OBSTRUCTION AND DELEGATION OF AUTHORITY

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, on May 20, two thousand and three, delivered the following judgment:

On the report of Counselor MAZARS, the observations of the professional civil society WAQUET, FARGE and HAZAN, of the professional civil society LYON-CAEN, FABIANI and THIRIEZ, lawyers at the Court, and the conclusions of the Advocate General CHEMITHE;

Deciding on the appeal brought by:

– X … Jean-Marie,

against the judgment of the VERSAILLES Court of Appeal, 9th chamber, dated May 16, 2002, which, on referral after cassation, in the proceedings against him for obstructing the regular functioning of the works council, ruled on civil interests;

Having regard to the briefs produced, in demand and in defense;

On the first ground of appeal, alleging violation of Articles L. 431-5, L. 432-1, L. 483-1 of the Labor Code, 121-1 of the Penal Code, 593 of the Code of Criminal Procedure, default of reasons, lack of legal basis;

“in that the judgment under appeal retained, against Jean-Marie X …, the constituent elements of the offense of obstructing the regular functioning of the central works council of the company CGE (newly Vivendi);

“on the grounds that, even when he entrusts a representative with the task of chairing the works council, the head of the company must, when taking a measure falling within the provisions of Article L. 432-1 of Labor Code, ensure that the Committee is consulted, without being able to oppose the argument based on a delegation of powers;

that in the present case, it is therefore to Jean-Marie X …, president of the company Vivendi, that it belonged to ensure the consultation of the central works council, since it does not ” has never permanently delegated either his role as company manager or his function as Chairman of the Central Works Council, as shown by his personal positions on the organization of working time and his statements during the meeting of the Central Works Council of September 16, 1997 relating to the timetable which will be followed on the phases of the envisaged consultation; that it is thus demonstrated that, whatever the delegations of power that Jean-Marie X … may have granted to members of the management,

in the state of this delegation, Mr. Z .. therefore had sole responsibility for the negotiation and signing of the framework agreement on the reduction of working time within the Water Pole of the Générale des Eaux group; that the contested judgment, by confining itself to basing itself, in order to attribute the responsibility for the alleged facts to Jean-Marie X …, on the only ad hoc delegations that he had been able to grant to members of the management to chair the Committee Central company or sign the agreement of January 28, 1998, without explaining the delegation of powers made to Mr Z .. by Jean-Marie X … on June 1, 1997, did not therefore legally justify his decision “; therefore had sole responsibility for negotiating and signing the framework agreement on the reduction of working hours within the Water Pole of the Générale des Eaux group; that the contested judgment, by confining itself to basing itself, in order to attribute the responsibility for the alleged facts to Jean-Marie X …, on the only ad hoc delegations that he had been able to grant to members of the management to chair the Committee Central company or sign the agreement of January 28, 1998, without explaining the delegation of powers made to Mr Z .. by Jean-Marie X … on June 1, 1997, did not therefore legally justify his decision “; therefore had sole responsibility for negotiating and signing the framework agreement on the reduction of working hours within the Water Pole of the Générale des Eaux group; that the contested judgment, by confining itself to basing itself, in order to attribute the responsibility for the alleged facts to Jean-Marie X …, on the only ad hoc delegations that he had been able to grant to members of the management to chair the Committee Central company or sign the agreement of January 28, 1998, without explaining the delegation of powers made to Mr Z .. by Jean-Marie X … on June 1, 1997, did not therefore legally justify his decision “; framework agreement on the reduction of working hours within the Water Pole of the Générale des Eaux group; that the contested judgment, by confining itself to basing itself, in order to attribute the responsibility for the alleged facts to Jean-Marie X …, on the only ad hoc delegations that he had been able to grant to members of the management to chair the Committee Central company or sign the agreement of January 28, 1998, without explaining the delegation of powers made to Mr Z .. by Jean-Marie X … on June 1, 1997, did not therefore legally justify his decision “; framework agreement on the reduction of working hours within the Water Pole of the Générale des Eaux group; that the contested judgment, by limiting itself to basing itself, in order to attribute the responsibility for the alleged facts to Jean-Marie X …, on the only specific delegations that he had been able to grant to members of the management to chair the Committee Central company or sign the agreement of January 28, 1998, without explaining the delegation of powers made to Mr Z .. by Jean-Marie X … on June 1, 1997, did not therefore legally justify his decision “;

