CRIMINAL CHAMBER
1. – On the sixth plea of cassation proposed by the professional civil society Waquet, Farge and Hazan and by the professional civil society Piwnica and Molinié in favor of Samir Txxxx and taken from the violation of articles 10-1 of the ordinance of 28 September 1967, 591 and 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis:
‘in that the judgment under appeal declared Samir Txxxx guilty of having knowingly transmitted inside information on the title Txxxx to a third party who carried out operations on the title and condemned him on this account;
‘on the grounds that the exculpatory argument developed by the accused, according to which the company Socofinance had long known this Trxxxx security which it would have acquired in 1987, cannot be accepted, since the reality of the purchases has not not confirmed by the information;
‘whereas, on the one hand, the Court of Appeal, to rule out the analysis according to which Samir Txxxx was not the essential link between the company IDB and the company Trxxxx given that the company IDB held around 63,000 shares Trxxxx in January 1988, could not, without contradicting itself, state that the reality of these purchases had not been confirmed by the information, knowing that, on the contrary, it resulted both from the report drawn up by the inspector Mr. Qxxxx within the framework of the American rogatory commission (reference D. 1864) than the report of the divisional commissioner M. Mxxxx, head of the financial brigade (reference D. 1833), and of the Swiss rogatory commission of June 29, 1990 (subchapter 7 ), that of the letter sent by the investigating magistrate on November 22, 1989 (reference D. 273) to Mr. Mari belonging to the SEC,that the company IDB, supporting figures, possessed well 63 000 Trxxxx titles at the beginning of January 1988, so that its decision is not legally justified;
‘whereas, on the other hand, in a memorandum regularly filed on May 18, 1994, the defendant denounced the lack of correlation between the dates of purchase and sale of Trxxxx securities and the evolution of the negotiations in which Samir Txxxx participated in ” on the one hand, and the lack of correlation between purchases and contacts with Charbel Gxxxx, on the other hand, by referring to the dates of August 18, September 8 and 27 and October 8 and 11, 1988, which nullified the thesis of the prosecution; that no response was given to this peremptory head of conclusions, so that the contested decision is deprived of reasons’;
On the seventh plea of cassation proposed by the professional civil society Waquet, Farge and Hazan and by the professional civil society Piwnica and Molinié in favor of Samir Txxxx and taken from the violation of articles 10-1 of the ordinance of September 28, 1967 taken in its wording resulting from law n ° 88-70 of January 22, 1988, 111-3 and 111-4 of the new Penal Code, 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis, overall violation of the principles of the legality of offenses and penalties and of the strict interpretation of criminal law:
‘in that the judgment under appeal declared the defendant guilty of having, while he had inside information on the Trxxxx share, knowingly allowed Charbel Gxxxx to carry out operations on the market before the public had knowledge of these;
‘on the grounds that the defendant, a confirmed businessman, in his capacity as advisor to the manager of the company Trxxxx, was aware from the outset of the start of the negotiations relating to this company and of their various phases, of so that he had in his possession specific and precise information within the meaning of the law; that he knowingly transmitted them to Charbel Gxxxx in order to enable him to carry out operations on the title Trxxxx; that insider trading reproached to Samir Txxxx was perfectly constituted in its elements both material and intentional;
‘1 °) whereas, on the one hand, insider trading, taken in its second form resulting from law n ° 88-70 of January 22, 1988, is a material offense for which the result is a constitutive element, so that it is only characterized if the third party, in its own interest, has carried out a transaction on the basis of the information transmitted to it by the insider; that consequently, this qualification cannot be retained if the third party has the quality of insider, since the transaction which it carries out is then directly incriminated by the aforementioned article 10-1 taken in its first modality, which sanctions the made for an insider to have carried out one or more transactions on the market; that it follows from the findings of the judgment that Charbel Gxxxx in relation to business with the accused, would have been aware of the negotiations concerning the company Trxxxx within the framework of his functions, which would have thus conferred him the quality of insider; that, consequently, by declaring Samir Txxxx guilty of having knowingly allowed a person, who would have the quality of insider, to carry out, on the market, of the operations by communicating to him beforehand information on the evolution of the negotiations on the Title Trxxxx, the Court of Appeal violated by false application the aforementioned text and infringed the principle of strict interpretation of criminal law;
‘2 °) whereas, on the other hand, at the material time, subject to law no. 88-70 of January 22, 1988 modifying article 10-1 of the ordinance of September 28, 1967, the sole transmission of privileged information made by the insider to a third party is not criminally reprehensible; that law n ° 89-531 of August 2, 1989, which criminalizes the disclosure of information made by the insider even if no transaction has taken place on the market, is posterior to the facts and therefore not applicable; that, since in the present case no operation was carried out on the basis of the information allegedly communicated by the accused, the only transmission of said information by Samir Txxxx escapes criminal law, so that by deciding otherwise , the court of
‘3 °) whereas, moreover, no one can be at the same time declared guilty of a principal offense and concealer of fruits of this principal offense; that the court of appeal considers Samir Txxxx like principal author of insider trading because operations were carried out and Charbel Gxxxx like receiver for having carried out said operations;
