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Commercial judgment XV No. 1648/2015 Public hearing on Wednesday, December twenty-third, two thousand fifteen. Numbers 145, 724 and 145,725 on the docket Composition: Jean-Paul HOFFMANN, First Vice President; Robert WORRÉ, First judge; Jacqueline KINTZELÉ, Judge; Sandra MANGEN, Clerk.

I (docket 145,724)

Between:

the limited partnership with stockholders [société en commandite simple par actions] HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A., previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-1724 Luxembourg, 3 A, Boulevard du Prince Henri, registered in the Luxembourg Companies and Trade Register under number B 93,039, registered in the English Companies House as an overseas company under number FC029245, under bankruptcy proceedings in England, and placed in bankruptcy under the English Insolvency Act of 1986, by order on December 1, 2011 by the Honorable Justice SALES of the Chancery Division, Companies Court, in the High Court of Justice (no. 10,471 of 2011), as primary procedure under article 3 of the European Regulation on insolvency procedures dated May 29, 2000; having its current main registered office at London W1U 4JT (United Kingdom), 66, Chiltern Street, represented by its two current liquidators, namely Mr. Andrew Lawrence HOSKING, born June 15, 1966, professionally residing at London W1T 5HP (United Kingdom), 10, Fitzroy Square (c/o QUANTUMA LLP), having been appointed by decision dated December 5, 2011 by the Secretary of State for Business Innovation and Skills upon request by Mr. Philip Ralph AMATT, born September 19, 1966, the latter legally acting under his position as “assistant official receiver,” residing at Public Interest Unit, 21, Bloomsbury Street, London SC1B 3SS, as the official liquidator of the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A.,

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and Mr. Bruce Alexander MACKAY, born May 28, 1958, professionally residing at London EC4A 4AB (United Kingdom) 25, Farringdon Street (p.a. BAKER TILLY RESTRUCTURING AND RECOVERY LLP), having been appointed by decision (Draft Order) of the London High Court of Justice, handed down on May 7, 2014, replacing Mr. Simon James BONNEY, born October 2, 1977, professionally residing at London W1U 4JT (United Kingdom), 66, Chiltern Street (c/o RSM TENON RECOVERY), electing domicile in the office of Mr. Nico SCHAEFFER, attorney to the Court, residing in Luxembourg, plaintiff, under the affidavit by Court Bailiff Yves TAPELLA from Esch-sur-Alzette, dated December 15, 2011, appearing through Mr. Claude GEIBEN, attorney to the Court, residing in Luxembourg, replacing Mr. Nico SCHAEFFER, aforementioned attorney,

and:

1. the limited-liability company [société à responsabilité limitée] HELLAS TELECOMMUNICATIONS s.à.r.l., previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-2352 Luxembourg, 4, rue Jean-Pierre Probst, represented by its manager(s) currently in office, registered in the Luxembourg Companies and Trade Register under number B 107,292, who had the capacity of general partner for the petitioning party, since a deed prepared by the late Mr. Jean Joseph SCHWACHTGEN, notary at that time residing in Luxembourg, dated December 18, 2006,

defendant, for the purposes of the aforementioned Yves TAPELLA writ, appearing through Mr. Marc KLEYR, attorney to the Court, residing in Luxembourg,

2. the limited-liability company HELLAS TELECOMMUNICATIONS I s.à.r.l., in bankruptcy, previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-2352 Luxembourg, 4, rue Jean-Pierre Probst, represented by its receiver currently in office, registered in the Luxembourg Companies and Trade Register under number B 107,372, who has the capacity of limited partner for the petitioning party, since a deed prepared by the late Mr. Jean Joseph SCHWACHTGEN, notary at that time residing in Luxembourg, dated December 18, 2006,

defendant, for the purposes of the aforementioned Yves TAPELLA writ, appearing through Mr. Yann BADEN, attorney to the Court, residing at Gonderange, considered in his capacity as receiver for the aforementioned company,

3. Mr. Giancarlo Rodolfo ALIBERTI, born May 2, 1961, residing at London W8 7HG (United Kingdom), 4, Stafford Terrace, considered in his capacity as category A manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

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4. Mr. Maurizio BOTTINELLI, born September 10, 1966, residing at I-20145 Milan (Italy), 12, Via Tranquillo Cremona, considered in his capacity as category A manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

interveners, for the purposes of the aforementioned Yves TAPELLA writ, appearing through Mr. Fabio TREVISAN, attorney to the Court, assisted by Mr. Alain STEICHEN, attorney to the Court, both residing at Howald,

5. Mr. Philippe COSTELETOS, born June 20, 1965, residing at London W8 7PR (United Kingdom), 52, Kensington Place, considered in his capacity as category B manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

6. Dr. Matthias CALICE, born February 18, 1969, residing at London SW10 OHL (United Kingdom), 2, Lamont Road or at London SW10 9TU (United Kingdom), 405, Fulham Road, considered in his capacity as category B manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

interveners, for the purposes of the aforementioned Yves TAPELLA writ, appearing through the business corporation [société anonyme] ARENDT & MEDERNACH, legal firm, established and having its registered office at L-2082 Luxembourg, 14, rue Erasme, registered in list V of the Table of the Order of Attorneys at the Luxembourg Bar, registered with the Luxembourg Companies and Trade Register under number B 186,371, represented by Mr. Paul MOUSEL, attorney to the Court, residing in Luxembourg,

7. Mr. Guy HARLES, attorney to the Court, residing at L-8077 Bertrange, 14, rue de Luxembourg, considered in his capacity as category C manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

8. Mr. Benoît DUVIEUSART, attorney to the Court, residing at L-6910 Roodt-sur-Syre, 9, route de Luxembourg, considered in his capacity as category C manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

interveners, for the purposes of the aforementioned Yves TAPELLA writ, appearing through the business corporation ARENDT & MEDERNACH, legal firm, established and having its registered office at L-2082 Luxembourg, 14, rue Erasme, registered in list V of the Table of the Order of attorneys at the Luxembourg Bar, registered with the Luxembourg Companies and Trade Register under number B 186,371, represented by Mr. Christian POINT, attorney to the Court, residing in Luxembourg.

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II (docket 145,725)

Between:

the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A., previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-1724 Luxembourg, 3 A, Boulevard du Prince Henri, registered in the Luxembourg Companies and Trade Register under number B 93,039, registered in the English Companies House as an overseas company under number FC029245, under bankruptcy proceedings in England, and placed in bankruptcy under the English Insolvency Act of 1986, by order on December 1, 2011 by the Honorable Justice SALES of the Chancery Division, Companies Court, in the High Court of Justice (no. 10,471 of 2011), as primary procedure under Article 3 of the European Regulation on Insolvency Procedures dated May 29, 2000; having its current main registered office at London W1U 4JT (United Kingdom), 66, Chiltern Street, represented by its two current liquidators, namely Mr. Andrew Lawrence HOSKING, born June 15, 1966, professionally residing at London W1T 5HP (United Kingdom), 10, Fitzroy Square (c/o QUANTUMA LLP), having been appointed by decision dated December 5, 2011 by the Secretary of State for Business Innovation and Skills upon request by Mr. Philip Ralph AMATT, born September 19, 1966, the latter legally acting under his position as “assistant official receiver,” residing at Public Interest Unit, 21, Bloomsbury Street, London SC1B 3SS, as the official liquidator of the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A., and Mr. Bruce Alexander MACKAY, born May 28, 1958, professionally residing at London EC4A 4AB (United Kingdom) 25, Farringdon Street (p.a. BAKER TILLY RESTRUCTURING AND RECOVERY LLP), having been appointed by decision (Draft Order) of the London High Court of Justice, handed down on May 7, 2014, replacing Mr. Simon James BONNEY, born October 2, 1977, professionally residing at London W1U 4JT (United Kingdom), 66, Chiltern Street (c/o RSM TENON RECOVERY), electing domicile in the office of Mr. Nico SCHAEFFER, attorney to the Court, residing in Luxembourg,

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plaintiff, under the affidavit by Deputy Court Bailiff Nadine called Nanou TAPELLA, replacing Court Bailiff Yves TAPELLA from Esch-sur-Alzette, dated December 16, 2011, appearing through Mr. Claude GEIBEN, attorney to the Court, residing in Luxembourg, replacing Mr. Nico SCHAEFFER, aforementioned attorney,

and:

1. the limited-liability company [société à responsabilité limitée] HELLAS TELECOMMUNICATIONS s.à.r.l., previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-2352 Luxembourg, 4, rue Jean-Pierre Probst, represented by its manager(s) currently in office, registered in the Luxembourg Companies and Trade Register under number B 107,292, which had the capacity of general partner for the petitioning party, since a deed prepared by the late Mr. Jean Joseph SCHWACHTGEN, notary at that time residing in Luxembourg, dated December 18, 2006,

defendant, for the purposes of the aforementioned Nanou TAPELLA writ, appearing through Mr. Marc KLEYR, attorney to the Court, residing in Luxembourg,

2. the limited-liability company HELLAS TELECOMMUNICATIONS I s.à.r.l., in bankruptcy, previously established at L-1882 Luxembourg, 12, rue Guillaume Kroll, currently established at L-2352 Luxembourg, 4, rue Jean-Pierre Probst, represented by its receiver currently in office, registered in the Luxembourg Companies and Trade Register under number B 107,372, who has the capacity of general partner for the petitioning party, since a deed prepared by the late Mr. Jean Joseph SCHWACHTGEN, notary at that time residing in Luxembourg, dated December 18, 2006,

defendant, for the purposes of the aforementioned Nanou TAPELLA writ, appearing through Mr. Yann BADEN, attorney to the Court, residing at Gonderange, considered in his capacity as receiver for the aforementioned company,

3. Mr. Giancarlo Rodolfo ALIBERTI, born May 2, 1961, residing at London W8 7HG (United Kingdom), 4, Stafford Terrace, considered in his capacity as category A manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

4. Mr. Maurizio BOTTINELLI, born September 10, 1966, residing at I-20145 Milan (Italy), 12, Via

Tranquillo Cremona, considered in his capacity as category A manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

defendants, for the purposes of the aforementioned Nanou TAPELLA writ, appearing through Mr. Fabio TREVISAN, attorney to the Court, assisted by Mr. Alain STEICHEN, attorney to the Court, both residing at Howald,

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5. Mr. Philippe COSTELETOS, born June 20, 1965, residing at London W8 7PR (United Kingdom), 52, Kensington Place, considered in his capacity as category B manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

6. Dr. Matthias CALICE, born February 18, 1969, residing at London SW10 OHL (United Kingdom), 2, Lamont Road or at London SW10 9TU (United Kingdom), 405, Fulham Road, considered in his capacity as category B manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

defendants, for the purposes of the aforementioned Nanou TAPELLA writ, appearing through the business corporation ARENDT & MEDERNACH, legal firm, established and having its registered office at L-2082 Luxembourg, 14, rue Erasme, registered in list V of the Table of the Order of Attorneys at the Luxembourg Bar, registered with the Luxembourg Companies and Trade Register under number B 186,371, represented by Mr. Paul MOUSEL, attorney to the Court, residing in Luxembourg,

7. Mr. Guy HARLES, attorney to the Court, residing at L-8077 Bertrange, 14, rue de Luxembourg, considered in his capacity as category C manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

8. Mr. Benoît DUVIEUSART, attorney to the Court, residing at L-6910 Roodt-sur-Syre, 9, route de Luxembourg, considered in his capacity as category C manager for the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l. at the time of the facts,

defendants, for the purposes of the aforementioned Nanou TAPELLA writ, appearing through the business corporation ARENDT & MEDERNACH, legal firm, established and having its registered office at L-2082 Luxembourg, 14, rue Erasme, registered in list V of the Table of the Order of Attorneys at the Luxembourg Bar, registered with the Luxembourg Companies and Trade Register under number B 186,371, represented by Mr. Christian POINT, attorney to the Court, residing in Luxembourg.

