As every French person legitimately wonders when the lockdown will come to an end, the legal practitioner struggles to identify precisely the date on which the state of health emergency will end, even though decisive in light of the numerous ordinances referring to this date.
Article 4 of the emergency law No. 2020-290 of 23 March 2020 to deal with the Covid-19 epidemic states that "the state of health emergency shall be declared for a two-month period from the entry into force of this law". However, as it was published on the Journal Officiel of 24 March 2020, this law entered "into force immediately" by virtue of its article 22.
The dies a quo of the state of health emergency could hardly prompt discussions then.
Pursuant to paragraphs 1 and 2 of article 1 of the Civil Code, as resulting from ordinance No. 2004-164 of 20 February 2004 pertaining to the modes and effects of the publication of laws and certain administrative acts, "laws and administrative acts when those are published in the Journal Officiel de la République française, shall come into force on the date they specify or, in the absence thereof, on the day following their publication (…).
In case of emergency, laws whose decree of promulgation so prescribes and administrative acts for which the Government so orders by a special provision, shall enter into force immediately upon their publication".
Consequently, the state of health emergency started on 24 March (the day of publication), at zero hour : choosing the extreme beginning of the day of publication seems to be the only alternative in line with the sense of urgency.
Identifying the dies ad quem - thus the end of the state of health emergency (naturally subject to a new law extending it to a later date…) - is otherwise hazardous for three reasons.
First of all, since the law of 23 March 2020 has not settled the issue, whilst parliamentary work does not shed any light on this matter.
Secondly, because, to the best of our knowledge, the law maker has not laid down any official rules for calculating time periods (aside from statute of limitations law or judicial law): singularly, the noteworthy report of the French Conseil d'Etat, whose proposals largely inspired the aforementioned ordinance of 20 February 2004 on the date of entry into force of laws, did not address this issue. Admittedly, articles 641 and 642 of the Code of Civil Procedure state in a chapter entitled "computation of time-limits" that "the time-limit shall expire on the day of the last month or year bearing the same date as the day of the act, the event, the decision or the notification that causes the time-limit to run" and that "all time-limits shall expire on the last day at midnight", implying that it would expire on 24 May at midnight. But in truth, an analogy with previous states of emergency instituted following the Bataclan attacks would rather point to an ending of the state of emergency 24 hours the day before the reference date (namely midnight on 23 May) and not on the day bearing the same date (24 May).
Finally, because the Conseil d'Etat - whose extraordinary mobilisation in response to the sanitary war is to be praised - itself seemed hesitating in its approach to the dies ad quem. Having initially set 24 May at midnight on its website as the end date of the state of emergency, it then (discreetly) reviewed its approach henceforth retaining the date of 23 May at midnight…
This latter approach may be drawn from the time-limits calculation method adopted by the Cour de cassation in matters of statute of limitations. Indeed, on the basis of article 2229 of the Civil Code according to which the statute of limitations is "acquired when the last day of the period has elapsed", the Cour de cassation first civil chamber ruled that the new five-year limitation period resulting from the temporary provisions introduced by article 26 II of the law of 17 June 2008, which came into force on 19 June 2008, "had expired at midnight on 18 June 2013", that is, the day before the reference date. The judgment is all the more interesting in that it expressly rejected the expiry on the day bearing the same reference date (namely midnight on 19 June) as well as the application herein of articles 641 and 642 of the Code of Civil Procedure (Cass. 1st civ. 12 December 2018, No. 17-25697, Bulletin).
Nevertheless, it would have been preferable for law makers to have taken the time to define the dies ad quem expressly, as done in the past.
The law No. 68-696 of 31 July 1968 pertaining to the foreclosures owing to the events of May and June 1968 and extending various time-limits mentioned precisely the date on which the extended periods elapsed: the Senate had rightly considered it preferable, "in the interests of clarity and simplification".
If the state of health emergency was, unfortunately, to be extended beyond these current two months, it would be advisable for the law maker to expressly provide for the dies ad quem this time around…
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Philippe Dupichot chairs Gide's Scientific Council, alongside partners, senior counsels, scientists and academics endowed with great doctrinal authority, who work closely with the firm's lawyers. As well as a professor at the Université Paris I Panthéon-Sorbonne and a lawyer admitted to the Paris Bar, Philippe chairs the Master 2 postgraduate course on banking and finance law. He teaches civil and commercial law, in particular contract, property, security and corporate law.
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