Abuse Of Social Goods and Corruption
LexInter | October 6, 2015 | 0 Comments

Abuse Of Social Goods and Corruption

Ruling on the appeals brought by: – ​​Cxxxx Alain, – Dxxxx Jean-Louis, – Mxxxx Frédéric, – Bxxxx Louis, – Pxxxx Jean-Jacques, defendants, – L’UNION FEDERALE DES CONSOMMATEURS (UFC) ‘QUE CHOISIR’, civil party ,

against the judgment of the LYON Court of Appeal, 7th chamber, dated July 9, 1996, which condemned:

– Alain Cxxxx, for complicity in the abuse of corporate assets, concealment of abuse of corporate assets, passive corruption and witness tampering, 5 years’ imprisonment, including 1 year suspended sentence, with arrest warrant, 400,000 francs fine, 5 years of prohibition of the right to vote and to stand as a candidate,

– Jean-Louis Dxxxx, for abuse of corporate assets, concealment of abuse of corporate assets, complicity in corruption and bribery of witnesses, to 4 years’ imprisonment, including 1 year suspended, 400,000 francs fine and 5 years prohibition of civic, civil and family rights,

– Frédéric Mxxxx, for concealment of abuse of corporate assets, to 18 months suspended prison sentence and a fine of 60,000 francs,

– Louis Bxxxx, for abuse of corporate assets, to 1 year suspended imprisonment and a fine of 60,000 francs,

– Jean-Jacques Pxxxx, for complicity in the abuse of corporate assets and active corruption, to 3 years’ imprisonment, including 2 years suspended, and 400,000 francs fine,

and pronounced on civil interests; Joining the appeals because of the relatedness;

Considering the amplifying, complementary and defending memories produced;

Whereas it results from the judgment under appeal that at the end of 1985, Alain Cxxxx, mayor of the city of Grenoble since 1983, who planned to grant the water service of this city, indicated to Marc- Michel Mexxxx that, if he wanted the group he was leading to be retained in the competition which was about to open, he would have to buy and put at his disposal an apartment in Paris; that, on January 14, 1986, the Mexxxx group acquired for the sum of 5,000,000 francs, in addition to 1,000,000 francs for works and furniture, an apartment of 280 m2, located at 286 boulevard Saint-Germain in Paris, which, under the cover of a lease granted to the association ‘Modernité Régionale’, was occupied from 1986 to 1988 by Alain Cxxxx, who became Minister of the Environment, and by his project manager and man of confidence,

That in September 1987, Alain Cxxxx, who had just benefited, from August 8 to 23, 1987, from a cruise in the Mediterranean with his family, aboard a schooner rented for the occasion by the Mexxxx group, at the price of 170 784 francs, informed Marc-Michel Mexxxx that in return for the concession of the Grenoble water service to the Mexxxx group and to the Lxxxx company, he wanted the ownership of the apartment on Boulevard Saint-Germain to be transferred to him ;

That the concession project was agreed in principle between the partners, during a lunch taken on October 3, 1987 at the General Council of Isère, in the presence in particular of Jean-Louis Dxxxx and Jean-Jacques Pxxxx, director commercial and water director for France of the Lxxxx, then postponed after the municipal elections of March 1989, the decision to delegate for a period of 25 years to the company Cogese, a joint subsidiary of the Mexxxx group and the Lxxxx, of the service of water of the city of Grenoble having been finally signed by the mayor of the city on November 3, 1989;

Whereas, according to the judgment under appeal, on 23 June 1988, the company limited by Whip was established between Jean-Louis Dxxxx members of his family and relatives of Alain Cxxxx; that this ‘shell company’, managed in fact by Jean-Louis Dxxxx, bought on December 19, 1988, for the sum of 7,000,000 francs, the apartment at 286 boulevard Saint-Germain in Paris; that, to finance this acquisition and cover the salaries of the employees of Alain Cxxxx’s Parisian team, the company Whip invoiced, from 1988 to 1993, fictitious fees of 9,373,060 francs to companies of the Mexxxx group and 2,220,000 francs at Lxxxx; that in addition, the Mexxxx group, in 1987 and 1988, supported 250,000 francs of uncaused fees from the law firm of Jean-Louis Dxxxx, as well as the costs of

That the Mexxxx group, to attract the favors of Alain Cxxxx, assumed, from 1984 and until April 1993, when he became Minister of Communication, the cost of 122 trips in Sinair airline taxis, in the amount of 2,200,000 francs;

Whereas it also emerges from the statements of the judgment under appeal that, with a view to the municipal elections of March 1989 and at the initiative of Alain Cxxxx, three public limited companies were set up from 4 July 1988 – Holding Dxxxx, Dxxxx and News Free -, in order to distribute daily or periodical publications favorable to the re-election of the mayor of Grenoble and to promote his image; that, faced with the deficits of this press group, led in fact by Alain Cxxxx, and to avoid bankruptcy, Jean-Jacques Pxxxx agreed to have the holding company Dxxxx bought for 0 francs by the company Serecom, a subsidiary of the company Serepi, itself a subsidiary of Lxxxx, a partner of Cogese, and to have its liabilities settled by itself, between January and September 1990, amounting to 5,260,000 francs;

In this state,

I – On Frédéric Mxxxx’s appeal:

Whereas no means are produced;

II – On the appeals of the other applicants:

On the first ground of appeal proposed for Jean-Louis Dxxxx taken from the violation of articles 162, 166, 174, 175, 179, 591 and 593 of the Code of Criminal Procedure, contradiction and lack of reasons, lack of legal basis;

‘in that the judgment under appeal rejected the exception of nullity based on the irregularity of the two expert reports filed on 15 and 29 December 1994 established with the participation of external speakers without prior designation of the investigating magistrate;

‘on the grounds that the defendants were aware, as soon as the expert reports were filed, that the expert commissioned had called on a Brussels correspondent from his office according to a statement appearing on page 56 of the report rated D 693; that they did not request that the nullity of this expertise in limine litis be pronounced although they were aware of the alleged defects during the court hearing and did not file any conclusions at this hearing and are therefore inadmissible to submit such a request to the Court; that, if the expert must personally accomplish the mission entrusted to him, this requirement does not prevent him from using the assistance of persons not designated as expert for interventions which do not include any assessment to be formulated; that the expert cannot be criticized for having had recourse to his collaborator, since the latter has not performed tasks falling within the competence of the expert; that in any event, under Article 179 of the Code of Criminal Procedure, the order for referral when it has become final, covers, if any, procedural flaws; that article 174 of the aforementioned Code does not derogate from this provision;

‘then, that after having declared inadmissible as late, the exception of nullity directed against an expert report drawn up with the participation of an external speaker, not appointed by the examining magistrate, the appellate judges could not, without contradict, declare regular expertise operations; that the collaborator of the expert had not accomplished any of the tasks falling within the competence of the expert, the latter having attested to having personally led his mission; that the decision is thus deprived of any legal basis;

Whereas, the case having been referred to the judges by the investigating court, the objection brought by Jean-Louis Dxxxx in appeal, of an alleged nullity of the accountancy reports ordered in the previous procedure, was inadmissible in application of articles 179, paragraph 5, and 385, paragraph 1, of the Code of Criminal Procedure;

That, if the Court of Appeal, after having stated that the exception was inadmissible, believed to have to answer to reject it, the means which takes again this exception is itself inadmissible;

On the first ground of appeal proposed for Alain Cxxxx, alleging the violation of articles 6.3 d of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 509, 513 and 593 of the Code of Criminal Procedure, together violation of rights of defense, lack of reasons, lack of legal basis;

‘in that the contested judgment rejected the request for hearing Jérôme Mxxxx, presented by Alain Cxxxx;

‘on the grounds that Jérôme Mxxxx was heard, as a witness, during the information and before the criminal court at the request, not of Alain Cxxxx, but of Jean-Jacques Pxxxx and Louis Bxxxx; that on reading the hearing notes, it does not appear that Alain Cxxxx or his counsel asked him questions; that a new hearing of this witness does not appear useful for the manifestation of the truth;

‘whereas under Article 6.3 d of the European Convention on Human Rights, every accused has the right to have the calling and questioning of prosecution and defense witnesses; that in addition, by virtue of the devolutive effect of the appeal, the court of appeal is seized of all the case judged in first instance which it must examine again completely, in particular, by ordering the hearing witnesses to establish the truth; that, consequently, in the present case, the court of appeal, called to re-judge the entire dispute, could not refuse to order the hearing of the witness, Jérôme Mxxxx, notwithstanding his hearing before the first judges, from when it emerged from the information that if there had been a corruption pact on October 3, 1987, this would have been necessarily concluded, in particular, by Jérôme Mxxxx in his capacity as Chairman and CEO of the company Lxxxx, and that he would necessarily have been the author or co-author; that the hearing of Jérôme Mxxxx was thus incontestably essential to the manifestation of the truth; that deciding, nevertheless, the contrary, by reasons totally inoperative, the judgment under appeal radically ignored the meaning and the scope of the texts and principles referred to above ‘;

Whereas, in order to reject Alain Cxxxx’s request for the hearing, as a witness, of Jérôme Mxxxx, President of the company Lxxxx, the judgment under appeal notes that the aforementioned has already been heard in this capacity during information and before the criminal court at the request of Jean-Jacques Pxxxx and Louis Bxxxx; that it does not appear that Alain Cxxxx or his lawyers asked him any questions and that consequently, a new hearing of this witness is not useful for the manifestation of the truth;

Whereas in the state of these statements, proceeding from its sovereign assessment, the Court of Appeal justified its decision with regard to the provisions of Article 6.3, d, of the European Convention for the Protection of Human Rights and fundamental freedoms;

From which it follows that the means cannot be accepted;

On the second plea of ​​cassation proposed for Alain Cxxxx, taken from the violation of articles 460 and 177 of the repealed Penal Code, in force at the time of the facts, 321-1 and 432-11 of the new Penal Code, 437-3 ° of the Law of July 24, 1966, 7, 8 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal rejected the exception based on the prescription of certain facts qualified as concealment of misuse of corporate assets and acts of corruption;

‘on the grounds that, if the law of May 22, 1915 established concealment as a separate offense, it remains attached to the original offense by a very close link, being a consequential offense which presupposes as a preliminary , a fundamental offense; that consequently, the three-year limitation period in matters of concealment of misuse of corporate assets does not begin to run, if the assets are no longer in the possession of the accused, until the date on which these abuses of corporate assets are appeared and could be observed, that is to say in this case in the course of the year 1994; that abuse of social property having given rise to a supplementary indictment, dated September 9, 1994, their prescription and that of receiving concessions, can no longer be invoked;

‘and that article 177 of the old Penal Code, now article 432-11 of the new Penal Code, equally attaches the qualification of consummate corruption to the solicitation, acceptance and receipt of donations; that these moments, which can be separated in time, all characterize the accomplishment of corruption; that in this way, at each manifestation of the guilty will, the offense manifests itself completely; that prevention aims facts which were committed from 1984 to March 1993 by Alain Cxxxx; that each payment made under the corruption pact, an offense was committed and gave rise to a new limitation period; that the last payment having taken place in March 1993, the prescription was not acquired during the initiation of the proceedings intervened less than three years after this date;

‘then, on the one hand, that concealment constituting an offense distinct from the original offense, the limitation period which concerns it and which begins to run on the day on which it ends, is independent of that which applies to the original offense, this was it an abuse of corporate assets, that in this case, the three-year prescription of the offenses of concealment of abuse of corporate assets alleged against Alain Cxxxx having been interrupted by the supplementary indictment of 9 September 1994 , the facts consummated more than three years before this date are inevitably prescribed; that such is the case of the free provision of the apartment located at 286 boulevard Saint-Germain which ceased by its sale to the Whip company on December 19, 1988, of the summer 1987 cruise,