‘that by declaring Samir Txxxx guilty of having knowingly allowed the realization of these operations and Charbel Gxxxx concealer on account of the same operations, the Court of Appeal violated the texts and principles referred to above;
‘4 °) whereas finally the only transmission of privileged information by an insider was not, according to article 10-1 of the ordinance of September 28, 1967 amended by law n ° 88-70 of 22 January 1988 applicable to the date of the facts, criminally reprehensible; that therefore, by condemning Samir Txxxx for the operation carried out by Charbel Gxxxx qualified as receiver, while the use of this information cannot constitute concealment for lack of a punishable principal offense, the court of appeal, which has necessarily deduced the existence of the main offense from that of concealment, violated the aforementioned texts’;
On the eighth plea of cassation proposed by the professional civil society Waquet, Farge and Hazan and by the professional civil society Piwnica and Molinié in favor of Samir Txxxx and taken from the violation of articles 10-1 of the ordinance of September 28, 1967 taken in its wording resulting from the law n ° 88-70 of January 22, 1988, 121-3 of the new Penal Code, lack of reasons, lack of legal basis, together violation of the rights of the defense:
‘in that the judgment under appeal declared the defendant guilty of knowingly allowing a third party to carry out privileged transactions from information previously transmitted and condemned him on this account;
‘for the reasons that it has knowingly transmitted the information concerning the evolution of Trxxxx shares to Charbel Gxxxx in order to enable it to carry out operations on the market;
” whereas insider trading, taken in its second form resulting from law n ° 88-70 of 22 January 1988, is an intentional offense which requires, when the third party has not directly carried out the transaction on the market , but had it done through a legal person foreign to the insider, that the latter was aware, at the time when he transmitted the information to the natural person, that the latter would use a person legal to carry out, on the basis of the information transmitted, the prohibited transaction for the benefit of the assets of the third party; that by limiting himself to asserting that the accused had knowingly transmitted the information relating to the company Trxxxx to Charbel Gxxxx without noting that Samir Txxxx knew, at the precise moment of the communication – assuming it was made -,
On the fourth ground of appeal proposed by Me Choucroy in favor of Charbel Gxxxx and taken from the violation of articles 10-1 of the ordinance of September 28, 1967 in its wording prior to the law of August 2, 1989, 460 of the former Penal Code and 593 of the Code of Criminal Procedure:
‘in that the contested confirmatory judgment declared Charbel Gxxxx guilty of receiving insider trading;
” to the reasons adopted by the first judges that jurisprudence has long held that article 460 of the Penal Code, drafted in general and absolute terms, does not make any distinction between the various crimes and misdemeanors with the aid of which the thing concealed has been removed, misappropriated or obtained; that she deduced that the concealment was characterized with regard to that which received and used information obtained through the fraudulent communication of a secret of factory; that, without this dematerialization of concealment, the protection that the legislator intended to ensure over the course of the development of techniques against the fraudulent appropriation of intellectual products devoid of material support would have been partially reduced to nothing;
‘that, consequently, the fact, by Charbel Gxxxx to have knowingly collected privileged information diverted by an insider who knew the use which would be made of it on the market, constitutes the concealment which is reproached to him; that it is irrelevant that the accused has not apprehended, directly or indirectly, the proceeds of his concealment;
‘whereas, on the one hand, if the offense of concealment can, according to the case law of the Court of Cassation, apply to information which has been the subject of an improper appropriation, it is still necessary that this information is materialized and has a legitimate holder, that this cannot be the case for privileged stock market information which does not belong to anyone and which cannot be apprehended by the receiver when the recipient of such information is limited to collecting it through the informant; that therefore, the offense of concealment of privileged information being unknown to French law, it could not be retained against the accused;
‘whereas, on the other hand, for the offense of concealment to be constituted, the perpetrator of this offense must have known the criminal origin of the property at the time when he acquired possession of it; in the present case where the trial judges did not in any way find that Charbel Gxxxx could have known, at the time when Samir Txxxx would have transmitted information to him on the negotiations in progress concerning the buyout of the Trxxxx group by the Pxxxx group, that the aforesaid information had a fraudulent origin because this co-convicted had it on the occasion of the exercise of his profession or of his functions, the intentional element of the offense of concealment was not characterized to the load of the applicant ‘;
On the second ground of appeal proposed by Me Choucroy in favor of Alain Bxxxx and alleging the violation of articles 10-1 of the ordinance of September 28, 1967, 459 and 593 of the Code of Criminal Procedure, 6, paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, lack of and conflicting grounds, lack of legal basis, violation of the rights of the defense:
‘in that the contested nursing judgment declared Alain Bxxxx guilty of insider trading;
‘for the reasons that it is appropriate to note the existence of close relations of friendship between Samir Txxxx and Alain Bxxxx since 1980;
‘that, moreover, by Samir Txxxx’s own admission, it appears that the merger of the company Trxxxx which he represented in France, and of Pxxxx as well as the realization of a possible agreement between these two groups, required him particularly at heart;
