The context of the establishment of Ordinance 2020-427 of April 15, 2020
Emergency law n°2020-290 of March 23, 2020 to deal with the Covid-19 epidemic notably established a state of health emergency and enabled the Government to adopt, by ordinances, emergency measures related to the Coronavirus-Covid-19 crisis.
In this context, an ordinance n°2020-306 of March 25, 2020 relating to the extension of the deadlines expired during the period of health emergency and the adaptation of the procedures during this same period was adopted.
By Ordinance No. 2020-427 of April 15, 2020 , the Government intended to make adjustments and additions to the provisions taken by Ordinance 2020-306 and by Ordinance 2020-305 adapting the rules applicable before the courts. administrative order.
Only the provisions of articles 2 and 4 of this order 2020-427 will be examined at this stage, which:
- specify the meaning and scope of Article 2 of Ordinance No. 2020-306, not applicable to the reflection, withdrawal and waiver periods;
- amend and supplement Article 4 of Ordinance No. 2020-306 relating to the course of penalty payments and the application of penalty clauses, termination clauses and forfeiture clauses.
Under the terms of the report to the President of the Republic which accompanies Ordinance 2020-427, details are provided as to the conditions under which the derogatory regime resulting from these Ordinances (Nos. 2020-306 and No. 2020-305) will end. .
➢ As a reminder, Order 2020-306 of March 25, 2020 introduced a system for postponing various deadlines and due dates. For this, it has defined a “legally protected period” which runs from March 12, 2020 until the expiry of a period of one month after the end of the state of health emergency.
➢ To date, the duration of the state of health emergency is scheduled to end on May 24, 2020 (art.4 of the law of 23.03.2020), so that the "legally protected period" would end one month later, on June 24, 2020.
➢ The Ordinance of 25 March 2020 on deadlines, like other ordinances adapting emergency measures to deal with the epidemic, thus defined the end of the regime they established according to the end of the state of health emergency.
The date for the completion of this exceptional regime has therefore been set, at this stage, on a provisional basis. If the end of confinement were to be organized from May 11, 2020, the end of the “legally protected period” should be adapted accordingly.
Article 2 of Ordinance 2020-427
The details provided
What is provided for in article 2 of order 2020-306 of March 25, 2020
"Any act, recourse, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation under penalty of nullity, sanction, lapsing, foreclosure, prescription, unenforceability, inadmissibility, expiry, automatic withdrawal, application of a special regime, void or forfeiture of any right whatsoever and which should have been completed during the period mentioned in Article 1 will be deemed to have been completed on time if it was completed within a time limit which cannot exceed, from the end of this period, the time limit legally allowed to act, within the limit of two months.
The same applies to any payment prescribed by law or regulation for the acquisition or preservation of a right.
What is provided for in Article 2 of Ordinance 2020-427 of April 15, 2020
Article 2 of the same ordinance is supplemented by a paragraph worded as follows:
“This article does not apply to the time limits for consideration, withdrawal or waiver provided for by law or regulation, nor to the time limits provided for the reimbursement of sums of money in the event of the exercise of these rights.”
To analyse
The mechanism implemented by this article 2 of Ordinance No. 2020-306 of March 25, 2020 simply makes it possible to consider that the act or formality carried out within the legal period initially set (within the limit of two months), calculated from the end of the period referred to in Article 1 ("legally protected period"), will be deemed validly made.
It is a question of allowing, a posteriori (and as if the deadline had been respected), what it was impossible to do during the period of health emergency increased by one month.
This mechanism can only work if the deadline for acting is “prescribed” by law or regulation, “under penalty” of a sanction or forfeiture of a right.
➢ Time limits for withdrawing from or renouncing a contract are therefore excluded from the scope of article 2.
A reading to the contrary would have the effect of freezing all transactions in progress.
➢ The cooling-off periods before the expiration of which the recipient of a contractual offer cannot demonstrate their acceptance are also excluded from the scope of Article 2.
This is not an act that must be carried out within a given period. hardly sanction but only a time imposed on the future contracting party to reflect on his commitment
➢ This exclusion also concerns the deadlines provided for the reimbursement of a sum of money in the event of the exercise of the right of withdrawal or waiver.
This article has an interpretative character and is therefore necessarily retroactive.
Article 4 of the Ordinance
Changes and additions made
What is provided for in Article 4 of Ordinance 2020-306 of March 25, 2020
Penalty payments, penalty clauses, resolutory clauses as well as clauses providing for forfeiture, when their purpose is to sanction the non-performance of an obligation within a given period, are deemed not to have taken effect or produced effect. , if this period has expired during the period defined in I of Article 1.
These penalty payments take effect and these clauses produce their effects from the expiry of a period of one month after the end of this period if the debtor has not performed his obligation before this term.
The course of penalty payments and the application of penalty clauses which took effect before March 12, 2020 are suspended for the period defined in I of Article 1.
What is provided for in article 4 of order 2020-427 of April 15, 2020
“The second paragraph of Article 4 of the same ordinance is replaced by two paragraphs worded as follows:
If the debtor has not performed his obligation, the date on which these periodic penalty payments take effect and these clauses produce their effects is postponed for a period, calculated after the end of this period, equal to the time elapsed between, by a on March 12, 2020 or, whichever is later, the date on which the obligation arose and, on the other hand, the date on which it should have been performed.
"The date on which these penalty payments take effect and these clauses take effect, when their purpose is to sanction the non-performance of an obligation, other than sums of money, within a specified period expiring after the period defined in I of Article 1, is postponed for a period equal to the time elapsed between, on the one hand, March 12, 2020 or, if later, the date on which the obligation arose and, on the other hand , the end of this period.”
To analyse
➢ With regard to the clauses and penalties that sanction the non-performance of an obligation due during the legally protected period
The date on which these clauses and penalties will take effect or their effect is modified => the deferral is no longer fixed at one (1) month but will be equal to the duration of performance of the contract which has been impacted by the measures resulting from the state of emergency.
➢ Addition of a system for postponing the course of penalty payments and the taking effect of penalty, termination and forfeiture clauses when these sanction the non-performance of an obligation, other than a sum of money, scheduled for a date after the end of the legally protected period.
This postponement will also be calculated, after the end of the legally protected period, according to the duration of performance of the contract which will have been impacted by the constraints of confinement.
Even after the expiry of the legally protected period, debtors of an obligation to do will find themselves, due to the difficulties imposed by the confinement, unable to meet the deadlines to which they have committed.
The parties to the contract remain free to waive the right to avail themselves of the provisions of this article.
Concrete examples
1st example: if a deadline was expected on March 27, 2020, i.e. 15 days after the start of the legally protected period, the penalty clause sanctioning non-compliance with this deadline will not take effect, if the obligation is still not executed only 15 days after the end of the legally protected period.
2nd example: if a termination clause, resulting from an obligation born on April 1, 2020, should take effect, in the event of non-performance, on April 15, this 15-day period will be postponed to the end of the legally protected period so that the debtor can still validly fulfill his obligation before the termination clause takes effect.
3rd example: a works contract prior to March 12, 2020 provides for the delivery of the building on a date that expires after the end of the legally protected period, the penalty clause sanctioning the possible non-performance of this obligation will only take effect on a date postponed for a period equal to the duration of the legally protected period.
