Covid-19 outbreak - Issuance of the order pertaining to extension of deadlines during the health emergency period
Clarifications communicated by the French Ministry of Justice on the consequences on debarment and statute of limitations deadlines
At the time when we were drafting our previous memorandum and were trying, in particular, to analyse the provisions of Article 2 of the Order on the extension of lapsed deadlines during the health emergency state (Order No. 2020-306 of 25 March 2020) and to understand its consequences on statute of limitation and debarment deadlines,
Mr Jean-François de Montgolfier (Head of Civil Affairs and Seals Directorate) sent a circular to all presidents of courts and public prosecutors in France (circular no. CIV/01/20, ref. no. C2/DP/202030000318/CB), whose purpose is to provide clarifications on this Order. We would like to thank our colleague, Mr Sophien Ben Zaied (Bordeaux Bar), for sharing this document with us.
In particular, we will focus on Section 1 of this document, for it is the one specifically dealing with the rules extending deadlines that lapsed during the health emergency state.
For the record, in view of the lack of clarity in the Order on this subject, we wondered in our previous memorandum whether Article 2 of the Order had introduced a rule providing for the interruption or the suspension of deadlines. Indeed, the answer to such question will define the method for calculating the duration of the new period beginning at the end of the health emergency state. As nothing in the order allowed it, our opinion on this issue remained incomplete.
The above-mentioned circular remedies this by giving detailed explanations on the rules set out by Article 2 of the Order.
First of all, it explains that this article does not establish either an interruption nor a suspension: “the effect of Article 2 of the order is to prohibit that the steps taken/documents submitted within the new time limit may be regarded as late.” Actually, that’s the only thing we understood when reading the order! This being said, how is the “new set deadline” calculated? Nothing in the text of the order allowed to figure this out.
The explanation given the circular is as follows: “the steps taken/documents submitted may, by virtue of Article 2 of the order, be considered as lawfully carried out before the expiry of a new period equal to the period which was initially laid down by the law or regulation, which starts to run again from the end of the legally protected period defined in Article 1 (i.e. at the end of the period of a public health emergency state plus one month). ”.
One cannot help but notice that this rule bears a striking resemblance to that of the interruption of the statute of limitations in Article 2231 of the French Civil Code: a new period of the same duration as the interrupted one begins to run.
It is true, however, that this system differs just as fundamentally from that of the interruption of the statute of limitations in the French Civil Code insofar as the duration of the new period of limitation is limited to 2 months.
The circular recalls: “This additional period after the end of the legally protected period may not, however, exceed two months: either the initial period was less than two months and the steps to be taken/documents to be submitted must be performed within the period prescribed by law or regulation, or it was longer than two months and must be performed within two months. ”.
In short, the order confirms the first assumption that we contemplated in our previous memorandum: we are talking about a statute of limitations or debarment of the same duration as that which was interrupted during the state of health emergency, that will begin to run one month after the latter’s end, although this new period is limited to two months. Summary note:
Debarment / statute of limitations interrupted
Action subject to statute of limitations or debarment of more than 2 months
Actions subject to a statute of limitations or debarment of less than two months (in particular, the one-month period for an action for recourse under Article L133-6 para. 4 of the French Commercial Code and the three-day debarment period under Article L133-3 of the French Commercial Code applicable to transport matters)
Duration of the new post-emergency period
End of the health emergency state
+ 1 month + 2 months
End of the health emergency state + 1 month
+ initial legal deadline
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