The Court of Cassation, COMMERCIAL.

February 22, 2000. Decision No. 599. Cassation in part without referral.

Appeal No. 97-17020.

CIVIL BULLETIN.

On the appeal of: 1 / society Markets factories Samu-Auchan, a limited company from the rights of society Maurepas distribution, is headquartered Gutenberg Avenue, Zone activities Coignières, 78310 Maurepas, 2 / society Paris Ouest-Parouest supply, a limited company from Boulogne to the rights of distribution companies, and Dispasud Morandi, whose registered office is Zone activities Coignières Boulevard of Acres in Maurepas, 78310 Coignières, 3 / society Jamin, limited company from the rights of society Neighbors distribution, whose head office is 67-81, avenue du Général Leclerc, 92100 Boulogne-Billancourt, 4 / Lonpont distribution company, limited liability company whose registered office is 67-81 Avenue General Leclerc, 92100 Boulogne-Billancourt, 5 / SODY society, joint stock company from the rights of society Parouest itself from Boulogne to the rights of distribution companies, and Dispasud Morandi, whose registered office is 67-81, Avenue du General Leclerc, 92100 Boulogne-Billancourt, 6 / SODY society, joint stock company, set aside a decision of 15 May 1997 by the Court of Appeal of Paris (5th Chamber, Section B), for: 1 ° / of the cooperative group purchasing centers distributors Galec-Leclerc, whose registered office is 52 rue Camille Desmoulins, 92000 Issy-les-Moulineaux, 2 / the economic interest grouping (EIG) Paris Sud expansion, whose registered office is 147-149, rue Saint-Honoré, 75001 Paris, defendants in the appeal; In the presence of Mr. Antoine Dumoulin, resident 2, passage Roche, 78000 Versailles, taken as a representative of creditors and agent, liquidator of the limited company Distrimantes;

The plaintiffs cite in support of their appeal, the four grounds of appeal annexed to this Order;

Means produced by the CPS Celica and Blancpain, a lawyer for advice to society Markets Factories Samu-Auchan Auchan SA. and others.

FIRST SUBMISSION OF APPEALS (cooperative law)

The appeal alleges that the judgment to have decided that, at the exclusion of ABIHSSIRA Group companies, the Group Purchasing Centres Leclerc (GALEC) was entitled to receive benefits reduced to the sum of 5,442,862 F and capture all direct and indirect rebates collected on behalf of the member but not yet paid back excluded (33,934,804 F) and have also rejected the exhibiting of all their requests for the settlement of accounts;

REASONS TO OWN AND ADOPTED that the present case concerns only the consequences set out in Article 12 of the exclusion of group companies of the Central ABIHSSIRA SEO motivated by the loss of the tab sign LECLERC (p. 8) that the Article 12 stipulates that the loss of the tab sign ‘Centre Leclerc distributor’ is a serious and legitimate reason for exclusion ‘that the group is even less ABIHSSIRA challenge is clear from the name of the cooperative and of Articles 2 and 5 statutes that only can be associated, apart from the central supply of natural or legal persons authorized to operate their business under tab sign ‘CENTRE LECLERC DISTRIBUTOR’; that Article 12 requires each member to remain a member of a GALEC duration of at least thirty years and to pay the cooperative, in case of early withdrawal allowed with three months’ notice, a lump sum including loss on the day of its decision to withdraw, any right to direct or indirect rebates not yet paid will be acquired GALEC ‘, and’ a sum equivalent to half a percent of sales taxes included in the last calendar year preceding the withdrawal ‘, as Article 12 states that the causes for exclusion ‘excluded member’s obligation to pay the compensation provided for early retirement, increased by 25% (p. 9) that the Court is seized or the validity of the decision of withdrawal of tab sign leading inevitably to the withdrawal of the member or the formal exclusion; it means that these companies are fallen, without the need to see that they have committed misconduct, the entitlement to dividends (id. loc); (…) that the GIE and support GALEC not without reason that this lump sum tends to reparation for injury caused to the cooperative by a departure which can only reduce the volume of group purchasing and have a negative impact on rates of discounts, negotiated on behalf of all co-operators, vary the quantities involved, the group ABIHSSIRA rightly denounced for its spoliation enforcement is that the loss of discounts due but not yet paid, all agree that Article 12 of the Statute of GALEC includes a penalty clause, reduced by the application of Article 1152 of the Civil Code if it is manifestly excessive and the first judges considered (p. 9 and 10) that Article 12 of the Constitution was passed by a general meeting attended by the plaintiffs in the appeal, including through the powers they had given, that stress can result from the requirement to submit a cooperator decisions taken in accordance with the statutes or the incredible ignorance of the scope of the exclusion chosen by the members, it is the essence of the cooperative that the withdrawal of a cooperator, the more so if proceeds of an exclusion, to be accompanied by a compensatory and deterrent sanction, given the risks and decided jointly depreciation of investments, that Article 12, which authorizes the withdrawal of the member committed in principle to 30 years does not violate the cooperative movement and the law of 11 July 1972 not prohibit adding penalties they enact a flat rate authorized by section 52 of the Act of July 24, 1867 (p. 13 and 14 );

THEN, ON THE ONE HAND, THAT far to authorize sanctions, the provisions of Article 52 of the Act of 24 July 1867 relating to companies with variable capital, Article 18 of the Act of September 10, 1947 on the status of cooperation and Article 12 of the Act of 11 July 1972 relating to cooperative societies of retailers are limited to provide for the limitation to the nominal value repayment of the equity participation of the member or excluded retrayant and possible participation of it to losses or risks of the cooperative over a maximum period of 5 years, so that these texts violates the Court of Appeal which adds to these provisions, also included in the Statute of GALEC not challenged Here, one possibility for the cooperative to set departure or exclusion for any fixed automatic penalty equal to a percentage of turnover (0.625%) and loss, described by the decision of ‘coercive theft’ of all rebates which the member was the owner and the cooperative held on its behalf;

