Com, February 13, 1996, Bull n ° 46, N ° 94-10-077
LexInter | May 27, 2002 | 0 Comments

Com, February 13, 1996, Bull n ° 46, N ° 94-10-077

Whereas, according to the judgment criticized (Paris, December 15, 1993), that, on May 22, 1990, the company Quillet had promised to sell to the company France Antilles a number of shares in the company Editions des Recent Nouvelles d’Alsace representing at most 61.1’3fo and at least 51% of the capital and voting rights, the exercise of the option must take place no later than June 30, 1993 and the effective date being that of the end of the month following the receipt of the registered letter by which it should be formalized; that, by letter delivered te 30 June 1993, the company Union de Reims, which had replaced the company France Antilles, raised the option for 51% of the capital; that, on July 20, 1993, the board of directors of the company Editions of the latest news of Alsace approved the cession; that the handing-over of the orders of movements and complementary parts took place on July 30, 1993; that, applying article 5-3-6 of its general regulations, the Stock Exchange Council considered that the Alsatian Media Society, which itself replaced the Union de Reims company, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Recent Nouvelles d’Alsace and, consequently, it was required to file a draft simplified public tender offer for the shares of this company, which can be carried out by guaranteeing the price; that the Alsatian Media Society appealed for annulment of this decision, that the handing-over of the orders of movements and complementary parts took place on July 30, 1993; that, applying article 5-3-6 of its general regulations, the Stock Exchange Council considered that the Alsatian Media Society, which itself replaced the Union de Reims company, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Recent Nouvelles d’Alsace and, consequently, it was required to file a draft simplified public tender offer for the shares of this company, which can be carried out by guaranteeing the price; that the Alsatian Media Society appealed for annulment of this decision, that the handing-over of the orders of movements and complementary parts took place on July 30, 1993; that, applying article 5-3-6 of its general regulations, the Stock Exchange Council considered that the Alsatian Media Society, which itself replaced the Union de Reims company, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Recent Nouvelles d’Alsace and, consequently, it was required to file a draft simplified public tender offer for the shares of this company, which can be carried out by guaranteeing the price; that the Alsatian Media Society appealed for the annulment of this decision, applying article 5-3-6 of its general regulations, the Stock Exchanges Council considered that the Société Alsacienne des Médias, which itself replaced the company Union de Reims, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Dernieres Nouvelles d’Alsace and, consequently, it was required to file a draft public offer simplified purchase of shares in this company, achievable by price guarantee; that the Alsatian Media Society appealed for the annulment of this decision, applying article 5-3-6 of its general regulations, the Stock Exchanges Council considered that the Société Alsacienne des Médias, which itself replaced the company Union de Reims, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Dernieres Nouvelles d’Alsace and, consequently, it was required to file a draft public offer simplified purchase of shares in this company, achievable by price guarantee; that the Alsatian Media Society appealed for annulment of this decision, was itself substituted for the company Union de Reims, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Dernieres Nouvelles d’Alsace and, that consequently, it was held to deposit a project of simplified public offer of purchase of the shares of this company, realizable by guarantee of course; that the Alsatian Media Society appealed for the annulment of this decision, was itself substituted for the company Union de Reims, had acquired a block of securities traded on the haro cote market, conferring on it 51% of the capital and voting rights of the company Éditions des Dernieres Nouvelles d’Alsace and, that consequently, it was held to deposit a project of simplified public offer of purchase of the shares of this company, realizable by guarantee of course; that the Alsatian Media Society appealed for annulment of this decision, simplified purchase of shares in this company, achievable by price guarantee; that the Alsatian Media Society appealed for annulment of this decision, simplified purchase of shares in this company, achievable by price guarantee; that the Alsatian Media Society appealed for annulment of this decision,

On the first means, taken in its four branches

Whereas the Alsatian Media Society criticizes the judgment for having rejected its appeal, then, according to the appeal, on the one hand, it is for the field of the law to define the principles and the conditions of application of the binding stock market procedures, and in particular the price guarantee procedure, in that these procedures are such as to impose on persons obligations contrary to the fundamental principles of the law of obligations, in particular the obligation to buy at a price not consented; that it is therefore for the law alone to define the concept of “companies whose securities are traded on the” over-the-counter “market, which conditions the application of the price guarantee procedure so that by ruling that the Stock Exchanges Council had been able to proceed to this definition by application of its general regulations, which are regulatory in nature, the Court of Appeal disregarded Article 34 of the Constitution of October 4, 1958, together the area of. the delegation granted by article 6 bis of the law of 22 January 1988; then, on the other hand, that the definition of the concept of “companies whose securities are

