Droit des sociétés | Nouvelles modifications au régime des investissements étrangers en France

In principle, foreign investments can be made freely in France (article L.151-1 of the French Monetary and Financial Code). However, investments in certain sectors, which are considered strategic, are subject to a special legal framework and, in particular, to prior authorisation from the Minister of the Economy (article L.151-3 of the French Monetary and Financial Code).

In our previous newsletter of 11 February 2020, we already mentioned the modifications to the legal framework governing foreign investments brought about by a decree (Decree 2019-1590) and an order (Order ECOT1937237A) published on 31 December 2019.

On 10 September 2021, a new order (JO 22 Sept. 2021, text n° 7) brought new modifications to this prior authorisation procedure that will come into effect as of 1st January 2022.

On the one hand, this order extends the scope of this framework to the sector of technologies working on the production of renewable energies (solar energy, wind energy, biomass generated electricity, and geothermal energy, etc.).

On the other hand, this order adds a list of information and documents that must be provided upon request for authorisation:

a) For foreign investors (Order 31 Dec. 2019, art. 1, IV, 4° a and new 4° b.):

– the investor’s global strategy for France and the European Union (in particular, the nature of transactions carried out, examples of transactions carried out, and duration of investments); and

– the investor’s strategy in the sector or sectors of activity concerned by the transaction, in France and the European Union (in particular, the nature of transactions carried out, examples of transactions carried out, and duration of investments).

Furthermore, if a person within the foreign investor’s control chain is a national of a non-European Union state, the latter will need to complete the required notification form as per regulation (EU) 2019/452 of 19 March 2019 which established the framework for the screening of foreign direct investments into the European Union, as published on the site of the European Commission (Order. 31 Dec. 2019, art. 1, II, new 11°.).

b) For the French entity that is that object of the foreign investment (Order. 31 Dec. 2019, art. 1, III, 7° mod. and new 11°.):

– the list of French competitors or competitors working within the European Union, given that the list must specify the market share held in France by each competitor; and

– the list of intellectual property elements (patents, brands, licences) held or operated.

Finally, the requests for authorisation must specify “the status and identity of the person or persons legally authorised to represent the company that is the object of the investment […] and include any document testifying to such power of representation” (Order 31 Dec. 2019, art. 4, II mod.).

Please don’t hesitate to contact our Corporate team who will be delighted to assist you in your cross-border transactions.

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