COURT OF APPEAL OF PARIS
3rd Chamber – Section B
JUDGMENT OF SEPTEMBER 30, 2005
(n ° 331, 21 pages)
Registration number in the general directory: 96/12548
Decision referred to the Court: Judgment of November 23, 1994 – Tribunal de Grande instance PARIS – First Chamber judgment of 7 November 1996 and 22 June 1999 the commercial Court of PARIS Fourteenth and seventh Rooms
Docket No. 1994/12938
limited company Crédit Lyonnais
headquartered Republic Street
and its headquarters central 19 Boulevard des Italiens
taken in the person of its Chairman of the Board of Directors
represented by SCP HARDOUIN, attorneys at the Court
assisted by Maître Georges JOURDE, lawyer at the bar of PARIS Toque 06
Société anonyme CDR CREANCES -GROUPE CONSORTIUM REALIZATION coming to the rights and obligations of the Company BANQUE OCCIDENTALE “SDBO” having its registered office at 27/29 rue Le Pelletier
taken in person of its legal representatives domiciled in this capacity at the said headquarters
represented by SCP CALARN-DELAUNAY, attorneys at the Court assisted by Maître Jean-Pierre MARTEL, lawyer pleading for SCP RAMBAUD-MARTEL at the bar of PARIS Toque P 134
Mr. PROCUREUR GENERAL at the PARIS Court of Appeal
in its offices at the Palais de Justice
34 Quai des Orfèvres
IN PRIVATE PERSON
Limited company COMPAGNIE EUROPEENNE DE DISTRIBUTION ET DE PESAGE “CEDP” formerly called BERNARD TAPIE FINANCE with its registered office 3/5 nie Saint-Georges
taken in the person of its legal representatives domiciled in this capacity at the said registered office
represented by SCP LAGOURGUE – OLIVIER, attorneys at the Court assisted by Maître Xavier FLECHEUX, lawyer pleading for SCP FLECHEUX and Associates at the PARIS bar Toque P 537
AGF HOLDING company coming to the rights of the AGF ASSURANCES SA company coming to the rights of the METROPOLE company having its head office 87 rue de Richelieu 75012 PARIS
taken in the person of its Chairman of the Board of Directors domiciled in this capacity at said head office
represented by Maître Dominique OLIVIER, attorney at the Court
assisted by Maître Dorninique LEFORT, lawyer at the PARIS bar Toque R 45
BANQUE AGF company under the rights of BANQUE GENERALE DU PHENIX
and CREDIT CHIMIQUE
having its registered office at 14 rue Halévy
taken in the person of its Chairman of the Board of Directors domiciled in this capacity at the said headquarters
represented by Maître Dominique OLIVIER, attorney at the Court
assisted by Maître Dominique LEFORT, lawyer at the bar of PARIS Toque R 45
Société anonyme EFFICACITE FINANCE CONSEILS “ EFC ”having its registered office at 1 Rond Point des Champs Elysées
taken in the person of its legal representatives domiciled in this capacity at the said headquarters
by the SCP FISSELIER – CHILOUX – BOULAY, attorneys at the Court
assisted by Maître Eric TEYNIER, lawyer pleading for the SCP TEYNJER – PIC and Associates at the bar of PARIS Toque J053
Mr. President Jean-René FARTHOUAT
residing 7 rue de la Tour des Dames
as ad hoc agent of the EUROPEAN DISTRIBUTION AND WEIGHING COMPANY “CEDP” formerly named BERNARD TAPIE FINANCE
represented by SCP LAGOURGUE – OLIVIER, admitted to the Court
assisted by Maître Xavier FLECHEUX, lawyer pleading for SCP FLECHEUX and Associates at the bar of PARIS Toque P 537
RESPONDENT AND APPELLANT:
SELAFA MJA acting in the person of Maître Jean-Claude PIERREL, appointed to replace Maître Jean-Claude PIERREL
with its registered office at 169 bis rue du Chevaleret
75648 PARIS CEDEX
as co-representative of the creditors and judicial co-liquidator of:
– SNC GROUPE BERNARD TAPIE
– Company ALAIN COLAS TAHITI
– SNC FINANCJERE IMMOBILIERE BERNARD TAPIE
– Company BERNARD TAPIE GESTION
as co-representative of creditors and judicial co-liquidator of Mr. and Mrs. Bernard TAPIE
represented by SCP VARIN- PETIT, attorneys at the Court assisted by Maître Jean-Paul PETRESCHI, lawyer at the bar of PARIS Toque B 283
APPELLANT Maître Didier COURTOUX
appointed to replace Maître PAVEC
residing at 62 boulevard de Sébastopol
in his capacity as co-representative of creditors and judicial co-liquidator of
– SNC GROUPE BERNARD TAPIE
– Company ALA1N COLAS TAHITI
– SNC FINANCIERE IMMOBILIERE BERNARD TAPIE
– Company BERNARD TAPIE GESTION
as co-representative of creditors and co-liquidator of Mr. and Mrs. Bernard TAPIE
represented by SCP VARIN-PETIT, attorneys at the Court
assisted by Maître Maurice LANTOURNE, lawyer at the bar of PARIS Toque B 549
Maître Jean-Claude PIERREL
residing at 169 bis rue du Chevaleret
Paris Court of Appeal ARRET OF SEPTEMBER 30, 2005
Y Chamber, section B RG no 1996/12548 – 3rd page
as representative of the creditors of the company BERNARD TAPIE FINANCE
represented by SCP VARIN-PETIT, attorney at the Court
assisted by Maître Jean-Paul PETRESCHI, lawyer at the PARIS bar Toque B 283
Limited company CONSORTIUM DE REALISATION coming under the rights of CDR PARTICIPATION formerly known as CREDIT LYONNAIS INVESTISSEMENT (CLINVEST)
having its registered office 3/5 rue Saint Georges
taken in the person of its Chairman of the Board of Directors domiciled in this capacity at the
represented by Maître François TEYTAUD, attorney at the Court assisted by Maître Silvana MORANDI, lawyer pleading for the SCP JEANTET of the Paris bar, substituting Maître Georges TERRIER Toque T 0404
Mr. Bernard T.
