In addition to declaring France to be in a state of health emergency, the Law No. 2020-290 of 23 March 2020 intended to deal with the Covid-19 epidemic empowered the French Government to legislate by means of Orders in many areas.
On 25 March 2020, and on the basis of this authorization, the Government notably adopted two Orders to preserve the rights of litigants and adapt legal proceedings to the requirements of fighting the spread of Covid-19:
- The first Order relates to the extension of the time limits that expired during the period of health emergency and the adaptation of procedures during that same period;
- The second Order relates to the adaptation of the rules applicable to courts of law ruling in non-criminal matters and to co-ownership property management contracts ("contrats de syndic de copropriété").
This alert is devoted to the adjustments implemented by the two aforementioned Orders, regarding their aspects applicable to civil and commercial proceedings.
I. Order n° 2020-306 of 25 March 2020 and the extension of time limits
Order No. 2020-306 of 25 March 2020 concerns deadlines and measures which have expired or are due to expire between 12 March 2020 and the expiry of a period of one month after the end of the state of health emergency.
Article 2 of the Order states that:
- Any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation failing which they will be void, sanctioned, lapsed, foreclosed, time barred, unenforceable, inadmissible, lapsed, automatically withdrawn, see the application of a special regime, null or forfeited of any right which should have been accomplished between 12 March 2020 and the expiry of a period of one month after the end of the state of health emergency shall be deemed to have been accomplished in time if it has been accomplished within a period which may not exceed, as from the end of that period, the period legally prescribed for taking action, up to a maximum of two months ;
- The same shall apply to any payment prescribed by law or regulation for the acquisition or retention of a right.
The circular presenting the provisions of Order No. 2020- 306 of 25 March 2020 provides a useful example of the application of this provision:
For a debt due on 20 March 2015, the five-year limitation period (Article 2224 of the Civil Code) was due to expire on 20 March 2020.
In accordance with Article 2 of the Order, the period will run for an additional period of two months following the expiry of a period of one month from the date of cessation of the state of emergency, itself set as of 24 May 2020 pursuant to Article 4 of the abovementioned Law of 23 March 2020.
In other words, the period will be postponed by 3 months from the end of the state of emergency (i.e. until 24 August 2020, subject to a change in the duration of the state of emergency).
The plaintiff will therefore be able to act within this period without his action being declared time-barred.
If the legal time limit for action was shorter than two months, however, action should be taken within that period starting one month after the end of the state of emergency.
Furthermore, Article 3 of the Order provides that:
The following administrative or jurisdictional measures whose term expires between 12 March 2020 and the expiry of a period of one month from the end of the state of public health emergency are automatically extended until the expiry of a period of two months following the end of that period:
- 1° Precautionary measures, investigation measures, conciliation or mediation measures;
- 2° Prohibition or suspension measures which have not been pronounced as a sanction;
- 3° Authorizations, permits and approvals;
- 4° Measures of assistance, accompaniment or support for persons in social difficulty;
- 5° Measures to assist in the management of the family budget.
- However, the judge or the competent authority may modify these measures, or put an end to them, when they were pronounced before 12 March 2020.
II. Order No. 2020-304 dated 25 March 2020 and the organization of hearings before civil and commercial Courts
Order No. 2020-304 dated 25 March 2020 essentially aims at adapting the rules of procedure to the requirements of fighting the spread of Covid-19.
To this end, it includes a set of rules dealing with the conditions of hearings.
The President of the Court may decide, before the opening of the trial, that the proceedings will be held in restricted publicity. If it is impossible to guarantee the conditions necessary to the protection of the health of the persons present at the hearing, the proceedings shall be held in the chamber of the council (i.e. without public).
The judge may also decide, by a decision which is not subject to appeal, that the hearing shall be held using an audiovisual means of telecommunication, which must be such as to ensure the identity of the parties and guarantee the quality of transmission and the confidentiality of discussions between the parties and their lawyers.
If it is technically or materially impossible to use such a means, the judge may decide, by a decision which is not subject to appeal, to hear the parties and their lawyers by any means of electronic communication, including telephone, which must be such as to ascertain their identity and guarantee the quality of the transmission and the confidentiality of the exchanges.
Furthermore, where representation is mandatory or where the parties are assisted or represented by a lawyer, the judge may decide that the proceedings shall be conducted in accordance with the procedure without a hearing. With the exception of summary proceedings, expedited proceedings on the merits and proceedings in which the judge must rule within a specified period, the parties have a period of 15 days in which to object to the proceedings without a hearing. In the absence of objection, the proceedings shall be exclusively in writing.
Finally, Article 9 of Order No. 2020-304 of 25 March 2020 provides that, in the event of a summons for summary proceedings, the Court may reject the application before the hearing, by a non-adversarial order, if the application is inadmissible or if there is no legal ground for summary proceedings.
It remains to be seen how these provisions will be applied by the various courts in France.