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28 May 2020
Presentation of certain provisions of Ordinance no. 2020-391 of 1 April 2020 to ensure the continuing operation of local institutions, local authorities and local public establishments during the Covid-19 epidemic
Version updated on 28 May 2020
This Ordinance was published in the Official Journal of 2 April 2020 pursuant to article 11 of the emergency law 2020-290 of 23 March 2020 to tackle the Covid-19 epidemic. This Ordinance introduces flexible measures adopted on a temporary basis, in order to ensure the continuing operation of local authorities and associated bodies, in the context of the state of public health emergency.
Following the extension of the state of public health emergency until 10 July 2020, pursuant to Law No. 2020-546 of 11 May 2020, Ordinance No. 2020-562 of 13 May 2020, which aimed at adapting the functioning of local institutions and the exercise of the powers of local authorities and local public establishments to the extension of the state of public health emergency in the context of the covid-19 epidemic, supplemented and clarified certain provisions of Ordinance No. 2020-391 of 1 April 2020.
Article 1 of the Ordinance provides the mayor, without the need for any "deliberation", (as per the report to the President of the Republic NOR: COTB2008607P), with all the powers set out in article L2122-22 of the Code général des collectivités territoriales (CGCT) which could normally be delegated by the municipal council by virtue of a deliberation, with the notable exclusion of "loans intended to finance investments provided for in the budget, and financial operations for the management of loans, including operations to hedge against interest rate and exchange rate risks" (Article L. 2122-22, 3° of the CGCT).
The exercise of these powers by local executive governments without the prior authorization of the deliberative body, remains, however, subject to (i) informing the elected local representatives "without delay and by any means" as soon as the decisions taken on this basis come into force, and (ii) potential legal review by the prefectural authority (contrôle de légalité).
In any event, this outright delegation of powers may be cancelled or modified in whole or in part by a decision of the municipal council, "subject to acquired rights" (droits acquis) according to the terms of the report to the President of the Republic. Such decision must be placed on the agenda of the first meeting of the municipal council following the entry into force of the aforementioned Ordinance.
This derogatory and transitional regime will be applicable to all local executive governments and this until 10 July 2020, pursuant to Article 7 of the aforementioned Ordinance No. 2020-562 of 13 May 2020. The presentation report to the President of the Republic of this Ordinance thus specifies that "newly elected mayors after the municipal and community councilors elected in the first round take office will benefit from the standard delegation system".
Article 2 of the Ordinance sets at one-third (instead of one-half in principle) the quorum of members required for a meeting of the deliberative body of any of the following: (i) local authorities or associated groups, (ii) standing committees of local authorities and (iii) offices (bureaux) of public establishments for inter-municipal cooperation (EPCI) having their own tax system.
The quorum of all these bodies will be assessed on the basis of the members present or represented.
The Ordinance also specifies that the members of these deliberative bodies will be able to hold two powers (instead of one in principle).
Article 3 simplifies the process of calling a meeting of a deliberative body of any local authority. It does so by reducing to one-fifth the proportion of members required to call a meeting of a deliberative body (for any local authority or associated group). When a request is made, the head of the executive of the local authority or group shall have six days to organise and set up the meeting. This easing is extended to the municipalities of Alsace-Moselle and is effective until 10 July 2020, under Articles 5 and 7 of the aforementioned Ordinance No. 2020-562 of 13 May 2020.
The ordinance nevertheless specifies that one member of a deliberative body must not submit more than one request per two-month period during the state of health emergency.
Article 6 authorises remote meetings of deliberative bodies of local authorities and associated groups in the form of videoconferencing or, failing that, audioconferencing. If this new option is used, the head of the local executive government must use all the means at his disposal to convene the members of the deliberative body and specify the technical arrangements for the meeting.
At any teleconference meeting, only open voting shall be used (i.e., by roll call or the casting of an electronic ballot). If a request for a secret ballot on an item of the agenda is adopted, it must necessarily be postponed to a later meeting, which shall not be held by electronic means.
In this instance, the quorum shall be assessed on the basis of members both physically present at the meeting and present through electronic means.
For deliberative bodies subject to an obligation of publicity (whether a local authority, or an EPCI with its own tax system), this obligation is deemed satisfied if and when a live transmission of the debate is accessible electronically by the public.
Article 9 of Ordinance No. 2020-562 of 13 May 2020 supplements this provision by offering the option, during a state of health emergency, to convene the municipal council at any location, including at a venue outside the territory of the municipality. The report to the President of the Republic states that "this provision will facilitate council meetings (essential in particular for the election of the mayor), which may be held in places where social distancing can be better respected". The mayor must nevertheless inform in advance the department's State representative of the venue chosen for the council meeting.
Article 10 also allows the mayor, the president of a local authority or of a public establishment for inter-municipal cooperation with a specific tax system to decide, prior to the meeting of the municipal council, that the meeting will take place without the attendance of the public or with a limited number of people adapted to the room and to the respect of social distancing measures.
The public nature of the meeting may nevertheless be ensured by its live transmission. However, the Ordinance specifies that reference must be made to this decision when convening the deliberative body.
Article 7 relaxes the modalities for the transmission of acts subject to legal review by the prefectural authority, by authorizing their transmission by e-mail until the end of the state of health emergency. In order to be valid, this method of transmission by electronic means must, however, meet several requirements. This includes, in particular, a requirement to identify the electronic addresses of both the competent prefectoral authority and the issuing local authority. However, each electronic transmission for legal review must contain no more than one decision.
Moreover, Article 7 also facilitates the accomplishment of formalities for the publication of regulatory acts of local authorities by specifying, by way of derogation, that regulatory acts may be published in electronic form. Such electronic publication must be made on the website of the local authority (or group of local authorities as the case may be). In addition, in order to be binding, these acts must also be published:
Article 7 of Ordinance No. 2020-562 of 13 May 2020 specifies that this simplification is effective until 10 July 2020.
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