represented by Maître Lionel MELUN, attorney at the Court
assisted by Maître Olivier PARDO and Maître Ludovic LANDIVAUX, litigators
for SELARL PARDO – BOULANGER and Partners at the bar of PARIS Toque K 170
Madame Dommique M.-D. wife T.
represented by Maître Lionel MELUN, attorney at the Court
assisted by Maître Olivier PARDO and Maître Ludovic LANDIVAUX, litigators
for SELARL PARDO – BOULANGER and Associates at the bar of PARIS Toque K 170
public limited company, incorporated under Luxembourg law
with its registered office at 3 Place de la Clairefontaine
in the person of its legal representatives domiciled in this capacity at said registered office
not having constituted an attorney
OMEGA VENTURES LIMITED company, registered under JERSEY
having its registered office at Pirouet House – Union Street Saint Relier
taken as the person of its legal representatives domiciled in this capacity at said registered office
not having constituted a solicitor
Company COATBRIDGE HOLDING LIMITED, Company incorporated under the law of the British Isles with its registered office in Craigmuir Chambers Road Town
Taken in the person of its legal representatives domiciled in this capacity at said registered office
not having constituted a
Société Anonyme MATIN VEST
having its registered office at 6 avenue Matignon
taken in the person of its legal representatives domiciled in this capacity at said registered office
n ‘ not having constituted a confession
COMPOSITION OF THE COURT:
The case was debated on June 8, 2005, in open court, before the Court
Mr. WEILL, President
Mr. MON1N-HERSANT, Counselor
Mrs. CATRY, Counselor
who deliberated on it
Registrar, during the debates: Mr. COULON,
PUBLIC MINISTRY: the case was communicated to the Public Ministry represented by
Mrs Eliane HOULETTE who was heard in her observations at the hearing STOP: – deemed contradictory, – pronounced publicly by Mr. Pierre – Main WEILL, President, – signed by Mr. Pierre-Alain WEILL, President and by Mr. Daniel COULON, Clerk present during the delivery.
The “Bernard TAPIE group” was made up of a collective company named Groupe Bernard TAPIE (SNC GBT or GBT) with as partners Mr. and Mrs. Bernard T., itself a shareholder of the limited company Bernard TAPIE Finance (SA BTF or BTF) , majority partner of the limited liability company (Gmbh in German) BTF Gmbh ADIDAS, of a Bernard TAPIE financial and real estate general partnership (SNC FIBT or FIBT) as well as of a Main Colas Tahiti (ACT) company.
The dispute before the Court today concerns the only “ADIDAS operation”, ie the acquisition and successive resales of this company to which the companies of the Bernard TAPIE Group were directly or indirectly parties.
In July 1990 and January 1991, Mr. Bernard T. (BTF) bought 78% of the capital of ADIDAS for the price of 1 billion 386 million francs, entirely financed by the banks, of which 30% by the western bank company (SDBO, today CDR Créances), a subsidiary of Crédit Lyonnais, Crédit Lyonnais having itself become a subsidiary of Crédit Agricole.
Mr. TAPIE having chosen to devote himself to his political career (appointed Minister of the City for the first time by decree of April 16, 1992 and a second time by decree of December 26, 1992), undertook to sell his stake in ADIDAS, which represented the most important part of its industrial and commercial activities.
After having sold, on August 13, 1991, 20% of ADIDAS to its competitor PORTLAND, it agreed in July 1992 to sell the rest of its ADIDAS shares to PORTLAND. This group renounced in October 1992 to 1 ‘ acquisition planned for 2 billion 922 million francs. After a reduction offer at the price of 2 billion 711 million francs (ie a reduction of 7.22%) which was not accepted; BTF bought out the 20% stake in PORTLAND with financial assistance from Crédit Lyonnais, ADIDAS being valued at 2 billion 780 million francs.
Finally, on December 12, 1992, a memorandum signed by the TAPIE Group and the SDBO decided the sale of ADIDAS through the SDBO and the reimbursement of the bank.
On December 16, 1992, in application of the memorandum, a contract was concluded between the TAPIE Group and the SDBO entrusting the SDBO with the sale of the 78% of ADIDAS capital held by BTF at a price of 2 billion 85 million francs, ADIDAS is thus valued at 2 billion 673 million francs.
On February 12, 1993, the sale of 78% of ADIDAS capital took place for the agreed price, the buyers being:
CLINVEST 9.9% already owner of 10%
RICESA 15% (Mr. Robert L.-D.)
OMEGA 19 , 9%
COATBRIDGE 15 MATIN
PHENIX 3.20% AGF group already owner of 5%
METROPOLE 9% AGF group,
EFC 3% Mme B. already owner of 5%
Mr. Robert LOUIS-DREYFUS at the same time benefited from a purchase option (a promise to sell) of the entire capital of ADIDAS at a price of 4 billion 650 million francs valid until December 31, 1994 .
March 13, 1994, a MoU was signed between SDBO Lyonnais and Mr. T. Credit fm to the banking relationships of the parties.
On November 23, 1994, the tribunal de grande instance of PARIS declared that the protocol had lapsed and ordered GBT and Mr. and Mrs. T. to pay the SDBO the sums of 236 million 454,000 francs and 67 million francs.
On November 30, 1994, the companies GBT, FIBT, BTF, BT Gestion and ACT were placed in receivership.
On December 14, 1994, FIBT and BT Gestion were put into compulsory liquidation.
