PARTNERS AND RECAPITALIZATION COMMITMENTS LEGAL

Appeal number: 98-13059
Unpublished

President: M. LECLERCQ counselor

THE COURT OF CASSATION, COMMERCIAL, FINANCIAL AND ECONOMIC CHAMBER, delivered the following judgment:

On the appeal brought by Compagnie du BTP, whose registered office is 251, boulevard Pereire, 75017 Paris,

in cassation of a judgment rendered on January 13, 1998 by the Paris Court of Appeal (1st civil chamber, section A), in favor of:

1 / the company SPIE Batignolles, whose registered office is Parc Saint Christophe, Pôle Vinci, 95863 Cergy-Pontoise Cédex,

2 / the company Bouygues, whose registered office is 1, avenue Eugène Freyssinet, 78061 Saint-Quentin-en-Yvelines,

3 / the Société générale d ‘entreprises (SGE), whose registered office is 1, cours Ferdinand de Lesseps, 92500 Rueil-Malmaison,

4 / from the Lyonnaise des Eaux company, which became the Suez Lyonnaise des Eaux company, with its registered office at 72, avenue de la Liberté, 92753 Nanterre Cédex,

defendants in cassation;

The plaintiff invokes, in support of its appeal, the single plea of ​​cassation annexed to this judgment;

THE COURT, composed in accordance with Article L. 131-6, paragraph 2, of the Code of Judicial Organization, in the public hearing of December 19, 2000, in which were present: Mr. Leclercq, the oldest adviser acting as president, Mrs Collomp, rapporteur advisor, Mr Poullain, advisor, Mr Feuillard, advocate general, Mrs Moratille, chamber clerk;

On the report of Ms. Collomp, advisor, the observations of the SCP of Chaisemartin and Courjon, lawyer of the company Compagnie du BTP, of Me Choucroy, lawyer of the General Company of companies, of the SCP Célice, Blancpain and Soltner, lawyer of the company Suez lyonnaise des eaux, of the SCP Lyon-Caen, Fabiani and Thiriez, lawyer of the company SPIE Batignolles, of the SCP Piwnica and Molinié, of the lawyer of the company Bouygues, the conclusions of Mr. Feuillard, general counsel, and after having deliberated in accordance with the law;

On the single means, taken in its four branches:

Whereas, according to the judgment under appeal (Paris, January 13, 1998), relying on a deed signed on October 26, 1994, under the terms of which some of its shareholders had committed “in consideration of the results of an audit carried out on the commitments of Murabail and Optibail … to be adopted by November 30, 1994, on the one hand the measures to cover the latent risks of loss, on the other hand the structural provisions making it possible to permanently settle the difficulties of the construction company “, the construction company summoned the twelve shareholders concerned to subscribe to the capital increase decided by its extraordinary general meeting of April 13, 1995 and carried out in the form of aissue of indefinite subordinated securities (TSDI) for an amount of 800 million francs, then, faced with the refusal of some, had them summoned for it to be judged that they were all required to subscribe to their part of this program ;

that following several withdrawals, the litigation was circumscribed to only companies Spie Batignolles, Bouygues, Société Générale d’Entreprises and Suez Lyonnaise des Eaux, say the companies “majors”;

Whereas the construction company criticizes the judgment for having rejected its request for the condemnation of the companies Spie Batignolles, Bouyghes, Société Générale d’Entreprises and Suez Lyonnaise des Eaux to pay it respectively the sums of 83,600 000 francs, 78,640,000 francs, 58,400,000 francs and 28,640,000 francs with interest at the legal rate as from the formal notice, in proportion to their share in the recapitalization or, failing that, the sum of 200,000,000 francs to title of damages, then, according to the means:

