For the criminal and financial liability of the president and ministers in cases of serious harm to the fundamental interests of the Nation
A doctrinal proposal accompanied by a constitutional and legislative architecture submitted for expert review
French democracy rests on a contradiction that is becoming hard to defend. Citizens answer for their actions, taxpayers for their returns, business leaders for the offenses or faults attributable to them, while public managers can be sanctioned for certain serious failings falling under their financial liability. And yet, when a decision taken at the top of the State leads to the loss of a strategic technology, the transfer of irreplaceable know-how, the disappearance of an essential industrial capability or the creation of a lasting dependence on foreign powers, the personal responsibility of the decision-makers becomes extremely difficult to establish.
Yet the damage can be considerable. A factory closes, a patent changes hands, engineers leave, a production line disappears, and France sometimes has to spend several years rebuilding a capability it had allowed to leave its territory. When it comes to finding out who had the information, who had been warned, who had expressed reservations, who signed and who chose not to protect the asset concerned, the decision dissolves between the Presidency of the Republic, Matignon, several ministries, the central administrations, the oversight authorities and private offices whose members have long since moved on to other posts.
This is not to claim that every failed industrial policy should become an offense. Governing means deciding under uncertainty. A transaction may seem acceptable when it is authorized and prove disastrous several years later. A foreign company may go back on its commitments, a technology may take on new importance, an international crisis may upset the balance of power and an economic forecast may be contradicted by events.
The courts must therefore never convict a leader simply because history judges his policy to have been bad. They must, however, be able to investigate when there is specific evidence suggesting that the failure no longer stems merely from an error of judgment, but from concealment, a conflict of interest, corruption, falsification, a deliberate breach of a protective obligation or a decision taken in full knowledge of a serious and directly foreseeable risk to the country’s fundamental interests.
The principle defended here is simple: the office must be protected so that the State can act, but it must not serve to shield the person permanently from all accountability. That accountability must neither rest on popular anger nor take the form of political reprisals. It must flow from a law that predates the facts, from verifiable evidence, from adversarial proceedings and from a decision handed down by an independent court.
Protecting the presidential mandate without granting permanent absolution
One confusion must first be cleared up. Article 16 of the Constitution does not define the immunity of the head of State. It organizes the emergency powers that may be exercised when the institutions of the Republic, national independence, territorial integrity or the fulfillment of international commitments are under serious and immediate threat, and the regular functioning of the constitutional public authorities is interrupted. Even in that situation, the president does not legally receive the right to do anything at all: his measures must aim to restore the normal functioning of the institutions, and their continuation can be reviewed by the Constitutional Council.
The liability regime of the head of State is found mainly in Articles 67 and 68. Article 67 establishes two distinct protections. The first is immunity for acts performed by the president in that capacity, subject to the International Criminal Court and the removal procedure. The second is temporary procedural inviolability: during his term of office, the president cannot be required to testify or be the subject of an action, an investigation or a prosecution before a French court. Limitation and time-bar periods are suspended, and proceedings that were blocked may resume one month after he leaves office.
This resumption does not, however, mean that a former president automatically becomes answerable for every act carried out at the Élysée. The immunity attached to strictly presidential acts is currently a substantive protection, and not a mere postponement of proceedings until the end of the term. The Constitutional Council has moreover specified that the High Court established by Article 68 is not a criminal court tasked with trying the president for offenses committed in that capacity: it is a parliamentary assembly that can remove him from office in the event of a breach manifestly incompatible with the exercise of his mandate.
The procedural protection of the president during his term is legitimate. A head of State could not carry out his mission if every diplomatic, military, economic or industrial decision could immediately trigger hundreds of complaints, court summonses or coercive measures intended to paralyze his action. The continuity of the State therefore requires strong inviolability while the office is held.
But this functional protection should not become permanent immunity for offenses that might be committed in the very exercise of the presidency. One month after leaving office, a former head of State should be able to answer for crimes and offenses personally attributable to him, including when they stem from a presidential act, provided that the acts were committed after the reform came into force, that they were precisely defined as offenses at the time they were committed, and that an independent commission has first authorized the initiation of public prosecution or any coercive measure directed against him.
