Covid-19 outbreak - Extension of deadlines during the health emergency period
Consequences on debarment and limitation periods
Among the twenty-five ministerial orders issued by the government is the one pertaining to the extension of lapsed deadlines during health emergencies, which is intended to apply in civil, commercial and administrative matters (Order no. 2020-306 of 25 March 2020).
Concerning judicial activities, this text is supplemented by two other orders for the adjustment of:
- rules applicable to the judicial courts ruling in non-criminal matters and condominium association contracts (Order no. 2020-204 of 25 March 2020);
- rules applicable to the administrative courts (Order no. 2020-205 of 25 March 2020).
However, these provisions do not apply to deadlines and measures resulting from the enforcement of rules of criminal law and criminal procedure, which are the subject of a specific order adjusting the rules of criminal procedure (Order no. 2020-303 of 25 March 2020).
The purpose of this article is to assess the consequences of the rules set out by Order 2020-306 of 25 March 2020 on the course of statute of limitations and debarment deadlines applicable in civil and commercial matters.
- PERIOD OF EXTENSION OF DEADLINES
The order defines a period during which the expiring deadlines shall be extended.
This period is delimited as follows (Article 1 of Order no. 2020-306 of 25 March 2020):
- its starting point is defined as the 12 March 2020;
- its expiry date is unknown as date thereof. It is set at one month, starting from the ending date of the state of health emergency (ending date of the state of health emergency + 1 month).
Therefore, once a deadline expires during this period, it shall be “extended” (“prorogé” - this is the term used by the order) for the entire duration of the period as previously defined.
As a reminder, the state of health emergency was declared for a period of two months, starting from the entry into force of the act of 23 March 2020. The state of health emergency is therefore meant to end on 23 May 2020. The extension of the state of health emergency beyond this period may only be authorised by a subsequent act. This period may also be terminated earlier by decree issued by the Council of Ministers (Article 4 of Act no. 2020-290 of 23 March 2020).
The Order is thus intended to apply - subject to subsequent amendments - for deadlines that have lapsed or will lapse between 12 March 2020 and 23 June 2020 (ending date of the state of public health emergency + 1 month).
- CONSEQUENCES OF THE DEADLINES’ EXTENSION
Article 2 of the Order provides that any “action, recourse, legal proceedings, formality, registration, declaration, notification, or publication prescribed by law or regulation under the penalty of nullity, sanction, lapse, debarment, time limitation, unenforceability, lapse of time, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been accomplished during the [above]-mentioned period shall be deemed to have been done in time if it has been done within a period which may not exceed, as from the end of that period, the period legally prescribed for taking action, up to a limit of two months. The same applies to any payment prescribed by law or regulation for the acquisition or retention of a right.”
Therefore, an action interrupting statute of limitations or debarment may still be performed after the expiry of the extension period on the cumulative conditions that it is exercised 1) “within a period of time which cannot exceed the time legally prescribed for acting” and 2) “within the limit of two months”.
The second condition is clear: a statute of limitations or debarment deadline which has expired during the period defined above shall not be extended beyond two months from the end of that period. Therefore, all the time limits extended by the effect of the order shall have expired at the latest on the ending date of the state of health emergency + 1 month + 2 months.
Finally, this is indeed a limit, as this is not about an extension of all statute of limitations or debarment deadlines by two months.
The first condition requiring the performance of the action causing an interruption to be carried out “within a period which cannot exceed the time legally required to act” raises a lot of questions. How does one calculate the “legal” time remaining at the end of the extension period?
The text does not provide any answer in this regard. Are the deadlins interrupted or are they suspended during this period? Both assumptions shall be analysed below.
2.1. Interruption
If one follows the rules established by the French Civil Code on statute of limitations, such an interruption would have the following consequences:
- a debarment or statute of limitations deadline shall be interrupted during the period defined in Article 1;
- at the end of this period, a new deadline of the same duration as the interrupted one will start to run again;
- this deadline may not exceed two months.
Thus, in the case of a one-year limitation period expiring on March 30th, 2020, the statute of limitations will be interrupted for the duration of the extension period provided for in Article 1 of the Order.
If the date of June 23rd, 2020, were chosen as the end of this extension period, the new statute of limitations deadline would be June 23rd, 2021. However, as the order limits the effects of the extension to two months, the statute of limitations deadline will be August 23rd, 2020.
For a period of one month interrupted during the extension period, it will expire one month after the expiry of the extension period. In our example, this deadline would expire on July 23rd, 2020, with the two-month limit having no impact in this case.
2.2. Suspension
We will consider below that the deadlines expiring during the extension period shall be suspended. The rules of the Civil Code for calculating deadlines will also be applied.
Logically, such a suspension will start from the beginning of the extension period, i.e. March 12th, 2020. At the end of this period, the suspended deadline will start to run again for a duration equivalent to that which elapsed between the start date of the extension period (March 12th, 2020) and the date on which the deadline would normally have expired.
To illustrate this principle, let us take the assumption of a one-year statute of limitations that would expire on March 30th, 2020. This deadline would have been suspended for 18 days between March 12th, 2020 and March 30th, 2020. Accordingly, the creditor would have 18 days starting from the expiry of the extension period to interrupt his/her deadline.
If we take the example of a statute of limitations that would normally expire on June 05th, 2020, the suspension will have lasted 85 days. This period of 85 days will start to run again at the end of the extension period. It will nevertheless be limited to two months by the effect of the order.
Summary of the above-mentioned explanations:
- It is certain that the statute of limitations and debarment deadline will not expire during a period beginning on March 12th, 2020 and expiring one month after the end of the state of public health emergency has been declared;
- On the other hand, the methods for counting the periods remaining to run at the end of the extension period are very unclear.
Therefore, the most prudent course of action will be to carry out the actions interrupting statute of limitations and debarment within one month following the promulgation of the end of the state of health emergency.
Alexandre Gruber
Associé / Partner
Lmt Avocats