1) that despite its unilateral nature, a letter of intent (or letter of comfort) may, according to its terms, when it has been accepted by its addressee and having regard to the common intention of the parties, constitute the responsibility of the who signed it, a contractual commitment to do or not to do up to the obligation to ensure a result; that, consequently, by being determined by the erroneous assertion of principle according to which the acceptance of the subscribed financial commitments “could not result either from a letter of comfort or from an independent guarantee which the company of the BTP “, the Court of Appeal violated Article 1134 of the Civil Code;

2) that by limiting themselves to the fact that there was nothing to confirm that on October 26, 1994, the appellant shareholders were in possession of evidence enabling the needs to be quantified at 800 million francs, without respond to the conclusions, which, as the reversed judgment had retained, invoked the document submitted at the meeting of October 6, 1994, this document expressly providing in the event of a going concern, a recapitalization of 565 million which, with the FGI bond of 250 million, showed the amount of 800 million, the court of appeal violated article 455 of the new Code of Civil Procedure;

3) that in any event, the trial judges had the obligation, if it was necessary, to interpret the disputed act by ascertaining what had been the intention of the parties; that thus the Court of Appeal had to take sides on the extent of the financial assistance which the shareholders had undertaken to bring and which it expressly noted that these “shareholders of a banking establishment necessarily accepted the principle”, knowing that the solvency ratio was compromised; that in the present case, a distribution key corresponding to the respective share of the twelve shareholders concerned in the capital of the company had already been practiced since the construction crisis and c ‘ is on this basis that, without any dispute, all the other shareholders had fulfilled the commitment of October 26, 1994; that therefore, by ruling in this way, on the ineffective pretext that “the object of the latter is indeterminate as to the technical means of financial support” and that “the act does not provide for a distribution key”, the invalid judgment has no legal basis with regard to article 1134 of the Civil Code;

4) that it requested, moreover, the condemnation of the majors in question to pay him the sum of 200 000 000 francs of damages in compensation for the damage consecutive to their total absence of execution of their engagement of October 26, 1994; that also rejecting this request without explaining it by a special motivation, but implicitly as a consequence of the rejection of the request tending to the condemnation to carry out the financial assistance whose judgment found that the principle had been accepted, and in particular, without examining whether these shareholders had not breached their obligation by refusing from the outset and obstinately any financial assistance, the court of

the technical means of financial support making it possible to cover the latent risks of loss on a long-term basis and to settle the difficulties of the construction company not having been specified, nor the recapitalization needs, the assessments of which had varied over the months, nor the key for distributing the contribution between the shareholders, nothing establishing that they have accepted that the one which had been previously implemented be applied “by default”; that in the state of these findings and statements, the court of appeal which did not base its decision on the ground criticized by the first part of the plea and which responded by implicitly dismissing the conclusions referred to by the second, deduced, since it did not have the power to substitute for the will of the parties, that the act of October 26, 1994, which implied that the negotiations intended to define the terms of implementation of the financial support to be continued. only the principle had been defined, did not bind the companies concerned on its own; that the court of appeal which legally justified its decision could rule as it did; did not commit the companies concerned on its own; that the court of appeal which legally justified its decision could rule as it did; did not commit the companies concerned on its own; that the court of appeal which legally justified its decision could rule as it did;

And expected, in the second place, that the company of the BTP requested exclusively the repair of the damage which it estimated to have undergone because of the failure of the companies “majors” to bring him the funds necessary for its recovery; that as soon as it rejected the main request by stating that the act of October 26, 1994 did not bind the companies Spie Batignolles, Bouygues, Société Générale d’Entreprises and Suez lyonnaise des eaux, the court of appeal which did not was not bound to carry out an investigation which had not been requested of it, could only reject, consequently, the construction company of its claim for damages;

That thus the means is not founded in any of its branches;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Compagnie du BTP to pay the costs;

Having regard to article 700 of the new Code of Civil Procedure, condemns Compagnie du BTP to pay SPIE Batignolles the sum of 12,000 francs;

Thus done and judged by the Court of Cassation, Commercial, Financial and Economic Chamber, and pronounced by the oldest adviser acting as president in the public hearing of February thirteenth, two thousand and one.