“it is prohibited to any person to request, seek or disclose, in writing, verbally, or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature for the purposes of gathering evidence with a view to or within the framework of foreign judicial or administrative proceedings.”
“Subject to international treaties and agreements, it is prohibited for any individual of French nationality or habitually residing on French territory and/or any officer, representative, agent or employee of a legal entity having its registered office or an establishment on French territory, to communicate to foreign public authorities in writing, orally or by any other means, in any place whatsoever documents or information relating to economic, commercial, industrial, financial or technical matters, the disclosure of which may damage sovereignty, security or essential economic interests of France or the public order, specified by the administrative authority as required.”
“Without prejudice to international treaties or agreements and laws and regulations in force, it is prohibited for any person to request, search for or communicate, in writing, orally or in any other form, documents or information of an economic, commercial industrial, financial or technical nature for the purposes of establishing evidence in view of foreign judicial or administrative proceedings or in relation thereto.”
“The aim of this reform is to clarify the referral procedure for companies and to designate a single point of contact for the players concerned: the Strategic Information and Economic Security Department (SISSE) of the Directorate General for Companies. Companies will thus benefit from a privileged interlocutor who, in conjunction with the various State administrations, will assist them with regard to foreign requests in compliance with the Blocking Statute. The aim is also to strengthen legal certainty for companies by providing them with administrative opinions within a timeframe adapted to administrative and judicial procedures. These opinions will strengthen the enforceability of the Blocking Statute against foreign jurisdictions. The SISSE thus proposes a real path of support for companies faced with extraterritorial threats.”
“Subject: Contact being made in order to obtain an opinion regarding applicability .... The approaching of your Department forms part of the Group's desire to get your opinion as regards the possible applicability of the following provisions, be it in order to answer the requests to send information, intelligence or documents which the PSA Companies are likely to be faced with in the context of the aforementioned English proceedings, or in order to back up in their defence in these same proceedings: i. The provisions of Articles 1 and 1 bis of Law no. 68-678 of July 1968 relating to the sending of documents and information of an economic, commercial, industrial, financial or technical nature of foreign natural or legal persons (the “Blocking Statute”); ii. The provisions of Articles 11 and 434-7-2 of the Code of Criminal Procedure providing for the secret nature of the preliminary inquiry procedure and obliging the persons contributing to these proceedings to professional secrecy, where necessary combined with the provisions of the Blocking Statute; iii. The provisions of Articles 114 and 114-1 of the Code of Criminal Procedure prohibiting any party to a preliminary inquiry from circulating to third parties the reproduction of exhibits or instruments from the proceedings which have been sent to it at its request and with the agreement of the investigating magistrates, where necessary combined with the provisions of the Blocking Statute;... At this point, the Group seeks more specifically: ... the written opinion of your Department ... Both the Opinion as well as the Illustration may then be sent by the PSA Companies to the various current and future parties to the legal action which is pending in England and to the English court before which the case has been brought … To this end, this letter sets out: - A summary of the proceedings brought in France as well as in England against the PSA Companies in connection with allegations regarding the emission levels of Nox, from some of their vehicles fitted with diesel engines (1.); - A table summarising the requests to send documents and information sought by the complainants within the context of the proceedings in England by way of an application for the purpose of sending exhibits from the English Court (2)”
“... on3 May 2024 , the same French counsel for Renault attended a meeting with the Paris prosecutor’s office and PCD’s criminal counsel (at Renault and PCD’s request). From Renault’s perspective, this was: (a) to ensure that the Prosecutor office was aware of Renault’s criminal law representation in the event that a prosecution was commenced; and (b) to make clear that any sanctions for breach of the FBS by Renault ought to take into account that such a breach is a direct consequence of Renault’s obligations to comply with directions orders of the English Court in these proceedings.”
“in a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if (a) a competent authority designated by the state where the evidence is to be taken has given its permission either generally or in the particular case; and (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission.”
