Breach of Confidence and Dematerialized Securities
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Breach of Confidence and Dematerialized Securities

Court of Cassation
Criminal Chamber

Public hearing of May 30, 1996 Rejection


Appeal number: 95-82487
Published in the bulletin

President: Mr. Le Gunehec
Rapporteur: Mr. Culié.
Advocate General: M. Dintilhac.
Lawyers: SCP Le Bret et Laugier, SCP Ryziger and Bouzidi, M. Choucroy, SCP Masse-Dessen, Georges and Thouvenin, SCP Waquet, Farge and Hazan.

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

DISMISSAL of the appeals lodged by Tuffier Thierry, Py Georges, Souffrant Didier, Thilloy Jean-Michel, Spire Daniel against the judgment of the Paris Court of Appeal, 9th chamber, dated March 16, 1995, which convicted them, Thierry Tuffier, to 18 months’ suspended imprisonment and a fine of 500,000 francs for breach of trust and abuse of corporate assets; Georges Py, to 18 months suspended prison sentence and a fine of 400,000 francs for the same facts; Didier Souffrant, to 18 months suspended prison sentence and a fine of 300,000 francs for breach of trust; Jean-Michel Thilloy, to 12 months suspended imprisonment and 100,000 francs fine for complicity in breach of trust; Daniel Spire, to 15 months’ suspended imprisonment and 200,000 francs fine for breach of trust and abuse of corporate assets.
THE COURTYARD,

Considering the briefs produced;

On the first plea of ​​cassation presented by Me Choucroy, lawyer in the Court, for Didier Souffrant and taken of the violation of the old article 408 of the Penal Code, together article 593 of the Code of penal procedure, contradiction and lack of reasons , failure to respond to conclusions:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust both to the prejudice of BPN and the unitholders of FCP Sécurité Plus, and sentenced him to 18 months of suspended prison sentence and a fine of 300,000 francs;

“on the grounds that the exhibitor, who had signed the deposit contract between TRP and BPN on July 27, 1988, was the first to be informed that BPN retained ownership of these securities; and that the guarantees given to FCP Sécurité Plus were illusory and that the liquidity of these investment institutions had been knowingly misappropriated, under the cover of a traditional cash transaction, accompanied by the usual guarantees;

a contradiction of reasons, depriving its judgment of any legal basis with regard to old article 408 of the Penal Code; and tainted its decision with a lack of response to the conclusions, on the plea based on the radically incompatible character of the 2 breaches of trust retained by the Court of Appeal, violating Article 593 of the Code of Criminal Procedure “;

On the second ground of appeal presented for the same applicant and alleging violation of old article 408 of the Penal Code, together with article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the BPN, and condemned the latter to 18 months’ imprisonment suspended and a fine of 300,000 francs;

the only effect of the dematerialization of the security being that the proof of the possession of the security, which was no longer, by itself, individualized and individualizable, was no longer constituted by its material medium but by its registration in an account which was became the determining element having the force attached, before the dematerialization of the transferable securities, to the possession of the paper title; that the securities had been the subject of a so-called irregular deposit contract, and that the delivery of the securities was contrary to the common intention of the parties, as expressed by the deposit contract; that the embezzlement to the detriment of the BPN of the pecuniary value of the securities characterized the crime of breach of trust; was no longer constituted by its material support but by its registration in an account which had become the determining element having the force attached, before the dematerialization of the transferable securities, to the possession of the paper title; that the securities had been the subject of a so-called irregular deposit contract, and that the delivery of the securities was contrary to the common intention of the parties, as expressed by the deposit contract; that the embezzlement to the detriment of the BPN of the pecuniary value of the securities characterized the crime of breach of trust; was no longer constituted by its material medium but by its registration in an account which had become the determining element having the force attached, before the dematerialization of the transferable securities, to the possession of the paper title; that the securities had been the subject of a so-called irregular deposit contract, and that the delivery of the securities was contrary to the common intention of the parties, as expressed by the deposit contract; that the embezzlement to the detriment of the BPN of the pecuniary value of the securities characterized the crime of breach of trust; that the securities had been the subject of a so-called irregular deposit contract, and that the delivery of the securities was contrary to the common intention of the parties, as expressed by the deposit contract; that the embezzlement to the detriment of the BPN of the pecuniary value of the securities characterized the crime of breach of trust; that the securities had been the subject of a so-called irregular deposit contract, and that the delivery of the securities was contrary to the common intention of the parties, as expressed by the deposit contract; that the embezzlement to the detriment of the BPN of the pecuniary value of the securities characterized the crime of breach of trust;

“whereas, on the one hand, the penal texts are strictly applicable; thus, by extending the qualification of breach of trust to the misappropriation of dematerialized securities, that is to say of non-individualized intangible values and not individualizable, whereas the qualification of breach of trust supposed, with regard to the law applicable to the facts pursued, misappropriation of bodily things, the court of appeal falsely applied the old article 408 of the Penal Code;

“then, on the other hand, that by extending the qualification of breach of trust to the unnamed contract for the conservation of titles, in defiance of the restrictive legal enumeration of contracts likely to characterize a breach of trust, the court of appeal falsely applied article 408 of the Penal Code “;

On the third ground of appeal presented for the same applicant and alleging violation of former article 408 of the Criminal Code, together with article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the BPN, and condemned the latter to 18 months’ imprisonment suspended and a fine of 300,000 francs;

that the BPN had concluded on July 27, 1988 a deposit contract which could not be held for ordinary; that this agreement included very precise provisions, in its article 1 which deprived Didier Souffrant of any initiative in the management of securities, or any possibility of relinquishing it, and in its articles 2 bis, 3 and 4 which reinforced the unavailability securities by providing that BPN could not be a debtor, and that all transactions would be brought to the attention of BPN; that the securities had been delivered with a special allocation clause making them unavailable and not allowing the depositary to use them other than within the framework of the formal instructions given by it to the brokerage firm; that it therefore appeared that before each OAT transaction, the directors of the company TRP, only to know the names of the owners of the securities, were required to ensure that the securities repurchased were those belonging to TRP and not those of the clients, and, in any event, to ensure to leave at all times in the BPN account a sufficient quantity of OAT of the same type as those deposited by BPN so as to be able, at any time, to comply with its obligation to return to this bank, in kind and in number, of the OATs received from it as depositary as well as at its instructions; that the diversion was characterized; ensure that a sufficient quantity of OATs of the same type as those deposited by BPN is permanently left in the BPN account so as to be able, at any time, to comply with its obligation to return to this bank, in type and number of OATs received from it as depositary as well as at its instructions; that the diversion was characterized; ensure that a sufficient quantity of OATs of the same type as those deposited by BPN is permanently left in the BPN account so as to be able, at any time, to comply with its obligation to return to this bank, in type and number of OATs received from it as depositary as well as at its instructions; that the diversion was characterized;

“whereas, on the one hand, fungibility implies the right to dispose and the obligation to return only as an equivalent; that as soon as the Court of Appeal had found that the irregular deposit related to fungible securities, and that the company had the obligation to ensure that the BPN account permanently left a sufficient quantity of OATs to comply at all times with its obligation of restitution in kind and in number of OATs received, it could not, without disregarding its own findings, retain the unavailability in kind of securities and therefore breach of trust, so that the court of appeal did not legally justify its decision with regard to old article 408 of the Penal Code;

