Ordinances no. 2020-303, -304, -305 and -306 of 25 March 2020

4 ordinances were taken by the Minister of Justice this 25 March 2020, in application of law no. 2020-290 of 23 March 2020 to face the health emergency situation:

  • one ordinance relates to the extension of expired deadlines during the health emergency period
    • ORDINANCE NO. 2020-306: EXTENSION OF EXPIRED DEADLINES DURING THE HEALTH EMERGENCY PERIOD AND ADJUSTMENT OF PROCEDURES
  • and three ordinances on the adjustment of the rules on criminal, civil and commercial and administrative procedures:
    • ORDONNANCE NO. 2020-303: ADJUSTMENTS OF THE RULES ON CRIMINAL PROCEDURES
    • ORDONNANCE NO. 2020-304: NON CRIMINAL JUDICIAL COURTS AND PROPERTY MANAGERS
    • ORDONNANCE NO. 2020-305: ADMINISTRATIVE COURTS

(1) Extension of expired deadlines during the health emergency period (Ord. no. 2020-306)

The health emergency period is a concept common to all four ordinances. A period during which deadlines are adjusted starting from 12 March 2020 until the expiration of the period of one month from the date of termination of the state of health emergency as for now, 24 June 2020

CALCULATON. (1) THE STATE OF HEALTH EMERGENCY IS ESTABLISHED "FOR A PERIOD OF TWO MONTHS FROM THE ENTRY INTO FORCE OF THIS LAW" (ART 4 OF LAW NO. 2020-290). THE LAW COMES INTO FORCE "IMMEDIATELY" (ARTICLE 22), I.E. AT THE DATE OF ITS PUBLICATION IN JORF, ON 24 MARCH 2020 + 2 MONTHS FOR THE STATE OF HEALTH EMERGENCY (24 MAY 2020) + ONE MONTH FOR THE REFERENCE PERIOD (24 JUNE 2020)
(2) THE END OF PERIOD DATE MAY BE AMENDED BY LAW.

The ordinance on the extension of deadlines applies to judicial (civil, commercial) and administrative litigation but not to criminal litigation, as specified in the other ordinances, by reference, but its scope is wider than the judicial domain and extends for certain provisions to the contractual domain.

It includes the 4 main following articles:  

Article 2

Any act, remedy, legal action, formality, registration, declaration, notification or publication as prescribed by law or regulation under invalidity, sanction, nullity, foreclosure, limitation, unenforceability, inadmissibility, expiration, automatic withdrawal, application of a special regime, not having occurred or forfeiture of any right whatsoever and which should have been completed during the period mentioned in article 1 will be deemed to have been made in time if it has been completed within a period which cannot exceed , from the end of this period, the legally allowed time to act, within a time limit of two months.

The same applies to any payment prescribed by law or regulation for the acquisition or retention of a right.

NB: The scope of this article is very wide but only applies to deadlines resulting from the law or regulations, which excludes the contractual domain. The payments provided for by the contracts must take place within the agreed deadlines, except of course rule of common law allowing to derogate from them such as force majeure (1218 of the French Civil Code) and impossibility to act (2224 of the French Civil Code).

Article 3

The following administrative or jurisdictional measures and whose term expires during the period defined in I of article 1 are automatically extended until the expiration of a period of two months following the end of this period:

1 ° Provisional, investigative, conciliation or mediation measures;
2 ° Prohibition or suspension measures which have not been pronounced as a sanction;
3 ° Authorizations, permits and approvals;
4 ° Aid, social support or any support measures for people in social difficulty;
5 ° Measures to help manage the family budget.

However, the judge or the competent authority may modify these measures, or terminate them, if they were pronounced before 12 March 2020.

NB: This catch-all article covers in particular the concept of administrative or jurisdictional protective or suspension measures, the term of which would expire during the period of health emergency and which is postponed. Numerous provisional jurisdictional decisions, in particular summary proceedings, are likely to be affected.

Article 4

When their purpose is to sanction the non-performance of an obligation within a specified period, any periodic penalty payments, penal clauses, cancellation clauses as well as the clauses providing for a forfeiture, are deemed not to have taken effect or to have effect, if this period has expired during the period defined in I of article 1.

Such periodic penalty payments and clauses take effect from the expiration of a period of one month after the end of this period if the debtor has not performed his obligation before this term.

The periodic penalty payments and the application of penal clauses which took effect before 12 March 2020 are suspended for the period defined in I of article 1.

NB: This provision which neutralizes certain clauses penalizing the non-performance of obligations applies to the contractual domain and could be read as a kind of incentive not to execute such obligations or in any case postpone them. The rule applies by its very purpose to contracts in force, but the question remains opened as to how deviate from such rule in the case of contracts to be signed, at least between professionals.