“Traded on the over-the-counter market” could only be carried out with regard to general principles of stock market law; that by retaining the formal criterion drawn from the registration in the over-the-counter market record on the date of the transaction, while the application of this criterion, which, in the state of the repeal of the article 16 of the law of 23 December 1964, no longer had any legal support, led to making the application of the price guarantee procedure dependent or else due to chance on a one-off registration, or else, on the list, on the sole shareholder wish

to cause a registration of convenience and pure form in order to ensure, in the absence of any real market, an exit from a company that is nevertheless closed, the court of appeal did not legally justify its decision with regard to article 6 bis of the law of January 22, 1988 and article 5-3-6 of the general regulations of the Stock Exchanges Council; then, in addition, that the binding stock market procedures, and in particular the price guarantee procedure, has for purpose the protection of the savers, and not that of the shareholders of the closed companies bound by the affectio societatis; that by refusing, in order to define the concept of “securities traded on the over-the-counter market”, to investigate whether the company Latest news from to characterize a real and not artificial market, the court of appeal did not legally justify its decision with regard to article 6 bis of the law of January 22, 1988 and article 5-3-6 of the general regulations the Stock Exchange Council; and then, finally, that a press company, within the framework of which any transfer, including between shareholders, must necessarily be the subject of a prior approval of the board of directors, constitutes by statute a closed company, of which the independence is guaranteed by public order provisions, and as such cannot be the subject of a price guarantee procedure, the application of which is reserved for public companies whose securities are traded on the stock market , so that the court of

But given, in the first place, that using its power of interpretation of article 6 bis of the law of January 22, 1988, and by legally justifying its decision, the court of appeal held, rightly, that the negotiation of a security on the over-the-counter market, within the meaning of this text, was a well-known fact by the publicity which was given to it in accordance with the general regulations of the Stock Exchanges Council and, consequently, a security could be considered as negotiated on the market in question, as long as it appeared in the daily over-the-counter statement, inserted in the Official Bulletin of stock market prices, published by the French Stock Exchange Company;

Whereas, secondly, having noted that article 6 bis of the law of 22 January 1988 and article 5-3-6 of the general regulations of the Stock Exchange Council, adopted by application of this law, concerned all companies falling within their scope without distinction or exception according to their legal regime, their articles of association, the structure of their capital or the status of “savers” of their shareholders, the Court of Appeal has makes an exact application of these texts by not investigating whether the company Éditions last Nouvelles d’Alsace could be considered as making a public call for savings, and by not excluding the application of the price guarantee procedure to companies whose statutes include an approval clause;

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

And on the second means, taken in its three branches

Whereas the Société Alsacienne des Médias still criticizes the judgment for having ruled as it did, then, according to the appeal, on the one hand, that, in the context of the transfer of securities

traded on a stock exchange, the parties’ agreement may delay the transfer of ownership of the securities; that thus, as soon as it resulted from its own findings that the effective date of the control block transfer promise had been set by the parties at the end of the month following receipt of the registered letter by which be formalized the lifting of

option, and that thus the acquisition of the control block had not been carried out by transfer of the ownership of the securities until July 31, 1993, the court of appeal could not, in order to judge the conditions of application of the price guarantee procedure, retain the date of June 30, 1993, without disregarding the legal consequences of its own findings with regard to articles 1134 and 1583 of the Civil Code; then, on the other hand, that by judging that the condition of acquisition of the control block of the press company could have been considered as fulfilled from June 30, 1993, i.e. before the approval on July 20, 1993 of the sale by the board of directors, the court of appeal disregarded the public order provisions of the article 4 of the law of ln August 1986 and falsely applied article 1583 of the civil code; and then, finally, that, as confirmed by the new article 47 bis of the law of January 3, 1983 in its wording resulting from article 10 of the law of December 31, 1993, the transfer of the ownership of negotiable securities on the over-the-counter market takes place not on the date of the agreement of wishes on the item and the price, but on the date of registration in the securities account, so that by retaining the date of June 30, 1993 of the exercise of the option as the date of acquisition of the control block, and not the date of registration in the account of the Société Alsacienne des Médias of the titles covered by the promise to sell, the Court of Appeal did not

But expected, in the first place, that by retaining that in the sense of

the law of January 22, 1988, and of the general regulations of the Stock Exchanges Council, the acquisition took place on June 30, 1993, date on which, by application of article 1583 of the Civil Code, the sale of the block of securities had become perfect due to the acceptance by the Union de Reims society of the promise of the company Quillet, making the synallagmatic agreement of the parties irrevocable, even if, by their agreement, the transfer of the shares had been postponed one month later, and that in addition, once it had been satisfied, the condition of the approval of the board of directors of the company Editions des Latest Nouvelles d’Alsace had retroactive to the date of acceptance of the promise, the Court of Appeal was able to rule as it did;

Expected, secondly, that it follows neither from the judgment nor from its writings that the Société alsacienne des media has supported before the Court of Appeal the claim contained in the third branch of the plea; that in this element it is therefore new and mixed in fact and in law;

That the inadmissible plea for the surplus-

FOR THESE REASONS

DISMISSES the appeal.

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