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The Court:

Having heard the plaintiff party through its agent Mr. Claude GEIBEN, attorney to the Court, replacing Mr. Nico SCHAEFFER, briefed attorney, both residing in Luxembourg. Having heard the defendant party HELLAS TELECOMMUNICATIONS s.à.r.l. through its agent Mr. Marc KLEYR, briefed attorney, residing in Luxembourg. Having heard the defendant party HELLAS TELECOMMUNICATIONS I s.à.r.l., in bankruptcy, through its receiver Mr. Yann BADEN, briefed attorney, residing at Gondrange. Having heard the defendant parties Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI, through their agent Mr. Fabio TREVISAN, briefed attorney, assisted by Mr. Alain STEICHEN, attorney to the Court, both residing at Howald. Having heard the defendant parties Philippe COSTELETOS and Matthias CALICE through their agent, the business corporation ARENDT & MEDERNACH, briefed attorney, represented by Mr. Paul MOUSEL, attorney to the Court, both residing in Luxembourg. Having heard the defendant parties Guy HARLES and Benoît DUVIEUSART, through their agent, the business corporation ARENDT & MEDERNACH, briefed attorney, represented by Mr. Christian POINT, attorney to the Court, both residing in Luxembourg. Having reviewed commercial judgment no. 1648/13 handed down by this court on December 11, 2013 under docket number 145,725. Having reviewed the closing orders for the investigation and the cases recorded under docket numbers 145,724 and 145,725 handed down at the public hearing on June 17, 2015. The oral report by Madam Judge-Rapporteur Jacqueline KINTZELÉ having been heard at the hearing on October 28, 2015. By bailiff affidavit dated December 15, 2011, the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A., under bankruptcy proceedings in England (hereinafter referred to as HELLAS II), summoned the limited-liability companies HELLAS TELECOMMUNICATIONS s.à.r.l. (hereinafter referred to as HELLAS) and HELLAS TELECOMMUNICATIONS I s.à.r.l. (hereinafter referred to as HELLAS I) to appear before the District Court of and in Luxembourg, meeting in commercial matters, under civil procedure, to: - hear them jointly ordered to pay it the amount of 978,659,712.- EUR with conventional interest, or

otherwise legal interest from December 18, 2006, or from December 21, 2006, or from the day of the legal claim, until payment in full,

- and see to cancellation of the resolutions adopted on December 18, 2006 by HELLAS on behalf of the petitioner to buy back 27,321,600 financial instruments called Convertible Preferred Equity Certificates (hereinafter referred to as “CPECs”) from HELLAS I at a par value of 35.82 EUR per CPEC, and to see to cancellation of the buyback settlement that was reached for repayment of the CPECs

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concluded on December 21, 2006, or otherwise several days later, and state that the price is consequently repayable to the petitioner.

It is also seeking compensation of 15,000.- EUR from each of the summoned parties pursuant to Article 240 of the New Code of Civil Procedure, and that the latter be ordered to pay all costs and expenses of the proceedings, to be recovered by its agent. This case was recorded under docket number 145,724. HELLAS II is basing its requests for sentencing on the rules of contractual liability, or otherwise criminal liability, and in support of its claims for invalidity cites evasion of the law, an illegal and immoral cause for the buyback, violation of binding provisions of the law, bylaws and contractual provisions, and acts contrary to the corporate interest of the petitioner. On January 22, 2014, a first closing order for the investigation was revoked by agreement between the parties and in the interest of a proper administration of justice. According to voluntary intervention requests served on February 11, 2014, Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART requested recognition of their voluntary intervention in these proceedings, under express reserve of the right to lodge an appeal against commercial judgment no. 1648/13 handed down on December 11, 2013 by this court in the proceedings between the same parties and recorded under docket number 145,725. By commercial judgment dated December 17, 2014, HELLAS I was declared to be in bankruptcy and Mr. Yann BADEN was appointed as receiver, who referred to the submissions previously made, i.e., those served by HELLAS and HELLAS I dated November 21, 2014, while HELLAS served summary submissions on June 12, 2015. In their writings, HELLAS and HELLAS I pled for the inadmissibility, or otherwise the unfounded nature, of the summons dated December 15, 2011 and all of the requests submitted against them, emphasizing the lack of a causal relationship between the buyback of the CPECs done by HELLAS II in December 2006 and the alleged injury, which remains contested both in terms of principle and quantum. The petitioner should also be rejected for its request for cancellation for illegal or immoral cause or cause contrary to public order, or otherwise the return of the sums paid for the buyback of the CPECs should be refused to it pursuant to the adage Nemo auditur propriam turpitudinem allegans. Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI raise the inadmissibility of the claims by the liquidator submitted against them based on an alleged de facto management to establish new claims, as well as the inadmissibility of the claims by the liquidators inasmuch as they are acting on behalf of the body of creditors.

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They plead for rejection, as being unfounded, of the claims of any nature and in all points by the liquidators when they act as representatives of HELLAS II. They lastly request that the liquidators be ordered to pay the sum of 20,000.- EUR or any other sum, even higher, to be arbitrated ex aequo et bono by the court, pursuant to Article 240 of the New Code of Civil Procedure, as well as the costs and expenses to be recovered by their agent. Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART plead for the inadmissibility of the claims submitted on a criminal basis for the lack of power by liquidators to represent the body of creditors of HELLAS II. They feel that both the discharge granted to the manager-general partner for his mandate in 2006 and the exclusive liability clause appearing in the shareholders’ agreement are fully enforceable against the petitioner and that their liability cannot be incurred on any of the legal bases cited by the latter, contesting both the alleged injury and the causal relationship between the reproached breaches and the injury cited by the petitioner, such that the submitted requests must be rejected in full. In docket number 145,725, the request by HELLAS II seeks the joint, or otherwise several, or otherwise joint and several, sentencing of Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART to pay the amount of 978,659,712.- EUR with the conventional interest, or otherwise legal interest from December 18, 2006, or otherwise from December 21, 2006, or otherwise from the date of the legal request, until payment in full, HELLAS and HELLAS I being summoned for declaration of joint judgment. The liability of the summoned natural persons is primarily sought on the contractual basis in their capacity as members of the management board of the sponsored shareholder at the time of the contentious buyback decision “for having participated in the decisions in dispute and their implementation” and having committed violations of the law on commercial partnerships. In the alternative, their liability is sought pursuant to Articles 1382 and 1383 of the Civil Code in conjunction with Articles 72-1, 167 and 201 of the modified law dated August 10, 1915 regarding commercial partnerships (hereinafter referred to as the “modified 1915 Law”). Following commercial judgment no. 1648/13 dated December 11, 2013, this court has already declared the request against the six defendants who are natural persons to be admissible and has stated that Article 51bis of the modified 1915 Law is applicable to limited partnerships with stockholders, while reserving all other grounds, requests and rights of the parties, as well as costs and expenses. Subject to an appeal against the aforementioned interlocutory judgment, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART pled for the inadmissibility, or otherwise the unfounded nature, of the requests submitted on a contractual basis in the absence of a contract entered into with the petitioner. Inasmuch as they acted within their duties, they feel that the requests submitted on a criminal basis should also be declared admissible, or otherwise unfounded. They also refer to the exclusive liability clause appearing in the shareholders’ agreement and assert that their liability cannot be incurred on any of the legal bases cited by the petitioner, contesting both the alleged injury and the causal relationship between the reproached breaches and the injury cited by the petitioner, such that the submitted requests should be rejected in full.

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Also subject to an appeal against the interlocutory judgment dated December 11, 2013, Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI raise the inadmissibility both of the claims by the liquidator submitted against them based on an alleged de facto management and their request for cancellation of the resolutions for violation of Article 51bis of the modified 1915 Law, on the grounds that the latter constitute new requests, as well as the inadmissibility of the requests by the liquidators inasmuch as they are acting on behalf of the body of creditors. They plead for rejection, as unfounded, of the requests by the liquidators of all natures and in all points when they act as representatives of HELLAS II. They lastly request that the liquidators be ordered to pay the amount of 20,000.- EUR pursuant to Article 240 of the New Code of Civil Procedure, as well as costs and expenses to be recovered by their agent. Asserting that the summons against it under docket number 145,724 based on its alleged contractual or criminal liability should be declared admissible, or otherwise unfounded, HELLAS consequently pleads the inadmissibility, or otherwise the unfounded nature, of the action for contractual, or otherwise for criminal, liability against its former managers. HELLAS I refers to the submissions previously made to the case. HELLAS II asserts that its liquidators indeed have the capacity and standing to act under English law and pleads on the founded nature of its request against the six defendants, in particular mentioning evasion of the law, evasion of creditors' rights, violation of the bylaws, acts contrary to the corporate interest of the petitioner, as well as a violation of the terms & conditions of the CPECs and the provisions of the aforementioned Article 51bis, which, aside from constituting causes for invalidity of the buyback in dispute, are of a nature to incur the contractual, or otherwise criminal, liability of the former HELLAS managers.

1) Joinder of the dockets In the case at hand, the parties have not spoken regarding the potential joinder of the two proceedings, but the closing order handed down on June 26, 2013 under docket number 145,724 was revoked on January 22, 2014 by agreement by all of the parties and in the interest of a proper administration of justice, in particular to allow the defendant parties who are natural persons to voluntarily intervene in this docket to make their submissions therein regarding the merits of the case, whereas the decision that the court will make in docket number 145,724 could influence the outcome of the dispute recorded under docket number 145,725. The decision to join the two proceedings is left to the sovereign assessment of the judges, who will have to examine whether the various actions have a serious affinity, and close correlation, to one another.

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The joinder of cases is a purely investigational measure that leaves each case its own individuality, and also does not prejudice the admissibility or founded nature and does not found them in a single preceding. The joinder of the cases due to a related nature is intended sometimes to facilitate legal discussions, sometimes to avoid contradictory decisions, and sometimes to save costs for the parties to the dispute. The requests recorded under docket numbers 145,724 and 145,725 relate to a single and shared starting point, i.e., the resolutions adopted on December 18, 2006 by HELLAS on behalf of the petitioner for the buyback of the CPECs, followed by the conclusion of the buyback contract for the CPECs in dispute dated December 21, 2006, and also based on the same facts. The solution given to the dispute registered under docket number 145,724 may also influence the solution to be given to the request recorded under docket number 145,725. There is then cause, in the interest of a proper administration of justice, to join the two dockets and rule through a single and same judgment.

2) Consistent facts of the case The consistent facts of the case, as they emerge from the submissions by the parties in the exhibits submitted to the case, can be summarized as follows: In late March 2005, HELLAS I (formerly called TROY I) became the sole shareholder of HELLAS II, which was then a limited-liability company under Luxembourg law with a minimum company capital of 12,500.- EUR and bearing the name “TROY II s.à.r.l..” At that time, a consortium of investors, made up of several investment funds affiliated with or advised and managed by Apax Partners Limited and Texas Pacific Group (hereinafter referred to as the “Investors”) decided to invest in the Greek TIM Hellas telecommunications group, then the third leading mobile telephone operator in Greece, in particular through HELLAS II and its subsidiaries. On April 3, 2005, a subsidiary of HELLAS II, the business corporation under Greek law “TROY GAC Telecommunications S.A.,” acquired 80.87% of the shares of TIM Hellas for an acquisition price of 1,114.1 million euros. This acquisition was partially financed by the conclusion, on April 3, 2005 by different entities in the HELLAS and TIM Hellas group, of a Revolving Credit Facility and by the issue, on June 15, 2005, by HELLAS II, of 490,000 CPECs with a par value of 100.- EUR each and subscribed by HELLAS I. On the same day, HELLAS I also issued 490,000 CPECs with a par value of 100.- EUR each in favor of its sole shareholder, the company HELLAS, while HELLAS (formerly called TROY) issued the same number of CPECs in favor of its own shareholders.

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On October 27, 2005, TIM Hellas (through a subsidiary) purchased Q-Telecom, which at that time was the fourth biggest Greek mobile telephone operator, for a total acquisition price of approximately 367.1 million euros. The balance of 19.13% of the shares of TIM Hellas was acquired by the same subsidiary under Greek law of HELLAS II on November 3, 2005 for a price of 263.5 million euros, which brought the total acquisition price of TIM Hellas to approximately 1,613.6 million euros, taking into account the refinancing of TIM Hellas’s debt in an amount of 166 million euros and transaction costs of approximately 70 million euros. During the year 2005, the company capital of HELLAS II was brought to the amount of one million euros. On January 31, 2006, HELLAS II issued 282,681 additional CPECs with a par value of 100.- EUR each and subscribed by HELLAS I, its company capital having in the meanwhile been increased to 1,576,900.- EUR. On the same date, HELLAS I also issued 282,681 additional CPECs with a par value of 100.- EUR in favor of its sole shareholder, HELLAS, while HELLAS issued the same number of CPECs in favor of its own shareholders. The total cost of the acquisitions of TIM Hellas and Q-Telecom, which were finalized on January 31, 2006, reached approximately 1,980.7 million euros. These acquisitions were financed in an amount of 390.1 million euros by the Investors, approximately 1.6 million euros of which was in the form of company capital, approximately 31.2 million euros of which was in the form of subscriptions for financial instruments called Preferred Equity Certificates (hereinafter referred to as “PECs”) and approximately 77.3 million euros in the form of subscriptions for CPECs, the remainder of the acquisition price having been financed by banks at the subsidiaries of HELLAS II. In April 2006, HELLAS II bought 43,500,000 CPECs back from HELLAS I at their par value, i.e., for a total acquisition price of 43,500,000.- EUR. The same buybacks took place between HELLAS I and HELLAS, then between HELLAS and its own shareholders in order to pass the buyback price on to the Investors. In April 12, 2006, the par value of the CPECs was brought from 100.- EUR to 1.- EUR per CPEC (cf. notes to the consolidated financial statements as of December 31, 2006, page F-31). In June 2006, the Investors considered a sale of the HELLAS group for the end of the year 2006 and tasked KPMG with producing a vendor due diligence report, which was submitted on October 19, 2006. In July 2006, the Investors receive proposals from approximately 10 investment banks, i.e., from the Crédit Suisse, Citigroup, Deutsche Bank, Goldman Sachs, HSBC, Lazard, Lehman Brothers, Merrill Lynch, Morgan Stanley, and UBS, indicating their interest in conducting the sales process of the TIM Hellas group and evaluating the latter on average at an enterprise value situated between 3.3 and 4 billion euros.