On January 11, 1995, ACT was put into compulsory liquidation.
On January 23, 1995, Mr. and Mrs. Bernard T. were put into compulsory liquidation.
On March 31, 1995, GBT was put into compulsory liquidation.
On May 31, 1995, the confusion of the assets of the various entities put into liquidation was ordered, while BTF, which became the Compagnie Européenne de Distribution et de Pesage (CEDP), was the subject of a continuation plan.
On December 22, 1994, Mr. Robert L.-D. exercised the purchase option and became the owner of ADIDAS for the price of 4 billion 650 million francs, this acquisition being financed by Crédit Lyonnais.
In November 1995, ADIDAS was listed on the stock market by Mr. Robert L. -D., With the support of Crédit Lyonnais; valued at a price of 11 billion francs, 60% of the capital of ADIIDAS was put on the market for 7 billion francs.
Since then, Mr. Robert L. -D. sold ADIDAS, which is listed on the stock exchange.
The Court is seized of the appeals:
1 ° / of the judgment of 23 November 1994 pronounced by the tribunal de grande instance of PARIS in the dispute between Mr. and Mrs. T. and three companies of the TAPIE group against Crédit Lyonnais and SDBO , which:
– noted the nullity of the protocol of March 13, 1994 which was to regulate all relations between the parties.
– gave notice to the applicants of the forthcoming referral to the Paris Commercial Court of the sale of ADIDAS.
– ordered the applicants to pay the SDBO the sums of 263 million 785,723 francs and 74 million francs.
2 ° / – of the judgment of November 7, 1996 pronounced by the Commercial Court of PARIS opposing the liquidating agents of Mr. and Mrs. T. and the companies of the TAPIE Group to Crédit Lyonnais, to SDBO, to CLINVEST and the association of small carriers for the cancellation of the disputed sale of ADIDAS, intervener, and CEDP (formerly BTF), which:
– said that SDBO committed errors in its relations with the TAPIE Group.
– condemned it to the payment of a provision of 600,000,000 francs (six hundred million francs) and ordered an investigative measure.
3 ° / – the judgment of the Paris Commercial Court of 22 June 1999, opposing the ad hoc agent of CEDP to Crédit Lyonnais, to CDR Créances (ex SDBO) to CDR PARTICIPATIONS (ex CLINVEST), to RICESA, OMEGA, COATBRIDGE , AGF Assurance, AGF Banque, EFFICACITE FINANCE CONSEIL and MATIN VEST, with regard to compensation for the damage suffered during the sale of ADLDAS, the Court confirmed the connection retained by the court with the appeal of the two other decisions and referral to the Court by order of the Pre-Trial Counselor of 22 November 2001;
The Court ruled:
V – by judgment of January 28, 1998 on the appeal of the judgments of the tribunal de grande instance of PARIS and the commercial tribunal:
– on the appeal from the judgment of the tribunal de grande instance of 23 November 1994, the Court said that on the date of the appeal, on 27 February 1994, Mr and Mrs T. and GBT were in compulsory liquidation, that they were therefore inadmissible and referred to the pre-trial for the appeal of the agents of the liquidated.
– on the appeal of the judgment of the Commercial Court of November 7, 1996, the Court has, subject to the examination, on the occasion of the substantive questions, of the right of the agents to request compensation based on the behavior of banks with regard to GBT as parent company of BTF, stay of proceedings including on the provision of 600 million francs and reversed on the appraisal.
– by judgment of February 19, 1999, the Court ruling on the appeal against the judgment of the Paris tribunal de grande instance of November 23, 1994:
– dismissed the requests made as a result of the memorandum of December 12, 1992 and the protocol of March 13, 1994 except regarding the ADIDAS case.
– stay of proceedings on the convictions of GBT and of Mr. and Mrs. T. for the benefit of the SDBO.
– says the tort liability of the SDBO engaged for the loan to ACT of 80 million francs.
– ordered CDR Receivables payable to agents 40 million francs (€ 6 million 097 as a provision.
– reversed the order to pay the provision of 600 million francs.
– suspended proceedings for the remainder due to the criminal proceedings in progress.
3 ° / -. by judgment of June 25, 1999, the court stayed proceedings because of the ongoing criminal proceedings.
4 ° / – by judgment of June 28, 2002, the court again suspended proceedings because of the pending criminal proceedings, exonerated Maître MEILLE, commissioner for the execution of the continuation plan of the EDPS (ex BTF), its mission having ended.
5 ° / – by judgment of November 12, 2004, the Court ordered mediation, following the memorandum of understanding of November 10, 2004 between the parties, entrusted for three months to Mr. Jean-François BURGELIIN, honorary public prosecutor at the Court of Cassation.
6 ° / – by judgment of January 25, 2005, the Court extended by two months the time limit for mediation.
Crédit Lyonnais concluded on June 2, 2005 (49 pages) and disclosed 70 documents.
The CDR Créances Realization Consortium (formerly SDBO) concluded on June 3, 2005 (120 pages) and communicated 100 documents.
The CDR Realization Consortium (ex CDR PARTICIPATION, ex CLINVEST) concluded on November 5, 2004 (11 pages) and communicated 10 items.
The Compagnie Européenne de Distribution et de Pesage, CEDP, (formerly BTF) has not concluded.
AGF HOLDING (under the rights of AGF ASSURANCE) and AGF BANQUE (under the rights of Banque Phénix and Crédit Chimique) entered into on November 5, 2004 (30 pages).
Efficiency Finance Conseil (EFC) concluded on October 22, 2004 (16 pages) and communicated 3 documents.
Masters PIERREL and COURTOUX, as representatives of creditors and liquidators of SNC BTF, ACT, SNC FIBT, SA BT GESTION and of Mr. and Mrs. Bernard T., concluded on June 3, 2005 (79 pages) and communicated 77 documents .