Article 5

When an agreement can only be terminated during a specified period or if it is automatically renewed in the absence of end notification within a specified period, this period or delay is extended to two months after the end of this period (if they expire during the period defined in I of the article 1).

The ordinance also covers certain specific time limits applicable to the administration, in particular implied refusals or work inspections.

It provides that Decrees may make use of certain time limits for reasons of general interest.

(2) Civil and commercial procedures ("non criminal") (Ordinance no. 2020-304)

The deadlines referred to in Ordinance 2020-306 mentioned above are applicable to legal proceedings.

These adjustment measures allow:

- to redirect urgent litigation procedures pending before a court unable to function to another court within the jurisdiction of the Court of Appeal, by decision of the president of the Court of Appeal (art.3)

- to inform the parties or their counsels of the cancelled hearings and of their dismissal. (art.4).

- to rule by a single judge in court (TJ) as in Court (art.5). Note: at the Commercial Court this was already the case.

- to restrict the publicity of the hearing, which may even be ordered in private, in the event of public health reasons (Article 6).

- to use videoconferencing by decision of the judge not subject to appeal, and if it does not work, to use any other digital ways of communication including the telephone. (art. 7)
NB: The judge must be able to ascertain the identity of the parties or their lawyers, the quality of the transmission and the confidentiality of the exchanges.

- to conduct procedures without a hearing, as soon as the parties are represented by a lawyer, on decision of the judge liable to opposition within 15 days except for interim measures and urgent procedures (fixed day, short time) (art.8).

- in the case of interim proceedings, the request may be dismissed before the hearing by a non-adversarial order for inadmissibility or no need for interim measures (art.9).

- decisions can be brought to the attention of the parties by any means (art.10)

It also includes specific provisions for the taking of oaths (art. 11), the extension of protective measures for adults (art. 12), children (art. 13 to 21) and the extension of trustee contracts (art. 22).

(3) Administrative procedures (Ordinance no. 2020-305)

The health emergency period is here set between 12 March 2020 and 24 May 2020 (not June), that is, the date of termination of the declared state of health emergency. (art.2).

The time extensions of the above-mentioned Ordinance 2020-306 are deemed to be applicable to administrative disputes.

The ordinance provides for

- the shift rotation of the magistrates to maintain in full the judgment formations in the administrative court as in the Administrative Court of appeal (art.3)

- the communication of documents, acts and notices by any means (art.5),

- the possibility of not having a public audience or a public audience restricted to hearings (art. 6)

- the holding of hearings by audiovisual telecommunication channels, or even by telephone if necessary (art. 7).

- the rapporteur's relief from presenting his conclusions at the hearing.

- it can be decided without hearing on applications for interim measures (art.9) and requests for suspension of execution (art.10).

- simplifications are also provided for making such decision available, its execution and its notification to a lawyer (art 11 to 13)

The suspension of the deadlines provided for by Ordinance 2020-306 are applicable to the proceedings before the administrative courts. Special deadlines are set in the matter of deportation to the border, right of asylum and electoral disputes (Article 15).

(4) Ordinance adjusting the criminal procedures (Ordinance no. 2020-303)

Summary: The principle is that of the continuity of the activity necessary for the maintenance of public order, with adjustments due to the disruptions caused by the health crisis, suspensions or extension of deadlines, videoconference, restriction of the publicity of legal debates, exceptions to collegiality, adjustment of detention conditions.

In detail: If the deadlines for prosecution and sentence are suspended until the expiration of the period of one month from the end date of the State of health emergency, i.e. until 25 June 2020 (art. 2 and 3), the extension is more moderate for the exercise of remedies which are simply doubled without being able to be less than 10 days (except the deadline of 4 hours of appeal of the prosecutor in case of the release of a person placed in pre-trial detention).

Remedies can be made by registered letter, it is the signature of the acknowledgement of receipt note by the registry that sets the deadlines. (art.4)

The use of videoconferencing is possible even without the agreement of the parties. If this is not possible, the judge may decide on other electronic means, in particular the telephone. He must ensure the quality of the transmission, the identity of the people and that confidentiality is ensured between the client and his lawyer. (art.5)

If it is impossible for a court to function, another court may be appointed by the First President of the Court of Appeal.

The publicity of the hearing can be restricted and even ordered behind closed doors for health reasons (art. 7). The derogation from collegiality is established (Articles 9, 10 and 11) and the possibility of instituting a shift rotation of magistrates in the case of their absence (12).

Other provisions apply to police custody (arts. 13 and 14) and to the extension of pre-trial detention for two or three months depending on the sentence incurred (15 and 16), to the adjustment of the deadlines for the immediate appearance, release and deadline for ordering a judgment for the court of cassation (articles 17 to 20), imprisonment (21 to 29) and for minors (30 and 31).


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