” that the relations forged between Samir Txxxx and Alain Bxxxx became familiar and subsequently resulted in a cruise in the Mediterranean from August 11 to 15, 1988, where, despite his official functions as director of the minister of finance and notwithstanding the restraint that they were in command, Alain Bxxxx believed he had to stay on board when negotiations were conducted between Nelson Pxxxx and two representatives of the Pxxxx group;
‘that Alain Bxxxx who, on this point, conceded having lacked prudence, if not delicacy, however affirmed that at the time of the facts, it was necessary, by his functions, to be particularly well informed of the situation and prospects of the Pxxxx group coming from the public sector;
‘that Jean-Louis Vxxxx indicated that, on June 25, 1988, Alain Bxxxx ignored the rejection of his intervention to the representative of Mr. Pexxxx in France by the general management of Pxxxx, which had not yet taken a decision on a possible acquisition of American National Can; he hastened on the contrary to immediately contact Samir Txxxx;
‘that it is, moreover, established that while no negotiation between the Trxxxx and Pxxxx groups had officially been undertaken on July 18, 1988, Alain Bxxxx, using his authority, believed it necessary to have Pierre Fxxxx mention falsely in a note intended for the Ministry of Finance, the existence of negotiations already underway, although they had not yet started; that he ultimately admitted his responsibility only after several hearings and confrontations;
‘that, with regard to subsequent events, the Court notes that Samir Txxxx and Alain Bxxxx remained, beyond telephone calls that could explain the official presentation of the Legion of Honor to the Txxxx audit by the Minister of ‘Economy, in close contact, in particular as regards the progress of the negotiations, which enabled it to obtain regular information;
‘that these various elements demonstrate that Alain Bxxxx, notwithstanding his denials, exceeded his duties as chief of staff, thus showing culpable indulgence towards Samir Txxxx;
‘that, with regard to the disclosure of the inside information that Max Txxxx, in appeal, admitted to having been given to him by the deceased Roger-Patrice Pxxxx, it is in this regard observed that the communication was already made by Roger-Patrice Pxxxx to Max Txxxx on November 14 at 3 p.m. at the latest;
‘that it is therefore necessary to find out who, then in possession of privileged information, communicated it to Roger-Patrice Pxxxx;
‘that it is established that none of the negotiators knew him, with the exception of Samir Txxxx who was not part of his usual relations, and of Jean Gxxxx who had only met him once, during the cocktail given on the occasion of his presentation of the Legion of Honor;
‘that Antoine Rixxxx, administrator of Pxxxx, was informed by Jean Gxxxx, on November 14 around noon, of the latest developments in the negotiations so that he informs the Prime Minister, with whom he was to have lunch the same day; that the latter and Antoine Rixxxx remained together until 3 p.m., at which time they informed Jean-François Vxxxx of the existence of the negotiations in progress, technical advisor at Matignon, who was not informed of the details of the operation that during a meeting with Mr. Gxxxx, which took place that same November 14 from 4 pm to 5:30 pm approximately;
‘that, on November 14 at 10 a.m., Jean Gxxxx, it seems, made a very brief presentation to the Minister of Industry during a meeting of officials of the’ country clubs’, without him handing over written documents, his collaborators being unanimous in declaring that they had not been informed until November 15 at around 5 p.m.
‘that it is only on Wednesday November 15, between 7 and 8 p.m., that Didier Oxxxx, in charge of industrial affairs at the general secretariat of the Presidency of the Republic, received from Jean Martin Foxxxx director general of Pxxxx a coded note on the ‘operation in progress ;
‘that Jean Gxxxx only spoke on November 16, from 12:30 p.m. on the question of the financing of the project René Thxxxx Chairman and CEO of BNP, who indicated that he was aware of the secret nature of the interview ;
‘that it is established that these people did not maintain relationship with Roger-Patrice Pxxxx; that Samir Txxxx knew, it is true, the person concerned, but without having with him of continued relations;
‘that it is on the other hand not denied by Alain Bxxxx that this one cultivated with Roger-Patrice Pxxxx and his family of the bonds of close friendship;
‘that, under these conditions, the investigation was rightly oriented, as regards the disclosure of information, on Alain Bxxxx;
‘that, on the other hand, the circumstances in which it was disclosed show that on the date when it was sent to Roger-Patrice Pxxxx, only Alain Bxxxx warned of the agreement in view between November 9 and on November 14 at 8:30 a.m. at the latest in the circumstances described by the court, was in a position to know, in substance and in a sufficiently precise manner, the information in question so that it could be, like this was the case, immediately exploited in the market; that it is therefore acquired that Alain Bxxxx was thus, and notwithstanding his denials, the informant of Roger-Patrice Pxxxx and this for the sole purpose of allowing him to carry out operations which consisted in buying successively on November 16, 10 000, then 20,000 Trxxxx Industries shares;