THEN ON THE OTHER HAND, What necessarily contrary to the cooperative movement and the social contract clause leonine which results, in addition to compensation as a percentage of turnover (0.625%), to allow the cooperative to exclude a member without fail and to appropriate a sum of 33,934,804 E rebates it held on behalf of the excluded pursuant to a mandate for its object, so that making effect to such a clause, the Court of Appeal violated Articles 544, 545 and 1844-1 of the Civil Code, all section 52 of the Act of 24 July 1867 relating to companies with variable capital, Article 18 of the Act of September 10, 1947 on the status of cooperation and Article 12 of the Act of July 11, 1972;

THEN FINALLY AND ALTERNATIVELY, that if section 52 of the Act of July 24, 1967 does provide the opportunity in companies with variable capital enter into agreements to limit the powers of voluntary withdrawal of a partner, this text n ‘ has neither the purpose nor the effect of allowing the criminalization of a member who is the subject of a forced exclusion, so that private decision of any legal basis under this text the Court of Appeal which, without address any fault, said that the mere fact of their exclusion ABIHSSIRA Group companies have been deprived of the right to dividends held on their behalf and must also pay an additional lump sum (0.625% of net business) to the cooperative.

– SECOND SUBMISSION OF APPEALS (COMPETITION LAW) –

The appeal alleges that the judgment to have decided that, at the exclusion of ABIHSSIRA Group companies, the Group Purchasing Centres Leclerc (GALEC) was entitled to receive benefits reduced to the sum of 5,442,862 F and capture all direct and indirect rebates collected on behalf of the member but not yet paid back excluded (33,934,804 F) and have also rejected the exhibiting of all their requests for the settlement of accounts;

REASONS TO THAT ADOPTED the relationship between the cooperative GALEC and one of his many cooperatives excluded, are not of this type, but under the law very specific cooperation: there is no need to examine the complaints Applicants under the order;

The grounds that Article 12 provides that the loss of the tab sign ‘Centre Leclerc distributor’ is a ‘serious and legitimate reason for exclusion’ what the group is even less ABIHSSIRA challenge is clear from the name of the cooperative and Articles 2 and 5 of the Statute can only be associated, apart from the central supply of natural or legal persons authorized to operate their business under tab sign ‘CENTRE LECLERC DISTRIBUTOR’ (p. 9), (…) GALEC is not the master of the application of Article 12 of its statutes that may result as in the case of withdrawal of tab sign decided by one third (p. 15, § 1); (…) that the GIE and support GALEC not without reason that this lump sum tends to reparation for injury caused to the cooperative by a departure which can only reduce the volume of group purchasing and have a negative impact on rates rebates, negotiated for the benefit all cooperators, vary the quantities involved, the group ABIHSSIRA rightly denounces for its spoliation enforcement is that the loss of discounts due but not yet paid ‘(p. 9); (…)’ that as the first judges have rightly pointed out, Article 12 of the Constitution was passed in its present form by making an extraordinary general meeting of June 25, 1990 taken regularly by members who have agreed to abide by majority rule a cooperative movement that the requirement for a cooperator to comply with the statutes can not be a constraint and it is unlikely that the members, who admit calculate their resale prices taking into account the expected dividends, have ignored the scope of the sanction following the exclusion (p. 13), (…) it is the essence of the cooperative movement animating the cooperators that they help each other and create common tools and collectively funded the removal of a cooperator, the more so if he makes an exclusion, to be accompanied by a compensatory sanction and deterrent preventing the remaining cooperators remain solely liable for the risks and decided jointly to complete the amortization investments with some or temporarily excluded from profit, that Article 12 of the Statute of GALEC which allows the removal of the member that he has committed in principle at least thirty years, does not contravene cooperative movement and specifically the provisions of the Act of July 11, 1972 which prohibit any way to add penalties they enact a flat rate authorized by section 52 of the Act of July 24, 1967 but reduced by application of Article 1152 Civil Code, the Group does not ABIHSSIRA proof of dependency alleged distribution center towards the GALEC or their central purchasing affiliate, the exclusive supply is for purpose by the member, that it is not illegal, that centers the tab sign LECLERC distributors ask for the benefits it provides, much of which is the ability to benefit from purchases of more competitive in the federating GALEC their central reference, is able to negotiate the lowest possible price, and in the provision of common services, it is logical that their departure or exclusion deprives them of these advantages they have in addition to an equivalent solution by joining one of the other collective structures comparable, as some of the appellant companies were quick to adhering to the structures of the Auchan Group, the competition between traders operating in the same market is not affected by exclusion of member whose statutory decision, as a decision of the board or general meeting of members, but is necessarily collective can be described as “agreement” and can not influence or prices, nor the sources of supply and markets; the Group companies ABIHSSIRA can not seriously maintain that it was impossible to avoid selling to loss due to uncertainty regarding the collection of rebates which could GALEC discretion to deprive them, they placed the orders knowing the prices obtained by the supplier GALEC and had sufficient evidence to evaluate the discounts and other benefits may decrease these prices, it belonged to them in any event to set their resale prices so that there remains a margin, taking into account the uncertainty about the repayment of discounts depending on their receipt by the GALEC and the the possible allocation of collective investment dividends to common, alleged that the opacity of the accounts is not focused on pricing as the distribution center could include in their calculations secret discounts, if there had, in the absence to have known of the existence (p. 13 and 14); (…) as experts in their final report certainly have denounced the lack of resources due to a laudable desire to reduce costs, two ‘weaknesses major ‘of the organization of GALEC, lack of control over the consistency of accounting for rebates, as carried out by the GALEC, and purchases which constitute the plate, as required by the distribution center, and insufficiently precise accounting of rebates so-called ‘confidential’ because they are the subject of secret agreements that sometimes verbal centers distributors are unaware of the origin, the rate and trim (p. 15);

