From October 30, 2020, a second national lockout was put in place for four weeks in France. However, this time, the French courts and tribunals continue to function.
Bill n ° 2020-1379 extending the state of public health emergency and introducing various measures to manage the public health crisis was adopted on November 14, 20201 and published on November 15, 2020 (the “Bill”). It extended the state of emergency in public health declared by the decree of October 14, 20202 until February 16, 2021.
Article 10 of the bill authorizes the government to proceed by ordinance to the adaptation of the internal regulations, on the basis in particular of article 11 I 2 ° c of the emergency bill passed on March 22 2020 to deal with the COVID-19 epidemic.
During the first lockout, this process led to ordinance n ° 2020-304 of 25 March 2020 adapting the rules applicable to the courts in non-criminal proceedings and those relating to union contracts.3. It is in such circumstances that another ordinance adapting the rules applicable to courts in non-criminal matters4 was adopted by the French Council of Ministers on November 18, 2020 and published on November 19, 2020 (the ” Order“). This ordinance was supplemented by a decree adapting the rules applicable to courts in non-criminal matters.5 (the ” Decree« ).
The following provisions aim to ensure the speed 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 of its own jurisdiction to hear and determine all or part of the activity falling within the jurisdiction of another court which is unable to execute it (article 2 of the ordinance).
Report des audiences
To ensure the management of civil hearings, the clerk can inform the parties of the postponement of a hearing by any means (article 2 of the decree).
The parties can exchange their briefs and documents “by any means” as long as the judge can be sure of compliance with the adversarial procedure (article 4 of the decree).
The president of the court may decide that the court seised will rule “as a single judge at first instance and on appeal in all the cases submitted” (article 4 of the ordinance). Likewise, the president of the commercial court can, in all cases, decide that the hearing will be heard by a single judge. In all cases, the single judge must appear before the court during the deliberation (article 3 of the decree).
Publicity of court hearings during lockdown
The presidents define the conditions of access to the tribunal, courtrooms and services open to the public in order to guarantee compliance with the health restrictions in force. The president of the tribunal can decide that “the hearings will be held with limited publicity”. It is further added that “if the conditions necessary for the protection of human health cannot be guaranteed, hearings will take place in the council chamber”, with the presence of journalists if necessary (article 3 of the ordinance ).
The use of videoconferencing
The judge can “by a decision not open to appeal, decide that the hearing will take place using an audiovisual telecommunication means”, or even “in the event of technical or material impossibility to use such means” the judge can “decide to hear the parties and their lawyers by any electronic means of communication, including the telephone” (article 5 of the ordinance).
Procedure without hearing
“When representation is compulsory or the parties are assisted or represented by a lawyer, the judge or the president of the court may decide to proceed without a hearing”. It is added that “the parties have a period of fifteen days to oppose the procedure without a hearing”. It is specified that “In case of emergency, the judge or the president of the court may reduce this period. In the absence of opposition, the procedure will be carried out exclusively in writing. Communication between the parties will be by notification between lawyers. It must be justified within the time limits set by the judge. However, the court or the president of the college 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 the parties request it ”. (Article 6 of the ordinance).
In a decision of November 19, 20206, the French Constitutional Council considered that the procedure without hearing before the civil, commercial and labor courts provided for in article 8 of the ordinance of March 25, 2020 did not violate the French Constitution.
The provisions of the ordinance are immediately applicable to proceedings in progress as of November 20, 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 of 14 November 2020 allowing the extension of the state of health emergency and introducing various measures to manage the public health crisis
2 Decree n ° 2020-1257 of October 14, 2020 declaring a state of health emergency
3 Ordinance n ° 2020-1304 of March 25, 2020 adapting the rules applicable to courts in non-criminal matters and relating to property management co-ownership contracts (see client alert Management of civil disputes in the event of a COVID-19 (I) and (II) crisis
4 Ordinance n ° 2020-1400 of November 18, 2020 adapting the rules applicable to courts in non-criminal matters and relating to syndical co-ownership contracts
5 Decree n ° 2020-1405 of 18 November 2020 adapting the rules applicable to courts in non-criminal matters
6 Constitutional Council, decision n ° 2020-866 dated 19 November 2020