‘whereas, on the one hand, with regard to an accused who, at the time when the Pxxxx group, belonging to the public sector, was seeking to expand its activity in the packaging sector, was acting as chief of staff of the Minister of the Economy and Finance and had taken advantage of his friendly relations with one of the managers of this group as well as with the representative in France of an American group that owns the world leader in packaging, to keep informed negotiations underway between these two economic entities, then which, subsequently, had kept abreast of the progress of the negotiations which were ultimately to be concluded, with the agreement of his minister as with that of the Minister of Industry, Prime Minister and the Presidency of the Republic, at thepurchase of the American group by the Pxxxx group, the Court in no way characterized either the abuse of functions of which it accused this defendant, or the existence of complacency towards Samir Txxxx of which it also declared him guilty, since the trial judges did not note that the applicant communicated information to this intermediary, but that on the contrary it follows from their findings that it was the latter who had kept the applicant informed of the progress of the negotiations in order to that he can follow the file relating to this operation in which he is personally interested in order to submit it to his minister;existence of complacency towards Samir Txxxx of which she also declared him guilty, since the trial judges did not note that the applicant communicated information to this intermediary, but that on the contrary it follows from their findings that c it was the latter who had kept the applicant informed of the progress of the negotiations so that he could follow the file relating to this transaction in which he is personally interested in order to submit it to his minister;existence of complacency towards Samir Txxxx of which she also declared him guilty, since the trial judges did not note that the plaintiff communicated information to this intermediary, but that on the contrary it follows from their findings that c it was the latter who had kept the applicant informed of the progress of the negotiations so that he could follow the file relating to this transaction in which he is personally interested in order to submit it to his minister;he can follow the file relating to this operation in which he is personally interested in order to submit it to his minister;he can follow the file relating to this operation in which he is personally interested in order to submit it to his minister;
‘whereas, on the other hand, and assuming that Roger-Patrice Pxxxx had benefited from privileged information which would have been communicated to him at the latest on November 14, 1988 at 3 p.m., the findings of the trial judges relating to persons who were aware of the disputed transaction after that time could clearly not identify Roger-Patrice Pxxxx’s informant, so that it was at the cost of a flagrant contradiction that the Court believed be able to report the absence of any relationship between these people and Roger-Patrice Pxxxx to retain, by elimination, the guilt of the applicant;
‘that in addition, if it is indisputable that Alain Bxxxx was indeed the friend of Roger-Patrice Pxxxx and if it is true that he could be the author of the inside information used by the latter, he does not ‘the fact remains that as the first judges had underlined to pronounce the release of the plaintiff, this one was far from being the only person aware of the pre-agreement of November 11 to know Roger-Patrice Pxxxx; that therefore, by deducing the plaintiff’s guilt from the fact that his ties of friendship with Roger-Patrice Pxxxx were more followed than those forged by the latter with the other insiders, the appellate judges based themselves on a totally ineffective ground , the communication of privileged information which may be completely independent of relations of
” that in addition, by completely disregarding the friendly relations having linked Pierre Bxxxx, then Minister of the Economy and Finance to Roger-Patrice Pxxxx and Max Txxxx both beneficiaries of insider trading, while these friendly relations had been highlighted by the first judges, the judges of appeal, who did not believe it necessary to make the slightest allusion to the role of Pierre Bxxxx in order to better be able to deduce the guilt of his former chief of staff, by eliminating the other insiders , less close than him to Roger-Patrice Pxxxx, tainted their decision with a flagrant lack of reasons;
‘and that finally, the trial judges did not characterize the guilty intention of the exhibitor by asserting, without even seeking to justify it, that he had communicated the inside information to Roger-Patrice Pxxxx with the aim of to allow him to carry out particularly profitable operations on the stock market, nothing in the personality of Alain Bxxxx, nor in the nature of his relations with Roger-Patrice Pxxxx as they result from the file, allowing to suspect such purpose, and nothing a priori that could allow the applicant to suspect the honesty of Roger-Patrice Pxxxx, whose friendly relations with the President of the Republic were on the contrary likely to appear to him as constituting a pledge of good citizenship and honesty , like the position thathe served on numerous prestigious boards of directors such as that of Air France ‘;
On the third ground of appeal proposed by Me Choucroy in favor of Alain Bxxxx and alleging the violation of articles 10-1 of the ordinance of September 28, 1967, 459 and 593 of the Code of Criminal Procedure, 6, paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, lack of and conflicting grounds, lack of legal basis, violation of the rights of the defense;
‘in that the contested nursing judgment declared Alain Bxxxx guilty of insider trading;
‘for the reasons that it is appropriate to note the existence of close relations of friendship between Samir Txxxx and Alain Bxxxx since 1980;
‘that, moreover, by Samir Txxxx’s own admission, it appears that the merger of the company Trxxxx, which he represented in France, and Pxxxx, as well as the realization of a possible agreement between these two groups, was particularly close to his heart;
” that the relations forged between Samir Txxxx and Alain Bxxxx became familiar and subsequently resulted in a cruise in the Mediterranean from August 11 to 15, 1988, where, despite his official functions as director of the minister of finance and notwithstanding the restraint that they were in command, Alain Bxxxx believed it necessary to remain on board when negotiations were carried out between Nelson Pexxxx and two representatives of the Pxxxx group;
‘that Alain Bxxxx, who, on this point, conceded that he lacked prudence, if not delicacy, however affirmed that at the time of the facts, he had to, by virtue of his functions, be particularly well informed the situation and prospects of the Pxxxx group, a national of the public sector;