“then, on the other hand, by not making any finding capable of establishing, by refuting the conclusions of Didier Souffrant, that the company TRP had failed in its obligation to keep a sufficient quantity of customer vouchers to satisfy its obligation to return, and had repurchased securities exceeding in value its own securities, the court of appeal tainted its decision with a failure to respond to the conclusions, violating Article 593 of the Code of Criminal Procedure;

On the fourth ground of appeal presented for the same applicant and alleging violation of former article 408 of the Criminal Code, together with article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the BPN, and condemned the latter to 18 months’ imprisonment suspended and a fine of 300,000 francs;

in accordance with the practices of the Paris market place, in the absence of regulations, then afterwards by application of the marketplace agreement of June 1990 regulating these uses, the repurchase agreement resulting in the transfer of ownership to the benefit of the UCITS within the framework of of the market place agreement, or by repurchase agreements, which resulted in the unavailability of the securities, this placing in a file constituting a loan guarantee without dispossession of the securities; that, in both cases, the misappropriation of the securities of the clientele was characterized since, by the process of the repo delivered, the client was deprived of his very right of property in that there was a transfer for the benefit of the ‘UCITS, and that, by the filing, the depositor was deprived of the

“whereas, on the one hand, repo transactions under file, as Didier Souffrant had shown in his conclusions, were to be qualified as” blank loan “, and did not involve any transfer of rights on opposable securities to third parties, and in particular to BPN, so that by retaining the breach of trust in the absence of any misappropriation affecting the rights of BPN on the securities handed over to the brokerage firm TRP, the court of appeal violated old article 408 of the Penal Code;

“then, on the other hand, that Didier Souffrant had also shown that the repo transactions delivered could not at the material time have resulted in a transfer of property enforceable against the BPN, insofar as the condition laid down by article 6 of the market agreement of June 18, 1990, relating to the repurchase agreement by transfer of securities to an account opened in the name of the assignee or his principal in an authorized establishment, was impossible to fulfill in the context of a past transaction between a brokerage firm and its UCITS, since the lender did not have a personal account with SICOVAM but only with its own depositary, and that in addition, before legislative intervention, the contractual clause ofattribution of the property of the pledge would have come up against the prohibition of commissory pacts so that by retaining the qualification of breach of trust without explaining the impossible nature in law of the misappropriation due to the absence of any transfer of right of ownership of the repo transaction enforceable against the BPN the court of appeal:

“tainted its decision with a failure to respond to the conclusions, violating article 593 of the Code of Criminal Procedure;

“and did not legally justify its decision under the old article 408 of the Penal Code;

“without explaining the fact that the embezzlement is impossible in law because, under the rule of the law in force at the time of the alleged acts, of the prohibition of commissory pacts, the court of appeal:

“tainted its decision with a failure to respond to the conclusions, violating article 593 of the Code of Criminal Procedure;

“and has not legally jusitified its decision with regard to old article 408 of the Penal Code”;

On the fifth plea of ​​cassation proposed for the same applicant and alleging violation of former article 408 of the Criminal Code, together with article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the BPN, and condemned the latter to 18 months’ imprisonment suspended and a fine of 300,000 francs;

“on the grounds that Didier Souffrant had negotiated the contract of July 27, 1988 with BPN, that he was aware of the repurchase transactions as well as the results of the inspection of the brokerage firm, that he did not not particularly reacted with regard to the general situation of the treasury and repurchase of securities of the customers, that he had not had any reactions when had been invoked before him the repurchase of securities of the customers that Didier Souffrant, with full knowledge of the unlawful nature of his actions, violated the obligations binding the brokerage firm TRP to BPN;

“while, on the one hand, by not opposing any rebuttal to the conclusions of Didier Souffrant, who argued that, since the brokerage firm TRP had not repoed a number of securities exceeding in value the importance of its own securities portfolio, and prohibiting it from meeting its obligation of equivalent return, the company directors could legitimately be aware of participating in a regular and lawful repurchase transaction, which excluded the intention of committing a misappropriation of funds. , the Court of Appeal tainted its decision with a failure to respond to the conclusions, violating Article 593 of the Code of Criminal Procedure;

“then, on the other hand, that by confining himself to reporting on the conclusion by Didier Souffrant of the agreement of July 27, 1988, of his knowledge of mass pulling operations and of his lack of reaction to certain information , without characterizing an active voluntary participation in the commission of the alleged diversions, the court of appeal did not legally justify its decision with regard to the moral element of the breach of trust and the old article 408 of the Penal Code “;

On the first appeal presented by professional civil society Ryziger and Bouzidi for Georges Py and alleging violation of article 408 of the Penal Code, of article 1915 of the Civil Code, of article 94-II of the Law of December 30, 1981, of the implementing decree of May 2, 1983, of articles 485, 593 of the Code of Criminal Procedure:

“in that the impugned decision found the plaintiff guilty of breach of trust to the prejudice of the Banque Populaire du Nord;

to a current account in the name of each of the affiliates of this body, which are the authorized depositaries; that this same law of December 30, 1981 and the aforementioned implementing decree in no way set out the principle of a transfer of property for the benefit of the depositary resulting from the transformation of the right of ownership into a right of debt with regard to the owner ; that it is thus in vain that it is maintained that the deposit in SICOVAM in the name of the financial establishment would be the proof of the property of TRP on the titles; that the deposit said to be irregular as relating to fungible things and which only imposes on the depositary an obligation of return by equivalent, since no particular clause of unavailability or special allocation of securities has been provided, cannot by itself give rise, in the event of non-return, to criminal fraud; whereas this rule may however be waived when specific clauses have been stipulated in the irregular deposit contract expressly limiting the possibility for the depositary to dispose of the securities entrusted under the conditions provided for by these clauses; that such is the case in the present case because of the clauses appearing in the agreement concluded between the People’s Bank on July 27, 1988 with TRP from which it resulted that TRP was withdrawn from any initiative in the management of the securities and could not relinquish it until by order of the depositor; that, it is voluntarily and with full knowledge of the facts that, in order to try to deal with the cash flow difficulties of the brokerage firm TRP, the directors of the company used the securities deposited by the BPN for the sole benefit of this company, by resorting to the repurchase agreement process or the repurchase agreement on file with the brokerage firm; that, in both cases, the misappropriation is characterized as soon as by the process of the repo delivered the customer is deprived of his very right of property in that there is a transfer for the benefit of the OCPVM and that by placing under file, the depositor is deprived of the exercise of his right of owner because of the pledge of the title; that the first judges were wrong to consider that the dematerialized securities in application of article 94-II of the finance law of December 30, 1981 and of the aforementioned implementing decree of May 2, 1983 therefore constituted intangible rights and that
other writings as referred to in article 408 of the Penal Code; that securities, whether or not they are dematerialized, are only a mode of use and circulation of money; that the document dematerialized by registration in the account held by the issuing legal person or by an intermediary is always the object of a right of ownership which is exercised on the sum of money that it represents; that thus, the holder of the title thus retains a real right of the property on the material value of the title being the subject of the registration in account;

“then, on the one hand, that the offense of breach of trust presupposes the prior delivery of bills, money, goods, tickets, receipts, or any other writings containing or operating an obligation or discharge; that the entry into account the amount of a value whose support is not materialized cannot constitute a discount within the meaning of article 408 of the Penal Code;

