Adaptation of deadlines and proceedings due to health emergency: update

On 27 April, we took stock of the measures taken by the Government to adapt the deadlines and procedures due to the health emergency situation and in particular on Ordinance n°2020-306 of March 25th, 2020 which had defined a “legally protected period” and introduced:

– An extension of legal and contractual deadlines expiring during this period

– A suspension of the time limits on the Administration to examine applications and make decisions

In order to accompany the development of the health situation, a new ordinance n° 2020-560 of May 13th 2020 has been published. It modifies, among other things, the “legally protected” period.”

WHAT’S CHANGING:

– The end of the legally protected period is modified

The end of the “legally protected period”, which was determined according to the end date of health emergency (+ 1 month), is now set at a specific date: 23 June included. All types of acts subject to a delay or sanction expiring between 12 May and 23 June included remain affected by this extension, for example those applicable before the judge (apart from those which are allocated by it and not prescribed by a text) or before the INPI.

How does this translate into practice? Let’s take the 4 scenarios we had outlined, depending on when the act was to be performed:

– 1st case:  the deadline for the deed expired on 11 March, before the protected period. There is no extension of this act.

– 2d case:  the period has expired/will expire during the protection period and is less than 2 months. This deadline is inactive until 23 June. At the end of this period, the entire initial period will start running again. For example, for a period of 1 month due to expire on 7 April, the act can be completed until 23 July included (1 month from 24 June).

– 3rd case:  the period has expired/will expire during the period and it is more than 2 months. This deadline is inactive until 23 June. At the end of this period, the initial period will start running again, but not more than 2 months. Thus, if a 3-month period were to expire on 7 April, the act can be completed until 23 August, 2020 included (2 months from 24 June).

– 4st case:  deadline expires after 23 June. This period remains unchanged, and is not subject to any extension.

Please note that this new period of protection is therefore less favourable for the person subject to the deadline than the mechanism in force so far, since the end date of the state of health emergency has recently been postponed to 10 July, 2020.

This amendment also applies to the deferral of the effect of the penalties, criminal clauses, resolution clauses or clauses resulting in revocation.

With regard to these, an ordinance of April 15th, 2020 had already change the method of calculating  the date of taking effect in the event of a postponement : instead of the automatic calculation mechanism originally provided for by Ordinance 2020-0306 (see our Newsletter), this text had finally opted for a calculation of the duration of the deferral on a case-by-case basis.

The duration of the deferral therefore corresponds to the time elapsed between 12 March, 2020 (the beginning of the period of legal protection) – or the date of birth of the obligation if it is after 12 March, and the date on which the obligation should have been carried out. The starting point for the postponement is set after the expiration of the legally protected period, on 24 June. Two cases are therefore to be distinguished:

1st case:  the obligation was born before the beginning of the legally protected period:

• For example, a contract concluded on 16 July, 2019, with an annual tacit extension, contains a withdrawal clause with 3 months’ notice, which therefore expired on 16 April 2020 (i.e. 1 month and 4 days after 12 March, 2020). The date of postponement of the notice will then be one month and 4 days from the expiration of the protected period, i.e. 28 July.

2nd case: the obligation was born during the legally protected period:

• For example, a court decision dated 30 March, 2020 issued a penalty that was supposed to begin running as of 15 April, 2020. This penalty will begin running 15 days after the expiration of the protected period, starting on 9 July.

– The automatic extension of certain jurisdictional measures is extended, but can be shortened on a case-by-case basis: 

Some measures that expired during the protected period had been automatically extended for two months: precautionary, investigation, conciliation or mediation measures. This extension is now extended to three months, i.e. until 23 September included.

Warning: the judge may decide to waive this extension if it is justified by the interests for which he is responsible. However, it must take into account the constraints associated with the health situation in making such a decision.

– The functioning of the courts continues to be adapted

Until the end of this period, and for hearings that are not subject to a referral, the conditions of access to the courts and the holding of hearings continue to be adapted: hearings in restricted publicity or even in council chamber, or by means of audiovisual telecommunications, but also hearing held by the pre-trial judge or the judge in charge of the report, on simple information of the parties. The simple letter replaces the recommended with acknowledgement for summonses and notifications by the registry (see ordinance 2020-595 of 20st May, 2020).

– What about the suspension of time limits for administrations? 

The change in the end date of the protected period also applies to the time limits for public institutions, such as the INPI, to make a decision, review a file or apply for regularization, which had been suspended by ordinance 2020-306.

Those that did not expire on 12 May remain suspended until 23 June. They will start running again on 24 June, for the length of time they had left on the date of their suspension. Those who should have started running during the legal protection period have their starting point postponed until June 24.

For example, if INPI were required to issue an opposition decision on 22 March 2020, that deadline would be suspended since 12 March. It will resume on 24 June and end on 4 July.

If an application for patent limitation was filed within the INPI on 1st June, the one-year period imposed on INPI to rule will not run until 24 June.

NOTE: INPI, whose premises remain closed until further notice, nevertheless processes files electronically and therefore continues to examine and issue industrial property titles where possible. In particular, it indicated that it will review the inventive activity of patent applications filed as of 22 May, 2020 (not 23 May, as originally announced). In any event, this review will not be implemented in practice until 2021, taking into account the time frames for issuing preliminary research reports. It should therefore not be impacted by the current situation.

