FRANCE Law and Practice Contributed by: Samuel Sauphanor, Alexandra Szekely, Timothée de Saint Viance and Benoît Barré, Le 16 Law
aimed at preserving or establishing evidence that may influence the outcome of future pro - ceedings. This mechanism is frequently used to identify the location or composition of assets when there is a legitimate concern that evidence may be lost or concealed. Criminal Proceedings and Investigative Powers In criminal proceedings, investigating judges and public prosecutors have broader powers to obtain financial and asset-related information, including through requisitions to banks, reg - istries and tax authorities. These tools are not available to civil litigants but may be accessed indirectly by joining as a civil party to the criminal investigation ( constitution de partie civile ). Cross-Undertaking in Damages French law does not require a claimant to give a cross-undertaking in damages as a condition for seeking asset-related measures. 2.2 Preserving Evidence French law provides targeted mechanisms to secure evidence at risk of disappearance, destruction or suppression, both in civil and criminal contexts. These measures are critical in fraud-related matters where evidentiary fragil - ity is often a concern. Civil Proceedings – Article 145 of the Civil Procedure Code In civil litigation, the primary tool for preserving evidence is Article 145 of the French Civil Pro - cedure Code. This provision authorises a par - ty, even before initiating proceedings, to seek judicial authorisation to carry out investigative measures where “legitimate grounds” exist to preserve or establish the evidence of facts on which the resolution of a future dispute may
depend. These measures may include document production, expert reports or site inspections. These requests are frequently made ex parte to avoid tipping off the opposing party, particu - larly in fraud cases where the risk of tampering is acute. When granted, the order is executed by a judicial officer and the affected party is only notified after the measures are carried out. There is no requirement for a cross-undertaking in damages. Criminal Proceedings – Investigatory Powers In criminal proceedings, the public prosecutor ( procureur de la République ) or an investigating judge ( juge d’instruction ) has broad authority to seize evidence during both preliminary inves - tigations ( enquête préliminaire ) and flagrant investigations ( enquête de flagrance ). These searches may target any location linked to the alleged offence and may be conducted with - out the suspect’s consent, particularly during a flagrante delicto investigation or under judicial supervision. Evidence collected through these means may include electronic data, financial records or cor - respondence. Victims participating as civil par - ties may request specific acts of investigation but the final decision rests with the investigative authorities. Access to Premises Physical searches of a defendant’s residence or business are not available to private parties in civil matters. These intrusions fall exclusively within the domain of criminal proceedings and their legality is tightly circumscribed by proce - dural safeguards, including judicial authorisation and the presence of a neutral third party.
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