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Gathering of evidence in France for a trial abroad and “blocking statute”

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chiefofficersnet

French law, in some circumstances, prevents the transfer of evidence gathered in criminal or administrative (i.e. cases involving the state) cases to investigators or courts overseas.

Advocat Charles Simon of the Paris bar explains why this came about and how it works in practice.

Evidence gathering is a touchy subject: it relates to how law operates within the borders of a country. And Frenchmen are touchy people. This led them to adopt a “blocking statute”, prohibiting the gathering of evidence in France for trials abroad. But this statute barks more than it bites.

The broad scope of the prohibition to gather evidence for trials abroad

More precisely, a law No 80-538 of 16 July 1980, which modifies a previous law No 68-678 of 26 July 1968, prohibits the request, search or communication, whether in writing, orally, or in any other forms, of documents or information, be they economic, commercial, industrial, financial, or technical, in order to gather evidence for judicial or administrative proceedings abroad or in the course of such proceedings. Offenders face a punishment of up to 6 months in jail and /or a fine of up to 18,000 euros.

The broad scope of the prohibition leads the “blocking statute” to be well-known in France, often discussed, and raised before French Courts. So that it is all the more striking that there is almost no case law applying it.

The sole application of the “blocking statute”

Indeed, over the almost 40 years since the adoption of the 1980 law, there is only one precedent applying it. The Highest French civil Court ruled upon it more than 10 years ago (Cour de cassation, Criminal Division, 12 December 2007, Docket No 07-83.228).

The facts were as follows: a State-owned French bank (Crédit Lyonnais) had acquired a Californian insurance company (Executive Life) through a proxy, a French insurance company (Maaf). This was illegal in California at the time (banks could not own insurance companies and Foreign States could not have a stake in insurance companies). The French lawyer of the Californian Insurance Commissioner, in charge of the regulation of the insurance sector in California, got in touch with several French persons from the French insurance company to try and obtain information on the acquisition of the Californian insurance company. By doing so, he breached the “blocking statute,” and French Courts sentenced him to pay a 10,000 euro fine.

Considering how easily the breach was established and how frequent international litigation is, it is quite mind-boggling that there are no other precedents.

The many exceptions to the “blocking statute”

This is because exceptions to the “blocking statute” are aplenty. Indeed, what the “blocking statute” aims at is to prohibit the use of a Foreign procedure or of no procedure at all to gather evidence on French soil for a Foreign trial. So that the “blocking statute” contains many exceptions to allow the “legal” gathering of evidence” for Foreign trials. Thus, it should be set aside when international treaties and conventions as well as laws and regulations apply.

There are basically three options when it comes to these exceptions:

- the Foreign judicial proceedings are already current before a Court of an EU Member State or have still to start. European law then applies.

Article 35 of the Brussels I bis Regulation No 1215/2012 for instance allows to request provisional measures as may be available under the law of a Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter. Based on this provision, the Highest French civil Court ruled that evidence could be gathered in France prior to a trial, irrespective of which EU Courts had jurisdiction over it (Cour de cassation, 1st Civil Division, 14 March 2018, Docket No 16-19.731).

If judicial proceedings are already underway, Regulation No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters then applies. It implies a request between the requesting Court to the requested Court or to a central body of the requested State. Requests shall be executed within 90 days of receipt by the requested Court (article 15);

- the Foreign judicial proceedings are before a Court of a country outside of the EU. International treaties then apply, if they exist.

The main treaty is the 1970 Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters. 62 Countries are parties to this Convention, including France, the US, Australia, China, Russia… In this system, local Courts send letters of request to the “central authorities” of the States of execution.

Based on the latest statistics submitted by France, its central authority received an average of about 150 letters of request per year between 2009 and 2013. Somehow, Turkey is making up the bunk of it (up to almost 80% in 2011 and 2012);

- before any proceedings are initiated, a French judge should be able to grant an order authorising the gathering of evidence in France, based on Article 145 of the French civil Code. This is a very frequently used, most of the time ex parte procedure to gather pre-trial evidence. It should be available whether the proceedings on the substance of the matter would then take place before a French or a Foreign Court, within or outside of the EU. This is because one cannot be a hundred percent sure beforehand what would come out of the gathering of evidence and which Courts will have jurisdiction over the facts established through the analysis of the evidence.

It also implies that, if proceedings are already underway before a Foreign Court, one cannot request an order based on Article 145 of the French civil Code (cf. Cour de cassation, 2nd Civil Division, 8 September 2011, Docket No 10-19.800). The gathering of evidence should then take place through the application of international treaties or European regulations, accordingly.

The special case of the US discovery procedure

The way the US discovery procedure is handled is specific. Indeed Article 23 of the 1970 Hague Convention provides that a contracting party may declare that it will not execute Letters of Request issued “for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries”.

At first, France declared that it would oppose the execution of letters of request relating to discovery procedures. Then, it added that it would execute such letters of request 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.

This is how a highly discussed law and seemingly high hurdle for the gathering of evidence in France for Foreign trials ends up being more of a lawyer’s trick, thrown around before Courts for good measure, but without real effect.

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Charles Simon may be contacted here.

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