“In accordance with the provisions of Article 17, the Service Civil de l'Entraide Judiciaire Internationale, Ministère de la Justice, has been designated as the authority competent to authorize persons duly appointed as commissioners to take evidence without compulsion in aid of proceedings commenced in the courts of a Contracting State. This authorization, which will be given for each particular case, accompanied if need be by particular conditions, shall be subject to the following general conditions: 1. the evidence must only be taken within the precincts of the Embassies; 2. the Service Civil de l'Entraide Judiciaire Internationale must be given due notice of the date and time at which the evidence is to be taken so that it can make representatives available if necessary; 3. the evidence must be taken in a room to which the public has access; 4. the persons who are to give evidence must receive due notice in the form of an official summons drawn up in French or accompanied by a translation into French, and stating: (a) that the taking of evidence for which the person concerned is summoned is based on the provisions of the Hague Convention of18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, and is part of the judicial proceedings taken in a court designated by a Contracting State by name; (b) that appearance for the giving of evidence is voluntary and that non-appearance cannot lead to prosecution in the requesting State; (c) that the parties to any action consent to it or, if they do not, their reasons for this; (d) that the person who is to give evidence is entitled to legal advice; (e) that the person who is to give evidence can claim dispensation or prohibition from doing so. A copy of the summonses will be sent to the Ministère de la Justice. 5. The Service Civil de l'Entraide Judiciaire Internationale will be kept informed of any difficulties. The application for authorization, which will be addressed to the Ministère de la Justice by the requesting authority, should specify: 1) the reasons why this method of investigation was chosen in preference to that of Letters of Request, bearing in mind the judiciary expenses involved. 2) the criteria for designating the commissioners when the person designated does not reside in France.”
“The competent authority, in giving the permission referred to in Article 17, may lay down such conditions as it deems fit, inter alia, as to the time and place of the taking of the evidence. Similarly it may require that it be given reasonable advance notice of the time, date and place of the taking of the evidence; in such a case a representative of the authority shall be entitled to be present at the taking of the evidence.”
“[in pursuance of Article 23, Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries will not be executed;…] Modification dated19 January 1987 of the declaration relating to Article 23: … The declaration made by the French Republic in accordance with Article 23 relating to Letters of Request issued for the purpose of obtaining pre-trial discovery of documents does not apply when the requested documents are enumerated limitatively in the Letter of Request and have a direct and precise link with the object of the procedure.”
“Pulling the threads together for present purposes: i) In respect of litigation in this jurisdiction, this Court (i.e., the English Court) has jurisdiction to order production and inspection of documents, regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law in the “home” country of the party the subject of the order. ii) Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court’s ability to conduct proceedings here in accordance with English procedures and law. iii) Whether or not to make such an order is a matter for the discretion of this Court. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind (discussed in Dicey, Morris and Collins, op cit, at paras. 1-008 and following). This Court is not, however, in any sense precluded from doing so. iv) When exercising its discretion, this Court will take account of the real – in the sense of the actual – risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful. v) Should inspection be ordered, this Court can fashion the order to reduce or minimise the concerns under the foreign law, for example, by imposing confidentiality restrictions in respect of the documents inspected. vi) Where an order for inspection is made by this Court in such circumstances, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court. Comity cuts both ways.”
“different countries have their own interests to pursue. At times national interests conflict. In its simple, absolute, unqualified form the privilege [against self-incrimination], established in a domestic law setting, cannot be extended to include foreign law without encroaching unacceptably upon the domestic country’s legitimate interest in the conduct of its own proceedings…. Expressed in various ways, the chief strand of reasoning discernible in the common law rule is the undesirability of the state compelling a person to convict himself out of his own mouth. There is an instinctive recoil from the use of coercive power to this end...a person should not be put in a position where he is exposed to punishment whatever he does.”
“Although not necessary to my decision, I agree with Mr Sheldon’s submission that the Court should normally lean in favour (probably heavily in favour) of ordering inspection, especially where a substantial number of important documents are involved.” 2) Second, at [74], echoing an observation of Toulson J in an earlier case, he noted: “It would, I think, be highly unusual if the French criminal authorities were to prosecute a party to an action such as this in England, in circumstances where he was required to comply with an order of the Court for production of documents for the purposes of that action. The enforcement of a law such as the Blocking Statute in a case such as this would not correspond with generally accepted notions of comity.”