‘then, on the other hand, that the offense of corruption, which is an instantaneous offense, is consummated by the conclusion of the fraudulent pact between the corrupter and the corrupted; that, therefore, it is from the day on which this agreement was made that the limitation period begins to run, without taking into account the date of collection of the gifts or advantages which constituted the execution thereof. , in return for a single wrongful act; that the Court of Appeal, which fixed at the date of October 3, 1987 the conclusion of the pact of corruption, could not, without violating the texts and principles referred to above, refuse to note the prescription of the offense pursued;

On the second plea of ​​cassation proposed for Jean-Louis Dxxxx, taken from the violation of articles 321-1 of the Penal Code, 437-3 ° of the law of July 24, 1966, 7 and 8 of the Code of penal procedure, lack of reasons , violation of the law;

‘in that the judgment under appeal rejected the exception of limitation of the public action concerning the facts of concealment of abuse of social assets reproached to Jean-Louis Dxxxx;

‘on the grounds that, although the law of May 22, 1915 established concealment as a separate offense, it remains linked to the original offense by a very close link, in the case of a consequential offense which implies, to prior title, a fundamental offense; that the concealment can be discovered and continued only from the moment when the offense of misuse of social goods, offense of origin, appeared and was noted; that previously the concealment could not be known because of the clandestinity of the original offense; that consequently, the three-year limitation period in matters of concealment of misuse of corporate assets does not begin to run, if the assets are no longer in the possession of the defendants, until the date when these abuses of corporate assets are appeared and could be observed;

‘whereas the principle according to which the prescription of the public action of the offense of concealment of things begins to run on the day when the detention ends, cannot be set aside when the primary offense has remained clandestine; that indeed, if the offense supposes the existence of a primary offense characteristic of the preliminary condition, it remains an autonomous offense which is consumed only by the commission of subsequent facts, distinct from the original offense; that the continuous nature of the concealment, present throughout the duration of the detention, cannot fictitiously last until the day of the discovery of the primary offense to make it possible to postpone, to this date, the starting point of the prescription of public action; in this case, Jean-Louis Dxxxx has ceased, on December 19, 1988, to benefit from the apartment made available to him by a company of the Mexxxx group; that January 8, 1989, he completed a trip to Australia paid by the company SDEI; that in 1988, he consumed the amount of the fees invoiced by the Mexxxx group from July 1987 to July 1988, so that the prescription of the public action for the offense of concealment of misuse of corporate assets was acquired three years after the end of disputed detentions; that in deciding the contrary, the contested judgment violated the aforementioned texts’; he consumed the amount of the fees invoiced by the Mexxxx group from July 1987 to July 1988, so that the prescription of the public action for the offense of concealment of abuse of corporate property was acquired three years after the end of the disputed detentions; that in deciding the contrary, the contested judgment violated the aforementioned texts’; it consumed the amount of the fees invoiced by the Mexxxx group from July 1987 to July 1988, so that the prescription of the public action for the offense of concealment of abuse of corporate assets was acquired three years after the end of the disputed detentions; that in deciding the contrary, the contested judgment violated the aforementioned texts’;

The means being united;

Whereas, in order to reject the exceptions to the prescription of public action presented by the applicants, both with regard to the offenses of concealment of misuse of corporate assets and of corruption, the contested judgment is pronounced by the reasons given in the means ;

Whereas in ruling thus, the Court of Appeal did not disregard any of the texts invoked;

That indeed, on the one hand, the provisions of articles 203 of the Code of Criminal Procedure and 321-3 to 321-5 of the Criminal Code imply that the concealment of the proceeds of an abuse of corporate assets cannot begin to be prescribed before the offense from which it arises has appeared and could be observed under conditions permitting the exercise of public action;

That, on the other hand, if the offense of corruption is an instantaneous offense, consummated from the conclusion of the pact between the corrupter and the corrupted, it is renewed at each act of execution of said pact;

From which it follows that the means must be discarded;

On the third ground of appeal proposed for Jean-Jacques Pxxxx, taken from the violation of articles 5, 177 and 460 of the old Penal Code, 321-1 and 432-11 of the new Penal Code, 437-3 ° of the law of July 24, 1966 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

‘in that the judgment under appeal declared Jean-Jacques Pxxxx guilty of active corruption and of complicity in the abuse of corporate assets;

‘whereas by virtue of the’ non bis in idem ‘rule, the same fact otherwise qualified cannot serve as a basis for a double conviction, so that in the present case, the facts established by the judgment attacked as constituting the offense of corruption under the counterpart of the wrongful act could also be qualified as active corruption and complicity in the abuse of corporate assets at the cost of a violation of the aforementioned texts and principles’;

On the third ground of cassation proposed for Alain Cxxxx and taken from the violation of articles 5, 177 and 460 of the repealed Penal Code, in force at the time of the facts, 321-1 and 432-11 of the new Penal Code, 437 of the law of July 24, 1966 and 593 of the Code of Criminal Procedure, of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, lack of reasons, lack of legal basis;

‘in that Alain Cxxxx was declared guilty of the offenses of concealment of misuse of corporate assets and passive corruption;

‘on the grounds that the constitutive elements of the offenses of concealment of misuse of corporate assets and corruption are different and that the prejudices retained with regard to the defendants do not constitute an ideal accumulation of offenses;

‘whereas by virtue of the’ non bis in idem ‘rule, the same fact otherwise qualified cannot serve as a basis for a double conviction so that in the present case, the facts retained by the judgment under appeal as constituting the offense of corruption under the counterpart of the wrongful act could not also be qualified as concealment of abuse of corporate assets without violating the aforementioned texts and principles;

‘whereas, this double qualification having necessarily played a role in determining the sentence, the finding of this ideal accumulation of offenses forbids the criminal chamber, in the event of an error in the determination of one or the other of these offenses, to resort to the theory known as ‘the justified penalty’;

The means being united;

Whereas the applicants have no interest in criticizing the Court of Appeal for having found them guilty of the same facts under several criminal qualifications – comprising, moreover, different constituent elements – since, in accordance with articles 5 old and 132-3 new of the Penal Code, only one sentence was pronounced;

That thus, the means cannot be admitted;

On the third ground of appeal proposed for Jean-Louis Dxxxx and taken from the violation of articles 19 of the amnesty law of January 15, 1990, 593 of the Code of Criminal Procedure, contradiction and lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared there to be no application of the law of January 15, 1990 relating to amnesty;

‘on the grounds that there is no evidence that the use of an apartment on Boulevard Saint-Germain and the payment of fees to Whip by the Mexxxx group and the Lxxxx company are related to the direct or indirect financing of campaigns electoral groups or political parties or groups; that the apartment on Boulevard Saint-Germain was used by him as accommodation when he moved to Paris; that the expenses incurred were only used for personal ambitions of Alain Cxxxx and Jean-Louis Dxxxx and not for the direct or indirect financing of electoral campaigns or of political parties and groups;

Whip’s entire billing on three companies in the Mexxxx group is purely fictitious and was only intended to provide Whip with sufficient cash to ensure the repayment of the loan intended to finance the purchase of the apartment, knowing that the amnesty law does not require that all the proceeds of the offenses be used to finance electoral campaigns or political parties; that the decision is thus deprived of any legal basis’; all the proceeds of the offenses were used to finance electoral campaigns or political parties; that the decision is thus deprived of any legal basis’; all the proceeds of the offenses were used to finance electoral campaigns or political parties; that the decision is thus deprived of any legal basis’;

Whereas, in order to set aside the conclusions of Jean-Louis Dxxxx requesting the benefit of the amnesty provided for by article 19 of the law of January 15, 1990, the court of appeal states that there is nothing to say that the advantages in question conceded by the Mexxxx group and the Lxxxx company were in relation to the direct or indirect financing of electoral campaigns or of political parties or groups; that it retains that the expenses incurred have served only personal ambitions of Alain Cxxxx and Jean-Louis Dxxxx, so that they do not fall under the amnesty law;

Whereas in the state of these reasons, proceeding from its sovereign assessment of the factual elements submitted to the adversarial debate, the court of the second degree justified its decision without incurring the alleged grievances;

That, consequently, the means cannot be accepted;

On the fourth ground of appeal proposed for Alain Cxxxx and taken from the violation of articles 460 and 177 of the repealed Penal Code in force at the time of the facts, 321-1 and 432-11 of the new Penal Code, 437-3 ° of the law of July 24, 1966 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that Alain Cxxxx was found guilty of several concealments of misuse of corporate assets;

‘whereas concealment supposes an original, characterized and punishable offense; that the main offense is not characterized by the judgment under appeal;

” that in fact, on the one hand, the abuse of corporate assets is punishable only when the act complained of is contrary to the corporate interest, that is to say of such a nature as to compromise the integrity of social assets; that the simple observation that an operation would be foreign to the object social is not sufficient to characterize the abuse of social goods if this operation corresponds to the interest of the company; that is not necessarily contrary to their social interest the purchase transaction by the companies of the Mexxxx group of an apartment in Paris, investment on which they realized a capital gain; that for lack of having characterized contrariété with the social interest of said companies, the Court of Appeal deprived its decision of legal basis;

‘on the other hand, the use of social resources for allegedly unlawful purposes is not sufficient to characterize the damage to the corporate interest, once it is noted the existence of compensation or consideration received in the disputed transactions; in the present case, the Court of Appeal expressly noted that the incriminated expenses incurred by the companies of the Mexxxx group (flights in Sinair aircraft taxis, acquisition of the apartment 286 boulevard Saint-Germain and making available free of charge to Alain Cxxxx, fees paid to the Whip company, cruise) and by the Lxxxx company (takeover of the Dxxxx group and fees paid to the Whip company) resulted in the obtaining of a market by these companies and effectively enabled get the

” on the third hand, by declaring Alain Cxxxx guilty of concealment of misuse of corporate assets to the detriment of the Whip company (use, between 1988 and 1993 of the structures of the Whip SA), benefit between 1991 and 1993 of English courses dispensed by the Berlitz company and supported by the Whip company), the Court of Appeal, which expressly noted that this company would have constituted a ‘shell structure’ financed by the Mexxxx group and the Lxxxx company, in reality characterized a concealment abuse of corporate assets to the detriment of said companies; that, therefore, the conviction of this count is not legally justified;

” finally, in the absence of allocation of the disputed expenses to an object foreign to the interests of the companies concerned – either the personal interest of the corporate officers, or the interest of a third-party company – no abuse of corporate assets can be blamed on the warned ‘;

On the fourth ground of appeal proposed for Jean-Louis Dxxxx and taken from the violation of articles 437-3 ° of the law of July 24, 1966, 591 and 593 of the Code of Criminal Procedure, lack of response to conclusions, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Jean-Louis Dxxxx guilty of misuse of corporate assets for having made available to Alain Cxxxx from 1988 to 1993, the premises of the Boulevard Saint-Germain and the staff supported by the SA Whip company;

‘whereas, in his duly filed conclusions, Jean-Louis Dxxxx had indicated that from 1988 to 1994, the date of the sale of the apartment, he paid a monthly rent of 5,000 francs to privately occupy part of the premises acquired by the SA Whip for which a special EDF connection and a personal telephone line had been planned; that the court of appeal, by refraining from responding to this peremptory head of conclusions, has not legally justified its decision with regard to the aforementioned texts’;

On the fifth plea of ​​cassation proposed for Jean-Louis Dxxxx and taken from the violation of former article 460 of the Penal Code, articles 321-1 of the Penal Code, 437-3 ° of the law of July 24, 1966, 591 and 593 of the Code of Criminal Procedure, lack of response to conclusions and lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Jean-Louis Dxxxx guilty of concealment of abuse of corporate assets concerning the fees invoiced by SA Whip to companies of the Mexxxx group and to the company Lxxxx and condemned him on this count;

” on the grounds that all of the invoicing by Whip sent to the companies of the Mexxxx group and to the Company Lxxxx did not correspond to any real activity and was only intended to provide the Whip company with sufficient cash to ensure reimbursement of the loan intended to finance the purchase of the apartment on boulevard Saint-Germain intended for Alain Cxxxx, this apartment being the counterpart of the corruption pact of the mayor of Grenoble which allowed the allocation of the concession of the water service of this city ​​to companies of the Mexxxx group and to the company Lxxxx; that Jean-Louis Dxxxx is at the origin of the Whip company which he in fact headed and which enabled him to benefit from the financial advantages provided by the Mexxxx group and the Lxxxx company and that by doing so, he is

