Decision no. 2020-866 QPC of 19 November 2020

On 25 September 2020, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (Second Civil Division, Ruling No 1138 of 24 September 2020). This application was made on behalf of Getzner France by François Vaccaro, Lawyer at the Paris Bar. It was registered by the general secretariat of the Constitutional Council under no 2020-866 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees under Article 8 of Ordinance No 2020-304 of 25 March 2020 adapting the rules applicable to ordinary courts ruling in non-criminal matters and to co-ownership management (syndic de copropriété) contracts.

Having regard to the following texts:

• the Constitution;
• Ordinance No 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• Act No 2020-290 of 23 March 2020 emergency measures for responding to the Covid-19 epidemic;
• Ordinance No 2020-304 of 25 March 2020 adapting the rules applicable to ordinary courts ruling in non-criminal matters and to co-ownership management (syndic de copropriété) contracts;
• Ordinance No 2020-595 of 20 May 2020 adapting Ordinance No 2020-304 of 25 March 2020 adapting the rules applicable to ordinary courts ruling in non-criminal matters and to co-ownership management (syndic de copropriété) contracts;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;

Having regard to the following documents:

• the observations on behalf of the applicants by François Vaccaro, registered on 6 October 2020;
• the observations of the Prime Minister, registered on 12 October 2020;
• the observations of intervenors on behalf of the Paris Bar Association by SCP Nicolaÿ - de Lanouvelle - Hannotin, Lawyer for the Conseil d'État and for the Cour de Cassation, registered on the same date;
• the observations of intervenors on behalf of the Syndicat des avocats de France and the Syndicat de la magistrature by the Meier-Bourdeau Lécuyer firm, Lawyer for the Conseil d'État and for the Cour de Cassation, registered on the same date;
• the observations on behalf of Gerb, party to the dispute at the time the application for a priority preliminary ruling on the issue of constitutionality was submitted, by Bruno Weil, Lawyer at the Paris Bar;
• the additional documents produced and appended to the case files;

After having heard François Vaccaro for the applicant company, Vanessa Krespine, Lawyer at the Paris Bar, for Gestal and the Société d'interventions et réalisations en bobinage, électricité et mécanique, parties to the dispute during which the application for a priority preliminary ruling on the issue of constitutionality was made, Bruno Weil for Gerb, David van der Vlist, Lawyer at the Paris Bar, for the Syndicat des avocats de France and the Syndicat de la magistrature, Florent Loyseau de Grandmaison, Lawyer at the Paris Bar, for the Paris Bar Association, and Philippe Blanc, appointed by the Prime Minister, at the public hearing on 12 November 2020;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Consequently, a referral to the Constitutional Council is made as provided for in Article 8 of the aforementioned ordinance of 25 March 2020, in its formulation resulting from the aforementioned ordinance of 20 May 2020.

2. Article 8 of the ordinance of 25 March 2020, in this formulation, provides that:
   “Where representation is mandatory or where the parties are assisted or represented by a lawyer, the judge or the president of the bench may, at any time during the proceedings, decide that the proceedings shall be conducted in accordance with the procedure without a hearing. The judge or the president of the bench informs the parties by any means.
   “With the exception of summary proceedings, expedited proceedings on the merits and proceedings in which the judge must rule within a specified period of time, the parties have fifteen days to object to the proceedings without a hearing. If not opposed, the proceedings are exclusively in written form. The communication between the parties is carried out by notifications between lawyers. It is justified within the time frames given by the judge.
   “In matters of psychiatric care without consent, the hospitalised person may at any time ask to be heard by the judge for liberties and detention. This hearing can be carried out by any means that can ensure the identity of the party and guarantee the quality of the communication of the exchanges and the confidentiality of those exchanges.
   “This article shall apply to cases in which the case is adjourned for further consultation of judges during the period referred to in Article 1.”

3. The applicant company accuses these provisions of allowing the court, in certain civil litigations, to require the parties to have proceedings without a hearing. This results in a violation of the right to a fair trial guaranteed by Article 16 of the Declaration of Human and Civic Rights of 1789. For the same reasons, these provisions would also violate Article 55 of the Constitution in that these proceedings without a hearing would violate the principles enshrined in Article 6 of the European Convention on Human Rights.

