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"Economic betrayal": Montebourg's proposal would strengthen the already massive control of foreign acquisitions

2021-11-13T07:14:20.547Z


France has acquired in recent years a sufficient arsenal to filter foreign investments. A fervent supporter of economic sovereignty, Arnaud Montebourg put forward a new proposal this Friday to protect the tricolor flagships. The candidate for the next presidential election wants the leaders of companies sold to a foreign firm to answer " for their actions in court with criminal responsibility for economic treason, " he said on RMC / BFMTV. One thing is certain, the candidate Montebou


A fervent supporter of economic sovereignty, Arnaud Montebourg put forward a new proposal this Friday to protect the tricolor flagships. The candidate for the next presidential election wants the leaders of companies sold to a foreign firm to answer "

for their actions in court with criminal responsibility for economic treason,

" he said on RMC / BFMTV. One thing is certain, the candidate Montebourg is in phase with the former minister Montebourg. When he was in Bercy, the former socialist was in 2014 at the origin of a famous decree, called "Montebourg decree", which had broadened the list of sectors in which foreign investments were controlled. Since then, the legislation has only widened and hardened.

Read also Presidential 2022: Arnaud Montebourg wants to create a "crime of economic treason"

At the time, Arnaud Montebourg had not invented anything, specifies the business lawyer Me Olivier de Maison Rouge, specialist in the law of economic intelligence.

As early as 1966, Charles de Gaulle had legislated to govern the principle of foreign investments in France.

The law was then codified in 2000;

it had become article L. 151-3 of the Monetary and Financial Code

”, explains the doctor of law.

The“ Montebourg decree ”was just an extension of what already existed.

"

Concretely, the text of the Minister of the Economy and Productive Recovery had extended to several other sectors (energy, health, water, transport and telecommunications) the list of sensitive activities, for which a prior authorization from the state is necessary in the event of foreign investment.

A decree that Arnaud Montebourg had published in reaction to the controversial takeover in 2014 of the energy branch of Alstom by the American General Electric (GE).

Until then, the legislation only covered activities related to defense, security and information technology.

An arsenal strengthened by the Pacte law

"

Over time, as scientific and technological developments have taken place, the list has grown

," recalls Me Claire Vannini, associate lawyer at CMS law firm.

Aerospace, cybersecurity, artificial intelligence and robotics joined in early 2019, then, in early 2020, the written press and online press services for political and general information, food security, storage energy and quantum technologies.

Last year's enlargement was provided for in the Pacte law, promulgated in May 2019, a section of which was devoted to strengthening the control of foreign acquisitions.

Read also Could we block the assets of foreign leaders and cooperation agreements with certain countries?

In addition to extending the list of sectors affected by prior government authorization, it lowered from 33.33% to 25% the participation threshold triggering the opening of the control procedure - valid only for non-European investors. This same law also tightened the financial penalties that the Minister of the Economy can take against an investor who does not respect the authorization procedure, failures which can result in the nullity of the operation. In addition, the list of sectors considered strategic has been extended even more recently, with the entry of renewable energy production technologies in September.

“Certain European countries, which did not have a foreign investment control policy, are in the process of adopting one, notably Belgium and Luxembourg.

"

Me Claire Vannini, associate lawyer at CMS law firm

The Covid-19 crisis, by weakening many companies, has also pushed the government to strengthen its arsenal of foreign investment controls.

In April 2020, biotechnologies were included in sensitive sectors, while the 25% threshold activating the authorization process was temporarily reduced to 10% for non-European investors.

In December 2020, this last measure was extended until the end of 2021. “

A new extension cannot be ruled out,

” says Claire Vannini.

Highly publicized vetoes

As a result, last year, no less than 20% of foreign investments in France were subject to a prior authorization procedure.

The General Directorate of the Treasury has indeed carried out 275 checks, out of a total of 1,215 transactions recorded.

Read alsoInvestments: foreign acquisitions closely monitored

"

If most acquisitions are purely and simply authorized

", assures Me Claire Vannini, it is not the case of all.

For certain complex operations, the Ministry of the Economy and Finance may ask the potential buyer to make commitments, for example to maintain production in France or not to terminate current contracts.

», Explains the lawyer specializing in competition law. The state can go so far as to veto. An extremely rare measure, but one that the French government is less and less reluctant to take. In December 2020, he opposed the takeover of Photonis, a French company specializing in night vision for the armed forces, by the American group Teledyne, in the name of the protection of its strategic interests. Then, in January 2021, Bercy issued a

firm

"

no

" to the merger proposed by the Canadian Couche-Tard to the French distribution giant Carrefour.

If France is today the European champion of foreign investment control - in comparison, 159 acquisition transactions were controlled in Germany in 2020 and 69 in Italy in 2019 -, this strengthening of filtering mechanisms is not specific to France. Italy, Spain, Germany and the United Kingdom have expanded their arsenals in recent months. "

Certain European countries, which did not have such a policy, are in the process of adopting one, in particular Belgium and Luxembourg.

», Indicates Me Claire Vannini.

These member states are following the guidelines of the European Commission, which in March 2020 encouraged the 27 to control foreign investment.

A European cooperation mechanism on the subject also entered into force in October 2020. Advisory, it facilitates the exchange of information between Member States in the event of foreign investment.

If the scope of this device is limited, it reflects the end of the "

naivety

" of the EU, pointed out by some observers, vis-à-vis the United States and especially China.

SEE ALSO

- Montebourg: "

I understood that I had expressed myself poorly

" after the controversy

Source: lefigaro

All news articles on 2021-11-13

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