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The Investors selected the Lehman Brothers and Morgan Stanley banks as financial advisors for the sale of the group, who prepared a Hellas Group Information Memorandum intended for potential buyers and including both information on the group’s financial performance over a period of 18 months (from early 2005 to late June 2006), and projections for the years 2006 to 2011 taken from the business plan prepared by the TIM Hellas management, as well as more general information on the history of the group and the past evolution and future projections for the Greek and European telecommunications sectors. Based on the Hellas Group Information Memorandum prepared by the aforementioned banks, the TIM Hellas group was offered for sale as part of a call for the highest bidder and, during the first step of the auction in October 2006, five companies submitted (non-binding) offers comprised between 2.5 and 3 billion and 3.8 billion euros. In November 2006 and after the deeper due diligence, two of the three companies that were admitted to the second step of the auction submitted offers of 2.7 billion euros (Turkcell) and 3.2 billion euros (Providence), respectively. The Investors not being inclined to assign the group for an enterprise value below 3.4 billion euros, no agreement was able to be reached with the potential buyers having submitted the aforementioned offers. In December 2006, the Investors then decided to delay the sale and restructure the group’s financing, and thus debt, with the issue of new bonds to the public and partial buyback of CPECs (hereinafter referred to as the “Refinancing”), alternative scenario suggested by the banks. This Refinancing was in particular to be done subject to the three following mandatory issues: - an issue by Hellas Finance (a subsidiary of HELLAS I) of Floating Rate Senior PIK Notes in an amount of 200 million euros, - an issue by Hellas V (a subsidiary of HELLAS II) of Senior Secured Notes in an amount of 97,250 million euros, - an issue by Hellas II of Floating Rate Subordinated Notes in an amount of 960 million euros and 275 million US dollars. Inasmuch as this Refinancing assumed the issue of a loan to the public (prohibited for limited-liability companies under Article 188 of the modified 1915 Law), HELLAS II, following a notarized deed dated December 18, 2006, was converted from a limited-liability company to a limited partnership with stockholders, HELLAS was appointed as unlimited shareholder and manager of the petitioner, while HELLAS I became its limited shareholder.

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On that date and since September 25, 2016, Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART were the members of the management board for HELLAS. HELLAS was also still the sole shareholder of HELLAS I. Following resolutions by its managing general partner HELLAS made on December 18, 2006, HELLAS II decided to participate, together with other entities in the group, in the refinancing of the existing debt of TIM Hellas, the proceeds of which would be used to repay largely subordinated shareholder's loans of HELLAS I, the proceeds of this repayment having to be used by HELLAS I to repay and buy back the loans of its own shareholder (page 1 of the aforementioned resolutions). For this Refinancing, HELLAS II in particular shared its intent to issue Subordinated Floating Rate Notes in a total amount of 1.1 billion euros and buy back the CPECs held by HELLAS I for total amount of 978,659,712.- EUR and decided, consequently, to set the optional buyback price of the 27,321,600 CPECs at 35.82 EUR per CPEC “based on the equity value of the Company and its Subsidiaries on an arm's length basis” (cf. first resolution, page 4) and execute a certain number of Transaction Documents (as defined on page 4, cf. second resolution). Also on December 18, 2006, the prospectus called Offering Memorandum was issued in particular for the issue by Hellas II of 960,000,000.- EUR Floating Ray Subordinated Notes due 2015 and 275,000,000.- USD Floating Rate Subordinated Notes due 2015. According to the Redemption Agreement dated December 21, 2006, HELLAS II bought back 27,321,600 CPECs, out of a total of 33,808,736 issued CPECs, from HELLAS I at an optional buyback value of 35.82 EUR per CPEC, such that it paid its limited partner the total amount of 978,659,712.- EUR. On the same date, HELLAS I bought back 27,373,000 CPECs from its sole shareholder, HELLAS, at an optional buyback value of 35.57 EUR per CPEC, i.e., for a total buyback price of 973,657,610.- EUR, while HELLAS bought back an equivalent number of CPECs from its own eight shareholders at the same optional buyback value of 35.57 EUR per CPEC, i.e., also for a total buyback price of 973,657,610.- EUR. According to the Indenture concluded on December 21, 2006 between HELLAS II, as Issuer, and in particular The Bank of New York, as Trustee, Registrar, Transfer Agent and Paying Agent (as defined in the Indenture), HELLAS II issued the 960,000,000.- EUR Floating Rate Subordinated Notes due 2015 and 275,000,000.- USD Floating Rate Subordinated Notes due 2015 (hereinafter referred to as the “Subordinated Notes”). Following this Refinancing, Weather Investments S.p.A. (hereinafter referred to as “Weather”) informed the Investors of its intention to acquire the TIM Hellas group.

15

This acquisition was embodied by the conclusion, on February 6, 2007 between the Investors and Weather, of the Securities Purchase Agreement, by which the latter acquired all of the Securities of HELLAS (as entity indirectly holding all of the “equity interest” of TIM Hellas), including both its 15,769 company shares with a par value of 100.- EUR each, and 6,435,736 CPECs with a par value of 1.- EUR each and its 2 B-CPECs with a par value of 100.- EUR each, subject to an acquisition price of 500 million euros. Following this acquisition, TIM Hellas changed its name to WIND Hellas. Inasmuch as the Indenture provided that in case of a change of control (as was the case following the sale of the group to Weather), the issuer HELLAS II had to submit, to the holders of the Subordinated Notes, a buyback offer for a price equivalent to 101% of the principal amount of the held Notes, increased by any interest (cf. section 4.15 of the Indenture), HELLAS II informed the holders of the Subordinated Notes, on February 20, 2007, of the applicability of these provisions and requested their agreement to waive the immediate buyback option that was thus open to them, subject to the payment of compensation of 0.1% of the principal amount held (cf. Consent Solicitation Statement, exhibit no. 19 of bundle 2/5 by Mr. Trevisan). A very large majority of the holders of the Subordinated Notes agreed to waive their immediate buyback option, and thus to keep their debt securities (cf. exhibit no. 20 of bundle 2/5 by Mr. Trevisan), such that HELLAS II was no longer obligated to make them a buyback offer within the meaning of the aforementioned section 4.15. On July 27, 2007, the annual general shareholders' meeting of HELLAS II was held, which was attended by HELLAS I, as owner of 15,760 ordinary shares, and HELLAS, as owner of a management share. During this meeting, the shareholders in particular decided to approve the annual accounts for HELLAS II for the fiscal year closed on December 31, 2006, recognizing the existence of a loss exceeding 100% of the company capital, decided to continue the company’s activity pursuant to article 100 of the modified 1915 Law, and granted discharge to the sole manager, the members of the supervisory board and the independent auditor. On October 1, 2007, WIND Hellas indirectly acquired a participation of 51% in the Greek business corporation Tellas S.A. Telecommunications (hereinafter referred to as “Tellas”), company operational in the fixed telephony and Internet access services field, in return for an acquisition price of 180 million euros financed by the use of a Revolving Credit Facility. The remaining 49% of the participation in Tellas was acquired in September 2008 for a price of 179 million euros. Following a resolution by the shareholders of HELLAS II on August 15, 2009, it was in particular decided to transfer the main center of interest of the aforementioned company from Luxembourg to the United Kingdom.

16

On November 26, 2009, Judge Lewinson from the High Court of Justice, Chancery Division in London, decided to place HELLAS II under Administration, according to its request to that end, to approve the sale of its assets, including its participation in WIND Hellas, to a subsidiary of Weather as part of a pre-pack sale. This sale took place on November 27, 2009 in return for a price of 10,000.- EUR. Following a decision handed down on December 1, 2011 by Judge Sales of the High Court of Justice, Chancery Division, Companies Court in London, HELLAS II, whose insolvency had been recognized, was placed in liquidation under a primary procedure as defined in article 3 of Regulation (EC) no. 1346/2000 by the Council dated May 29, 2000 relative to insolvency procedures (hereinafter the Insolvency Act).

3) Grounds for inadmissibility of general scope

- Inadmissibility of the requests pursuant to Article 22 of the modified Law dated December 19, 2002 HELLAS and HELLAS I first raise, as part of their submissions served on November 21, 2014, the inadmissibility of the requests introduced by the summons dated December 15, 2011 pursuant to Article 22 of the modified Law dated December 19, 2002 regarding the Companies and Trade Register as well as the accounting and annual accounts of companies (hereinafter referred to as “the modified 2002 Law”) for violation of Articles 1, 6, 13 and 75 of that same law. HELLAS subsequently specified this ground as part of its summary submissions served on June 12, 2015. HELLAS and HELLAS I assert that this obligation for recordal in the companies and trade register applies not only to the existence of the legal entity, but also to all information required by Articles 3, 16 and 13 of the aforementioned 2002 Law, as well as changes affecting this information, in particular including the publication of “court decisions from the legal authorities regarding bankruptcy, arrangements of creditors or other similar procedures according to the Relation (Insolvency)” as required by Article 13§13, information that was not published within the period of one month from the event as required by Article 15 of the 2002 Law. They draw the parallel with Article 21 (2) of the Insolvency Act, under which “any Member State within the territory of which the debtor has an establishment may require mandatory publication (of the judgment opening insolvency proceedings),” indicating that such a publication would indeed be made mandatory in Luxembourg by Article 13§13 of the modified 2002 Law, before pleading for the inadmissibility of the requests in light of the lateness of the publications made by the liquidators, in the case at hand on April 10, 2012, thus well beyond the period of one month. Under Article 22, paragraph (1), of the modified 2002 Law, “Any main action, counterclaim or joinder of a third party arising from a business activity for which the petitioner was not registered when the action was introduced is inadmissible. (…) This inadmissibility is covered if it is not proposed before any other exception or any defense.”

17

HELLAS II first asserts that the defendant companies are debarred from raising this ground, which was not raised in limine litis. A debarment remains to be proven, whereas only the submissions served on November 21, 2014 on behalf of HELLAS and HELLAS I can be taken into consideration by the court. Yet as part of these submissions, this ground for inadmissibility was indeed raised after the presentation of the facts, but for any defense on the merits, thus in limine litis. HELLAS II next reproaches the defendants for not supporting any grievance due to the publication of the judgment opening the liquidation after the service of the summons on December 15, 2011. Yet it is well-established case law that the inadmissibility set out in Article 22 (1) of the modified 2002 Law constitutes a general bar to action; it is not subject to the existence of a grievance by the party citing it (cf. Cass., December 22, 2011, appeal in cassation no. 72/11, no. 2885 of the register). Asserting that it was regularly recorded in the companies and trade register beginning in 2003, HELLAS II next criticizes the interpretation of the aforementioned Article 22 by the defendant companies and refers to the interlocutory judgment dated December 11, 2013, which confirmed that the lack of publication of the opening decision also appointing the liquidators does not cause the inadmissibility of the request. At first glance, it should be stressed that Article 21 (2) of the Insolvency Act cited by the defendants does not apply to the case at hand, whereas this text targets the mandatory publication only for Member States in whose territory the debtor has an establishment, which in the case at hand cannot target Luxembourg, which is the Member State only of the statutory registered office, the main center of interest having been transferred to the United Kingdom. In this respect, reference should be made to the developments done in the judgment dated December 11, 2013 relative to the principle of automatic recognition of procedures involving the lack of need for a publication (pages 13 and 14 of the judgment, cf. also François Mélin cited therein, page 342, no. 278). Furthermore, although Articles 1, 3 to 11, 13 and 20 of the modified 2002 Law require business persons who are natural persons and legal entities to have a certain number of registrations and recordals done, including “court decisions from the legal authorities regarding bankruptcy, arrangements of creditors or other similar procedures according to the Relation (Insolvency)” as required by Article 13§13, their omission, although criminally punishable by Article 21 (5) of the modified 2002 Law, does not necessarily and systematically cause inadmissibility within the meaning of Article 22 (1) of that Law.

18

Indeed, this article only causes inadmissibility of actions “originating in a commercial activity” for which the plaintiff was not registered when the action was initiated. Thus, it has been held that the provisions relative to the companies register require business persons not only to register themselves, but also to register any commercial activity that they perform and record any additional activity that they add to their activity after the first recordal (Court, July 15, 2010, nos. 34418 and 34925 of the docket). The recordal obligation in the companies and trade register, as sanctioned by inadmissibility under Article 22 (1), then more particularly targets information and changes affecting the company purpose of the business. Indeed, drawing an argument from the principle of the specialty of the legal entity, the legal entity only being able to act in the strictly defined context of the company purpose for which it was established, it was decided that it does not suffice for the legal entity to be recorded in the companies and trade register, but it is necessary for the act for which it is seeking punishment under its lawsuit to fall within its company purpose as published in that register. Otherwise, the action is declared admissible (cf. T. Hoscheit, Le droit judiciaire privé, éditions Bauler 2012, pages 488 and 489). In the case at hand, it is not proven or even alleged that the lawsuit by HELLAS II is related to a commercial activity exceeding its company purpose and for which it was not registered in the companies and trade register. Likewise, the grievance related to a lack of publication of the annual accounts and, from there, noncompliance with Article 75 of the modified 2002 Law, cannot justify inadmissibility of the requests pursuant to the aforementioned Article 22 (1), whereas such an omission, even assuming it were to be proven, in no way affects the company purpose of HELLAS II. This ground for inadmissibility must then be rejected.

