The impact of Covid-19 on legal procedures in France
Jacques Bouyssou
What has been the impact of Covid-19 on the operation of courts and court hearings in your jurisdiction?
In response to the coronavirus pandemic, the French government has introduced legislation enforcing the closing of law courts and the suspending of judicial proceedings.
During this period, courts remained opened exclusively to deal with “essential” matters such as: urgent criminal cases with incarceration issues, civil cases with familial and violence issues. Apart from these essential matters, hearings have been postponed.
To this end, few hearings have been taking place having regard to sanitary measures. Those measures include, in particular, rules on minimum physical distancing and the requirement to wear a protective mask, including inside the hearing room.
For “non-essential” matters, hearings have been postponed until further notice.
As the lockdown is progressively being lifted in France, national courts and tribunals are now looking at solutions, in particular technological ones, in order to ensure that hearings take place under optimal conditions.
Has your government passed legislation or issued orders suspending the operation of substantive deadlines such as limitation periods? Have there been changes to procedural time limits which have either suspend or extended relevant time periods or otherwise permitted parties to agree to extensions of time without resort to the courts?
The French government has issued orders effectively suspending the operation of certain substantive deadlines and procedural time limits during a “legally protected period” defined as the period running between 12 March 2020 and one month after the end of the current state of public health emergency (the “Legally Protected Period”). As of 11 May 2020, the state of public health emergency is announced to end on 10 July 2020 – meaning that the Legally Protected Period would end on 10 August 2020 – but that date may change depending on the evolution of the Covid-19 pandemic.
In civil and commercial matters, as per Article 2 of Order 2020-306 of 25 March 2020 (as amended by Order 2020-427 of 15 April 2020), all “acts, appeals, legal actions, formalities, registrations, declarations, notifications or publications” which by law must be carried out within a certain time period expiring during the Legally Protected Period “shall be deemed to have been accomplished in time if it is done within a period which may not exceed, as from the end of the [Legally Protected Period], the time period legally prescribed for taking action, up to a limit of two months”.
In practical terms, that means that both limitation periods and procedural time limits expiring during the Legally Protected Period will start again on the day following the end of the Legally Protected Period for a period of a maximum two months.
As illustrations, based on the assumption that the state of public health emergency will end on 10 July 2020:
– A five-year limitation period expiring on 20 March 2020 is extended until 11 October 2020 (i.e. 10 August 2020 (end of the Legally Protected Period) + 2 months from 11 August 2020);
– A two-year limitation period expiring on 9 August 2020 is extended until the same date (11 October 2020);
– A 15-day time limit to appeal a judgment expiring on 25 March 2020 is extended until 26 August 2020 (i.e.10 August 2020 (end of the Legally Protected Period) + 15 days from 11 August 2020).
Order 2020-306 of 25 March 2020 as amended also has affected the operation of certain contractual provisions. In broad terms:
– the operation of penalty clauses and late payment penalty clauses that were triggered before 12 March 2020 is suspended up to the end of the Legally Protected Period;
– the operation of penalty clauses, late payment penalty clauses, termination clauses and forfeiture clauses, the purpose of which is to sanction non-performance of an obligation within a set timeframe, that were triggered during the Legally Protected Period is suspended until the end of the Legally Protected Period plus an additional time period corresponding to the period during which the debtor was supposed to perform its obligation during the Legally Protected Period.
Besides, French law generally allows parties to agree on the suspension or interruption of limitation periods. This can be done by way of tolling agreements.
What has been the impact of Covid-19 in terms of the enforcement of judgments, including foreign judgments?
Concerning domestic judgments
In France, the enforcement of domestic judgments is carried out through bailiffs, who have authority to attach assets on the basis of an enforceable court decision.
During the lockdown which lasted between 17 March and 11 May 2020, the enforcement of judgments was more difficult in practice because of bailiffs’ limited capacity and ability to perform enforcement acts. It is too early to say whether and for how long the enforcement of judgments will continue to be disrupted in practice, but it is safe to assume that it will remain so to some extent for a few months.
Compulsory time limits for a judgment creditor to perform certain enforcement acts, and for a judgment debtor to challenge such acts before the enforcement judge, have been suspended up to the end of the Legally Protected Period.
The activity of enforcement judges has been drastically reduced during lockdown. It will continue to be disrupted for some time. Throughout the Legally Protected Period, under certain conditions and by exception to the general rule, enforcement judges may hand down judgments solely based on the parties’ written submissions, i.e. without holding a hearing.
Concerning foreign judgments
In civil and commercial matters, the enforcement of judgments rendered in Member States of the European Union, the United Kingdom and Denmark does not require prior recognition by a French court. Enforcement is carried out through bailiffs directly, as for the enforcement of domestic judgments. The impact of Covid-19 on the enforcement of judgments rendered in those jurisdictions is therefore similar to the impact it has had on the enforcement of domestic judgments described above.
Concerning foreign judgments rendered by other jurisdictions, enforcement requires prior exequatur, which is obtained through legal proceedings whereby the enforcing party summons the judgment debtor to appear before the competent French court from which exequatur is sought.
The shutdown of courts during the lockdown period has effectively suspended most court proceedings, including exequatur proceedings. Substantial backlog and associated delays are to be expected when normal operations resume.
Outside of the court system, are litigators conducting their practices (examination of witnesses, mediations, etc) virtually through video-conference platforms?
In response to the coronavirus pandemic, the French government, as many other governments around the world, has introduced legislation enforcing the closing of law courts and the suspending of judicial proceedings. This led French litigators to carry on their practice from their homes, concerning the cases not frozen under the emergency rules.
Litigators have therefore conducted negotiation or mediation meetings with colleagues and clients by way of teleconference or videoconference, such as Zoom or Microsoft Teams.
The Paris Bar also launched several online platforms in order to support litigators’ work before or outside the court system. So far, three platforms are now available: (i) two complementary platforms for mediation procedures and (ii) one platform aiming at supporting litigators’ work during proceedings and enhancing dialogue between parties and the possibility to reach amicable resolution of issues.
Paris Place de Droit, an organization gathering the main actors of the legal industry in Paris, is launching a platform proposing amicable solutions to parties confronted with difficulties related to COVID 19. This platform offers the services of leading GC, judges, attorneys or academics willing to help companies to escape difficulties.
Jacques Bouyssou, Partner in Litigation, Arbitration and White-collar crime.