Please do not hesitate to contact us for any further information:

Marie LIENS
Partner l Attorney at Law
Head of litigation Department
marie.liens@loyerabello.fr

Matija RAPIC
Attorney at Law
matija.rapic@loyerabello.fr

Mathilde JUNAGADE
Senior Legal Counsel | Former member of Legal Directorate of the Institut National de la Propriété Industrielle (INPI)
mathilde.junagade@loyerabello.fr

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– An extension of legal and contractual deadlines expiring during this period

– A suspension of the time limits on the Administration to examine applications and make decisions

In order to accompany the development of the health situation, a new ordinance n° 2020-560 of May 13th 2020 has been published. It modifies, among other things, the “legally protected” period.”

WHAT’S CHANGING:

– The end of the legally protected period is modified

The end of the “legally protected period”, which was determined according to the end date of health emergency (+ 1 month), is now set at a specific date: 23 June included. All types of acts subject to a delay or sanction expiring between 12 May and 23 June included remain affected by this extension, for example those applicable before the judge (apart from those which are allocated by it and not prescribed by a text) or before the INPI.

How does this translate into practice? Let’s take the 4 scenarios we had outlined, depending on when the act was to be performed:

– 1st case:  the deadline for the deed expired on 11 March, before the protected period. There is no extension of this act.

– 2d case:  the period has expired/will expire during the protection period and is less than 2 months. This deadline is inactive until 23 June. At the end of this period, the entire initial period will start running again. For example, for a period of 1 month due to expire on 7 April, the act can be completed until 23 July included (1 month from 24 June).

– 3rd case:  the period has expired/will expire during the period and it is more than 2 months. This deadline is inactive until 23 June. At the end of this period, the initial period will start running again, but not more than 2 months. Thus, if a 3-month period were to expire on 7 April, the act can be completed until 23 August, 2020 included (2 months from 24 June).

– 4st case:  deadline expires after 23 June. This period remains unchanged, and is not subject to any extension.

Please note that this new period of protection is therefore less favourable for the person subject to the deadline than the mechanism in force so far, since the end date of the state of health emergency has recently been postponed to 10 July, 2020.

This amendment also applies to the deferral of the effect of the penalties, criminal clauses, resolution clauses or clauses resulting in revocation.

With regard to these, an ordinance of April 15th, 2020 had already change the method of calculating  the date of taking effect in the event of a postponement : instead of the automatic calculation mechanism originally provided for by Ordinance 2020-0306 (see our Newsletter), this text had finally opted for a calculation of the duration of the deferral on a case-by-case basis.

The duration of the deferral therefore corresponds to the time elapsed between 12 March, 2020 (the beginning of the period of legal protection) – or the date of birth of the obligation if it is after 12 March, and the date on which the obligation should have been carried out. The starting point for the postponement is set after the expiration of the legally protected period, on 24 June. Two cases are therefore to be distinguished:

1st case:  the obligation was born before the beginning of the legally protected period:

• For example, a contract concluded on 16 July, 2019, with an annual tacit extension, contains a withdrawal clause with 3 months’ notice, which therefore expired on 16 April 2020 (i.e. 1 month and 4 days after 12 March, 2020). The date of postponement of the notice will then be one month and 4 days from the expiration of the protected period, i.e. 28 July.

2nd case: the obligation was born during the legally protected period:

• For example, a court decision dated 30 March, 2020 issued a penalty that was supposed to begin running as of 15 April, 2020. This penalty will begin running 15 days after the expiration of the protected period, starting on 9 July.

– The automatic extension of certain jurisdictional measures is extended, but can be shortened on a case-by-case basis: 

Some measures that expired during the protected period had been automatically extended for two months: precautionary, investigation, conciliation or mediation measures. This extension is now extended to three months, i.e. until 23 September included.

Warning: the judge may decide to waive this extension if it is justified by the interests for which he is responsible. However, it must take into account the constraints associated with the health situation in making such a decision.

– The functioning of the courts continues to be adapted

Until the end of this period, and for hearings that are not subject to a referral, the conditions of access to the courts and the holding of hearings continue to be adapted: hearings in restricted publicity or even in council chamber, or by means of audiovisual telecommunications, but also hearing held by the pre-trial judge or the judge in charge of the report, on simple information of the parties. The simple letter replaces the recommended with acknowledgement for summonses and notifications by the registry (see ordinance 2020-595 of 20st May, 2020).

– What about the suspension of time limits for administrations? 

The change in the end date of the protected period also applies to the time limits for public institutions, such as the INPI, to make a decision, review a file or apply for regularization, which had been suspended by ordinance 2020-306.

Those that did not expire on 12 May remain suspended until 23 June. They will start running again on 24 June, for the length of time they had left on the date of their suspension. Those who should have started running during the legal protection period have their starting point postponed until June 24.

For example, if INPI were required to issue an opposition decision on 22 March 2020, that deadline would be suspended since 12 March. It will resume on 24 June and end on 4 July.

If an application for patent limitation was filed within the INPI on 1st June, the one-year period imposed on INPI to rule will not run until 24 June.

NOTE: INPI, whose premises remain closed until further notice, nevertheless processes files electronically and therefore continues to examine and issue industrial property titles where possible. In particular, it indicated that it will review the inventive activity of patent applications filed as of 22 May, 2020 (not 23 May, as originally announced). In any event, this review will not be implemented in practice until 2021, taking into account the time frames for issuing preliminary research reports. It should therefore not be impacted by the current situation.

Please do not hesitate to contact us for any further information:

Marie LIENS
Partner l Attorney at Law
Head of litigation Department
marie.liens@loyerabello.fr

Matija RAPIC
Attorney at Law
matija.rapic@loyerabello.fr

Mathilde JUNAGADE
Senior Legal Counsel | Former member of Legal Directorate of the Institut National de la Propriété Industrielle (INPI)
mathilde.junagade@loyerabello.fr

Find the entire newsletter by clicking here