Presentation of the order No. 2020-306 of 25 March 2020 (as amended) and its interpretation circular

Order No. 2020-306 of 25 March 2020 (the "Deadlines Order") "extending time limits and adjusting procedures during the public health emergency", adopted on the basis of legislative enabling law No. 2020290 of 23 March 2020 on containing the COVID-19 epidemic, provide a special protection to the period from 12 March 2020 to 24 June 20201 (the "Emergency Period"). It extended various deadlines and measures that were set to expire or be implemented during this period (1) and adjusted the deadlines and procedures for obtaining administrative acts during that time (2). The Deadlines Order was recently amended by Order No.2020-427 of 15 April 2020 "on provisions pertaining to various deadlines in light of the COVID-19 epidemic", in which certain adjustments and additions were made.

As implementation of the Deadlines Order may prove tricky in practice, the government published a circular letter on 26 March 2020 clarifying certain terms of the order.2

1. Extension of various deadlines and measures set to expire or be implemented during the emergency period

Under the Deadlines Order, time limits applying to measures that were to be implemented during the Emergency Period are extended (1.1) as are the validity period of authorisations, permits and approvals normally expiring during the Emergency Period (1.2).

1.1. Extension of the time limit for carrying out measures that should have been completed during the Emergency Period

Article 2 of the Deadlines Order extends the applicable time limit, within a fixed maximum of two months, for "any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation which, if not carried out during the interval referred to in article 1 [i.e. the Emergency Period], may result in invalidation, penalty, expiry, loss of rights, expiry of a limitations period, non-enforceability, inadmissibility, want of prosecution, withdrawal of action sua sponte, application of a special regime, or disqualification of any kind."

Provisions that extend deadlines are broadly phrased.

In administrative law, article 2 of the Deadlines Order should apply (i) to actions to be performed vis--vis the administration by beneficiaries of administrative authorisations, (ii) to the interval within which the administration must withdraw/abrogate an act and (iii) to procedural acts in the context of administrative disputes and litigation (with the exception of planning appeals and prefectural applications for judicial review (dfr prfectoral), which are governed by special rules described in section 2.4 below).

In practice, date on which the time limit for performing an act referred to in article 2 of the Deadlines Order expires should be calculated as follows: [Duration of state of emergency (currently expiring on 24 May 20203)] + [1 month] + [original legal time limit, or 2 months if that limit was more than 2 months].

Deadlines expiring before and just after the Emergency Period, to which extensions under the Deadlines Order will not apply, should be closely watched as well.

The figure appearing below summarises the various possible scenarios.

1.2. Extension of authorisations, permits and approvals set to expire during the Emergency Period

Article 3 of the Deadlines Order allows authorisations, permits and approvals 4 that would normally expire during the Emergency Period to be extended. Theses extensions are automatic until the end of a two-month period that begins to run on 24 June 2020 (i.e. until 25 August 2020).

In practical terms, this means that a permit set to expire at any time during the Emergency

However the court or competent authority can change or end these extensions, prescribe implementation or institute new measures within a set time frame if justified in light of the interests entrusted to that court or authority.

2. Adapting deadlines and procedures for issuing administrative acts

The Deadlines Order sets out specific provisions adjusting deadlines and procedures for the following public authorities to issue administrative acts5 (the "Relevant Public Entities"):

  • National government offices and agencies (administrations de l'Etat);
  • Local governments (collectivits territoriales);
  • Public governmental institutions (tablissements publics administratifs);
  • Organisations and entities organised under public or private law entrusted with ad governmental public service mission, including social security organisations.6

2.1. Suspension and deferral of date on which deadlines for administrative actions begins to run

Article 7 of the Deadlines Order applies to time limits for the following actions of a Relevant Public Entity (the "Relevant Actions"):

  • Issuance of decisions, agreements or opinions
  • Verification of state of completion of a file or request for additional documents to process an application

Article 7 of the Deadlines Order also applies to time limits for public consultations or participation, but with different methods of suspension.

2.1.1. Suspension time limits

Deadlines at the end of which one of the Relevant Actions may or must be taken, or becomes deemed approved (or denied as the case may be), that have not expired prior to 12 March 2020 are suspended from 12 March until the end of the Emergency Period (i.e. 24 June 2020).7

In practice, this means that to determine the time limit for taking the Relevant Actions, one must (i) determine the number of days remaining, as at 12 March 2020, for the Relevant Public Entity to take the action, and (ii) compute this number counting from the end of the Emergency Period (i.e. 25 June 2020). We clarify that this should not prevent the Relevant Public Entity from taking a Relevant Action prior to the time limit. For public consultations or participation, time limits that did not expire before 12 March are suspended starting on 12 March and suspension will expire seven days after the date on which the Covid-19 state of emergency comes to an end (i.e. on 1 June 2020).

2.1.2. Deferral of starting date for computing deadlines

Where the point of departure for taking a Relevant Measure should have started to run during the Emergency Period, it is postponed to 25 June 2020

.