- Admissibility of the requests based on an alleged violation of Articles 51 and 55 of the modified 2002 Law and Article 51bis of the modified 1915 Law

HELLAS reproaches the petitioner for newly citing, in its summary submissions served on January 29, 2015 (pages 85 and following) in support of its requests, a violation of Articles 51 and 55 of the modified 2002 Law, which was not included in the legal summons and should then be declared inadmissible because it constitutes a new request. Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE raise the inadmissibility of the requests drawn from a potential violation of Article 51bis of the modified 1915 Law also on the grounds that this would involve a new request, not contained in the summons dated December 16, 2011, and cited for the first time by the petitioner in its pleadings submitted after the interlocutory judgment.

19

The plaintiff party contests having submitted new requests, whereas it merely submitted new grounds that would not modify the subject of the requests and the description of the facts and reproaches made against the defendants. It is generally allowed that it is the writ initiating proceedings that defines the procedural tie in terms of its component elements, i.e., the parties, the subject in the case, which are characterized by their immutable nature (cf. Court, December 19, 2000, no. 24212 in the docket). The principle of the immutability of the dispute prohibits the introduction of new requests both in first instance and during instances arising after appeals have been exercised. It is, however, allowed that in first instance, the various incident, additional requests are admissible inasmuch as they have a sufficiently close tie to the primary request (Encyclopédie Dalloz, Procédure Civile, see demande nouvelle, nos. 3 and 4). The cause of the request consists of the factual elements cited by the plaintiff to found the claim (H. Motulsky, La cause de la demande dans la delimitation de l’office du juge, D. 1964, Chronique, p. 235). Aside from the possibility of introducing incident requests pursuant to Article 53 of the New Code of Civil Procedure, the field of the new request is further reduced by the influence of Article 61 of the same Code on the second component element of the request, i.e., the cause. This article shows that the court must apply, to the dispute submitted to it, the appropriate legal rule by making the appropriate legal qualifications. It must necessarily be deduced from this provision that although the court is not bound by the legal qualifications given by the plaintiff to its action and may substitute another framework therefor, the plaintiff must also be able to change legal bases, of course on the condition that this does not modify the subject and facts at the base of the request, and be able to subsequently provide precisions on the cited grounds (cf. T. Hoscheit, op. cit., no. 321 and 1008). In the case at hand, in the writs of summons dated December 15 and 16, 2011, the petitioner criticizes the buyback of the contentious CPECs at the price done in particular due to a “serious violation of the law on commercial partnerships,” indicating (on pages 8 and 9 of the respective summons), “that in the case at hand, there is at the very least a violation (…) of Articles 72-1 and 167, and any other identically relevant provisions of the same law on commercial partnerships.” Although the petitioner had initially cited, in support of its requests, only violations (broadly speaking) of the modified 1915 Law, without specifically citing a violation of the provisions of the modified 2002 Law, it nevertheless emerges from the statement of the facts that it was already criticizing the buyback price used in light of the notes (in particular the lack of profits) appearing in the balance sheets on December 31, 2005 and December 31, 2006. The analysis of the balance sheets and the discussion on the alleged violations of accounting standards then cannot be analyzed as a modification of the cause of the request, the facts cited at the base of the dispute and the subject of the requests also remaining identical.

20

The same is true for the alleged violation of Article 51bis of the modified 1915 Law, the applicability of which to this dispute was subject to a discussion between the parties following the requests submitted in that sense by the investigating judge. Here again, the violation cited by the petitioner in no way modifies the cause and subject of the requests, the latter only citing the alleged noncompliance with this text in order to illustrate an “additional violation of the law,” the potentially illegal or fraudulent nature of the buyback of contentious CPECs as part of docket no. 145,724 necessarily having to be assessed in light of the concrete reproaches submitted as part of the summons. Furthermore, the court not having ruled in its interlocutory judgment regarding any consequences of the applicability of Article 51bis of the modified 1915 Law to limited partnerships with stockholders and the lack of appointment of a permanent representative, in order to allow the parties to make submissions in this respect, there is no cause to declare, at its own initiative, the developments by the petitioner made to that end in docket no. 145,725 inadmissible, including those pertaining to the potential capacity of permanent representative against the plaintiff parties due to this applicability, their potential relevance having to be assessed as part of the examination of the merits of the dispute. The developments by HELLAS II relating to alleged violations of Articles 51 and 55 of the modified 2002 Law and Article 51bis of the modified 1915 Law then cannot be qualified as prohibited new requests and the requests must therefore be declared admissible in all counts thereof.

- Inadmissibility of the request based on an alleged de jure or de facto management by HELLAS II Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE raise the inadmissibility of a request against them based on an alleged de jure or de facto management of HELLAS II, whereas the summons dated December 16, 2011 targeted them as only de jure managers of HELLAS, which would constitute a change in the capacity under which they are being sued and will be analyzed as a prohibited new request. Although the plaintiff party admits having summoned the defendant parties for “certain acts that they performed when they were the managers of HELLAS (…),” it feels that “this does not mean that they had been summoned due to their capacity as managers of HELLAS (…)” and that “before this structuring of the company as a limited partnership with stockholders (s.à.r.l. interposed as manager-general partner), the Court will draw the legal consequence that the assignees sub (3) to (8) were, if not de jure directors, at least de facto directors of the pleading party, and that they were then liable for the management acts by the latter (…)” (pages 65 and 62 of the summary submissions served on February 19, 2015). It has been decided that the cause of the request changes if the defendant is sought during the lawsuit in a capacity other than that in which it was summoned initially. In that case, there is an inadmissible new request (cf. T. Hoscheit, op. cit., no. 1014 and case law cited therein).

21

In the case at hand, in the writ of summons dated December 16, 2011, the defendant parties were summoned in their capacity as “members of the management board of HELLAS TELECOMMUNICATIONS s.à.r.l. (which) they embodied” and that they “incur liability due to their assignment as agent with respect to the petitioner” (page 8), each defendant also having been expressly summoned on page 2 of the writ in the capacity of “manager A (or B or C depending on the case) of the limited-liability company HELLAS (…), the assignees sub (1).” It is further specified therein that the “assignees sub 3) to 8) under the summons incur contractual civil liability, if not criminal or quasi-criminal liability, with respect to the petitioner (…) inasmuch as they, in their capacity as members of the management board of the assignee sub 1) HELLAS (…), participated in decisions, and their implementation, as part of the facts and acts described in the summons” (page 5). The six defendant parties who are natural persons consequently were clearly summoned in their capacity as de jure manager of HELLAS, without the petitioner at any time assigning them a de facto or de jure management of HELLAS II, the de jure manager of the latter clearly being identified as the company HELLAS. Under these conditions, now reproaching the defendants for having been the de facto or de jure managers of HELLAS II, thus a legal entity other than that targeted in the summons, completely ignoring the existence of the legal entity HELLAS, is equivalent to a change in the capacity under which their liability is sought, and then a change in the cause of the request. All of the developments done by the petitioner to this end must then be declared inadmissible because they constitute a prohibited new request.

- Lack of standing on behalf of the body of creditors and to cite an evasion of creditors' rights The defendant parties assert that pursuant to the provisions of the 1986 Insolvency Act, the liquidators only have the power to initiate legal proceedings on behalf of the company in liquidation, but cannot act on behalf of the body of creditors (unlike Luxembourg receivers, to whom the law expressly grants this “double hat”), such that they do not have the capacity to cite evasion of creditors' rights, whether considered individually or collectively. Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE further reiterate that any request resulting from an evasion would be inadmissible because it would constitute a prohibited new request. The liquidators for HELLAS II have long claimed, backed by an English legal opinion, that “under English bankruptcy law, liquidators have the capacity and standing to assert both rights of the company placed under bankruptcy, and the power to assert the rights of the collectivity (entire body of creditors), while they do not have the right to assert the rights of specific, individual creditors” (cf. in particular summary submissions by Mr. Schaeffer served on January 29, 2015, page 23).

22

It is well established in the case English law in general, as the law of the State where the insolvency procedure was opened, and the 1986 Insolvency Act in particular, determines the scope of the powers of the receiver, and in the case at hand liquidators (cf. Articles 4, subsection 2, point c) and 18 of the Insolvency Act). There is cause in this respect to refer to the developments dedicated, in the judgment dated December 11, 2013, to the question of the valid representation of HELLAS II by the current liquidators as part of these legal requests (pages 12 to 14). Regarding the scope of these powers, there is cause to note that the liquidators for HELLAS II ultimately admit in their most recent pleadings, in express and unambiguous terms, that they do not have standing on behalf of the body of creditors (despite having asserted otherwise several lines above, contradiction which can be explained by a global reasoning targeting both the lawsuit initiated in Luxembourg and those initiated in the United States). Indeed, the liquidators assert the following: “that QC Gabriel MOSS demonstrates, with many solid sources of English law (including recent) to support him, that the liquidators have the possibility, and ability, to act as legal representatives (which can be translated by the English concept of “agents”) for the company; they then act as agents for the legal entity of a company in bankruptcy (in a way as the successor of the manager); this is the capacity in which they are acting under these lawsuits in Luxembourg; from another perspective, these same liquidators, when they deem it necessary and timely, can act to assert the rights of the body of creditors, which is another matter, another type of lawsuit; this latter type of lawsuit corresponds to the legal action currently undertaken by the liquidators in the United States (…) (cf. summary submissions by Mr. Schaeffer served on January 29, 2015, page 24). The liquidators consequently allow that in the dispute in question, they only have standing on behalf of HELLAS II (not the body of its creditors), which is confirmed by the wording of the summons done at the request of the company in liquidation “represented by its two liquidators currently in office,” it becomes superfluous to conduct a more in-depth examination of the various legal opinions submitted in the case at hand. Inasmuch as the standing of the liquidators is limited to actions initiated on behalf of HELLAS II, all of the developments by the liquidators in support of their requests inasmuch as they relate to an alleged division of the rights of creditors of HELLAS II, must be declared inadmissible due to the lack of standing on behalf of the body of creditors.

23

However, the developments by the petitioner related to an evasion of its own rights, or an evasion of the law, do not constitute a prohibited new request and have therefore already been declared admissible (cf. interlocutory judgment dated December 11, 2013, pages 15 and 16).

4) Discharge In light of the recent argument by the parties regarding the exact scope of the powers of the liquidators under English law and the observation that they do not, in the case at hand, have standing to act on behalf of the body of creditors, there is cause to re-examine the ground by the defendant parties regarding the existence of discharge, dismissed by the court in its interlocutory judgment following a reasoning by analogy to the situation of the receiver under Luxembourg law, which proves, in light of the developments done above, inapplicable in the case at hand. The defendant parties assert that the general shareholders' meeting of HELLAS II, by special vote and in full knowledge of the facts regarding the recorded losses, granted discharge to its manager-general partner HELLAS, which would prevent any subsequent exercise of the actio mandati and, according to HELLAS, also the cancellation of the resolutions adopted by the managers of HELLAS on December 18, 2006, since it was also subject to ratification by the discharge. HELLAS II contests that the cited discharge can produce its effects, whereas the discharge for illicit and illegal acts, or those contrary to the binding laws and laws of public order, is invalid and cannot cover an invalidity of public order or for evasion. Under Article 74, subsection 2, of the modified 1915 Law, applicable to limited partnerships with stockholders due to the general reference made by Article 103 of the Law, “after the approval of the annual accounts, the general shareholders' meeting rules by special vote on the discharge of the directors, members of the Board of Directors and supervisory board, depending on the case, as well as the statutory auditors. This discharge is only valid if the annual accounts do not contain any omission, or inaccurate information concealing the actual situation of the company and, regarding acts done outside the bylaws, if they have been specially indicated in the summons.” It is allowed that the vote on the discharge, which is equivalent to ratification by the general shareholders' meeting of the management by the directors, results in preventing the exercise of the actio mandati with respect to the latter, whether the action is based on Article 59, subsection 1, of the modified 1915 Law for management breaches or on Article 59, subsection 2, of the aforementioned Law for regularity breaches consisting of a violation of the law or bylaws. As set out by Article 74, subsection 2, cited above, this discharge must be subject to a special vote after adoption of the annual accounts.