‘that Jean-Louis Vxxxx indicated that, on June 25, 1988, Alain Bxxxx ignored the rejection of his intervention to the representative of Mr. Pexxxx in France by the general management of Pxxxx, which had not yet taken a decision on a possible acquisition of American National Can; he hastened on the contrary to immediately contact Samir Txxxx;
‘that it is, moreover, established that while no negotiation between the Trxxxx and Pxxxx groups had officially been undertaken on July 18, 1988, Alain Bxxxx, using his authority, believed it necessary to have Pierre Fxxxx mention falsely in a note intended for the Ministry of Finance, the existence of negotiations already underway, although they had not yet started; that he ultimately admitted his responsibility only after several hearings and confrontations;
‘that, with regard to subsequent events, the Court notes that Samir Txxxx and Alain Bxxxx remained, beyond telephone calls that could explain the official presentation of the Legion of Honor to the Txxxx audit by the Minister of ‘Economy, in close contact, in particular as regards the progress of the negotiations, which enabled it to obtain regular information;
‘that these various elements demonstrate that Alain Bxxxx notwithstanding his denials, exceeded his functions of chief of staff, thus showing culpable indulgence towards Samir Txxxx;
‘that, with regard to the disclosure of the inside information that Max Txxxx, in appeal, admitted to having been given to him by the deceased Roger-Patrice Pxxxx, it is in this regard observed that the communication was already made by Roger-Patrice Pxxxx to Max Txxxx on November 14 at 3 p.m. at the latest;
‘that it is therefore necessary to find out who, then in possession of privileged information, communicated it to Roger-Patrice Pxxxx;
‘that it is established that none of the negotiators knew him, with the exception of Samir Txxxx who was not part of his usual relations, and of Jean Gxxxx who had only met him once, during the cocktail given on the occasion of his presentation of the Legion of Honor;
‘that Antoine Rixxxx, administrator of Pxxxx, was informed by Jean Gxxxx on November 14 around noon of the latest developments in the negotiations so that he informs the Prime Minister, with whom he was to have lunch the same day; that the latter and Antoine Rixxxx remained together until 3 p.m., at which time they informed Jean-François Vxxxx of the existence of the negotiations in progress, technical advisor at Matignon, who was not informed of the details of the operation that during a meeting with Mr. Gxxxx, which took place that same November 14 from 4 pm to 5:30 pm approximately;
‘that on November 14 at 10 a.m., Jean Gxxxx, it seems, made, during a meeting of officials of the’ country clubs’, a very brief presentation to the Minister of Industry, without however giving him written documents, his collaborators being unanimous in declaring that they had not been informed until November 15 at around 5 pm;
” that it was on Wednesday November 15 only, between 7 and 8 p.m., that Didier Oxxxx, in charge of industrial affairs at the general secretariat of the Presidency of the Republic, received from Jean Martin Fxxxx director general of Pxxxx, a note coded on the current operation;
” that Jean Gxxxx only spoke on November 16, from 12:30 p.m. on the question of the financing of the project René Txxxx, Chairman and CEO of BNP, who indicated that he was aware of the secret nature of the interview ;
‘that it is established that these people did not maintain relationship with Roger-Patrice Pxxxx; that Samir Txxxx knew, it is true, the person concerned, but without having with him of continued relations;
‘that it is on the other hand not denied by Alain Bxxxx that this one cultivated with Roger-Patrice Pxxxx and his family of the bonds of close friendship;
‘that, under these conditions, the investigation was rightly oriented, as regards the disclosure of information, on Alain Bxxxx;
‘that, on the other hand, the circumstances in which it was disclosed show that on the date when it was sent to Roger-Patrice Pxxxx only Alain Bxxxx warned of the agreement in view between November 9 and on November 14 at 8:30 a.m. at the latest in the circumstances described by the court, was in a position to know, in substance and in a sufficiently precise manner, the information in question so that it could be, as has been been the case, immediately exploited in the market; that it is therefore acquired that Alain Bxxxx was thus, and notwithstanding his denials, the informant of Roger-Patrice Pxxxx and this for the sole purpose of allowing him to carry out operations which consisted in buying successively on November 16, 10 000, then 20,000 Txxxx shares;
‘whereas the Court of Appeal, which – without specifying the circumstances in which, according to it, the director of the cabinet of the Minister of State would have taken cognizance of the privileged information within the framework of his functions -, on the contrary, noted in several times the existence of friendly relations between Alain Bxxxx and Samir Txxxx, and noted that Alain Bxxxx had ‘regularly obtained information’ not from Jean-Louis Vxxxx who had limited himself, ‘on rare occasions, to responding to his investigations ‘, but by Samir Txxxx did not thus justify how Alain Bxxxx would have had inside information’ during the exercise of his functions ‘, depriving his decision of any legal basis with regard to the aforementioned texts’;
On the first ground of appeal proposed by professional civil society Ryziger and Bouzidi in favor of Robert Rxxxx and taken from the violation of article 460 of the old Penal Code, of article 10-1 of ordinance no. 67-833 of September 28, 1967, articles 485, 593 of the Code of Criminal Procedure:
‘in that the contested decision declared the exhibitor guilty of receiving insider trading;
” on the grounds that it is in vain that he argues that one of the legal elements of the offense of concealment is missing, since the privileged information resulting from the insider trading serving as an original offense to the alleged concealment would relate to an intangible good that is insusceptible in this case of appropriation; that the first judges, for relevant reasons which the Court adopts, rejected such a legal plea, since under the general terms of the criminalization of concealment no crime or misdemeanor is excluded as regards the origin of the concealed object, so that it can be found as in this case, and contrary to what is supported, dematerialized;
