DECREE OF 30 DECEMBER 2005
LexInter | May 3, 2007 | 0 Comments

DECREE OF 30 DECEMBER 2005

Decree No. 2005-1739 of December 30, 2005 regulating financial relations with foreign countries and applying Article L. 151-3 of the Monetary and Financial Code

NOR: ECOX0508949D


The Prime Minister,

On the report of the Minister of the Economy, Finance and Industry,

Having regard to the treaty establishing the European Community, in particular its articles 45, 57, 58 and 296;

Having regard to Regulation (EC) n ° 1334/2000 of the Council of June 22, 2000, as amended, establishing a Community regime for the control of exports of dual-use items and technologies;

Having regard to Regulation (EC) No. 139/2004 of the Council of January 20, 2004 relating to the control of concentrations between undertakings, and in particular its article 21, § 4;

Having regard to the penal code;

Having regard to the Civil Aviation Code;

Having regard to the Commercial Code, in particular its article L. 233-3;

Having regard to the defense code;

Having regard to the customs code, in particular its article 459;

Having regard to the Monetary and Financial Code, in particular its article L. 151-3 ;

Having regard to the maritime ports code;

Considering the amended law of June 15, 1907 regulating games in the casinos of seaside, thermal and climatic resorts;

Considering the law n ° 79-587 of July 11, 1979 relating to the motivation of the administrative acts and the improvement of the relations between the administration and the public, modified by the law n ° 86-76 of January 17, 1986;

Considering the amended law n ° 83-629 of July 12, 1983 regulating private security activities;

Considering the law n ° 2000-321 of April 12th, 2000 modified relating to the rights of the citizens in their relations with the administrations;

Considering the law n ° 2004-575 of June 21, 2004 for confidence in the digital economy, in particular its articles 30 and 31;

Considering decree n ° 98-608 of July 17, 1998 relating to the protection of national defense secrets;

Considering the decree n ° 2002-535 of April 18, 2002 relating to the evaluation and the certification of the security offered by the products and the systems of information technologies; Having

heard the Council of State (finance section),

Decrees:

Article 1


A chapter III entitled “Foreign investments subject to prior authorization” is inserted in Title V of Book I of the Monetary and Financial Code (regulatory part), comprising Articles R. 153-1 to R. 153-12, the content of which follows.


Chapter I

Provisions relating to foreign investment

from third countries

 

Article 2


A section 1 worded as follows is inserted in chapter III of title V of book I of the same code:


“Section 1


“Provisions relating to foreign investments

from third countries


“Art. R. 153-1. – Constitutes an investment within the meaning of this section the fact for an investor:

“1 ° Either to acquire the control, within the meaning of article L. 233-3 of the commercial code, of a company whose registered office is established in France;

“2 ° Either to acquire directly or indirectly all or part of a branch of activity of a company whose head office is established in France;

“3 ° Or to cross the threshold of 33.33% of direct or indirect ownership of the capital or voting rights of a company whose head office is established in France.

“Art. R. 153-2. – Foreign investments mentioned in article R. 153-1 made by a natural person who is a national of a non-member state of the Community come under an authorization procedure within the meaning of I of article L. 151-3. European, by a company whose head office is located in one of these same States or by a natural person of French nationality who is resident there, in the following activities:

“1 ° Activities in the gambling sectors;

“2 ° Regulated private security activities;

“3 ° Research, development or production activities relating to the means intended to deal with the illicit use, within the framework of terrorist activities, of pathogenic or toxic agents and to prevent the health consequences of such use ;

“4 ° Activities relating to equipment designed for the interception of correspondence and the remote detection of conversations, authorized under article 226-3 of the penal code;

“5 ° Service activities within the framework of approved evaluation centers under the conditions provided for in decree n ° 2002-535 of 18 April 2002 relating to the evaluation and certification of the safety offered by the products and systems of technologies

“6 ° Activities of production of goods or provision of security services in the information systems security sector of a company bound by contract with a public or private operator managing facilities within the meaning of Articles L. 1332 -1 to L. 1332-7 of the Defense Code;

“7 ° Activities relating to dual-use items and technologies listed in Annex IV of Council Regulation (EC) No 1334/2000 of 22 June 2000 as amended establishing a Community regime for the control of exports of dual-use items and technologies ;

“8 ° Activities relating to the means of cryptology and the services of cryptology mentioned in paragraphs III, IV of article 30 and I of article 31 of the law n ° 2004-575 of June 21, 2004 for the confidence in the Digital Economy ;

“9 ° Activities carried out by companies holding national defense secrets, in particular under classified national defense contracts or with security clauses in accordance with decree n ° 98-608 of July 17, 1998 relating to the protection of defense secrets national;