This reform should be exclusively forward-looking for acts carried out in the capacity of president. The principle of legality requires that the constituent elements of a crime or offense and the corresponding penalties be defined by law. The principle of non-retroactivity separately requires that only acts that already constituted an offense at the time they were committed be punishable, and that only the penalties then applicable may be imposed.
This caution may seem frustrating when it comes to examining past decisions. It is nevertheless essential to the credibility of the reform. A text designed to target a particular president retroactively would immediately be denounced as a law of convenience. A reform applicable to all future presidents, by contrast, lays down a general rule: no one should be able to enter the Élysée knowing that any offenses he might commit in the exercise of his duties would be permanently placed beyond the reach of justice.
Making ministers answerable to the ordinary courts
The situation of ministers is different. Article 68-1 of the Constitution already provides that they are criminally liable for acts performed in the exercise of their duties when those acts were classified as crimes or offenses at the time they were committed. They are, however, tried by the Court of Justice of the Republic.
This regime fuels the suspicion of a special justice reserved for political leaders. The problem does not necessarily lie in the individual seriousness of the members of this court, but in its composition and its very existence: ministers do not appear before the courts normally competent to try other citizens.
The Court of Justice of the Republic should therefore be abolished. Members of the Government should answer before the ordinary criminal courts, with sufficient specialization to handle complex cases combining criminal law, public finances, national defense secrecy, administrative decisions and industrial policy. Prior filtering would remain necessary for acts performed in the exercise of ministerial duties, so that a mere political disagreement could not automatically lead to formal charges or a search.
By contrast, acts committed before a minister’s appointment or wholly unrelated to his duties would continue to fall under ordinary law without prior authorization. The Constitution has no need to organize a special regime for a private offense or one predating the ministerial mandate.
Above all, this reform would make it possible to reconstruct the entire decision-making chain. A strategic sale or a technology transfer rarely results from the will of a single person. The transaction may have been prepared by an administration, negotiated by a private office, authorized by the minister for the Economy, examined by a sectoral ministry, arbitrated at Matignon and politically backed by the presidency.
The courts should be able to determine each person’s exact role, without artificially concentrating all responsibility on the president or diluting it in the collective responsibility of the Government. The person who loyally passed on a warning, the person who merely carried out a lawful instruction, the person who negotiated safeguards, the person who took the final decision and the person who may have concealed a decisive piece of information must not be treated identically.
The fundamental interests of the Nation already include its scientific and economic potential
French law does not reduce the fundamental interests of the Nation to military defense and territorial integrity. Article 410-1 of the Penal Code includes in them the country’s independence, its security, its means of defense and diplomacy, but also the essential elements of its scientific and economic potential, including agricultural, as well as its cultural heritage.
A company that masters an irreplaceable process, a nuclear technology, a space component, a cybersecurity capability, defense software, an energy patent or an indispensable supply chain may therefore fall within a legally protected interest.
France also has a prior authorization regime for foreign investment in sensitive sectors. Article L. 151-3 of the Monetary and Financial Code makes certain investments in activities contributing to the exercise of public authority, or liable to undermine public order, public security or national defense interests, subject to authorization by the minister for the Economy. The authorization may be accompanied by conditions designed to protect those interests.
The proposed reform must therefore not create a parallel system that ignores existing mechanisms. It must complement and strengthen the regime provided for in Articles L. 151-3 et seq. of the Monetary and Financial Code, as well as the specific arrangements applicable to defense, energy, telecommunications and essential infrastructure.
What is missing today is not every form of control. It is a personal, written and traceable obligation on those who make the decision, together with a possibility of holding them accountable when clearly defined obligations have been deliberately circumvented.
On the other hand, it would be contrary to the principle of legality to create an offense as vague as "the decline of France," "mismanagement of the Nation" or "the sacrifice of French interests." These expressions carry political force, but they do not make it possible to know precisely what conduct is prohibited. The legislature must define crimes and offenses in terms clear enough that the judge does not have to invent the offense after the fact.
The reform must therefore begin by establishing objective obligations. Before any decision concerning a strategic asset, the competent authority should be required to have the ultimate beneficial owner of the transaction identified, to obtain technical and security assessments, to pass on existing warnings, to declare conflicts of interest, to verify the safeguards offered and to give written reasons for any decision departing from a convergent unfavorable opinion.
