From 11 January 2027, a bank from a country outside the European Union – British, Swiss, American, Chinese or other – will be able to lend in France only through a subsidiary or branch licensed by the ACPR, through a subsidiary or branch passported from another Member State, or from head office if the borrower came to it on its own sole initiative; interbank and intragroup business remains free. That last test is set; its rules of evidence are not. For Chinese banks, whose European financings are often decided at head office, the question is the sharpest.
Ordonnance No. 2026-255 of 8 April 2026 transposes Directive (EU) 2024/1619 (CRD VI); its Article 2 amends Article L. 511-10 of the Code monétaire et financier. Décret No. 2026-309 of 24 April 2026 and the arrêté of 29 July 2026 complete the framework, and a ratification bill was presented to the Council of Ministers on 24 June 2026. The third-country provisions apply from 11 January 2027; branches already licensed must demonstrate their compliance to the ACPR by 10 November 2026.
The Directive answers the disparity of national regimes: some Member States had opened their markets to third-country institutions, as recital 17 of the Directive notes (disparate national regimes, a fragmented framework); AMAFI reads into it a risk of regulatory arbitrage. From now on, a third-country undertaking may provide core banking services – taking deposits and, for an undertaking that would qualify as a credit institution if established in the Union, lending, guarantees and commitments – to clients in the Union only through a branch licensed in each Member State concerned (Article 21c(1)). That third-country branch is licensed by the host State’s authority – the ACPR in France – and that agrément opens that single market alone: it has no passport. The passport remains the prerogative of a credit institution licensed in a Member State, which extends it to its own branches across the rest of the Union through the passporting mechanism. A third-country bank targeting several European markets therefore chooses between a branch licensed in each State and a European subsidiary, whose passport covers its branches and services throughout the Union. The third-country branch also costs more. Classified by size and activity (Article 48a), a class 1 branch – in particular from EUR 5 billion in assets – must hold endowment capital of 2.5% of its average liabilities, with a floor of EUR 10 million (Article 48e; arrêté of 29 July 2026), and the ACPR may require its conversion into a subsidiary where it is of systemic importance, in particular where the assets of the group’s branches in the Union reach EUR 40 billion, or EUR 10 billion in a single Member State (Article 48j).
For the French market, the branch requirement is not the news: the French banking monopoly already imposed it, whether the relationship was initiated by the bank or by the client. The news lies in the exceptions, and first among them the one most foreign to French banking law: reverse solicitation. Article L. 511-10 now dispenses with the branch for a banking transaction with a client “who approached "the institution" on its own sole initiative”. The ordonnance opens more than it closes.
Chinese banks active in France bring all the scenarios together. Some of them, such as ICBC, China Construction Bank, Agricultural Bank of China or Bank of Communications, have made Luxembourg their European bridgehead: a Luxembourg subsidiary, licensed by the CSSF as a credit institution, whose branches in France and elsewhere in the Union operate under the passport. ICBC and Bank of Communications are thus present in Paris through passported branches of their Luxembourg subsidiaries, without an ACPR licence. Bank of China, for its part, stands in a remarkable position in Paris: a branch of Bank of China Limited, Beijing, licensed by the ACPR as a third-country branch. And a share of the financings granted to French borrowers, particularly to French subsidiaries of Chinese groups, is decided and booked at head office or at a branch outside the Union, in Beijing, Shanghai or Hong Kong. Some of these banks already ask the borrower for an “invitation letter ”. What is it worth?
This article is confined to bank lending to corporates. It leaves aside deposits, retail clients and investment services, which follow their own rules. It also leaves aside bond financing: subscribing for bonds is not a credit transaction within the meaning of Article L. 313-1; it falls outside the French banking monopoly and, as a transaction in a financial instrument, outside the scope of Article 21c. As for debt funds that lend directly, without going through bonds, CRD VI does not concern them either: the text covers only third-country credit institutions. Their position remains that of the French banking monopoly and its exceptions (Article L. 511-6 CMF; revised AIFM Directive (EU) 2024/927 for European loan-originating funds), which the ordonnance does not alter. Funds that lend by subscribing for bonds – unitranche, mezzanine – combine both reasons: the instrument falls outside the French banking monopoly and the subscriber is not a credit institution. A third-country bank subscribing for such bonds is likewise outside the scope of Article 21c, which covers only core banking services, not transactions in financial instruments.
I. The client’s sole initiative: a test without a regime
A. What the text says
The exception benefits retail clients, professional clients and eligible counterparties: the MiFID typology is transplanted into the law of credit. It covers the transaction requested and extends to the “activities, services or products necessary for or closely related to that transaction, including where they are provided after the banking transaction is carried out”. It stops there: the institution may not market categories of products, activities or services other than those requested, except through a licensed branch. Two observations.
