Lack of Jurisdiction of the Judicial Judge: When the Court of Cassation Raises the Lack of Power of its Own Motion

You live in Martigues, in the Ferrières district. Every year, you receive a bill for the sanitation charge from the urban community. One day, you discover that the resolution fixing this charge may be illegal. You bring an action in the tribunal d'instance to claim reimbursement. But here’s the question: does the judicial judge have the power to annul a resolution of a local authority? That is the very issue raised by the judgment of 3 May 2006.

This decision, handed down by the Court of Cassation, settles a fundamental procedural point: if a party cannot raise the lack of jurisdiction of the judicial judge for the first time before the Supreme Court, the Court may itself raise this ground of its own motion. In short, even if no one thought of it before, the Court can say “stop, this is not the right judge”.

But what does this actually mean for you, as an owner in Istres or a tenant in Marseille? Simply that the division of jurisdiction between the judicial judge (tribunal d'instance, tribunal de grande instance) and the administrative judge (tribunal administratif) is not a technical detail: it is a question of power. If you challenge a decision of an administrative body, you must go before the administrative judge. Otherwise, your proceedings risk being annulled, even years later.

The facts: a story that happens every day

Mr X, owner of a house in Martigues, receives an annual bill for the sanitation charge from the urban community. Considering the amount excessive and the resolution fixing it illegal, he decides to bring proceedings before the tribunal d'instance. For him, this is the natural judge for disputes between individuals and public services: after all, the charge is a sum of money, and the tribunal d'instance has jurisdiction for sums under €10,000 (at that time).

The urban community, for its part, defends the legality of its resolutions. The tribunal d'instance rules in its favour on the merits, and Mr X’s claim is dismissed. Does he appeal? No, because the tribunal d'instance gives a final judgment for small sums. So he appeals to the Court of Cassation.

Before the Court of Cassation, the urban community raises an argument for the first time: the judicial judge lacked jurisdiction, as this is a dispute concerning the legality of an administrative act (the resolution). The Court of Cassation must answer two questions: first, can this plea of lack of jurisdiction be raised for the first time before it? Secondly, if not, can it raise it of its own motion?

The twist: the Court of Cassation decides that the plea of lack of jurisdiction cannot be raised for the first time before it. But it can, and indeed must, raise the lack of jurisdiction of the judicial judge of its own motion. In other words, it finds that the tribunal d'instance exceeded its powers by ruling on the legality of an administrative resolution. It quashes the judgment and refers Mr X to bring his claim properly, i.e., to bring proceedings before the tribunal administratif.

The reasoning of the court — explained

The Court of Cassation bases its reasoning on a fundamental principle: the separation of judicial and administrative authorities, inherited from the law of 16-24 August 1790. In French law, the judicial judge cannot annul or assess the legality of administrative acts (resolutions, orders, etc.). That is the role of the administrative judge (tribunal administratif, cour administrative d'appel, Conseil d'État).

Here, the tribunal d'instance had examined the legality of the resolutions fixing the sanitation charge. However, even though Mr X’s claim was for reimbursement of a sum of money, the preliminary question was the validity of the administrative act. The judicial judge had no power to rule on this question. In doing so, it exceeded its powers (known as an excès de pouvoir).

The Court distinguishes two situations: first, a plea of lack of jurisdiction raised by a party. Under Article 92 of the Code of Civil Procedure (which governs the jurisdiction of courts), this plea must be raised before any defence on the merits. If it is not, it is inadmissible. Therefore, the urban community could not raise it for the first time before the Court of Cassation.

Second, the Court may raise of its own motion the lack of subject-matter jurisdiction (that relating to the nature of the dispute) when the judge has exceeded its powers. This is provided for by Article 92, paragraph 2 of the Code of Civil Procedure, combined with the principle of separation of powers. However, the Court can only do so if the dispute falls within the jurisdiction of another court (here, the administrative judge).

In short, the Court of Cassation acts as guardian of the division of jurisdiction. Even if the parties have not noticed it, it must ensure that each judge stays within its domain. What few people know is that this obligation to raise lack of jurisdiction of its own motion also applies to the tribunaux d'instance and tribunaux de grande instance: they must verify their jurisdiction even if no one contests it.

undefined, I have come across cases where owners had brought proceedings before the wrong court without knowing it. The result: months of wasted proceedings and unnecessary legal fees. This decision highlights the importance of properly identifying the nature of the dispute before taking action.