‘and to the reasons adopted by the first judges that case law has long held that article 460 of the Penal Code, drafted in general and absolute terms, does not make any distinction between the various crimes and misdemeanors in respect of which the object concealed has been kidnapped, misappropriated or obtained (Cass. Crim. December 4, 1875; December 3, 1892; January 11, 1945; July 10, 1969); that it thus deduced from the generality of the provisions of the law that the concealment was characterized with regard to the one who received and used information obtained thanks to the fraudulent communication of a trade secret (Cass. Crim. 7 November 1974); that this decision proceeds not from analogical reasoning, but from the natural mission of the judge, to whom he belongs, as recalled by the Court of Cassation (Cass. Crim. January 21, 1969), ‘to research the object of the law and its field of application’ in order to better interpret the terms used by it; that indeed, without this dematerialization of concealment resulting from only intellectual detention, the penal protection that the legislator intended to ensure, over the development of techniques, against the violation of professional secrecy, (law of February 21, 1944 ), the misappropriation of personal information, (law of January 6, 1978), the capture of a data automation system, (law of January 5, 1988), and more generally against the fraudulent appropriation of products from the spirit devoid of material support, would have been partially reduced to nothing (see p.44); application ‘to better interpret the terms used by it; that indeed, without this dematerialization of concealment resulting from only intellectual detention, the penal protection that the legislator intended to ensure, over the development of techniques, against the violation of professional secrecy, (law of February 21, 1944 ), the misappropriation of personal information, (law of January 6, 1978), the capture of a data automation system, (law of January 5, 1988), and more generally against the fraudulent appropriation of products from the spirit devoid of material support, would have been partially reduced to nothing (see p.44); application ‘to better interpret the terms used by it; that indeed, without this dematerialization of concealment resulting from only intellectual detention, the penal protection that the legislator intended to ensure, over the development of techniques, against the violation of professional secrecy, (law of February 21, 1944 ), the misappropriation of personal information, (law of January 6, 1978), the capture of a data automation system, (law of January 5, 1988), and more generally against the fraudulent appropriation of products from the spirit devoid of material support, would have been partially reduced to nothing (see p.44);
‘whereas only tangible or intangible property, or at least a right capable of private appropriation or which may be the subject of an agreement, is liable to be the subject of concealment; that this is not the case with inside information held by an insider and that the latter would have disclosed in violation of the provisions of article 10-1 of the ordinance of September 28, 1967, such information, by definition even not being in the trade, was not susceptible of an appropriation within the meaning of private law (and does not constitute, contrary to what the trial judges admitted a dematerialized good) ‘;
On the fourth ground of appeal proposed by the professional civil society Ryziger and Bouzidi for Robert Rxxxx taken from the violation of article 10-1 of ordinance n ° 67-833 of September 28, 1967 as amended, articles 485, 593 of Code of Criminal Procedure :
‘in that the contested decision declared Alain Bxxxx guilty of the offense of disclosing insider secrets (of which the applicant was declared a receiver);
‘on the grounds that, if he maintained that he confined himself to his duties as chief of staff to the Minister of Finance and to have been the victim of a plot regarding the accusations made against him, it should be noted, which moreover is not denied, the existence of close relations of friendship between Samir Txxxx and Alain Bxxxx since 1980; that, moreover, by Samir Txxxx’s own admission, it appears that the merger of the company Trxxxx which he represented in France and Pxxxx which, according to Alain Bxxxx, was part of the perspective of a new industrial policy, as well as the achievement of a possible agreement between these two groups, was particularly close to his heart; that the relations forged between Samir Txxxx and Alain Bxxxx have become familiar to be translated later, and as regards more directly the facts of the case, by a cruise in the Mediterranean from August 11 to 15, 1988 where, despite his official functions Chief of Staff to the Minister of Finance and notwithstanding the restraint it commanded, in his private life, Alain Bxxxx believed he had to stay on board when negotiations were carried out, under conditions described by the court, between Nelson Pexxxx and two representatives of the Pxxxx group; that however, Alain Bxxxx, who, on this point, conceded having in this case lacked prudence if not delicacy, affirmed, as it has already been mentioned, that at the time of the facts it was necessary however, to by its functions, be particularly well informed on the financial and industrial situation and prospects of the Pxxxx group belonging to the public sector; that Jean-Louis Vxxxx in this regard, while agreeing that it was the role of the accused to find out about these questions, nevertheless indicated that on June 25, 1988 Bxxxx ignored the rejection of his offer to intervene with the representative of Nelson Pexxxx in France by the general management of Pxxxx, which had not yet taken a decision on a possible acquisition, among other projects, of American National Can, and on the contrary hastened to immediately contact Txxxx; that it is therefore under these conditions that, at the initiative of Samir Txxxx, the meeting of July 12, 1988 at the Ministry