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Case:
CE, Ass., 6 D écembre 1996, p. 466 Case Société Lambda
Date:
06 December 1996
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

6 December 1996

Conseil d’Etat

Application of Lambda Company asking the Conseil d’Etat to annul the Decree of the President of the Republic dated 29 December 1994 appointing Mr. Jean-Pascal Beaufret deputy governor of Crédit Foncier of France;

Having seen Act no. 84-16 of 11 January 1984; article 432-13 of the Penal Code; Act no. 91-647 of 10 July 1991; the Decree of 28 February 1852 on building societies; the imperial Decree of 31 July 1854 setting up the Crédit Foncier of France; Ordinance no. 45-1708 of 31 July 1945; Decree no. 53-934 of 30 September 1953, and Act no. 87-1127 of 31 December 1987;

On the plea in bar alleging the Lambda Company’s lack of standing to sue;

Considering that, as a shareholder therein, the Lambda Company has an interest entitling it to act against the decision appointing one of directors of Crédit Foncier of France;

On the plea in bar alleging Mr. Géniteau’s lack of standing to sue;

Considering that, as managing director of the Lambda company, Mr. Géniteau is entitled to represent the said company in litigation;

Considering that it follows from the preceding that the above-mentioned pleas in bar must be dismissed;

On the submissions directed against the Decree of 29 December 1994;

Without need to examine the other grounds of the application;

Considering that the provisions of article 432-13 of the Penal Code forbid any civil servant given, as such, the task of supervising or monitoring a private firm or of drawing up an assessment of the activities carried out by a private firm, from taking employment with the said firm within five years of ceasing to carry out the supervision or monitoring; that these provisions likewise prevent the executive from appointing a civil servant to any post, whatever the status of the position held, where he would contravene them; that the fact that the provisions of article 72 of Act no. 84-16 of 11 January 1984 on the civil service of the State, and the texts adopted thereunder, do not apply to civil servants on secondment, has no effect on the application of the above-mentioned provisions of article 432-13 of the Penal Code;

Considering that, having regard to its legal status in private law and the composition of its capital, the Crédit Foncier of France is a private enterprise; that, before his appointment to the office of deputy governor of Crédit Foncier of France, Mr. Beaufret, as head of monetary and financial matters at the Treasury, exercised direct control of that establishment; that the Lambda Company is thus entitled to maintain that the Decree appointing Mr. Beaufret deputy governor of Crédit Foncier of France is ultra vires;

On the submissions directed against the Order of 3 May 1995; Considering that the Order dated 3 May 1995 of the Prime Minister, the Finance Minister, and the Budget Minister maintaining Mr. Beaufret on secondment as deputy governor of Crédit Foncier of France for a maximum term of three years from 9 January 1995, was published in the Official Journal of 6 May 1995; that no provision of statute or regulation required the executive to notify the Lambda Company of that decision; that the submissions as to its annulment were not filed with the Conseil d’Etat until 23 October 1996; that they are therefore out of time and inadmissible;

On the submission of Mr. Beaufret as to the application of article 75-I of the Act of 10 July 1991;

Considering that the provisions of article 75-I of the Act of 10 July 1991 prevent the Lambda Company, which is not the loser in this case, from being ordered to pay Mr. Beaufret the sum of 12,000 francs which he claims as expenditure incurred and not covered by costs . . .

(Annulment of the challenged Decree; further submissions rejected inclduing those of M. Beaufret on the application of article 75-I of the Act of 10 July 1991).

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