France Adopts a New Decree Reinforcing the Effectiveness of the French Blocking Statute

Jones Day

Jones Day

Pursuant to Decree No. 2022-207 dated February 18, 2022, companies receiving discovery demands or requests for information from foreign authorities now must turn to the Strategic Information and Economic Security Department ("SISSE") within the Ministry of Economy and Finance, which will assist them in responding to these document and information requests.

Decree n°2022-207 constitutes a new step in the modernization of the 1968 French Blocking Statute, which: (i) compels parties or requesting authorities to comply with international mutual legal assistance treaties and (ii) prohibits any company from transmitting any document or information that could affect the sovereignty, security, or essential economic interests of France. 

Pursuant to the French Blocking Statute, responses to discovery or pre-discovery demands made by a foreign authority and issued outside the protective framework of international mutual legal assistance (in particular pursuant to the Hague Convention of March 18, 1970) must ensure they comply with the statute's strict screening process. Such requests can be particularly extensive, as in the case of U.S. discovery. 

Lacking effectiveness, particularly in the United States, the Blocking Statute was in danger of falling into disuse, leaving French companies with no legal defense against extraterritorial actions brought by foreign authorities. The French government therefore undertook a thorough reform of the system, starting with the creation of a special department, the SISSE, to oversee the application of the French Blocking Statute. 

Decree n° 2022-207 is part of the implementation of this reform. It provides that as of April 1, 2022, any company subject to a discovery or pre-trial discovery demands must contact the SISSE. The SISSE will issue, within one month, an opinion on the applicability of the provisions of the Blocking Statute and will assist the targeted company by specifying the categories of documents that may be transmitted. The SISSE should also be notified in case of discovery or pre-discovery requests grounded on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters when the targeted companies operate in sensitive sectors (e.g., aerospace, defense, energy transition) or when the targeted documents may affect the sovereignty, security, or economic interests of France.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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