THEN, ON THE ONE HAND, THAT a cooperative society may be regarded as an agreement if it has the purpose or effect of limiting the commercial freedom of its members who are in competition or to protect its members against competition from third parties;

– THAT is the object of an agreement prohibited the provision of Article 12 of the Statutes of Group Purchasing Centres Leclerc (GALEC), with coercive or punitive is recognized by the judgment itself, and whose function is to stop for 30 years, independent distributors to give up the services of the cooperative, the exponent – beyond the guarantees provided by the cooperative law – penalties agreed to in advance and disproportionate the commitment and loyalty to the amortization of common tools collectively funded (p. 13, § 4), so that by validating the clause subject only to a reduction under section 1152 of the Code Civil Court of Appeal violated Articles 7 and 9 of the Ordinance of 1 December 1986;

– What is necessarily much less restrictive of competition and corresponds to conditions of sale undetermined and discriminatory device of Article 12 of the Statutes of GALEC which results in an exclusion of a member by the cooperative expose to be deprived retroactively of all direct or indirect rebates that have been collected on its behalf by the cooperative and to prevent and, except to practice selling at a loss to affect its selling price, so violates the above documents which recognizes the stop (p. 14, § 3) that the system actually led the Centers LECLERC to fix their resale prices in the light of ‘uncertainty about the repayment of discounts’ by the GALEC, however, refuses to declare invalid that Article 12 of the Statutes;

– Finally, the Court of Appeal, after leaving the responsibility of the Group ABIHSSIRA, under Article 12 of the Statute of GALEC, F 5,542,862 allowances and deprived him of 33,934,804 F rebates which it approves the appropriation by the GALEC, a group of competing distributors, could not deprive his decision of any legal basis under article 7 that the effects of exclusion could to influence or price nor on the sources and opportunities’;

THEN ON THE OTHER HAND, THAT concerning the existence of the state of economic dependence, denied by the Judgement (p. 14, § 2), the Court of Appeal violated Article 455 of the NCPC by refusing to answer the conclusions of Appeal (served November 19, 1996, p. 46 and 47) who argued that the state of economic dependence was characterized not only by the reputation of the brand but also by the Group’s position on the LECLERC market for the supply of consumer goods for retail sale (second central French SEO) and finally by the fact that 97% of total store sales were made with suppliers referenced by the GALEC and conditions negotiated by it;

– That, in itself, violates section 455 of the contested decision NCPC leaves devoid of any response to the conclusions of Appeal (served November 19, 1996, p. 49 and 50) arguing that if two stores in five had been find a partnership with a competing brand was ‘after’ completely restructured their capital which is far from ‘be an alternative’;

– And this is an abuse of economic dependence GALEC practices of retaining a very long time rebates distributors who do not belong, to use ‘confidential rebates’ is the subject of secret agreements that distribution centers are in ignorance of the origin of the rate and trim (stop p. 15, § 3) to refrain from reviewing the consistency of accounting for rebates and those purchases by stores (id. loc.) maintain and constantly distributors ‘uncertainty’ on the total amount of what they are owed (Judgement p. 14, § 3), so that by merely stating that despite the opacity of accounts, no actual diversion of rebates could not be found (p. 15, § 3 and 4) and by failing to seek, as though she was invited (conclusions of Call served November 19, 1996, p. 50 ff) if section 12 issue, which allows the GALEC irrevocably confirm the effects of all practices in private, an exclusion, the distribution center of any right in rebates backward, recorded or not, was not the definitive consecration of the alleged abuse of dominant position, the Court of Appeal’s decision deprived of any legal basis under Articles 8-2 and 9 of the Ordinance of 1 December 1986;

– That just an abuse of economic dependence of the sudden break established business relationships with a distributor member of the cooperative for the sole reason for the loss of LECLERC tab sign, that the moment of Article 12-4 statutes merely describe ‘the serious and legitimate reason’ the loss of the tab sign LECLERC, without making an exclusion of right, the ouster of a member on the basis of a decision by one third (loss tab sign) is a practice prohibited under Article 8-2 of the order of 1 December 1986 so that the Court of Appeal’s decision deprived of any legal basis both in terms of the text of Article 9 of the Ordinance.

– THIRD grounds of appeal (LAW) –

The appeal alleges that the judgment to have decided that, at the exclusion of ABIHSSIRA Group companies, the Group Purchasing Centres Leclerc (GALEC) was entitled to receive benefits reduced to the sum of 5,442,862 F and capture all direct and indirect rebates collected on behalf of the member but not yet paid back excluded (33,934,804 F) and have also rejected the exhibiting of all their requests for the settlement of accounts;

