I. The context of the establishment of Ordinance 2020-316 of March 25, 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, Order No. 2020-316 relating to the payment of rent, water, gas and electricity bills relating to the professional premises of companies whose activity is affected by the spread of the Covid-19 epidemic 19 was adopted.
Article 11.g) of the enabling law authorizes the Government to take any measure to:
- Defer in full or spread out the payment of rents, water, gas and electricity bills relating to professional and commercial premises,
- And to waive financial penalties and suspensions, interruptions or reductions in supplies that may be applied in the event of non-payment of these invoices, for the benefit of micro-enterprises, within the meaning of decree no. 2008-1354 of December 18, 2008, of which activity is affected by the spread of the epidemic.
II. The contents of the order
A. Measures taken
Full postponement or staggering of the payment of rents relating to professional and commercial premises.
In the absence of payment of rent or rental charges relating to their professional and commercial premises, lessors may not:
- apply to the lessee no financial penalty or late payment interest, no damages, no penalty payment, no penalty clause or any clause providing for forfeiture,
- take advantage of the execution of the termination clause inserted in the lease;
- activate guarantees or sureties,
And this, notwithstanding any contractual stipulation and the provisions of Articles L. 622-14 and L. 641-12 of the Commercial Code.
The provisions detailed above apply to rents and rental charges whose payment due date occurs between March 12, 2020 and the expiry of a period of two months after the date of cessation of the state of health emergency. declared by article 4 of the aforementioned law of March 23, 2020.
B. The companies concerned
Natural and legal persons under private law carrying out an economic activity particularly affected by the economic, financial and social consequences of the extension of covid-19 and the measures taken to limit its spread, eligible for the solidarity fund , in other words:
- VSEs, the self-employed, micro-entrepreneurs and liberal professions with a turnover of less than €1 million and an annual taxable profit of less than €60,000
Which ones:
- have been subject to an administrative closure OR
- suffered a 70% loss of turnover in March 2020 compared to March 2019
Natural and legal persons governed by private law who pursue their activity within the framework of a procedure for safeguarding, judicial reorganization or judicial liquidation on communication of a certificate drawn up by one of the judicial representatives appointed under the terms of the judgment of initiation of said procedure.
III. Critical analysis
A. Regarding the measures taken
The authorization order goes beyond the measures initially provided for under emergency law no. the waiver of financial penalties and suspensions, interruptions or reductions in supplies that may be applied in the event of non-payment of these invoices, the impossibility for the lessor:
- To take advantage of the termination clause inserted in the lease;
- To activate guarantees or sureties.
The question of the legality of these measures arises in relation to the enabling law.
B. As to the persons concerned
The enabling order restricts the scope of the enacted measures envisaged in the enabling law:
- While Emergency Law No. 2020-290 of March 23, 2020 provides that the measures taken can be for the benefit of micro-enterprises, i.e. for the benefit of companies which employ less than 10 people and which achieve a annual turnover or a balance sheet total not exceeding 2 million euros;
- The authorization order provides that are concerned VSEs, the self-employed, micro-entrepreneurs and liberal professions having achieved a turnover of less than 1 million euros and an annual taxable profit of less than 60,000 €
And extends it on the other hand to companies subject to collective proceedings, a priori without size condition, the question of the legality of this extension also arising in relation to the enabling law.