of Finance between Nelson Pexxxx was fixed, Samir Txxxx and Alain Bxxxx who informed Jean-Louis Vxxxx only on July 11 in the afternoon while the latter was at the Ministry of Finance for a completely different reason; that it is also established by the elements of the file that while no negotiation between the groups Trxxxx and Pxxxx had not been officially undertaken on July 18, 1988, Alain Bxxxx, using his authority, believed it necessary to make mention falsely by Pierre Fexxxx, personally responsible for monitoring Pxxxx operations at the Ministry of Finance, in a note intended for the Minister, the existence of negotiations already underway, although they had not started; that, as regards the facts which occurred subsequently, the Court notes that Samir Txxxx and Alain Bxxxx remained – beyond telephone calls that could explain the official handing over of the Legion of Honor to audit Txxxx by the Minister of the Economy – in close contact, in particular as regards the progress of the negotiations; that after having, in fact, maintained that the information which he had been able to obtain emanated from Jean-Louis Vxxxx, he had to admit, as the information and the debates progressed, and following the investigations of the investigating magistrate, that he had regularly obtained information not from the latter, who limited himself on rare occasions to answering his questions, but from Samir Txxxx; that these various elements demonstrate that Alain Bxxxx, notwithstanding his denials, exceeded his functions as director of cabinet, thus showing complacency guilty towards Samir Txxxx; what’
” whereas the offenses provided for and punished by article 10-1 of the ordinance of September 28, 1967 suppose that the person who used or disclosed the information had access to it in the course of his profession or of its functions; that it follows from the findings of the judgment under appeal that Alain Bxxxx, if he wanted, because of his functions, to try to obtain information and if he tried to play an intermediary role in the negotiations between MM. Pexxxx and Pxxxx were only informed of the progress of the negotiations because of their personal relations with Samir Txxxx; that he thus did not hold a privileged information by his functions or his profession, but exclusively because of the personal relations which he maintained with Txxxx; that the court of appeal could not, without failing to draw the legal consequences of its own findings, consider that Bxxxx was guilty of disclosing inside information obtained by reason of his profession or his functions; that the applicant could not therefore be concealer of such information ‘;
On the fifth plea of cassation proposed by the professional civil society Ryziger and Bouzidi in favor of Robert Rxxxx and taken from the violation of article 10-1 of ordinance n ° 67-833 of September 28, 1967, of article 460 of the Criminal Code, Articles 485 and 593 of the Code of Criminal Procedure;
‘in that the contested decision found the applicant guilty of receiving insider trading;
‘for the reasons that should be noted, with regard to the offense of receiving insider trading alleged in particular against Robert Rxxxx and Max Txxxx that, contrary to what they argued, he did not ‘is in no way required by the legislator that it be demonstrated, at the level of the original offense, that the insider – that is, in this case and according to the prosecution, Alain Bxxxx – knew the identity of the third parties likely to to carry out transactions indirectly with the help of information provided by him; that it suffices, in fact, that the insider was aware, beforehand, that the information he delivered was intended to be used by operators on the market; that it is therefore appropriate to regard as irrelevant the entire contrary argument developed in relation to this point and according to which it would be necessary to demonstrate a special fraud for so-called second degree concealment, such as accused or accused; that it suffices, in fact, in view of the above mentioned legal text serving as a basis for the prosecution, that the proof be brought, once the insider trading is established, that the concealers attracted in the cause, and who all intervened on the market provided with this information, knew, for their part, the fraudulent origin of the information which they thus used;
‘and on the grounds that Alain Bxxxx would have transmitted the information to Roger-Patrice Pxxxx; that Max Txxxx received from Roger-Patrice Pxxxx the information relating to the Trxxxx securities; that apart from the argument concerning the need to prove a special fraud vis-à-vis the concealment alleged against the defendant and which the Court rejected, Max Txxxx would be inappropriate to maintain that the information received from Roger-Patrice Pxxxx would not have been precise, meaningful and would have been public; that the massive nature of the purchase order given by the accused, the signing of which shows that at the outset the Trxxxx title was unknown to him, clearly invalidates the applicant’s thesis that he would not have benefited that of a ‘pipe’, being moreover observed that Max Txxxx does not had the only task, before executing his purchase order, to ensure the identification of the security by searching for the listing code; that Robert Rxxxx’s argumentation that the personal purchase of 2,000 shares made on his behalf would have been based on the sole observation of the share price, since it is common ground that the accused was, prior to that operation to which he was accused, which took place in those passed through him from November 15 in the afternoon within the framework of the Parisian Placement Company, of which he led the co-management with Txxxx; that it is thus with good reason that the accused, with full knowledge, used, both for his personal benefit and that of the CPC, information which