The grounds that ‘this proceeding concerns only the consequences set out in Article 12 of the Statute of GALEC exclusion of the Group companies of the Central ABIHSSIRA referencing motivated by the loss of the tab sign LECLERC whose decision taken by the ACDLEC the subject of other proceedings (p. 8) that Article 12 provides that the loss of the tab sign ‘Centre Distributor LECLERC’ is a ‘serious and legitimate reason for exclusion’ that the group can ABIHSSIRA d all the less challenging it follows from the name of the cooperative and of Articles 2 and 5 of the Statute that only can be associated, apart from the central supply of natural or legal persons authorized to operate their business under tab sign ‘CENTRE DISTRIBUTOR LECLERC ‘; that Article 12 requires each member to remain a member of GALEC for a period of at least thirty years and to pay the cooperative, in case of early withdrawal allowed with three months’ notice, a lump sum including loss on the day of its decision to withdraw, any right to direct or indirect rebates not yet paid will be acquired GALEC ‘, and a sum representing half a percent of sales taxes included in the last calendar year preceding the withdrawal ‘, as Article 12 states that exclusion leads to the excluded member’s obligation to pay the compensation provided for early retirement, increased by 25%, the Court is not In this instance, the validity of the decision of the withdrawal of ACDLEC tab sign leading inevitably to the exclusion of the member of GALEC, that the formal exclusion of the group companies ABIHSSIRA n is not disputed, it follows that these companies excluded in 1991, are forfeited, without the need to see that they have committed a fault, the right to direct and indirect rebates, the conjunction ‘or’ used have clearly not an alternative value, which they have not been paid back, and must also GALEC in an amount equal to 0.625% of their sales taxes included in the year 1990 ; that the GIE and support GALEC not without reason that this lump sum tends to reparation for injury caused to the cooperative by a departure which can only reduce the volume of group purchasing and have a negative impact on rates rebates, negotiated benefit of all co-operators, vary the quantities involved, the Group ABIHSSIRA rightly condemned for its spoliation enforcement is that the loss of discounts due but not yet paid (p. 9), all agree that Article 12 of the Statute of GALEC includes a penalty clause reduced by the application of Article 1152 of the Civil Code, if it is manifestly excessive and the first judges considered (p. 10), (.. .) GALEC that is not finally master the application of Article 12 of its statutes involving either voluntary departure or a fault of the member who may be subject to judicial review, or in this case decided to withdraw tab sign by a third party that the Group companies ABIHSSIRA argue alternatively that the provisions of Article 12 of the Statute do not apply to them (p. 15), they complain because of violating the GALEC its legal obligations and statutory accounting and remittance of dividends, say experts take the criticism on the state of accounts recording an average of over one billion francs of dividends a year, denounced the abuse of conservation rebates paid back later and irregular allocation of dividends to investment and conclude that they are themselves loosened the requirements of Article 12 of the statutes by the application of Article 1184 of the Civil Code, as experts in their final report have certainly denounced the insufficient due to a laudable desire to reduce costs, two ‘major weaknesses’ in the organization of GALEC, lack of control over the consistency of accounting for discounts, such qu’opérée by GALEC, and purchases which constitute the plate, as required by the distribution center, and insufficiently precise accounting of rebates so-called ‘confidential’ because they are the subject of secret agreements that sometimes verbal centers are distributors in ignorance of the origin, rate and attitude, that they nevertheless have a fixed initial notice very critical but erroneous given in 1992 by a leading expert, found that many tests and checks carried out n ‘ had revealed no abnormality and particularly no concealment of income and especially the so-called confidential, not to exclude that suppliers have benefited from a lack of control and that it is the contrary ABIHSSIRA group companies that have advanced in the course of expertise incorrect figures taking in particular the intervention of competing central supply PAROUEST, they also noted that the GALEC met the statutory deadline for repayment of drawback (p. 15), that errors in execution allegations are not established, they do not relate to the excess return for the obligations arising from Article 12 of the statutes and can not justify in any case any exemption from payment of liquidated damages of exclusion that the decision to remove the tab sign LECLERC ACDLEC does not constitute a force majeure that could obstruct the application of Article 12 of the bylaws, except to empty of all meaning the part of the text applied to the Group ABIHSSIRA , it really is a predictable event puisqu’envisagé by the statutes which is not necessarily compelling and that can open the right to an action for damages against the author (p. 16), on account of exclusion : the fraction of liquidated damages equal to 0.625% in sales taxes included in the calendar year preceding the exclusion was amounted to 12,049,382 by the F GALEC without controversy, as the experts amounted to 33,934,804 F the minimum amount not repaid discounts which the Group can claim ABIHSSIRA or F 614,486 more than the proposed assessment by the GALEC, that the adjectives ‘direct’ and ‘indirect’ used in Article 12 statutes require that rebates all agree are likely to return to distribution center, that the appellants which bears the burden of proof to justify any rights to other rebates they amounted to 6,872,000 F discounts at the end of the year and 7.2 million F rebates say forty years they claimed to be frustrated, they have abandoned their findings in the first call (served November 19, 1996) and added to 37,197 seconds F .682 rebates say confidential that experts have estimated the recovery in 6934 they included F in F 614,486 added to the assessment of GALEC, that the allowance of exclusion thus amounts to 33,934. 804 + 12,049,382 = 45,984,186 F all taxes; by the relevant reasons that the Court adopts the trial court refused to Group ABIHSSIRA the return of their share of the rebates spent on investments that the common n ‘ is not objectionable; that, even assuming that such investments should have been approved by the shareholders of GALEC general meeting, the Court can only conclude that the decisions of the Board have been tacitly ratified by members, as Jacques took part ABIHSSIRA unchallenged as the administrator of GALEC that their challenge is only in its conclusions of 25 October 1994 and that the rebates that have not been paid back to their original recipients, are lost by application of Article 12 of the Constitution because of the exclusion of interest and that the experts have amounted to 674,212 from F likely to return to the Group ABIHSSIRA default interest that GALEC failed to apply to the suppliers that it is not clear however, that the GALEC has received funds or that he actually committed a foul in that the lack of recovery could be explained by the negotiations of prices and discounts, that it is more callers to justify their rights than they do anything, that the trial court had rightly held that the application of the penalty clause as provided in Article 12 of the Statute of GALEC, led to make load group ABIHSSIRA liquidated damages manifestly excessive and that the F 45,984,186 held by the Court represent 2.385% of sales taxes included in the year 1990, that their decision to convict the appellants’ resulted in a clause Criminal equal to 1.04% of that turnover is more reasonable given the low margins of the activity (p. 16 and 17);