‘1 – whereas the concealment of things supposes the existence of a preliminary punishable offense qualified as felony or misdemeanor; that the abuse of corporate assets is punishable only if the social funds paid by a corporate officer have not been used in the sole interest of the company he directs; that it follows that the levy of social funds spent in accounting as payment of fees, but made in return for the allocation to the company of the water service concession decided by the elected beneficiary of the funds, cannot be qualified as abuse of corporate assets, the procurement being done in the sole interest of the company; that, therefore, failing to have characterized the main offense of abuse of corporate assets, the court of

‘2 – whereas, in his duly filed conclusions, the accused invoked the softer provisions of article 321-12 of the new Penal Code, applicable to the facts, allowing the sole criminal responsibility of the legal person receiving the allegedly sums to be held. fraudulent by noting that he had never cashed or held the funds resulting from the abuse of corporate assets accused of the directors of the companies of the Mexxxx group and of the Lxxxx company, which then excluded the criminal liability of the manager and nullified the thesis of the accusation; that no answer was given to this peremptory head of conclusions so that the decision is deprived of reasons’;

On the ninth plea of ​​cassation proposed for Jean-Louis Dxxxx and taken from the violation of articles 437-3 ° of the law of July 24, 1966, 460 old of the Criminal Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that Jean-Louis Dxxxx was declared guilty of several concealments of abuse of corporate assets committed to the prejudice of the companies of the Mexxxx Group and of the Lxxxx company and condemned him on these counts;

‘whereas the offense of concealment of things supposes the existence of a preliminary punishable offense qualified as crime or misdemeanor; that the offense of misuse of corporate assets is not characterized when the manager, had he committed an unlawful act, has not acted in his own interest or in the interest of a company concerning him, but has used social funds in the interest of the company it represents; that, therefore, the payment of fees, the free availability of an apartment or the payment of a trip abroad, supposed to be the consideration for the allocation of the concession of waters of the city ​​of Grenoble reproached to Alain Cxxxx could not be declared constituting abuse of corporate assets, facts for which Jean-Louis Dxxxx was found guilty of receiving stolen goods; that for lack of having characterized the contrariété with the social interest of the companies concerned, the Court of Appeal deprived its decision of legal basis’;

On the second plea of ​​cassation proposed for Jean-Jacques Pxxxx and taken from the violation of articles 437-3 ° of law n ° 66-537 of July 24, 1966, 4, 59 and 60 of the former Penal Code, 121- 1, 121-3, 121-4, 121-6 and 121-7 of the new Penal Code, 1842 of the Civil Code, 485, 591 and 593 of the Code of Criminal Procedure, lack of legal basis, lack and contradiction of reasons;

‘in that the judgment under appeal declared Jean-Jacques Pxxxx guilty of complicity in the abuse of corporate assets to the prejudice of the companies Serepi and Serecom by levying a sum of 5,770,702 francs, for the benefit of the company Holding Dxxxx;

” on the grounds that the Dxxxx group was made up of three companies headed by Frédéric Mxxxx: the company Holding Dxxxx, the company Dxxxx having as its object the foundation, publication and operation of all daily newspapers or periodicals and having edited the month of October 1988 to June 1989, the magazine Dxxxx, sold on newsstands for 15 and then 18 francs, and the company News Gratuit, having for object the publication of newspapers and having edited the free bi-weekly News Tuesday and News Friday which were distributed 150,000 copies in the letterboxes of the Grenoble conurbation from February to the end of April 1989 (cf. judgment, p. 50); that Jean-Jacques Pxxxx is accused of have given instructions to Louis Bxxxx, Chairman and CEO of Serepi and Serecom, so that Holding Dxxxx and Frédéric Mxxxx may benefit from payments of 6,129,400 francs which constituted consideration for the award of the water service concession from the city of Grenoble to the company Lxxxx (cf. judgment, p. 52); that the Dxxxx group has, from the start of its activity, encountered cash flow difficulties which will only worsen and lead to significant losses despite the substantial financial support from the Mxxxx, Ciments-Vicat, Bouygues and Serge Kampf groups; that at the end of the summer of 1989, Frédéric Mxxxx, through Jean-Louis Dxxxx, met Jean-Jacques Pxxxx, commercial director at the company Lxxxx, to whom he explained his plans for the creation of a new MCM company with the aim of producing city newspapers; that Jean-Jacques Pxxxx was seduced by this idea which would allow his company to make itself known to local authorities; that, to avoid a bankruptcy and so that the MCM concept can begin as soon as possible, Jean-Jacques Pxxxx has agreed to settle the liabilities of Dxxxx; that, initially, Louis Bxxxx, Chairman and CEO of the company Serepi, lent to the company Holding Dxxxx, 3 700 000 francs which were reimbursed on December 29, 1989; that, in a second time, was incorporated a company Serecom, owned at 99% by the company Serepi, chaired by Louis Bxxxx and having for social object the exercise of all activities of communication and expression; that the company Serecom bought back the capital of the company Holding Dxxxx for 0 francs and made, between 9 January and 17 September 1990, a current account contribution of 5 260 000 francs for its benefit; that this money contribution allowed this company to settle its creditors and to avoid a bankruptcy filing; that the company Serepi then noted the loss of the titles of the company Serecom by provisioning their value in the balance sheets of 1989 and 1990; that, to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of the communication as proved the project of repurchase of the company Civis; that he affirmed to have been seduced by Frédéric Mxxxx and by the purpose of the MCM concept which would allow the company Lxxxx to get closer to the local authorities, and to have ignored the involvement of the mayor of Grenoble in these publications; but that the Civis takeover project did not present a common parameter with that of Dxxxx; that indeed, this company was an agency of communication which realized a turnover of 20 million francs and had obtained an oscar of the growth; that despite this situation, the project had been abandoned due to the size of the company; that under these conditions, it is appropriate to wonder about the interest that the takeover of Dxxxx could constitute for the company Lxxxx, knowing that the group had just made redundant its staff, no longer had any activity and that its only specificity had been to generate losses of 16 million francs in nine months of activity; that it will be noted that the usual procedure followed by the company Lxxxx in terms of equity investments was not applied, this operation not having been submitted to the authorization of the investment committee, Jean-Jacques Pxxxx in taking responsibility alone, according to his statements, without even informing his direct superior, Bernard Cxxxx, director general of water, who declared that the takeover of Dxxxx had nothing to do with communication with elected officials and that the media-press sector had never presented a particular interest for the group; that Jean-Jacques Pxxxx cannot support having ignored the involvement of Alain Cxxxx in this press group, whereas in 1987 and 1989, he was negotiating with the latter and with Jean-Louis Dxxxx on the water concession contract; that he could not have been unaware, directly or indirectly, of two articles published in Le Canard Enchaîné, on February 1 and 8, 1989, and taken up by other press organs, which reported on the financing of the Dxxxx group and the links existing between this group and Alain Cxxxx; that the knowledge that Jean-Jacques Pxxxx had of this situation emerges from the statements of Marc-Michel Mexxxx who affirmed that the person concerned had informed him of his intention to buy a newspaper which was favorable to the mayor of Grenoble and had requested his help ; that these elements show that the acquisition of a stake by the company Lxxxx in the company MCM, which is materialized by the subscription of 5% of the capital of this company, was intended only to justify the payment of the creditors, mainly Grenoble, of the company Holding Dxxxx; that the disinterestedness of these creditors avoided a bankruptcy filing which would not have failed to reflect on the reputation of the mayor of Grenoble given his known implication in this press group (cf. judgment, p. 54 and 55);

‘then, firstly, that the abusive nature of the use of corporate goods cannot be deduced from the sole illegality of the purpose for which this use is made; that in the present case, considering, to declare Louis Bxxxx guilty of abuse of corporate assets and Jean-Jacques Pxxxx accomplice, that the disputed transactions were the consideration agreed in favor of Alain Cxxxx in the corruption pact which had allowed the company Lxxxx to obtain a concession for the company Cogese, a subsidiary of its own subsidiary the company Serepi, which concession was in accordance with the social interests of the latter and therefore of its other subsidiary the company Serecom, the Court of Appeal did not not draw the legal consequences of its own findings with regard to the aforementioned texts;

‘then, secondly, that, in any event, the unlawfulness of the aim pursued by the alleged accomplice of an abuse of corporate assets cannot characterize the abusive use alleged against the alleged principal perpetrator, in the sole light of which must be assessed the elements constituting the offense; that in the present case, by deducing the unlawful purpose of the operations carried out by the companies Serepi and Serecom with the press group Dxxxx from a set of considerations establishing at most that these operations would have been orchestrated by Jean-Jacques Pxxxx, continued as a simple accomplice in the abuse of corporate assets, with a view to proceeding, in return for the allocation of the concession, to the bailout of the said press group,

‘then, thirdly, that, in his conclusions of appeal, Jean-Jacques Pxxxx had qualified the constitution of the company Serecom by the company Serepi then the contribution in current account made by the latter to the company Holding Dxxxx, of ‘coherent economic project’, and had maintained that this investment did not constitute a diversification of the activities of the Lxxxx group; that by declaring, on the contrary, that, to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of communication, the Court of Appeal distorted these conclusions and vitiated its decision by a contradiction of reasons;

” then, fourthly, that the use made by a company director of the company’s credit assets is not contrary to the interests of the latter within the meaning of article 437-3 ° of the law of July 24, 1966 that if it exposes, without counterpart, the assets of the company to a risk of loss; in this case, according to the own statements of the judgment, the company Serecom, which had bought the company Holding Dxxxx and had made a contribution to the current account, had not been incorporated by the company Serepi, which was also shareholder of the company to which the water service of the city of Grenoble had been granted, only after the signing of the concession contract with the mayor of this city; that, therefore, considering, to declare Louis Bxxxx guilty of

‘then, on the fifth part, that, after noting that the Cogese company to which the concession had been awarded and the Serecom company which had taken control of the Holding Dxxxx company, then had brought it a sum in the current account, were subsidiaries of the Serepi company headed by Louis Bxxxx the court of appeal had to investigate, as it was invited to do, whether the financial support provided by the Serepi company to the press company was dictated by a common economic, social or financial interest , which it had to assess with regard to a policy developed within the group, and whether or not this interest of the group was in contradiction with the particular interests of the related companies; that by declaring, without carrying out this research, Louis Bxxxx guilty of

On the single means of cassation proposed for Louis Bxxxx and taken from the violation of articles 437-3 ° of the law n ° 66-537 of July 24, 1966, 4 of the old Penal Code, 121-1, 121-3, 121-4, 121-6 and 121-7 of the new Penal Code, 1842 of the Civil Code, 485, 591 and 593 of the Code of Criminal Procedure, lack of legal basis, lack and contradiction of reasons;

‘in that the judgment under appeal declared Louis Bxxxx guilty of abuse of corporate assets to the prejudice of the companies Serepi and Serecom by levying a sum of 5,770,702 francs, for the benefit of the company Holding Dxxxx;

