The outbreak of COVID-19 has substantially disrupted the management of civil litigation during the first national lockdown of 17 March 2020 to 11 May 2020. French judicial activity was limited to "essential litigation" and business continuity plans were implemented by the French courts.
From 30 October 2020, a second national lockdown was implemented for four weeks in France. However, this time, French courts and tribunals are continuing to operate.
Bill n°2020-1379 extending the state of the public health emergency and introducing various measures to manage the public health crisis was passed on 14 November 20201 and published on 15 November 2020 (the "Bill"). It extended the state of the public health matters emergency declared by the decree of 14 October 20202 until 16 February 2021.
Article 10 of the Bill empowers the government to proceed by way of ordinance to adapt the rules of procedure, on the basis, in particular, of article 11 I 2° c of the emergency bill passed on 22 March 2020 to address the COVID-19 epidemic.
During the first lockdown, this approach resulted in ordinance n°2020-304 dated 25 March 2020 adapting the rules applicable to the courts in non-criminal proceedings and those relating to syndic condominium contracts3. It is under such circumstances that another ordinance adapting the rules applicable to the courts in non-criminal matters4 was adopted by the French Council of Ministers on 18 November 2020 and published on 19 November 2020 (the "Ordinance"). These ordinance has been further completed by a decree adapting the rules applicable to the courts in non-criminal matters5 (the "Decree").
The following provisions are intended to ensure the celerity of proceedings and the continuity of justice in the context of COVID-19:
The Ordinance provides for a transfer of territorial jurisdiction with the possibility for the First President of the Court of Appeal to designate a court or tribunal within its own jurisdiction to hear and determine all or part of the activity falling within the jurisdiction of another jurisdiction which would be unable to perform it (Article 2 of the Ordinance).
Postponement of hearings
To ensure the management of civil hearings, the office clerk may inform the parties of the postponement of a hearing by any means (Article 2 of the Decree).
Parties may exchange their briefs and documents "by any means" as long as the judge can be sure that the adversarial process is respected (Article 4 of the Decree).
The president of the court may decide that the court seized shall rule "as a single judge in the first instance and on appeal in all submitted cases" (Article 4 of the Ordinance). Likewise, the president of the commercial court may, in all cases, decide that the hearing shall be heard by a single judge. In any case, the single judge must report to the court during the deliberation (Article 3 of the Decree).
Publicity of court hearings during lockdown
The presiding judges shall define the conditions of access to the court, to courtrooms and to services open to the public in order to ensure compliance with the sanitary restrictions in force. The president of the court may decide that "hearings will take place with limited publicity." It is further added that "if the necessary conditions to protect people's health cannot be guaranteed, then hearings shall be held in council chambers," with the presence of journalists where appropriate (Article 3 of the Ordinance).
The use of videoconferencing
The judge may "by a decision not subject to appeal, decide that the hearing will be held using an audiovisual telecommunication means", or even "in the event of technical or material impossibility of using such a means" the judge may "decide to hear the parties and their lawyers by any means of electronic communication, including telephone" (article 5 of the Ordinance).
Procedure without hearing
"Where representation is mandatory or the parties are assisted or represented by a lawyer, the judge, or the presiding judge may decide to proceed without a hearing". It is added that "the parties have a period of fifteen days to object to the procedure without hearing". It is specified that "In case of urgency, the judge or the president of the bench may reduce this period. In the absence of opposition, the procedure will be exclusively in writing. Communication between the parties shall be made by notification between lawyers. It shall be justified within the time limits set by the judge. However, the court or the president of the panel may decide to hold a hearing if it considers that it is not possible to render a decision on the basis of the written evidence or if one of the parties so requests". (Article 6 of the Ordinance).
In a decision on 19 November 20206, the French Constitutional Council ruled that the procedure without hearing before the civil, commercial and employment courts provided for in article 8 of the ordinance dated 25 March 2020 does not breach the French Constitution.
The Ordinance's provisions are immediately applicable to proceedings in progress as of 20 November 2020. The Decree provides that its provisions are applicable until one month after the end of the state of health emergency.
1 Law n°2020-1379 dated 14 november 2020 allowing the extension of the state of public health emergency and introducing various measures to manage the public health crisis
2 Decree n°2020-1257 dated 14 october 2020 declaring the state of health emergency
3 Ordinance n°2020-1304 dated 25 march 2020 adapting the rules applicable to the courts in non-criminal matters and relating to syndic condominium contracts (see client alert Managing civil disputes during COVID-19 crisis (I) and (II)
4 Ordinance n°2020-1400 dated 18 november 2020 adapting the rules applicable to the courts in non-criminal matters and relating to syndic condominium contracts
5 Decree n°2020-1405 dated 18 november 2020 adapting the rules applicable to the courts in non-criminal matters
6 Conseil constitutionnel, decision n°2020-866 dated 19 November 2020