The first concerns wording. The French version of the Directive covers the client who approaches the undertaking “sur sa seule initiative” (recital 6), the English version its “own exclusive initiative”; the ordonnance takes up the French formula. The meaning is the same: an initiative that owes nothing to the bank, directly or through an intermediary. The Directive spells it out: solicitation by an entity with close links to the institution, or by any person acting on its behalf, excludes the client’s initiative.
The second concerns the absence of a regime. The text sets out a fact, the initiative, without saying how it is to be established. No ACPR guidance has been published to date. The practitioner therefore reasons by analogy: with Article 42 of MiFID II and ESMA’s statement of 13 January 2021 on reverse solicitation; with ESMA’s guidelines under MiCA, adopted by the AMF (Position DOC-2025-03); with the definition of démarchage bancaire et financier, “any unsolicited contact” (Article L. 341-1 CMF). These texts converge: the initiative is assessed from the client’s perspective, targeted advertising amounts to solicitation, and the initiative does not open a relationship without limit of time or scope.
B. What defeats the test
Prior contact. A roadshow, a presentation to the client, a term sheet sent unrequested, a French-language website aimed at French companies: each of these facts precedes the client’s initiative and strips it of its exclusive character. Conversely, a tender launched by the borrower, or a mandate given to its financial adviser to consult several lenders including the third-country bank, characterises the initiative.
Intermediaries. This is where the Chinese banks’ model is most exposed. The group has a subsidiary licensed in a Member State and a Paris branch, both linked to head office. If the relationship is originated by a relationship manager in Paris or at the European subsidiary and the loan is booked at head office, the solicitation comes from an entity with close links to the lender: the exemption is lost, and the loan must go through the third-country branch, within the limits of its agrément, or through the European subsidiary, under the passport. Reverse solicitation only makes sense for transactions from which the branch and the subsidiary have stayed away.
The borrower’s group. The French subsidiary of a Chinese group turns to its parent’s bank. The client is the French company; the long-standing relationship between the bank and the parent is not a solicitation. But if it is the bank that proposes to the parent, in China, to finance the subsidiary, the initiative is no longer the client’s. The text does not settle the point; prudence dictates treating this case as a solicitation.
Syndication. The arranger mandated by the borrower invites a third-country bank to participate. The mandate supports the argument that the arranger acts on behalf of the borrower, and therefore that the initiative is the client’s. The argument presupposes that the mandate letter says so, and that the bank did not solicit the arranger.
Cross-selling. The loan requested does not allow the bank to offer currency hedging, trade finance or account services, which are other categories. For a Chinese bank used to offering a package – credit, renminbi hedging, trade finance – the restriction is substantial. The dividing line remains, and the text does not draw it: is the guarantee or the hedging instrument attached to the loan “closely related” or another category? The first reading is defensible if the instrument serves the requested loan exclusively; beyond that, it is a new offer.
II. Securing the exemption: proof and duration
A. Building the evidence at the outset
The burden. In criminal matters, the burden of proving the offence lies with the prosecution. But it is the lender that relies on the exemption, and the lender that the ACPR will question. The Directive further requires the third-country branch to report to the supervisor information on its head undertaking, including the services the latter provides to clients established in the Union on the basis of reverse solicitation (Article 48k(2)(f)). A head office lending into France on the basis of reverse solicitation therefore feeds the reporting of its Paris branch. In practice, it is the lender that must be able to prove.
The invitation letter. The practice, which comes from Asian banks, consists in asking the borrower for a letter in which it declares that it approached the bank on its own initiative. The instrument is useful; it is not sufficient. To carry weight, the letter must (i) come from the client itself, signed by an authorised representative of the French company, not by its parent in China; (ii) be dated before any offer, term sheet or draft agreement; (iii) describe the need – nature, amount, purpose – and state that neither the bank nor any related entity made a prior approach; (iv) not be a bank form. A letter drafted by the lender and returned signed is evidence of a solicitation, not evidence against it.
Its weight. The letter is a declaration by the borrower: an item of evidence, not proof, which gives way to contrary evidence – earlier e-mails, diaries, call reports, the customer relationship management system. The ACPR and the criminal court assess a body of evidence; the letter is one element of it, and it must be consistent with the others.
The contractual and internal relay. The facility agreement restates the borrower’s declaration and its undertaking to repeat it for any related service. The lender adopts a procedure: qualification of the request on receipt, exclusion of the branch and the European subsidiary from the file, retention of exchanges, training of head-office relationship managers. These measures serve the evidence and the consistency of the branch’s reporting.
The opinion. French counsel can confirm that the structure complies with the text and that the documents carry evidential weight; counsel cannot certify the fact itself, the initiative. The opinion therefore rests on a factual assumption, to be stated with precision.
