1. What is French Blocking Statute (FBS) ?

FBS, initially enacted in 1968 (Statute n°68-678 of July 26, 1968), was designed to prevent the transfer of sensitive information to foreign authorities, especially during investigations that might compromise France’s national interests, including its essential economic interests. The scope of FBS is particularly broad, covering two situations:

• The communication of information by French nationals or residents to foreign public authorities that could harm national interests or public order (Article 1 of the Statute).
• The exchange of information – whether the communication or the request of communication – for the purpose of gathering evidence for or in the context of foreign judicial or administrative proceedings (Article 1bis of the Statute).

Failure to comply with this prohibition is punished by criminal penalties described in Article 3 of this Statute that is to say a six months’ imprisonment and a fine of 18,000 euros or one of these two penalties only. This provision has been applied once, resulting in a fine of 10,000 euros against the French correspondent lawyer of the American lawyer of a party involved in pending proceedings in the United States of America (Cass. crim., No 07-83.228, December 12, 2007, « Christopher X »).

The 2022 reform, as highlighted by the French Minister of Economy and Finance, aimed to significantly bolster the protection of such information and provide French companies with effective recourse during legal step towards bolstering the protection of such information and providing French companies with effective recourse during foreign legal proceedings^[1].

2. Key aspects of the 2022 reform of FBS

The 2022 reform, implemented through Decree No. 2022-207 dated February 18, 2022, introduced several critical changes:

1. Centralized procedure through SISSE: The Service of Strategic Information and Economic Security (SISSE), part of the Directorate-General for Enterprises (subdivision of the French Ministry of Economy and Finance), has been created as the single point of contact for companies. This streamlines the process for businesses faced with foreign requests for sensitive information, ensuring they receive coordinated support from the French Administration.
2. Clearer guidelines and legal certainty: The reform aims to clarify the procedure for companies. Professional federations like Afep (French association of large companies) and Medef (French employers association), alongside SISSE, have published guidelines to help companies identify data falling under the scope of the FBS and manage such data accordingly. Additionally, SISSE now issues formal opinions on the applicability of Articles 1 and 1bis of FBS, enhancing legal certainty for companies.
3. Increased enforcement and compliance: French companies must inform SISSE immediately upon receiving any foreign request for information covered by the FBS. Failure to comply results in SISSE reporting the violation to the public prosecutor under Article 40(2) of the French Code of Criminal Procedure. Since January 2022, SISSE has handled nearly 40 such requests, doubling the number from previous years, with an average response time of 10 days.

4. The implementation of the Hague Convention in France

The Hague Convention offers two procedures : under Chapter I – « The letters of Request » (1) and under Chapter II – « Taking of evidence by diplomatic officers, consular agents and commissioners » (2). The latter involves a « non-compulsory » approach.

1. The foreign court issues a Letter of Request (with a French translation), which shall be transmitted to the DEDIPE[2], who then forwards it to the French judicial authorities for implementation. The Letter of Request shall be implemented by a French judge under Chapter I of the Convention and does not incur significant costs (other than the personal representation fees incurred by each party). The process may take a few months to be achieved. Failure for a French national to attend to the hearing scheduled by the French Court appointed to implement the Letter of Request may be punished by a fine as contempt of court.
2. Evidence is obtained under the control of a diplomatic agent/ consular officer, or a commissioner (often a practicing lawyer in France) appointed by the foreign court and confirmed by French authorities (DEDIPE). This expedites the process to a few days. The powers of the commissioners are however limited : they do not have a coercive power and must refer any difficulties to the foreign judge who issued the request for evidence and to the French Ministry of Justice that authorized their appointment. The main disadvantage of using a commissioner is the higher costs involved. These costs can be divided between the parties or borne by one of them, depending on their agreement.

The Hague Convention also provides that contracting states may oppose the implementation of Letters of Request issued for the purpose of obtaining pre-trial discovery (Article 23).

• France has issued reservations in this regard, requiring that the documents requested must be « enumerated limitatively in the Letter of Request and have a direct and precise link with the object of the procedure».

