The publication on 2 April of the Guidelines on Health and Safety Recommendations for the Continuity of Construction Activities (23 page / 1.3MB PDF) by the Organisme Professionnel de Prévention du Bâtiment et des Travaux Publics (OPPBTP) followed discussions between the French government and representatives of building and civil engineering companies. The guidelines are designed to clarify the conditions in terms of health and safety that would allow the continuity of construction operations.
The UK has published similar guidelines.
The guidelines were approved by several ministries, including the ministry of health and the ministry of labour. They set out specific and practical measures designed to allow construction works to continue while ensuring the safety of workers.
The guidelines require, for example, limiting the number of workers on site and the number of interfaces to reduce the risk of encounters and contact, or wearing protective glasses and specific surgical masks if adequate distance between workers cannot be maintained.
OPPBTP underlines the necessity for businesses to strictly follow the instructions listed in the government-approved guidelines. In the first instance, employers must agree with all companies involved in the project a list of health and safety conditions which these companies will be able to follow in the long run.
Employers should consider:
- the conditions of execution of the works outside and inside;
- the number of workers on site;
- the extent of the interfaces, and
- the ability of the entire supply chain to resume its activities, including subcontractors, suppliers and transport companies.
This last point is probably the most important one as the last three weeks have shown that most construction sites came to a halt due to issues with the supply chain, meaning the refusal of subcontractors to continue their activities, or the lack of materials.
The guidelines say that “it is up to each company to assess its ability to comply and to take necessary steps”.
Should a company be unable to comply with the guidelines, or fail to agree with the employer on a list of health and safety conditions, then the works should simply not resume.
Impact of the guidelines on force majeure
As explained previously, Article 1218 of the French Civil Code defines force majeure as an event which is beyond the control of a party; could not have been reasonably foreseen at the time of entering into the contract; the effects of which cannot be avoided through adequate measures; and prevents a party from performing its obligations under the contract.
The publication of the guidelines may have an impact on the third and fourth condition set out above when it comes to contractors’ reliance on force majeure. Employers may indeed seek to argue that contractors have now been given adequate preventative measures which should allow them to resume works under safe conditions, therefore ending the period of force majeure.
In the absence of force majeure, or if the existence of force majeure is challenged by the employer, any delay to completion of the works would then expose in turn the contractor to potentially the payment of liquidated damages given that under the new Civil Code Article 1231-1, only force majeure may now excuse a party from liability for damages in respect of the default or delay.
Conscious of that risk, the guidelines explain that it is expected that the French government will enact an ordinance to the effect that employers in the private sector will be asked not to levy liquidated damages against suppliers and contractors in circumstances where Covid-19 has led to delays to the completion of works as a result of the impossibility of implementing adequate preventative measures. It of course remains to be seen what test will be applied to consider whether those measures were impossible to implement or simply too onerous.
Impact of the guidelines on ‘imprévision’
The concept of hardship or ‘imprévision’ may entitle a party to renegotiate the contract when performance thereof becomes overly onerous. Failing such renegotiation, parties may agree to terminate the contract. Absent any agreement, a party may apply to the court to have the contract revised or terminated.
Two conditions must be fulfilled under Article 1195 of the French Civil Code to trigger imprévision. There must be a change of circumstance which was unforeseeable at the time of entering into the contract; and has rendered the performance of the contract so onerous that it will affect the equilibrium of the contract.
It is too early to say whether the guidelines mean that performance of construction contracts will become exceedingly onerous, since we do not know for how long those measures recommended by the guidelines will need to be implemented.
However, it is obvious that these preventative measures will have a cost, both in terms of direct costs, for example the recommendation that workers use one passenger cars instead of shared vehicles and also, critically, loss of productivity. Article 1195 will certainly be a useful tool for contractors in support of their negotiations with employers over the coming months.