2.2. Suspension and deferral of deadlines for performing verifications, works, and complying with instructions

Regulatory time limits imposed on any person or entity by a government office with regard to:

  • Performing verifications or works; or
  • Complying with instructions or orders of any kind

are suspended from 12 March 2020 until 24 June 2020, unless they arise from a court decision.8 Suspension does not apply to time limits that expired before 12 March 2020.9

The starting point for deadlines that are exactly the same as those listed above and that should have started running during the Emergency Period is postponed until the Emergency Period has ended.10

These provisions do not preclude an administrative authority from exercising its jurisdiction to amend or terminate these obligations or, where the interests entrusted to the authority so require, compelling their implementation or ordering new obligations, within a time frame set by the authority. In any case, the authority must account for the constraints of the state of emergency when determining obligations and deadlines that must be followed.

Suspension ends in certain fields referred to in Decree no. 2020-383 of 1 April 2020 setting out exceptions to the principle of suspended deadlines during the COVID-19 public health emergency (the "Resumption Decree"); these include:

  • Operators of registered facilities and hydraulic structures (dikes, dams);
  • Operators of mining facilities or parties responsible for former mining facilities;
  • Operators of transit pipelines for hazardous substances;
  • Operators of transport infrastructure for hazardous substances, the holders of pressure devices and equipment;
  • Producers or users of chemical substances that may constitute health hazards, where such producers or users are notified of the obligation to satisfy instructions or perform inspections or analyses, or engage in monitoring, for the purpose of protecting public health, safety, sanitation, and the environment;
  • Owners of facilities, structures, construction work or activities subject to laws on water, who have been instructed to perform work, take samples, empty water bodies, maintenance of waterways, dredging, or avoidance, reduction, or offsetting measures;
  • Holders of exemptions from the prohibition on destroying protected species and their habitats, who have been instructed to perform works and avoidance, reduction, and offsetting measures;
  • Operators of basic nuclear facilities and accredited organisations for analysing passive integrated radon measurement systems that have been notified in that capacity of instructions from the Nuclear Security Authority, airfield operators.

In practice, this means that starting with publication of the Resumption Decree, i.e. on 3 April 2020, the remaining time as at 12 March 2020 begins running again as normal.

For any given procedure or obligation, a decree can establish another date on which the time limit will resume running, provided affected entities or persons are informed.11

2.3. Provisions for public hearings and feedback processes

Article 12 of the Deadlines Order applies to public feedback processes already in progress as at 12 March 2020 or that should be scheduled during the Emergency Period.

The Deadlines Order provides that if delay arising from the suspension of the public feedback process or inability to complete the process due to the public health emergency is likely to generate consequences that would be difficult to remedy in connection with urgent projects of national interest, the authority with jurisdiction to organise the public hearing process can adapt the methods thereof:

  • The competent authority can decide that the public feedback process already underway will continue using only remote, electronic means of communication. The total duration of the process can be adjusted to account for an interruption caused by the public health emergency; or
  • The competent authority can decide to schedule a public feedback process conducted entirely using remote, electronic communications.

The public must be informed of the decision to use either of these two processes by any means that are compatible with the public health emergency.

If the public feedback process will last longer than the Emergency Period, the organising authority may choose either to continue using electronic communications to complete the process or to complete it in accordance with ordinary law.

2.4. Planning and development provisions

Articles 12 bis et seq of the Deadlines Order cover the following time limits applicable to planning and development matters ("Planning Deadlines"):

  • Time limits for appeals and prefectural applications for judicial review (dfrs prfectoraux) against decisions not to oppose a work notification (dclaration pralable) or a demolition or development permit ("Deadlines for Appeals");
  • Deadlines for processing applications for permits and planning certificates, work notifications and verification procedures (rcolement)12 and the deadlines allowed to local governments and their public institutions, services, authorities or commissions in order to issue an opinion or consent as part of the processing of such applications or requests;
  • Deadlines related to pre-emption procedures in which a decision, consent, or opinion from one of the organisations or persons referred to in article 6 of the Deadlines Order may or must be formally or implicitly issued13.

2.4.1. Suspension of deadlines

Any above-mentioned deadlines that did not expire before 12 March 2020 are suspended beginning on that date until the end of the state of emergency.

In practice, this means that to determine the deadline date, the following must be considered (i) the number of days remaining as at 12 March 2020, and (ii) the number starting from the end of the state of emergency (i.e. as from 25 May 2020).

For Deadlines for Appeals, a postponed deadline that resumes running at the end of the state of emergency cannot be shorter than 7 days.

Please note that the deadline for electronic public consultations in connection with impact studies for the organisation of the 2024 Olympic and Paralympic Games follows the same rules as those for Planning Deadlines.

2.4.2. Postponement of starting dates for time limits

Where a Planning Deadline should have started to run during the state of emergency, the starting date is postponed to 24 May 2020.