“then, on the other hand, that the embezzlement is not criminally punishable under article 408 of the Penal Code only if it relates to the writing noting the contract but not on the stipulations which constitute its legal substance; that, consequently, the use of the right represented by a dematerialized value, even to the detriment of the holder of the right, cannot constitute the misappropriation of one of the things enumerated by article 408 of the Penal Code “;

On the second ground of appeal presented for the same applicant and alleging violation of article 408 of the Penal Code, of article 1915 of the Civil Code, of article 94-II of the law of December 30, 1981, of implementing decree of 2 May 1983, articles 1134 and 1915 of the Civil Code, articles 485, 593 of the Code of Criminal Procedure:

“in that the impugned decision found the plaintiff guilty of breach of trust to the prejudice of the Banque Populaire du Nord;

to a current account in the name of each of the affiliates of this body, which are the authorized depositaries; that this same law of December 30, 1981 and the aforementioned implementing decree in no way set out the principle of a transfer of property for the benefit of the depositary resulting from the transformation of the right of ownership into a right of debt with regard to the owner ; that it is thus in vain that it is maintained that the deposit in SICOVAM in the name of the financial establishment would be the proof of the property of TRP on the titles; that the deposit said to be irregular as relating to fungible things and which only imposes on the depositary an obligation of return by equivalent, since no particular clause of unavailability or special allocation of securities has been provided, cannot by itself give rise, in the event of non-return, to criminal fraud; whereas this rule may however be waived when specific clauses have been stipulated in the irregular deposit contract expressly limiting the possibility for the depositary to dispose of the securities entrusted under the conditions provided for by these clauses; that such is the case in the present case because of the clauses appearing in the agreement concluded between the People’s Bank on July 27, 1988 with TRP from which it resulted that TRP was withdrawn from any initiative in the management of the securities and could not relinquish it until by order of the depositor; that it is voluntarily and in full knowledge of the facts that, in order to try to cope with the cash flow difficulties of the brokerage firm TRP, the directors of the company used the securities deposited by the BPN for the sole benefit of this company, by resorting to the repurchase agreement process or the repurchase agreement on file with the brokerage firm; that, in both cases, the misappropriation is characterized since, by the process of the repo delivered, the customer is deprived of his very right of property in that there is a transfer for the benefit of the OCPVM and that by the filing, the depositor is deprived of the exercise of his right of owner because of the pledge of the title; that the first judges were wrong to consider that the dematerialized securities in application of article 94-II of the finance law of December 30, 1981 and of the aforementioned implementing decree of May 2, 1983 therefore constituted intangible rights and that
other writings as referred to in article 408 of the Penal Code; that securities, whether or not they are dematerialized, are only a mode of use and circulation of money; that the document dematerialized by registration in the account held by the issuing legal person or by an intermediary is always the object of a right of ownership which is exercised on the sum of money that it represents; that thus, the holder of the title thus retains a real right of the property on the material value of the title being the subject of the registration in account;

“then, on the one hand, that the delivery of an object of a fungible nature constitutes an irregular deposit; that this is the case, in particular, of the delivery of transferable securities, in which the depositor loses ownership of the things deposited, so that the irregular deposit operates the transfer of the property; that it follows that the non-return of fungible object which has been the subject of an irregular deposit cannot constitute a misappropriation within the meaning of article 408 of the Penal Code; so that assuming that the simple recording of the value of dematerialized securities in an account could constitute a discount within the meaning of Article 408 of the Criminal Code, the fact remains that the discount would relate to a fungible thing and would necessarily constitute an irregular deposit;

“then, on the other hand, and in the alternative, that, if the breach of trust can be constituted when the fungible things have been handed over to the charge of making a specific use of them, this is only the case when this surrender is made as a warrant; in the present case, the plaintiff was prosecuted for having misappropriated things he had received as a deposit; that the plaintiff was not prosecuted for having received OATs as a warrant and that, moreover, it does not follow from the contested decision that TRP received an order from the Banque Populaire du Nord to make a specific investment; that the bank only reserved the possibility of giving instructions, but that the judgment does not find that she gave special instructions “;

On the third ground of appeal presented for the same applicant and alleging violation of article 408 of the Penal Code, violation of articles 485, 593 of the Code of Criminal Procedure:

“in that the contested decision declared Georges Py guilty of the breach of trust which it considers to have been committed to the detriment of the BPN;

they implied disposing of securities belonging not to the company TRP but to the BPN; that if, during his hearing before the COB, the defendant declared that neither he nor the other leaders of the TRP had considered that the company TRP was in a critical situation and that the suspension of the payments of TRP was unpredictable and irresistible, as early as November 23, 1989, the interested party reported financing needs of around 380,000,000 francs, whereas the actual working capital available for the financing of activities was only 40,000,000 francs, and pointed out that the financial situation was fragile and that the sustainability of the operation depended on repetitive but uninsured short-term financing; than to the question of the investigators to know if the short position of a remunerated pension account was possible, he replied that he was unaware of the existence of such an account, explaining that having a short position meant having sold securities that one did not own but that one had undertaken to procure, which was notably the case for counterparty transactions; that, although having admitted that the repo transactions between TRP and UCITS did not relate to counterparty transactions but to market transactions, he indicated that in the mind of Jean-Michel Thilloy they did indeed have this character of a temporary position which could have justified this seller’s registration on his part; that she maintained that Jean-Michel Thilloy would never have proceeded thus; that Jean-Michel Thilloy, after having affirmed that the
always acted according to the instructions of the direction, that is to say, since the departure of Mr. Guionnet, those of Georges Py; that Mr. Veverka, who held the position of head of the placement service at the Commission des operations de bourse, told the judicial police officer that it was Georges Py who was the director of TRP in charge of UCITS and that ‘he had an in-depth technical knowledge of it as well as of the bond market; that Mr. Guionnet, engaged in TRP as central director from July 1, 1989, affirmed that all the orders relating to the financial activity emanated primarily from the general direction and, in particular for him, of Georges Py; that it was clear that Jean-Michel Thilloy had neither the power and would never have taken the initiative to borrow funds from UCITS without a direct order from a superior, in this case Georges Py; that Georges Py affirmed before the investigators that he was not aware of the repo transactions delivered in June and July 1990 between TRP and the UCITS until July 10, 1990, that is to say after the cessation of payments of facto decided by the Treasury on July 6; that however Thierry Tuffier, after having argued that in the days preceding the bankruptcy filing he had been mainly occupied by the search for solutions to the problem of continuation and of the group’s strategy, indicated that at one point Georges Py had told him, with regard to UCITS, they took the solution of the pension delivered, claiming not to have known from whom this solution emanated to which his collaborator thus alluded; that, in front of the examining magistrate, Georges Py clarified, with regard to titles of the conservation belonging to third parties we were all 3 (Thierry Tuffier, Didier Souffrant and me) of agreement in considering that we could not use these titles except loans granted by these third parties; that he was unable to inform the investigating magistrate of the exact reasons why the repo transactions under file had not been recorded in the books of the brokerage firm while the sums remained recorded in the accounts of the UCITS ; that he nevertheless indicated that, although no one pointed out this apparent anomaly to him, it could be explain by the fact that this made no difference to the cash balance of TRP which was satisfied with an extra-accounting document; that, although the contract concluded by TRP with the BPN on July 27, 1988 was signed by Didier Souffrant, Georges Py alleged, before the examining magistrate, that he had only learned about it between July 10, 1990 and the beginning of the August ; that, during his hearing by the COB mission manager on September 14, 1990, he indicated that the form of pensions delivered taken for short-term investments of UCITS was recent; that, until the end of June, operations took the traditional form of reverse repo; that the pension delivered was formalized by a place agreement which was sent by a letter from the French Association of Brokerage Companies dated June 18, 1990; that the managers therefore wished to place their operation in this new framework since it was recommended and that it maintained, against all likelihood, that this clarification in
his answer came from the examination he had made “ex post”; that on April 27, 1990 Jean-Michel Thilloy had resigned by letter in order to give notice to July 31, 1990, explaining to Ms. Dupard, director of human resources of the Tuffier and associates holding company and of the brokerage firm, that he did not could no longer work under the conditions imposed on him by the general management and, in particular, by Georges Py, adding that they wanted to do things that displeased him; that, according to Daniel Spire, Georges Py was not unaware of the operations of repo, because he could not not be informed by his functions of the situation of the load; that finally, Georges Py, contrary to the intention he had expressed during the meeting of the council of administration of the company Tuffier et Associés from June 13, 1990, to proceed as a first step with the stopping of the activity on the OAT, allowed these operations to continue in particular as regards the operations incriminated from June 5 to July 10, 1990; that with regard to the operations of renewal-reduction pensions of 10 July 1990, he admitted having taken sole responsibility for it; that the contested decision deduces from these statements that Georges Py (with Thierry Tuffier and Didier Souffrant), with full knowledge of the unlawful nature of the reported acts, violated the obligations binding the brokerage firm TRP to the company Banque Populaire with regard to the express stipulations the contract of September 27, 1988 by repoing the OATs deposited by this bank without the latter’s knowledge with UCITS,

