For your acquisition to be a success, you first need to think about all the obligations involved. Depending on the origin of the investment, the nature of the transaction and the nature of the business, your operation may be subject to the procedure for controlling foreign investments in France (IEF).
The Invest in Bretagne team will put you in touch with the right people, including the delegates for strategic information and economic security (DISSE), to ensure that your operation runs smoothly.
Trust us to help you !
The Strategic Information and Economic Security Service (SISSE) is a national service of the French Ministry of the Economy, Finance and Industrial and Digital Sovereignty.
It draws up and proposes interministerial public policy on economic security and promotes and protects France’s strategic economic assets.
In this context, SISSE contributes to the government’s position on IEF and coordinates the monitoring of commitments made by companies subject to IEF.
Is my operation subject to IEF ?
A foreign investment must be authorised under the IEF procedure if total of 3 conditions are met:
Source of investment (article R151-1 of the French Monetary and Financial Code):
- Any non-French individual ;
- Any French individual who is not resident in France within the meaning of the General Tax Code ;
- Any legal entity governed by foreign laws ;
- Any legal entity, governed by French law, controlled by one or more of the persons or legal entities mentioned above ;
Nature of the proposed operation (article R151-2 of the French Monetary and Financial Code) :
- The acquisition of all or part of a branch of activity of an entity governed by French law ;
- Direct or indirect ownership of +25% of the voting rights of an unlisted company governed by French law or +10% of a listed company ;
- The acquisition of control of an entity incorporated under French law within the meaning of Article L233-3 of the French Commercial Code.
Type of business (non-exhaustive list) :
Article L151-3 of the French Monetary and Financial Code requires prior authorisation for IEFs involving :
- Activities connected with the “exercise of public authority”;
- Activities likely to undermine public order, public security or the interests of national defence ;
- Research, production or marketing of weapons, munitions, powder and explosive substances.
Article R151-3 of the French Monetary and Financial Code specifies the activities mentioned within the meaning of L151-3 :
- French national security activities (Decree of 30/12/2005) : activities relating to the research, production or marketing of weapons, munitions, explosive powders and substances, activities relating to DUIs, cryptology for digital confidence, the interception of correspondence, gambling (except casinos), activities relating to the secrecy of national defence, activities relating to the ISS of installations or structures designated by the public authority, activities relating to the evaluation and certification of the security of products and IS, etc.
- Activities involving essential goods and services (fixed by decree) : energy, water, transport, electronic communications, public health, space operations, print media, online media, food safety and critical raw materials.
- Critical technologies (fixed by orders) : cybersecurity, AI, robotics, additive manufacturing, semiconductors, quantum technologies, energy storage, biotechnologies and technologies linked to renewable and low carbon energies and photonics.
If one of these conditions is not met, the investment is not subject to authorization.
Processing the IEF application
Stage 1 : receipt of a request by the Directorate General of the Treasury
- A request from the target company or an investor for a preliminary examination of whether all or part of the entity’s business falls within the scope of the procedure (response within 2 months)
- An IEF authorisation request from the investor if the project is completed (maximum 75 working days).
Stage 2 : Instruction coordinated by the Directorate General of the Treasury in conjunction with the relevant ministries (Ministry of the Armed Forces, SGDSN, ANSSI, MTES, Ministry of Health, DGE, Ministry of the Interior, etc.)
Stage 3 : notification of a decision by the Minister for the Economy in 2 stages (Article R151-6 of the French Monetary and Financial Code):
- Review of the operation’s eligibility within 30 days (no response = refusal). Result:
- The investment is not covered by the IEF procedure or is out of scope.
- The investment comes under the IEF procedure and is authorised unconditionally.
- The investment is covered by the IEF procedure and requires further examination (eligibility or refusal letter); this is the second notification stage.
- Negotiation of any commitments within 45 days (no response = refusal). Results:
- Notification of a refusal decision.
- Notification of a decision to authorise the investment subject to conditions ; this is the Letter of Undertaking (LoU).
- Notification of a simple or unconditional authorisation as for the first stage.
The objectives set out in the Letter of Undertaking (LoU)
Article R151-8-I of the French Monetary and Financial Code, the conditions mentioned in II of Article L151-3 are mainly aimed at:
- Ensuring the continuity and security of sensitive critical technology activities in France;
- Maintaining knowledge and expertise and preventing them from being captured;
- Adapting the entity’s internal organisation and governance procedures, as well as the procedures for exercising acquired rights;
- Setting out the procedures for informing the administrative authority responsible for the inspection.
From 2 October 2023, the procedure will be paperless.
Penalties applicable to offenders
Articles L 151-3-1 to L151-4 of the French Monetary and Financial Code – Powers of injunction and sanctions of the Minister for the Economy in the event of :
- Operations carried out without an application for authorisation, the Minister may issue injunctions relating to :
- Submitting a request
- Restoring the previous situation at your own expense
- Modifying the investment
- Injunctions may be accompanied by a penalty payment of up to €50,000 per day.
- Ignorance of the conditions laid down in the LoU :
- Withdraw the authorisation, possibly reinstating the previous situation or submitting a new application;
- An injunction to comply with the conditions set or new conditions.
- Compromise (or suspicion) of the protection of national interests :
- Suspension of voting rights ;
- Prohibit or limit the distribution of dividends or remuneration ;
- Temporarily suspend, restrict or prohibit the free disposal of all or part of the assets ;
- Appoint a representative.
- Financial penalties : the maximum amount is the highest of the following : double the amount of the irregular IEF, 10% of annual turnover, €5m for legal entities or €1m for individuals.
Foreign Direct Investments and Partnerships Director
Tel : +33 2 99 25 04 08
Amélie LE GALL
Tel : +33 2 99 25 04 24