Updated on 18 May 2020
Pursuant to the authorisation granted by Parliament in Law No. 2020-290 dated 23 March 2020, the French Government adopted Ordinance No. 2020-306 on 25 March 2020, amended by Ordinance No. 2020-427 dated 15 April 2020 then by Ordinance No. 2020-560 of 13 May 2020 setting time-limits applicable to various procedures during the state of public health emergency period (the "Time-Limits Ordinance"), which lays down general provisions relating to time-limits and special provisions concerning time-limits in relation to administrative or tax matters. Furthermore, since its amendment by Ordinance No. 2020-427 dated 15 April 2020, the Time-Limits Ordinance now includes a Title II bis which provides for specific provisions relating to public inquiries and time-limits applicable to urban planning and development. Regarding these sectors, the amended Time-Limits Ordinance's specific consequences for this industry are addressed in the Urban Planning Q&A (see here).
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, insofar 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. 2020-560 of 13 May 2020 setting time-limits applicable to various procedures during the state of public health emergency period addresses that concern.
EXTENSION OF TIME-LIMITS - GENERAL PROVISIONS
Scope of the Time-Limits Ordinance (Article 1)
Subject to certain exceptions, the provisions analysed hereinafter shall apply to time-limits and measures that have expired or expire between 12 March 2020 and 23 June 2020 inclusive (hereinafter, the "Legally Protected Period" or the "Period"). The end date of the Period has been defined by reference to the first end date of the state of public health emergency and matches what Gide had expected (see the debate here). The Legally Protected Period is therefore no longer correlated with the duration of the public health emergency.
Provisions applicable to various deadlines and expiry of a term (Article 2)
Any of the followings will be deemed to have been timely performed, provided that it has been performed following the end of the Period within the legal time-limit to act and subject to a two-month limit:
- any act, form of legal recourse or right of action, formality, registration, declaration, notification or publication prescribed by law or regulation that would otherwise lead to its invalidity ("nullité"), sanction, lapse of any right ("caducité"), foreclosure ("forclusion"), prescription, unenforceability ("inopposabilité"), automatic withdrawal ("désistement d’office"), inadmissibility ("irrecevabilité"), expiration ("péremption"), application of an ad hoc regime ("régime particulier"), "non avenu" or forfeiture of any right whatsoever ("déchéance de droit") and which should have been carried out during the Period (contractual provisions shall continue to apply as usual - excepted for certain clauses as provided for in the Time-Limits Ordinance);
- any payment prescribed by law or regulation for the acquisition or retention of a right.
This very broad provision should be applicable to a wide range of situations (including court summons, filing of appeal proceedings, filing of proof of claims ("déclarations de créances"), filing of various formalities and publicity to the commercial registry, etc.).
It is specified that (i) time-limits for reflection, withdrawal or renunciation provided for by law or regulation and (ii) time-limits for repayment of sums of money, if above-mentioned rights are exercised, are not affected by this provision.
Provisions applicable to administrative and judicial measures (Article 3)
Time-limits expiring during the Period shall be extended automatically for three months (initially two months) following the end of the Period (unless the court or competent authority has exercised its discretionary power to exclude, suspend or alter the time-limit before being lapsed) for the following measures:
- any conservation ("mesures conservatoires"), investigation, instruction, conciliation or mediation measures;
- any prohibitive ("mesures d'interdiction") or suspensive ("mesures de suspension") measures insofar as such measure has not been imposed as a penalty;
- any authorisations, permits or approvals.
These provisions shall not prevent the court or competent authority from exercising its jurisdiction to modify or put an end to such measures, or, where the interests for which such court or authority has jurisdiction/authority justify it, to prescribe their application or order new ones, setting a time-limit it shall determine. In any event, the court or competent authority shall take into consideration the state of health emergency's constraints, when determining status of limitations or time-limits to be observed.
The Government justifies the extension of this time-limit through Ordinance No. 2020-560 of 13 May 2020 setting time-limits applicable to various procedures during the state of public health emergency period so as to avoid these measures to lapse in August and to enable affected parties to complete the necessary formalities in September.
Provisions applicable to contracts and periodic penalty payments ("astreintes") (Articles 4, 5 and 6)
Where the purpose of a clause is to sanction the breach of a contractual obligation within a specified time-limit, any (i) periodic penalty payment ("astreintes"), (ii) penalty ("clauses pénales"), (iii) cancellation ("clauses résolutoires"), or (iv) forfeiture clauses ("clauses de déchéance") are deemed not triggered by the expiration of such time-limit during the Period.
Periodic penalty payments and the aforementioned clauses shall produce their effects following the expiration of a period - calculated from the end of the Period - equal to the time elapsed between (i) 12 March 2020 (or, where later, the date on which the related obligation arose) and (ii) the date on which the related obligation should have been performed. For instance, a penalty clause which could have become effective on 16 March 2020, will only become effective - if the obligation is still to be performed - on the 5th day following the end of the Period - namely on 28 June 2020.
Furthermore, the enforcement of periodic penalty payments and of the aforementioned clauses, if they are intended to sanction the breach of a non-monetary obligation within a specified time-limit expiring after the Period, is postponed for a period equal to the time elapsed between (i) 12 March 2020 (or, where later, the date on which the related obligation arose) and (ii) the end of the Period. In other words, a penalty clause sanctioning the non-performance of works after 30 June 2020 will only be enforceable subsequently to a period equal to the Period, starting on 30 June 2020, in order to avoid notably to put non-monetary obligations debtors under strain following the restrictions imposed due to the lockdown.