“then, on the one hand, that it does not follow from the contested decision that the applicant materially carried out the disputed transactions and the transfer of the securities to UCITS; that he could not, where appropriate, in the light of the statements made by judgment, to be guilty only of complicity by instructions given but that the applicant was not prosecuted for complicity and was not convicted for such, so that the contested decision which condemns the applicant as principal perpetrator is not not legally justified;

repo delivered or repo on file, securities belonging to BPN; that the contested decision is at least insufficiently motivated;

“then, finally, that it follows from the findings of the judges on the merits that Georges Py, on July 10, gave instructions for the withdrawal of UCITS up to 90%; that he declared that he could not do more; that the fact of not having been able to completely disengage the UCITS and to have allowed the renewal of 10% of the sums committed to take place, could not constitute a misappropriation within the meaning of Article 408 of the Penal Code “;

On the first appeal presented by the professional civil society Le Bret and Laugier for Thierry Tuffier and alleging the violation of articles 408 of the former Penal Code, 1134 of the Civil Code, 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis:

“in that the contested nursing judgment declared Thierry Tuffier, in his capacity as Chairman and CEO of a brokerage firm, guilty of breach of trust to the detriment of BPN due to the deposit of securities made by this bank ;

formal instructions; that, in accordance with the practices of the place of Paris, then after application of the market agreement of June 1990 regulating these uses, the repo was carried out either by the repo delivered, resulting in the transfer of property for the benefit of the Transferee UCITS, within the framework of the market agreement, or by repurchase agreement, constituting a loan guarantee without dispossession of the securities; that, in both cases, the misappropriation is characterized, since, by the process of the repo delivered, the client is deprived of his very right of ownership in that there is a transfer for the benefit of the UCITS and that , by filing, the depositor is deprived of the exercise of his right of ownership by pledging the title; that the first judges considered for their part that the dematerialized securities in application of articles 94-II of the finance law of December 30, 1981 and of the decree of May 2, 1983 constituted intangible rights and could not be assimilated to “effects , tickets, receipts, or any other writings “, referred to in article 408 of the Penal Code; that the first judges therefore inferred from these findings that the disputed obligations were not liable to be the subject of a deposit, within the meaning of Article 1915 of the Civil Code, and that in the absence of delivery of a corporeal movable, article 408 could not be applied; whereas, however, transferable securities, whether or not they are dematerialized, are only a mode of use and circulation of money; that the document dematerialized by registration in an account, held by the issuing person or by an authorized intermediary, is always the object of a right of ownership over the sum of money that it represents and of which the amount is known, at any time, by its stock exchange quotation; that the misappropriation to the detriment of the BPN of the pecuniary value of the securities, represented by its stock exchange rating, characterizes the crime of breach of trust; that the diversion of OATs was therefore used to try to find, through these repurchase agreements and repurchase agreements under file, significant advances of funds, constituting with the overdrafts granted by the SBF, the main source of financing of the brokerage firm; that it was obvious that the situation of the charge was irreparably compromised,
that the offense of breach of trust is therefore characterized in all its elements to the charge of the 3 defendants;

“then, on the one hand, that the breach of trust, punished according to the provisions applicable at the material time, means a reversal of the precarious possession of the person to whom the thing was delivered by virtue of one of the exhaustively enumerated contracts; that thus, breach of trust is characterized only if it relates to a tangible good, to the exclusion of all goods devoid of any material existence, such as securities dematerialized and devoid of its own individuality; that, therefore, the Court of Appeal, by holding that securities, were they dematerialized, were only a mode of use and circulation of money and were always the object of a property right exercising on the sum of money thatthey represented, violated by false application the texts referred to by means;

“then, on the other hand, that the Court of Appeal could not without contradicting itself, on the one hand, that the deposit of the securities made by the BPN in the hands of TRP was irregular as relating to dematerialized and fungible securities , such an agreement having the effect of making the brokerage firm the owner of the securities deposited, and retaining, on the other hand, that the securities thus delivered were unavailable by virtue of either a special allocation clause or a clause requiring TRP to carry out transactions on these securities only on instructions from BPN; that the fungibility of the securities had the consequence of imposing on TRP only the obligation to return per equivalent, so that the contested judgment does not has not legally justified theexistence of the deposit contract likely to authorize the application to the accused of the provisions of article 408 of the Penal Code;

“then, moreover, that the judges of the second degree were not entitled to deduce the misappropriation of the only execution of a delivered pension, which would have the effect of depriving the client of his right of property; that the manager of the company TRP, made owner of the securities of the BPN by the only agreement signed with this one, was therefore insusceptible to commit a misappropriation of title, of which it had necessarily the free disposal;

“then, finally, that the existence of a prejudice is essential for the demonstration of the offense of breach of trust; that the contested judgment, failing to respond to the conclusions of Thierry Tuffier stressing that the only failure to remit securities at the BPN resulted from the decision of the receiver, who had carried out a proportional reduction between certain depositors, and thus allowed the buyer to recover, after the conclusion of all the transactions, an amount of 385 million francs of treasury, which would have made it possible to return the OATs registered in the name of the BPN, is vitiated by a flagrant lack of motivation “;

On the single appeal presented by the professional civil society Masse-Dessen, Georges and Thouvenin for Jean-Michel Thilloy and taken from the violation of article 408 of the old Penal Code as well as of article 593 of the Code of criminal proceedings, lack of reasons and lack of legal basis:

“in that the contested nursing judgment declared guilty of complicity in breach of trust, to the detriment of a bank (BPN), the former director of the treasury (Jean-Michel Thilloy, the applicant) of a brokerage firm (the company TRP) depositary of securities (OAT);

ensure that a sufficient quantity of OATs of the same type as those deposited is permanently left in the bank’s account so as to be able, at all times, to comply with the contractual obligation to return, in terms of type and number , OATs received; that the first judges had considered, for their part, that dematerialized securities, in application of article 94-II of the finance law of December 30, 1981 and the decree of May 2, 1983, therefore constituted intangible rights not which can be assimilated to “bills, bills, receipts or any other writings” as referred to in article 408 of the Penal Code; that they had inferred from this that the disputed obligations were not liable to be the subject of a deposit within the meaning of article 1915 of the Civil Code and that in the absence of delivery of tangible furniture, article 408 could not be applied in the present case; that, however, the transferable securities whether or not dematerialized were only a mode of use and circulation of money; that the document dematerialized by registration in an account, held by the issuing person or by an authorized intermediary, was always the object of a right of ownership exercised on the sum of money that it represented and of which knew the amount at all times by its stock exchange quotation; that thus, the holder of the title retained a real right of ownership on the material value of the title being the object of the entry in account; that the repurchase agreement of the securities of the brokerage firm, as a guarantee of personal transactions, was clearly contrary to the common intention of the parties as expressed by the deposit contract; that the brokerage firm had failed in its obligations to conserve and return the securities; that ensued that the misappropriation, to the detriment of the bank, the pecuniary value of the securities, represented by their quotation mark, characterized, thereby, the crime of abuse of confidence; that by repoing the securities deposited by the bank, the officers of the brokerage firm had, with full knowledge of the unlawful nature of their actions, violated the contract which prohibited, except with formal instructions from the depositor, any act of disposal on these titles that they were required to return at any time in type and number;
equivalent number of OATs; that the plaintiff, for his part, had knowingly participated in the material realization of the repurchase agreements of the securities, in particular by the signing of the endorsements of the repurchase transactions delivered (see contested judgment, p. 18, recitals no. s 3 and 4; p. 20, recital 1, to p. 21, penultimate paragraph; p. 24, 1st recital, to p. 25, paragraph 2; p. 37, last recital, to p. 38, paragraph 4);

“whereas, on the one hand, according to the provisions applicable at the material time, the breach of trust constitutes an attack on the property of others carried out by means of an inversion of his precarious possession by the person to whom it is thing has been delivered by virtue of one of the exhaustively listed titles; that the piece of furniture that is the subject of the breach of trust, an offense based on the concept of material possession, is necessarily a tangible thing (effects, money, goods, tickets, receipts or any other writings …) to the exclusion of intangible assets such as dematerialized securities without their own individuality;

“whereas, on the other hand, the embezzlement is only criminally reprehensible if it relates to the object of the remittance, and not to a sum of money representing its pecuniary consideration at a given time;

“whereas, finally, to be punishable, complicity requires a culpable intention on the part of its perpetrator, which consists not only of a voluntary participation in the act of the principal perpetrator but also of the awareness of the help thus brought to a offense; in the present case, the court of appeal did not characterize the offense in its intentional element, failing to have noted not only that the plaintiff was aware of the specific provisions of the contract binding the brokerage firm to the bank and prohibiting the repo of OATs deposited by this client but, moreover, that he was personally aware that the brokerage firm could not return, in kind and in number, the securities which had been entrusted to him “;

And on the same means taken up by Me Choucroy for Didier Souffrant, as necessary:

The means being united;

Whereas it emerges from the judgment under appeal that in 1989 and 1990, the brokerage firm Tuffier-Ravier-Py (TRP), experiencing cash flow difficulties, sought liquidity through short-term loans from financial institutions. collective investment in transferable securities (UCITS) and mutual funds (FCP) of the “Tuffier et associés” group Sécurité Plus, Pact-Arbitrage and Pact-Plus these loans being guaranteed by the repurchase of securities belonging to customers and in particular the Banque Populaire du Nord (BPN);

That the French stock exchange company having, after various warnings against the permanent overdraft of the company TRP, noted on July 13, 1990 its state of suspension of payments and pronounced its total suspension of activity, the commercial court of Paris opened July 19 following a judicial reorganization procedure; that the receiver proceeded to a proportional distribution of the titles existing between the customers of the load, involving for the BPN a prejudice of 65 million francs;

Whereas at the end of the information opened on these facts on September 27, 1990, following in particular a letter addressed to the public prosecutor by the president of the Commission des Opérations de Bourse, Thierry Tuffier, Georges Py and Didier Suffering, respectively president, vice-president and general manager of the company TRP, are prosecuted for having, during June and July 1990, diverted or dissipated to the detriment of the BPN, assimilable bonds of the Treasury (OAT) which had been delivered to them to deposit title, on condition of returning or representing them; that Jean-Michel Thilloy, director of the treasury of TRP, is being prosecuted for complicity in this breach of trust, by aid and assistance;

Whereas the first judges acquitted the defendants, reason taken from the fact that the securities no longer being, by virtue of article 94-II, § 1, of the finance law of December 30, 1981 and of the decree of 2 May 1983 entered into force on November 3, 1984, materialized only by an entry in the account of their owner, kept by the issuing legal person or by an authorized intermediary, could not be assimilated to “bills, notes, receipts or any other writings” covered by article 408 of the then applicable Penal Code;

Whereas, to declare the accused perpetrators or accomplices of breach of trust by misappropriation of 33,400 OAT, the court of appeal states that the only consequence of the “dematerialization” of the securities is to allow the proof of their detention, not by their material medium but by their registration in an account, which retains the strength previously attached to possession of the paper title;

Whereas the judgment under appeal further notes that the deposit contract, if it relates to fungible things, imposes on the depositary an obligation to return, punishable by law when it expressly limits the possibility for the depositary to dispose of the things entrusted to them. ; in the present case, the agreement concluded on July 27, 1988 between BPN and TRP included a special clause of unavailability of securities allocated to the guarantee of all BPN accounts, which could not be debtors, and made any transaction subject to these securities on the instructions given by the bank; that, therefore, the directors of TRP were required to ensure that they left a sufficient quantity of OATs of the same nature in BPN’s account at all times,

Whereas the second degree court holds, finally, that, failing to fulfill their obligations of conservation and restitution inherent in this deposit contract, the managers of the brokerage firm have handed over to their UCITS, in return for the funds loaned and to the ‘without the BPN’s knowledge, securities that are unavailable, either by the “repo delivered” process, resulting in, according to the market agreement of September 1988 and June 1990, taken over by the law of December 31, 1993, transfer of ownership, or by the process of “pension under file”, realizing the pledge of the title; that they acted in this way with the aim of ensuring an artificial survival for the company TRP, when its situation was irreparably compromised and they were necessarily aware that it would not be able to do what was needed. is produced to restore the type and number of OATs entrusted by the BPN; that the fraudulent nature of the operations is confirmed by the accounting artifices with which they were surrounded by the brokerage firm, in order to fictitiously cancel the impact on the overall balance of the securities in custody;