THEN, ON THE ONE HAND, THAT the common desire to join, exclusive of any relationship of subordination, is the essential condition of any society, so that violates section 1832 of the Civil Code and the concept of the disease societatis its judgment which declares valid and binding on exhibitors Article 12 of the bylaws after noting that the ‘GALEC is not master of the application of Article 12 of its Statute’ (p. 15, § 1) and that the exclusion arises in the case of ‘withdrawal from the tab sign decided by a third party “(id. loc);

THEN ON THE OTHER HAND, pure potestativité What marred the combined provisions of the statutes mandating the GALEC to negotiate and collect rebates partially attributed to each of its members by suppliers (Article 2), including discounts negotiated directly by the stores themselves through individual negotiations (Article 31), and which also provides the opportunity for the Board of Directors to the exclusion of a member by depriving it of all the above discounts direct or indirect, due to the stores but not yet paid, so that in authorizing the GALEC, agent for the exhibitors, to unilaterally release of its fundamental obligations to report and return at least ‘33,934,804 F rebates already received, the judgment violates sections 1174 and 1993 of the Civil Code;

– THAT IN ADDITION, stating that the burden of proof of the existence of any direct or indirect discounts, they might be denied under section 12, responsible for corporate principals (p. 16, § 4) even if the accounts of the agent remained opaque (p. 15, § 3 and 4), reverses the judgment obligations of the principal and agents in violation of Articles 1315 and 1993 of the Civil Code;

So, thirdly, that the contested decision that found that the repayment of drawback was assigned to suppliers’ uncertainty ‘(p. 14, § 3) that distributors received’ in the dark about the origin of the rate and of the plate ‘(p. 15, § 3) discounts’ confidential or secret’ that they could incorporate into their room ‘because they had not known the existence’ (p. 14 in fine), and statutes authorized the GALEC keep those discounts for 33 months (Judgement p. 10, § 1), characterized as the indeterminacy of the amount of the penalty laid down by Article 12 which is, according to the decision to deprive the retrayant member or excluded from any direct or indirect rebates due but not yet paid and violated by refusal to apply Article 1129 of the Civil Code;

SO FOURTH HAND, AND THAT ALTERNATIVE agreements executed in good faith, so that does not draw the legal consequences of its own findings in violation of Articles 3 paragraph 1134, 1993 and 1184 of the Civil Code, the judgment who refuses to take into account the many irregularities committed by the cooperative agent in accountability as they result from expert reports taken by the decision (p. 15, § 3 and 4) and which nevertheless allows the GALEC to implement the member against the exclusion procedure and penalties provided for in Article 12 of the bylaws that are necessarily aggravated by such irregularities.

– FOURTH SUBMISSION OF APPEALS – ALTERNATIVE –

(IRREGULAR ASSENT)

The appeal alleges that the decision partially reversed attacked for having rejected the exhibiting of all their demands, including those concerning the $ 33,934,804 F, minimum amount of rebates not repaid ABIHSSIRA which the Group is entitled, and to have furthermore ordered to pay additional compensation of 5,402,862 F;

REASONS FOR JUDGEMENT AS ADOPTED errors invoked against the Group ABIHSSIRA are not caused by serious breaches of obligations but are part of the dispute and the different assessment of the general policy of the Group or are the result of conflicts people, it would be too much to ruin a business, which contributes to general economic progress and contributed to the particular development of the Group LECLERC, the application of GALEC led to penalize applicants for more than 6% of their annual turnover which is significant as it is estimated that only 1% or 2 lines of supermarkets, that led to their applicants to pay 2.5% of annual turnover, which is already substantial but not crippling for the future ; that the exclusion of applicants by the GALEC does not substantially affect the economic weight of this group, whose progress is undeniable, it is undesirable that cooperators are linked for a long period to cooperative, given the rapidly changing patterns of economic distribution, however it is necessary both to meet its commitments to the parties and to guarantee a normal economic life remaining and undisturbed;

REASONS TO OWN AND THAT that companies are excluded in 1991 deprived of the right to direct and indirect rebates that they had not been paid and must also GALEC in an amount equal to 0.625% in sales taxes included (p. 9), the Commercial Court committed an error in doing encryption of the lump-sum contract initially consisting of discounts lost evaluated by the experts at least 33,320,318 F and an amount equal 0.625% of revenue including taxes of 1990 fixed the GALEC unchallenged to 12,049,382 F; that he made a second mistake by pointing out that the $ 5,442,862 on which F reduce the compensation found to be patently excessive, corresponded to 2.50% of annual turnover whereas this rate it would have been 21,771,448 of F (p. 11) on the accounts of exclusion: the fraction of liquidated damages equal to 0.625% in sales taxes included in the calendar year preceding the exclusion was amounted to 12,049,382 by the F GALEC without controversy, the experts have amounted to 33,934. 804 F the minimum amount not repaid discounts which the Group can claim ABIHSSIRA or F 614,486 more than the proposed assessment by the GALEC, that the adjectives ‘direct’ and ‘indirect’ used in Article 12 of the bylaws require that agree with all the rebates are likely to return to distribution center, that the appellants which bears the burden of proof to justify any rights to other rebates they amounted to 6,872,000 F rebates of season and 7.2 million F rebates say forty years they claimed to be frustrated, they have abandoned their findings in the first call (served November 19, 1996) and added to the second 37,197,682 F rebates say confidential that experts have estimated the recovery in 6934 they were included in F 614 486 F added to the assessment GALEC, that the allowance of exclusion thus amounts to 33,934,804 + 12 049. 382 = 45,984,186 F all taxes; by the relevant reasons that the Court adopts the trial court refused to Group ABIHSSIRA the return of their share of the rebates spent on investments whose common interest is not objectionable; that, even assuming that such investments should have been approved by the shareholders of GALEC general meeting, the Court can only conclude that the decisions of the Board have been tacitly ratified by members, is taken as Jacques ABIHSSIRA from unchallenged as the administrator of GALEC, their challenge is only in its conclusions of 25 October 1994 and that the rebates that have not been paid back to their original recipients, are lost by application of Article 12 of the Constitution because of the exclusion of interest and that the experts have amounted to 674,212 from F likely to return to the Group ABIHSSIRA default interest that GALEC failed to apply to the suppliers it is not established, however, that GALEC has received funds or that he actually committed a foul in that the lack of recovery could be explained by the negotiations of prices and discounts, it is once again appellants to proof of their rights than they do anything, that the trial court had rightly held that the application of the penalty clause as provided in Article 12 of the Statute of GALEC, resulted in an order requiring the group ABIHSSIRA liquidated damages manifestly excessive; 45984186 F as given by the Court represent 2.385% of sales taxes included in the year 1990, that their decision to convict the appellants’ resulted in a penalty clause equal to 1 , 04% of that turnover is more reasonable given the low margins of the activity (p. 16 and 17);

