Incompetence of the Judicial Judge: No Forfeiture for Raising Lack of Power on Appeal

Imagine a property owner in Tarnos, who bought a building plot but faces a refusal of a building permit due to flood risks. He sues the seller for latent defect. The seller, for his part, contests the substance: the land is not buildable, he did not lie. The trial lasts months. And suddenly, on appeal, the seller raises a preliminary question: is the judicial judge not incompetent, because the dispute falls within the jurisdiction of the administrative judge? Too late, retorts the owner: you should have said so from the start. But what does the law say?

The question that every litigant asks: at what point must you challenge the court's jurisdiction, on pain of losing that right? The answer is in principle strict: before any other defence. But an exception exists when the lack of jurisdiction arises from the separation of powers, that is, when the judicial judge has no right to hear a dispute concerning the administration. This decision of the Court of Cassation of 1973 forcefully reminds us of this.

In this case, the defendant company had not raised the lack of jurisdiction at first instance. It did so for the first time before the Court of Cassation. Too late, say the judges: former Article 168 of the Code of Civil Procedure (now Article 74 of the new Code) requires that pleas of lack of jurisdiction be raised before any other defence. Even if the rule is of public policy, even if it concerns the separation of powers. The appeal is dismissed. A lesson in procedure.

The facts: a story that happens every day

Mr Dupont, a property owner in Capbreton, dreamed of building a house on a piece of land he had acquired. But the building permit was refused due to flood risks. He turns against the seller, considering that the land was not buildable at the time of the sale, which would constitute a latent defect (a defect rendering the property unfit for its use). The seller, a real estate company, defends itself by arguing that the land was buildable, but that the difficulties arose from the acquisition of adjoining plots and administrative delays.

The Tribunal de grande instance of Mont-de-Marsan is seised. The company does not challenge the court's jurisdiction. It pleads on the merits: absence of fault, force majeure (unforeseeable and irresistible event). It loses at first instance. It appeals. Before the court of appeal, it still does not raise the lack of jurisdiction of the judicial judge. It is only before the Court of Cassation that it invokes for the first time that the dispute would fall within the jurisdiction of the administrative judge, because the building permit is an administrative act.

The Court of Cassation opposes a procedural bar: the plea of lack of jurisdiction should have been raised before any defence on the merits, at first instance or at the very least on appeal. By raising it for the first time before the Court of Cassation, the company is precluded (it has lost the right to do so). The case is finally decided on the merits by the court of appeal. A cruel outcome for the company, which could have won if it had raised the lack of jurisdiction earlier.

The reasoning of the court — dissected

The reasoning of the Court of Cassation is relentless. It relies on former Article 168 of the Code of Civil Procedure, which provided that 'the parties may raise pleas of lack of jurisdiction only before all other pleas and defences.' This article has been replaced by Article 74 of the new Code of Civil Procedure, which restates the same principle: 'Pleas must, on pain of inadmissibility, be raised simultaneously and before any defence on the merits or procedural bar.'

The Court specifies that this rule applies even when the rules of jurisdiction are of public policy, i.e., mandatory, such as those arising from the separation of powers. In other words, even if the judicial judge has absolutely no right to hear a case that falls within the jurisdiction of the administrative judge, the party that does not raise this plea in due time can no longer rely on it.

The Court therefore rejects the company's argument, which maintained that the lack of jurisdiction was of public policy and could be raised at any time. The judges recall that forfeiture (loss of the right to act) applies even in this case. In doing so, the Court confirms constant case law: procedure has its requirements, and compliance with deadlines is paramount. The company should have raised the plea of lack of jurisdiction at first instance, or failing that on appeal, but certainly not for the first time before the Court of Cassation, which only judges the law and not the facts.

This decision is a perfect illustration of the principle of estoppel (prohibition against contradicting oneself to the detriment of another) in French law: one cannot wait until the last instance to completely change strategy. The parties must act in good faith and with diligence.

What this changes for you — concretely

If you are a property owner or tenant involved in a property dispute, this decision reminds you of a golden rule: if you think the court seised is not competent, say so immediately. Do not start discussing the merits of the case before raising the lack of jurisdiction. Example: you are a property owner in Capbreton and you sue your neighbour over a party wall (construction on the boundary). If you first argue that the wall is poorly built, then on appeal that the district court is not competent, it will be too late.