Only once these precise obligations have been created does it become possible to sanction their deliberate violation.
Classifying strategic assets without creating a secret criminal law
A national register of strategic assets would make it possible to identify the companies, technologies, infrastructure, patents, software, data, supply chains and know-how whose loss of control could seriously harm the country’s fundamental interests.
Part of this register would necessarily have to remain confidential. Publishing the full list of national vulnerabilities or sensitive military technologies would create new risks. But this confidentiality must not lead to the existence of a secret criminal obligation.
Classification should result from a formal administrative decision, with reasons given and notified to the authorities competent to authorize, prohibit or impose conditions on the transaction. To establish the criminal liability of a decision-maker, the courts should have to prove that he personally knew of the classification at the time he made his decision.
The classification decision could not be beyond challenge. The company or person directly concerned should be able to refer it to the administrative courts. Furthermore, if the legality of the classification determines the outcome of a criminal trial, the criminal court already has jurisdiction to interpret the administrative act and assess its legality under Article 111-5 of the Penal Code.
Classification should be limited in time. An initial period of five years, renewable after an adversarial review, would prevent technologies that have become ordinary from remaining locked indefinitely in an exceptional regime. The administration should be able to declassify the asset when the risks have disappeared, but also to renew or strengthen its protection when its strategic importance has grown.
The register would never on its own constitute the definition of the offense. It would merely establish that an asset fell under a reinforced protective regime. A prosecution would still require proof of decision-making authority, a breached obligation, a detailed warning, personal knowledge and deliberate conduct.
What the courts would actually have to prove
The occurrence of damage cannot be enough. The fact that a company closed after its sale or that a technology passed under foreign control does not automatically prove that the minister who authorized the transaction committed an offense.
The courts would first have to identify the exact authority of the person responsible. The verb "facilitate" is too broad to define a principal offense, since an official may prepare a file or organize a meeting without having the power to authorize or prevent the transaction. Principal liability should target the person given authority to decide, as well as anyone who deliberately falsified, altered, removed or concealed a decisive piece of information in order to obtain the authorization. Any other participation would fall under the ordinary rules on complicity.
It would then have to be shown that the asset had been properly classified and that the decision-maker knew of the classification. A written and detailed warning must have set out a serious and directly foreseeable risk. A mere opinion asserting that a transaction would be "contrary to sovereignty" would not suffice. The warning should identify the technology under threat, the dependence likely to result, the alternative solutions available and the concrete consequences of the loss of control.
The courts would also have to establish the deliberate violation of a specific obligation: a prohibition on deciding before a mandatory opinion has been delivered, a duty to pass on a warning, an obligation to identify the ultimate beneficial owner, an obligation to disclose a conflict of interest, a requirement to give reasons for a contrary decision or a duty to impose certain safeguards.
Finally, the damage and the causal link would have to be objectively established by means of adversarial expert reports. A company may disappear because of a technological break, private management errors, a change in the market or decisions taken several years after the initial authorization. The court would therefore have to determine whether the conduct in question played a sufficiently direct role in the loss of the technology, capability or know-how.
This evidentiary requirement protects both the Nation and decision-makers. It makes it possible to investigate serious facts without turning every industrial failure into a criminal accusation.
A procedural filter that enables investigation instead of preventing it
An independent commission is essential to prevent frivolous or purely activist complaints from paralyzing former presidents and ministers. It must not, however, require, before any investigation, the evidence that only the investigation will make it possible to obtain.
The expression "serious or concordant evidence" should therefore not be used at this stage. In the Code of Criminal Procedure, this threshold makes it possible in particular to place a person under formal investigation after inquiries have already been carried out. Requiring it before access to archives or confidential exchanges would create an impossible circle.
The filter should come into play at a clearly defined point: before the initiation of public prosecution and before any coercive measure directed against the protected person. Non-coercive checks, on the other hand, should remain possible beforehand. The public prosecutor could consult public documents, interview third parties on a voluntary basis, gather reports, request the preservation of data or examine documents that have been properly transmitted to it.
