the threat is growing due to technological and digital interdependence

Gone are the days when a topic could be mistaken for a simple conspiracy topic. US extraterritorial laws, which allow US courts to take action against companies around the world based on elements such as corruption, paralyze with the size of the fines imposed – in particular, billions of euros in the symbolic cases of BNP Paribas or Alstom. The real weapons of mass destruction in economic warfare, as argued in a scathing report presented in 2019 by LREM MP Rafael Gauvin.

Since then, what conclusions can we draw in this delicate territory?“The main element is the awareness of all actors, whether they are industrialists, politicians and, more broadly, the general public, on issues of extraterritoriality.says Raphael Gauvin. In particular, after the health crisis, the political issues of sovereignty and independence have come to the fore again.”

Legal backing

Progress is being made on the legal front as well, with the recent decree on the so-called “blocking” law of 1968, which aims to protect companies during investigations by foreign authorities. “This is the first step. During the next five years, we will have to go further to make the second one. This will undoubtedly require the adoption of a new law.– says the deputy. “Much progress has been made regarding the Sapin Law 2 (note: the Law on Transparency and Anti-Corruption promulgated in 2016) and the entry into force of the possibility of making deals with the prosecutor’s office and CJIP (judicial public agreement). interest)”replete with Sophie Shemla, lawyer at the Paris and New York Bars, and partner at Gide Loyrette Nouel.

Thus, in some cases, such as Airbus, “French courts have taken the lead in bringing cases against French companies, often in conjunction with foreign authorities”resulting in settlement of disputes and reduced fines. “The National Financial Attorney’s Office is well aware of these topics. He indicates to his foreign colleagues that he is the one who will persecute and that if there is an agreement, it will be in France.”she said.

The threat is changing shape

Similarly, businesses and the financial sector are becoming more aware of the danger. “The compliance function has found its place in companies. In some banks, but also in other companies that were very far from the topic, this function becomes sensitive and strategic., notes for his part Emmanuel Pitron, responsible for business ethics activities at ADIT Economic Intelligence Specialist. Moreover, the threat is changing its face today. “Over the past five years, we have witnessed a strong increase in the threat of the effect of technological and digital interdependence”raises Emmanuel Pitron referring to the Cloud Act, which allows US judges to request data from storage providers, and “just the fact that digital players remain essentially Anglo-Saxon”.

Not to mention the double punishment that could be imposed on European companies now caught in the crossfire: extraterritoriality over the Atlantic and extraterritoriality of Beijing, which is accelerating in this area. Sophie Shemla explains it: “China has enacted a new law equivalent to the GDPR but much more restrictive that prohibits the transfer of data to Europe or elsewhere, which creates serious problems for companies with subsidiaries in China.”

European response

Suffice it to say that the danger for French companies does not disappear. Vice versa. So, could Europe be on the right scale to better protect itself? “Sovereignty in European trade policy”recalls Nicolas Ravail, professor at the School of Economic Warfare. “The European Union can make a decision very quickly, whenever it wants. If she doesn’t, it’s because she thinks it’s not in her best interest., he analyzes. Reason? Trade surplus protection… “If we tighten relations with the United States, they will tighten their legislative framework, and we are not interested in this,” he explains, adding that in this equation, because of the weakness of his foreign trade “France does not necessarily have interests that coincide with other Europeans.”

It remains to be seen whether the cards in terms of European mobilization will be reshuffled by the Ukrainian crisis and the desire of the 27th troops to strengthen their defenses, as well as their strategic autonomy. Issues of extraterritoriality related to defense do take on a special dimension. These are the extraterritorial scope of US regulations such as ITAR (US International Arms Regulations that control the import and export of objects and services related to defense in space) and “their application of these rules, in particular the investigations they may carry out in relation to European industry”notes Thierry Carlier, Director for International Development of the General Directorate of Armaments (DGA). “This breeds fear in our companies and a kind of ‘over-compliance’ regarding the application of these rules.”he continues.

Ways to move forward? At the DGA within the programs, “we try to take into account the concept of sovereignty and strategic autonomy as early as possible when designing”, he said. european side, “we have signed an agreement with Germany, recently extended to Spain, which allows each country to freely dispose and exercise its national sovereignty in relation to exports”decrypts this manager.

Finally, Europe also knows how to pass extraterritorial laws such as the GDPR, as Raphael Gauvin reminds us. In France, the CNIL also sanctioned American nuggets for actions that contravene the GDPR. But to go further “We need to get on the offensive and get back to manufacturing and exporting.. It remains the best weapon. Nicolas Ravail insists.