“I do not consider that Guidance have made any real effort to persuade the Ministry of Justice to allow to it comply with an obligation to serve a compliant PPD. The obvious way of doing this would have been to have provided the Ministry with a draft for approval. Guidance’s letter to the Ministry of October 18, 2010 was not an attempt to persuade the Ministry that Guidance could comply with its procedural obligations in England. On the contrary, the letter unequivocally asserted that ‘of course’ it cannot. Moreover, it overstates the extent of the disclosure of information that would be required.”
“Whether or not compliance with the orders of the English court in the cases before us is illegal under French law, the English court has jurisdiction to make them as part of the ordinary process of disclosure in civil proceedings because such matters are governed by English law as the lex fori. In the exercise of its jurisdiction, it is legitimate for the court to take account of the real risk of prosecution. On the information available to Henderson and Roth JJ when they made their orders, it cannot be said that their exercise of discretion was flawed in law. First, there is no evidence of any prosecutions under the French Blocking Statute in the years since 1968 when it was enacted, apart from that in Christopher X. That was a case in which, as Henderson J stated, the facts were exceptional, involving as they did the use of deception by a French lawyer without the protection of a court order.”
“It is obvious that as between obtaining disclosure (i) by a direct order against the parties, and (ii) by a court to court request under the Regulation, the former is plainly the more appropriate course. The latter is likely to be a slow, cumbersome and inadequate alternative, which may well, as Roth J noted, spawn follow-up applications under the Regulation if, as is likely to happen in practice, National Grid considers that yet further disclosure needs to be given. It is obvious that the just and efficient disposal of National Grid’s disclosure application required a conventional order directly against the French defendants, and no judge would have contemplated the use of the Regulation unless compelled to do so. Roth J, having decided that it would be appropriate to make a disclosure order, concluded that the existence of the Regulation did not require any different course. He was not only entitled to come to that view, it was, I consider, one that was manifestly correct.”
“Direct execution in conformity with the request is not approved for the following reasons. Article 17(3) of Regulation No 1206/2001 provides that the taking of evidence be carried out by a judge or by any other person, for example an expert, appointed in conformity with the law of the member state to which the requesting court belongs. In the present case, the request for direct execution (Form I) specifies that the taking of evidence (consisting of receipt of documents) will be carried out not by Judge Roth as stated in the communication from the firm of lawyers which sent the request, but by the lawyer of the defendant company in the proceedings meant to produce the documents which are the subject of the taking of evidence. Such a procedure leads to charging one party to the lawsuit with executing the taking of evidence necessary for the resolution of the lawsuit, which seems contrary to the fundamental principles of the law of the member state applied to. The refusal to grant direct execution under these conditions is in conformity with article 17(5)(c) of [Regulation No 1206/2001]. Moreover, in order to have one party produce documents considered necessary for the outcome of the lawsuit it has to settle, a court does not need to make an international application to obtain evidence: it suffices for it to order the party concerned to produce the said evidence. Certainly, recourse to a rogatory commission based on international instruments allows the parties to avoid the risk of being prosecuted in France on the basis of the law… known as the “blocking statute’, but this is an abuse of procedure, as no taking of evidence is in reality necessary to achieve the result sought by the judge.”
“an international instrument such as Regulation No 1206/2001 either does not apply to the obtaining of disclosure from another party in legal proceedings, or at any rate is not an instrument to which recourse needs to be had for the purpose of obtaining such disclosure; and therefore, although its use would avoid any risks arising under the French blocking statute, its invocation would be an abuse of process. The claimants’ proper course was simply to ask the English court to order the French defendants to give the required disclosure.”
“the law has the very clear objective of preventing intrusions and abuse, of protecting companies, not sanctioning them themselves or hindering spontaneous cooperation in a court proceeding.”
“But beyond the purely commercial aspects, American judicial and administrative practices raise fundamental problems insofar as they undermine our sovereignty.”
“An order will not lightly be made where compliance would entail a party to English litigation breaching its own (ie foreign) criminal law”