Whereas in the state of these statements, the Court of Appeal, which, without insufficiency or contradiction, characterized the personal participation of the defendants in the alleged facts, legally justified its decision;

That indeed, the entry in account of intangible values ​​constitutes a writing which enters in the forecasts as well of the old article 408 as of the new article 314-1 of the Penal Code, repressing the breach of confidence;

That the authorized intermediary, account holder and custodian of securities, affiliated to SICOVAM under the regime defined by the law of December 30, 1981 and its implementing decree of May 2, 1983, is bound to his client by a deposit which requires it to keep the consideration;

That he can, without the consent of the holder, perform on these securities only acts of administration or management, to the exclusion of acts of disposal having the effect of reversing possession;

From which it follows that the means must be discarded;

On the sixth plea of ​​cassation presented by Me Choucroy for Didier Souffrant and alleging violation of old article 408 of the Criminal Code, together with article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the unitholders of the FCP Sécurité Plus, and sentenced the latter to 18 months suspended imprisonment and 300,000 francs fine;

“on the grounds that the crime of breach of trust was characterized at the expense of Didier Souffrant, in that he had, deliberately, embezzled the sums remitted as a mandate, and, to make them grow, by the holders and units of the Sécurité Plus FCP by using them to cover the deficit of the brokerage firm TRP, and thereby in the exclusive interest of this company;

“and that article 25 of the law of 23 December 1988, relating to undertakings for collective investment in transferable securities and establishing collective debt funds, did not provide, among the operations permitted for UCITS, cash loans, as the COB had underlined in its report; that the COB observed that, as a result of this provision, UCITS resorted, in order to remunerate their excess cash, to other possibilities, including the acquisition of units of UCITS from treasury, as well as procedures developed by practice, such as repurchase agreements and pensions;

“whereas, on the one hand, brokerage firms may, as usual, receive funds from third parties in the form of term deposits, and therefore receive the cash, which its own UCITS must deposit in its hands, in the form of loans with interest, so much so that by pronouncing, in support of its decision, that it would not have been in accordance with the law for a UCITS to proceed to a loan of money, the court of appeal falsely applied the article 25 of the law of 23 December 1988;

“then, consequently, that since the use of the funds of the FCP Sécurité Plus for repurchase transactions, which were in common use, was not contrary either to the law or to the mandate given by the unitholders of FCP Sécurité Plus to the directors of Cambon G., the court of appeal, in the absence of any reversal of possession, did not legally characterize the misappropriation and therefore the breach of trust, violating article 408 former Criminal Code “;

On the seventh ground of appeal presented for the same applicant and alleging violation of article 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis:

“in that the judgment under appeal declared Didier Souffrant guilty of breach of trust to the detriment of the unitholders of the FCP Sécurité Plus, and sentenced the latter to 18 months suspended imprisonment and 300,000 francs fine;

“on the grounds that Didier Souffrant was director of FCP Sécurité Plus; that Thierry Tuffier, Georges Py and Didier Souffrant were aware that the securities repoed to the 3 UCITS were no longer the property of the brokerage firm TRP, and that they could not dispose of it without the agreement of the BPN; that the defendants disposed of the funds of the UCITS in transactions presenting obvious risks since they could only be fully aware of the fact that the brokerage firm TRP was not had no right to dispose of the securities it repoed and that the financial situation of this company had become so critical that no prospect of recovery was possible; that Daniel Spire had recognized thathe managed the FCP Sécurité Plus portfolio on a day-to-day basis; in his capacity as manager, he had lent the funds voluntarily and without pressure, and had taken the initiative to use repurchase agreements;

“whereas, since it resulted from his own observations that Didier Souffrant was not an officer of Cambon G. but a simple director of this company, and that Daniel Spire was the real manager of FCP Sécurité Plus who had taken the decision to lend the funds to the brokerage firm TRP, the court of appeal did not characterize the active voluntary participation of Didier Souffrant in the commission of the alleged offense, and hence the intentional element of breach of trust, violating the old article 408 of the Penal Code “;

On the second appeal presented by the professional civil society Le Bret and Laugier for Thierry Tuffier and alleging the violation of articles 94-II of the finance law of December 29, 1982, 2 of the decree of May 2, 1983, 425 and 431 of the law of July 24, 1966, 408 of the former Penal Code, 591 and 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis:

“in that the contested nursing judgment declared Thierry Tuffier guilty, in his capacity as director of the company Pact Arbitrage, of the misuse of corporate assets to the detriment of the said company, with a view to favoring the brokerage firm TRP , in which he was interested, and on the charge of breach of trust for having misappropriated, to the detriment of FCP Sécurité Plus unitholders, cash that had been given to him as a mandate, condemning him to 18 months. imprisonment and a fine of 50,000 francs;

virtual cessation of payments by TRP, the borrower, during the operations in question in June and July 1990, as targeted by the prevention; that the fraud by the defendants is characterized by having violated strict compliance with the depositary rule with regard to the manager of the UCITS as well as the obligation to act in the exclusive interest of UCITS; it is established that the defendants had funds from the FCP Sécurité Plus and the Sicav Pact Arbitrage and Pact Plus from June 5, 1990 for the FCP and from June 25 for the Sicav in transactions presenting obvious risks, from when they could only be fully aware of the fact that the brokerage firm TRP had no right to dispose of the securities that it was repurchasing with its UCITS and that the financial situation of this company had become so critical that no prospect of recovery was possible; that, faced with this situation which could not have any other outcome than that of the immediate filing of the declaration of suspension of payments, the defendants could not entertain the slightest hope, as to the possibility for the directors of the company to buy back the OATs to their owners, nor to obtain equivalent securities to deliver them to UCITS in return for funds remitted by them to the company; that it is therefore established that the guarantees given to the Sicav Pact Arbitrage and Pact Plus as well as to the FCP Sécurité Plus were illusory and that the liquidity of these investment institutions was knowingly misappropriated under the guise of a cash transaction, accompanied by the usual guarantees; that such breaches of the essential rules of professional practice were undoubtedly likely to seriously harm shareholders and unitholders; that the offense of abuse of corporate assets concerning the Sicav Pact Arbitrage is established; that similarly the offense of breach of trust is characterized with regard to Thierry Tuffier in that he deliberately embezzled, at the same time as several others, the sums remitted as a mandate and to make them grow by the unitholders FCP Sécurité Plus by using them to make up the deficit of the company TRP and, therefore, in the

“then, on the one hand, that the Court of Appeal did not find the unlawful nature of the operations consisting for UCITS in lending funds by means of remittances of securities; that, therefore, by mentioning that said operations do not were not authorized by law, the judgment under appeal characterized neither the misuse of funds belonging to the companies Pact Arbitrage and Pact Plus, nor the embezzlement of those owned by FCP Sécurité Plus;