24

The shareholders' meeting may either grant or refuse discharge, or subject it to reserves or conditions, i.e., in some cases, postponement (Pascale HAINAUT-HAMENDE and Gilberte RAUCQ, Les Sociétés Anonymes, Constitution et Fonctionnement no. 531). This discharge is, however, only valid if the shareholders have actually been able to see the management by the directors, i.e., the balance sheet does not contain any omissions or inaccurate information concealing the actual situation of the company. In other words, the meeting cannot validly discharge the company directors from management breaches unless they rule in full knowledge of the facts. When it involves a violation of the law or bylaws, the same is true in principle (J-P Winandy, Manuel de droit des sociétés, 2011 edition, page 542). On July 27, 2007, then following the sale of the group to Weather by the Investors, the general shareholders' meeting of HELLAS II approved the annual accounts on December 31, 2006, after having examined the reports prepared by the manager-general partner HELLAS, the members of the supervisory board and the independent auditor. This same shareholders' meeting recognized a loss for the 2006 fiscal year in an amount of 998,513,912.14 EUR, as is reflected in the annual accounts both in the liabilities (cf. page 3 “loss for the financial year”) and in the income statement (cf. page 4, “profit and loss account, loss for the financial year”) (Exhibit no. 27 of bundle 2/5 by Mr. Trevisan). The shareholders' meeting also could not have been unaware of the causes for these losses, which are clearly indicated in the “notes to the annual accounts” under point 8 (page 9 of the annual accounts), where one can read the following: “on January 31, 2006 the Company issued EUR 28,268,100 additional CPECs and redeemed on April 12, 2006 EUR 28,268,100 of the CPECs issued. On December 21, 2006, the Company redeemed further (EUR) 27,321,600. The Company realized a loss of EUR 951,330,012 on December 2006 redemption.” After having decided to carry the recorded losses forward, the shareholders' meeting decided, pursuant to Article 100 of the modified 1915 Law, to continue the activities of HELLAS II despite recording losses exceeding 100% of the latter’s company capital. Subsequently, in full knowledge of the facts both regarding the amplitude of the losses and their origin, the shareholders' meeting, by special vote, granted discharge to the sole shareholder, the members of the supervisory board and the independent auditor for the performance of their mandates during the company fiscal year having ended on December 31, 2006. The buyback operation for the CPECs in dispute being part of the administration of the company, this discharge, granted in full knowledge of the company’s actual situation and the management acts performed by HELLAS, is fully enforceable against the petitioner HELLAS II and, in principle, results in preventing the latter from exercising the actio mandati against its manager. The argument by the liquidators of HELLAS II that discharge is not valid when there is a criminally punishable violation of binding and public order laws is based on the following developments by Jean Corbiau: “any approval given to the criminal act by the general shareholders' meeting cannot be cited by the managers or directors having committed that act as eliminating the existence of the crime” (J. Corbiau,

25

Des Société Commerciales, Draft law developed for G-D of Luxembourg, 1905 edition, page 417, exhibit no. 22 by Mr. Schaeffer). This passage must, however, be re-situated in the context of the definition of the current Article 167 of the modified 1915 Law, criminal provision. In this respect, it is obvious that a manager or director, sued on this basis, cannot escape his criminal liability by citing the discharge. The actio mandati is, however, an action for civil liability, and more specifically an action for contractual liability directed by the principal against its agent. As noted by Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI, the discharge does not seek to ratify illegal acts (assuming such an illegality is proven), but to “decide on the fate for the consequences of these acts, in terms of any claims for pecuniary compensation against the management” (cf. summary submissions by Mr. Trevisan, page 176). Thus, an author can doubtless specify that a person cannot be responsible for authorizing the directors to commit management breaches or violations of the law or bylaws. This is not the matter at hand. The current issue involves waiving the right to seek compensation for an injury caused. Irrespective of the cause of the injury, the injured person may always waive the right to claim compensation, and thereby to bring any action to that end (P. Wauwermans, Manuel pratique des sociétés anonymes, 3rd ed., Brussels, 1981, no. 719, p. 381). Consequently, the seriousness or the nature of the breach committed by the manager is of little importance (management or regularity breach), and even in the presence of the criminally punishable violation of a public order law, the shareholders' meeting, if it acts in full knowledge of the facts, can validly waive the right to seek the liability of its management entity by granting it discharge.

5) Invalidities Regarding the request for cancellation of the resolutions by the manager and the buyback convention, a distinction must be made between relative invalidities and absolute invalidities. Whereas the former are intended to protect specific interests and may be subject to a confirmation extinguishing the right to bring action for invalidity, absolute invalidities can be cited by any person having an interest therein and cannot be covered by a confirmation or discharge (A. Steichen, Précis de Droit des Sociétés, 4th edition, page 266). There is cause to assess, as part of the examination of the different grounds for invalidity cited by the liquidators of HELLAS II, the exact nature of the cited invalidity in order to determine whether it is covered by the granted discharge.

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- Request for cancellation of the resolutions adopted by the manager-general partner HELLAS (by its management board, respectively) on December 18, 2006 and the buyback convention signed on December 21, 2006

HELLAS II asserts that the buyback of CPECs in dispute done in December 2006 is illegal and violates public order on the grounds that there was a violation of Articles 72-1 and 167 of the modified 1915 Law, punishable by absolute invalidity both of the resolutions adopted on December 18, 2006 by the manager-general partner HELLAS (by its management board, respectively) and the buyback convention entered into on December 21, 2006 with HELLAS I. There is also “illegal cause for these actions within the meaning of Articles 1131 and 1133 of the Civil Code,” whereas the buyback convention for CPECs cannot “validly be based on an illegal cause contrary to the most basic principles of corporate law, and in particular the principles governing the protection of creditors in our commercial partnership law” (cf. summons dated December 15, 2011, page 8). The invalidity of the resolutions and the buyback contract is also justified due to the maxim “fraus omnia corrumpit,” otherwise an evasion of the law, whereas the “manner in which the buyback of the CPECs was done shows, completely obviously, that there was an attempt to escape the law, through an act that was apparently valid, but fundamentally and inherently contrary to the very essence of the prohibitive laws already cited” (cf. summary submissions by Mr. Schaeffer served on January 29, 2015, in particular pages 53 and 67). HELLAS and HELLAS I assert that resolutions adopted by the representatives of HELLAS on December 18, 2006 were definitively ratified by the discharge, which would now prevent any claims for cancellation. They also contest that the contentious buyback of CPECs can be qualified as a distribution of dividends within the meaning of Articles 72-1 and 167 of the modified 1915 Law, such that the legality of the cause would remain to be proven. Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE feel that the allegations by the liquidators regarding an alleged illegal cause of the buyback contract are clearly unfounded, inasmuch as it is not proven that the impulsive and determining cause of one of the parties to the contract violates the law, public order or good morals, Articles 72-1 and 167 of the modified 1915 Law not being applicable to CPECs making up debt securities and not shares representative of company capital. They also refute the reproach related to the existence of an evasion of the law as being unfounded, whereas the petitioner settles for alleging a supposed evasion without identifying any legal rule that has effectively and deliberately been escaped. The qualification of fraud of a single step of a much broader legal operation also lacks credibility and is indefensible in terms of the number and capacity of the protagonists involved, the mere difference between the par value of the CPECs and the amount paid in any case being insufficient to demonstrate the existence of evasion.

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Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI also assert that the buyback of the CPECs does not constitute a payment of sham dividends within the meaning of Articles 72-1 and 167 of the modified 1915 Law, while emphasizing that these provisions seeking to protect the company’s creditors are simply imperative and not of public order, and thus punishable by relative invalidity, in the case at hand covered by the discharge. They feel that the “catchall” argument of evasion lacks any relevance, inasmuch as no evasion of the law within the meaning of the desire to escape a binding law using a legally effective legal technique has been proven, or even any desire to evade whatsoever, no special deceit having been proven in the case at hand. They emphasize the total transparency of the operation in dispute and the lack of fraudulent nature of the buyback price of the CPECs.

- Invalidity for violation of a law of public order Regarding the cancellation of the resolution done by its manager-general partner HELLAS on December 18, 2006, by its management board, respectively, it should be noted that the modified 1915 Law does not provide any specific regulation for invalidities applicable to the decisions made by the manager of a limited-liability company, but a parallel can be drawn with the invalidities regime applicable to deliberations of general shareholders' meetings. The sanction of irregularities committed in general shareholders' meetings is reflected either by conditional invalidity in the case of a form flaw, which presupposes the existence of a grievance and therefore the proof that the committed irregularity may have an actual influence on the decision made, or by an absolute and unconditional invalidity in case of violation of the substantial form rules or binding rules. In case of violation of rules of public order, the irregularity is sanctioned by invalidity that may be cited by any affected party and even be raised by the judge at his own initiative (cf. J-P Winandy, op. cit., page 250); this is an absolute invalidity that cannot be covered by a discharge. Defendants ALIBERTI and BOTTINELLI contest that Article 72-1 and 167 of the modified 1915 Law can be qualified as rules of public order sanctioned by absolute invalidity. It should first then be examined whether these provisions can actually be qualified as provisions of public order or whether they are simply binding provisions intended to protect certain categories of persons who were able to waive this protection by granting discharge. The provisions in dispute of the modified 1915 Law read as follows: “Article 72-1: (1) Except in cases of reduction of the subscribed capital, no distribution can be made to shareholders when, on the closing date of the last fiscal year, the net asset as shown by the annual accounts is, or would become following such a distribution, lower than the amount of the subscribed capital, increased by any reserves that the law or bylaws do not allow to be distributed. (2) The amount of the subscribed capital targeted in (1) is decreased by the amount of the uncalled subscribed capital when the latter is not counted in the assets of the balance sheet. (3) The amount of a distribution done to the shareholders cannot exceed the amount of the results of the last fiscal year closed increased by profits brought forward as well as withdrawals made on available reserves to that end decreased by losses brought forward as well as the sums to be placed in the reserves according to the law or bylaws.

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(4) The term “distribution,” as it appears in the preceding provisions, in particular encompasses the payment of dividends and that of interest relative to the shares (Law dated April 24, 1983). Article 167 (Law dated July 11, 1988): Punishable by the same sentence are managers or directors who, without inventories, despite inventories or using fraudulent inventories, have distributed dividends or interest to shareholders not taken from the actual profits as well as directors who violate the provisions of Article 72-2.” These provisions on the one hand aim to provide a framework for the distribution of dividends to shareholders, which may be done only when there are distributable profits, and on the other hand to criminally sanction any distribution of sham dividends, i.e., those having taken place without such distributable profits as defined in Article 72-1. The distribution of sham dividends is not only a punishable in terms of civil liability of the manager by the actio mandati for lack of validity (violation of the law), but also criminally through the application of harsh penalties (one month to two years in prison and a fine from 5000.- to 125,000.- EUR, or only one of these penalties), which at first glance pleads in favor of the qualification of public order provision. For the defendants, the mere fact that the violation of the law is criminally punishable does not change the nature of the legal obligation (in the case at hand a simple binding provisions seeking to preserve the intangibility of the company capital and from there to protect the creditors of the company) to turn it into a public order provision. In this respect, they cite the author Henri de Page, in particular specifying that “(…) many criminal violations sanction the violation of simply binding rules intended to protect private interests (…) The absolute invalidities must be applied when the violated rule is of public interest” (Henri DE PAGE, Traité de droit civil belge, t. 2, Les Obligations, Vol. 2, éd. 2013, no. 628 and 630). These considerations rejoin the traditional distinction in corporate law between public protection order seeking to protect certain categories of persons, such as third parties having contractual relations with the company and shareholders by providing a minimum equilibrium between them, who may waive this protection, and public management order seeking to preserve the interest of the company itself, i.e., its operation, from which the lawmaker does not allow derogation (cf. A. Steichen, op. cit., pages 22-23). The public management order nature of a legal provision not being able to be deduced merely from the existence of a criminal sanction, one must hold to the aims sought by the lawmaker at the time when this law was introduced. In this respect, reference may be made to the development by Jean Corbiau in the draft 1915 Law regarding Article 167, whereas Article 72-1 was only introduced into our law by a law dated April 24, 1983 as part of the transposition of the 2nd directive 77/91/EEC by the Council dated December 13, 1976.

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“The distribution between the shareholders of dividends not taken from the actual profits is a fact whose consequences appear to be particularly serious and harmful. As stated by Mr. Pirmez in his report, this act “undermines the truth” by going against the essential and fundamental aim of the corporate contract, which is to share profits (Art. 1832, C. Civ.); it leads the company to ruin, by stripping it of the resources necessary to perform its purpose; it deprives creditors of part of their pledge, by surreptitiously decreasing the capital which, asset of the legal entity, forms the joint guarantee and even, in business corporations, the only guarantee for third parties; lastly, it leads the public into error and can serve for fraudulent speculations on shares, by creating a mirage before capital seeking an investment showing a misleading prosperity and encouraging them to buy company securities at a rate higher than their actual value. There are more grounds here than are necessary to justify the prohibition of the act in question and its elimination through criminal sanction” (cf. J. Corbiau, op. cit., pages 411-412). The preservation of creditors’ pledges is then only one among the other, more general measures having encouraged the lawmaker to prohibit the distribution of sham dividends, such that the contentious provisions must be considered to be part of public management order sanctioned by absolute invalidity. The existence of a valid discharge by the general shareholders' meeting is then ineffective regarding the right of HELLAS II to bring proceedings for invalidity of the resolutions in dispute for violation of Article 72-1 and 167 of the modified 1915 Law. While the defendant parties claim that the prohibition against the distribution of sham dividends set out by these texts is limited to distributions made to shareholders relative to their shares representing the company capital of the company, HELLAS II asserts that these texts should receive a broad interpretation to apply to any distribution of consideration to shareholders broadly speaking and not only to the “distributions as remuneration for share titles stricto sensu.” As emphasized by the defendant parties, the interdependence of Articles 72-1 and 167 of the modified 1915 Law clearly emerges from the parliamentary work on the aforementioned law dated April 24, 1983 having introduced Article 72-1 into our law, the Conseil d’Etat having in particular recalled that “this article sets out a principle already incorporated into national law (Article 167), i.e., the prohibition against making distributions to shareholders resulting in reducing the net assets of the company to an amount below the subscribed capital increased by the reserves whereof the law or bylaws prohibit(s) distribution” (Doc. Parlem. No. 2774, opinion by the Conseil d’Etat dated December 19, 1980, page 45). Yet Article 167 being a criminal provision, its interpretation must be restrictive, which implies a strict interpretation of Article 72-1, which merely confirms and specifies the outlines of the prior legislation. While both Article 72-1 and Article 167 target disbursements or distributions made “to the shareholders,” subsection (4) of Article 72-1 specifies that the term “distribution” within the meaning of this text in particular encompasses the payment of dividends and interest “relative to shares.”