” on the grounds that the Dxxxx group was made up of three companies headed by Frédéric Mxxxx: the company Holding Dxxxx, the company Dxxxx having as its object the foundation, publication and operation of all daily newspapers or periodicals and having edited the month of October 1988 to June 1989, the magazine Dxxxx, sold on newsstands for 15 and then 18 francs, and the company News gratuit, having for object the publication of newspapers and having edited the free bi-weekly News Tuesday and News Friday which were distributed 150,000 copies in the letterboxes of the Grenoble conurbation from February to the end of April 1989 (cf. judgment, p. 50); that Jean-Jacques Pxxxx is accused of have given instructions to Louis Bxxxx, Chairman and CEO of Serepi and Serecom, so that Holding Dxxxx and Frédéric Mxxxx may benefit from payments of 6,129,400 francs which constituted a consideration for the award of the water service concession from the city of Grenoble to Société Lxxxx (cf. judgment, p. 52); that the Dxxxx group has, from the start of its activity, encountered cash flow difficulties which will only worsen and lead to significant losses despite the substantial financial support from the Mexxxx Ciments-Vicat, Bouygues and Serge Kampf groups; that at the end of the summer of 1989, Frédéric Mxxxx, through Jean-Louis Dxxxx, met Jean-Jacques Pxxxx, commercial director at the Lxxxx Company to whom he explained his plans for the creation of a new MCM company with the aim of producing city newspapers; that Jean-Jacques Pxxxx was seduced by this idea which would allow his company to make itself known to local authorities; that, to avoid a bankruptcy and so that the MCM concept can begin as soon as possible, Jean-Jacques Pxxxx has agreed to settle the liabilities of Dxxxx; that, initially, Louis Bxxxx, Chairman and CEO of the company Serepi lent to the company Holding Dxxxx 3 700 000 francs which were reimbursed on December 29, 1989; that in a second time, was constituted a company Serecom, owned at 99% by the company Serepi, chaired by Louis Bxxxx and having for social object the exercise of all activities of communication and expression; that the company Serecom bought back the capital of the company Holding Dxxxx for 0 francs and made, between 9 January and 17 September 1990, a current account contribution of 5 260 000 francs for its benefit; that this money contribution allowed this company to settle its creditors and to avoid a bankruptcy filing; that the company Serepi then noted the loss of the titles of the company Serecom by provisioning their value in the balance sheets of 1989 and 1990; that, to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of the communication as proved the project of repurchase of the company Civils; that he affirmed to have been seduced by Frédéric Mxxxx and by the purpose of the MCM concept which would allow the company Lxxxx to get closer to the local authorities, and to have ignored the involvement of the mayor of Grenoble in these publications; but that the Civis takeover project did not present a common parameter with that of Dxxxx; that indeed, this company was an agency of communication which realized a turnover of 20 million francs and had obtained an oscar of the growth; that despite this situation, the project had been abandoned due to the size of the company; that under these conditions, it is appropriate to wonder about the interest that the takeover of Dxxxx could constitute for the company Lxxxx, knowing that the group had just made redundant its staff, no longer had any activity and that its only specificity had been to generate losses of 16 million francs in nine months of activity; that it will be noted that the usual procedure followed by the company Lxxxx in terms of equity investments was not applied, this operation not having been submitted to the authorization of the investment committee, Jean-Jacques Pxxxx in taking responsibility alone, according to his statements, without even informing his direct superior, Bernard Cxxxx, director general of water, who declared that the takeover of Dxxxx had nothing to do with communication with elected officials and that the media-press sector had never presented a particular interest for the group; that Jean-Jacques Pxxxx cannot support having ignored the involvement of Alain Cxxxx in this press group, whereas in 1987 and 1989, he was negotiating with the latter and with Jean-Louis Dxxxx on the water concession contract; that he could not have been unaware, directly or indirectly, of two articles published in the Canard Enchaîné, on February 1 and 8, 1989, and taken up by other press organs, which reported the financing of the Dxxxx group and the links existing between this group and Alain Cxxxx; that the knowledge that Jean-Jacques Pxxxx had of this situation emerges from the statements of Marc-Michel Mexxxx who affirmed that the person concerned had informed him of his intention to buy a newspaper which was favorable to the mayor of Grenoble and had requested his help ; that these elements show that the acquisition of a stake by the company Lxxxx in the company MCM, which is materialized by the subscription of 5% of the capital of this company, was intended only to justify the payment of the creditors, mainly Grenoble, of the company Holding Dxxxx; that the disinterestedness of these creditors avoided a bankruptcy filing which would not have failed to reflect on the reputation of the mayor of Grenoble given his known implication in this press group (cf. judgment, p. 54 and 55);

‘then, firstly, that the abusive nature of the use of corporate goods cannot be deduced from the sole illegality of the purpose for which this use is made; that in the present case, by considering, to declare Louis Bxxxx guilty of abuse of corporate assets, that the disputed transactions were the consideration agreed in favor of Alain Cxxxx in the corruption pact which had allowed the company Lxxxx to obtain a concession for the Cogese company, a subsidiary of its own subsidiary, the Serepi company, which concession was in accordance with the social interests of the latter and therefore of its other subsidiary, the Serecom company, the Court of Appeal did not draw the legal consequences of its own findings with regard to the aforementioned texts;

‘then, secondly, that, in any event, the unlawfulness of the aim pursued by the alleged accomplice of an abuse of corporate assets cannot characterize the abusive use alleged against the alleged principal perpetrator, in the sole light of which must be assessed the elements constituting the offense; that, in the present case, by deducing the illegal purpose of the operations carried out by the companies Serepi and Serecom with the press group Dxxxx from a set of considerations establishing at most that these operations would have been orchestrated by Jean-Jacques Pxxxx continued as a simple accomplice in the abuse of corporate assets, with a view to proceeding, in return for the allocation of the concession, to the bailout of said press group,

” then, thirdly, that in his conclusions of appeal, Jean-Jacques Pxxxx had qualified the constitution of the company Serecom by the company Serepi then the contribution in current account made by this one to the company Holding Dxxxx, of ‘coherent economic project’, and had maintained that this investment did not constitute a diversification of the activities of the Lxxxx group; that by declaring, on the contrary, that, to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of communication, the Court of Appeal distorted these conclusions and vitiated its decision by a contradiction of reasons’;

” then, fourthly, that the use made by a company director of the company’s credit assets is not contrary to the interests of the latter within the meaning of article 437-3 ° of the law of July 24, 1966 that if it exposes, without counterpart, the assets of the company to a risk of loss; in this case, according to the own statements of the judgment, the company Serecom, which had bought the company Holding Dxxxx and had made a contribution to the current account, had not been incorporated by the company Serepi, which was also shareholder of the company to which the water service of the city of Grenoble had been granted, only after the signing of the concession contract with the mayor of this city; that, therefore, considering, to declare Louis Bxxxx guilty of abuse of corporate assets,

‘then, on the fifth part, that, after noting that the Cogese company to which the concession had been awarded and the Serecom company which had taken control of the Holding Dxxxx company, then had brought it a sum in the current account, were subsidiaries of the Serepi company headed by Louis Bxxxx the court of appeal had to investigate, as it was invited to do, whether the financial support provided by the Serepi company to the press company was dictated by a common economic, social or financial interest , which it had to assess with regard to a policy developed within the group, and whether or not this interest of the group was in contradiction with the particular interests of the related companies; that by declaring Louis Bxxxx guilty of abuse of corporate assets, without carrying out this research, the court of

The means being united;

On the fourth plea of ​​cassation proposed for Alain Cxxxx taken in its third and fourth branches and the fourth plea proposed for Jean-Louis Dxxxx:

Whereas, to declare Jean-Louis Dxxxx guilty of abuse of corporate assets and Alain Cxxxx of concealment of abuse of corporate assets to the prejudice of the Whip company, the judgment under appeal holds that this company, managed by Jean-Louis Dxxxx, advisor then project manager to Alain Cxxxx took charge of the latter’s English lessons and made the apartment she had purchased in Paris available to her free of charge;

Whereas in the state of these statements, and since the fact that the Whip company was supplied by payments from other companies has no impact on the harm to the own interests of this legal person, resulting from the actions of the defendants , the Court of Appeal, which did not have to respond to the inoperative conclusions of Jean-Louis Dxxxx, justified its decision;

On the fourth plea of ​​cassation proposed for Alain Cxxxx, taken in its first two branches, the fifth and ninth pleas proposed for Jean-Louis Dxxxx and the pleas of the other applicants:

Whereas the applicants dispute that the expenses incurred by the Mexxxx group, for the apartment on boulevard Saint-Germain in Paris and the trips of Alain Cxxxx, and by the Lxxxx group for fictitious fees and the takeover of the Dxxxx company, were contrary to the interests of the companies and to the interests of the group, since their counterpart was the attribution of the concession of the water service of the city of Grenoble to the company Cogese;

Whereas, to rule out this argument, the judges emphasize that the cost of the advantages granted by the Mexxxx companies – totaling nearly 19 million francs – is part of a ‘mad spiral of money’ and that their ‘considerable’ amount made it possible to obtain ‘at a high price’ the award of the concession; that they note that Marc-Michel Mexxxx – who did not appeal against his conviction of the heads of misuse of corporate assets and active corruption – acknowledged having acted in his personal interest, in order to maintain good relations with the mayor of Grenoble and admitted that the various donations granted by the companies of his group to Alain Cxxxx and Jean-Louis Dxxxx whose requests have, according to him, ‘bordered on extortion’,

That after recalling the importance of the expenses incurred by the Lxxxx group – amounting to nearly 12 million francs – the judges still retain, to establish the abuse of corporate assets, that the takeover of the company Dxxxx was operated under the sole responsibility of Jean-Jacques Pxxxx, who did not submit this decision to the authorization of the Lxxxx investment committee, nor informed his direct supervisor; that the latter disowned Jean-Jacques Pxxxx, specifying that the media-press sector had never presented any particular interest for the group and that the intervention of the Serecom subsidiary for such an acquisition was not in conformity the economic logic of the group; that they add that Louis Bxxxx, President of the latter company,

Whereas in the state of these statements, the court of appeal characterized the offense of abuse of social goods in all its elements, in particular the attack on the social interest;

That indeed, whatever the short-term advantage that it may provide the use of social funds having the sole purpose of committing an offense such as corruption is contrary to the corporate interest in that it exposes the legal person at the abnormal risk of penal or fiscal sanctions against itself and its managers and damaging its credit and reputation;

That, consequently, the means must be rejected;

On the fifth ground of cassation proposed for Alain Cxxxx and taken from the violation of articles 460 of the repealed Penal Code in force at the time of the facts, 321-1 of the new Penal Code, 437-3 ° of the law of July 24, 1966 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that Alain Cxxxx was found guilty of concealment of misuse of corporate assets for having, as a de facto manager of the Holding companies Dxxxx and Dxxxx and as the main beneficiary of the payments, knowingly concealed the sum of 5,360,000 francs from misuse of property and credit from Serecom and Serepi;

‘then, on the one hand, who is the receiver who has personally and directly benefited from the predicate offense; in the present case, the Court of Appeal expressly noted that the payments constituting abuse of corporate assets dated January 9 and September 17, 1990 benefited the public limited companies Holding Dxxxx and Dxxxx, so that it did not could, without violating the aforementioned texts, declare Alain Cxxxx guilty of concealment of abuse of social assets since being neither manager of right, nor shareholder of the beneficiary companies, he did not personally and directly profit from the incriminated payments;

” then, on the other hand, and in the alternative, that de facto management means exclusively the exercise, direct or indirect, of the management, administration or management of the company instead of its legal representatives; that by confining itself to noting the involvement of Alain Cxxxx in the functioning of the Dxxxx group by means of advice or suggestions, without finding any positive act of direction or management, the court of appeal did not characterize the status of de facto leader of the accused;

‘then, finally, that concealment constitutes a consequential offense which presupposes, as a preliminary, a crime or a fundamental offense; in the present case, the Court of Appeal finds that the disputed payments were made after the sale of the companies of the Dxxxx group to the Lxxxx company, from which it follows that on that date, Alain Cxxxx could no longer to be the beneficiary, since by the fact of this transfer, he was no longer de facto director of the beneficiary companies; that retaining, nevertheless, the guilt of the accused of the count of concealment of abuse of social property, the judgment attacked violated the texts referred to above and must be annulled ‘;

Whereas, to declare Alain Cxxxx guilty of concealment of the abuse of corporate assets committed by Louis Bxxxx to the prejudice of the companies Serecom and Serepi, the court of appeal holds that the current account contributions made by these two companies, up to 5 000,000 francs, in order to meet the liabilities of the Dxxxx group, benefited Alain Cxxxx, who in fact constantly provided management and funding and organized the complained of filling; that it adds that the disinterestedness of the creditors avoided a declaration of suspension of payments which would not have failed to reflect on the reputation of the mayor of Grenoble, taking into account its notorious implication in this group of press;