Mr. and Mrs. Bernard T. concluded on October 22, 2004 (29 pages) and communicated 10 exhibits.
The CEDP, acting through the President of the Bar FARTHOUAT, ad hoc representative, appointed by ordinance of March 13, 1998, concluded on May 23, 2005 (49 pages) and communicated 33 documents.
The companies RICE SA, OMEGA, COAT BRIDGE and MATINVEST have not constituted a declaration.
Madam Advocate General orally developed her conclusions at the pleadings hearing.
The facts go back to 1993.
The Court is seized of appeals from the three decisions rendered in 1994 (on November 23 by the tribunal de grande instance of PARIS), 1996 (on November 7, 1996 by the commercial tribunal of PARIS) and 1999 (on June 22, 1999 by the tribunal de trade of PARIS).
The length of the collective proceedings, the various stays of proceedings justified by the ongoing criminal proceedings, the expertises, the attempt at mediation, which was unsuccessful, are the main reasons why the pleadings only took place on the 8th June 2005.
For a full account of the facts, the latest claims and the means of the parties, it is advisable to refer to the submissions of the parties, as well as to the documents submitted to the debates, in particular to the legal expert reports of Mr. SALUSTRO committed by the court of commerce (December 7, 1992), Mr. TOURIN, commissioned by the commercial court (April 10, 1995), Mr. PERONNET, commissioned by the examining magistrate (September 19, 1995), to the report of the parliamentary commission of inquiry ( July 5, 1994) and at the consultations of Professors Nicolas MOLFESSIS (October 2004), Roger PERROT (November 2004) and Thierry REVET (October 1994). REASONS FOR THE DECISION I On procedural issues 1 – On the stay of proceedings
The parties are unanimous in requesting the lifting of the stay of proceedings decided by four successive judgments of January 23, 1998, February 19, 1999, June 25, 1999 and June 28, 2002. In fact, the current criminal proceedings no longer concern the ADIDAS operation at the following the final order of partial dismissal, while the documents of the criminal proceedings were regularly added to the debate.
The stay of proceedings should therefore be lifted. 2 – At the request of Crédit Lyonnais to reject the documents communicated by the agents on May 24 and 25, 2005 under numbers 65 to 76
By separate submissions from its submissions on the merits, Crédit Lyonnais requests that exhibits 65 to 76 communicated by the representatives on 24 and 25 May 2005 be dismissed from the proceedings on the grounds that the pleadings were set for 8 June 2005.
The investor search mandate given by CLINVEST on January 28, 1993 (exhibit n ° 65) was communicated by Crédit Lyonnais and the SDBO in the first instance the BUSINESS PLAN of 1992-95 (exhibits n ° 66) appears in the reports of expertise, the citation in retraction of the ordinance of October 25, 1995 (exhibit no.68), the summons before the Paris commercial court of July 2004 (exhibit no.69), the opposition to the ordinance of October 25, 1995 (Exhibit No. 70), the judgment of the Court of Appeal 30 Chamber A of January 11, 2005 (Exhibit No. 71), the extract from the 1991 annual report of BTF SA (Exhibit No. 72) the supplement consultation of Professor REVET of May 24, 2005 (document n ° 73), the updated liabilities (document n0 74),the order of partial dismissal of March 13, 2001 (Exhibit 77) constitute documents known to the appellants for having been notified to them for some, others to be part of the documents communicated;
On the other hand, the attestation of the representative of WALDO (exhibit n ° 66) dated May 20, 2005, the letter from Maître Francis BOUSQUET, lawyer at the Paris Court of Appeal, dated May 26, 2005 (exhibit n ° 75) and the interpellative summons from Mrs G. BEAUX of May 31, 2005 (Exhibit 76) constitute new documents produced late when they could have been established so as to be communicated in good time.
Exhibits 66, 75 and 76 will be excluded from the proceedings because they could not be the subject of an adversarial debate. 3 – At the request of the ad hoc representative of the CEDP to strike out the proceedings concerning the companies RICESA, OMEGA, VENTURES LIMITED, COATBRIDGE and MATIN VEST
As these companies have not been assigned or reassigned, have not constituted a declaration and are not the subject of any request, it is appropriate, as rightly requested by the ad hoc representative of the CEDP, to put them out of cause. 4 – On the inadmissibility request made by Crédit Lyonnais CDR Créances, AGF and EFC against Mr and Mrs Bernard T., voluntary interveners As the applicants for inadmissibility claim, relying on Article L 222 – 9 of the Commercial Code, Mr. and Mrs. Bernard T. are represented by their liquidators and cannot be parties to the proceedings or intervene in their main capacity.
However, their intervention, to support the claims of the liquidator agents justified by their interest in seeing the liabilities of their liquidation reduced being manifest, constitutes an ancillary intervention within the meaning of article 330 of the New Code of Civil Procedure.
In addition, the right to intervene in a procedure which will necessarily have an impact on the collective procedure of which they are the subject in a personal capacity and the consequences of this not only patrimonial, but personal constitutes a fundamental right justifying their intervention.
Consequently, the accessory voluntary intervention of Mr. and Mrs. T. will be considered admissible. 5- On the request for inadmissibility of the action of the liquidating agents of GBT, ACT, FIBT, BTG
The liquidator agents are asking for compensation for the damage that GBT would have suffered as a shareholder of its subsidiary BTF during the sale by BTF of its stake in ADIDAS.
Representatives of GBT, which is no longer a shareholder of BTF, the liquidator agents cannot, in this capacity which they have lost since the order of 25 October 1995 for the allocation of BTF shares to the SDBO, an order subject to an ongoing dispute, request the capital gain resulting from the sale, of which they would have been deprived.