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Yet the shares are defined by the modified 1915 Law through its Articles 23 (The business corporation is that whose capital is divided into shares (…)), 26 (The establishment of the business corporation requires (…) that 3) the capital be subscribed in full; 4) each share be paid in at least one quarter (…)) and 37 (The capital of business corporations is divided into shares of equal value, with or without mention of the value), these provisions being applicable to limited partnerships with stockholders due to the general reference made by Article 103 of the aforementioned Law. The company capital, with a minimum value of 31,000.- EUR, is necessarily set out in the bylaws of the Company, and each increase or reduction in capital must be done in the forms and according to the majorities required to change the bylaws, subject to compliance with the specific provisions set out for these operations by the modified 1915 Law. The shares, which grant political and financial rights in the shareholders' meetings, constitute a “sui generis debt” of the shareholders of the company (cf. J-P Winandy, op. cit., page 460), which is reflected, from an accounting perspective, by their recordal as “subscribed capital” in the liabilities of the company's balance sheet. In the case at hand, the statutory company capital of HELLAS II was, at the end of 2006, in the amount of 1,576,900.- EUR divided into 15,769 shares with a par value of 100.- EUR each. This company capital of HELLAS II clearly did not include the CPECs, which are not part of that capital for the simple reason that they differ from shares both in terms of their legal nature and how they are handled for accounting purposes. Indeed, the CPECs subject to Luxembourg law are debt securities (cf. -P Winandy, op. cit., page 516) of a purely contractual nature, established outside any statutory provision, which do not grant voting rights within shareholders' meetings, or the right to a portion of the profits distributed by the company to shareholders, but inasmuch as they can, under some conditions, be converted into shares, for which reason they are often called “hybrid” securities. From a Luxembourg accounting and tax perspective, they are also considered debts and recorded as such in the liabilities of the balance sheet. The liquidators assert that the CPECs on the contrary should be qualified as capital securities, their appellation expressly referring to the term “equity,” corresponding to the French terms “capital” or “fonds propres,” and they refer to the appendices to the consolidated accounts of HELLAS II for the 2006 fiscal year mentioning, on page F-15, that in light of the “IAS 32,” the CPECs should be classified as “equity.” It would be simplistic to find that the use of the term “equity” in the name “convertible equity preferred certificates” alone would make it possible to liken the CPECs to shares as securities representative of the capital for failure to meet any other characteristic of such securities.

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The use of the term “equity” must rather be understood together with the other terms used, including “convertible,” both terms together referring to the hybrid nature of the CPECs, which can, over time, be converted into shares. The referral to the appendices of the consolidated accounts is no more relevant. Indeed, it is well established in the case at hand that the terms & conditions of the CPECs refer to the application of Luxembourg accounting standards called “Lux GAAP,” which, in the case at hand, have been used to produce the company accounts for HELLAS II (pages 5 and 6 of the 2006 annual accounts). Consequently, a classification of the CPECs as capital securities, based on accounting standards other than the IFRS standards, is irrelevant, whereas it does not affect the legal nature of the CPECs in light of Luxembourg standards, which alone are applicable in the case at hand. Furthermore, the mere fact that the CPECs have been subscribed by the limited shareholder HELLAS I also does not result in changing their legal nature and turning them into shares, whereas they also do not meet any of the many aforementioned characteristics of shares. HELLAS II again uses the term “in particular” appearing in subsection (4) of Article 72-1 in the developments by Jean Corbiau to find an extension of the prohibition to “all mechanisms that would result in serving the shareholders in dividends, or interest, not taken from the actual profits” refuting any restriction of the scope of that text “to the fixed interest stipulated in the bylaws in favor of shareholders” (cf. summary submissions by Mr. Schaeffer served on January 29, 2015, page 36). Thus, according to Corbiau, “the general and absolute nature of the provision that we are commenting on must obviously find the illegality and criminal nature of any combination which, indirectly and under the cover of either subterfuge, would aim to divert the rigor of its imperative prohibition” (cf. J. Corbiau, op. cit., page 419). These developments and the use of the term “in particular” confirm the general nature of the prohibition set out by Article 72-1 and 167 supposedly covering all types of distribution “in any manner whatsoever” (cf. J. Corbiau, op. cit., page 421) to the shareholders, but only within the limit of distributions in the form of dividends or interest “relative to the shares.” Contrary to what is implied by the liquidators, the term “interest” does not make it possible to extend the scope of Articles 72-1 and 167 to any type of remuneration from securities, such as the CPECs, on the grounds that they are “capital securities, similar to shares.” As noted above, the CPECs do not constitute capital securities under Luxembourg law, and the use of the term “interest” by the lawmaker targets the prohibition of a distribution to shareholders that “would be done in the form and under the name of an allocation of interest statutorily stipulated to be payable to shareholders despite the absence of profits” (cf. J. Corbiau, op. cit., page 414), i.e., in the form of fixed interest clauses.

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The prohibition against the distribution of dividends is then clearly related to distributions made to shareholders in their capacity as subscriber for shares representative of the company capital and do not apply to CPECs, which are merely debt securities. Under these conditions, the request for invalidity of the resolutions in dispute for violation of Articles 72-1 and 167 of the modified 1915 Law is not founded. HELLAS II also asserts that the noncompliance with Article 51bis of the modified 1915 Law, i.e., the absence of appointment of a permanent representative by HELLAS, results in the fact that HELLAS has not “regularly, or validly intervened in the management of the plaintiff party as of December 18, 2006 (…) for this same reason, the resolutions made on December 18, 2006, and the act enforcing these resolutions, in particular the buyback convention for the CPECs, and the payments made for its settlement, are irregular, and invalid (the provisions of Article 51bis being of public order)” (cf. summary submissions by Mr. Schaeffer served on February 19, 2015, page 103). This reasoning is irrelevant. Indeed, Article 51bis of the modified Law does not provide such a punishment in case of lack of appointment of a permanent representative. Furthermore, the lack of appointment of such an agent by the legal entity HELLAS does not invalidate the decisions validly made by the latter through its entities, in the case at hand by its managers appointed in accordance with Article 191 of the modified 1915 Law, as in the case at hand. Added to this is that the provisions of Article 51bis do not fall under public management order, unlike Articles 72-1 and 167 cited above, whereas this text is not accompanied by any specific sanction. The request for invalidity of the resolutions on this basis must then be rejected.

- Invalidity for violation of the corporate interest by the operation The liquidators feel that the buyback operation completely violated its corporate interest, this argument being refuted by the plaintiff parties, who feel that, in the context of a holding company, the interest of the company is combined with the interest of its shareholders. The general shareholders' meeting and the Board of Directors must exercise their powers in the interest of the company itself: a deliberate misrepresentation of the interest of the company may lead to invalidity of the decision by the entity (cf. J-P Winandy, op. cit., page 154). The corporate interest was not defined by the lawmaker, whereas it is a flexible notion that may simultaneously be identified with the interest of the shareholders, depending on the asset concept (or narrow concept), and with the interest of the legal entity as a whole, according to the entrepreneurial concept (or broad concept), including the interests of the shareholders, but also those of the employees and creditors. Depending on the company in question and each of its activities, either approach may appear more appropriate (cf. A. Steichen, op. cit., pages 157-159).

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When it involves a company of the financial type, such as a holding company, which is the case in the matter at hand, the asset approach alone appears to be worthy of interest, since the entire company activity is necessarily focused on making the investments profitable (cf. A. Steichen, same ref.). In the case at hand, the shareholders of HELLAS II acted in concert, and no abuse of company property or majority is alleged (traditional situations in which the notion of corporate interest is used to cancel decisions made by the entities). Added to this is that the judge only judges the legality of the submitted decisions and not the timeliness. Yet in the case at hand, the shareholders, ultimate judges of the corporate interest in a holding company, approved the operation by granting discharge to the manager-general partner, responsible on a daily basis for overseeing compliance with the corporate interest of the petitioner. Under these conditions, the request for invalidity based on an alleged violation of the corporate interest must be declared unfounded.

- Invalidity for illicit and moral cause Regarding the request for cancellation of the buyback convention for illicit and immoral cause, Article 1131 of the Civil Code provides that the obligation without cause or with false cause, or illegal cause, cannot be effective. According to Article 1133 of the same Code, the cause is illegal when it is prohibited by law, when it violates good morals or public order. The dominant modern doctrine is characterized by the choice of the final cause and the opposition between the “objective” and “subjective” cause. Thus, in order to verify the existence of the cause, there is reason to use an objective and abstract definition, still the same for a same contract, which some describe as objective cause, and to verify the legality of the cause, a subjective definition, the decisive grounds, which some qualify as subjective cause (Cause de l’engagement et validité du contrat, Jacques GHESTIN, LGDJ, no. 128 and 129, page 90). The objective cause is the immediate aim that has decided the contracting party to become bound. In the bilateral contract, it is the expected counter-service. The subjective cause is the deciding cause, i.e., the driving force that decided one of the parties to become bound (Cause de l’engagement et validité du contrat, Jacques GHESTIN, LGDJ, no. 135, page 96). It therefore no longer involves the why of the obligations subscribed by each of the parties, but the why of the legal operation in the intention of the latter. Thus, the definition of the subjective cause of the contract is concrete, since it lies in the practical objective that the co-contracting parties or one of them wished to achieve and for the achievement of which the contract was merely the instrument (Jurisclasseur, civil, Vol. 1131 to 1333, no. 41, page 10).

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The sanction of an illegal or immoral cause can only be absolute invalidity (cf. Jurisclasseur Civil Code, Article 1131 to 113; Vol. 30, no. 44 and ff. and the references cited therein). The cause being presumed to be legal and moral, the burden of proving the illegality or immorality of the cause falls to the party citing it, the proof being able to be provided through all grounds (Françoise Terré, Philippe Simler, Yves Lequette, Droit civil – Les obligations, Précis Dalloz, 8th ed., no. 368). In light of the preceding, HELLAS II is responsible for proving that the subjective cause of entering into the buyback contract for the CPECs lay in escaping the law preventing the distribution of a sham dividend to shareholders. Yet inasmuch as Article 72-1 and 167 of the modified 1915 Law are not applicable to debt instruments, such as CPECs, and there is no element submitted for the assessment of the court showing that the parties to this buyback had considered, at the time of the operation in dispute, that these texts could apply to CPECs, it cannot reasonably be claimed that the subjective cause of the legal operation lay in bypassing any applicable law. Aside from the alleged violation of various evaluation rules (Articles 51 and 55 of the modified 2002 Law) that will be examined as part of the claim for invalidity for evasion of the law, HELLAS II has still not cited any imperative legal provision violated by the “financing package” in dispute. The mere assertion by HELLAS II that it would be “contrary to good morals to empty a company of nearly one billion euros without any profit and without any debt ab initio justifying the payment” is not sufficient to prove the invalidity of the buyback contract with CPECs for moral cause. Indeed, although the liquidators appear to refer to good morals in the sense of business morals used to restore the legitimacy of the economy of the contract by not abandoning it to its worst deviations, it should be noted that notion of good morals sees a clear decline in civil law and, although it could justify the invalidity of certain types of contracts for moral cause, it involved contracts whose subjective cause was clearly contrary to the business morality, in particular due to the existence of criminal sanctions, such as contracts for corruption or influence peddling (cf. F. Terré, P. Simler, Y. Lequette, op. cit., no. 388). Without proof of the existence of a crime or obvious violation of imperative legal provisions intended to protect the business morality, this case law cannot be transposed to the case at hand. The illegality or immorality of the case alleged by HELLAS II not being proven, or offered for evidence, its claim for invalidity of the buyback contract in dispute for illegal or immoral cause is unfounded.