We note that periodic penalty payments and penalty clauses that have been enforceable before 12 March 2020 are suspended during the Period.
SPECIAL PROVISIONS APPLICABLE TO TIME-LIMITS IN ADMINISTRATIVE MATTERS AND BEFORE THE ADMINISTRATIVE COURTS
Provisions relating to time-limits for administrative decision processes ("délais d'instruction de l'administration") (Article 7)
Time-limits prescribed in which the administration has or can reach a decision or agreement or issue an opinion, or by the end of which such decision, agreement or opinion automatically accrue, are suspended during the Legally Protected Period. This is subject to obligations arising from international and/or European laws and exceptions laid down by decrees.
Similarly, such time-limits that should have started running during the Period shall be deemed to have started to run from the end of the Period instead.
Are also suspended during the Period (i) time-limits granted to the administration to check the completeness of an application or to request additional documents during the examination of an application as well as (ii), for civil servants, time-limits to withdraw a contractual termination procedure ("procédure de rupture conventionnelle").
Subject to the Time-Limits Ordinance's provisions relating to public inquiries, time-limits for public consultation or participation shall be suspended until 30 May 2020 inclusive.
Provisions relating to time-limits imposed by the administration (Article 8)
Time-limits imposed by the administration on any person to carry out inspections and works or to comply with instructions of any kind are also suspended during the Legally Protected Period (i.e. between 12 March 2020 and 23 June 2020), except when such a time-limit results from a court decision.
The starting point of similar time-limits that should have started to run during the Period shall be postponed until the end of the Period.
These provisions shall not prevent the administrative body from exercising its jurisdiction to modify or discontinue such obligations, or, where the interests for which it is responsible so justify, to prescribe their application or order new ones, within the time-limit it shall determine.
In any event, the administrative body must take into consideration the state of health emergency's constraints, when determining obligations or time-limits to be observed.
By way of derogation, a decree shall determine the categories of acts, procedures or obligations for which time-limits are to be resumed, in order to protect the fundamental interests of the nation ("intérêts fondamentaux de la Nation"), the national security, the protection of public health and public hygiene, the upholding of employment and economic activity ("sauvegarde de l'emploi et de l'activité"), securing work relations and collective negotiations, the preservation of the environment, the protection of children and young people.
For the same reasons, a decree may, in respect of any act, procedure or obligation, set a specific date for the resumption of a time-limit, provided that the persons concerned are informed thereof.
Provisions relating to time-limits for bringing a right of action (Article 2)
Contentious rights of action
Article 2 of the Time-Limits Ordinance's provisions were expressly given effect before administrative courts by Ordinance No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts.
As a result, time-limits for bringing a claim before the administrative courts shall be extended if they expire between 12 March 2020 and 23 June 2020.
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, the claim's time-limit is extended. As the Legally Protected Period ends on 23 June 2020, claims should therefore 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.
This emergency legislation will therefore allow for administrative acts published at the end of January 2020 to be challenged until August 2020, whereas the deadline for challenging acts published in May 2020 or at the end of April 2020 will already have 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, condition 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 permits or decisions 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 (see here a detailed analysis of the urban provisions).
Non-contentious rights of action
The same postponement of deadlines' principle is applicable to any administrative 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.
Non-mandatory administrative remedies, although not prescribed by law, also appear to benefit from this extension, by virtue of the principle 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 allocated for a contentious right of action to be brought.
SPECIAL TAX PROVISIONS (ARTICLE 10)
The Government considered it necessary to extend the suspension of certain tax-related time-limits until 23 August 2020 to allow companies to focus on resuming their activities. Indeed, an immediate and undifferentiated resumption of all pending tax audits as of 12 March 2020 for which mandatory time-limits are likely to expire soon after 23 June 2020 could have led to practical difficulties for some of them, notably bars and restaurants.
The following time-limits (i) shall be suspended from 12 March 2020 until 23 August 2020 inclusive and (ii) for those that started to run during the Period, shall run only from the end of said Period:
- as regards tax audit, the time-limits granted to the administration to repair total or partial omissions in the tax base, inadequacies, inaccuracies or errors in taxation and to apply interests for late payment and penalties;
- as regards control and enquiry procedures, the time-limits granted to the administration or to any person or entity and provided for in Title II of the first, second and third parts of the tax procedures book ("livre des procédures fiscales") (excepted for the status of limitations provided for by Articles L.168 to L.189 of the same book, by the provisions of Article L.198 A of the same book as regards on-the-spot investigation of claims for reimbursement of value added tax credits ("crédits de taxe sur la valeur ajoutée") and by the provisions of Article 67 D of the Customs Code ("Code des douanes"); and
- in terms of administrative control ("contrôle administratif"), the time-limits provided for in Article 32 of Law No. 2018-727 dated 10 August 2018 for a State for the benefit of a trustworthy society ("Etat au service d'une société de confiance").
These provisions do not apply to rescript provisions: the suspension of rescript procedures will thus end on 23 June 2020 at midnight. The last version of the Ordinance specifies that "the time-limits provided for in Articles L. 18, L.64 B, L. 80 B, L. 80 C and L. 80 CB of the tax procedures book and those provided under Article 345 bis of the customs code are suspended from 12 March 2020 to 23 June 2020 inclusive and only run as from the later date, for those which would have started running during such period".
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