Judicial system on hold and creation of a “delay protection zone” because of COVID-19 situation in France
Many are the procedural delays that any individuals appearing in the courts must comply with, in order not to lose the benefit of their claims: by Order dated 25 March and following the declaration of a national state of health emergency, the government introduced a system of extensions of time limits during this very special period.
Principle of prescription
Article 2234 of the French Civil Code provides that: "Prescription does not run or is suspended against one for whom it is impossible to act following an obstacle resulting from the law, from an agreement, or from force majeure”.
Article 2230 of the French Civil Code provides that: "Suspension of the prescription temporarily stops its course without erasing the delay that has already run.”
The event that prevents to litigate in court may be collective (war, strike, riot, natural disaster, epidemic, social unrest) or individual (debtor's act).
Article 3 of Decree n° 2020-293 of 23 March 2020 on the general measures necessary to deal with covid-19 epidemic in the context of a state of health emergency provides that:
“I. - Until 31 March 2020, any movement of persons outside their homes is prohibited, with the exception of travel for the following reasons, avoiding any grouping of persons:
1° Travel to commute to and from work and business travel that cannot be postponed;".
Consequently, the activity of the bailiffs (judicial officers) is now extremely restricted, and it is quite likely that the 31 March date will be postponed.
Thus, pursuant Article 2234 of the Civil Code, we will be able to invoke for the cases where a prescription had to intervene in this period of confinement, the force majeure or the fortuitous occurrence, when it will not have been possible to avoid the expiry of the time limit to act accordingly.
In such cases, it is worth sending the judicial documents to the bailiffs, in order to justify our diligence and thus argue on the fact that the diligent and informed person (such as a bailiff) was not able to avoid the expiry of the time limit.
However, we will not be able to apply this article if, at the time when the impediment ended, the right holder before the court still had the necessary time to act (Court of Cassation, 13 March 2019, n°17-50.053). Case law is quite old and consistent on this point.
It will therefore be necessary to be very watchful with time limits expiring a few days after the end of the state of health emergency.
Nevertheless, even in the event when the writ of summons would be served on the defendant, the entry of the case on the court's register is not guaranteed, particularly before the civil jurisdiction. Yet the commercial courts have set up online processes and alternative arrangements will apply during this period.
Principle on time limits for legal proceedings
Courts of appeal and civil courts - with whom the use of the virtual private network for communication between lawyers and courts is mandatory – ask to "stop sending messages, filing written submissions or any other judicial acts" in order to avoid congestion of the system.
For pre-trial hearings, there is no need for the time being to give further requests to the court while extensions of time limit automatically apply.
In most courts, there is only a duty office responsible for urgent summary proceedings. Other applications (e.g. interim relief) to be submitted by email.
However, until 12 March 2020, the mandatory deadlines to comply with under penalty of lapse of the right or inadmissibility had to be met in the absence of a decree of automatic extension (unless other circumstance to be demonstrated).
From now on, the emergency law n° 2020-290 dated 23 March 2020 and published on 24 March 2020 declared a state of health emergency in order to deal with the COVID-19 epidemic.
Several Orders were thus issued, including one relating to the extension of deadlines expiring during the health emergency period and the adaptation of procedures during the same period (Order No. 2020-306 dated 25 March 2020).
Article 2 provides that:
"Any act, notice of appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation under penalty of nullity, sanction, foreclosure, prescription, unenforceability, inadmissibility, lapse, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been completed during the period mentioned in Article 1 shall be deemed to have been done in time if it has been done 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".”
These measures come into force retroactively as from 12 March 2020 and the periods and measures concerned shall be those which have expired or expire between 12 March 2020 and the expiry of one month from the date of cessation of the public health emergency state.
Nevertheless, despite the above-mentioned restrictions, we recommend:
- to comply with the time limits for appeal lapses (articles 908 and 909 of the Code of Civil Procedure),
- to send the judicial documents to be notified to the bailiffs (as being judicial officer),
- and to prepare all the judicial documents without specific deadlines in order to be ready as soon as the judicial activity will resume.
The purpose of these recommendations is to ensure a quick resumption of each other’s cases and to trigger all pending proceedings, in an attempt to make up for the delays - now several months - in the processing of litigation by the courts.
For any question, please send us an email to: [email protected]