However, the memorandum dated 10 December 1992, the disputed date of which is irrelevant in this regard, signed by Bernard T. in a personal capacity, BTF and GBT provided for the sale of ADIDAS and the allocation of its price immediately and in priority for the payment of sums due to the bank by GBT and BTF, which had contributed to the acquisition of ADIDAS; this memorandum was followed by the signing of the contract of December 16, 1992 entrusting the SDBO with the sale of ADIDAS.
The link between the two acts is indisputable, one being the outright implementation of the other. The liquidator agents are therefore entitled to criticize the conditions under which the agreement of 16 December 1992 entrusting the SDBO with the task of selling ADIDAS was carried out, in application of the memorandum.
They also base their action on compensation for the damage they consider to have indirectly suffered as a result of the faulty performance of the contract of December 16, 1992, without asking for the increase in the capital gain that could have been achieved by BTF. following the sale of ADIDAS.
The action of the liquidator agents is therefore admissible. 6 – On the admissibility of the action of the ad hoc agent of the CEDP On the request for inadmissibility of the action of the ad hoc agent of the Compagnie Européenne de Pesage et de Distribution (CEDC ex BTF).
The interim order issued by the president of the Paris commercial court on March 13, 1998 by which the President of the Bar FARTHOUAT was appointed as ad hoc representative of the CEDP does not have the authority of res judicata in the main proceedings in application of article 498 of the New Code of Civil Procedure, the subject of the dispute and the parties are also different from the summary proceedings and the substantive proceedings.
It is necessary to assess, without calling into question the order of March 13, 1998 which did not rule on the admissibility of the action on the merits and whose appeal was not raised, whether the appointed representative is qualified to act on behalf of the CEDP following the summonses issued on October 13 and 23, 1998.
It is not disputed that, when issuing these orders, the CEDP had the bodies duly appointed to act on its behalf. These are in principle the only ones empowered to take legal action. The monopoly conferred on the legal representatives of the legal person may only be infringed in the event of exceptional circumstances justifying the appointment of a provisional administrator responsible for replacing the organs of the company in its relations with third parties. .
The inaction which is reproached to the directors of the CEDP is likely to call into question their responsibility, it cannot give standing to act to an ad hoc representative against the purchasers of ADIDAS securities then owned by BTF which became CEDP.
The action of the “ad hoc” representative of the CEDP will therefore be deemed inadmissible. II On the merits 1) On the liability of the banks, Crédit Lyonnais, CDR Créances (SDBO), CDR (CLINVEST), in their relations with the TAPIE group with regard to the ADIDAS operation 1) On the legal qualification of the relations between banks and the TAPIE Group.
The last paragraph of the memorandum of December 12, 1992 stipulates that the operations described aimed at the withdrawal of the Bemard TAPIE Group from ADIDAS will be followed by as many application agreements as necessary. Consequently, by a single letter of engagement dated December 16, 1992 from GBT and BTF, addressed to the SDBO, Mr. T., in his capacity as chairman of the two companies, instructed the SDBO in particular to sell the 78% of the capital of ‘ADIDAS at a price of 2 billion 85 million francs no later than February 15, 1993, to any purchaser presented by the bank and to distribute the price thereof.
This letter, specifying a certain number of transactions, was signed by the SDBO, which thus expressly gave its consent to the transaction.
A second letter of December 16, 1992 signed by BTF and addressed to the SDBO, bearing the mention accepted and signed by the SDBO on the same day, gives the SBDO an irrevocable mandate to seek a buyer for the 78% of the capital of BTF Gmbh (ADIDAS) , collect and distribute the price as indicated in the letter of commitment.
The letter specifies that the SDBO has complete freedom as to the choice of the purchaser in the exercise of its mandate, that the mandate is of common interest, that it is given subject to the cash payment of the price of 2 billion 85 million of francs.
The mandate is given against payment.
By a third letter also dated December 16, 1992, addressed to BTF, the SDBO referring in its own terms to the letter of engagement and the letter of mandate in writing ”in accordance with the letter of engagement and the letter of mandate to us. we oblige us to make our best efforts to seek, no later than February 15, 1993, buyers for all the shares you own representing 78% of the capital of BTF Gmbh as well as one share of the capital of ADIDAS AG which you own, and at a total price of two billion eighty five million francs (2,085,000,000 francs). ”
In a letter of transmission of the acts of the SDBO to CLIINVEST on December 28, 1992, the SDBO mentions the letter of mandate and that of acceptance of the mandate.
The repeated use by the parties of the word mandate expresses their desire to qualify their relations and the mission entrusted as a mandate of common interest for consideration irrevocable for the period considered.
The very letter of the agreements characterizes the mandate as well as the planned operations, which correspond perfectly to the contract governed by articles 1984 and following of the Civil Code relating to the mandate.
These agreements do not constitute a simple promise to sell but a set of acts to be performed by the agent; moreover, the alleged promise of sale does not include a named beneficiary.
These agreements do not correspond either to a contract of enterprise which consists in carrying out a specific work for a party without representing it, and the object of which is constituted by material acts.
The mandate thus given entails for the agent the obligation of loyalty, transparency, information, accountability and the obligation referred to in article 1596 of the Civil Code, in the form of a prohibition for the agent to act purchaser himself or through an intermediary, of the goods he is responsible for selling. 2) On the persons bound to respect the obligations of agent The Crédit Lyonnais, SDBO and CLINVEST companies have distinct legal personalities and are a priori only bound by the acts to which they have each subscribed.
However, as regards the acts concerning the loans granted to the various companies of the TAPIE Group, then the sale of ADIDAS, the transactions were carried out by the three companies of the Crédit Lyonnais group according to the specialized activity of each of them. between them, and with the agreement of the parent company, Crédit Lyonnais, because of the importance of the transactions concerned.