“then, on the other hand, that the Court of Appeal could not either, in order to retain Thierry Tuffier in the links of prevention, to be based on the alleged misappropriation of the securities pledged to the 3 UCITS; that the cassation to intervening on the first plea will consequently lead to that of the heads of the judgment under appeal pronouncing the guilt of Thierry Tuffier for abuse of corporate assets to the detriment of the company Pact Arbitrage and breach of trust to the detriment of the unitholders of FCP Sécurité Plus ;

nor to obtain equivalent securities to deliver them to UCITS and failing to respond to the conclusions of the defendant stressing that repo transactions provided a very effective guarantee for UCITS and FCP, since the listing by TRP of the repo securities on the accounts of the institutions, made the transfer opposable to third parties; that judgment under appeal is therefore not motivated;

there was no prospect of a possible recovery; that by not responding here again to the conclusions of Thierry Tuffier relying on the Etudes et Conseils report which indicated that, from before July 10 to July 13, 1990, TRP had sufficient cash to buy on the market repoed securities, and that the state of suspension of payments had been, in reality, the result of an abrupt cessation of the operation of TRP following the decision of the SBF to stop its financial support and deprive it market access, the Court of Appeal did not give a legal basis for its decision “;

On the fourth plea proposed by professional civil society Ryziger and Bouzidi for Georges Py and alleging violation of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, of Article 388 of the Code of criminal procedure, articles 485, 593 of the same Code:

“in that the contested decision disqualified the alleged acts of abuse of corporate assets committed by Georges Py and Thierry Tuffier to the prejudice of the Sicav Pact Arbitrage and by Daniel Spire to the prejudice of the Sicav Pact Plus denounced by the prosecution as having consisted of to use the company’s property or credit up to the amount of 54,000,000 francs for the company Pact Plus and 21,700,000 francs for the company Pact Arbitrage for a use contrary to their interests to favor the company TRP, in which they were interested, by having granted loans to this company, must be analyzed, as they result from the procedure and were subjected to the contradictory debates, in facts ofabuse of corporate assets that consisted of fraudulent use by the Sicav Pact Plus and Pact Arbitrage as part of a repurchase transaction delivered by OAT up to 35,000,000 francs for Pact Plus and 15,000,000 francs for the Sicav Pact Arbitration;

“whereas every man must be notified, as soon as possible, of the charges brought against him; that this prohibits any requalification, by the trial judges, to the prejudice of an accused, except to put this accused in default of s ‘explain and on condition that he has accepted the debate “;

On the fifth ground of appeal proposed for the same applicant, alleging violation of article 437 of the law of July 24, 1966, of article 47 bis of the law of January 3, 1983:

“in that the impugned decision found the applicant guilty of misuse of corporate property;

“on the grounds that in his capacity as president of the company Pact Arbitrage, he would have lent funds from the latter to the charge of Thierry Tuffier against the repurchase of securities, in this case, OATs whose property would have belonged to to the BPN;

it follows from the contested decision that the securities put in repo were OATs consisting of dematerialized securities, without legal support, constituting fungible things and, moreover, not individualized; that, consequently, the guarantee of the repurchase agreement was not illusory for the Sicav Pact Arbitrage of which the plaintiff was manager, since the owners of the securities could not, by reason of their nature, exercise any action in claim against the Sicavs which had received them; it does not follow from the contested decision that the UCITS did not retain ownership of the securities put in repo delivered, nor that their owners and, in particular, the BPN, even attempted to recover them; constituting fungible things and, moreover, not individualized; that, consequently, the guarantee of the repurchase agreement was not illusory for the Sicav Pact Arbitrage of which the plaintiff was manager, since the owners of the securities could not, by reason of their nature, exercise any action in claim against the Sicavs which had received them; it does not follow from the contested decision that the UCITS did not retain ownership of the securities put in repo delivered, nor that their owners and, in particular, the BPN, even attempted to recover them; constituting fungible things and, moreover, not individualized; that, consequently, the guarantee of the repurchase agreement was not illusory for the Sicav Pact Arbitrage of which the plaintiff was manager, since the owners of the securities could not, by reason of their nature, exercise any action in claim against the Sicavs which had received them; it does not follow from the contested decision that the UCITS did not retain ownership of the securities put in repo delivered, nor that their owners and, in particular, the BPN, even attempted to recover them; because of their very nature, exercise no claim against the Sicavs which had received them; it does not follow from the contested decision that the UCITS did not retain ownership of the securities put in repo delivered, nor that their owners and, in particular, the BPN, even attempted to recover them; because of their very nature, exercise no claim against the Sicavs which had received them; it does not follow from the contested decision that the UCITS did not retain ownership of the securities put in repo delivered, nor that their owners and, in particular, the BPN, even attempted to recover them;

“then, on the other hand, that the Court could not, without contradicting itself, or at least without drawing the legal consequences from its own findings, to declare Georges Py guilty of breach of trust to the detriment of the BPN for having deprived the latter of a right of ownership over dematerialized securities, in this case OATs, using them to guarantee loans contracted with UCITS including Pact Arbitrage, and to retain that Georges Py was guilty of misuse of property corporate to the detriment of the company Pact Arbitrage by giving it as a guarantee these same OATs which would have constituted for this company an illusory guarantee since they would not have been the property of TRP “;

On the sixth ground of appeal presented for the same applicant and alleging violation of article 408 of the Penal Code, 485, 593 of the Code of Criminal Procedure:

“in that the contested decision declared the applicant guilty of breach of trust for having misappropriated to the detriment of the unitholders of FCP Sécurité Plus cash which had been given to them as a mandate to use it or a specific job, on the grounds that loans would have been granted by the FCP Sécurité Plus, of which the Cambon company of which Georges Py was the chairman of the board of directors and would have been responsible for the management, would have granted loans to the TRP company against repurchase of securities, in this case, OATs which would not have belonged to the TRP;

“then, on the one hand, that the fact for a mutual fund to grant a loan to a company, belonging to the same group as the depositary company, in return for the transfer of dematerialized securities could not constitute an embezzlement constituting abuse of confidence; that in fact, the repo of such dematerialized securities and, moreover, fungible things, confers ownership of the security on the person who takes over the repo; that the disputed securities being both fungible things and dematerialized securities Unable to claim, the mutual fund happened to have made an investment of the funds entrusted to the manager, which ruled out any misappropriation;

“then, on the other hand, that the contested decision finds that the manager of the fund was Daniel Spire; that if it follows from the contested decision that Georges Py was chairman of the board of directors of the depositary company, the contested decision does not indicate the role that Georges Py would have played in the realization of the loans and is, in any event, insufficiently motivated “;

On the first ground of appeal presented by professional civil society Waquet, Farge and Hazan for Daniel Spire and alleging violation of articles 388, 591 and 593 of the Code of Criminal Procedure, excess of power:

“in that the invalid judgment under appeal declared Daniel Spire guilty of the offenses of breach of trust and abuse of corporate assets;

“on the grounds that, by virtue of his functions as manager of UCITS, Daniel Spire was necessarily aware, like Georges Py, under whose direct authority he was placed, of the origin of the OATs repoed and of the identity of their owner;

“while the trial court is seized of all the facts referred to it under the terms of the order for reference and only these; it follows that the facts for which the investigating court said to be followed are necessarily excluded from the prevention; that in the present case, the question whether Daniel Spire was aware of the origin of the repo securities having been resolved by an express provision for dismissal , the court of appeal could not, without disregarding the terms of its referral, take this knowledge for granted in its decision of condemnation “;

On the second ground of appeal presented for the same applicant and alleging violation of former articles 408 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 Daniel Spire guilty of breach of trust to the detriment of the unitholders of FCP Sécurité Plus, and sentenced him to 15-month suspended prison terms and 200,000 francs fine;

