FILING OF A CIVIL ACTION AUTHORISED BY A RESOLUTION OF THE TOWN COUNCIL

Civil action brought by a municipality

The mayor represents the municipality in all its legal acts and in particular in legal proceedings (Article L. 2122-21 of the French General Code for Local Authorities). However, the office of mayor does not entail authority to take legal action on behalf of the municipality.

The Municipal Council alone has the power to decide which actions to take on behalf of the municipality and to authorise the mayor to take them.

In this case, the juvenile court and the special juvenile division had declared inadmissible the civil action brought by a municipality in connection with proceedings for aggravated damage.

The lower courts considered that without specifying the matters for which the mayor had an delegation to take legal action, By reproducing the legal provisions, the deliberations could not be considered as a delegation for all of the municipality's litigation.

The municipal council's decision authorising the mayor to take legal action on behalf of the municipality should :

-or specify the cases of delegation,

-or expressly state that it applied to all of the municipality's litigation.

Solution adopted by the Cour de cassation :

In the view of the lower courts, this was not a valid delegation for bring a civil action.

This ruling by the Criminal Division of the Court of Cassation puts an end to this approach: the municipal council's decision may include the terms of article L. 2122-22 of the General Code of Local Authorities, without specifying the matters for which the mayor had been delegated to take legal action, this deliberation constituting a delegation for all the municipality's disputes.

Court of Cassation, Criminal Division, 4 April 2023, No. 22-83.613

Good to know:

 The mayor may only take legal action on behalf of the municipality if authorised to do so by the municipal council. In the event of an oversight, it is still possible for the municipal council to regularise the procedure initiated, provided that the deliberation takes place before the court to which the case is referred rules on the admissibility of the application.

 It should be remembered that the municipal council may also, by resolution, delegate to the mayor the power to institute legal proceedings on behalf of the municipality, either generally or for certain types of dispute. In the absence of such a delegation, it is up to the council to deliberate on each legal action brought.