the threat is growing due to technological and digital interdependence

Gone are the days when this topic could be taken as a simple conspiracy topic. US extraterritorial laws, which allow US courts to take action against companies around the world on the basis of elements such as corruption, paralyze the amount of fines imposed – billions of euros for symbolic cases of BNP Paribas or Alstom, in particular. The real weapon of mass destruction in the economic war, according to a February report submitted in 2019 by LREM MP Rafael Gowen.

Since then, what conclusions can we draw in this sensitive area?“The main element is the awareness of all actors, whether industrialists, politicians and the general public, on issues of extraterritoriality.believes Raphael Gowen. After the health care crisis, in particular, the political issues of sovereignty and independence came to the fore. “

Legal support

Progress has also been made on the legal front, with the recent decree on the so-called “blocking” law of 1968, which aims to protect companies during foreign investigations. “This is the first step. Over the next five years, we will have to move on to make a second one. This will undoubtedly require the adoption of a new law.says the MP. “Significant progress has been made with the Sapin Law 2 (note: the Law on Transparency and Anti-Corruption, promulgated in 2016) and the entry into force of the ability to conduct operations with the prosecutor’s office and the CJIP (NGO NGO agreement). interest) »Sophie Shemla, a lawyer in Paris and New York, is a partner at Gide Loyrette Nouel.

Thus, in some cases, such as Airbus, “French courts have taken the initiative, initiated proceedings against French companies, often in conjunction with foreign authorities”which led to agreements and reduced fines. “The National Prosecutor’s Office is very aware of these issues. He tells his foreign colleagues that he will persecute, and if there is an agreement, it will be in France. “she says.

The threat changes form

Similarly, business and the financial sector are more aware of the dangers. “The compliance function has found its place in companies. In some banks, as well as other companies that have been quite distant from the entity, this feature is becoming sensitive and strategic., for his part, says Emmanuel Pitron, responsible for business ethics at the economic intelligence specialist ADIT. Especially since today the threat is changing its face. “Over the past five years, we have witnessed a growing threat due to the impact of technological and digital interdependence.”raises Emmanuel Pitron, citing the Cloud Act, which allows U.S. judges to request data from storage providers, but also “Just the fact that digital players remain essentially Anglo-Saxon”.

Not to mention the double punishment that can be imposed on European companies that are now under crossfire: extraterritoriality because of the Atlantic and Beijing, which is accelerating in this area. Sophie Shemla explains this: “China, in particular, has introduced a new law, equivalent to the GDPR, but much stricter, which prohibits the transfer of data to Europe or elsewhere, which creates serious problems for companies that have subsidiaries in China.”

European answer

Suffice it to say that the danger to French companies does not go away. Vice versa. So can Europe be the right scale to better protect itself? “Sovereignty in trade policy is European”mentions Nicolas Ravale, a professor at the School of Economic Warfare. “The European Union can decide very quickly when it wants to. If she doesn’t do it, it’s because she doesn’t think it’s in her best interest., he analyzes. The reason? Protecting trade surplus … “If we strengthen relations with the United States, they will strengthen their legal framework, and we are not interested in that.” he explains to add that in this equation due to the weakness of foreign trade, “France does not necessarily have interests that coincide with other Europeans.”

It remains to be seen whether, in terms of European mobilization, the Ukrainian crisis and the will to strengthen defense, as well as their strategic autonomy, are shuffling the cards. Issues of extraterritoriality related to defense do take on a special dimension. These are the extraterritorial effects of US regulations such as ITAR (US International Arms Trade Regulations, which control the import and export of space defense facilities and services) and “Application of these rules, in particular the investigations they may carry out in relation to European industry”notes Thierry Carlier, Director of International Development of the Directorate-General for Armaments (DGA). “It creates fear in our companies and a form of ‘excessive compliance’ in the way these rules are applied.”he continues.

Ways to move forward? In DGA, as part of programs “We try to take into account the concept of sovereignty and strategic autonomy as early as possible in the design,” he said. European side, “We have signed an agreement with Germany, recently extended to Spain, which allows each country to freely dispose of and exercise its national sovereignty over exports.”decrypts this manager.

Finally, Europe also knows how to enforce extraterritorial laws, such as the GDPR, as Raphael Gowen reminds us. In France, CNIL has also sanctioned American nuggets for actions contrary to the GDPR. But to go further, “We have to take the offensive corner and find a way back to production and exports. He remains the best weapon. insists Nicolas Ravay.