Whereas it follows from the judgment under appeal that, in the context of a reorganization of its “water division”, the Compagnie Générale des Eaux, now Vivendi, signed on January 20, 1998, with two trade unions, a “framework agreement on the reduction, organization and organization of working time and on employment” and that in disregard of the provisions of articles L.431-5 and L.432-1 of the Labor Code , the central works council, was not consulted before the signing of this collective agreement;

Whereas, to say that the constituent elements of the offense of obstructing the regular functioning of the Central Works Council were established at the expense of Jean-Marie X …, then chairman of the board of directors of the aforementioned company, the court of the second degree notes that the latter has not delegated, on a permanent basis, either his role of business manager or his function of chairman of the central works council as demonstrated by his personal positions on the development of the working time and its statements on the timetable for the consultation phases to be considered, during the meeting of the central committee on September 16, 1997; that the judges retain that,

Whereas in the state of these statements, the court of appeal legally justified its decision;

Indeed, the business manager who personally participated in the commission of the offense cannot be exempted from his criminal responsibility by invoking a delegation of his powers;

From which it follows that the means are inoperative;

On the second ground of appeal, alleging violation of articles 1382, 1384, paragraph 5, of the Civil Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

“in that the judgment under appeal declared Jean-Marie X … personally liable for the harmful consequences of the offense of obstructing the regular functioning of the Central Works Council of the company CGE (newly Vivendi) and ordered to pay the civil party the sum of 0.15 euros in damages;

“on the grounds that, on the personal responsibility of Jean-Marie X … with regard to the civil party, it is appropriate, as was mentioned above, to consider that even though the fault qu ‘he committed is inseparable from his duties as manager of Vivendi, Jean-Marie X … incurred personal responsibility as soon as it was recognized by the Court, the meeting, against him, of elements of an intentional offense;

“then, on the one hand, that the director of a company prosecuted for obstructing the functioning of an institution, and who acted in the exercise of his functions, can not engage his civil liability with regard to of this institution once he has benefited from an acquittal; that only the company, for which he is the agent since he has acted in his name and on his behalf, may, if necessary, see his liability committed civil; that in this case, by declaring Jean-Marie X … personally liable with regard to the civil party simply because the elements constituting the offense of obstruction had been recognized against him, then nevertheless that he does nothad not been criminally convicted on this count, the Court of Appeal violated Article 1384, paragraph 5, of the Civil Code;

“then, on the other hand, that the personal liability of a manager towards third parties can only be accepted if he has committed a fault separable from his duties which is personally attributable to him; that in the present case , by declaring Jean-Marie X … personally liable with regard to the civil party, while recognizing that the fault he had committed was not separable from his functions as director of Vivendi, the court of ‘appeal violated article 1382 of the Civil Code “;

Whereas, to condemn Jean-Marie X … to compensate the central works council, civil party, for the damage resulting from the hindrance to its operation, the appeal judges, after having declared the elements gathered against him constitutive of this offense, pronounce by the reasons given in the means;

Whereas in this state, the Court of Appeal justified its decision;

That, on the one hand, the quality of chairman of the board of directors of a company is exclusive of that of agent from which would arise the responsibility imposed on the principals in application of article 1384, paragraph 5, of the Civil Code ;

That, on the other hand, the manager of a legal person, who has intentionally committed an offense having harmed a third party, engages his civil liability with regard to this one;

From where it follows that the means, inoperative in that it takes advantage of the absence of pronouncement of a sentence against Jean-Marie X …, could not be accepted;

And considering that the stop is regular in the form;

DISMISSES the appeal;

CONDEMNS Jean-Marie X … to pay the central works council of the company Vivendi the sum of 3,000 euros under Article 618-1 of the Code of Criminal Procedure;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberation: Mr. Cotte president, Ms. Mazars advisor rapporteur, Mr. Joly, Ms. Chanet, Anzani, MM. Beyer, Pometan councilors of the chamber, MM. Desportes, Ponsot, Valat, Mme Ménotti referendum advisers;

Advocate General: M. Chemithe;

Clerk of the chamber: Mrs Lambert;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;