Xavier Niel had lost a first round before the Marseille commercial court on January 11. The Court of Appeal of Aix-en-Provence (Bouches-du-Rhône) allows him, less than four months later, to score an important point in a game at a poor pace against the point guard Rodolphe Saade, CEO of CMA CGMfor the repurchase of the newspaper The Provence.
In his sentence delivered on Thursday, April 7, and which The world was able to consult, the Court of Appeal annulled the decision of the Marseille Commercial Court. The latter considered that the right of approval negotiated by the founder of Free (individual shareholder of the World), with the former owner of the Marseille daily Bernard Tapie, was to be suspended. According to the judge, this provision constituted a “manifestly illegal disorder” the successful completion of the judicial liquidation of the Tapie group (GBT) decided by the Bobigny court on April 30, 2020.
This right of approval requires that the board of directors of provence – where Avenir Développement, a subsidiary of Xavier Niel’s NJJ holding company, occupies two of the five seats – unanimously validates any shareholder entry into capital. The first decision agreed with the two co-liquidators, Xavier Brouard and Marc Sénéchal, who saw in this clause a conflict of interest that prevented the sale of GBT’s assets at the best price. The Court of Appeal, for its part, considers that the approval clause contained in the statutes of provence complies with article 4 of the law of 1it is August 1986 on the legal regime of the press and cannot be “regarded in itself as manifestly illegal”.
“The existence in the bylaws of a company of a condition of unanimous voting by the board of directors is not contrary to any legal provision”, she thinks too. Although the judges recognize that this specific approval clause necessarily constitutes an obstacle to the sale of company shares, nothing justifies, according to them, “consider this clause as manifestly illegal a priori”. Faced with what she describes as “hypothetical disorder” the Court of Appeal considers that a suspension of the right of approval “before any deliberation of the members of the Board of Directors has the effect of impairing the voting rights of all directors”.
The CMA CGM project received a favorable opinion from the six social and economic committees (CSE) of the “La Provence” and “Corse-Matin” groups.
The decision of the Court of Appeal puts Xavier Niel back in the saddle and should not be challenged in cassation by the liquidators. But it does not give the minority shareholder provence a decisive advantage in the battle of billionaires against Rodolphe Saadé. The head of Marseille reserves the financial asset from him. He submitted an offer of 81 million euros to acquire 89% of the shares of GBT. An offer much higher than the 20 million euros proposed by NJJ, which already owns 11% of the company’s shares.
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