The commission would authorize public prosecution when the application rests on specific, detailed and verifiable evidence making the commission of an offense plausible and not amounting merely to a challenge to the advisability of a public policy.
Its decisions should give reasons and be open to a limited appeal before a special panel of the criminal chamber of the Court of Cassation. This appeal would not concern guilt, but the commission’s jurisdiction, its impartiality, the regularity of the procedure, the reasoning of its decision and the correct application of the legal threshold.
A dismissal should never permanently prohibit any investigation. A new referral would remain possible if new evidence emerged.
Preserving evidence without ignoring existing archive law
The Heritage Code already governs the public archives arising from the activity of the State. Its Article L. 213-4 in particular allows protocols to be signed concerning the processing, preservation, use or communication of the archives of the President of the Republic, the Prime Minister, ministers and their personal staff.
The reform must therefore not claim to invent the preservation of presidential and ministerial archives. It must establish a reinforced regime for files relating to strategic assets.
The new preservation obligations should apply notwithstanding any contrary provision in an archives protocol, without making the documents immediately accessible to the public. Three notions must remain distinct: the retention period, the conditions of public access and access by the judicial authorities.
The strategic file should include notes, opinions, minutes, e-mails, professional messaging, data from official telephones and follow-up documents. Exchanges conducted by means of a private messaging service or device should also be added to the archives when they concern a public decision. Choosing a personal tool must not make it possible to remove a State decision from the preservation obligations.
As soon as proceedings are opened, a judge should be able to order the immediate preservation of the relevant documents and data. Violating such an order does not, however, require the creation of an entirely new offense, since Article 434-4 of the Penal Code already punishes the destruction, removal or alteration of a document in order to obstruct the establishment of the truth. When the perpetrator is required by his duties to contribute to establishing the truth, the penalties are already increased.
The right solution would be to supplement this article so as to increase the penalties specifically when the document is the subject of a judicial preservation order, concerns a strategic asset and is destroyed or concealed by a person holding public authority.
Making searches of institutional premises possible without denying national defense secrecy
French law already provides for a special procedure for searches of places housing material covered by national defense secrecy. Article 56-4 of the Code of Criminal Procedure requires in particular a written decision by the judge, the presence of the chair of the National Defense Secrecy Commission or his representative, an inventory of the classified material and its placing under seal.
It would be pointless to create a parallel procedure. The reform should supplement Article 56-4 in order to specify its application to the premises of the Presidency of the Republic, Matignon and the ministries.
A search of institutional premises should be authorized by a panel of judges and should precisely define the offenses being investigated, the premises concerned and the categories of documents sought. National defense secrecy could not be invoked wholesale, but classified material would continue to be examined under the existing secure procedure.
During the presidential term, the operation could not have the purpose or effect of circumventing the personal inviolability of the head of State. An investigation targeting staff or institutional documents would remain possible within the limits laid down by the Constitution, but it would have to be strictly circumscribed.
The aim is not to turn the Élysée into an ordinary place where any search could be carried out without precautions. It is to prevent the prestige of the premises or vague procedures from making the institution a sanctuary beyond the reach of justice.
Creating a financial risk without instituting political confiscation
The desire to expose the personal assets of those responsible to the consequences of their offenses is morally understandable. It must, however, be translated precisely into law. Confiscation cannot be ordered because a policy failed or because a decision cost the Nation dearly.
The Penal Code already allows confiscation of the object or the direct or indirect proceeds of an offense. When that property cannot be seized, confiscation may be ordered in value. Safeguards protect the rights of third parties acting in good faith.
The law must not, however, authorize confiscation of both the property and its value at the same time, which would amount to confiscating the same proceeds twice. The correct formula is to provide for confiscation of the object or proceeds of the offense, and then for confiscation in value only when that property cannot be seized.
Any advantage obtained through the offense should be recoverable: hidden remuneration, a concealed financial stake, a promised job, an advantage granted to a relative or property acquired with the proceeds of the criminally punishable conduct.
On the other hand, confiscating all the property lawfully acquired over a career would be disproportionate if no personal enrichment has been shown. Extended confiscation of assets should be reserved for cases in which corruption, hidden enrichment or fraudulent concealment of assets has been established and in which the applicable law expressly provides for that penalty.
