19 November 2020
Client Alert | France | Public and Administrative Law
Commentary on Ordinance No. 2020-1402 of 18 November 2020 adapting the rules applicable before the administrative courts and Decree No. 2020-1406 of 18 November 2020 adapting the rules applicable before the administrative courts.
Due to the reinstatement of the state of public health emergency on 19 November 2020, the Government published Ordinance No. 2020-1402 of 18 November 2020 adapting the rules applicable before the administrative courts. This Ordinance, which derogates from standards of legislative value, was published at the same time as Decree No. 2020-1406 of 18 November 2020 adapting the rules applicable before the administrative courts, which adapts standards of regulatory value.
These two texts came into force on 20 November 2020 and apply to all administrative jurisdictions until the date of cessation of the state of public health emergency declared by Decree No. 2020-1257 of 14 October 2020, including extensions. To date, these transitional measures will be applicable until 16 February 2021 included, pursuant to Article 1 of Law No. 2020-1379 of 14 November 2020.
By way of introduction, neither of these two texts of 18 November 2020 extends the time limits for appeals before the administrative courts, contrary to what was provided for during the first lockdown, which was undoubtedly stricter.
First of all, the aforementioned Ordinance and Decree provide for measures aimed at limiting the holding of physical hearings involving all the usual participants.
Thus, the president of the panel may decide, without any recourse against this decision, that the hearing will be held by videoconference or, in the event of technical or material impossibility and when the parties or their counsels so request, by other means of telecommunication, including by telephone.
In any event, the means of telecommunication chosen must make it possible to ensure the identity of the parties and their counsels, as well as guarantee the quality of the transmission and the confidentiality of the exchanges between them. The physical presence of counsels or interpreters alongside the parties is not required.
One of the most derogatory measures is the possibility for the interim relief judge (juge des référés) to rule without a hearing, by reasoned order, in particular on urgent petitions for protection of fundamental liberties (référé-liberté) or on urgent petitions for suspension of administrative acts (référé-suspension). While orality is decisive in these proceedings, it is regrettable that the text does not provide for the parties and their counsels to be able to oppose such a measure. It is to be hoped, therefore, that judges will make a measured application of this faculty. The justification for such a derogation is moreover questionable, since the Ordinance also allows judges ruling alone to hold their hearings remotely (including from their homes), subject to the agreement of the president of the court.
Decree No. 2020-1406 of 18 November 2020 also provides that petitions for stay of execution of judgments rendered in first instance may be judged without a public hearing.
This Decree also alleviates other procedural rules, the most notable of which are set out below.
The Decree provides that when a party is represented by a counsel, notification of the decisions of the administrative courts will be validly accomplished "by the expedition of the decision" to the counsel. The choice of this wording is questionable as it creates doubt as to the date on which the time limit for appeal is calculated: will this time limit start as soon as the decision is sent and thus before receipt of the act, contrary to the general principles of administrative litigation? Or will it begin on the date of first consultation of the decision on Télérecours and, failing consultation within two working days, at the end of this period (by analogy with Article R. 611-8-2 of the Code of Administrative Justice, which does not govern the notification of judgments and, above all, with Article R. 751-4-1 of the same code, which in principle does not apply to counsels)?
For parties not represented by a counsel and not using Télérecours or Télérecours Citoyens, the notification may be made by any means capable of attesting the date of receipt, and not only by registered letter with acknowledgment of receipt.
In addition, the communication of documents, acts and notices to the parties may temporarily be made by any means, in such a way as to enable them to be sent by e-mail to the parties not registered on Télérecours.
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Gide's Public Law, Energy & Environment practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.
This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.
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