[COVID-19] Emergency law to deal with the epidemic : what are the most significant for the public sector ?

Information current as of the date of publication of this article

The emergency law to deal with the COVID-19 epidemic was definitively adopted by the National Assembly on March 22, 2020 and published in the Official Journal on March 24, 2020.

Bignon Lebray deciphers some of the fundamental points that have an impact on public sector activities.

1. Why is this law necessary?

In order to strengthen the legal soundness of the Government’s intervention, to temporarily restrict the freedom of movement and entrepreneurship.

So far, it is the Government that has intervened to adopt emergency measures by decree and order. Considering that the legislator has to intervene, pursuant to article 34 of the Constitution, to regulate and thus provide a framework for public freedoms, including the freedom to come and go and the freedom of enterprise, it is necessary to adopt a law to establish a solid legal framework for Government intervention and to confer on it the necessary powers within the limits set by the legislator.

Since the current provisions of the Public Health Code are considered fragile in this respect, articles 1 and 7 of the law are intended to amend the Public Health Code and strengthen the powers of the Government.

Furthermore, only one law can amend another law, and certain legislative provisions need to be adapted to deal with the situation (cf. below).

2. What measures are being taken as a matter of economic urgency and adaptation to the fight against the epidemic?

Art.9 – Local and regional authorities shall be entitled to engage in investment expenditure

As a natural consequence of the impact of the epidemic on the current municipal elections, the relevant local authorities have until July 31, 2020 to adopt their budgets (April 15 in normal times) and can make investments up to 7/12ths of the appropriations under the previous budget (as opposed to ¼ in normal times);

Art.11 – The government shall be entitled to take measures, by means of ordinances, that normally fall within the domain of the law, such as for example:

• – The implementation of direct or indirect aids: taking measures to aid natural and legal persons, as regards in particular cash flow support and funds financed by local authorities and institutions.
• – The adoption of measures for the award and execution of public contracts, designed to amend the mandatory provisions relating to payment periods, contractual penalties and cases of termination. In this respect, while the measures taken by the Government, in response to the epidemic, are considered by the Ministry of Economy and Finance to present two of the three fundamental cumulative conditions of force majeure (externality and unpredictability; cf.: https://www.economie.gouv.fr/files/files/directions_services/daj/fiche-passation-marches-situation-crise-sanitaire.pdf), the third condition, relating to the absolute impossibility for the operator to execute its contract, must be analyzed on a case-by-case basis, depending on the projects concerned and the room for maneuver available to each operator to continue its activity (cf. our news flash published on March 19).
• – Adaptation of the rules for processing, enacting and appealing ex gratia and litigation against administrative decisions. As things stand, the usual rules continue to apply until the Government takes derogatory measures. Already provided for is the fact that the Government may take measures to adapt, interrupt, suspend or postpone the periods of nullity, lapse, foreclosure or limitation, and that these measures will be retroactive as of March 12, 2020.
• – Adaptation of the rules of governance applicable to local authorities, public establishments and administrative collegiate bodies, particularly with regard to dematerialized meetings.

3. What measures have been adopted with regard to municipal elections?

The second round of elections for municipal and community councils is postponed until June 2020 at the latest and will be fixed by decree, taken in the Council of Ministers of May 27. If impeded due to the health crisis, the term of office of municipal and community councilors will be extended for a period to be determined by law (art. 19). Various measures have been adopted to manage the consequences of this transitional situation on the organization and powers of local authorities and public establishments for intermunicipal cooperation.

With regard to the management of local authorities, in all cases the outgoing elected representatives will remain in office until a date to be fixed by decree, even in the municipalities in which voting took place in the first round and even if a first municipal council was able to elect the new mayor and deputies.

On the other hand, this retention of outgoing elected officials was expected in the following cases:

• – When a slate was elected in the 1st round, but the installation council could not be held, and this until the 1st installation council could be held.
• – In the event of a tie, and this until the 2nd round, (if it can take place in mid-June at the latest) or until a new complete ballot with a new 1st round and a possible 2nd round.