Minority shareholders of a company of press had assigned interim relief society and its Director General before the tribunal de commerce of Paris, for the appointment of an expert. Complaining of the terms and conditions and the opacity of the management of the company, they requested that he be given the mission upon such "if conducted management is in compliance with rules governing the laws and regulations, and the statutes of the society" and search "all operations carried out at the initiative of the Director-General since the year 2000".
Asked, in seeking a measure of expertise called preventive expertise, was based on section 145 of the new Code of civil procedure which allows to order measures of inquiry, "once is a legitimate reason to keep or proof of facts which may depend on the solution of a dispute before any trial". The President of the tribunal had refused to grant their request on the grounds that they had consistently received answers to their questions in the different meetings and that they had also plenty of social documents available to them in the exercise of the right of communication (1). The Court of appeal of Paris confirmed this decision (2).
The Court considers that in on "all of the management of the company", sought expertise is analysed in "a measure of general investigation" and is "a true audit of the companies concerned." By adopting such grounds, the Court upheld and said a recent case-law that article 145 of the new Code of civil procedure, whose purpose is probationary, cannot be used by shareholders to discover "by means of a general measure of investigation, a legal basis in support of an application for subsequent justice" (3).
Abuse of power
French law recognizes to the shareholders of corporations in broad ways of information management. In addition to a right of prior communication to assemblies and a right of permanent communication, they have the opportunity to ask written questions to which leaders are required to respond. Here the leaders of the society, asked at each meeting by the plaintiffs, had systematically met their obligations of information. They have also always responded to written questions from shareholders.
The Court of appeal of Paris notes that "the dispute is between in reality different branches of the heir to the founder family are all shareholders of the company" and that the shareholders have "powers information" because of their shareholdings and warrants they hold in closely related companies. Then, recalling that the burden of proof of insufficient information to the plaintiff shareholders, the Court appreciates rigorously justified the legitimate ground, essential condition of preventive expertise. In this regard, the assessment personal and subjective of the shareholders on the quality or veracity of "answers to their questions by the officers of the company does not constitute a legitimate reason for the requested expertise."
As they indicate the regime of preventive expertise, the courts to provide better protection of leaders and the social interest against the sometimes abusive behaviour of the shareholders. This trend was already expressed about misuse of the right to ask questions written in assemblies, recently punished by the tribunal de commerce of Paris (4).
It was necessary to clarify the contours of the preventive expertise that the consequences can be severe for the company. The abuse of power to shareholders who are most often based on contrary to social policy considerations, lead to impede the progress of societies. The application under consideration by the Court of appeal was in a persistent family dispute. In this regard, the tribunal de commerce of Paris had already refused, one year previously, to an application for designation of an ad hoc agent whose mission was to focus on the same operations as to those described in the application of preventive expertise (5).