4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words, “With the exception of summary proceedings, expedited proceedings on the merits and proceedings in which the judge must rule within a specified period of time” in the first sentence of the second section of Article 8 of the ordinance of 25 March 2020.

5. According to the Syndicat des avocats de France and the Syndicat de la magistrature, the disputed provisions are contrary to defendant's rights and to the right to effective legal protection, when the emergency proceedings to which they apply may result in fully enforceable decisions and focus on the merits of the case.

6. The Paris Bar Association considers, firstly, that the disputed provisions would violate the right to a fair trial, defendant's rights, and the adversarial principle, on the grounds that they would introduce a measure disproportionate to the objective of combating the Covid-19 epidemic and that the decision to hold proceedings without a hearing, which may be imposed at any time, is neither reasoned nor subject to appeal. It goes on to argue that these provisions would also violate the principle of equality before the courts in that the judge would be entirely free to decide on a waiver of the hearing and a party could request such a waiver in its sole interest, without the possibility for its opponent to oppose it, thus upsetting the balance of the parties' rights. It argues, finally, that these provisions would be contrary to a “principle of presence”, which it asks the Constitutional Council to recognise, which would guarantee the physical presence of the litigant before the judge.

• Concerning the provisions referred to the Constitutional Council for review:

7. According to Article 61-1 of the Constitution: “If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, within a determined period.” Only provisions of a legislative nature may be referred to the Constitutional Council under the conditions laid down in this article.

8. If the provisions of an ordinance adopted in accordance with the procedure provided for in Article 38 of the Constitution acquire legislative value from the time of its signature when they have been ratified by the legislature, and in matters which are within the legislative domain, they must be regarded as legislative provisions within the meaning of Article 61-1 of the Constitution as soon as the time limit set by the enabling act authorising the Government to issue ordinances has expired. Their conformity with the rights and freedoms guaranteed by the Constitution can therefore be challenged by an application for a priority preliminary ruling on the issue of constitutionality.

9. In this case, on the one hand, the first section of paragraph I of Article 11 of the aforementioned law of 23 March 2020, on the basis of which the ordinance of 25 March 2020 was adopted (and from which the disputed provisions derive), authorised the Government, pursuant to Article 38 of the Constitution, to issue ordinances within a period of three months from the publication of this law. This publication took place on 24 March 2020; the authorisation period expired on 24 June 2020.

10. On the other hand, the disputed provisions make it possible to impose judicial proceedings without a hearing on the parties for certain civil proceedings of an urgent nature. While they concern civil proceedings, these provisions also call into question rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms, which are subject to the law under Article 34 of the Constitution.

11. Consequently, the disputed provisions must, as of 25 June 2020, be regarded as legislative provisions within the meaning of Article 61-1 of the Constitution. The Constitutional Council must rule on their constitutionality.

• In substance:

. Concerning the objections to the violation of defendant's rights and the right to a fair trial:

12. According to Article 16 of the Declaration of Human and Civic Rights of 1789: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” This provision guarantees defendant's rights and the right to a fair trial.

13. Article 8 of the ordinance of 25 March 2020, applicable during the public health state of emergency declared by the law of 23 March 2020 and for one month after the end of the public health state of emergency, allows the judge or the president of a panel of judges of an ordinary court ruling in non-criminal matters to decide that the proceedings take place without a hearing. This judge or this president then informs the parties of this fact, and the parties have a period of fifteen days in which they can oppose this decision. However, the disputed provisions, which are applicable before civil, social, and commercial courts, exclude this possibility of opposition for summary proceedings, expedited proceedings on the merits, and proceedings where the judge must rule within a specified period of time.

14. Yet, the organisation of a hearing before these jurisdictions is a legal guarantee of the constitutional requirements of defendant's rights and the right to a fair trial. Within their jurisdiction established in Article 34 of the Constitution, the legislator can modify prior texts or repeal them by substituting them, if the case may be, with other provisions. However, the exercise of this power cannot result in infringements of the legal guarantees of constitutional requirements.