This is how Crédit Lyonnais acknowledges having given its agreement to the SDBO to finance the initial purchase in 1991 of ADIDAS by Bernard T. The department of industrial studies of Crédit Lyonnais at the time was in charge of the preliminary studies. to the agreements, they served as the basis for the agreement of December 1992 and the sale of 1993.
Loans were sometimes granted by Crédit Lyonnais and sometimes by SDBO, with equity investments entrusted to CL1NVEST, a wholly-owned subsidiary of Crédit Lyonnais.
The decisions were taken at the top by Crédit Lyonnais as evidenced by the note of November 17, 1992 addressed to Mr. H., then President of Crédit Lyonnais, relating to the restructuring of the capital of BTF Gmbh (ADIDAS) seeking its agreement for an operation which aims to replace a Bemard TAPIE Group risk with an ADIDAS risk “which appears to be of much better quality”, a note which was approved by Mr. H. and applied.
Thus, CLINVEST increased its stake in ADIDAS from 10% to 19.9% in accordance with the decision of Mr. HABERER who approved a note of December 9, 1992 and gave the requested authorization indicating “it conforms to the imagined plan” by the previous note of November 17, 1992.
The agreements, entitled limited recourse loans, which enabled CITISTAR / OMEGA, COATBRIDGE, MATINVEST and RECESA to acquire respectively 19.9%, 3%, 15%, 5%, 15 % of the capital of ADIDAS (ie a total of 52.9%), buyers chosen by SDBO in execution of its mandate, have been granted by Crédit Lyonnais;
similarly, the memorandum of 10 December 1992 provided for assistance from Crédit Lyonnais for a loan of 100,000 francs (article 11).
The protocol of March 13, 1994, which intended to end the banking relations between Crédit Lyonnais and Mr. and Mrs. T. and their companies, was signed by Mr. François G., Managing Director of Crédit Lyonnais, for Crédit Lyonnais as well as for the SDBO.
The loan granted on December 20, 1994 to SOGEDIM (a company of Mr. Robert L.-D. formed to acquire ADIDAS) indicates article 3 “the borrower wishes to acquire all of the ADIDAS capital. he asked the lender 1,110,000 DM and the Phoenix for the balance of this financing, 190,000 DM ”. The 1,300,000 DM (4 billion 485 million francs) were paid by Crédit Lyonnais lender, to the account of CLINVEST which paid on the accounts indicated by Crédit Lyonnais CLINVEST, MATINVEST RICESA, OMEGA, METROPOLE and COATBRIDGE, companies holders of the shares sold to Mr. Robert L.-D ..
Finally, both in front of the press, but especially in front of the parliamentary commission of inquiry, the Chief Executive Officer of Crédit Lyonnais, Mr. P. reported on the action of Crédit Lyonnais and its subsidiaries.
The mandate was designed, carried out and reported on by Crédit Lyonnais as well as by SDBO and CLIINVEST, Crédit Lyonnais subsidiaries, all three of which are bound by this contract. 3) On compliance with article 1596 of the Civil Code prohibiting the agent from acting as a counterparty. The capital of Adidas before the sale of February 12, 1993 was as follows: BTF 78% CLINVEST 10% AGF 5% UAP (WORMS) 2% EFC Mme BEAUX) 5%
The 78% belonging to BTF were sold on February 12, 1993 in execution of the mandate with the following distribution to:
15% RJCE SA (Mr. Robert L.-D.)
3.2% PHENIX (AGF)
9% METROPOLE (AGF)
The acquisition of an additional 9.90% by CLINVEST constitutes an acquisition, through an intermediary, for SDBO, as for Crédit Lyonnais, an acquisition for which these companies have not obtained the express authorization of their agent even though CLINVEST was already the owner of 10% of ADIDAS capital and that Mr. T. knew it. this aspect of the sale of ADIDAS was not reported to the principal.
This acquisition increased Crédit Lyonnais’ share through CLINVEST in the capital of ADIDAS to 19.9% in accordance with the instructions of Mr. H. who did not want the bank to appear as a managing shareholder of ADIDAS.
The acquisitions by OMEGA and COATBRIDGE of their units were made through a limited recourse loan agreement.
SCF already associated with ADIDAS, also benefited from such a convention as RICESA (Robert L.-D., which was especially beneficial
to an option to purchase the entire share capital of ADIDAS.
The agreements of limited recourse loans had the following main characteristics: fixed annual interest rate of 0.50%, capital repayable no later than December 31, capital gain realized by the shared sale, according to complex formulas, at the rate of one third for the borrower and two thirds for Crédit Lyonnais.
As the CDR rightly maintains, which relies on Article 8-2 of the loan agreements to deny the carrying nature of the transaction, if, at the end of
loan, the transfer of the units to a designated purchaser was not carried out, the borrower kept them. It should be noted, however, that, in this case, the borrower’s payment obligations towards the bank were definitively extinguished.
From the combination of Articles 8 and III of the loan agreements, Article III providing for the repayment of the loan (in principal) in a single installment, no later than December 31, 1997, it can be deduced that if the ADIDAS securities no ‘were not sold by the borrowers, they remained acquired without having to repay the amount of the loan, only the annual interest at the rate of 0.5% of the sums borrowed being due. As the borrowers were required to sell their holdings at the bank’s request, this hypothesis was only likely to materialize if the ADIDAS securities turned out to be worthless.
It is therefore argued, and rightly so, that this transaction constituted a carry transaction pending the exercise of the option granted until December 31, 1994, at the bank’s request, by all the partners to Mr.L. .-D .. Indeed, on the one hand, the disposition of the securities was not free and depended on the decision of Crédit Lyonnais, the apparent owners only ultimately remaining in possession of their securities if their value proved to be true. none and, on the other hand, Crédit Lyonnais fully financed the purchase, reserving two-thirds of the sale price for itself.