Whereas by determining itself in this way, the contested judgment did not violate any of the texts referred to in the means;

That indeed, on the one hand, articles 460 old and 321-1 new of the Penal Code, conceived in general terms, reach all those who, knowingly, have, by any means, benefited from the proceeds of a felony or misdemeanor; that, on the other hand, these texts do not require that the accused has drawn a personal profit from the things concealed;

That, consequently, the means could not be accepted;

On the sixth plea of ​​cassation proposed for Alain Cxxxx and taken from the violation of articles 177 of the repealed Penal Code, in force at the time of the facts, 432-11 of the new Penal Code and 593 of the Code of Criminal Procedure, lack of reasons, lack legal basis;

” in that the judgment under appeal declared Alain Cxxxx guilty of the offense of passive corruption for having, between the years 1984 and 1993, benefited from donations, gifts and advantages granted by the companies of the Mexxxx group, represented by Marc-Michel Mexxxx and the company Lxxxx, represented by Jean-Jacques Pxxxx, for the performance of an act of his function, in this case, the delegation of the water and sanitation service of the city of Grenoble to the company Cogese whose majority shareholders are the companies SDEI (Mexxxx group) and Serepi (Lxxxx);

” then, on the one hand, that the approval of advantages, by a person holding public authority, is punishable only insofar as it intervenes as consideration for an act of his function in execution an agreement of wills between the corrupter and the corrupted; in the present case, the judgment under appeal, which is limited to noting the very keen interest of Marc-Michel Mexxxx for the project of concession of the service of water of Grenoble and the advantages which it would have made profit Alain Cxxxx during several years to be ‘present in the competition’ and to obtain the concession contract, did not characterize a pact of corruption, but a form of one-upmanship which does not enter into the provisions of article 432-11 of the Penal Code;

‘then, on the other hand, that the court of appeal states that on October 3, 1987, the choice of the Mexxxx group and of the Lxxxx company was made official between the various partners (p. 28); that, still according to the Court of Appeal, the role of Jean-Jacques Pxxxx in the negotiations of the concession contract which followed, the relations he had with Alain Cxxxx on this subject, the nature and importance of the advantages from which it benefited from the beginning of 1989 show that it would have been agreed between Jean-Jacques Pxxxx and Alain Cxxxx prior to the concession contract that the payments would be made for the benefit of the mayor of Grenoble by the company Lxxxx in return for the allocation of this concession (p. 64);

” that it follows from these findings, that on October 3, 1987, date on which the decision on the concession of the water service was taken, no pact of corruption was concluded between Alain Cxxxx and Jean-Jacques Pxxxx; that the existence of an agreement of will between the corrupter and the corrupted one, which is an essential element of the corruption offense, cannot be deduced from alleged advantages subsequent to the disputed act, in this case the attribution of the concession of the water service, the advantages granted in gratitude for the act of its function not constituting the offense of corruption; that the court of appeal, which characterizes the participation of Jean-Jacques Pxxxx in the negotiation of the concession of the water service, does not characterize its participation in a negotiation on the advantages that Alain Cxxxx would have drawn from it, that is to say its participation in the corruptive pact; that, consequently, the court of appeal, which did not characterize the constituent elements of the offense of corruption, deprived its decision of any motive;

‘then, finally, that, in order to characterize the corruption, the trial judges must note the anteriority of the advantages requested or received in relation to the wrongful action requested; in the present case, the Court of Appeal found that the major part of the benefits received was subsequent to the award of the concession of the water service, so that the offense of corruption, which requires that the benefits have determined the corrupt, is not characterized ‘;

On the sixth ‘additional’ ground of appeal proposed for Alain Cxxxx and taken from the violation of articles 177 of the repealed Penal Code in force at the time of the facts, 432-11 of the new Penal Code and 593 of the Code of Criminal Procedure, lack of reasons , lack of legal basis;

” in that the judgment under appeal declared Alain Cxxxx guilty of the offense of passive corruption for having, between the years 1984 and 1993, benefited from donations, gifts and advantages granted by the companies of the Mexxxx group, represented by Marc-Michel Mexxxx, and the company Lxxxx, represented by Jean-Jacques Pxxxx, for the performance of an act of his function, in this case, the delegation of the water and sanitation service of the city of Grenoble to the company Cogese whose majority shareholders are the companies Sedi (Mexxxx group) and Serepi (Lxxxx);

‘while the’ corruption pact ‘cannot be presumed, the trial judges having to establish that the alleged corrupt person has solicited or approved, without right, directly or indirectly, offers, promises, gifts, gifts or any advantages to accomplish an act of his office or mandate; in the present case, the Court of Appeal confined itself to stating that the choice of the Mexxxx group and of the company Lxxxx had been formalized between the various partners on October 3, 1987, that the lobbying contracts concluded by the company the Lxxxx and the Mexxxx group with the Whip company appeared to be lesiones, and that the transactions carried out by the Lxxxx company within the Dxxxx press group were inappropriate, to conclude that having indirectly benefited Alain Cxxxx, the payments made within the framework of these two series of questionable operations necessarily constituted, in their context, an agreed consideration for obtaining the concession; that it was the same for the acquisition of the apartment of the boulevard Saint-Germain by the group Mxxxx; that by taking for granted, without any direct proof of an agreement, a promise or any offer, the existence of a pact of corruption because of the character according to it ‘abnormal’ of the series of transactions in question, an abnormal character that it only deduced precisely from the supposition of a prior corruptive pact, the court of appeal did nothing other than presume the material element of the offense, which ‘she does’

On the sixth ground of appeal proposed for Jean-Louis Dxxxx and alleging violation of articles 121-6, 121-7, 432-11 of the Penal Code, 388 and 593 of the Code of Criminal Procedure, violation of the rights of the defense, the adversarial principle, strict interpretation of criminal law, 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, lack of legal basis;

‘in that the judgment under appeal declared Jean-Louis Dxxxx guilty of complicity in passive corruption and condemned him on this account;

‘on the grounds that the defendant, one of the closest advisers to Alain Cxxxx, participated very actively in the public service concession contract of the city of Grenoble; that he was present at the lunch on 3 October 1987 and that he took part in the negotiations which followed; that he represented Alain Cxxxx at the new negotiations in 1989; that he benefited from the apartment on boulevard Saint-Germain between 1986 and 1988 and that he was at the origin of the creation of Whip which he directed from 1988 to 1993; that he knew that the advantages which benefited this company were a counterpart with the attribution of the concession of the service of water of the city of Grenoble to their profit; that it is thus established that Jean-Louis Dxxxx aided and assisted, knowingly, Alain Cxxxx in the performance of an act falling under his function as mayor, in this case, the concession of the public water service of the city of Grenoble to the company Cogese in return for the payment of donations, gifts and benefits granted by Marc-Michel Mexxxx and Jean-Jacques Pxxxx; that he thus made complicit in the offense of corruption reproached to Alain Cxxxx;

‘1 – while the correctional courts can only rule legally on the facts identified by the order which referred them; that the order which referred Jean-Louis Dxxxx to the correctional jurisdiction on the count of complicity in corruption, aimed only at the fact, for the latter, of having brought his help and assistance in the accomplishment of an act falling within the function of the mayor of Grenoble, in this case the concession of the public water and sanitation service for the city of Grenoble in return for donations made by Marc-Michel Mexxxx and Jean-Jacques Pxxxx; that the first judges admitted that only aid and assistance in the accomplishment of an act of the elected representative were reproached to Jean-Louis Dxxxx; that it does not result from judgment that the accused agreed to be judged on the perception of the counterparts to the act of corruption materialized by the use of the Parisian apartment and the advantages granted to the company Whip, perception representing a new act of complicity distinct in its constituent elements of that aimed at prevention; that the court of appeal added to the facts of the prosecution and thus exceeded its powers and disregarded the principle of adversarial proceedings;

‘2 – whereas the offense of corruption is a formal offense which is consumed independently of the result; that, consequently, the accomplishment of an act of the function by the elected representative in consideration of the offers envisaged by the pact of corruption is not an element constitutive of the offense; that consequently, the mere fact of having participated in the signing of the concession contract of the public water service is not an act of complicity punishable under the terms of Article 121-7 of the Penal Code; that in deciding the contrary, the appellate judges falsely applied the criminal law and violated the aforementioned texts’;

On the first ground of appeal proposed for Jean-Jacques Pxxxx and taken from the violation of the presumption of innocence laid down by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and by Article 9 of the Declaration of the Rights of Man and of the Citizen of August 26, 1789 included in the preamble to the Constitution of October 4, 1958, articles 433-1 and following of the new Penal Code and 177 and following of the old penal code , 1134 of the Civil Code, 388 and 593 of the Code of Criminal Procedure, excess of power, lack of legal basis, default and contradiction of reasons;

‘in that the judgment under appeal declared Jean-Jacques Pxxxx guilty of active corruption and sentenced him to 3 years’ imprisonment including 2 years suspended and a fine of 400,000 francs, of on the one hand, payments made under a lobbying contract concluded between the company Lxxxx and the company Whip and, on the other hand, the filling of the liabilities of the press group Dxxxx;

‘on the grounds that Alain Cxxxx took the decision to grant the water service for the city of Grenoble at the end of 1985; that on October 3, 1987, the choice of the Mexxxx group and the company Lxxxx was formalized between the various partners; that in-depth negotiations then took place between the parties, but did not have an immediate follow-up because of Alain Cxxxx’s desire not to initiate such a process before an electoral deadline; that discussions resumed in April 1989 with the same partners and on identical bases to those previously envisaged and resulted in the concession of the water service to Cogese, entered into by a contract of 3 November 1989 (cf. judgment, p. 26). to 28); that the role of Jean-Jacques Pxxxx in the negotiations of the concession contract, the relations that he had with Alain Cxxxx on this subject, the nature and importance of the advantages enjoyed by him from the beginning of 1989, even though the expenses incurred were of no use to the company Lxxxx, demonstrate that it had been agreed between Jean-Jacques Pxxxx and Alain Cxxxx, prior to the concession contract, that payments would be made to the mayor of Grenoble, by the company Lxxxx, in return for the allocation of this concession; that it is in execution of this agreement that Jean-Jacques Pxxxx signed the contract for the provision of services with the company Whip, on January 4, 1989, and that he then accepted, at the end of the summer of 1989, to to fill the liabilities of the company Dxxxx that Alain Cxxxx would in fact manage; that, of course,