For property professionals (agents, notaries, developers), the lesson is clear: if in doubt about the jurisdiction of the judicial or administrative judge, raise the plea in the first set of submissions. Otherwise, you risk losing that means of defence, even if the lack of jurisdiction is obvious. A developer building in Tarnos who is sued for lack of a building permit must, if he believes that the administrative judge is solely competent, say so before discussing the merits.

Concretely, if you are in this situation, you must: 1) check the nature of the dispute (private or public law); 2) if you think there is a lack of jurisdiction, draft a plea of lack of jurisdiction in your first submissions; 3) do not wait for appeal or cassation. The deadline for raising a plea of lack of jurisdiction is in principle until the first defence on the merits. After this deadline, you are precluded.

Four tips to avoid this type of dispute

• Tip 1: Consult a lawyer before any defence on the merits. As soon as you receive a writ, do not reply on the merits before checking the court's jurisdiction. A lawyer will advise you whether to raise a plea of lack of jurisdiction. This can save you from losing a decisive argument.
• Tip 2: List all possible pleas. Before drafting your submissions, make an inventory: lack of jurisdiction, lis pendens (same case pending before two courts), connexity (related cases), nullity of the writ. All these pleas must be raised at the same time, before any defence on the merits.
• Tip 3: Do not rely on the court of appeal to make up for your oversight. The court of appeal can be seised of a plea of lack of jurisdiction for the first time, but only if it was not decided at first instance. If you have already pleaded the merits at first instance without raising the lack of jurisdiction, you can no longer do so on appeal.
• Tip 4: If in doubt about administrative jurisdiction, act quickly. If the dispute involves an administrative decision (building permit, planning permission), the jurisdiction of the administrative judge may be of public policy. But even in this case, the plea must be raised before any defence on the merits. Do not delay.

Further reading: related case law and developments

This 1973 decision is part of a consistent line of authority. Already in 1966, the Court of Cassation had held that the plea of lack of jurisdiction based on the separation of powers must be raised before any defence on the merits (Civ. 1re, 9 March 1966, No. 64-10.123). More recently, in a 2015 judgment (Civ. 2e, 5 February 2015, No. 13-27.356), the Court reaffirmed that the argument based on the incompetence of the judicial judge in favour of the administrative judge cannot be raised for the first time before the Court of Cassation.

The trend is therefore towards strengthening procedural rigour. The judges want the parties to be active from the start of the proceedings. This avoids delaying tactics and guarantees the proper administration of justice. For the future, it is unlikely that this rule will evolve: it is anchored in the Code of Civil Procedure and validated by the European Court of Human Rights (ECHR) as compliant with the right to a fair trial.

Note, however, a nuance: since the 2019 reform, Article 76 of the Code of Civil Procedure allows the judge to raise his own lack of material jurisdiction (by subject matter) within certain limits. But this does not dispense the parties from raising the plea if they wish. Vigilance remains necessary.

Key points to remember

FAQ:

• Q: Can I raise the court's lack of jurisdiction after pleading the merits? A: No. You must do so before any defence on the merits, on pain of inadmissibility.
• Q: Is the plea of lack of jurisdiction lost if I do not raise it at first instance? A: Yes, unless it is of public policy and the judge raises it of his own motion. But it is better not to rely on the judge's initiative.
• Q: Can I challenge jurisdiction for the first time on appeal? A: Yes, if you did not do so at first instance, but only if the plea was not decided and you raise it before any defence on the merits on appeal.
• Q: What if the court is incompetent but I have already pleaded the merits? A: You are precluded. You can no longer raise the plea. You will have to bear the decision on the merits.

Checklist: What to do if you receive a writ:

1. Do not reply on the merits.
2. Consult a lawyer.
3. Check the court's jurisdiction (subject matter, territorial, order of jurisdiction).
4. If lack of jurisdiction, draft a plea of lack of jurisdiction in your first submissions.
5. If several pleas, raise them all at the same time.

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 →