Covid-19: Status of on-call duties taking effect after June 24, 2020

Ordinance No. 2020-306 of March 25, 2020 established a postponement of the deadlines for completing certain procedures prescribed by law or regulation, provided that these deadlines fall due between March 12, 2020 and June 24, 2020 (the date which corresponds to the date planned for the end of the state of crisis, plus one month).

According to Article 4 of the order, the penalties which began to run before March 12, 2020 have their effects suspended until June 24, 2020 but will regain their coercive effect after that date.

The penalties which should have run between March 12 and June 24, 2020 also have their effects suspended and will regain their coercive effect from July 25, 2020, unless in the meantime the debtors, who thus have an automatic additional period of one month, have fulfilled the obligations placed upon them.

On the other hand, the order makes no mention of penalties imposed before the establishment of the state of crisis and whose effects were deferred to a date after June 24, 2020. Examples include orders to carry out work, under a penalty which will only begin to run after a period (2, 4, 6 months) expiring after June 24, 2020.

The debtors concerned by these decisions do not, a priori , benefit from the extensions of time established by the order, since their situation is not covered in it.

However, they may have difficulty fulfilling their obligations before the penalty payment accompanying their sentence takes effect, due in particular to restrictions imposed by public authorities.

It is therefore on the classic ground of impossibility (as provided for by article L. 131-4 para. 3 of the Code of Civil Enforcement Procedures ) that they will have to position themselves in order to have it judged that it was impossible for them to perform the obligations placed upon them, due to an "external cause".

The question then arises as to whether the restrictive measures imposed by the public authorities constitute an "external cause" within the meaning of Article L. 131-4 para. 3.

As a reminder, the "external cause" must, in order to be admitted, have the characteristics of force majeure: be irresistible (it made execution impossible for the debtor) and unforeseeable (it could not have been foreseen), the judges having, in this matter, a sovereign power of assessment.

Therefore, on a case-by-case basis, debtors will have to demonstrate that they were unable to fulfill their obligations due to restrictions imposed by public authorities.

In this respect, it is to be feared that theoretical demonstrations will not suffice and that it will instead be necessary to establish in detail, with supporting evidence, the reality and extent of the obstacles that made execution impossible.

Furthermore, it is not impossible that judges, in their assessment of the situations, will go into detail and seek to determine whether the debtor's obligations could have been at least partially fulfilled.

Thus, in the context of work to be carried out within a certain period, it is possible that the debtor who has suspended all activity may later be accused of not having continued the execution of what could be carried out despite the state of health crisis (establishment of plans and work schedule, conclusion of contracts with future subcontractors, etc.).

The debtors concerned would therefore be well advised to sort out between obligations that are truly impossible to perform and those that can nevertheless give rise to a commencement of performance.

Above all, they should ensure that they properly document their actions in order to secure evidence, and should also be transparent with their creditors, who will be less able to accuse them of negligence if they have been informed of the difficulties encountered in execution.

The teams at Arst Avocats remain at your disposal to assist you with such procedures.

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