“on the grounds that Daniel Spire was both an employee of TRP and responsible, as such, for the compulsory management of the 3 UCITS, and director of the financial management of the FCP Sécurité Plus; that he therefore had a view of all of the activity of these 2 UCITS of which he was responsible;

“and the reasons adopted by the first judges that the company G. Cambon had as its object the management of one or more mutual funds, including Sécurité Plus; that its board of directors consisted of Thierry Tuffier, Didier Souffrant, André Brettier and Georges Py who had been its president since January 1990;

“then, on the one hand, that the offense of breach of trust is legally constituted only if it is found that the misappropriated thing has been handed over to the defendant in execution of one of the contracts listed in article 408 of the Criminal Code applicable to the facts of the case; in the present case, by merely stating that Daniel Spire was an employee of TRP, responsible in this respect for the financial management of the FCP Sécurité Plus, but without being a member of the board of administration of the company Cambon G. manager of this FCP, the court of appeal did not establish that the applicant had received from the management company any personal sales mandate; that, therefore, the contested judgment is private legal basis;

“then, on the other hand, that in his regularly filed conclusions, Daniel Spire argued that he had never received a personal mandate for the management or sale of the managing company Cambon G .; that, failing to have replied to this head of peremptory articulation, the contested judgment does not meet the essential conditions of its legal existence “;

On the third ground of appeal presented for the same applicant and alleging violation of old article 408 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 Daniel Spire guilty of breach of trust to the detriment of the unitholders of the FCP Sécurité Plus for an amount of 97 million francs;

“on the grounds that the offense of breach of trust is characterized at the expense of Daniel Spire in that he deliberately embezzled the sums remitted as a mandate and, to make them grow, by the FCP unitholders Sécurité Plus, by using them to cover the deficit of the company TRP and, therefore, in the exclusive interest of this company;

“and that article 25 of the law of 23 December 1988 relating to undertakings for collective investment in transferable securities and establishing collective debt funds, does not provide, among the operations permitted for UCITS, cash loans, such as The COB underlined it in its report; whereas the COB observes that, as a result of this provision, UCITS have recourse, to remunerate their excess cash, to other possibilities, including the acquisition of shares in cash UCITS , as well as procedures developed by practice, such as repayments and pensions;

a legal framework was put in place by law n ° 93-1444 of December 31, 1993 defining the repo delivered and requiring the physical delivery of the securities so that the transaction becomes enforceable against the creditors of the assignor and the assignee; that it follows that in the absence of any legal framework governing pensions in 1990, the operations at issue could not be regarded as illicit; that they could at most be constitutive of a fault of management; that therefore, by stating in its decision that it was not in accordance with the law for a UCITS to proceed with a loan of money, the court of appeal falsely applied article 25 of the law of 23 December 1988; transaction becomes enforceable against the creditors of the assignor and the assignee; that it follows that in the absence of any legal framework governing pensions in 1990, the operations at issue could not be regarded as illicit; that they could at most be constitutive of a fault of management; that therefore, by stating in its decision that it was not in accordance with the law for a UCITS to proceed with a loan of money, the court of appeal falsely applied article 25 of the law of 23 December 1988; transaction becomes enforceable against the creditors of the assignor and the assignee; that it follows that in the absence of any legal framework governing pensions in 1990, the operations at issue could not be regarded as illicit; that they could at most be constitutive of a fault of management; that therefore, by stating in its decision that it was not in accordance with the law for a UCITS to proceed with a loan of money, the court of appeal falsely applied article 25 of the law of 23 December 1988;

“then, consequently, that, as soon as the use of FCP Sécurité Plus cash for repurchase transactions was not contrary to the law or to the mandate given by the unitholders of the Security Plus FCP to the managers of the management company Cambon G., nor to the employment contract of Daniel Spire, the court of appeal, in the absence of any reversal of possession, did not legally characterize the embezzlement and, therefore, the breach of trust , in violation of article 408 of the Penal Code “;

On the fourth ground of appeal presented for the same applicant and alleging violation of articles 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 the judgment under appeal declared Daniel Spire guilty of the offense of misuse of corporate assets to the detriment of the public limited company Pact Plus and sentenced him to 15 months’ imprisonment and a fine of 200,000 francs;

“for the reasons that with regard to the company Pact Plus, the embezzlement must be quantified at the sum of 35 MF borrowed, on June 25, 1990, by the company TRP; that, by letter of June 29, 1990, Mr. Rousselle, president of the Société des Bourses Françaises denounced the cash management agreement of June 30, 1989; it is clear that the defendant had funds from the Sicav Pact Plus in transactions presenting obvious risks as soon as he could only be fully aware of the fact that the brokerage firm TRP had no right to dispose of the securities it repurchased with its UCITS, and that the financial situation of this company had become so critical that no the prospect of recovery was no longer possible;

“while the offense of misuse of corporate assets is only established if it is noted that at the date of the disputed act, the author knowingly made the company run, of which he was one of the legal representatives , an abnormal risk distinct from the risk inherent in the nature of the market; that consequently, failing to have noted the existence of this risk on the date of June 25, 1990, the court of appeal did not give a legal basis at its decision “;

And on the same means taken up by Me Choucroy for Didier Souffrant, as necessary:

The means being united;

the defendants were both the officers or directors of the brokerage firm TRP and those of all of the group’s UCITS; that they were thus invested, in fact, of the double quality of borrower and lender;

Whereas the Court of Appeal then noted that Article 25 of the Law of 23 December 1988, although it does not prohibit UCITS from resorting, to remunerate their excess cash, to procedures developed by practice, such as repurchases and pensions, does not provide, among the operations permitted to these organizations, the lending of money; in the present case, the sums loaned to TRP, in return for interest, were used by it without any accounting, neither in the short-term debts of the brokerage firm, nor in the accounts of lender UCITS, where they always appeared as immediate availability, and that there was thus a total confusion between the money invested by the UCITS and the money left in the current account;

Whereas the second degree court still holds that the guarantees given to UCITS were illusory, and the risks incurred by them abnormal, since the company TRP had no right to validly transfer the securities that it repoed to these organizations;

Whereas the judgment under appeal states, finally, that the fraudulent intention of the directors or common employees of TRP and UCITS, who sacrificed the interests and compromised the assets of the FCP Sécurité Plus unitholders in the amount of 97 MF, as those of the companies Pact Plus and Pact Arbitrage, respectively for 35 MF and 15 MF, in an attempt to replenish the treasury of the brokerage firm, results both from the knowledge of the misappropriation of OATs apparently guaranteeing the remittances of funds, and the awareness of the virtual state of suspension of payments of the borrower during the incriminated transactions;

Whereas in this state, that the Court of Appeal justified its decision and that the alleged grievances are unfounded;

That this is also the case with those invoked by Georges Py, who cannot blame the judges for having quantified embezzlement at an amount lower than that of prevention, and by Daniel Spire, who is not justified in claiming a partial dismissal on facts unrelated to those for which he was referred to the trial court;

From which it follows that the means cannot be accepted;

That, by application of article 590 of the Code of penal procedure, it is necessary to declare inadmissible the complementary or additional briefs produced out of time by some of the applicants;

And considering that the stop is regular in the form;

DISMISSES the appeals.

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