What this means for you — practically

For the owner or tenant: if you contest a charge, tax or decision taken by a local authority (town hall, urban community, inter-municipal syndicate), you must bring proceedings before the tribunal administratif, not the judicial court. For example, in Istres, if you believe the sanitation charge is too high because the town council resolution is illegal, you must go to the tribunal administratif of Marseille.

For the co-owner: disputes between co-owners and the syndic generally fall within the jurisdiction of the judicial judge. But if the dispute concerns a communal regulation or a planning decision, you must turn to the administrative judge. Example: your co-ownership in Martigues challenges a municipal order requiring compliance works. The tribunal administratif has jurisdiction.

For the real estate professional: estate agency, developer, notary: you must be particularly vigilant. If a client consults you about a dispute involving an administrative decision, refer them to a lawyer specialising in public law. A mistake as to the court can be costly: legal fees for annulled proceedings, limitation of action, etc.

However, some mixed disputes exist. For example, if you seek both the annulment of the resolution (administrative judge) and reimbursement of the sum (judicial judge), you may need to bring proceedings before both courts. But the judicial judge may stay proceedings (await the decision of the administrative judge).

In figures: the time limit to bring proceedings before the tribunal administratif is 2 months from notification of the decision. After this period, you are time-barred (you lose your right to act). For a sanitation charge of €500 per year over 5 years, the amount at stake is €2,500. If you go to the wrong court, you lose everything.

Four tips to avoid this type of dispute

• Identify the nature of the contested act: before any action, ask yourself whether the decision you are challenging comes from an administrative authority (town hall, urban community, State) or a private person. If it is an administrative body, it is the administrative judge.
• Consult a lawyer as soon as difficulties arise: a 30-minute consultation can save you from going to the wrong court. In Martigues, Maître Zakine can help you determine jurisdiction according to your situation.
• Respect time limits for appeal: to challenge a resolution, you generally have 2 months from its publication or notification. For charges, the time limit runs from receipt of the bill. Do not delay.
• Check court jurisdiction on the official website: the service-public.fr website offers a jurisdiction simulator. But note, it does not replace personalised legal advice.

Further reading: related case law and developments

This decision is part of consistent case law: the judicial judge cannot deal with administrative acts. One can cite the judgment of the Tribunal des Conflits of 8 February 1873, "Blanco", which established the principle of administrative jurisdiction for disputes involving a public entity. More recently, the Conseil d'État recalled in a judgment of 12 June 2020 that the sanitation charge is a charge for a service rendered, and disputes relating to it fall within the jurisdiction of the administrative judge (CE, 12 June 2020, n° 428569).

The current trend is towards an extension of the administrative judge's jurisdiction, particularly in matters of public contracts and liability of local authorities. For owners, this means being increasingly attentive to the nature of the contested act.

What this decision means for the future: the Court of Cassation will continue to raise of its own motion the lack of jurisdiction of the judicial judge whenever an administrative act is at issue. Lawyers must therefore verify jurisdiction from the outset of the case, on pain of having their proceedings annulled.

Key points to remember

FAQ

1. What is the main lesson of this decision?
The judicial judge cannot rule on the legality of an administrative act. If you challenge a decision of an administrative body, bring proceedings before the tribunal administratif.

2. Can I raise the lack of jurisdiction of the judicial judge at any time?
No, the plea of lack of jurisdiction must be raised before any defence on the merits. But the Court of Cassation may raise it of its own motion if the judge has exceeded its powers.

3. What happens if I have gone to the wrong court?
If the time limit for appeal has not expired, you can bring proceedings before the correct court. Otherwise, you lose your right to act. Consult a lawyer promptly.

4. How do I know if my dispute falls within the jurisdiction of the administrative judge?
Ask yourself who took the decision: a public entity (State, local authority, public establishment) or a private person. If it is a public entity, it is generally the administrative judge.

5. What is the difference between a charge and a tax?
A charge is the counterpart of a service rendered (sanitation, household waste). Its litigation is administrative. Tax (property tax, council tax) also falls within the administrative judge's jurisdiction, but with specific rules.

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 →