Since 16 March 2020, courts have been closed and all hearings have been postponed except those concerning disputes considered as "essential". In practice, the judiciary is therefore at a on hold and it is currently very difficult to get access to a judge.
Four Ordinances published in the French Official Gazette on 26 March 2020 ended these uncertainties by introducing temporary measures applicable from 12 March 2020 until the expiry of a one-month period after the termination date of the state of health emergency.
These Ordinances refer to Article 4 of Emergency Law No. 2020-290 of 23 March 2020 to address the Covid-19 outbreak, which set the end of the state of health emergency on 24 May 2020, being specified that this period may be extended to a later date.
These measures are salutary but may disrupt an already stretched judicial calendar. Procedural time limits are likely to be considerably extended.
Once the health crisis is over, the length of proceedings will certainly be a central element in settling judicial strategies. Alternative dispute resolution methods may be worth exploring, bearing in mind that the French legal system remains fairly favourable to creditors in the implementation of protective measures and that, since 1 January 2020, first-degree decisions are provisionally enforceable.
The ordinances undertaken aim above all to limit judicial activity to essential litigation (1.). It is adjusted in order to comply with health regulations (2.) and procedural time limits are extended (3.).
- The judicial activity is limited to essential litigation
All hearings are currently postponed, except for litigation considered as "essential". Deliberations have been extended sine die.
The possibility of bringing a case before court during the state of health emergency period is thus limited to the following cases:
- Emergency proceedings before the civil judge (civil and commercial interim proceedings);
- Requests to initiate insolvency proceedings (conciliation, ad hoc mandate, safeguard, etc.);
- Urgent and essential criminal litigation (pre-trial detention hearings, summary trial hearings, etc.).
One of the major difficulties that arises is the court’s assessment of the cases’ urgency, which is likely to be strictly assessed.
In order to avoid clogging up the maintained emergency hearings, courts may, by non-adversarial order, reject claims before the hearing. These decisions may not be appealed.
- Essential hearings are arranged in order to comply with the health measures
For maintained essential litigation, courts (except in criminal matters) may hold their hearings by videoconference or any other means of audiovisual telecommunication.
Public hearings may also be restricted.
Courts may rule as a single judge. A transfer of jurisdiction to a court of the same nature or the same jurisdiction may also be ordered when a court of first-degree jurisdiction is unable to function fully or partially.
- Extension of procedural time limits
In criminal matters,1 the limitation periods for prosecution and punishment are suspended from 12 March 2020 until the expiry of a one-month period after the termination date of the state of health emergency, i.e. until 24 June 2020.2
The time limits for appeals are also doubled, but may not be less than 10 days.
Appeals and claims may be made by registered letter with acknowledgement of receipt, or in some cases by e-mail.
In civil matters,3 all procedural time limits expiring between 12 March 2020 and the expiry of a one-month period from the termination date of the state of health emergency are postponed.
Unlike the Ordinance on criminal matters, this is not the usual suspension or interruption of time limits in civil matters.
This postponement is general and concerns:
- Any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation under penalty of nullity, sanction, lapse, foreclosure, prescription, unenforceability, inadmissibility, automatic withdrawal, application of a special regime, void or forfeiture of any right.
- Administrative or jurisdictional measures such as legal expertise, provisional measures or measures of investigation, mediation or conciliation, the term of which would have expired during the state of health emergency period.
The contractual time limits are not affected by these temporary measures and it is therefore up to the parties to adjust them if necessary.
In practice, time limits that expire before 12 March 2020 or after 24 June 2020 are not extended.
Therefore, only time limits that expired in the period from 12 March 2020 until 24 June 2020 are concerned. The acts or formalities to be carried out within this period may be carried out if possible. However, an additional period of maximum two months to act is granted, i.e. until 24 August 2020.4
If the initial period is less than two months, action will have to be taken within the period prescribed by law or regulation, and if it is longer than two months, action will then have to be taken within two months.
- Order No. 2020-303 of 25 March 2020
- Subject to no subsequent extension of the state of health emergency.
- Order No. 2020-306 of 25 March 2020
- Subject to no subsequent extension of the state of health emergency.
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you may face related to COVID-19.
For more information on the legal and business implications of COVID-19, visit the Reed Smith Coronavirus (COVID-19) Resource Center or contact us at COVID-19@reedsmith.com
Client Alert 2020-184