THEN, ON THE ONE HAND, THAT distorts in violation of section 1134 of the Civil Code the provisions of Article 12-6 of the Statute of GALEC bearing the exclusion, whatever the cause, result in payment by the member excluded from the compensation provided in case of early departure by paragraph 1 above, increased by 25%, the Court of Appeal decides that it is therefore necessary to support the exhibitors not only the corresponding compensation in said paragraph the payment of a sum representing one-half percent (0.50%) of the turnover of the last calendar year, after which the increase would be applied, but also the loss – no mark – any right to direct or indirect rebates due but not yet paid, including the allocation to GALEC does under Article 12-1 that the case of voluntary departure;

THEN THE OTHER AND ALTERNATIVE, or private companies exhibiting F of 33,934,804 of discounts to which they were entitled, pursuant to Article 12-6 of the statutes, without explaining, as she was invited (conclusions in response and appeal p. 73 ff), the fact that ‘the loss of any right to dividends, directly or indirectly not yet paid’ which is provided for in Article 12-1 shall not apply to -vendor rebates governed by Articles 2 and 31 of the statutes GALEC not ‘pay’ and not merely to collect and record the account of each store and that, accordingly, the rebates referred to in Article 12 -1 can not be that ‘patronage-cooperative’ or ‘surplus refunded to the partners’ under article 33 of those statutes that are actually paid by the GALEC, the Court of Appeal’s decision deprived of any legal basis to under Articles 1134 and 1993 of the Civil Code;

THEN, FINALLY, AND IN ANY EVENT, THAT the Court of Appeal recognized that the game results in the penalty clause to charge companies exhibiting compensation of 0.625% of turnover and also the loss of all direct or indirect rebates collected on their behalf by the GALEC, and accordingly dismissed the statements of their claims for restitution, deprived its decision of any legal basis under Articles 1134 and 1152 of the Civil Code by failing to stop the exact count of money that it deprives exhibitors and by simply retaining the figure of ’33 .934.804 minimum F ‘, which results in the actual amount of the contractual penalty remains unknown and that the foundations on which was applied the so-called reduction are fictitious;

– THAT necessarily contradict each other, in violation of Article 455 of the NCPC, the reasons and the device of the judgment that, claiming capping effect of the penalty clause of up to 1.04% of turnover, inflict In reality, the rejection of applications for restitution of exhibiting a penalty of at least 33,934,804 5,442,862 F over F, F is 39,377,666, corresponding to more than 2% of turnover which has referred the Court of Appeal.

THE COURT, in the public hearing on January 25, 2000, attended by Mr. Dumas, president, Metivet, reporting judge, Mr. Poullain, Ms. Garnier, Collomp, counselors, M. Huglo, Ms. Mouillard, M. Boinot, Ms. Champalaune, Gueguen, counselors referendum, Mr. Lafortune, General Counsel, Ms. Moratille, Clerk of room;

Whereas, according to the judgment, the ‘Group Leclerc’ founded by Edouard Leclerc, is made by a particular distributor Centres Association (ACDLEC), which includes leaders approved companies operating vending facilities, which their approval by the ACDLEC gives the right to use the tab sign Leclerc, and a national center of referencing the movement Leclerc, established as a cooperative company with variable capital (Galec company) that it brings together all the regional central purchasing and centers and distributors is limited to negotiating with suppliers the terms on which the centers distributors can purchase the goods and markets including discounts and rebates season, as a result of financial difficulties experienced by some centers Distribution Central and regional shopping Scapsud, GIE Paris Sud expansion was created, Mr. Abihssira being appointed controller, the latter, who was involved in the establishment of Centres Leclerc since 1961 and has hosted several centers distributors (Abihssira Group companies), came into conflict in 1991 with the association and ACDLEC has been removed from this association with members of his family, which had the effect of losing companies that animated the right use the tab sign Leclerc, they are also excluded from society Galec, the Group companies Abihssira seized the Commercial Court for a decision on the irregularity of this exclusion and the penalty which they were threatened on the basis of Article 12 of the bylaws of the cooperative society, reads as follows: ‘… the members to commit to 25 June 1990 Galec remain members for a period of at least 25 years time to be at least 30 years for new members … And in case of withdrawal, regardless of cause, the partner is liable for liquidated damages, including: the loss on the day the decision to withdraw any right to direct or indirect rebates not yet paid to be acquired Galec and the payment of a sum representing 0.5% of sales tax of the last calendar year preceding the withdrawal ‘, before a decision on the merits, the presiding judge had told a college expert assessment of the amount of rebates owed by the company Galec Abihssira Group companies, that, by order dated July 13, 1995, supplemented by a decision of 27 November 1995, the Commercial Court, after finding that the excluding companies in question was regular, fixed at 33,934,804 francs the amount of dividends not yet paid by the company Galec and 12.3 million francs the amount of liquidated damages calculated on the last financial companies Abihssira; that However, given the importance of this sum and using the provisions of section 1152 of the Civil Code on penalty clauses, the Court reduced to 5,442,862 francs the amount of liquidated damages and that, on appeal different parts of the two judgments, the Court of Appeal, correcting errors and account procedure committed by the Tribunal, the company has provided Galec to return the amount of dividends it had received for the companies in question and confirmed the penalty of 5,442,862 francs, to which she added the amount of statutory interest on that compensation;