Financial liability could above all take the form of civil compensation sought by the State during the criminal trial. The State would join the proceedings as a civil party and claim the direct, certain and quantifiable expenditure caused by the offense. If the extent of the damage cannot be determined immediately, the court could rule on the principle of liability and refer the assessment to a later hearing.
This compensation could not cover an abstract estimate of "national decline," hypothetically lost jobs or uncertain future profits. It could, however, cover precisely identified expenditure: securing a compromised technology, compensation paid to a victim, costs directly incurred to rebuild a capability or the cost of an operation made necessary by the offense.
The convicted person’s personal assets could be seized to enforce the court’s decision, but only up to the amount set and in accordance with the principle of proportionality. The political message would nevertheless be considerable: a leader found guilty of a serious intentional fault would no longer systematically leave the entire direct cost to the community.
Placing the reform within the new European law
The protection of strategic assets cannot be conceived as if France were outside the European Union. Regulation (EU) 2026/1386 of June 17, 2026 established a new framework for screening foreign investment in the Union and will repeal Regulation 2019/452. Published on June 26, 2026, it entered into force twenty days after its publication and will become applicable on January 17, 2028. In particular, it requires all Member States to have a screening mechanism covering a common core of sensitive sectors, technologies and infrastructure.
Article 63 of the Treaty on the Functioning of the European Union in principle prohibits restrictions on the movement of capital between Member States and between Member States and third countries. Article 65, however, allows certain measures justified in particular on grounds of public policy or public security, provided that they do not constitute arbitrary discrimination or a disguised restriction.
This in no way prevents France from protecting a strategic company, infrastructure or technology. It does, however, require the legislature to adopt measures that are objective, necessary, appropriate and proportionate to the risk identified.
The strategic register, the assessment procedures and the proposed penalties should therefore be coordinated with the European cooperation mechanism, with the free movement of capital and with the French foreign investment regime. The law should not penalize the mere fact that a buyer is foreign or European. It should target the violation of a specific protective obligation in the face of an objectively established risk.
From doctrine to law
This reform cannot be implemented by a simple decree. Articles 67 to 68-3 directly define the regime applicable to the president and ministers; amending them therefore requires a constitutional revision. That revision would follow the procedure of Article 89: an initiative by the President of the Republic on a proposal from the Prime Minister or a parliamentary initiative, adoption of the same text by both chambers, and then a referendum or, for a bill presented by the executive, possible approval by Parliament convened in Congress by a three-fifths majority of the votes cast.
An organic law would then establish the filtering commission and the special rules of procedure. An ordinary law would amend the Monetary and Financial Code, the Penal Code, the Code of Criminal Procedure and the Heritage Code. Finally, decrees in the Council of State would specify the classification of assets, the composition of the technical bodies and the arrangements for preservation.
The following drafts constitute a working basis submitted for review by constitutional lawyers, criminal lawyers, judges, specialists in European law and the Council of State.
I. Preliminary draft constitutional law
Article 1 — Liability of the President of the Republic
Article 67 of the Constitution is replaced by the following provisions:
"During his term of office and during the month following the end of his duties, the President of the Republic may not, subject to Articles 53-2 and 68, be required to testify or be the subject of any action, act of inquiry, investigation or prosecution, or of any coercive measure, before a French court.
Limitation and time-bar periods are suspended during this period.
Upon its expiry, his criminal liability may be engaged for crimes and offenses committed before or during his term of office, including, under the conditions laid down in this article, when they were committed in his capacity as President of the Republic.
No proceedings may be based solely on an assessment of the political, economic, industrial, budgetary, diplomatic or military advisability of a decision. Liability may be engaged only for acts corresponding to the constituent elements of an offense defined by law at the time they were committed.
The initiation of public prosecution and any coercive measure directed against a former President of the Republic for an act performed in that capacity are subject to the prior authorization of an independent judicial commission whose composition and rules of operation are determined by an organic law."
Article 2 — Liability of members of the Government
Article 68-1 of the Constitution is replaced by the following provisions:
"Members of the Government are criminally liable for crimes and offenses committed in the exercise of their duties and defined by law at the time they were committed.
