On 23 March 2020, the French government adopted the emergency law no. 2020-290 to declare a territory-wide state of public health emergency for a period of two months, i.e. until 24 May 2020 (unless extended) in response to the global Covid-19 pandemic.
Twenty-five decrees were issued following the enactment of the emergency law, including four decrees concerning civil proceedings, which provide in particular that, during the state of public health emergency, the activity of French courts will be limited to essential litigation matters. In addition, any time-limits expiring between 12 March 2020 and one month from the end of the state of emergency, i.e. 24 June 2020, will be extended.
Clyde & Co Paris has examined for its clients decrees:
Relating to judicial proceedings; and
Concerning time-limits during the current state of public health emergency.
We remain available to respond to further Covid-19 related enquiries.
Administration of litigation
Are the courts and tribunals still operational?
No, except for essential litigation matters
Since 16 March 2020, business continuity plans (BCPs) have been implemented within French jurisdictions to prevent the spread of the Covid-19 virus while maintaining a minimum of judicial activity.
Most of the BCPs that we have reviewed at this stage provide for the courts to be closed until further notice, except with respect to the handling of essential litigation matters.
Since each court has its own BCP, it is essential to check the approach of the relevant court.
The concept of "essential litigation" covers criminal litigation, summary proceedings and the handling of civil litigation of an urgent nature, as well as litigation relating to the protection of vulnerable persons.
Will litigation proceedings during the state of public health emergency be handled in the same way as before?
Well, not exactly…
Decree no. 2020-304 of 25 March 2020 introduces organisational or procedural rules that derogate from or override those of the French Code of civil procedure.
The main measures are as follows:
Adjournment - Simplification of the formalities to adjourn – information by any means, in particular electronic communication between lawyers or by standard letter between parties.
Single judge - If a hearing with oral arguments was supposed to take place between
12 March 2020 and the expiry of a period of one month from the end of the state of public health emergency, the court may, by decision of its president, allow cases to be heard by a single judge at first instance and on appeal.
Communication of exhibits and written submissions and publicity of hearings - The parties may exchange their submissions and exhibits by any means as long as the judge can ensure that the principle of due process is complied with. The president of the court may decide that proceedings be conducted with restricted publicity and, if necessary, in the judge's chambers.
Use of audio-visual communication and electronic communication - Hearings, both at first instance and on appeal, may take place by videoconference.
·Where representation by a lawyer is mandatory or where the parties are represented or assisted by a lawyer, the court or tribunal may rule on the case without a hearing and following a written procedure.
·The parties will not be able to oppose a decision to proceed without a hearing where the proceedings are urgent. In other proceedings, the parties have 15 days to object.
·Proceedings will be exclusively document-based. Communication between the parties shall be made by notification between lawyers.
Interlocutory proceedings - The court may, by non-adversarial/ex parte order, reject an application which is inadmissible or which does not meet conditions for admissibility.
Notification of decisions - Decisions rendered may be communicated to the parties by any means, without prejudice to the rules on notification of decisions.
What happens if a deadline expires between 12 March 2020 and 24 June 2020?
Which deferral for formalities, legal actions or payments prescribed by law or regulation?
The initial prescribed time-period for carrying out these acts shall recommence from 24 June 2020, until 24 August 2020 at the latest.
If the time-period initially set was less than two months, the act must be carried out within that period running from 24 June 2020. For example, a pledge of business shares was established 25 February 2020 and must be registered within 30 days according to the law. The pledge may be registered until 24 July 2020.
If the time-period initially set was more than two months, the act may be performed until 24 August 2020. For example, Company X wishes to take legal action on the basis of latent defects under French Law after discovering on 15 April 2018 a defect in a machine delivered to it on the same day. This action will be time-barred for two years after the discovery of the defect. Company X will be able to take legal action until 24 August 2020.
Which deferral for administrative or jurisdictional measures such as provisional, investigatory, conciliation or mediation measures, or authorizations, permits and approvals?
Such measures and acts can be carried out until 24 August 2020.
Example - A judge ordered a seizure which was due to expire on 1 June 2020. This seizure will be automatically extended until 24 August 2020, unless the competent judge decides to terminate it earlier.
Which deferral for periodic penalty payment clauses and clauses aimed at sanctioning a debtor's non-performance, such as liquidated damages clauses and termination clauses?
The application of periodic penalty payments clauses and of liquidated damages clauses which came into effect before 12 March 2020 shall be suspended for the period up to 24 June 2020.
Clauses that did not come into effect before 12 March 2020 are postponed until 24 July 2020 (if the debtor has not performed its obligation before that date).
Example - A contractual clause provides for daily liquidated damages for failure to deliver equipment after 27 March 2020. In the event of non-delivery, liquidated damages will only start to run from 24 July 2020.
Which deferral for contractual termination clauses which provide that such termination need to be carried out during a certain period or within a certain timeframe?
This period is extended until 24 August 2020.
Example -A contract provides for its tacit annual renewal if it is not terminated within one month of its anniversary date of signature, which is 17 April. In 2020, the contract may be terminated until 24 August 2020.
Are contractual obligations affected?
No, contractual payment deadlines falling between 12 March 2020 and 24 June 2020 will in principle have to be met.