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- Invalidity for fraud or evasion of the law An evasion of the law exists in the case of a contract which, without formally violating a law of public order, seeks to bypass it, to escape its application (Jean Carbonnier, Droit civil, Volume 2, Les biens et les obligations, p. 390). The notion of fraud broadly speaking, as reflected by the maxim “fraus omnia corrumpit,” is synonymous with trickery, deceit or unfair maneuver (cf. Court, June 14, 2000, no. 23,551 on the docket). It consequently assumes a fraudulent intent, which may in particular result from the exceptionally abnormal nature of the legal structure used by the parties to the operation. However, the fact that the parties choose, among different existing mechanisms, that which they deem most favorable when the chosen path is not prohibited by the law, even if the contract entered into or the structure set up will prove unfavorable to one of them, or to third parties, does not constitute fraud and will not cause invalidity of the act (cf. in this sense, Court, May 9, 2001, Pas. 32, page 75, Olivier Poelmans, Droit des obligations au Luxembourg, Principes généraux et examen de jurisprudence, Larcier, no. 124). Fraud is punishable by absolute invalidity in light of the perpetrator of the fraud and any accomplice and, pursuant to Article 1353 of the Civil Code, proof is free any time it involves proving fraud tainting an act (Mazeaud and Chabas, Leçons de droit civil, Tome II, 1st Vol., Obligations – théorie générale, 9th edition, no. 306). In support of its claim for invalidity of the resolutions made by its manager and by the buyback contract for CPECs for evasion of the law, HELLAS II merely indicates that the provisions of Articles 72-1 and 167 of the modified 1915 Law were “bypassed, if not openly violated” (cf. summary submissions by Mr. Schaeffer served on January 29, 2015, page 60). Yet it emerges from the preceding developments that the provisions preventing the distribution of sham dividends were not applicable to CPECs. Under these conditions, no intent to bypass or escape the application of provisions preventing the distribution of sham dividends alleged against the parties under the buyback contract or alleged against the manager as a limited partner is conceivable. HELLAS II also does not cite any other provision of public order that was supposedly bypassed or the application of which was escaped by the buyback in dispute. It has also not been proven, or even alleged by the liquidators, that the choice to issue CPECs rather than company capital in order to finance HELLAS II was subject to criticism from a legal perspective, the minimum company capital obligation also having been greatly respected. The establishment of this financing structure, like the decision to buy back the CPECs, was then not contrary to a law of public order, but rather fell under the contractual freedom of the parties. The conditions for evasion of the law are then not met in the case at hand.

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Alongside the argument of an evasion of the law, HELLAS II also more generally cites the fraudulent nature of the buyback operation “contracted for the sole purpose of harming the pleading company” and it states an entire series of factual elements and various legal, economic and accounting considerations supposedly providing this proof. These grounds are refuted on all points to the defendant parties. There is then cause to examine, in light of the various reproaches by the liquidators, whether the buyback operation in dispute is fraudulent in nature, knowing that invalidity for fraud can only be considered if the alleged fraudulent intent emerges unambiguously. A first criticism relates to the lack of obligation to perform the buyback in dispute. Yet the possibility of the optional buyback of the CPECs being expressly set out by article 3.2 of the terms & conditions “on a Conversion Event,” the actual exercise of such an option cannot in itself be criticized. According to the liquidators, the terms & conditions were nevertheless violated on this fundamental point, whereas no Conversion Event took place inasmuch as the conditions of such an opening case were not met. According to the definition appearing in article II 1. of the terms & conditions, “Conversion Event means after payment of or provision for other obligations of the Company having priority to the CPECs, the Company disposes of funds resulting from (i) payments made by the Company's Subsidiaries to the Company or (ii) sales of shares of Subsidiaries to an unaffiliated party (iii) and the Company will not be insolvent after payment of aggregate Optional redemption Price of the CPECs.” In the case at hand, these conditions have been globally met. Indeed, as required under point (i), HELLAS II had indeed received, from its subsidiary Hellas IV, a payment of 200 million euros, the remainder of the buyback price being financed by the issue of the Subordinated Notes, which was not precluded by the letter of the terms & conditions, which did not require exclusive financing coming from payment from the subsidiaries. Regarding the condition related to the “payment of or provision for other obligations of the Company,” it is not contested that HELLAS II did not have other significant creditors at the time of the buyback in dispute and that the Subordinated Notes issued as part of the Refinancing had a repayment date for the principal amount set only in 2015. Yet according to the findings of a unilateral assessment report, the debt resulting from the issue of these Notes was sustainable, the expert finding in point 1.17 that “it was reasonably foreseeable that Hellas II would have the resources necessary to pay its obligations as they became due. The economic outlook and TIM Hellas's performance both suggested scope for further profit growth, a view supported by McKinsey in its review of management forecasts. Credit analysts, investors in the bonds, and Weather Investments must all have been satisfied that Hellas II could meet its liabilities and that the probability of default was low” (report by Chris Osborne from FTI Consulting dated July 11, 2014, exhibit no. 13 by Arendt & Medernach).

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No exhibit produced by the liquidators challenges this finding. The last condition under (iii) was also met, whereas HELLAS II did not become insolvent within the meaning of Luxembourg law, i.e., was not found in a state of cessation of payments and credit weakness following the buyback of the CPECs in dispute, whereas its insolvency only appeared several years later in 2009, which is not relevant to assess the compliance with this text. Contrary to what the liquidators claim, no contractual violation is proven, at the very most an extensive interpretation of the contract regarding condition (i), which for all that does not reveal any fraudulent intent. The liquidators next denounce the determination of the buyback value at the amount of 35.82 EUR per CPEC, resulting in the payment of a “bonus of 24.82 EUR for each security,” whereas “a CPEC was, however, only worth 1.- EUR.” This buyback value was set “completely arbitrarily (…) with no economic, accounting or legal foundation, or even in concordance with the general terms of the CPECs in question” (cf. summary submissions by Mr. Schaeffer dated January 29, 2015, pages 49 and 51). The calculation of the optional buyback price for the CPECs must be done in accordance with its definition appearing in Article II 1. of the terms & conditions: “Optional Redemption Price means the price applicable for the redemption under Clauses 3.1 and 3.2 for any CPEC, which shall be, at any time, the greater of (i) the Par Value of a CPEC and (ii) the market value, on a fully diluted basis (i.e. number of outstanding Ordinary Shares and outstanding CPECs) of the Conversion Shares into which the CPEC would have been convertible or converted pursuant to Clause 4, reduced by 0.5%. The Optional Redemption Price shall be determined by the Board of Managers on the basis of the equity value of the Company and its Subsidiaries on an arm's length basis” (cf. exhibit no. 1 of bundle 9, exhibits by Mr. Schaeffer). At first glance, the criticism by the liquidators should be dismissed relative to the payment of a buyback price greater than the par value of the CPECs, whereas the terms & conditions expressly provide that this price will be set at the higher value (“the greater of”) between the par value and the market value of the Conversion Shares into which the CPECs were to be converted. It also emerges from this definition that this value of the buyback price must correspond to the market value (and not the book value) of the Conversion Shares and that the manager must base himself, to determine this buyback price, on the equity value of HELLAS II and its subsidiaries on an arm's length basis. The notions of market value and equity value are quite clearly financial notions, which could have been freely chosen by the parties pursuant to the principle of autonomy of will set out by Article 1134 of the Civil Code, and must not be confused with the Luxembourg principles of evaluation of lines appearing in annual accounts marked by the principle of prudence (Article 51 of the modified 2002 Law) and taking into account of assets at their acquisition cost only, without taking into account any appreciation (cf. annual accounts for 2006 fiscal year, page 6, accounting policies, point 2.2.2. financial assets, exhibit no. 7 of bundle 9, exhibits by Mr. Schaeffer).

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An account evaluation in agreement with these principles then does not necessarily reflect the market value of the company, i.e., the value that buyers would be prepared to pay to acquire it. Yet it does not emerge from the aforementioned definition of the Optional Reduction Price that the parties wished to determine the latter purely on an accounting basis, in which case they would certainly not have referred to a market value, but rather to an evaluation based on the Luxembourg GAAP, which was not done. Under these conditions, all of the developments by the liquidators related to an alleged violation of Luxembourg accounting standards, and more particularly Articles 51 and 55 of the modified 2002 Law, as part of the determination of the optional buyback price, are irrelevant and must be dismissed. The liquidators again use the definition “available distributable amount” appearing among the definitions in the terms & conditions to find that the buyback of CPECs was subject to the existence of distributable profits within the meaning of Luxembourg accounting standards. This reasoning by the liquidators also can no longer be followed, whereas no reference to that definition is found in the provisions of the terms & conditions dedicated to the buyback of the CPECs. It is also well established in the case at hand that the buyback value of 35.82 EUR per CPEC, resulting in a global buyback price of 978,659,712.- EUR for 27,321,600 CPECs bought back, results from a calculation done in the form of a table by KPMG using, as starting point, the enterprise value of the TIM Hellas group of 3.2 billion euros (cf. exhibit no. 27 of bundle 5, exhibits by Mr. Schaeffer and exhibit no. 23 of bundle 2/5 by Mr. Trevisan). These calculations are not criticized as such by the liquidators from HELLAS II. Their criticisms essentially target the use of the notion of enterprise value as the starting point for these calculations, notion “which has nothing to do with the equity value of the company, calculated in accordance with Luxembourg accounting law,” whereas this notion would artificially count the debts of the group as value and that “no one could call this the value” or the equity value (cf. summary submissions by Mr. Schaeffer dated January 29, 2015, page 89). The enterprise value, or in French, the (market) value, of the economic asset can be defined as the sum of the market value of the equity (market capitalization if the company is listed) and the market value of the net debt. (…) While the accounting comprehends the enterprise by a basing itself on its past and centering its approach on costs, finance is essentially a projection of the company in the future. It incorporates not only risk, but also and above all the value resulting from the perception of the risk and the future profitability (cf. P. Vernimmen, Finance d’entreprise 2012, éd. Dalloz, p. 773, exhibit no. 18 by Arendt & Medernach).

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The interest of the notion of enterprise value (or EV) is to provide the value that all of the investors are prepared to pay to have access to the free cash flows of the company. It indicates what performance the market as a whole expects from the company. (…) Inasmuch as it only weakly depends on the structure of the capital, it makes it possible to compare enterprises with very different debt levels. (…) It is commonly used in three ratios that make it possible to draw comparisons between companies in the same sector: EV/revenue, EV/EBITDA and EV/EBIT (cf. Wikipedia definition, exhibit no. 18 by Arendt & Medernach). The liquidators have not produced any piece of doctrine or any assessment making it possible to find that the use of the notion of enterprise value is a condemnable concept in terms of financial evaluation of a company, or, as in the case at hand, of a group of companies. Conversely, the defendant parties have produced a unilateral report in which a financial analysis expert, Chris Osborne from FTI Consulting (London), provides a detailed explanation of the difference between the notions of enterprise value and equity value and responds to the critique by the liquidators as follows: “the Claimant's suggestion that “the enterprise value is an algebraic sum of values of assets and debts (the group's debts being artificially couted as value by the opposing parties) is likewise wrong. For reasons discussed above, the Enterprise Value is better understood as the value of the business. It is not that “the group's debts are artificially counted as value;” rather it is that in determining an Equity Value, the group's debts would be deducted from the value of the business, while in determining an Enterprise Value, they would not” (report by Chris Osborne dated June 8, 2015, point 6.18, exhibit no. 17 by Arendt & Medernach). Yet if we closely examine the calculations by KPMG, this is precisely what was done: the debts of the TIM Hellas group were deducted from the enterprise value of 3.2 billion euros to arrive at the equity value, which, after various adjustments, including deduction of the transaction costs, resulted in the “fair market value” used as a calculation basis to determine the market value per share/CPEC. The criticisms by the liquidators in this respect are consequently unfounded. HELLAS II next challenges the relevance of the amount of 3.2 billion euros used as enterprise value, whereas the evaluation of the group did not come from KPMG, but from one of the Investors, in the case at hand Texas Pacific Group, and the representatives of the manager-general partner “blindly worked” with these figures and decided on this basis, without having any accounting document or expert evaluation whatsoever supporting this amount. This criticism rejoins that of the arbitrary determination of the buyback price. It is not contested that KPMG only calculated the buyback price per CPEC based on an enterprise value provided by one of the Investors.

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Inasmuch as this enterprise value was that of the TIM Hellas group as a whole, it is not in itself shocking that this evaluation was provided by the end shareholders having an overall vision of the group, clearly on the condition that this evaluation can be objectively supported. Yet this enterprise value of 3.2 billion euros, far from being clearly arbitrary, was confirmed by various concordant sources:

- one of the Investors, Apax, evaluated, as part of its semiannual report to its own investors, the TIM Hellas group at an EV of 3.3 billion euros on December 31, 2006 by applying a multiple of 8 to the normalized EBITDA of 412 million euros (cf. exhibit no. 36.24 of bundle 4/5 by Mr. Trevisan);

- approximately ten investment banks evaluated the TIM Hellas group at an EV between 3.3 and 4 billion euros (cf. point 4.3 of the 1st report by Chris Osborne dated July 11, 2014, exhibit no. 13 by Arendt & Medernach);

- in November 2006, Providence Equity submitted a “non-binding offer” for the acquisition of the TIM Hellas group for an EV of 3.2 billion euros (cf. exhibit no. 9 of bundle 1/5 by Mr. Trevisan).

