FRANCE Law and Practice Contributed by: Thierry Laloum, Jordan Pontal, Julie Sarny and Gabin Dupont-Guianvarch, Willkie Farr & Gallagher LLP
However, it should be noted that, while the addressee of an individual administrative act always has standing to challenge it, it is not cer - tain that other categories of claimants will be entitled to do so. Exceptions may include trade unions, associations or members of a delibera - tive assembly, where applicable. 3.4 Agreements Between Private Entities and Public Bodies Agreements entered into by public bodies and private entities are either: • administrative agreements, which are gov - erned by a legal framework distinct from private law; or • private law agreements. In principle, agreements entered into between public bodies and private entities are subject to private law (and are qualified as private law agreements), unless they are qualified, by law or case law, as administrative agreements. In this regard, third parties: • are entitled to challenge the validity of admin - istrative agreements before administrative courts by virtue of 2014 Council of State case law (Council of State, 4 April 2014, Départe - ment de Tarn-et-Garonne, case No 358994); • are not entitled to challenge the validity of private law agreements before the courts, as there is no challenge before the judicial judge analogous to that created by the Council of State case law. 3.5 Challenging Decisions Without Legal Effect Initially, only administrative acts having legal effect could be challenged before administra - tive courts.
However, since the 2016 Fairvesta and Numéri - cable case rulings, the Council of State accepts the ultra vires action brought against what is known as “soft law” , provided that challeng - ing the “soft law” , while not having direct legal effect, is likely to have significant consequences, particularly of an economic nature, or is intended to substantially influence the behaviour of those to whom such law is addressed (Council of State, 21 March 2016, Société Fairvesta, case No 368082; Council of State, 21 March 2016, Société Numéricable, case No 390023). Additionally, since the 2020 Gisti case ruling by the Council of State, claimants may challenge general documents issued by public authori - ties, regardless of whether they are formalised in documents such as circulars, instructions, recommendations, notes, presentations or inter - pretations of positive law, when they are likely to have significant effects on the rights or situations of individuals other than those responsible for implementing them (Council of State, 12 June 2020, Gisti, case No 418142). 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions Public entities may carry out an economic activ - ity subject to specific conditions (Council of State, 31 May 2006, Ordre des avocats au Bar - reau de Paris, case No 275531): • public entities may only carry out an econom - ic activity within the limits of their powers; • such economic activity must be justified by public interest, which could be the result of, among other things, the lack or inadequacy of private sector initiatives; and
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