” that Jean-Jacques Pxxxx is accused, in respect of the offense of corruption, of having in return for the allocation of the water service of the city of Grenoble, made bear by the cash of the company Lxxxx of the payments of fees paid to the Whip company in the amount of 2,200,000 francs (see judgment, p. 43); that by contract of January 4, 1989, the company Lxxxx, under the signature of Jean-Jacques Pxxxx, commercial director of the company Lxxxx and water for France, undertook to pay the company Whip fees of an amount of 120,000 francs in return for a fixed price of 150 hours of half-yearly services, to ensure its representation to all French or international persons and entities, with the aim of promoting the development of its activities; that this contract was concluded for a period of six months, renewable at the end of the period, for one year, by tacit agreement; that amendments of 1989, 1991 and 1992 extended the mission of the company Whip and increased the amount of remuneration; that execution of this contract, the company Whip has, between 1988 (sic) and 1993, invoiced the following fees to the company Lxxxx; fiscal year 1989: 420,000 francs, fiscal year 1990: 150,000 francs, fiscal year 1991: 550,000 francs, fiscal year 1992: 600,000 francs, fiscal year 1993: 500,000 francs, or a total of 2,220,000 francs; it is common ground that the company Whip addressed to the company Lxxxx a number of documents relating to European regulations; that if it is not possible to say that all of this documentation is worthless, it does not is not established, however, that it was of direct interest to this company despite the unanimous statements of its managers who, however, could not specify in what way this provision of information was of interest to them, or what benefit they had been able to get it for their business; that, moreover, the court can only be surprised that a company of the importance of the company Lxxxx waited for this date to notice the importance of the European regulation in the life of the businesses; that it will also be noted that the principal object of the contract consisted of actions of lobbying and not in the supply of a documentation on the European regulation which will be envisaged only in a rider of May 5, 1989; that, with regard to lobbying actions, this activity does not was only very small, that it consisted of a few steps with European officials, steps which did not lead to any concrete result; that more no material trace of this activity of lobbying could be produced by the company Lxxxx and that the monthly reports contractually envisaged were not found; that on the actual activity of the Whip company, it has already been concluded (concerning the Mexxxx group) that there was no production by the Parisian branch, that there was a job in Brussels from which Jean’s law firm mainly benefited. -Louis Dxxxx and to a stop of the services rendered by the person in charge of this office as from June 1991; that in November 1990, the company Lxxxx entrusted the accounting firm Mazars with a mission of study on Mexxxx group companies; that, in its report, this cabinet noted that, among the costs of two subsidiaries, were payments of fees to the company Whip which appeared high in relation to the services provided; that this mention could only attract the attention of the company Lxxxx which for 2 years also paid fees to the company Whip that, despite this situation, after the takeover of these two subsidiaries by the company Lxxxx, it continued to honor the invoices of the Whip company, being aware that two other companies of the group were invoiced for identical services; that if it had been a question of normal invoicing, the company Lxxxx could only have worried about the value of the services provided and not would certainly not have continued to pay three times the charge for the same service; that it follows from these elements that the fees paid by the company Lxxxx did not correspond to any real activity and were intended, like those borne by the Mexxxx group, to provide it with cash in order to settle the deadlines of the loan contracted for the purchase of the apartment on Boulevard Saint-Germain intended for the use of Alain Cxxxx (see judgment, p. 47 and 48); that it was demonstrated that the fees paid by the company Lxxxx to the company Whip were fictitious; that these expenses were of no use; that even if Jean-Jacques Pxxxx left the management of water at the end of 1989, he remained in the company and could only continue to take care of the

” that the Dxxxx group was made up of 3 companies headed by Frédéric Mxxxx: the Holding Dxxxx company, the Dxxxx company having for object the foundation, the publication and the exploitation of all daily newspapers or periodicals and having published of October 1988 in June 1989, the magazine Dxxxx, sold on newsstands for 15 then 18 francs, and the company News gratuit, having for object the publication of newspapers and having edited the free bi-weekly News Tuesday and News Friday which were distributed in the 150,000 copies of the Grenoble metropolitan area’s letterboxes from February to the end of April 1989 (cf. judgment, p. 50); that Jean-Jacques Pxxxx is accused of having given instructions to Louis Bxxxx Chairman and CEO of Serepi and Serecom, so that the Holding company Dxxxx and Frédéric Mxxxx benefit from payments in the amount of 6,129,400 francs which constituted a consideration for the allocation of the concession of the water service of the city of Grenoble to the company Lxxxx (judgment, p. 52) ; that the Dxxxx group, from the start of its activity, encountered cash flow difficulties which will only worsen and lead to significant losses despite the substantial financial support from the Mexxxx, Ciments-Vicat, Bouygues and Serge Kampf groups; that at the end of the summer of 1989, Frédéric Mxxxx, through Jean-Louis Dxxxx, met Jean-Jacques Pxxxx, sales director at the company Lxxxx, to whom he explained his plans to create a new MCM company with the aim of producing city newspapers; that Jean-Jacques Pxxxx was seduced by this idea which would allow his company to make itself known to local authorities; that, to avoid a bankruptcy and so that the MCM concept can begin as soon as possible, Jean-Jacques Pxxxx has agreed to settle the liabilities of Dxxxx; that, initially, Louis Bxxxx chairman and managing director of the company Serepi lent to the company Holding Dxxxx 3 700 000 francs which were reimbursed on December 29, 1989; that, in a second time, was incorporated a company Serecom, owned at 99% by the company Serepi, chaired by Louis Bxxxx and having for social object the exercise of all activities of communication and expression; that the company Serecom bought the capital of the company Holding Dxxxx for 0 francs and made, between January 9 and September 17, 1990, a contribution to the current account of 5,260,000 francs for his benefit; that this money contribution allowed this company to settle its creditors and to avoid a bankruptcy filing; that the company Serepi then noted the loss of the titles of the company Serecom by provisioning their value in the balance sheets of 1989 and 1990; that, to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of the communication as proved the project of repurchase of the company Civis; that he claimed to have been seduced by Frédéric Mxxxx and by the purpose of the MCM concept which would allow the company Lxxxx to get closer to local authorities, and to have ignored the involvement of the mayor of Grenoble in these publications; but that the Civis takeover project did not present a common parameter with that of Dxxxx; that indeed, this company was an agency of communication which realized a turnover of 20 million francs and had obtained an oscar of the growth; that despite this situation, the project had been abandoned due to the size of the company; that under these conditions, it is appropriate to wonder about the interest that the takeover of Dxxxx could constitute for the company Lxxxx, knowing that the group had just made redundant its staff, had no more activity and that its only specificity had was to generate losses of 16 million francs in nine months of activity; that it will be noted that the usual procedure followed by the company Lxxxx in terms of equity investments was not applied, this transaction not having been subject to the authorization of the investment committee, Jean-Jacques Pxxxx taking alone , according to his statements, the responsibility without even informing his direct superior, Bernard Cxxxx, director general of water, who declared that the takeover of Dxxxx had nothing to do with communication with elected officials and that the sector media-press had never presented a particular interest for the group; that Jean-Jacques Pxxxx cannot maintain having ignored the involvement of Alain Cxxxx in this press group, whereas in 1987 and 1989, he was negotiating with him and with Jean-Louis Dxxxx on the water concession contract; that he could not have been unaware, directly or indirectly, of two articles published in the Canard Enchaîné, on February 1 and 8, 1989, and taken up by other press organs, which reported the financing of the Dxxxx group and the links existing between this group and Alain Cxxxx; that the knowledge that Jean-Jacques Pxxxx had of this situation emerges from the statements of Marc-Michel Mexxxx who affirmed that the person concerned had informed him of his intention to buy a newspaper which was favorable to the mayor of Grenoble and had requested his help ; that these elements show that the acquisition of a stake by the company Lxxxx in the company MCM, which is materialized by the subscription of 5% of the capital of this company, was intended only to justify the payment of the creditors, mainly Grenoble, of the company Holding Dxxxx; that the disinterestedness of these creditors avoided a bankruptcy filing which would not have failed to reflect on the reputation of the mayor of Grenoble given his known implication in this press group (cf. judgment, p. 54 and 55);

‘then, on the first hand, that the’ corruption pact ‘cannot be presumed, the trial judges having to establish that the alleged briber has proposed, without right, offers, promises, gifts, presents or any advantages, with a view to ‘obtain from the alleged corrupt person to perform an act of his office or mandate; in the present case, the Court of Appeal confined itself to stating that the choice of the Mexxxx group and of the company Lxxxx had been formalized between the various partners on October 3, 1987, that the lobbying contracts concluded by the company Lxxxx with the company Whip appeared to be lesiones and that the operations carried out by the company Lxxxx within the press group Dxxxx were inappropriate, to conclude that having indirectly benefited Alain Cxxxx the payments made within the framework of these two series of questionable operations necessarily constituted, in their context, an agreed consideration for obtaining the concession; that thus taking for granted, apart from any direct proof of an agreement, a promise or any offer, the existence of a corruption pact due to the character, according to it ‘abnormal’ of the two series of transactions in question, an abnormal character that it only deduced precisely from the supposition of a prior corruptive pact, the court of appeal did nothing other than presume the material element of the offense it has not thus legally characterized with regard to the aforementioned texts; objectionable transactions necessarily constituted, in their context, an agreed consideration for obtaining the concession; that thus taking for granted, apart from any direct proof of an agreement, a promise or any offer, the existence of a corruption pact due to the character, according to it ‘abnormal’ of the two series of transactions in question, an abnormal character that it only deduced precisely from the supposition of a prior corruptive pact, the court of appeal did nothing other than presume the material element of the offense it has not thus legally characterized with regard to the aforementioned texts; objectionable transactions necessarily constituted, in their context, an agreed consideration for obtaining the concession; that thus taking for granted, apart from any direct proof of an agreement, a promise or any offer, the existence of a corruption pact due to the character, according to it ‘abnormal’ of the two series of transactions in question, an abnormal character that it only deduced precisely from the supposition of a prior corruptive pact, the court of appeal did nothing other than presume the material element of the offense it has not thus legally characterized with regard to the aforementioned texts;

‘then, secondly, that the offense of corruption is constituted only if the pact entered into between the corrupter and the corrupted one preceded the act or the abstention which it was intended to remunerate; that it follows from the own statements of the judgment that ‘the decision to grant the water service of the city of Grenoble to the company Lxxxx des Eaux and the Mxxxx group’ would have been ‘formalized during the lunch of October 3 1987, during which the participation of each of the two groups in this operation was also decided, then that it would be in execution of this agreement, that Jean-Jacques Pxxxx had signed a service provision contract with the company Whip, on the 4th January 1989, and had given the order to fill the liabilities of the companies Holding Dxxxx and dauphiné news, at the end of the year 1989; that after noting that the concession as well as its execution modalities were acquired in 1987, the court of appeal could not, without disregarding the legal scope of its findings, consider that the payments made from 1989 onwards for the benefit of companies formed after the alleged pact, had been able to determine previous decisions formalized by it; that declaring Jean-Jacques Pxxxx guilty of active corruption, the Court of Appeal violated the texts referred to above; consider that the payments made from 1989 for the benefit of companies formed after the alleged pact, had been able to determine previous decisions formalized by the latter; that declaring Jean-Jacques Pxxxx guilty of active corruption, the Court of Appeal violated the texts referred to above; consider that the payments made from 1989 for the benefit of companies formed after the alleged pact, had been able to determine previous decisions formalized by the latter; that declaring Jean-Jacques Pxxxx guilty of active corruption, the Court of Appeal violated the texts referred to above;

‘then, of third part, that, subsidiarily, the correctional jurisdictions can not rule legally that on the facts raised by the ordinance which seized them; that under the order for reference, it was only reproached to Jean-Jacques Pxxxx to have been at the origin of payments made ‘current 1990’ and ‘between 1989 and 1993’; that, in the hypothesis which was that of the court of appeal, namely that the payments determining the concession contract of November 3, 1989 were made, from the month of January 1989, in execution of the only pact of corruption which would have been concluded, according to the own statements of the judgment, on October 3, 1987, the conviction is based on facts not noted in the order for reference; that

to declare Jean-Jacques Pxxxx guilty of corruption, affirm that the fees paid did not correspond to a real activity, without ignoring the legal scope of his own findings; that ruling in this way, the Court of Appeal violated the aforementioned texts;

‘then, on the fifth part, that the contradiction of motives is equivalent to the lack of motives; that by declaring, on the one hand, that the company Whip had provided the company Lxxxx with a set of documents relating to European regulations and had made representations to European officials and, on the other hand, that no trace material of the lobbying activity could not be produced by the company Lxxxx, the Court of Appeal tainted its decision with a lack of reasons;

‘then, on the sixth part, that it is for the public prosecutor and the civil parties, applicants in the criminal proceedings, to prove the guilt of the accused; that, to declare Jean-Jacques Pxxxx guilty of corruption, the court of appeal reproached him for not having established that the documentation on the community regulation provided by the company Whip, had presented a direct interest for the company Lxxxx; that determining itself in this way, the Court of Appeal reversed the burden of proof and made weigh a presumption of responsibility that the law does not enact;

