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 bad start against the shipowner Rodolphe Saadé , head of CMA CGM, for the takeover of the newspaper Provence.
In its judgment delivered on Thursday 7 April, and that The world was able to consult, the Court of Appeal overturned the decision of the Commercial Court of Marseille. 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 unlawful disorder” the successful completion of the judicial liquidation of the Tapie group (GBT) decided by the Bobigny court on April 30, 2020.
“Hypothetical Disorder”
This right of approval requires that the board of directors of Provence – where Avenir Développement, a subsidiary of Xavier Niel NJJ’s holding company, holds two out of five seats – unanimously validates any shareholder entry into the capital. The first decision gave reason to the two co-liquidators, Xavier Brouard and Marc Sénéchal, who saw in this clause a conflict of interest which hindered the sale at the best price of GBT’s assets. 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 1er August 1986 on the legal regime of the press and cannot be “deemed in itself to be manifestly unlawful”.
“The existence in the statutes of a company of a condition of unanimity of the vote of the board of directors is not contrary to any legal provision”, she also thinks. 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 unlawful 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 by the members of the Board of Directors would have the effect of undermining the voting rights of all the 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 which opposes him to Rodolphe Saadé. The Marseille boss keeps his financial asset to himself. He filed an offer of 81 million euros to acquire the 89% of shares held by GBT. An offer far superior to the 20 million euros proposed by NJJ, which already holds 11% of the company’s shares.
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