The first plea in its three branches:

Whereas the Group companies Abihssira criticize the decision to be condemned, then, according to the appeal, on the one hand, that, far from authorizing sanctions, the provisions of section 52 of the Act of 24 July 1867, relative to companies with variable capital, Article 18 of the Act of September 10, 1947, on the status of cooperation and Article 12 of the Act of 11 July 1972 relating to cooperative societies of retailers, merely provide for the limitation to the nominal value repayment of the equity participation of the member or excluded retrayant and possible participation of the latter losses, or risks of the cooperative over a maximum period of 5 years, so that violates these texts the court of appeal which adds to these provisions, also included in the Statute of Galec and not challenged in this case, a faculty for the cooperative to establish any departure or exclusion for a fixed automatic penalty, corresponding to a percentage of turnover (0.625%) and loss, described by the decision of ‘coercive theft’ of all rebates which the member was the owner and the cooperative held on its behalf, then d Second, contrary to what is necessarily cooperative movement and the social pact leonine clause which has the effect, in addition to compensation as a percentage of turnover (0.625%), to allow the cooperative to exclude a member without fail and to appropriate a sum of 33,934,804 francs of dividends, it held on behalf of the excluded pursuant to a mandate for its object, so that by producing effect to such a clause, the Court of Appeal violated Articles 544, 545 and 1844-1 of the Civil Code, all section 52 of the Act of 24 July 1867 relating to companies with variable capital, section 18 of the Act of September 10, 1947 on the status of cooperation and Article 12 of the Act of July 11, 1972, so, last alternative, that if section 52 of the Act of July 24, 1967 does provide the opportunity, in companies with variable capital, to sign agreements to limit the powers of voluntary withdrawal of a partner, this text has neither the purpose nor the effect of allowing the criminalization of a member who is the subject of a forced exclusion, so that private decision of any legal basis under the text that the Court of Appeal, without raising any wrongdoing, said that the mere fact of their exclusion, Group companies have been deprived Abihssira properly right of patronage held on their behalf and must also pay an additional lump sum (0.625% of turnover) to the cooperative;

But whereas in the first place, as provided in section 52 of the Act of 24 July 1867 on variable capital companies, supplemented by the Act of September 10, 1947 on cooperation and the law of 11 July 1972 on cooperatives traders, each partner may withdraw as it deems appropriate ‘unless otherwise agreed “, the Court of Appeal found that Article 12 of the Statute of Galec providing for any member who had co-operator engaged for at least 30 years, the loss on the day of withdrawal, of any right to direct or indirect rebates not yet paid and the payment of compensation representing 0.50% of sales tax of the last calendar year preceding the date of withdrawal, was passed during an extraordinary general meeting, June 25, 1990, at which the associated ‘Group Abihssira’ had taken part in voting the resolution criticized and not ignoring the financial implications of the sanction at issue; having recalled that such a clause is to maintain for a reasonable time the cohesion of cooperation between them to cover ‘the risks and decided jointly to complete the amortization which some or excluded temporarily benefited ‘the appellate court does not incur the grievances of the first two parts of the plea;

Whereas, second, appreciating the scope of Article 12 of the statutes and noting that the loss of the distributor center tab sign Leclerc, who was the subject of a separate litigation, constituted a serious and legitimate reason for exclusion ‘Cooperative Society, the Court of Appeal rightly concluded that the loss of this sign had resulted in the withdrawal of group companies of the Central Abihssira Leclerc, resulting in sanctions under Article 12;

Hence it follows that the plea is unfounded in all its branches;

The second plea in its two branches:

Whereas the corporate plaintiffs allege that the decision to have acted as he did, then, according to the appeal, on the one hand, a cooperative society can be considered as an agreement, provided that it has the purpose or effect of limiting the commercial freedom of its adbérents that are in competition or to protect its members against competition from third parties, that is the object of an agreement prohibited the provision of Article 12 of the bylaws of the Groupement purchase

