In Le Monde du Droit: "Defense secrecy and national security versus discovery"

The Constitutional Council reaffirms the constitutional requirement of safeguarding the fundamental interests of the Nation and the secrecy of national defense, which is part of it.

In a decision of April 8, 2022 [1] rendered following the transmission by the Court of Cassation of a priority question of constitutionality ("QPC") [2], the Constitutional Council once again refused to limit the scope of national defense secrecy. In this decision, the high constitutional court assesses the contested provisions of article 706-102-1 and following of the code of criminal procedure, which allow the public prosecutor, during an investigation, and the examining magistrate, at the stage of the investigation, to use State resources subject to national defense secrecy to capture and clarify computer data in order to track serious crime. After recalling that this technique was implemented under the authority and control of a magistrate, the Constitutional Council validated the provision. It considers that it proceeds in a balanced way to the conciliation between the guarantee of the rights, among which the rights of the defense, resulting from article 16 of the Declaration of the rights of man and of the citizen and the constitutional requirements inherent in the safeguard of the fundamental interests of the Nation. 

This decision is in line with a previous decision of November 10, 2011 [3] which had stressed, with regard to the procedure of declassification and communication of classified information, in particular during searches, that "the secrecy of national defense participates in the safeguarding of the fundamental interests of the Nation, reaffirmed by the Charter of the Environment, among which are the independence of the Nation and the integrity of the territory." The only provision incriminated in the QPC that the Constitutional Council found to be contrary to the Constitution was the one that provided that the classification of a place had the effect of removing the entire geographical area from the investigative powers of the judicial authority, which could only be exercised with administrative authorization.

The sanctions against Russia and the actions that will follow underline the importance of these decisions of the Constitutional Council at a time when Europe must imperatively reinforce its means of defense. 

The consecration by the constitutional judge of the secret defense, as an integral part of the defense of the fundamental interests of the Nation takes on a particular relief in the context of the war in Ukraine and the sanctions to which it gives rise on the part of the European Union, alongside the United States and several other countries of the world.

This war reminds the Member States of the need to ensure the security of their citizens and highlights the usefulness, if any were needed, not only of Article 5 of the NATO Treaty [4], but also of the mutual assistance clause contained in Article 42§7 of the Treaty on European Union ("TEU"). According to this stipulation, "in the event of a Member State being the object of armed aggression on its territory, the other Member States shall assist it by all the means in their power. These means may be of a military, technological, medical or food nature. In fact, when the Lisbon Treaty was signed, which introduced this clause, Finland and Sweden were not planning to join NATO. The four neutral member states, together with Austria and Ireland, were to be free to determine the modalities of their assistance. However, there is no doubt that this assistance would mainly concern the delivery of defence and security equipment.

The strengthening of European defence capabilities is paradoxically taking place in the context of attacks on the defence industry. For several years now, NGOs have been bringing actions before the International Criminal Court ("ICC") or the UN Human Rights Council, for example, against states, including France, and their arms companies, for complicity in war crimes through exports to certain countries. Thus, in May 2021, a German NGO, in referring the case to the United Nations Human Rights Council, used the law on the duty of vigilance of 2017 [5] to request a series of information on public companies in the defense sector, including on the supply and export of arms and the use of intermediaries for the production and transfer of equipment [6]. In April 2022, ten countries, including France, were implicated by an investigative media for arms and spare parts supply contracts with Russia, which were legally executed after the European embargo of 2014 due to the occupation of Crimea by Russia [7].

Information affecting the safeguarding of France's defense and security will be better protected against requests for the transmission of evidence in foreign proceedings.

If we can thus anticipate other actions against companies in the defense sector, we can also observe a greater vigilance on the part of the French government regarding the need to protect sensitive information that could be requested in the context of these proceedings as evidence of the allegations made by the applicants. This awareness can be seen in particular in two regulatory texts - the decree of February 18, 2022 [8] and the order of March 7, 2022 [9] - taken in application of article 2 of the 1968 law amended in 1980 [10], known as the "blocking law". This law is simply an "Evidence" law, the objective of which is to channel, through international mutual legal assistance, the transmission of documents and information abroad (by way of computer transfers as well as by way of testimonies) in the context of judicial (criminal or civil) or administrative proceedings.

The decree and the order establish a one-stop shop at the Ministry of Economy and Finance: the Strategic Information and Economic Security Service ("SISSE"). The latter, created in 2016, already had the possibility to be seized by companies facing requests for the transfer of evidence, notably in the context of discovery [11] or pre-trial discovery [12]. The aim of these companies was to be able to better apprehend the documents that could not be transmitted abroad insofar as, beyond the economic interests of the company, the higher interests of the State could be at stake. However, the SISSE's opinions were not official, whereas they will be from now on. Moreover, the one-stop shop system does not in any way impede, on the contrary, the cooperation that exists between the SISSE and the other ministries concerned, primarily the international judicial assistance offices of the Ministry of Justice.

