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Judgment No. 5/24 - IX – REF - request for interpretation

Public hearing of January eleven, two thousand and twenty-four

Role number CAL-2022-00252

Composition:
Carole KERSCHEN, president of the chamber,
Danielle POLETTI, first adviser, Stéphane
PISANI, adviser, Gilles
SCHUMACHER, clerk.

It is between:

the limited liability company under Californian law COMPANY1.) LLC, limited liability
company, established and having its head office at ADDRESS1.), registered in the
Californian company register under number NUMERO1.), represented by its
management bodies currently in office,

appellant under the terms of a writ of the bailiff Patrick KURDYBAN of

Luxembourg of March 2, 2022,
respondent on request for interpretation,

appearing by the limited liability company LOYENS & LOEFF

LUXEMBOURG, listed on list V of the Table of the Order of Lawyers of
Luxembourg Bar, in whose office the domicile is elected, represented for the purposes
hereof by Maître Véronique HOFFELD, lawyer at the Court, assisted by Maître Patrick
RIES, lawyer at the Court, both residing in Luxembourg,

And :

1) the limited liability company under Californian law SOCIETE2.) LLC, limited liability
company, established and having its head office at ADDRESS2.) of America,
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having as agent for service of process COMPANY3.), registered in the Californian

register of companies under number NUMERO2.), represented by its management
bodies currently in office,

respondent under the terms of an exploit of the bailiff KURDYBAN of

Luxembourg of March 2, 2022,
plaintiff by request for interpretation,

appearing by the limited liability company E2M, registered on list V of

Table of the Order of Lawyers of the Luxembourg Bar, represented for the purposes
hereof by Maître Max MAILLIET, lawyer at the Court, assisted by Maître
Lydie LORANG and Maître Anne-Sophie BOUL, lawyers at the Court, residing in
Luxembourg,

2) the limited liability company SOCIETE4.) SARL, established and having its registered
office at L-ADRESSE3.), registered in the Luxembourg trade and companies register
under number NUMERO3.), represented by its management board currently in office
functions,

respondent under the terms of an exploit of the bailiff KURDYBAN of

Luxembourg of March 2, 2022,
respondent on request for interpretation,

duly summoned and summoned, not appearing.

COURT OF APPEAL :

By judgment of November 9, 2023, ruling adversarially, sitting in matters of summary

appeal, the Court:

“ ruling following the judgment of the Court of Cassation No. 85/2023 of June 29,
2023, within the limits of the referral,

says the well-founded appeal,

by reformation,

declares admissible and well-founded the request of the limited liability company
(limited liability company) under Californian law SOCIETE1.) LLC for appointment of a
receiver for 100 disputed shares of the limited liability company SOCIETE4.) SARL,
currently allegedly held by the limited liability company under Californian law
COMPANY2.)
LLC since December 19, 2013;

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appoints receiver Maître Claude SCHMARTZ, lawyer at the Court, residing professionally at
L-7364 Bofferdange, 1B, A Romescht, Résidence les cerisiers 2;

says that the mission of the receiver will be:

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to receive, retain and administer as a good father of the family the 100 disputed shares,
namely the 100 shares of the limited liability company SOCIETE4.) SARL transferred by the
limited liability company under Californian law SOCIETE1. ) LLC on December 19, 2013 to the
California limited liability company COMPANY2.) LLC and currently held by the latter;

*
to take possession with a view to constituting escrow of the register of shares of the limited
liability company SOCIETE4.) SARL and to keep it;

*
to oppose any disposal action on the 100 disputed shares of the limited liability company
SOCIETE4.) SARL;

*
to exercise, as a good father, the voting rights attached to the 100 disputed shares mentioned
above in the interest of the limited liability company SOCIETE4.) SARL and in order to preserve
the rights of the limited liability company company) under Californian law COMPANY1.) LLC.

says that the remuneration of the receiver will be the responsibility of the limited liability company
SOCIETE4.) SARL and that the receiver will remain in office until a judicial decision is rendered
within the framework of the pending procedure for annulment of the transfer of 10 % of the
shares of the limited liability company SOCIETE4.) SARL and this decision has become final
and irrevocable or until a court decision puts an end to its mission;

declares the joint judgment to the limited liability company SOCIETE4.) SARL;

declares admissible and well-founded the request of the limited liability company under
Californian law COMPANY1.) LLC to obtain procedural compensation on the basis of article 240
of the New Code of Civil Procedure;

therefore orders the limited liability company under Californian law SOCIETE2.) LLC to pay to
the limited liability company under Californian law SOCIETE1.) LLC the sum of 1,500.- euros for
the first instance and 3,000.- euros for the appeal body, on the basis of article 240 of the New
Code of Civil Procedure;

discharges the limited liability company (limited liability company) under Californian law
COMPANY1.) LLC from the conviction pronounced against it in first instance, on the basis of
said article;

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condemns the limited liability company under Californian law SOCIETE2.) LLC to pay
the costs and expenses of both instances .

