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In a recent ruling dated 12 March 2020, the Colmar Court of Appeal has qualified the COVID-19 epidemic as a force majeure event (Court of Appeal, Colmar, 12 March 2020 - n° 20/01098).

The case concerned the administrative detention of a person who was unable to attend the hearing insofar as he had been in contact with persons likely to be infected by the virus.

In that context, the Court of Appeal held that "these exceptional circumstances, which led to the absence of Mr. Victor G. from today's hearing, constitute a force majeure event, being external, unforeseeable and irresistible, given the time-limit imposed for the ruling and the fact that, within that time-limit, it will not be possible to ascertain that there is no risk of contagion and to have an escort authorized to take Mr. G. to the hearing".

The Court, being to our knowledge the first to classify the Covid-19 epidemic as a force majeure event, also took the opportunity to recall the conditions of force majeure, even though in the present case it was not invoked in connection with a contract.

Whether in respect of contractual liability or tortious liability, force majeure, according to the classical definition given, is an event which is characterized by three elements: its exteriority, its unpredictability and its irresistibility, subject in contractual matters to the specific provisions of a force majeure clause.

Consequently, as the Colmar Court of Appeal has pointed out, an event must present these three characteristics in order to be qualified as force majeure :

  • It must be beyond the control of the debtor of the obligation (the Colmar Court of Appeal referring to the condition of exteriority);

  • It must have been reasonably unforeseeable (in the case of a contract, at the time of its conclusion);

  • It must be irresistible. This means that it must be inevitable in its occurrence and insurmountable in its effects.

The judgment of the Colmar Court of Appeal thus focuses on demonstrating that no alternative measure would allow the defendant to attend the hearing, even specifying that "the Geispolheim administrative detention center has indicated that it does not have the equipment enabling it to hear Mr. Victor G. through a videoconference, which means that such a solution is not possible for this hearing either".

Indeed, the judges assess on a case-by-case basis whether, faced with an external and unforeseeable event, the debtor was genuinely unable to perform his obligation, and whether it was possible or not to adopt "appropriate measures" enabling him to comply with his contractual obligations (use of alternative sources of supply, production at other sites, etc.).

Case law has ruled on a number of occasions on epidemics which were invoked as events constituting force majeure. It emerges from this analysis that it is very rare for the judge to grant such requests. French judges have thus refused to classify the following epidemics as force majeure:

  • H1N1 influenza 2009 (Besançon Court of Appeal, 8-1-2014 - No 12/0229);
  • The plague bacillus (Paris Court of Appeal, 25-9-1998 - No. 1996/08159);
  • The dengue virus (Nancy Court of Appeal, 22-11-2010 - No 09/00003);
  • The chikungunya virus (Basse-Terre Court of Appeal, 17-12-2018 - No 17/00739).

Thus, the Colmar Court of Appeal, by ruling that the COVID-19 epidemic constitutes a case of force majeure, (albeit in special circumstances) shows that these decisions are based on a very casuistic assessment that is not necessarily transposable to the COVID-19 epidemic (the measures taken to stop the spread of COVID-19 being, according to us, unprecedented).

Moreover, the type of measures adopted is evolving very rapidly. Therefore, checking whether or not the conditions of force majeure are met should be done at the moment at which the force majeure is invoked by one party, since the various texts adopted in this respect could justify such claim.

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