EXCLUSIVE The Versailles Court of Appeal will re-examine on 1is December part of the Conakry port affair and determine whether Bolloré was complicit in the brutal termination of the Necotrans port concession in 2011. Necotrans is claiming 132 million euros from its rival.
This is the new episode in a war that has been raging for 5 years. The twelfth chamber of the Versailles Court of Appeal will re-examine on 1is December part of the Conakry port case and determine whether Bolloré was complicit in the brutal termination of the Necotrans port concession in 2011. The logistics group headed by Grégory Quérel is claiming 132 million euros in damages from Bolloré for having been ejected from Guinean waters for the benefit of his French rival.
At first instance, on October 10, 2013, the Nanterre commercial court had condemned the Vincent Bolloré group to pay 2.1 million euros to its competitor for “investments actually made” by Necotrans and which “benefited to the new concessionaire ”(Bolloré). But he had dismissed the French logistician who accused Bolloré of “unfair competition” and of complicity with the Guinean state.
A dive into the arcana of Françafrique
This affair, which plunges into the troubled waters of Françafrique, saw the Guinean President Alpha Condé, elected in December 2010, terminate on March 8, 2011, the concession agreement for the container terminal at the port of Conakry granted in 2008 for a period of 25 years at Necotrans. Two days later, the concession was entrusted to the Bolloré group. Which is currently the subject of an investigation by the French justice which suspects him of having participated in the presidential campaign of Alpha Condé in 2010, via his advertising company Havas, to facilitate the obtaining of the ports of Conakry and Lomé (Togo), as revealed The world.
“The Court of Appeal will have to say whether or not Bolloré was complicit in the termination of the concession of Necotrans by the Guinean State, indicates to Challenges the lawyer Cédric Fischer, counsel to Necotrans and partner at the firm Fischer, Tandeau de Marsac, Sur & Associés (FTMS). We are confident because we have strong elements that lean in the affirmative ”. The defense of Necotrans is based in particular on the sworn testimony of the deputy director of the Port of Conakry at the time who affirmed before the Common Court of Justice and Arbitration of Abidjan (CCJA) – a pan-African judicial body – that the group Bolloré agreed to take over from Necotrans. Contacted by Challenges, the Bolloré group replied that it did not want to communicate on this file.
Necotrans also relies on two judgments based on an irregular termination of its concession: that of the CCJA of May 2014 which ordered Guinea to pay 38.4 million euros in damages to Necotrans before canceling the sentence. (see below). And that of the arbitration tribunal of the International Center for the Settlement of Investment Disputes (ICSID) rendered last August. The ICSID, however, refused to declare itself competent to judge the consequences of this termination on the grounds that the parties had included in the concession contract a clause referring to the CCJA. Despite this refusal, Necotrans, which should not appeal the judgment of the ICSID, wants to be confident. “We feel stronger than at first instance because since 2013 the CCJA and the ICSID have ruled the termination illegal, it is a given fact that has entered the French legal order, underlines Cédric Fischer. My client must now be compensated ”.
“We are quite far from the rule of law”
And it might take a while. Regarding the judgment that will be delivered by the Court of Appeal of Versailles, it is a safe bet that the parties will exhaust all possible remedies and will go to cassation. This would prolong the legal battle between the two groups by at least 18 months. As for the dispute between Necotrans and Guinea, complications abound. For example: the CCJA quashed in November 2015 the conviction of Guinea for a reason unrelated to the merits of the case (the multiplication by more than seven of the arbitrators’ indemnities) as announced Young Africa. But in the meantime, the president of the Tribunal de Grande Instance (TGI) of Paris had taken care to make the judgment enforceable in France. Necotrans can therefore request the seizure of assets of the Guinean State on French soil at any time.
But again, nothing is simple. “The Sapin 2 law (passed in June, Editor’s note) which increases the protection of the property of foreign states in France makes this seizure much more difficult, specifies Cédric Fischer. We must now receive the authorization of a judge to recover these goods. We are quite far from the rule of law ”. To date, Necotrans has not been able to recover from these 38 million euros, to which are added five million interest, only 150,000 euros. “With the Sapin 2 law, France is shooting itself in the foot because the sums collected will be subject to corporation tax, which in our case would bring the State more than 10 million euros”, continues Cedric Fischer.
Radio silence at the Élysée
But the French state does not seem willing to get wet on this issue. In 2011, Alain Juppé, Minister of Foreign Affairs of a certain François Fillon had found this case “worrying” while adding that it was “not conceivable that the Guinean authorities will reverse their decision” in a letter addressed to Richard Talbot, the CEO of Necotrans at the time, procured Challenges (see below).
And since François Hollande is at the Elysee, it’s radio silence. The former Africa adviser to the Head of State, Hélène Le Gal, now Ambassador to Israel, admittedly received the defense of Necotrans in 2014, a visit that went unanswered. Laurent Fabius’ successor at the Quai d’Orsay, Jean-Marc Ayrault, was also approached by Necotrans before his trip to Conakry in mid-November. But the subject was not even raised with Alpha Condé as specified in Challenges an advisor to the minister who accompanied him to Guinea. A silence that some interpret as the desire not to embarrass a president whom François Hollande has known for twenty years through the Socialist International and with which he maintains very good relations.