The concept of "sensitive sovereign" information to be protected in cross-border judicial and administrative proceedings reflects national security concerns.

For companies, especially those in sensitive sectors such as defense, the advantage is also to be able to refer to a methodology developed in order to identify information that should not be communicated to foreign public authorities or private parties because it involves the security, safety and essential economic interests of the State. This methodology is proposed in an AFEP/MEDEF guide, which was developed in consultation with the SISSE and is available on the website of the Ministry of Finance [13].

The guide aims to make companies aware of their duty to protect national interests, by setting cumulative criteria for the apprehension of information to be protected on the basis of a case-by-case risk analysis: the question is to know, firstly, whether the company concerned is of a strategic nature and, secondly, whether the disclosure of the required information would have a long-term impact on both the company and the fundamental interests of France. The information identified through these criteria is called "sovereign sensitive". This category of data is much more extensive than "secret defense" information, as evidenced by the reference to two texts: article R.151-3 of the Monetary and Financial Code [14], which refers to activities and technologies in the defense and security sectors, and article R1332-2 of the Defense Code, which defines what is meant by a "sector of vitally important activities.

There is no need to insist on the relevance of this guide in the current circumstances which, as never before since the last world war, raise the question of national and European security.

Noëlle Lenoir, partner at Noëlle Lenoir Avocats


[1] Decision n° 2022-987 QPC of April 8, 2022, "M. Saïd Z".

[2] Court of Cassation, Criminal Division, decision n° 173 of February 1, 2022.

[3] Decision n° 2011-192 QPC of November 10, 2011, "Mme Ekaterina B., épouse D., et autres".

[4] "The parties agree that an armed attack against one or more of them occurring in Europe or North America shall be considered an attack against all of them, and consequently they agree that, if such an attack occurs, each of them, in exercise of the right of individual or collective self-defence and consequently they agree that, if such an attack occurs, each of them, in exercise of the right of self-defence, individual or collective, recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in agreement with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and any action taken in consequence thereof shall be immediately reported to the Security Council. Such measures shall cease when the Security Council has taken the measures necessary to restore and maintain international peace and security."

[5] Law No. 2017-399 of March 27, 2017 on the duty of care of parent companies and ordering companies.

[6] European Center for Constitutional and Human Rights ("ECCHR") and Women's International League for Peace and Freedom, May 18, 2021, Referral to the United Nations Human Rights Council v. France: "France's extraterritorial obligations under the International Covenant on Civil and Political Rights".

[7] See in particular the articles published in La Tribune, April 12, 2022, and Le Point, April 30, 2022.

[8] Decree no. 2022-207 of February 18, 2022 on the communication of documents and information of an economic, commercial, industrial, financial or technical nature to foreign natural or legal persons.

[9] Executive Order of March 7, 2022 on the communication of documents and information of an economic, commercial, industrial, financial or technical nature to foreign natural or legal persons.

[10] Law n° 68-678 of July 26, 1968, modified by law n°80-538 of July 16, 1980, relative to the communication of documents and information of an economic, commercial, industrial, financial or technical nature to foreign natural or legal persons.

[11] Pre-litigation discovery allows a party to obtain disclosure of any non-privileged material that is relevant to the party's claim or defense and proportionate to the needs of the case. It may take several forms (deposition, interrogatory, request for admission, request for production of documents); refusal to comply by a party may have serious consequences for the outcome of the trial.

[12] Pre-trial discovery is a stage in civil and some criminal actions during which the parties exchange information about the evidence that will be presented to the court. This procedure corresponds proportionately (because in the United States, the dispute is already underway) to the in futurum measures of article 145 of the Code of Civil Procedure.

[13] A guide for companies identifying sensitive data referred to in Article 1 of the so-called blocking or referral law: https://sisse.entreprises.gouv.fr/files_sisse/files/outils/guide/guide-identification-donnees-sensibles.pdf

[14] The activities mentioned in I of article L. 151-3 are, in particular, those likely to affect the interests of national defense, participating in the exercise of public authority or likely to affect public order and public safety; those mentioned in article L. 2332-1 of the Defense Code, relating to weapons, ammunition, powder and explosive substances intended for military purposes or war materials, those relating to dual-use goods and technologies; those carried out by entities holding national defense secrets; those carried out in the information systems security sector or by entities that have entered into a contract, either directly or by subcontracting, for the benefit of the Ministry of Defense; activities relating to cryptology means and services as well as technical equipment or devices of a nature to allow the interception of correspondence or designed for the remote detection of conversations or the capture of computer data, as defined in article 226-3 of the penal code, as well as activities relating to gambling, with the exception of casinos activities relating to the means intended to deal with the illicit use of pathogenic or toxic agents or to prevent the health consequences of such use and finally activities relating to the processing, transmission or storage of data, the compromise or disclosure of which is likely to affect the exercise of the above activities.