B. Keeping the exemption over the life of the loan
Related services. The exemption covers services necessary for or closely related to the transaction, even where provided later: amendments, waivers, extensions, additional security. An increase in the outstanding amount – an accordion facility, a drawing beyond the initial commitment – is a new loan; it calls for a new request from the client, documented like the first. New money requested in conciliation follows the same logic: the request comes from the borrower, under the aegis of the conciliateur, and it must be recorded in writing.
Existing contracts (the back book). The branch requirement covers commencing or continuing an activity. Without a corrective, a third-country bank would have had, on 11 January 2027, to stop managing its outstanding loans or to open a branch. Hence the grandfathering clause: contracts entered into before 11 July 2026 continue to be performed without a branch. In France, it is generally accepted that it protects only the loans that already escaped the French banking monopoly, that is, those where the transaction had been located outside France – negotiation, signing and making the funds available abroad. Two points remain to be dealt with. Contracts entered into between 11 July 2026 and 10 January 2027 are not protected: their performance after 11 January 2027 must rest on an exemption, first and foremost reverse solicitation, the evidence of which will have to be reconstructed from contemporaneous documents. And, for protected contracts, an amendment that increases the outstanding amount, extends the maturity or changes the borrower must be treated as a new contract, outside the protection.
The secondary market. The assignee of a drawn loan, or a sub-participant, was not solicited by the borrower. A sub-participation, entered into between banks, falls within the interbank exemption. An assignment of receivables is not in itself a new service to the borrower; but the acquisition of unmatured receivables remains a credit transaction (Article L. 313-1, case law and doctrine), and the classic French banking monopoly analysis applies. The reverse solicitation exemption is not transferable: the assignee must, consequently, establish its own position.
If the exemption fails. The sanction is that of the French banking monopoly: three years’ imprisonment and a fine of EUR 375,000 (Article L. 571-3 CMF). Imprisonment applies to natural persons, the executives or employees who committed the offence; for the bank, as a legal person, the fine is multiplied by five, to EUR 1,875,000, together with the additional penalties of Article 131-39 of the Code pénal (Articles 121-2 and 131-38 of the Code pénal). The loan itself survives: breach of the agrément requirement does not render the contracts void (Cass. ass. plén., 4 March 2005, No. 03-11.725), a solution the ordonnance does not call into question. For a group with a Paris branch, there is the added exposure of that branch before the ACPR, which its reporting will have informed and whose powers extend to requiring conversion into a subsidiary.
Conclusion
For a foreign bank, three routes lead to the French lending market. The first is the subsidiary licensed by the ACPR, deploying passported branches in other Member States: it is the one most Chinese banks have chosen, whether their European credit institution is Luxembourg, German or Portuguese. The second is the third-country branch licensed by the ACPR, without a passport and now required to hold endowment capital: Bank of China is the only one to have taken it, a legacy of a past that is now certainly over. The third is head office, under reverse solicitation. It is the narrowest. It is workable only if the bank agrees to document it transaction by transaction and to keep its European entities out of the way.
Six reflexes before 11 January 2027
- Invitation letter: drafted by the borrower, signed by the French company, dated before any offer.
- Arranger’s mandate letter: express statement that lenders are consulted on behalf of the borrower.
- Audit trail: retention of exchanges preceding the request; no involvement of the branch or the European subsidiary.
- Facility agreement: borrower’s declaration and undertaking to repeat it for any related service.
- Cross-selling: closed list of related services; any other offer goes through the branch or the subsidiary.
- Back book and secondary: review of contracts predating 11 July 2026 and their amendments; the assignee’s own position.
Texts and references
- Directive (EU) 2024/1619 of 31 May 2024 (CRD VI): recitals 5, 6 and 17; Articles 21c, 48a, 48e, 48j and 48k of Directive 2013/36/EU as amended
- Ordonnance No. 2026-255 of 8 April 2026, Article 2 (Article L. 511-10 CMF)
- Décret No. 2026-309 of 24 April 2026; arrêté of 29 July 2026 (Official Journal, 1 August 2026)
- Code monétaire et financier, Articles L. 313-1, L. 341-1, L. 511-5, L. 511-6, L. 511-7, L. 571-3; Code pénal, Articles 121-2, 131-38, 131-39
- Directive (EU) 2024/927 of 13 March 2024 (revised AIFMD)
- Cass. ass. plén., 4 March 2005, No. 03-11.725
- ESMA, statement of 13 January 2021 on reverse solicitation (MiFID II); AMF, Position DOC-2025-03 (ESMA guidelines under MiCA)
- AMAFI, note on Article 21c of CRD VI and the branch requirement for the provision of investment services