Centres Leclerc (Galec), with coercive or punitive is recognized by the judgment itself and whose function is to prevent, for 30 years, independent distributors to give up the cooperative’s services, exposing them – beyond the guarantees of the right to co-penalties agreed in advance and disproportionate to the commitment and loyalty to the amortization of common tools, collectively funded, so that the clause in validating the only subject to a reduction under section 1152 of the Civil Code, the Court of Appeal violated Articles 7 and 9 of the Ordinance of 1 December 1986, has fortiori, is necessarily restrictive of competition and corresponds to conditions of sale undetermined and discriminatory device of Article 12 of the Statute of GALEC, which results in case of exclusion of a member by the cooperative, exposing it to be denied, retroactive of all direct or indirect rebates that have been collected on its behalf by the cooperative and to prevent and, except to practice selling at a loss to affect its sale price, so that violates the above texts stop recognizing that this system actually led the Leclerc Centres to set their resale prices, taking account of ‘uncertainty about the repayment of discounts’ by GALEC, however, refuses to declare invalid that Article 12 of the statutes; that Finally, the Court of Appeal, after leaving the responsibility of the Group Abihssira, under Article 12 of the Statute of Galec, 5,542,862 francs from private benefits and one of 33,934,804 francs of dividends , which approves the appropriation by Galec, a group of competing distributors, could not, without depriving the decision of any legal basis under Article 7 that the effects of exclusion could to influence either on price, nor the sources and opportunities’, so, on the other hand, concerning the existence of the state of economic dependence, denied by the ruling, the appellate court violates section 455 the new Code of Civil Procedure, by refusing to respond to the findings of appeal argued that the state of economic dependence was characterized not only by the reputation of the brand, but also by the Group’s position in the market Leclerc the supply of consumer goods intended for retail sale (second central French SEO), and finally by the fact that 97% of total store sales were made with suppliers referenced by Galec and conditions negotiated by it and that, likewise, violates section 455 of the new Code of Civil Procedure, the contested decision, which leaves devoid of any response to the conclusions of Appeal, arguing that if two out of five stores able to find a partnership with a competing brand was’ after completely restructured their capital, which is close to ‘be an alternative’, and that this constituted an abuse of economic dependence Galec practices of conserving over a long period of discounts distributors that do not belong, to use ‘confidential rebates’ subject’ of secret agreements as’ Centers distributors are unaware of the origin ‘of the rate and base ‘, to refrain from reviewing the consistency of accounting for rebates and those purchases by store, maintain and constantly distributors’ uncertainty’ on the total amount of what they are due, so that merely to state that despite the opacity of accounts, no actual diversion of rebates could not be demonstrated and refraining from looking like she was invited, however, if the Article 12 issue, which allows the Galec irrevocably confirm the effects of all practices in private, an exclusion, the distribution center of any right in rebates backward, recorded or not, was not the consecration détinitive abuse of the alleged dominant position, the appellate court’s decision deprived of any legal basis under Articles 8-2 and 9 of the Ordinance of 1 December 1986 and that, likewise, is an abuse of economic dependence The sudden break of established business relationships with a distributor member of the cooperative, the only reason for the loss of the tab sign Leclerc, that as soon as Article 12-4 of the statutes merely describe ‘the serious and legitimate reason ‘the loss of the tab sign Leclerc, without making an exclusion of right, the eviction of a member on the basis of a decision by one third (loss tab sign) is a prohibited practice under Article 8-2 of the order of 1 December 1986, so that the appellate court’s decision deprived of any legal basis both in terms of the text of Article 9 thereof;

But whereas on the one hand, the only way the Court of Appeal has just stated, the competition between traders operating in the same market is not affected by exclusion of participant under a statutory decision that, as a decision of the board or general meeting of members, is necessarily collective, but can only be described as ‘agreement’ within the meaning of Article 7 of the order of 1st December 1986, to the extent that it did not object or effect the restriction or distortion of competition;

Whereas, on the other hand, that the decision notes that the Galec was not master of the application of Article 12 of its statutes, which depended on the removal of the tab sign determined by the ACDLEC, having noted that the clause at issue was not the purpose or effect of restricting or distorting competition in a particular contract, the Court of Appeal, which responded to the conclusions allegedly evaded, did not violate the provisions of Article 8-2 of the order of 1 December 1986 on economic dependence;

Hence it follows that the plea is unfounded in all of its two branches;

But on the third plea in its third branch:

Having regard to Articles 1108, 1126 and 1126 of the Civil Code;

Whereas in condemning the Group companies to refrain from claiming Abihssira Galec to the amount of discounts direct or indirect, not yet paid at the time of their withdrawal from GAEC, amounting to 33,934,804 francs, the decision is, adopted by reasons, that this co-operative society can ‘theoretically’ retain for a period of 33 months before rebates and sets distribution, for specific reasons, that companies should take into account ‘the uncertainty about the repayment of discounts depending on their collection by Galec and the possible allocation of dividends to joint investments, and alleged that the opacity of the accounts is not focused on the pricing, since the distribution center could include in their calculations discounts occult s’ there were, for want of having been there ‘;

Whereas in applying the penalty clause and when he arose from these findings that there was uncertainty about how objective counting rebates owed by the company Galec the day of the exclusion of companies involved, as a result the possibility for the company to postpone the return Galec discounts and let the members in ignorance of the existence of confidential royalties it had received on their behalf and, therefore, the scope of the commitment by Group companies Abihssira loss on the day of withdrawal, of any right to dividends not yet paid, arising from Article 12 of the Statute, the Court of Appeal violated the text referred to above;

And whereas under Article 627, paragraph 2, of the new Code of Civil Procedure, the Supreme Court may, by breaking without reference, to end the dispute by applying the appropriate rule of law;

FOR THESE REASONS, and without any need to rule on the other branches of the middle third and the fourth plea in its various branches:

Quashed, but only in that it has authorized the company Galec to keep the amount of rebates owed to Group companies Abihssira, amounting to 33,934,804 francs, the decision of May 15, 1997, between the parties by the Appeal Court of Paris;

DIT is not appropriate to reference;

Galec society condemns their return such amounts plus interest at the legal rate from the meaning of the above, as well as the period between the assignment of October 21, 1994 and the significance of the decision of the Court of Appeal of Paris of 15 May 1997;

Condemns the cooperative group purchasing centers and distributors Leclerc-Galec GIE Paris Sud expansion costs;

Said that the costs at first instance and appeal will be shared in charge of the company for Galec quarter and corporate markets Samu-Auchan plants for three quarters and is due in respect of proceedings the bottom and the cassation instance, no amount under section 700 of the new Code of Civil Procedure;

Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the partially broken off.

On the report of Mr. Metivet, counselor, observations of SCP Celica, Blancpain and Soltner, lawyer companies factories Samu-Market Auchan, Paris-Ouest supply Parouest, Jamin, distribution and Lonpont SODY, CPS TIFFREAU, lawyer society group purchasing centers and distributors Leclerc-Galec GIE Paris Sud expansion, the conclusions of Mr. Lafortune, General Counsel, after which the President has asked counsel if they wished to submit further observations and After deliberating in accordance with the law, Mr. President Dumas.

Posted on ខែមករា 10, 2012, in យុត្តិសាស្រ្ត. Bookmark the permalink. Comments Off on case 24.

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