This carry-over character emerges moreover from the own declarations of Mr. P., CEO of Crédit Lyonnais, on May 10 and June 16, 1994 before the parliamentary commission of inquiry, to which he explained that Crédit Lyonnais had taken control. ADIDAS with 54.9% of the capital (19.9% + 15% + 20%) by carrying out a carry transaction, remarks he qualified in a letter sent on March 21, 1995 to the expert TOURIN, and that the CDR makes explicit by asserting that the head of the bank, who is not an expert in law but a banker, wanted to speak of an economic carry.
The new directors of Crédit Lyonnais (Mr. P.) have recognized the support designed and carried out by and for the bank by the previous management (Mr. H.). With inexplicable consistency, the leaders of the defeasance structure, the Consortium de Réalisation, who have no responsibility for the previous reprehensible actions of Crédit Lyonnais and its subsidiaries, and whose role was precisely to undo what the banks had poorly done, persist in defending objectionable practices, as in maintaining that the qualification of mandate cannot be given to the mission entrusted to the SDBO, the stake of the legal qualification being precisely the prohibition for the agent to acquire the principal’s titles. They thus accredit the reality of the acquisition by proxy,
4) On the agent’s obligation to inform his principal
On December 16, 1992, the bank finally received the mandate to find a buyer for the stake held by BIT in the capital of ADIDAS. Mr. T.’s desire and his need to find a buyer had been known since the beginning of 1992.
Crédit Lyonnais’s desire to reduce its claims against the TAPIE Group went in the same direction.
Finally, the SDBO concluded with Mr. Robert L.-D. the agreement of February 12, 1993 by which the latter acquired, through RICESA on that date, 15% of ADIDAS capital, the sale of the other 63% of ADIDAS capital being organized as indicated previously. At the same time, Mr. Robert L.-D. was granted by all holders of ADIDAS shares, through Crédit Lyonnais, a promise to purchase, which had to be exercised by December 31, 1994 at the latest, at the price determined in February 1993, of 4 billion 485 million francs.
Mr. Robert L.-D., in response to an interpellative summons, declared on May 27, 1999 that he was approached by Mr. FILHO, Controller General of CLINVEST, who had offered to take over the management of ADIDAS in September or October 1992 , he had given his agreement on condition of buying the business, not having had any contact with Bernard T., nor any relationship with the offshore companies (OMEGA and COATBRIDGE).
In a letter of March 8, 2005, addressed to the mediator appointed by the Court, Mr. Robert L.-D. confirmed his statements and specified that, when asked to be the manager of ADIDAS, he had declined the proposal, in November or early December 1992, that the discussions were then resumed at the beginning of January 1993 to lead to the acquisition of 15 % of ADIDAS by RICE SA together with a purchase option of the remaining 85%, in order to verify the potential of ADIDAS, the whole operation being concluded on a valuation of ADIDAS at 1 billion 300 million DM (4 billion 485 million francs), value retained by the cedants since the start of negotiations.
The obligation to inform his agent, the duty of loyalty and transparency and the concern for the ethics of any bank, in particular business bank, demanded that Mr. T., a client benefiting from considerable and constant financial assistance since, be made known. 1977 on the one hand, that a buyer had been contacted to ensure the management of ADIDAS, that he was possibly a buyer in the near term, two years at most, for a price of 4 billion 485 million francs, to compare to the 2 billion 85 million francs of the mandate, and on the other hand, that Crédit Lyonnais was ready to finance the operation, and therefore to continue to lend to ADIDAS, under the conditions of limited recourse loans.
This information was neither provided to Mr. T., nor to BTF, nor to SNC GBT. Crédit Lyonnais like CDR and CLINVEST cannot seriously maintain that the article published in the weekly Nouvel Observateur from February 18 to 24, 1993, constitutes proof that they had informed Bernard T. of the conditions made to Robert L .-D .. This article indicating that Robert L.-D. had a call option on the securities held by public companies at a price 30% higher than the current price, information completely inaccurate since Mr. Robert L.-D. held a purchase option on the entire capital of ADIDAS and at a price higher by 67.78% (4 billion 485 million francs instead of 3 billion 474 million francs).
It therefore appears that the Crédit Lyonnais Group, by acting as counterparty through intermediaries and by not informing its client fairly, has not complied with the obligations resulting from his mandate.
Since the sale of ADIDAS cannot be declared void, the company having been sold by Mr. Robert L.-D., following the exercise of the purchase option, then the IPO, it agrees to uphold the claim for damages.
The non-respect by the agent of his obligations makes futile the question of knowing whether the price asked by the seller of 2 billion 85 million francs was the fair price as claimed by the banks or a minimum price as maintained by the liquidators.
It should be noted that during the first purchase of 80% of ADIDAS by Bernard T. on July 7, 1990, ADIDAS was valued at 1,600 million francs and that during the second purchase of 15% on July 14, 1991, the company was estimated at 2 billion 607 million francs.
At the time of the proposed sale to PENTLAND on July 7, 1992, the price envisaged was 2 billion 922 million francs, at the time of the purchase of the 20% stake in PENTLAND, it was 2 billion 780 million francs.
The SALESTRO report estimated the value of ADIDAS at 2 billion 772 million francs on December 7, 1992.
This price was not criticized by the TOURIN and PERONET reports.
If the analyzes agree, with regard to the value of ADIDAS in 1992, they differ as to the prospects for the future.
All interlocutors have always underlined the exceptionally low price at which Mr. T. acquired ADIDAS (1.6 billion francs) in 1990.
We can only underline the exceptional clairvoyance of Mr. Robert L.-D. which demanded to be able to acquire, and bought ADIDAS at the end of 1994 for more than 4 billion francs whereas less than two years before this company was sold only a little more than 2 billion francs.