“10 ° Activities of research, production or trade in arms, ammunition, powders and explosive substances intended for military purposes or war material and the like regulated by Title III or Title V of Book III of the second part of the defense code;

“11 ° Activities carried out by companies having concluded a contract for the study or supply of equipment for the benefit of the Ministry of Defense, either directly or by subcontracting, for the realization of a good or a service falling within a sector mentioned in points 7 ° to 10 ° above. ”


Chapter II

Provisions relating to investments from

Member States of the European Community

 

Article 3


A section 2 worded as follows is inserted in chapter III of title V of book I of the same code:


“Section 2


“Provisions relating to investments from

Member States of the European Community


“Art. R. 153-3. – Constitutes an investment within the meaning of this section the fact for an investor:

“1 ° Either to acquire the control, within the meaning of article L. 233-3 of the commercial code, of a company whose registered office is established in France.

“2 ° Either to acquire directly or indirectly all or part of a branch of activity of a company whose head office is established in France.

“Art. R. 153-4. – Are subject to an authorization procedure within the meaning of article L. 151-3, if they fall under article R. 153-3, investments made in the activities listed from 8 ° to 11 ° of l Article R. 153-2 by a natural person who is a national of a Member State of the European Community, by a company whose head office is located in one of these same States or by a natural person of French nationality who is there resident.

“Art. R. 153-5. – Are subject to an authorization procedure within the meaning of Article L. 151-3, if they fall under 2 ° of Article R. 153-3, investments made by a natural person who is a national of a State member of the European Community, by a company whose head office is located in one of these same States or by a natural person of French nationality who is resident there, in the following activities:

“1 ° Casino activities, within the meaning of the law of June 15, 1907, as amended, regulating games in casinos in seaside, thermal and climatic resorts, insofar as investment control is required by the requirements of the fight against money laundering;

“2 ° Private security activities, within the meaning of the amended law n ° 83-629 of 12 July 1983 regulating private security activities, when the companies which exercise them:

” a) Provide a service to a public or private operator of ‘vital importance, within the meaning of Article L. 1332-1 of the Defense Code;

“B) Or participate directly and specifically in security missions defined in Articles L. 282-8 of the Civil Aviation Code and L. 324-5 of the Maritime Ports Code;

“C) Or intervene in protected or reserved areas, within the meaning of article 413-7 of the penal code and the texts adopted in application of decree n ° 98-608 of July 17, 1998 relating to the protection of defense secrets national;

“3 ° Research, development or production activities, when they concern exclusively:

” a) Pathogens, zoonoses, toxins and their genetic elements as well as their translation products mentioned in paragraphs 1C351 and 1C352a.2 of Annex I of amended Council Regulation (EC) No 1334/2000 of 22 June 2000 establishing a Community regime for the control of exports of dual-use items and technologies;

“B) Means of combating the agents prohibited under the Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and their destruction, done in Paris on 13 January 1993,

and that the control of the investment is required by the necessities of the fight against terrorism and the prevention of the health consequences thereof;

“4 ° Research, development, production or marketing activities relating to equipment designed for the interception of correspondence and the remote detection of conversations defined in article 226-3 of the penal code, insofar as the control of the investment is required by the necessities of the fight against terrorism and crime;

“5 ° Service activities within the framework of approved evaluation centers under the conditions provided for in decree n ° 2002-535 of 18 April 2002 relating to the evaluation and certification of the safety offered by the products and systems of information technologies, when the companies which exercise them provide these services for the benefit of State services, insofar as the control of the investment is required by the necessities of the fight against terrorism and crime;

“6 ° Activities of production of goods or provision of services in the information systems security sector carried out by a company bound by a contract concluded with a public or private operator of a vital installation within the meaning of Articles L. 1332-1 to L. 1332-7 of the Defense Code to protect this installation;

“7 ° Activities relating to dual-use goods and technologies listed in Annex IV of the aforementioned regulation of 22 June 2000 carried out for the benefit of companies of interest to national defense. ”


Chapter III

Common provisions

Article 4


A section 3 worded as follows is inserted in chapter III of title V of book I of the same code:


“Section 3


“Common provisions


“Art. R. 153-6. – I. – The authorization provided for in this chapter is deemed to have been acquired when the investment is made between companies all belonging to the same group, i.e. having more than 50% of the capital or voting rights. , directly or indirectly by the same shareholder.

“The authorization is not however deemed to have been acquired when the purpose of the investment is to transfer abroad all or part of a branch of one of the activities listed respectively in Articles R. 153-2 and R. 153- 4.