While these reservations were initially specific to Letters of Request (Chapter I), they are, in practice, also applied to the procedures provided under Chapter II.

5. The limited observance of FBS by foreign courts (US Vs UK)

5.1       US Courts

Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987) :

The U.S. Supreme Court declined to comply with the provisions of the Hague Convention at the request of French defendants claiming to be bound by FBS and its criminal penalties.

The US Supreme Court asserted:

“The Convention’s plain language, as well as the history of its proposal and ratification by the United States, unambiguously supports the conclusion that it was intended to establish optional procedures for obtaining evidence abroad (…) The Convention does not deprive the District Court of its jurisdiction to order, under the Federal Rules, a foreign party to produce evidence physically located within a signatory nation. 

The French “blocking statute” does not alter our conclusion. It is well settled that such statute does not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence, even though the act of production may violate that statute.”

Despite this stance, the U.S Supreme Court introduced the comity test to provide guidance to American judges as to whether or not the Hague Convention shall be implemented when FBS is raised.

      Behrens v. Arconic, Inc., 487 F. Supp. 3d 283 (2020) :

In this case, the U.S. District Court for the Eastern District of Pennsylvania implemented the Hague Convention regarding evidence located within the premises of a French defendant. The Judge used the comity test from Aérospatiale and determined that factors favored compliance with FBS. The Court found that complying would not be unreasonably burdensome and recognized France’s strong interest in controlling access to its information. Despite objections regarding the perceived minimal chance of prosecution in France for a violation of the FBS, the Judge cited an enforcement example and concluded that the defendant faced potential consequences for violating it.

         Kashef v. BNP Paribas SA, 16-CV-3228 (AKH) (JW) (S.D.N.Y. May. 23, 2022):

The court recognized the hardships imposed by FBS and European data protection laws[3], justifying a refusal to compel a French defendant to provide de-pseudonymized documents. The U.S. court in the Kashef case explicitly acknowledged that FBS could be considered a “hardship” on French defendants when confronted with broad discovery requests falling outside the scope of the Hague Evidence Convention.

U.S courts appears to have demonstrated increased deference to international rules and FBS.

5.2       UK Courts

Lombard North Central v. Airbus Helicopters [2021]:

The High Court of Justice acknowledged the Hague Evidence Convention to comply with the FBS, reflecting a degree of respect for international conventions.

Lott & Ors v PSA Automobiles SA & Ors [2023] EWHC 2568 (KB) (16 October 2023):

The High Court of Justice rejected the French defendants’ request to use the Hague Convention for document disclosure, raising FBS. The court emphasized that English procedural law takes precedence and criticized the defendants for their delay and inaction, noting this would prejudice the claimants. Despite the 2022 FBS reform, the English court found the risk of prosecution in France to be minimal.

Joshua & Ors v Renault SA & Ors [2024] EWHC 1424 (KB) (11 June 2024) :

In recent case, the UK court dismissed the application by French defendants to appoint a commissioner under the Hague Convention. The court did not perceive a genuine risk of prosecution under FBS, despite the strengthening of enforcement mechanisms and even if the French defendants have been summonsed for interviews with French prosecutors.

For UK courts, the absence of risk of prosecution for non-compliance with FBS is still a reason not to abide to FBS.

[1] « With this first reform of the Blocking Statute for 41 years, France has taken a major step forward in the protection of sensitive information. Thanks to the reform of the 1968 Statute, French companies will also benefit from effective recourse to the State in foreign legal proceedings. At the same time, the French government is strengthening its arsenal in the fight against the extraterritoriality of the law, which is used as an economic weapon. » Bruno Lemaire’s (French Minister of Economy and Finance)’s statement published in the press release from the Minister for the Economy and Finance dated 16 March 2022 on the reform of FBS ».

[2] Department of mutual assistance, private International and european Law, French Ministry of Justice

[3] Article 48, GDPR, « Any decision by a court or administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may be recognised or otherwise given effect only if it is based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer under this Chapter. »