National Security Alert: when the law when the law innovates to prepare for the future
France’s National Strategic Review, updated in 2025, gives a stark assessment: “we are entering a new era, marked by a particularly high risk of a major, high-intensity war outside the national territory but in Europe, involving France and its allies, in particular its European allies, by 2030, while our territory would at the same time be targeted by large-scale hybrid actions” (paragraph 7).
Preparing for such a dark scenario does not simply mean having more equipment, troops, ammunition or industrial capacity. It also means being able to act quickly. Yet awarding a contract, authorising works, expanding a facility or securing a site all take time. In a major crisis, the law itself can therefore become a source of delay.
Act No. 2026-791 of 16 August 2026 updating France’s Military Programming Act for 2024-2030 seeks to address that very issue. It creates a new “national security alert” regime, governed by Articles L. 2143-1 to L. 2143-8 of the Defence Code, designed to place the country rapidly on a heightened footing without having to resort to the most far-reaching emergency regimes.
1. An intermediate regime between ordinary law and emergency powers
French law already provided for several crisis mechanisms: the exceptional powers conferred by Article 16 of the Constitution, the state of siege, the state of emergency, requisition powers, and, specifically in the defence field, general mobilisation and the mise en garde regime.
In its advisory opinion of 26 March 2026 on the Bill, the Conseil d’État made the point clearly (paragraph 50): the existing regimes are either excessively restrictive because they correspond to a situation approaching a state of war or insufficiently suited to the need for a rapid military response, as in the case of the state of emergency, which is primarily concerned with maintaining public order.
There was therefore, in a sense, a missing intermediate tier capable of addressing situations such as the reception of allied forces on French territory, a major increase in industrial production, the development of logistics platforms, the reinforcement of telecommunications networks, works on transport infrastructure or enhanced protection around a strategic site. In such circumstances, ordinary public procurement, planning and environmental procedures can become a major operational constraint. The new national security alert regime is intended precisely to fill that gap.
A national security alert may be declared by decree adopted by the Council of Ministers, throughout or in part of the national territory, where there is a “serious and current threat” to national security, where the threat may lead France to implement its international defence commitments, or where it justifies the imminent deployment of French or allied forces.
In Decision No. 2026-907 DC of 6 August 2026, the Constitutional Council upheld the regime, while specifying that the threat must be based on “sufficiently substantiated factual elements”. Any extension beyond two months must be authorised by statute. That period was itself debated in Parliament, where several amendments proposed reducing it to one month.
The purpose is therefore not so much to suspend ordinary law as to make it possible, temporarily, to accelerate certain decisions and remove certain legal obstacles to mobilisation.
2. Public procurement: contracting at the pace of a crisis
The first very practical consequence for businesses concerns public procurement. The Public Procurement Code already contains several derogations from the ordinary rules (Art. L. 2300-1 et seq.), in particular allowing contracting authorities, in certain circumstances, to award defence or security contracts “without prior advertising or competitive tendering”. The 2026 Act goes further.
Art. L. 2143-3 applies a streamlined regime to certain contracts required for the operational readiness and deployment of French or allied forces. Subject to certain conditions, the same applies to public contracts and concessions entered by strategic operators.
A major military crisis may generate, within a matter of days, very substantial requirements for equipment, maintenance, transport, energy or logistics. Ordinary procurement procedures are not always compatible with that operational timetable. Once a national security alert is declared, the award procedures applicable to certain contracts will therefore be simplified.
The Act also addresses the end of the crisis: the termination of the national security alert may constitute a public-interest ground justifying the termination of certain contracts. Since the end of the alert will very likely constitute a public-interest ground within the meaning of the Public Procurement Code, such termination should give rise to a right to compensation, on terms to be determined by the parties and, no doubt, clarified by the courts.
The change will therefore not be purely procedural. It may also have very practical consequences for the relationship between contracting authorities and their suppliers. For businesses, being able to increase production will not be enough: they will also need to be able to contract more quickly, adapt their organisation and perform their obligations within a legal framework designed for urgency.
3. Planning and environmental law: taking shortcuts without dispensing with the rules
Constructing a building, expanding an industrial site, modifying a classified facility or developing a logistics platform normally requires a succession of authorisations, assessments and consultations. In some circumstances, the time required by these administrative processes may be difficult to reconcile with operational urgency.
Rather as was done, albeit in very different circumstances, for the reconstruction of Notre-Dame Cathedral in Paris or the preparation of the Olympic and Paralympic Games, Art. L. 2143-6 now allows adjustments, for certain works required to meet the energy, logistical or healthcare needs of French or allied forces, to the rules governing protected species, planning law, preventive archaeology and environmental authorisations.
The Act therefore opens the way to several accelerated procedures, which will have to be decided on a case-by-case basis. Each individual measure must be justified by the threat that led to the declaration of the alert: in other words, it must be necessary, appropriate and proportionate. The administrative authorities will enjoy a significant degree of discretion, subject to judicial review.
Another significant example is that, where this is necessary to respond to the threat, the capacity of certain classified facilities falling under the responsibility of the Minister for Defence will automatically be increased.
Planning and environmental law therefore do not disappear. Rather, in strictly defined circumstances, the time required for legal decision-making may be shortened so that it can match the operational timetable.
The Constitutional Council again upheld this approach, including in the light of the Environmental Charter, having regard to the purpose of the regime, its temporary nature and the conditions governing its use.