“II. – In the case of the investments mentioned in 3 ° of article R. 153-1 and listed in article R. 153-2, the authorization is also acquired with exemption from prior request when the investor who crosses the threshold 33.33% direct or indirect holding of the capital or voting rights of a company having its registered office in France has already been authorized under this chapter to acquire control of it within the meaning of article L. 233-3 of the Commercial Code.

“III. – If a prior authorization request has nevertheless been presented in the circumstances provided for in this article, the acknowledgment of receipt which is issued indicates that the request is not applicable.

“Art. R. 153-7. – Before making an investment, the investor can submit a written request to the Minister for the Economy to find out whether this investment is subject to an authorization procedure. The minister responds within two months. The absence of a response does not constitute an exemption from the authorization request.

“Art. R. 153-8. – The Minister in charge of the economy takes a decision within two months from the date of receipt of the authorization request. Otherwise, the authorization is deemed to have been acquired.

“An order from the Minister in charge of the economy fixes the composition of the authorization request file.

“Art. R. 153-9. – The minister responsible for the economy examines whether the preservation of national interests as defined by article L. 151-3 can be obtained by attaching one or more conditions to the authorization.

“These conditions mainly relate to the preservation by the investor of the sustainability of the activities, industrial capacities, research and development capacities or associated know-how, security of supply or the fulfillment of contractual obligations of the company. ‘company whose head office is established in France, as holder or subcontractor within the framework of public contracts or contracts concerning public security, the interests of national defense or research, production or trade in matters of weapons, ammunition, powders or explosive substances.

“In the event that the activity for which the authorization is required is carried out only on an ancillary basis, the Minister responsible for the economy may make the granting of the authorization conditional on the transfer of this activity to a company independent of the foreign investor.

“The conditions provided for in this article are set in accordance with the principle of proportionality.

“Art. R. 153-10. – The Minister in charge of the economy refuses by reasoned decision the authorization of the planned investment, if he considers, after examination of the request:

“1 ° That there is a serious presumption that the investor is likely to commit one of the offenses referred to in articles 222-34 to 222-39, 223-15-2, 225-5, 225-6, 225 -10, 324-1, 421-1 to 421-2-2, 433-1, 450-1 and 450-2-1 of the penal code;

“2 ° Or that the implementation of the conditions mentioned in article R. 153-9 is not in itself sufficient to ensure the preservation of the national interests defined by article L. 151-3 when:

” a ) The sustainability of activities, industrial capacities, research and development capacities and associated know-how would not be preserved;

“B) Security of supply would not be guaranteed;

“C) The fulfillment of the contractual obligations of the company whose head office is established in France as holder or subcontractor within the framework of public contracts or contracts concerning public security, the interests of national defense or research, production or trade in weapons, ammunition, powders and explosive substances.

“Art. R. 153-11. – The time limit given to the investor to restore the previous situation in application of III of article L. 151-3 is notified by the Minister responsible for the economy. It cannot exceed twelve months.

“Art. R. 153-12. – The administrative authorities competent to examine the authorization provided for in this chapter may resort to international cooperation to verify the accuracy of the information provided to them by foreign investors, in particular that relating to the origin of the funds. ”

Article 5


Articles R. 165-1 and R. 165-2 are inserted in chapter V of title VI of book I of the same code (regulatory part) as follows:

“Art. R. 165-1. – Any breach of the statistical reporting obligations mentioned in Articles R. 152-1 to R. 152-4 is penalized in accordance with Article L. 165-1.

“Art. R. 165-2. – Anyone who contravenes the administrative declaration obligation provided for in the first paragraph of article R. 152-5 is liable to a fine equal to the maximum amount applicable to 4th class fines. ”

Article 6


In 5 °, 6 ° and 7 ° of article R. 151-1 of the same code, the words: “and articles 7 to 9 of decree n ° 2003-196 of March 7, 2003 regulating financial relations with the foreign ”are deleted.

Article 7


Decree n ° 2003-196 of March 7, 2003 regulating financial relations with foreign countries is repealed.

Article 8


The Minister of State, Minister of the Interior and Regional Planning, the Minister of Defense, the Minister of Foreign Affairs, the Minister of the Economy, Finance and Industry, the Minister of national education, higher education and research and the Minister of Health and Solidarity are responsible, each in what concerns him, for the execution of this decree, which will be published in the Official Journal of the French Republic .
Done in Paris, December 30, 2005.


Dominique de Villepin


By the Prime Minister:


The Minister of the Economy,

Finance and Industry,

Thierry Breton

The Minister of State,

Minister of the Interior

and Regional Planning,

Nicolas Sarkozy

The Minister of Defense,

Michèle Alliot-Marie

The Minister of Foreign Affairs,

Philippe Douste-Blazy

The Minister of National Education,

Higher Education

and Research,

Gilles de Robien

The Minister of Health and Solidarity,

Xavier Bertrand

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