Contradictions and uncertainties on the continuation of construction sites in the building and public works sector

At a time when the health crisis linked to the spread of the Covid-19 virus is affecting all sectors of activity, including the building and public works sector, it is appropriate to consider the consequences relating to the continuation of the activity of the construction sites in progress with regard to the applicable regulations.

On the 17th of March, the Fédération Française du Bâtiment (FFB) came to provide some answers on the subject in a guide posted on its website (available via this link) in which it considers three hypotheses:

  • Continuation of the construction site
  • Construction site stoppage
  • Unofficial construction site stoppage

At the same time, and for several weeks now, various exchanges between the government and construction professionals have been taking place to define the terms of an agreement to support the sector’s activity (severely hampered by the expansion of the epidemic) as well as the questions of responsibility raised by the crisis.

While the government seemed to be retaining business continuity (as shown by the remarks of the Minister of Labour, Muriel Pénicaud), many professionals in the construction industry wished to interrupt their activities to protect the safety and health of their employees.

The tougher tone set by the Prime Minister in his speech on Monday 23 March led the majority of trade federations to call for a suspension of construction sites.

Nevertheless, in the absence of a formal agreement to date, the decision as to whether or not to continue the work is ultimately based on the decision of the contracting authorities and the companies.

In practice, in view of the financial impact associated with this extraordinary context, some contracting authorities are forcing the continuation of the activity, to the detriment of the companies, which are struggling to ensure the traceability of measures to protect employees.

The tools and advice detailed in the guide put online by the FFB for companies remain at least a good guide (e.g. standard letters, etc.).

In addition, the undertakings concerned may rely on the force majeure, which has been recognised in this case.

Bruno Le Maire, Minister of the Economy and Finance, has thus confirmed that the present case is “considered to be a case of force majeure for companies in state markets. The FFB advocates the application of force majeure for all contracts (public, private with professionals or consumers.)

Also, assuming that the contracting authorities brandish the weapon of delay penalties, these appear questionable and will have to be contested with the utmost intensity against recalcitrant contracting authorities.

Moreover, it should also be recalled that, in their capacity as contracting authorities, the latter remain liable for damage caused to others on the basis of their civil liability.

Finally, their criminal liability may also be incurred, inter alia, for negligence, carelessness or breach of security obligations.

In the end, in view of these complex and difficult issues, it is advisable to favour the path of dialogue between the parties and to formalise the procedures for suspending or continuing the worksite.

These steps should lead companies to surround themselves with specialist legal advice in order to guarantee the legal and contractual security of the continuation of the construction operation.

 

Louise GAENTZHIRT

Construction and Urban Planning Lawyer, and member of the Jurisglobal international network

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