‘then, on the seventh part, that after having noted that the company Whip had sent to the company Lxxxx a certain number of documents relating to European regulations and’ that it is not possible to say that all of this documentation (..) is without value ‘(judgment, p. 47), and even though three witnesses called at first instance (Messrs. Gaudin, Vincent and d’Ouince) had both specified under oath the usefulness , the interest and the effectiveness of the services of the company Whip judgment, p. 99), and even though Mr. Bruyas, legal expert, had declared at the hearing before the court that ‘120,000 francs may correspond to the price of the services provided to the Lxxxx’ (cf. hearing notes), sum corresponding to the only payments for which Jean-Jacques Pxxxx had been responsible within the framework of his functions, the Court of Appeal nevertheless considered, in order to find the latter guilty of corruption, that it would not have been established that the documentation provided presented a direct interest for the company ‘(judgment, p. 48) and that these expenses’ were of no use to the company Lxxxx’ (judgment p. 64); that in declaring, under these conditions, Jean-Jacques Pxxxx guilty of active corruption, without explaining himself neither on the absence of direct interest, nor on the lack of usefulness of this documentation, nor more on a disproportion between the service rendered and the fees invoiced, the court of appeal, which did not characterize the alleged fictitiousness of the fees,

‘then, on the eighth part, that, in his conclusions of appeal (p. 41), Jean-Jacques Pxxxx had argued that the cost of the lobbying service had not been excessive, offering in evidence the cost of a similar study carried out by another service provider; that refraining from responding to these conclusions, the Court of Appeal violated derechef texts referred to above;

‘then, on the ninth part, that by justifying the allegedly fictitious nature of the fees paid to the Whip company by reference to evidence from the report of the expert, Mr. Bruyas, without responding to the conclusions of Jean-Jacques Pxxxx (pp. 37 and 38) criticizing this report, the conclusions of which had been established, as the said expert had testified at the hearing in first instance, without prior examination of the seals carried out with the company Lxxxx, and after having under- dealt with part of its mission, the Court of Appeal tainted its decision with a lack of reasons’;

‘then, tenth part, that in his conclusions of appeal Jean-Jacques Pxxxx had qualified the investment of the company Serepi of coherent economic project and maintained that this one did not constitute a diversification of the activities of the group of the Lxxxx; that by declaring, on the contrary, that to justify this operation, Jean-Jacques Pxxxx explained that he had acted within the framework of the diversification of the activities of the group which wished to be present in the field of communication, the Court of Appeal disregarded the meaning and scope of these conclusions and vitiated its decision by a conflict of reasons;

The means being united;

Whereas, to declare Alain Cxxxx guilty of passive corruption, Jean-Louis Dxxxx guilty of complicity in this offense and Jean-Jacques Pxxxx guilty of active corruption, the judges state that between the years 1984 and 1993, Alain Cxxxx benefited, directly or indirectly, with full knowledge of the facts, with the help and assistance of Jean-Louis Dxxxx, for the period from 1986 to 1993, donations, gifts or advantages mentioned above from Marc-Michel Mexxxx, with a view to the concession to its group of the water service of the city of Grenoble and in execution of a corruption pact concluded at the end of 1985; that they still retain that Alain Cxxxx benefited in 1990, for the accomplishment of the same act of his function in favor of the Cogese company, from

Whereas, if the court of the second degree admits that certain payments intervened after the signature of the concession contract, it underlines that they were carried out in execution of a previous agreement whose finality was the attribution of this concession;

Whereas in the state of these statements, deduced from its sovereign assessment of the circumstances of the case and the evidence submitted to the adversarial debate, the Court of Appeal, which ruled within the limits of prevention and responded as it did. owed it to the submissions of the parties, characterized in all their constituent elements the offenses of which it declared the applicants guilty;

That indeed, it matters that gifts, presents or advantages have been accepted by a person invested with a public elective mandate after the accomplishment of the act of the function, the offense of corruption, consummated from the conclusion of the pact between the corrupter and the corrupted, being renewed at each act of execution of said pact;

From which it follows that the means must be discarded;

On the seventh plea of ​​cassation proposed for Alain Cxxxx and taken from the violation of articles 434-15 of the Penal Code and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Alain Cxxxx guilty of the crime of witness tampering on Mr. Txxxx;

‘on the grounds that a few days after July 1, 1994, the date of his hearing by the examining magistrate, Mr. Txxxx had received a telephone call from Alain Cxxxx, then Minister of Communication, who had criticized him for his statements which risked lead to his indictment and had informed him that Jean-Louis Dxxxx, president of Sofirad, was going to contact him in order to develop a new version of the facts; that Jean-Louis Dxxxx and Alain Cxxxx carried out pressing approaches with this witness so that he modifies his statements; that such requests, emanating from influential members of the State, made to a person hierarchically placed under the authority of a minister belonging to the same government as Alain Cxxxx created a constraint in the mind of this witness,

‘then, on the one hand, by confining itself to relating successively the contradictory statements of Mr. Txxxx and Alain Cxxxx, the Court of Appeal omitted to specify which direct or indirect’ pressing steps’ were imputed to the applicant , in particular with regard to the alleged intervention by Mr. Longuet; that thus, the judgment under appeal is deprived of legal basis;

‘then, on the other hand, that the’ solicitations’ noted by the court of appeal could not constitute the pressures provided for by the law, which must be sufficiently insistent and convincing to determine the suborned to make the expected declarations; that noting that the interlocutors of Mr. Txxxx had ‘asked him to modify his deposition’, the judgment under appeal raised only simple recommendations not punishable ‘;

On the seventh plea of ​​cassation proposed for Jean-Louis Dxxxx and taken from the violation of articles 434-15 of the Penal Code, 591 and 593 of the Code of Criminal Procedure, lack of response to conclusions, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Jean-Louis Dxxxx guilty of having, during 1994, exerted pressure on two witnesses and an accused to modify their depositions and declarations and condemned him on this count;

‘while in his conclusions of appeal regularly filed, Jean-Louis Dxxxx argued that the witnesses, MM. Txxxx and Bxxxx, either at the bar of the court, or at the instruction, clearly affirmed not to have, according to them, under any pressure on behalf of the defendant; that the appellate judges could not therefore declare the bribery of witnesses characterized without having responded to its argument noting any pressure, knowing that this element is assessed subjectively, that by refraining from answering it, the judges violated the aforementioned texts’;

On the eighth plea of ​​cassation proposed for Jean-Louis Dxxxx and taken from the violation of articles 434-15 of the Penal Code, 591 and 593 of the Code of Criminal Procedure, lack of response to conclusions, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Jean-Louis Dxxxx guilty of having during 1994 exerted pressure in a direct and indirect way on Marc-Michel Mexxxx so that it modifies its declarations and condemned it on this count;

‘on the grounds that Marc-Michel Mexxxx made precise statements relating the direct pressure to which he had been subjected by Jean-Louis Dxxxx, and indirect through the intermediary of Me Philippe Gumery who would have notably encouraged him to modify his initial statements by coming to see him every ten days at his home and by giving him a letter to be copied and sent to the examining magistrate at the end of which he reconsidered his testimony, letter having served as a model for the letter addressed , on July 12, 1994, to the investigating magistrate, at a time when the witness already indicted was psychologically and physically tired as a result of this investigation;

accusation denouncing the conditions of police custody and indicating that their client would reconsider his testimony given to the police in view of the harassment to which he had been the object; that, therefore, the judges of appeal could not declare the bribery of witnesses characterized without having responded to his argument indicating the express will of Marc-Michel Mexxxx to go back on his initial declarations knowing that this will was manifested by the aforementioned request drafted by his other counsel, Me Chaîne and this, while he could always send a letter to the examining magistrate to relinquish Me Gumery; that by refraining from responding to it, the appellate judges violated the aforementioned texts’; appeal could not declare the bribery of witnesses characterized without having responded to his argument stating the express will of Marc-Michel Mexxxx to go back on his initial declarations knowing that this will was manifested by the aforementioned request drafted by his other counsel, Me Chaîne and this, while he could always send a letter to the examining magistrate to relieve Me Gumery; that by refraining from responding to it, the appellate judges violated the aforementioned texts’; appeal could not declare the bribery of witnesses characterized without having responded to his argument indicating the express will of Marc-Michel Mexxxx to go back on his initial declarations knowing that this will was manifested by the aforementioned request drafted by his other counsel, Me Chaîne and this, while he could always send a letter to the examining magistrate to relieve Me Gumery; that by refraining from responding to it, the appellate judges violated the aforementioned texts’; he could always send a letter to the examining magistrate to relieve Mr. Gumery; that by refraining from responding to it, the appellate judges violated the aforementioned texts’; he could always send a letter to the examining magistrate to relieve Mr. Gumery; that by refraining from responding to it, the appellate judges violated the aforementioned texts’;

The means being united;

Whereas the statements of the judgment under appeal put the Court of Cassation in a position to ensure that the Court of Appeal, for reasons free of insufficiency or contradiction and responding to the peremptory heads of the conclusions before it, has characterized in all its constituent elements, both material and intentional, the crime of witness tampering of which it has declared the defendants guilty;

From where it follows that the means, which are limited to questioning the sovereign appreciation by the judges of the merits of the facts and circumstances of the case contradictorily debated, cannot be accepted;

But on the single means of cassation proposed for the Federal Union of Consumers and taken from the violation of Article L. 421-1 of the Consumer Code, Articles 2, 3 and 593 of the Code of Criminal Procedure, failure to reasons and lack of legal basis;

‘in that the contested judgment dismissed the Union Fédérale des Consommateurs’ Que Choisir’, the plaintiff organization, of its claim for compensation for the material damage caused to the collective interest of consumers by the facts constituting the offenses of active corruption and passive retained in this case;

‘on the grounds that active and passive corruption offenses are not likely to harm the collective interest of consumers;

” whereas no offense having caused direct or indirect damage to the collective interest of consumers is excluded from the provisions of article 1 of the law of January 5, 1988, now article L. 421-1 of the Code of consumption, which allows approved consumer associations to exercise the rights granted to the civil party in relation to facts detrimental to the collective interest of consumers; that proceeding to such an exclusion, the court of appeal ignored the applicable provisions;

‘then, moreover, that, as a result of this erroneous assertion, the Court of Appeal did not respond to the head of the pleadings of the plaintiff plaintiff, stressing that it was the consumer who had’ paid the price ‘for the all of the incriminated operations, the resulting financial charges necessarily being reflected in the prices of the services sold, so that it was the water consumer who had to bear this hidden financing; that this was all the more obvious as the prices of water in the city of Grenoble had considerably increased since the privatization thus operated; that the crimes thus committed still resulted in prejudice arising from the infringement of economic regulations and the texts required by security, the economic inferiority and consumer misinformation; that failing to have responded to these heads precise conclusions of the plaintiff which resulted the damage brought to the collective interest of consumers, the Court of Appeal did not legally justified its decision;

Having regard to the said articles;

Whereas no offense having caused direct or indirect damage to the collective interest of consumers is excluded from the provisions of paragraph 1 of article L. 421-1 of the Consumer Code;

Whereas, to rule out the request of the Federal Union of Consumers ‘Que Choisir’, an approved association, which had become a civil party in the prosecution of the head of corruption against Alain Cxxxx, Marc-Michel Mexxxx and Jean-Jacques Pxxxx the second degree court states ‘that the offenses of active and passive corruption are not likely to harm the collective interest of consumers’;

But expected that by ruling thus, the Court of Appeal ignored the meaning and scope of the aforementioned text;

FOR THESE REASONS,

I – On the appeals of Alain Cxxxx, Jean-Louis Dxxxx Jean-Jacques Pxxxx, Louis Bxxxx and Frédéric Mxxxx:

REJECTS THEM;

II – On the appeal of the Federal Union of Consumers ‘What to Choose?’ :

BREAKS AND ANNULS the above-mentioned judgment of the Lyon Court of Appeal, dated July 9, 1996, in its only provisions relating to the civil action of the Federal Union of Consumers ‘Que Choisir?’, All other provisions being expressly maintained;

And so that he may be tried again, in accordance with the law, within the limits of the cassation thus pronounced,

REFERS the case and the parties to the Court of Appeal of Chambéry, to that designated by special deliberation taken in chamber of the council;

ORDERS the printing of this judgment, its transcription in the registers of the registry of the Court of Appeal of Lyon, its mention in the margin or following the partially annulled judgment.

