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A new ordinance n°2020-427 of 15 April 2020 on various provisions regarding deadlines for dealing with the covid-19 epidemic (the “Deadlines Ordinance of 15 April 2020”), presented to the Council of Ministers on 15 April, was published in the Official Journal on 16 April 2020, as it was eagerly awaited by real estate and construction professionals, as well as by the renewable energy sector. Indeed, their entire process (financing, notarial deeds, building sites) is affected by the health emergency period.
This new regulation modifies and interprets the provisions initially taken by the first ordinance n°2020-306 of 25 March 2020 relating to the extension of the deadlines during the period of health emergency and the adaptation of procedures during this same period. Moreover, the Report to the President of the Republic (NOR: JUSX2009567P), also published in the Official Journal of 16 April 2020, indicates that these are adjustments and additions to the provisions initially adopted by Ordinance n° 2020-306 of 25 March 2020 and the adaptation of procedures during the same period.
Indeed, Ordinance n°2020-306 of 25 March 2020 introduced a mechanism for the postponement of various deadlines and expiry dates defining a “legally protected period” from 12 March 2020 until the expiry of a period of one month after the end of the state of public health emergency, set at present and provisionally at 24 May 2020.
Administrative time limits - Interpretative nature and retroactive application
First of all, Article 2 of the Deadlines Ordinance of 15 April 2020 specifies the meaning and scope of Article 2 of Ordinance n°2020-306 of 25 March 2020, which provides for the postponement of any act or formality (appeal, legal action, formality, registration, declaration, notification or publication) prescribed by law or regulation on pain of penalty (nullity, (b) the application of a special scheme, nullity, foreclosure, prescription, unenforceability, inadmissibility, lapse, automatic withdrawal, application of a special scheme, nullity or forfeiture of any right) and which should have been carried out between 12 March and the date of termination of the emergency state.
According to the Report to the President of the Republic, it is specified that this measure thus constitutes neither a suspension nor an extension of the time limit initially set for taking action; it is a matter of allowing what could not be done during the period of health emergency plus one month to be accomplisheda posteriori, the act or formality in question thus being deemed validly done.
It should also be noted that this measure applies on condition that a time limit for action is prescribed by law or regulation, caused by a penalty or forfeiture of a right. It should also be noted that Article 2 of the Deadlines Ordinance of 15 April 2020 is interpretative of the provisions of Article 2 of the Ordinance of 25 March 2020; it is therefore retroactive.
Shortening of the suspension of the time limits for the examination of applications for urban planning permission
The introduction of the state of health emergency suspended administrative deadlines, particularly regarding the time required to examine applications for planning permission. In view of the problems caused by this unprecedented situation, the Deadlines Ordinance of 15 April 2020 has modified the rules initially laid down on urban planning by Ordinance n°2020-306 of 25 March 2020, the objective being to facilitate the resumption of economic life and in particular to accelerate the resumption of construction work.
Article 8 of the Deadlines Ordinance of 15 April 2020 thus creates a Title II bis within Ordinance n°2020-306 of 25 March 2020 dedicated to public enquiries and procedures in matters of urban planning.
A new Article 12 bis is added to the initial mechanism, in order to set rules to replace those initially provided for in Article 2 of Ordinance n°2020-306 of 25 March 2020, concerning the extension of the deadlines for appeals applicable to all building authorisations.
Thus, the deadlines for examining prior declarations, building permit applications and planning certificates that had not yet expired on 12 March 2020 remain suspended; however, they will resume as soon as the state of health emergency ends (i.e. for the time being, and unless postponed, on 24 May 2020).
Reduction of delays in the issuance of urban planning permits
A new article 12 ter provides for a derogation from article 7 of Ordinance n°2020-306 of 25 March 2020, allowing the administrative processing times for planning authorizations to resume as soon as the state of health emergency ends (and not one month later).
It should be noted that the aim of this specific provision is also to be able to restart economic activity as quickly as possible once the period of health crisis has passed, which should be the case in particular for the renewable energy and construction sectors, by delaying the issue of authorisations to a minimum, as the Report to the President of the Republic also emphasises, as regards the real estate sector.
Deadlines for administrative appeals against urban planning permission
Many projects, whether in renewable energies or in construction, are currently blocked until the deadlines for recourse before the administrative court against the building permit are deemed to have been served.
A similar measure has also been adopted with regard to the deadlines for appeals against planning permission that had not expired by 12 March 2020, in order to secure projects in the context of deconfinement and the resumption of economic activity: these have been suspended since 12 March 2020 and will resume as soon as the state of health emergency ends, but for no less than seven days.
Article 8 of the Deadlines Ordinance of 15 April 2020 thus replaces, for appeals against such authorisations, the mechanism of Article 2 initially provided for by a system of shorter suspension periods, which will resume where it left off as soon as the state of public health emergency ends, while providing for a minimum of seven days, to enable individuals to bring an action before the competent administrative court.
Suspension of administrative deadlines for carrying out work and controls
In addition, Article 6 of the Deadlines Ordinance of 15 April 2020 amends Article 8 of the Ordinance of 25 March 2020, which suspends the time limits within which public and private persons must carry out work and inspections or comply with requirements of any kind.
However, it is specified that the administrative authority may, taking into account the constraints linked to the state of health emergency, during the period from 12 March 2020 to the end of the state of health emergency increased by one month, exercise its powers to modify these obligations or to put an end to them, or, when the interests for which it is responsible so justify, to prescribe their application or to order new ones, within the period it determines.
Public consultation and participation
Article 5 of the Deadlines Ordinance of 15 April 2020 modifies the period of suspension of the time limits for public consultation or participation.
Henceforth, these deadlines will be suspended until the end of a period of only seven days following the date of termination of the state of public health emergency, whereas they were suspended by Ordinance n°2020-306 of 25 March 2020 until the end of the month following the end of the state of public health emergency. This measure should make it possible not to further delay the organization and holding of public consultation and participation procedures.
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