FRANCE Law and Practice Contributed by: William Julié, Amélie Beauchemin, Camille Gosson and Elena Moreno, WJ Avocats
• the event preventing the execution of the obligation was not foreseeable; • the event’s origin does not depend on the person under the obligation concerned; and • the inexecution could not have been prevented with appropriate measures other than the one initially anticipated. In 2020, the French Supreme Court, the Cour de cassation , ruled that the freezing of a person’s assets under sanctions did not constitute a case of force majeure, as it did not meet the second condi - tion (Cass., ass. plén., 10 juill. 2020, P+B+R+I, No 18-18.542 et 18-21.814). The opposite approach would have offered sanctioned persons the possibility of relying on the restrictive measures to justify non-compliance with their obliga - tions as debtors, which would have undermined the sanctions’ legitimacy. For French economic actors to avoid all detrimental effects of sanctions decided by France, the EU, the UN or even other countries (such as the USA, whose sanctions are not supposed to bind French persons but tend to be complied with in practice), it is recom - mended that a clause foreseeing the imposition of a sanction on them or their co-contractor – and provid - ing for a solution should such a scenario occur – be included. 6.2 Enforcement When sanctions issues arise in cases of enforcement of French or foreign judgments in France, the French courts have adopted a classical approach – ie, exam - ining whether the judge had jurisdiction to issue the decision concerned, whether the decision complies with French public order and whether the decision contravenes French law. If any of these conditions are not met, exequatur of the decision will not be given. As UN, EU and national sanctions prohibit certain behaviours in France, such as the use of frozen assets, a judicial decision that would provide for the transfer of money from a frozen bank account would not be recognised and executed.
A person who wishes to have a decision enforced in France could appeal the initial refusal – albeit with a low chance of success, as the same law would remain applicable. The only recourse would be to ask the Treasury for a derogation or wait for the sanctions to be lifted.
7. Designation, Compliance and Circumvention 7.1 Executive Body
At the French level, the Minister for Europe and For - eign Affairs decides the names to include on France’s sanctions lists. At the EU level, the Council of the EU, on the basis of proposals that arise from and go through three working committees – the Working Party on Eastern Europe and Central Asia (COEST), the Working Party of Foreign Relations Counsellors (RELEX) and the Committee of Permanent Represent - atives – Part II (COREPER II) – decides which natural and legal persons to sanction. In both regimes, there - fore, the process is entirely political. 7.2 Scope of Designation Under Article 2 (1) of Council Decision 2014/145/ CFSP and Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, “all funds and economic resources belonging to, or owned, held or controlled by” sanctioned natural and legal persons shall be frozen. In its FAQs, the Commission of the EU explicitly states that for companies owned or controlled by listed persons, “it can be presumed that the control also extends to the assets of that entity, and that any funds or economic resources made available to that entity would reach or benefit the listed person”, and that, therefore, Article 2 would apply to them, which clearly amounts to an indirect designation of persons as a result of them being owned or controlled by another directly designated person – as although the Commis - sion’s FAQs are not binding, they are strictly applied by all EU actors.
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