On 19 November 2020, were published (i) Ordinance No. 2020-1400 adapting the rules applicable to the courts of the judicial order ruling in non-criminal matters, issued on the basis of Law No. 2020-1379 of 14 November 2020 authorising the extension of the state of health emergency and introducing various measures to manage the health crisis and (ii) Decree No. 2020-1405 adapting the rules applicable to the courts of the judicial order ruling in non-criminal matters.

The provisions of the ordinance and decree are applicable to proceedings in progress on 20 November 2020 until the expiry of a period of one month after 16 February 2021, which is, to this day, the date of cessation of the state of public health emergency provided for in Article 1 of Law No. 2020-1379 of 14 November 2020.

As a preliminary remark, it is noteworthy that neither of these two texts of 18 November 2020 extends the time limits for recourse before the judicial courts.

The purpose of these texts is to allow the adaptation of certain rules of judicial organisation and civil procedure during the public health crisis in order to ensure the continuity of the justice public service in the context of the new lockdown by adopting a number of exceptional measures.

Transfer of jurisdiction (Article 2 of the Ordinance)

Thus, when a first instance court is totally or partially unable to function, the first President of the Court of Appeal designates by order another court of the same nature and within the jurisdiction of the same Court to hear all or part of the activity falling within the jurisdiction of the impeded court after having obtained the opinion of the Attorney General, the heads of courts and the directors of the registry of the courts concerned.

Access to the court (Article 3 of the Ordinance)

The heads of courts define the conditions of access to the court, courtrooms and services that receive the public to ensure compliance with health regulations. These conditions are made known to the public by means of posters.

Restricted publicity (Article 3 of the Ordinance)

The judge or the president of the panel of judges may decide, before the opening of the hearing, that the debates will take place in restricted publicity or even, if necessary, in a council chamber.

Single-judge ruling (Article 4 of the Ordinance and Article 3 of the Decree)

The court may, upon the decision of its President, rule by a single judge in first instance and on appeal in all cases.

The President of the Employment Tribunal may also decide that the Tribunal shall act in a restricted formation comprising an employer member and an employee member. In the event of a tie vote, the case is referred to a judge of the Judicial Court of the same jurisdiction as that of the Employment Tribunal.

In the ordinary written procedure before the Judicial Court and in the procedure with compulsory representation before the Court of Appeal, the judge in charge of the preparations for trial or the magistrate in charge of the report may hold the hearing alone to hear the pleadings.

Before the Commercial Court, the President of the Court may, in all cases, decide that the hearing shall be held by one of the members of the judgment panel.

Use of the procedure without hearing (Article 6 of the Ordinance)

In cases with compulsory representation by a lawyer or cases in which the parties are assisted or represented by a lawyer, the judge or the president of the trial bench may, at any stage of the procedure, decide that the procedure shall be conducted in accordance with the procedure without hearing.

The parties, who shall be informed by any means, have a period of 15 days to object to the procedure without hearing. In case of emergency, the judge or the President of the trial bench may shorten this period. In the absence of an objection within the prescribed period, the proceedings shall be conducted exclusively in writing.

If one of the parties so requests, the judge or the president of the bench may nevertheless decide to hold a hearing if he or she deems it necessary.

Extension of the faculty of using audiovisual means of telecommunication (Article 5 of the Ordinance)

The judge, the President of the trial bench or the liberty and custody judge may, by a decision not subject to appeal, decide that the audience or hearing shall be held using an audiovisual means of telecommunication that makes it possible to ascertain the identity of the persons participating in it and guarantees the quality of transmission and the confidentiality of exchanges between the parties and their lawyers.

If this is not possible, any other means of electronic communication, including by telephone, may be chosen by the judge, provided that the identity of the persons taking part in it and the guarantee and quality of the transmission as well as the confidentiality of the exchanges between the parties and their lawyers can be ascertained.

Cancellation of audiences and hearings (Article 2 of the Decree)

If the parties are assisted or represented by a lawyer or if they have consented to the posting of documents on the "Portal of the litigant" (Portail du justiciable) of the Ministry of Justice in accordance with Article 748-8 of the Code of Civil Procedure, the clerk notifies the parties of the referral of the case or of the hearing by any means, in particular electronically.

In other cases, the parties will be notified by any means, in particular by simple letter. If the defendant does not appear at the hearing to which the case is referred and has not been summoned in person, the decision shall be rendered by default.

The extended powers of the SAUJ (Article 5 of the Decree)

Clerk office staff members assigned to a unique reception service for litigants (service d'accueil unique du justiciable, or SAUJ) may ensure the reception by electronic means and the transmission by electronic means of all acts in civil matters where representation is not compulsory.

In Labour law matters, they may ensure the receipt and transmission by electronic means of applications, applications for the issue of certified true copies with or without the enforcement order and applications for legal aid under the conditions of Articles 26 and 132-9 of Decree No. 91-1266 of 19 December 1991.

If the document has been received by the SAUJ electronically, the paper document must be submitted by its author before a decision is taken on his or her request.

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Gide's Dispute Resolution practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.

This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.

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