By request for interpretation filed on November 29, 2023, the limited liability company
SOCIETE2.) LLC (hereinafter "COMPANY2.)") requests the Court to say, if not clarify
as to the receiver's mission, what should be understood by " exercise, as a good father,
the voting rights attached to the 100 disputed shares mentioned above in the interest of
the limited liability company SOCIETE4.) SARL and in order to preserve the rights of
the limited liability company (limited liability company) under California law
COMPANY1.) LLC ”.

Discussion

In support of its request for interpretation, SOCIETE2.) indicates that it does not know
what the Court means by the notion of “ rights: what rights are these in fact? So-called
property rights over shares? Voting rights relating to said shares? Other rights and if so
which ones? Are the rights in question equivalent to the interests of COMPANY1.)?
Does this still mean that the receiver must systematically not vote in the same direction
as Nouvel even if the interests of SOCIETE4.) require it? ".

In terms of pleadings, COMPANY2.) insists on the fact that the requested clarification
regarding said rights would have an impact on the scope of action of the receiver.
According to his reading of the judgment, the receiver would be instructed to vote as
COMPANY1.), which would constitute an abuse of judicial majority and would prejudge
the merits of the dispute.

COMPANY2.) ends by affirming that the receiver should be independent and neutral: it
itself would have rights of a value at least equal to those of COMPANY1.).

COMPANY1.) replies for its part that there is no reason to fear that the operative part of
the judgment in question will oblige the receiver to systematically vote in the same
direction as it: in fact, (i) this does not would never have been pleaded, (ii) the opposite
would even be indicated in the reasoning of the judgment of November 9, 2023 (page
10) and (iii) the operative part would be clear.

SOCIETE1.) then emphasizes that in the judgment in question, the Court used two
different concepts, namely interests and rights. The interests of SOCIETE4.) would be
targeted as well as the rights of SOCIETE1.), which would be potential, pending the
judgment on the merits. Furthermore, the wording of the receiver's mission would be a
customary wording.

If the request for interpretation were to be admissible, the Court would be required to
remove the alleged ambiguity by specifying that the receiver would be required to
exercise his mission as a good father of a family, in the interest of COMPANY4.) and
that, moreover, by exercising voting rights, the receiver would have to ensure that the
rights, which COMPANY1.) asserts over the shares placed under receivership, are
preserved.

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She ends by requesting the condemnation of SOCIETE2.) for the costs and expenses
of the interpretation procedure and by proposing Maître Marguerite RIES to replace
Maître Claude SCHMARTZ, who would have refused the mission of receiver.

SOCIETE2.) replies on the one hand that the future daughter-in-law of Maître
Marguerite RIES would be an intern in her lawyer's office and on the other hand that
case law on pledges would not be transposed to the receiver.

Assessment of the Court

The request, filed in due form, is admissible in pure form.

It is a principle that a request for interpretation of a court decision must aim to clarify
an obscure or ambiguous provision, but that it must not be a roundabout way to
modify the decision and undermine the authority of res judicata attached thereto.
The judge cannot, under the pretext of determining the meaning of a decision, make
a modification to the precise provisions thereof. Nor does he have the power to
replace a provision of the decision interpreted by a different provision. The right of
interpretation aims at the exact determination of what was the will of the judge. It is
limited by the absolute prohibition on restricting, extending or modifying the rights
that the decision enshrines. It cannot constitute an indirect means of obtaining from
the judge that he modify his initial decision and it is not possible to make any
retraction or addition.

In this case, COMPANY2.) seems to stumble over the meaning of “ preserving the
rights of ” COMPANY1.), in the mission submitted to the receiver. Above all, it
questions the rights in question by placing them in close connection with the voting
rights associated with the shares placed in sequestration.

Judges have sovereign power to judge the need to interpret, that is to say to assess
the obscure or ambiguous nature of a provision of a court decision (Cass. com.
7.10.1981, No. 79-16.416).

The Court notes that the mission as retained in its judgment of November 9, 2023 is
exactly that required since the initiating summons of November 22, 2021, without
SOCIETE2.) having ever formulated the slightest criticism or remark to its
consideration, both before the first instance judge and during appeal proceedings.

The Court further raises that SOCIETE2.) isolates a part of a sentence from the rest
of the sentence and the context, to cast doubt on the meaning(s) to be given to it.

Thus, under the guise of requesting clarification in its request of November 29, 2023,
COMPANY2.) is in reality seeking to add or modify the rights enshrined in the
decision in question, by making an amalgamation between the interests and the
rights set out therein.

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It follows that the request is thus unfounded, with regard to the principles set out
above.

FOR THESE REASONS

the Court of Appeal, Ninth Chamber, sitting in matters of summary appeal and on
a request for interpretation, ruling contradictorily,

declares the request for interpretation admissible in its pure form and unfounded;

condemns the limited liability company under California law SOCIETE2.) LLC to
the costs and expenses of this proceeding.

This judgment was read at the above-mentioned public hearing by Carole

KERSCHEN, president of the chamber, in the presence of the clerk Gilles
SCHUMACHER.