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Coronavirus – Impact on commercial litigation – France

  • France
  • Coronavirus - Country overview
  • Coronavirus - Regulatory issues


Please note that the situation and the measures taken are subject to change. We will update this note as changes or clarifications are made.

The situation relating to the COVID-19 pandemic has led the French Ministry of Justice to regularly take extraordinary measures that will have a significant impact on ongoing cases.

The key measures are presented below.

Functioning of the courts

On 15 March 2020, the French Ministry of Justice announced the closure of courts as of 16 March 2020 with exceptions for hearings deemed "essential" (i.e. criminal proceedings, juvenile court hearings, emergency situation proceedings, hearings in collective proceedings which may have a significant impact on employment etc.).

The following measures have been put in place:

  • All civil hearings on the merits scheduled between 16 March 2020 and the end of the COVID-19 health crisis will be systematically adjourned sine die
  • Deliberations in civil matters scheduled to begin on 17 March 2020 will be extended to a later date yet to be confirmed
  • No summons or applications will be issued or processed
  • All cases presented to the local civil division, will be systematically postponed. Cases will be placed on a waiting list. Deliberations will also be extended to a later date
  • Hearings before commercial courts have been cancelled or postponed. Only applications for receivership or liquidation following a cessation of payments’ declaration will be processed. Cessation of payments’ declarations can be made online on the “digital court”:
  • Summary proceedings previously scheduled have been cancelled and the deliberations have all been extended. No new dates have been communicated yet. An exception has been made for absolute civil emergencies, summary proceedings and applications
  • Hearings scheduled before the Enforcement Judge ("JEX") have been cancelled. The parties will be recalled by the Registry when business activity resumes. The deliberations scheduled from 17 March 2020 have been extended. Requests shall not be processed, save for exceptional cases. Summons to interrupt procedural time limits to contest a seizure or to extend orders to pay for real estate seizures will still be processed
  • Only vital hearings (i.e. urgent cases in criminal matters, urgent cases in civil matters particularly when involving restrictions of freedom) will be heard before the Courts of Appeal
  • The French Supreme Court (“Cour de Cassation”) will devote itself exclusively to the processing of cases submitted to the criminal division, when they involve delays

We would like to draw your attention to the fact that these measures are likely to change when the ordinances’ provisions presented below are put into practice.

Measures taken by ordinances

Article 11 of Act No. 2020-290 of 23 March 2020 on emergency measures to deal with the Covid-19 epidemic authorises the Government "to take by ordinance, within three months of the publication of this Act, any measure that may come into force, if necessary, as of 12 March 2020".

Thus, as of 24 March 2020, the Minister of Justice presented four ordinances, two of which relate respectively to "the adaptation of the rules applicable to the courts of the judicial order ruling in non-criminal matters and to the co-ownership trustees contracts" and "the extension of time limits during the period of the health emergency and the adaptation of procedures during this same period".

What does ordinance no. 2020-304 providing for the adaptation of the rules applicable to the courts of the judicial order ruling in non-criminal matters provide for?

This ordinance aims to lighten the activity of civil, social and commercial courts while allowing judicial processes to continue.

First of all, it is specified that the provisions of this order will be applicable to courts ruling in non-criminal matters from 12 March 2020 until the end of a one month period from the date of cessation of the state of health emergency (hereinafter "the Period").

Key points to remember

  • The possibility of transfer of power. Where a court of first instance is prevented from trying a case, another court of first instance of the same nature and within the same jurisdiction of the initial court, may be designated to try it. However, this provision is intended to remain exceptional
  • The possibility of a ruling by a single-judge formation. If the pleadings’ hearing, the conclusion of the investigation or the decision to rule without a hearing, takes place during the Period , the court may, with its president’s authority, rule with a single judge at first instance and on appeal. However, this rule is not applicable before the Commercial Court, where cases will be heard by the judge in charge of the investigation of the case, who will then report to a panel of judges. This procedure, which already exists for general litigation before the Commercial Court, has been extended to collective proceedings
  • The possibility of hearings held by videoconference or telephone. Hearings, both at first instance and on appeal, may be held by videoconference. In the event that it is impossible to use this method, the judge may decide to hear the parties and their lawyers by any other electronic means of communication, including telephone. In all cases, the means of telecommunication used must ensure that legal privilege is respected
  • The possibility of ruling without a hearing. Where legal representation is mandatory, the judge may decide to rule without a hearing, using exclusively written submissions. The parties will not be able to challenge this procedure when the proceedings are urgent (summary proceedings, accelerated proceedings on the merits, or when the judge has a fixed time limit for ruling). For other proceedings, the parties will have a period of fifteen days to object
  • Lightening the formalities and the methods of communication.