They are tried by the ordinary criminal courts under the conditions laid down by an organic law.
The initiation of public prosecution and any coercive measure directed against a member or former member of the Government for an act performed in the exercise of his duties are subject to the prior authorization of the judicial commission referred to in Article 67.
Acts performed before taking office or unrelated to the exercise of those duties fall under ordinary law without prior authorization.
No proceedings may be based solely on a challenge to the advisability of a public policy."
Article 3 — Abolition of the Court of Justice of the Republic
"Articles 68-2 and 68-3 of the Constitution are repealed.
An organic law determines the conditions for transferring pending proceedings, the competent courts, the avenues of appeal and the transitional rules necessary for the abolition of the Court of Justice of the Republic."
Article 4 — Application over time
"The provisions allowing the criminal liability of a former President of the Republic to be engaged for acts performed in that capacity apply only to acts committed after the entry into force of this constitutional law.
They may not have the effect of making punishable acts that were not punishable at the date they were committed, nor of retroactively increasing the penalties incurred.
Acts unrelated to the presidential office and acts performed by members of the Government remain subject to the general rules governing the application of criminal law over time."
II. Preliminary draft organic law on the filtering of proceedings
Article 1 — Establishment and composition
"A Judicial Commission for applications relating to the exercise of executive power is hereby established.
It comprises seven members appointed for a single term of six years: three judges of the Court of Cassation, two members of the Council of State and two judges of the Cour des comptes.
Its members perform their duties with complete independence. They may not receive any instruction from a political or administrative authority and are subject to the rules on incompatibility, recusal and self-recusal applicable to judges."
Article 2 — Referral
"Matters may be referred to the Commission by the Prosecutor General at the Court of Cassation, by an investigating court, by a parliamentary assembly on the basis of the work of a commission of inquiry or by a person demonstrating direct and personal harm.
Every application sets out the facts, the decision concerned, the alleged involvement of the person targeted, the legal classification envisaged and the evidence capable of being verified."
Article 3 — Preliminary checks and preservation of evidence
"Before the Commission’s decision, the public prosecutor may gather public documents, interview on a voluntary basis third parties who do not enjoy constitutional protection, carry out non-coercive checks and request the preservation of documents or data at risk of disappearing.
He may not initiate public prosecution or order or request a coercive measure directed against the protected person before the Commission’s authorization."
Article 4 — Criterion for authorization
"The Commission authorizes the initiation of public prosecution and coercive measures when the application rests on specific, detailed and verifiable evidence making the commission of an offense plausible and not amounting merely to a challenge to the advisability of a political decision.
The Commission rules neither on the guilt of the person targeted nor on the definitive weight of the evidence."
Article 5 — Decision and appeal
"The Commission rules by a reasoned decision within a maximum of six months.
Its decision may be appealed, within fifteen days, before a special panel of the criminal chamber of the Court of Cassation. The appeal concerns exclusively jurisdiction, impartiality, the regularity of the procedure, the reasoning of the decision and compliance with the legal criteria.
A decision to dismiss does not prevent a new referral based on new evidence."
Article 6 — Competent courts
"After authorization by the Commission, the inquiry and the investigation fall to the ordinary criminal courts specially designated in Paris.
Offenses are tried by a specialized panel of the Paris judicial court. Appeals fall to a specialized panel of the Paris Court of Appeal. Crimes are prosecuted and tried under the ordinary rules applicable to criminal courts.
Judges who have sat on the Commission may not subsequently take part in the inquiry, the investigation or the trial of the case."
III. Bill on the protection of strategic assets
Article 1 — Relationship with existing law
"The provisions of this law supplement the foreign investment control regime provided for in Articles L. 151-3 et seq. of the Monetary and Financial Code, without prejudice to the specific mechanisms applicable to defense, energy, electronic communications and essential infrastructure."
Article 2 — Definition of a strategic asset
"A strategic asset is any company, infrastructure, technology, industrial capability, data, patent, software, know-how or supply chain whose loss of control, interruption or transfer would be liable to cause serious and direct harm to defense, security, energy independence, the continuity of essential services or the essential elements of the Nation’s scientific and economic potential."