On the report of Councilor SCHUMACHER, the observations of professional civil society WAQUET, FARGE and HAZAN, of professional civil society PIWNICA and MOLINIE, of professional civil society MASSE-DESSEN, GEORGES and THOUVENIN and of Me COSSA, lawyers in the Court, and the conclusions of Advocate General LUCAS; Mr. CULIE, President.


Cour de cassation
criminal chamber
Public hearing of Wednesday 22 April 1992
Appeal number: 90-85125
Published in the bulletinRejection

M Diémer, longest serving advisor, chairman
MR MASSE, rapporteur advisor
MR ROBERT, general counsel
ME BOUTHORS, SCP LESOURD ET BAUDIN, lawyer (s)


 

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

 

DISMISSAL of the appeals brought by:

– X … Samuel,

– X … Jean-Gédéon, known as “Edouard”,

against the judgment of the Court of Appeal of Saint-Denis de La Réunion, correctional chamber, dated July 26, 1990, which, for active corruption , abuse of corporate assets, sentenced them each to 18 months’ imprisonment, including 16 months suspended, 200,000 francs fine, ordered the confiscation of the sums and object seized and pronounced on the civil interests.

THE COURTYARD,

Joining the appeals because of the relatedness;

Having regard to the brief in demand common to the applicants and the defense;

On the first ground of appeal: (without interest);

On the second ground of appeal: (without interest);

On the third ground of appeal, alleging violation of articles 66 of the Constitution, 6 and 8 of the European Convention on Human Rights, 368 of the Penal Code, 53, 54, 63, 67, 591 and 593 of the Code of criminal procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal refused to annul the investigation of flagrante delicto and the subsequent proceedings;

“on the own and adopted reasons of the first judges that the state of flagrance is characterized as soon as it results from the findings of the trial judges that judicial police officers have noted apparent signs of criminal behavior revealing the existence of ” offenses meeting the definition of article 53 of the Code of Criminal Procedure; that the offense of corruptionactive provided for in articles 177 and 179 of the Penal Code is constituted as soon as offers are sent to an elected official to make or refrain from making an act of his functions or his employment (…); that on July 26, 1989 at 18 hours 30, MY … (D. 2) declared to the police officers to have been the object of offers on behalf of the defendants in exchange for a decision in their favor; that he added that an appointment had been made for the next day at 12 noon in order to concretize the operation by the delivery of a sum of 230,000 francs and a voucher for a van worth 79,000 francs; that having regard to the quality of elected representative of the victim and his precise and detailed statements, the judicial police officers were empowered to open an investigation of flagrante delicto; what’ notice given by the victim of an offense even before the registration of a regular complaint is sufficient to characterize the apparent signs of criminal behavior; that it also results from the minutes dimension D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; an offense even before the registration of a regular complaint is sufficient to characterize the apparent signs of criminal behavior; that it also results from the minutes dimension D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; an offense even before the registration of a regular complaint is sufficient to characterize the apparent signs of criminal behavior; that it also results from the minutes dimension D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; registration of a regular complaint is sufficient to characterize apparent signs of criminal behavior; that it also results from the minutes dimension D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; registration of a regular complaint is sufficient to characterize apparent signs of criminal behavior; that it also results from the minutes dimension D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; criminal behavior; that it also results from the minutes quotation D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; criminal behavior; that it also results from the minutes quotation D. 3 that MY … declared to have received on July 27 in the morning a sum of 200 000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; declared having received on July 27 in the morning a sum of 200,000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons; declared having received on July 27 in the morning a sum of 200,000 francs from the brothers X …; that the delivery of such a sum clearly constitutes an apparent indication (…); that in this case, the investigation was particularly rapid; as to the plea based on article 53, paragraph 2, of the Code of Criminal Procedure, that no offense had been committed when the investigators agreed to hide in the premises to overhear the conversation between Hilaire Y … and Edouard X …, it will be rejected for the same reasons;

“that in vain also, the defendants raise the nullity of the reports recording the remarks made between them in the office of Mr. Hilaire Y … (D. 4 and D. 5) on the grounds that these would have been established by trick or stratagem contrary to the principle of loyalty in the search for proof (…); that it is up to the judge, on the one hand, to weigh the gravity of the offense against the interest attached to the repression of the latter, to check, on the other hand, whether the stratagem in question served to provoke the offense or only to ascertain it (…); that if the repression of a minor offense – such as a adultery-affecting privacy is not worth invading it, the same does not apply to offenses seriously disturbing thepublic order – such as the offense of corruptionof an elected, hidden and difficult to prove offense, justifying in this case the stratagem used by the investigators; that it is also necessary to distinguish the ruse provoking the offense from that which is content to raise it; that only “active” ruse is prohibited; that on the other hand, the “passive” ruse during which the investigator confines himself to collecting conversations without intervening himself, for the sole purpose of obtaining evidence, must be allowed; finally, the ruse is admissible when the police, notified by a citizen of a crime or an attempted crime which threatens him and of which he is called upon to become the victim, urges the latter to lend itself to the machinations of delinquents to lull their mistrust by promising to intervene at the appropriate time; that this is indeed the case in the present case; that there is no causal link between the presence of the police and the commission of the offense; that there was no provocation on the part of the police services which simply used a stratagem to ascertain a crime and collect evidence thereof;

therefore no interference with an attribute of their home; that the two conversations in question took place at the Chambre des Métiers de La Réunion, a public establishment, in the office of MY .. and that they did not relate to the private or intimate life of the defendants but to their public or economic life ; that neither the future policy of Samuel X … nor the obtaining of a school transport market for the benefit of the company X … Brothers can come under the domain of private or family life protected by article 8 of the European Convention on Human Rights; that the decision of the plenary assembly of the Court of Cassation of November 24, 1989 is inoperative (judgment p. 3; judgment p. 6 to 10); public establishment, in the office of MY … and that they did not relate to the private or intimate life of the defendants but to their public or economic life; that neither the future policy of Samuel X … nor the obtaining of a school transport market for the benefit of the company X … Brothers can come under the domain of private or family life protected by article 8 of the European Convention on Human Rights; that the decision of the plenary assembly of the Court of Cassation of November 24, 1989 is inoperative (judgment p. 3; judgment p. 6 to 10); public establishment, in the office of MY … and that they did not relate to the private or intimate life of the defendants but to their public or economic life; that neither the future policy of Samuel X … nor the obtaining of a school transport market for the benefit of the company X … Brothers can come under the domain of private or family life protected by article 8 of the European Convention on Human Rights; that the decision of the plenary assembly of the Court of Cassation of November 24, 1989 is inoperative (judgment p. 3; judgment p. 6 to 10); a school transport market for the benefit of society X … Brothers cannot come within the domain of private or family life protected by article 8 of the European Convention on Human Rights; that the decision of the plenary assembly of the Court of Cassation of November 24, 1989 is inoperative (judgment p. 3; judgment p. 6 to 10); a school transport market for the benefit of society X … Brothers cannot come within the domain of private or family life protected by article 8 of the European Convention on Human Rights; that the decision of the plenary assembly of the Court of Cassation of November 24, 1989 is inoperative (judgment p. 3; judgment p. 6 to 10);

“1 °) whereas, on the one hand, in the absence of a current and apparent clue, the simple declaration of a complainant claiming to be the object of an offer of corruption – a putative offense of which the said complainant proposes to represent the future spectacle to the police – does not fall under the notion of flagrance;

“2 °) whereas, on the other hand, the Court of Appeal did not specify if and in what way MY …, having an office in the chamber of trades, could claim to be head of house, within the meaning of article 53, paragraph 2, of the Code of Criminal Procedure, and as such invite police officers into the cupboard of his office to overhear a conversation;

“3 °) whereas, on the third hand, by agreeing directly with the complainant to listen in an office cupboard to the conversation of the person concerned with third parties whom it was understood to make to formulate criminally reproachful offers, the investigators set up a stratagem constituting a prohibited provocation;

“4 °) then, finally, that eavesdropping on a conversation held in a professional office is prohibited; that the installation of a listening device, whatever the motives and the result, is sufficient to carry out a prohibited attack; that this is especially the case with the eavesdropping directly carried out by investigators hidden in a cupboard at the sole request of an interlocutor in order to establish minutes of a conversation directed by the complainant ” ;

Whereas, to characterize the state of flagrance criticized in the first and second branches of the plea, the contested judgment, adopting on this point the reasons for the judgment, notes that Hilaire Y …, mayor of the town of Salazie, has declared on July 26, 1989 to the police to have been the object of offers on behalf of the defendants to obtain from him a favorable decision or attitude in a public school transport market; he specified that an appointment had been made the next day for the delivery of a sum of 230,000 francs and a voucher for a van valued at 79,000 francs;

That in view of these findings of the elected representative of the victim, the details provided on the existence of an ongoing market in which the defendants and judges participated, after having rightly pointed out that the offense of active corruption is constituted when “offers” are addressed to an elected official to make or refrain from doing an act of his functions, deduce the existence of indices within the meaning of article 53 of the Code of penal procedure;

Whereas in this state, and without having to examine the complaint based on the violation of Article 53, paragraph 2, aforementioned, the application of which was superfluous in this case, the Court of Appeal legally justified its decision;

That in fact, in order for judicial police officers to be able to act in flagrante delicto, it is sufficient that they have knowledge of apparent signs of criminal behavior;

That the revelation made by the victim of an offense which is about to be committed characterized these clues;

Whereas, moreover, in order to set aside the argument taken up in the third and fourth limb of the plea and alleging the illegality of a stratagem which resulted in the transcription of a conversation, the judgment under appeal states that if it is correct that the police hid in MY’s office … to overhear the conversation he had with the defendants during which they gave him the sum previously provided and the voucher for the vehicle, such a process on the part of the investigators, remained passive, who “let happen the events”, was exclusive of any provocation towards the brothers X … to commit an offense;

That the Court of Appeal notes finally that the complaint of interference in the private life of the defendants is not established since the conversation relating to the investigation did not take place at their home; that there was no listening or telephone connection on their post and that the listened remarks related to the affairs of the commune of Salazie and not to the private life of the individuals;

Whereas, basing itself on such findings falling within its sovereign power of appreciation to say that the police had acted, without provocation, with the aim of finding an offense and gathering evidence thereof, the court of appeal had again given a legal basis for its decision;

That it follows that the plea is not founded in any of its branches;

On the fourth ground of appeal: (without interest);

On the fifth ground of cassation, alleging violation of articles 425 and 431 of the law of July 24, 1966, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the contested nursing judgment condemned the defendants on the count of abuse of corporate assets;

“on the grounds that the defendants had used their capacity as corporate executives of the two companies concerned to collect social funds in order to commit crimes, a goal which cannot coincide with the interests of the companies in question, all the more so that the withdrawals carried out led to the indictment of the leaders and to the seizure of the sums abusively withdrawn (judgment p. 3 in fine and p. 4, paragraphs 1 and 2);

“whereas in the absence of allocation of the incriminated levy to a foreign object in the interest of the companies concerned – either the personal interest of the directors, or the interest of a third party company – no abuse of corporate assets could be blamed on the warned; that wrongly, did the Court of Appeal assimilate to an abuse of corporate assets an expense, even ineffective, even blameworthy, exposed in the interest only of the companies concerned by the said levy “;

Whereas, for the reasons exactly reproduced in the means, the judgment under appeal declared the defendants guilty of abuse of corporate assets by holding that they had used their capacity as corporate officers to collect funds in order to commit crimes, aim which cannot coincide with the corporate interest;

Whereas in this state, the Court of Appeal, far from having violated the texts referred to in the means, made on the contrary the exact application;

That in fact, the use of the property of a company is necessarily abusive when it is done for an illicit purpose, which is the case here;

And considering that the stop is regular in the form;

DISMISSES the appeals.

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