4. A power to derogate from regulatory rules that changes the scale of the mechanism
During a national security alert, a decree adopted by the Council of Ministers may authorise the administrative authorities it designates to derogate from national or local regulatory rules in order to adopt regulatory measures or individual decisions falling within their defence responsibilities.
The mechanism is not entirely unprecedented. Following a pilot scheme launched in 2017 and made permanent by Decree No. 2020-412 of 8 April 2020, prefects may already set aside certain rules laid down by central government administration.
The Conseil d’État upheld that mechanism on two occasions (Conseil d’État, 17 June 2019, No. 421871; Conseil d’État, 21 March 2022, No. 440871), while emphasising its limits: compliance with higher-ranking rules, the existence of local circumstances, proportionality and, above all, the fact that only non-regulatory individual decisions may be adopted.
The regime created by the 2026 Act goes precisely one step further: the authorities empowered to use it will be able to derogate from national or local regulatory rules in order to adopt not only individual decisions but also regulatory measures of general application.
The limits are clear: statutory provisions cannot be set aside; the relevant fields are exhaustively listed — activities of vital importance, planning and environmental law, certain employment rules, strategic supplies, transport and electronic communications — and any measure must be strictly necessary and must not disproportionately undermine the objectives pursued by the rule from which the derogation is made.
Two further safeguards are therefore essential: the derogation must be strictly necessary in order to respond to the threat, and it must not have a disproportionate effect on the objectives pursued by the rule being disapplied. This is likely to become one of the main areas of future judicial review by the administrative courts.
Given their territorial responsibilities, prefects are natural candidates to play a significant role in this regime. However, the Act does not itself designate them: it will be for the relevant decree adopted by the Council of Ministers to identify the administrative authorities empowered to exercise these powers.
The acceleration may also be procedural. Article L. 2143-5 allows certain mandatory consultation requirements to be set aside where the relevant measures are necessary to respond to the threat. The Conseil d’État had specifically required that this exemption should not be general in nature, but strictly confined to that purpose.
5. Strategic operators directly affected
In line with the objectives of the National Strategic Review, the new regime extends well beyond the defence sector alone.
Article L. 2143-2 enables enhanced protection for operators of vital importance (opérateurs d’importance vitale, or OIVs), as well as, in certain circumstances, other operators whose disruption could seriously impair the functioning of the economy or society, or affect national defence or security.
Access to certain sites, equipment, networks or systems may therefore be made subject to prior authorisation following an administrative security screening. Certain incidents liable to compromise business continuity may also have to be reported. The Act also enables the authorities to establish the security perimeters provided for by the Internal Security Code around certain sensitive sites.
Mobile network operators must, for their part, provide the State during a national security alert with interoperable data concerning network coverage across the territory (Article L. 2143-7 of the Defence Code). This obligation, which also applies more generally in the event of a serious crisis affecting networks (Article L. 33-7-1 of the Post and Electronic Communications Code), draws in particular on the lessons learned from Cyclone Chido in Mayotte in December 2024, when the absence of consistent data made it more difficult to monitor network availability and inform the public.
6. An administrative law framework for national mobilisation that remains to be developed
In its decision, the Constitutional Council upheld the regime, recalling that the Constitution does not prevent Parliament from establishing a national security alert regime, provided that a proper balance is struck between safeguarding the fundamental interests of the Nation and protecting constitutionally guaranteed rights and freedoms.
The Constitutional Council also expressly stated, in paragraph 86, that the decree declaring a national security alert may itself be challenged before the Conseil d’État, which will be required to determine whether the statutory conditions for triggering the regime have been met.
The new regime therefore follows the approach taken in the Conseil d’État’s Rolin and Boisvert Assembly decision of 24 March 2006, in which it held that a decree declaring a state of emergency was not an acte de gouvernement immune from judicial review, and that the Conseil d’État therefore had jurisdiction to review it.
A national security alert does not therefore suspend the rule of law. Rather, it creates what might be described as an administrative law framework for national mobilisation: temporary, derogatory and subject to judicial review, but designed to prevent procedures intended for ordinary circumstances from paralysing public action when time itself becomes a strategic factor.
The national security alert regime will not be fully operational until the necessary implementing decrees have been adopted. Once they are in place, legal preparedness will itself become one component of the country’s preparation for an increasingly troubling geopolitical environment.
Conclusion
For businesses, a national security alert, if one were ever declared, would not merely be a regime granting additional powers to public authorities. It would also entail new obligations, tighter security requirements, rapid changes to the operating conditions of certain sites and, potentially, certain opportunities.
Legal anticipation therefore becomes an issue in its own right. This may indeed be one of the main consequences of a reform that forms part of the authorities’ broader effort to foster a culture of defence. Preparing for a defence crisis can no longer be the responsibility of military staffs and public authorities alone. It also concerns businesses that may be called upon to contribute to the defence effort or to maintaining the Nation’s essential functions.
Can an industrial undertaking rapidly increase its production capacity? Do its existing administrative authorisations permit it to do so? Which contracts can be mobilised or adapted? What critical dependencies exist on suppliers or subcontractors? Which sites could benefit from accelerated procedures for works? What would be the consequences of extending a security perimeter? Which employees are essential to business continuity?
These are all questions that should not be discovered on the day a national security alert is declared.
Defence industrial and technological base companies will naturally be on the front line, but they are far from being the only ones concerned. Energy, transport, telecommunications, digital services, infrastructure, logistics and healthcare are all sectors whose continued operation could become critical in the event of a major crisis.