Article 3 — Classification, review and appeal
"The classification of a strategic asset results from a formal, reasoned decision taken after an opinion from the National Strategic Assessment Commission.
Classification is ordered for a maximum period of five years. It may be renewed after a fresh examination of the situation of the asset, the risks and technological developments. It may be amended or revoked when the circumstances that justified its adoption have disappeared.
The decision may be protected by a secrecy provided for by law. It is nevertheless notified to the authorities empowered to authorize, prohibit or impose conditions on a transaction concerning the asset.
The criminal liability of a decision-maker may be engaged on the basis of this classification only if it is shown that he had personal knowledge of it.
The classification decision may be appealed before the competent administrative court. Its legality may also be assessed by the criminal court when the outcome of the trial depends on that examination, in accordance with Article 111-5 of the Penal Code."
Article 4 — Mandatory prior assessment
"Any transaction liable to entail the transfer of control, of intellectual property or of an essential capability concerning a strategic asset is preceded by an assessment covering in particular the ultimate beneficial owner of the transaction, the technologies concerned, the risks of dependence, the consequences for defense and essential services, the alternative solutions, the safeguards required and the arrangements for monitoring them.
The competent authority may not decide before this assessment has been delivered and the written warnings issued by the authorized services have been transmitted."
Article 5 — Reasons and conflicts of interest
"An authority that decides to depart from a convergent unfavorable opinion gives personal, written reasons for its decision.
These reasons set out the public-interest considerations justifying the transaction, the safeguards obtained, the monitoring mechanisms and the consequences provided for in the event of non-compliance with the commitments.
Every person involved in preparing or taking the decision discloses any direct or indirect interests liable to affect his impartiality and abstains when a conflict of interest is established."
Article 6 — Deliberate violation of a strategic obligation
"The act, by a person holding public authority who is competent to decide on a transaction concerning a strategic asset, of deliberately disregarding a specific obligation of protection, information, abstention or control provided for by law, when the classification had been notified to him and a written and detailed warning had informed him of a serious and directly foreseeable risk to the fundamental interests of the Nation, is punishable by five years’ imprisonment and a fine of 500,000 euros.
The same penalties apply to intentionally falsifying, concealing, altering or removing a decisive piece of information in order to enable the transaction to be authorized.
The mere subsequent occurrence of damage, in the absence of the foregoing elements, cannot constitute the offense."
This new offense would not replace existing classifications. Where corruption, influence peddling, unlawful taking of interest, forgery or collusion with a foreign power, company or organization was established, the corresponding provisions of the Penal Code would remain applicable.
Article 7 — Additional penalties and confiscation
"Convicted persons incur a penalty of ineligibility and a ban on holding public office, under the conditions and for the periods determined by the Penal Code.
The court orders confiscation of the object or the direct or indirect proceeds of the offense.
When that property cannot be seized, confiscation may be ordered in value under the conditions laid down in Article 131-21 of the Penal Code.
Confiscation of property with no direct link to the offense may be ordered only when personal enrichment, corruption or fraudulent concealment of assets has been established and the text punishing the offense expressly provides for that penalty. The rights of third parties acting in good faith are preserved."
Article 8 — Compensation sought by the State
"The State may join the proceedings as a civil party before the criminal court in order to obtain compensation for the direct, certain and quantifiable expenditure resulting from the offense.
When the extent of the damage cannot be definitively assessed at the time of the criminal judgment, the court may rule on the principle of liability and refer examination of the amount to a later hearing.
The amount of compensation is determined having regard to the causal link, the seriousness of the fault, the involvement of other responsible persons, any advantage obtained and the principle of proportionality.
Hypothetical macroeconomic losses, uncertain future revenue and general assessments of a loss of sovereignty cannot, on their own, constitute compensable harm on this basis."
Article 9 — Preservation of strategic archives
"Documents and data relating to strategic assets are kept for a period that may not be less than thirty years.
This obligation covers e-mails, professional messaging services, official telephones, interministerial platforms and exchanges conducted by means of a private tool when they concern the exercise of a public office.
The obligations laid down in this article apply notwithstanding any contrary provision in a protocol concluded pursuant to Article L. 213-4 of the Heritage Code. They do not, in themselves, change the periods after which archives may be made available to the public."
