Version updated on 15 May 2020
Commentary on Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts and Ordinance No. 2020-306 of 25 March 2020 on the extension of time-limits during the period of health emergency and the adaptation of procedures during this same period.
In accordance with Parliament's authorisation, Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts was published on 26 March 2020. It was supplemented and amended by Ordinance No. 2020-405 of 8 April 2020 adapting various rules applicable before the administrative courts, which entered into force on 10 April 2020, and then by Ordinance No. 2020-427 of 15 April 2020 containing various provisions relating to time-limits to deal with the Covid-19 epidemic.
As expected, an ordinance was finally issued to adapt these rules to the extension of the state of public health emergency and to the lockdown ease. Indeed, in so far as the economic activity is expected to resume gradually, the courts, administrative authorities, economic players and individuals will more easily be able to comply with formalities and usual procedural rules. It would have been disproportionate that the duration of the procedural adjustments justified by the lockdown remain correlated with the duration of the state of public health emergency, which is expected to last until 10 July 2020 inclusive (Article 1 of Law No. 2020-546 of 11 May 2020 extending the state of public health emergency and supplementing its provisions) and whose extension may be required at a later date. Ordinance No. 2020-558 of 13 May 2020 amending Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts addresses that concern.
These ordinances result in the departure from the procedural rules applicable before the administrative courts owing to the state of public health emergency. A number of procedural adjustments have significant implications for litigants.
First of all, we note that time-limits to issue a judgment are extended.
On the one hand, where time-limits set for the judge to rule run or have run in whole or in part between 12 March 2020 and 23 May 2020 inclusive, their starting point is postponed to 1 July 2020 (subject to exceptions relating to municipal elections or entry and residence of foreigners).
On the other hand, when the completion date for the investigation of a case ("la clôture d'instruction") was between 12 March 2020 and 23 May 2020 inclusive, this date is automatically postponed to 23 June 2020 inclusive, unless this time-limit is postponed by the judge. Consequently, the parties will be able to supplement their submissions at least until 23 June 2020.
Nonetheless, the judge may set an earlier completion date for the investigation of a case, where the urgency or the status of the case so warrants. This solution is welcomed in order to avoid inappropriate or far-remote postponements, when the case is ready to be heard or need to be tried rapidly. The judge will then have to expressly indicate that the postponement rule contained in the commentated ordinance does not apply.
As regards investigative measures ("mesures d'instruction"), time-limits (for instance, to submit a document, or rectify a claim) which lapse between 12 March 2020 and 23 June 2020 are automatically extended to 24 August 2020 inclusive. Nonetheless, where the urgency or the status of the case so warrants, the judge may set a shorter time-limit. He shall then specify that the extension provided by the Ordinance does not apply to the date thus set. The drafting of the corresponding provisions has been considerably improved by Ordinance No. 2020-558 of 13 May 2020, as we had hoped.
Secondly, until the state of public health emergency lapses, hearings may be held behind closed doors, with reduced public access, or by videoconference. If that is technically or materially impossible, the court may decide to hear parties and their advocates by any electronic communication means, including by telephone. Some members of the court will be able to participate in the hearing from a separate location from the courtroom. Applications for interim relief ("requêtes en référé") may also be decided on without a hearing, by way of a reasoned order ("ordonnance motivée"). In this case, the judge shall inform the parties of the lack of hearing and set the date from which the investigation of the case will be closed.
Finally, Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts' major impact concerns claims' time-limits extension. Pursuant to the aforementioned ordinance, article 2 of Ordinance No. 2020-306 of 25 March 2020 on the extension of time-limits during the period of health emergency and the adaptation of procedures during this same period is applicable to administrative courts, as amended by Ordinance No. 2020-560 of 13 May 2020 setting time-limits applicable to various procedures during the period of health emergency, which uncorrelated these time-limits from the state of public health emergency end date.
This results in an extension of claims' time-limits, which expire between 12 March 2020 and 23 June 2020. The prorogation will start from the latter date and will last for a period of time equal to the legally-allowed timeframe to act, within the limit of two months.
Let us take the example of an administrative act duly notified or published on 15 January 2020. In accordance with the usual two-month deadline to file a claim before the administrative courts, the latest date to directly file a claim should have been 16 March 2020. Due to the ordinances, claims before the administrative courts may be filed no later than Monday 24 August, inclusive.
By contrast, if an administrative act has been duly notified or published on 24 April 2020, the time-limit to bring a claim against this act shall expire on 25 June 2020 and shall not be extended. Indeed, the expiry of the usual two-month time-limit would occur after 23 June 2020.
The same 'postponement of deadlines' principle is applicable to any remedy ("recours administratif"), even non-judicial in nature, for a claim to be admissible as prescribed by the texts and which should have been completed between 12 March 2020 and 23 June 2020. Consequently, if the referral of the claim to the administrative court must be preceded by an administrative remedy, this remedy will be deemed validly exercised if exercised within a timeframe that cannot exceed, as from 24 June 2020, the legal time-limit to act, provided that the latter time-limit is capped to two months.
Non-mandatory administrative remedies, although not prescribed by law, also seem to benefit from this time-limit's extension by virtue of the principle, codified in article L. 411-2 of the relations between the public and the administration code, according to which any administrative decision may benefit from an ex gratia or hierarchical remedy thereby interrupting the course of that time-limit, provided that it is within the time-limit set for lodging the remedy.
This exceptional law will therefore have the paradoxical effect of allowing administrative acts published at the end of January 2020 to be directly contended before the administrative judge until August 2020, whereas the time-limits for opposing acts published in May 2020 or at the end of April will have already lapsed.
In the real estate industry, this effect was deemed excessive. It jeopardised real estate projects; as both the issue of the required authorisations, and all the more so, of their permanent nature, conditioned the commencement of works. Ordinance No. 2020-427 of 15 April 2020 containing various provisions relating to time-limits to deal with the Covid-19 epidemic thus provided for urban planning and development exemptions. To sum up, the time-limits to challenge a building, development or demolition permit or a decision not to oppose a prior declaration that have not expired before 12 March 2020 are only suspended from that date. They will resume running from 24 May 2020, for the remaining period as of 12 March 2020 and for at least 7 days.
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