Without his qualities as operational manager of ADIDAS being diminished, Mr. Robert L.-D. appears to have perfectly perceived that Mrs. B., appointed president of ADIDAS on November 6, 1992, active and determined, had re-motivated the executives, carried out the restructuring by reorganizing the American network, by halting the fall in turnover and by starting relocation, all measures which have contributed to generating a substantial profit since 1993 (€ 7 million then € 60 million in 1994, € 126 million in 1995), the value of ADIDAS being largely based on its name and Mark. II On the damages for which the liquidators are claiming compensation 1) On the loss resulting from the sale of ADIDAS
The 78% of ADIDAS capital held by BTF after having been sold for the price of 2 billion 85 million francs under the conditions mentioned above, were acquired by RICESA in the amount of 15% on February 13, 1993 then by SOGEDIM for the rest (Luxembourg companies owned by Mr. Robert L.-D.) on December 22, 1994 for the price of 3 billion 498 million francs.
ADIDAS was floated on the stock exchange in 1995 with a valuation of 11 billion francs in 1995, which brings to the sum of 8 billion 580 million the 78% of the capital formerly owned by the TAPIE Group.
Becoming the owner of all ADIDAS in 1994, Mr. Robert L.-D. was the only one, along with the bank which loaned it the funds to acquire 100% of ADIDAS before the IPO, to benefit from the fruits of this IPO, it being recalled that the gain of Crédit Lyonnais during this operation was between 1 billion 100 million francs and 1 billion 300 million, a confidentiality clause not allowing the partners of the operation to reveal the exact amount.
At no time, in 1994, was it envisaged that the sellers of the 85% of the capital of ADIDAS, RICE SA (Mr. Robert L.-D.) by owning 15% should be associated with the IPO of ADIDAS, this one not being mentioned at the time.
The liquidator agents can, on the other hand, rightly claim that the 78% of ADIDAS capital could have been sold directly to Mr. Robert L.-D. in December 1994, if the Crédit Lyonnais Group had respected its obligations as an agent banker by offering the financing constituted by the limited recourse loans to the TAPIE Group so that the capital gain would have been distributed in this case in the proportion mentioned above: 1 / 3 to the seller, 2/3 to the bank.
The sale of 78% of ADIDAS capital in December 1994 represents 3 billion 498 million francs.
The loss of opportunity to realize the gain from which the TAPIE Group was deprived is made up of the difference between the sale price of the 78% of ADIDAS capital in December 1994 (3 billion 498 million) and the price received in January 1993 ( 2 billion 85 million) or 1 billion 313 million of which a third (438 million) would have gone to the TAPIE Group, two thirds (875 million) to Crédit Lyonnais.
As requested by the liquidators, this amount should be updated.
The INSEE cost of living index since January 1, 1995 has increased by 16.5%, the CAC 40 index by 137%, the ADLDAS share by 370%, a sum invested at a fixed rate, to 7.5 % in 1995 at compound interest, 206%.
The amount of damages will therefore be fixed at one hundred and thirty five million euros (135,000,000 €).
2) On the request for compensation for the damage suffered as a result of the judicial liquidation.
The consolidated liabilities of the TAPIE Group are established as follows in euros:
– social receivables 4,086,459
– tax receivables 37,065,912
– customs receivables 1,035,896
– bank receivables 167,567,772 – miscellaneous receivables
Assets including the compensation currently allocated and the assets to be valued, ie the hotel in [anonymized by Juritel] where Mr. and Mrs. T. reside, and the furniture made up of a certain number of objects of art, it is not possible to say to date that judicial liquidation could have been avoided.
This request cannot be adjudicated at present. 3) On the request relating to the tax incidence In the same way, the taxation of the allocated sum cannot be determined at present, there is no need to appoint an expert for this purpose, it is advisable to reserve the leaves this request like the previous one, pending taxation by the administration to then examine whether the taxation in 1995 would have been more favorable. 4) On the request for compensation for non-pecuniary damage The violation of its obligations by the agent under the conditions which have been reported, in particular the breach of the obligation of loyalty, whatever the CREDIT LYONNAIS Group’s desire to cease its relations with the TAPIE Group, constitutes non-pecuniary damage.
The damage is compensated by the damages awarded, the sum requested by the liquidators being limited to one euro. III On the application of article 700 of the New Code of Civil Procedure Article 700 of the New Code of Civil Procedure should be applied in accordance with the procedures indicated in the device. FOR THESE REASONS: – Holds that there is no need to stay the proceedings. – Rejects from the debates the documents communicated under numbers 66.75 and 76 by Masters PIERREL and COURTOUX, ex officio. – Excludes RICESA, OMEGA, VENTURES LIMITED, COATBRIDGE and MATIN VEST.
– Holds admissible the action initiated by SELAFA MJA represented by Maître Jean-Claude PIERREL and Maître COURTOUX as liquidators of SNC GBT, SA ACT, SNC FIBT, SA BTG and Mr. and Mrs. Bernard T. ;
– Holds admissible the accessory intervention of Mr. and Mrs. Bernard T .;
– Holds inadmissible the action initiated by the “ad hoc” agent of the Compagnie Européenne de Distribution et de Pesage.
– Orders Crédit Lyonnais and CDR Claims to be paid to SELAFA MJA represented by Maître Jean-Claude PIERREL and to Maître Didier COURTOUX, ex officio, the sum of one hundred and thirty five million euros (€ 135,000,000).
– Disputes the parties of their other claims, those relating to the damage suffered as a result of the judicial liquidation of the entities represented by the liquidator agents and to the tax incidence being reserved.
– Orders Crédit Lyonnais and CDR Claims payable to LA SELAFA MJA represented by Maître Jean-Claude PIERREL and to Maître COURTOUX, ex officio, the sum of three hundred thousand euros for costs not included in costs pursuant to the article 700 of the New Code of Civil Procedure.
– Orders Crédit Lyonnais and CDR Créances to pay the costs of first instance and appeal.