Article 10 — Aggravated obstruction of the establishment of the truth
"Article 434-4 of the Penal Code is supplemented by a paragraph worded as follows:
‘When the acts concern a document or data subject to a judicial preservation order issued in proceedings relating to a strategic asset and are committed by a person holding public authority, the penalties are increased to five years’ imprisonment and a fine of 200,000 euros.’"
Article 11 — Searches of institutional premises
"The Code of Criminal Procedure is supplemented in order to specify the conditions for searches of the premises of the Presidency of the Republic, the services of the Prime Minister and the ministries.
These operations are authorized by a panel of judges. The decision specifies the offenses being investigated, the premises concerned and the categories of documents sought.
When they concern classified material, they are conducted in accordance with Article 56-4 of the Code of Criminal Procedure.
During the presidential term, they may not have the purpose or effect of circumventing the personal inviolability of the President of the Republic."
Article 12 — European Union law
"Measures taken pursuant to this law comply with Regulation (EU) 2026/1386 on the screening of foreign investment in the Union, as well as with the rules of the Treaty on the Functioning of the European Union relating to the movement of capital.
They are based on objective criteria of security, public order, continuity of essential services or protection of the fundamental interests of the Nation. They must be necessary, appropriate and proportionate to the risk identified and implemented in accordance with the European obligations of cooperation and notification."
IV. Implementing regulations
A first decree in the Council of State would organize the national register of strategic assets, the classification procedure, notification to decision-makers, the five-yearly review and declassification. A second decree would specify the composition and methods of the National Strategic Assessment Commission. A third would set the rules for the preservation, authentication and safeguarding of digital archives.
Technical orders could update the categories of sensitive technologies. They could not, however, define the constituent elements of an offense or set a penalty, matters reserved to the law.
A reform designed to improve decisions before punishing faults
The first purpose of this reform would not be to send more former leaders to court. It would be to change the way strategic decisions are prepared and taken.
A minister who knows that his decision will have to be justified, archived and possibly examined several years later will have a greater incentive to gather the necessary expert advice, to take warnings seriously, to check the real identity of buyers and to organize the monitoring of commitments.
This accountability would also strengthen the moral authority of those in power. The State requires citizens to obey the law, entrepreneurs to honor their commitments, taxpayers to keep their supporting documents and soldiers to refuse a manifestly unlawful order. It cannot accept for long that those with the power to transfer an irreplaceable technology or to stake the country’s industrial independence should be the only ones never required to justify their actions personally.
Exemplary conduct does not mean that a leader can never make a mistake. It means that he must not conceal what he knew, circumvent the procedures he was bound to follow or pursue a private interest and then invoke the political nature of his decision.
Functional protection must cover the official who gathered competent opinions, examined the alternatives, gave reasons for his choice, obtained serious safeguards and organized their monitoring. Even if the transaction fails, that person must not be criminally sanctioned merely because the outcome proved unfavorable.
On the other hand, office must no longer be able to protect anyone who deliberately concealed a warning, falsified a file, disregarded a prohibition or let a personal interest determine a decision affecting the fundamental interests of the Nation.
Conclusion
A mature democracy does not merely elect its leaders and then replace them at the end of their term. It organizes their accountability, preserves the evidence, identifies the decision-makers, distinguishes error from fault and guarantees that an offense committed at the top of the State can be examined by an independent judiciary.
The protection of the president must prevent the paralysis of the State during his term. It must not produce permanent criminal immunity for future acts performed in that capacity. The filtering of proceedings against ministers must prevent judicial harassment without maintaining an exceptional court. Financial liability must never become political confiscation, but it must allow illicit gains to be recovered and expenditure directly caused by an intentional fault to be made good.
This reform must not be retroactive, vague or aimed at one man. It must be general, forward-looking and precise enough to apply tomorrow to all presidents, all prime ministers and all members of the Government, whatever their political affiliation.
Governing France must not confer the right to put the Nation’s strategic assets at risk without ever putting one’s own accountability at risk.
The office must be protected, the decision justified, the evidence preserved and the fault proven. Once the offense is established, the power exercised yesterday must no longer be a refuge from the justice of tomorrow.