” then, on the one hand, that the offense of disclosing inside information, as defined by article 10-1 of ordinance n ° 67-833 of September 28, 1967, in the wording resulting from the law of January 3, 1983 amended by Law No. 88-70 of January 23, 1988, implied that the holder of a preferred share was not guilty of the offense of disclosing this information unless he had knowingly allowed on the market, either directly or through intermediaries, one or more transactions before the public becomes aware of it; that the guilty intention required by this text necessarily presupposes that the author of the disclosure knew the beneficiary of the disclosure, failing which he could not have been assured of allowing him to carry out, either directly, either by intermediaries, one or more operations; that indeed, only the knowledge of the beneficiary of the disclosure is likely to allow its author to ensure that the beneficiary is able to operate before the public had knowledge of the information; that the offense of disclosure of privileged information therefore involved a special fraud, contrary to what the Court decided;
‘then, on the other hand, that concealment is an intentional offense; that the guilty intention lies in the knowledge of the fraudulent origin of the thing concealed, in the present case, a privileged information; that the plaintiff had argued in his conclusions before the Court of Appeal, and that the Court admitted, that it is Txxxx who had received from Pxxxx a stock market advice; that having learned only on November 15, 1988 in the afternoon, during a telephone interview, that Txxxx had placed an order for 6 million francs on the title Trxxxx, he had, ignorant of this title , attempted to have had information, and that he had endeavored throughout the period to limit the price at which the Trxxxx securities were to be purchased by the Compagnie parisienne de placements; that nothing in his attitude revealed his knowledge of any inside information; that, if Robert Rxxxx had had such information at the time, it is obvious that, far from limiting the quantity of securities to be purchased and the limit price at which the securities could be purchased, he would have given instructions for ” buy a maximum of securities, and would not have imposed price limits as strict as those imposed, in agreement with Txxxx the latter’s agreement to limit both the quantity of purchases and the price at which the securities should be purchased which can only reinforce the idea of the regularity of the transaction; that by being satisfied with
The means being united;
Whereas, to declare Samir Txxxx guilty of insider trading and Charbel Gxxxx guilty of concealment of this same offense, the judges retain that the purchases and sales of securities of the company Trxxxx carried out by the company Socofinance directed by Charbel Gxxxx, coincided with the successive phases of development, then of rupture, of resumption and finally of conclusion of the negotiations in which Samir Txxxx participated, who knowingly transmitted to Charbel Gxxxx the information at his disposal, ‘in order to allow him to carry out transactions on the Trxxxx share ‘;
That, to declare Alain Bxxxx guilty of insider trading, the contested judgment, on own grounds and adopted by the first judges, notes that in his capacity as chief of staff of the Minister of the Economy and Finance, this defendant, after having himself organized one of the first meetings between the directors of the 2 companies, ‘was informed very regularly of the talks between Trxxxx and Pxxxx’, which he had, on November 9, 1988, his attention drawn to their outcome imminent by one of the close associates of the chairman of the board of directors of Pxxxx, and that the latter, on November 14 around 8:30 am, personally asked him for a meeting with the minister;
That the court of appeal adds that Alain Bxxxx, who ‘cultivated close friendship with Roger-Patrice Pxxxx’, while Samir Txxxx was not part of his usual relations, is the only person who has was able to send him on November 14, 1988 before 3 pm – when Roger-Patrice Pxxxx communicated inside information to Max Txxxx – information sufficiently precise to be able to be immediately exploited on the market; that it deduces that he was’ the informant of Roger-Patrice Pxxxx; and this, for the sole purpose of enabling it to carry out operations on the market ‘;
That, if she notes that he obtained information more easily from Samir Txxxx thanks to the friendly relations existing between them, than from the leaders of Pxxxx, she nevertheless underlines that in her own words, it ‘had to, by its functions, to be particularly well informed on the situation and the financial and industrial prospects of the Pxxxx group, which belongs to the public sector ‘;
That, to declare Robert Rxxxx guilty of receiving insider trading committed by Alain Bxxxx, the second degree court states, for reasons adopted, that ‘the haste with which Max Txxxx and Robert Rxxxx launched, for an amount of 6 million of francs, purchase orders’ on a security that they did not know before ‘can only be explained by their knowledge of the fraudulent origin of the information held and transmitted by Roger-Patrice Pxxxx’; that it therefore rejects its argument that his personal purchase of 2,000 shares obeyed the sole observation of the share price, and retains’ that the accused has, knowingly, used, both for his personal benefit than that of the CPC, information which he knew to be privileged ‘;
Whereas in the state of these statements, deduced from its sovereign assessment of the facts of the case and beyond the control of the Court of Cassation, the Court of Appeal, which responded without insufficiency to the essential articulations of the conclusions of which it was seized, justified its decision without incurring censorship;
That in fact, on the one hand, insider trading is characterized, with regard to any person who, during the exercise of his profession or his functions, has inside information on the development prospects of a transferable security, knowingly allows third parties to carry out transactions on the market before the public is aware of this information, without it being necessary for them to know the identity of the operators, nor the terms of the transactions carried out;
That, on the other hand, if the concealment cannot result from the simple possession of inside information, it is characterized with regard to the person who, knowingly carrying out transactions on the market before this information is known to the public, benefits from the proceeds of insider trading thus consumed;
From which it follows that the means cannot be accepted;
