a more favourable jurisdiction and lengthen the dispute by several months.

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