15. Firstly, the disputed provisions seek to favour the continued activity of civil, social and commercial jurisdictions despite the measures put in place for the public health state of emergency to fight the spread of the Covid-19 epidemic. These provisions therefore pursue the objective of constitutional value of protecting health and contribute to the implementation of the constitutional principle of the continuous operation of the justice system.

16. Secondly, proceedings without a hearing only apply to cases for which the adjournment was announced during the public health state of emergency instituted by the law of 23 March 2020, or during the month following its end.

17. Thirdly, the disputed provisions seek to avoid that the opposition of a party as to the lack of a hearing lead to postponing the judgement of the case to a date far in the future, waiting for an improved public health context. These provisions therefore allow courts to rule within time frames that are compatible with the speed required in the emergency proceedings in question.

18. Lastly, on the one hand, the disputed provisions are only applicable when the parties must be represented by a lawyer or when they have chosen to be represented or assisted by a lawyer. As such this condition guarantees that litigants are able to adequately defend their claim as part of written proceedings. On the other hand, Article 8 of the ordinance of 25 March 2020, which provides for communication between the parties “being carried out by notifications between lawyers” and that it “is justified within the time frames established by the judge”, requires adversarial written proceedings. Lastly, the disputed provisions focus on offering a method where, according to the circumstances of each case, the judge can ensure that a hearing is not necessary to guarantee the fairness of the proceedings and defendant's rights.

19. It follows from the foregoing that, given the specific public health context created by the Covid-19 epidemic during the applicable period of the disputed provisions, these provisions do not deprive the constitutional requirements of defendant's rights and the right to a fair trial of their legal guarantees. The objection to the violation of these principles must therefore be dismissed.

. Regarding the other objections:

20. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes.” It follows from the combination of these provisions with those of Article 16 of the Declaration of Human and Civic Rights of 1789 that, if the legislator can provide for procedural rules that differ according to the facts, the situation, and the persons to whom these rules apply, it is with the condition that these differences not create unjustified distinctions, and that litigants are ensured equal guarantees, particularly in terms of defendant's rights, which requires there be a fair and equitable trial that guarantees the balance of the rights of the parties.

21. On the one hand, the disputed provisions do not establish a difference in treatment between the parties to the same proceedings, since both plaintiff and defendant are placed in the position of being unable to agree to the procedure without a hearing or to object to it. On the other hand, far from giving discretionary power to the judge to decide whether or not to hold a hearing, these provisions only allow the judge to use proceedings without a hearing under the aforementioned conditions, that is to say in emergency civil proceedings in which the equitable character of the proceedings and the respect of defendant's rights can be ensured by strictly written exchanges between the lawyers. Consequently, the objection to the violation of the principle of equality before the courts must be dismissed.

22. Secondly, it is not the responsibility of the Constitutional Council to review the conformity of a legislative provision to the stipulations of an international treaty or agreement when it receives a referral in application of Article 61-1 of the Constitution. As such, the objection to the violation of the aforementioned convention can only be dismissed.

23. It follows from the foregoing that the disputed provisions, which also do not violate the right to effective legal protection, or any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The words, “With the exception of summary proceedings, expedited proceedings on the merits and proceedings in which the judge must rule within a specified period of time” in the first sentence of the second section of Article 8 of Ordinance No 2020-304 of 25 March 2020 adapting the rules applicable to ordinary courts ruling in non-criminal matters and to co-ownership management (syndic de copropriété) contracts, in its formulation resulting from Ordinance No 2020-595 of 20 May 2020 adapting Ordinance No 2020-304 of 25 March 2020 adapting the rules applicable to ordinary courts ruling in non-criminal matters and to co-ownership management (syndic de copropriété) contracts, conform to the Constitution.

Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned ordinance of 7 November 1958.

Ruled by the Constitutional Council in its 18 November 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Jacques MÉZARD and Michel PINAULT.

Published on 19 November 2020.