    • Information relating to the postponement of cases may be sent by any means, including electronically or by simple letter. If the defendant does not appear at the hearing to which the case has been referred and has not been summoned in person, the decision will be given by default
    • Communication of written submissions and documents between the parties may be made by any means, provided that the judge is able to ensure that the adversarial process is respected
    • Decisions made may be brought to the attention of the parties by any means. This communication, which may also be done by telephone at the claimant’s request when he or she does not have a lawyer, does not replace the requirement of a notification of the decision, which is essential to ensure that the time limits for appeal start to run and that the decision is enforceable
  • Specific measures applicable to summary proceedings. In order to avoid congestion of the summary proceedings hearings maintained, the ruling judge ruling in such proceedings may, by non-adversarial order, reject an application which he considers inadmissible or decide that there are no grounds for summary proceedings

What does ordinance no. 2020-306 of the extension of time limits during the period of health emergency and the adaptation of procedures during the same period provide for?

This ordinance aims at preserving the rights of all litigants and to adapt to the constraints caused by the “confinement” or isolation period, particularly those relating to compliance with the time limits imposed by legislation, regulations and, to a certain extent, by contracts.

As specified in the previous ordinance, the provisions of this ordinance are applicable from 12 March 2020 until the expiry of a period of one month from the date of cessation of the state of health emergency (hereinafter "the Period").

Key points to remember

From a procedural point of view:

  • The order specifies that "any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation subject to nullity, sanction, obsolescence, foreclosure, prescription, unenforceability, inadmissibility, expiry date, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been completed during the period referred to in Article 1 (“the Period”) shall be deemed to have been done in time if it has been done within a time limit which may not exceed, starting from the end of that period, the legally prescribed time limit for taking action, up to a maximum of two months":

    • This is not a suspension or an interruption of the procedural deadlines during the Period but an extension of the term or deadline
    • Thus, the ordinance does not suppress the performance of any act or formality of which term expires during the Period, but allows all acts performed within the additional time limit, to be considered as being time compliant
    • It should be noted, however, that contractually-agreed deadlines or payment obligations are not included and must therefore be respected and performed on the contractually-agreed date
    • The acts referred to must be accomplished within the legally prescribed period for taking action, as from the end of the Period, within the limit of two months:

      • Either the initial time limit was less than two months and the act must be performed within the time limit set by law or regulation at the end of the Period;
      • Or the initial time limit was longer than two months and the act must be performed within two months at the end of the Period
    • The following points must be taken into consideration upon the specific extension measures:

      • The deadlines to file an appeal. For example, if the time limit to file an appeal expires during the Period, a party may validly file an appeal until the expiration of a period of one month following the end of the Period
      • The legal deadlines prescribed to the parties to perform an act in the course of proceedings. For example, where the three-month time limit for the appellant to file its initial submissions (subject to expiration of the appeal declaration) expires during the Period, the appellant may validly make submissions until the expiration of a period of two months following the expiry of the Period.
      • The time limits prescribed to the judge to rule. This extension applies to all disputes, regardless of their degree of urgency
  • Judicial measures (including precautionary, investigative, conciliatory or mediation measures) shall be automatically extended for a period of two months following the end of the Period, once they have expired during that Period, unless they are lifted or that their term is modified by the competent authority in the meantime. If these measures were pronounced before 12 March 2020, the judge may terminate them if the matter is referred to him.

The provisions on extensions of time limits raise some questions. We therefore recommend that, whenever possible, the original time limits should be complied with, even for purely precautionary purposes, by all appropriate means.

From a contractual point of view:

  • Penalties, penalty clauses, termination clauses and forfeiture clauses which should have produced or begun to produce their effects during the Period are suspended. Their effect is paralysed and they will only take effect again at the end of a period of one month following the Period, if the debtor has not performed his/her obligation by that time
  • Penalties and penalty clauses which had begun to run before 12 March 2020 are suspended during the Period. They will take effect again from the day after the end of the Period
  • The periods for terminating or cancelling a contract will be extended by two months at the end of the Period, when the termination or the opposition to the renewal of the contract should have taken place within a period expiring during the Period