This evaluation also not being “fantastical,” whereas it was verified upon the sale of the group to Weather in February 2006 for an equity value of 500 million euros, to which should be added the amount of 2.9 billion euros as the group’s net debt (Weather having acquired the group with the remaining debt in the companies of the group) to arrive at an enterprise value of 3.4 billion euros. No fraud can then be detected in this evaluation of the group. The liquidators again use, as proof of the existence of fraud, two e-mails sent by KPMG to Benoît DUVIEUSART dated December 19, 2006, i.e., the day after the resolutions made by the manager-general partner HELLAS setting the buyback price of 35.82 EUR per CPEC, which would prove that these resolutions were made before the communication of the final numbers in particular regarding the global buyback price (cf. exhibit no. 24 of bundle V of 5 exhibits by Mr. Schaeffer). These e-mails indeed reiterate the final figures for all of the contracts (CPECs redemption agreements, PECs redemption agreements, PC subscription agreements and intercompany loans) that were entered into by the various entities in the Hellas group (HELLAS II, HELLAS I, HELLAS, Hellas IV and Hellas Finance) as part of the Refinancing. Inasmuch as these contracts were only signed on December 21, 2006, it is not abnormal for all of the figures not to be confirmed by KPMG until the day after the resolutions made by the manager, as part of which most of the figures remained approximate, with the exception of those relative to the buyback of the CPECs in dispute subject to a special resolution. These e-mails also do not prove that the figures relative to the buyback of the CPECs had been unknown before that date, but only prove that all of the figures were only confirmed on that date, the correction of figures done in the second e-mail also relating to a PEC subscription agreement.

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The liquidators lastly denounce the mentions “proceeds to be extracted by way of CPECs redemption” and “number of CPECs to be redeemed to exit required funds” appearing in the calculation table provided by KPMG (cf. exhibit no. 27 of the bundle of 5 exhibits by Mr. Schaeffer), which would prove that it was the requirement of the beneficiaries of the money from the buyback of CPECs that dictated other values and variables of this “backwards equation,” including the buyback price. It is not contested in the case at hand that the buyback of the CPECs, as part of the Refinancing for the group’s debt, was used to pass funds on to the Investors. No violation of an imperative law or the terms & conditions of the CPECs has been proven. The various figures used in this table prepared by KPMG (i.e., the enterprise value, the debt, the costs, the number of shares and CPECs issued) are objectively verifiable, respectively were not criticized, and the calculations done indeed aimed to determine the number of CPECs to be bought back out of all of the CPECs issued (whereas only some of the issued CPECs were bought back), as well as their buyback price. Under these conditions, even assuming that the total buyback amount of the CPECs was claimed (“required funds”) by the Investors, this does not challenge the legality of the operation without any other element of a nature to reinforce the existence of fraud. Added to this is the circumstance that the essential element of fraud, i.e., trickery, deceit or unfair maneuvers, is completely missing, whereas the buyback operation in dispute was conducted in full transparency, the Offering Memorandum for the Subordinated Notes having clearly indicated that the product of the issue would be used to repay “deeply subordinated shareholder loans” in an amount of 973.7 million euros (pages 59-60, Exhibit 15 of bundle 1/5 by Mr. Trevisan). The criticism related to an insufficiency of this information due to the alleged “obscure” nature of the Offering Memorandum cannot prevail, whereas the latter was intended for professional investors, or at least informed investors, in light of the risks inherent to this type of investment (cf. pages 29-52). The liquidators also criticized the very massive investment of debt securities in the market in order to “serve” the Investors. However, neither the issue of Subordinated Notes on the market nor the financing of a company with third parties in order to reimburse the debt with respect to shareholders is an inherently illegal operation, and no fraud was reported in the unfolding of these operations. There is then cause to reject the ground deduced from the adage “fraus omnia corrumpit,” given that HELLAS II has still not proven or offered proof of the component elements of the alleged fraud.

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The preceding developments show that the action for invalidity of the resolutions made by the manager-general partner and the buyback convention for CPECs should be rejected on all of the cited bases.

6) Request for punishment against HELLAS The vote for discharge on July 27, 2007 resulting in preventing the exercise of the actio mandati against the manager, the request by HELLAS II based on the rules of contractual liability must be declared inadmissible. HELLAS II intends, in the alternative, to incur the civil liability of its manager under Articles 1382 and 1383 the Civil Code “for having taken the initiative for such a buyback” “completely contrary to the corporate interest of the plaintiff” (cf. summons dated December 15, 2011, page 8). The defendant parties plead for the inadmissibility of this request due to the principle of non-accumulation of contractual and criminal liabilities. Pursuant to this rule, the action for criminal liability cannot be allowed when another action has been or is available to the pleading party (cf. Ph. Le Tourneau, Droit de la responsabilité et des contrats, Dalloz Action 2004/2005, no. 1022, p. 274). In the case at hand, HELLAS II indeed had the actio mandati against its manager, action for contractual liability which it waived by granting the latter discharge. Under these conditions, it cannot now bypass its discharge by citing the rules of criminal liability, notwithstanding the existence of a contract binding the parties. Indeed, HELLAS II could base section on the provisions of common law (Article 1382 of the Civil Code) only inasmuch as the alleged breach does not consist of a violation of purely contractual obligations and constitutes a breach independently of the mandate that binds the directors to the company; this would in particular be the case for criminal violations. In this case, the discharge given by the general shareholders' meeting would be ineffective regarding the exercise of an action based on Article 1382 (cf. Ch. Restau, Traité des société anonymes, 3ème édition, Tome II, no. 967 bis, p. 211). In the case at hand, the breaches alleged by the petitioner are precisely attached to the performance of the mandate by its manager HELLAS, and no criminal violation attributable to the latter has been proven. Under these conditions and pursuant to the rule of non-accumulation of liabilities, the request by HELLAS II, as based on criminal liability, must also be declared inadmissible. HELLAS II also asserts, as part of the summons, that its manager-general partner also includes “a (joint) legal obligation in the amount of all of the debts of the limited partnership” pursuant to Article 102 of the modified 1915 Law.

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HELLAS asserts that the petitioner cannot cite the joint undertaking of its unlimited shareholder to its benefit and, pursuant to Article 152 of the modified 1915 Law, no punishment of the limited shareholder can occur before that of the company. Yet such a prior punishment of HELLAS II for the amount claimed from its own limited shareholder is missing. Inasmuch as the summary submissions by HELLAS II (page 97 and 98) show that the latter has only recalled the existence of this legal obligation against its manager-general partner that “does not hinder” the obligation of that manager “to compensate the injury that has occurred” to the petitioner for breaches committed in his management, while asserting bringing proceedings against it for contractual liability, or otherwise criminal liability, there is no cause to draw legal consequences from this matter.

7) The request for punishment against HELLAS I HELLAS II intends to incur the contractual liability, or otherwise the criminal liability, of its limited shareholder for violating the terms & conditions, for serious violation of the law on commercial partnerships and for deliberate participation in an operation incurring its liability, whereas the buyback violated the corporate interest of the petitioner. The preceding developments show that HELLAS II has not proven a violation of the terms & conditions or of any imperative provision of the modified 1915 Law. Only the third reproach must then be analyzed. In the case at hand, HELLAS II and its limited partner HELLAS I are contractually bound by the terms & conditions of the CPECs and by the buyback convention of the CPECs entered into on December 21, 2006. Regarding the request based on the rules of contractual liability, it should be noted that, for such liability to be able to be incurred, it does not suffice for the injury to have been caused during the performance of the contract. It is also necessary for it to result from the nonperformance of a primary or secondary obligation created by the contract for which one of the co-contracting parties is responsible (Court, June 16, 1982, 25, 344). In the case at hand, it is not contested that all of the obligations of the parties related to the buyback convention (payment of the buyback price and subsequent cancellation of the CPECs) were done in accordance with the contractual stipulations. As specified above, the deliberate participation in a buyback operation of CPECs, the initiative of which also came from HELLAS II, which sent a Notice of Redemption to its limited partner, as part of an option offered to co-contracting parties, is not a wrongful behavior. The reproach of the alleged violation by the operation of the corporate interest of HELLAS II is also not founded in the context of the examination of a request based on the rules of contractual liability, whereas the petitioner cannot transfer, to its co-contracting party, an obligation for which its manager-general partner is responsible, only the latter having to ensure compliance with the corporate interest of HELLAS II as part of the performance of the convention.

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The request based on contractual liability is then not founded. The liquidators specify that the liability of HELLAS I is “sought for having participated in the conclusion, and the genesis, of that buyback convention, and not for having failed to perform it (or for having poorly performed it). Whereas inasmuch as, in this manner, (HELLAS I) participated in these harmful acts, its criminal or quasi-criminal liability is incurred” (cf. summary submissions by Mr. Schaeffer served on January 29, 2015, page 31). This ground in particular lacks clarity. HELLAS II still failing to specify what exact behavior (of a pre-contractual nature?) it is targeting, whereas all of the reproaches against HELLAS I are attached either to the buyback contract, or to the issue contract of the CPECs, the principle of non-accumulation of liabilities must be applied and the request by HELLAS II, as founded on criminal liability, must be declared admissible.

8) The request for punishment against Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART

HELLAS II feels that Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART, due to their capacity as members of the management board of HELLAS, incur a contractual liability, or otherwise criminal liability, due to their duties. At first glance, there is cause to declare the request based on the rules of contractual liability unfounded, whereas HELLAS II has failed to prove a contract binding it directly to the six defendants, the petitioner only being contractually bound HELLAS and not the managers of the latter. As part of the interlocutory judgment dated December 11, 2013, it had been held that Article 51bis of the modified 1915 Law was intended to apply to limited partnerships with stockholders. Inasmuch as the preceding developments show that no liability was found against HELLAS, no joint liability against the defendant parties based on this text can be considered. Under these conditions, there is cause to return to the theory of the body.

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Indeed, as part of the aforementioned judgment, the court, after having noted that this theory could apply to the case at hand, in which the liability of natural persons having the capacity of members of the management board of a limited-liability company is sought, itself having the capacity of unlimited shareholder and manager of a limited partnership with stockholders, has reserved this question on the grounds that the applicability Article 51bis could defeat this theory of the body. According to the theory of the body as established by Article 12 of the modified 1915 Law, the members of the bodies of a legal entity do not assume any personal liability for the acts they perform as part of their corporate duties by directly binding the legal entity (cf. J-P Winandy, op. cit., page 397-398). The body of the company being the legal embodiment of the company with which it is identified, the legal entity is directly bound by the acts performed by its body, the latter directly and immediately expressing the will of the former (cf. De Page, Traité élémentaire de droit civil belge, Les Personnes, Tome 2, vol. 1, 1990, page 402). Pursuant to this theory of the body, the discharge granted to the manager-general partner HELLAS must necessarily benefit the members of its body inasmuch as they have acted as part of their duties, whereas by acting as an entity of HELLAS, the acts materially done by them are the acts performed by HELLAS, and as such, only bind the latter. All of the acts performed by the six defendants in their capacity as managers of HELLAS (due to their duties) are then covered by the discharge, knowing that, even without such discharge, these deeds, assuming them to be wrongful, would at the very most make it possible to incur the liability of HELLAS. HELLAS II then not having proven, or even alleged, a breach separable from their duties against the six defendants, which alone could incur the personal liability of the directors of a legal entity, the request based on the rules of criminal liability must also be declared unfounded.

9) Compensation based on Article 240 of the New Code of Civil Procedure Both the plaintiff HELLAS II and the defendant parties Giancarlo Rodolfo ALIBERTI and Maurizio BOTTINELLI request compensation of 15,000.- EUR and 20,000.- EUR pursuant to Article 240 of the New Code of Civil Procedure. The request to obtain such compensation from the plaintiff party must be rejected in light of the outcome of the dispute, whereas a party whose claims are rejected, and who must therefore be ordered to pay the costs and expenses of the proceedings, cannot benefit from the provisions of Article 240 of the New Code of Civil Procedure. The defendant parties' request is also rejected, whereas the condition of iniquity required by the law is not met.

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On these grounds:

the district court of and in Luxembourg, fifteenth chamber, meeting in commercial matters, according to civil procedure, ruling in adversary proceedings, having reviewed commercial judgment no. 1648/13 dated December 11, 2013; recognizes the voluntary intervention by Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Philippe COSTELETOS, Matthias CALICE, Guy HARLES and Benoît DUVIEUSART in docket number 145,724; orders the joinder of the requests recorded on the docket under numbers 145,724 and 145,725; declares inadmissible the claims against Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE, based on alleged de jure or de facto management of the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A.; declares inadmissible the requests based on alleged evasion of the rights of creditors of the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A.; declares admissible the request for cancellation of the resolutions adopted on December 18, 2006 and the buyback convention signed on December 21, 2006; declares it unfounded and rejects it, declares inadmissible the request against the limited-liability company HELLAS TELECOMMUNICATIONS s.à.r.l.; declares inadmissible the request against the limited-liability company HELLAS TELECOMMUNICATIONS I s.à.r.l., in bankruptcy, on a criminal basis; declares inadmissible the request against the limited-liability company HELLAS TELECOMMUNICATIONS I s.à.r.l., in bankruptcy, on a contractual basis; declares it unfounded and rejects it, declares unfounded the requests against Giancarlo Rodolfo ALIBERTI, Maurizio BOTTINELLI, Guy HARLES, Benoît DUVIEUSART, Philippe COSTELETOS and Matthias CALICE and rejects them; declares unfounded the requests by the parties to obtain compensation pursuant to Article 240 of the New Code of Civil Procedure and rejects them, orders the limited partnership with stockholders HELLAS TELECOMMUNICATIONS (LUXEMBOURG) II S.C.A., in bankruptcy, to pay the costs and expenses of the proceedings, to be recovered by Mr. Fabio TREVISAN, Mr. Yann BADEN and the business corporation ARENDT & MEDERNACH S.A., which request them, asserting having advanced them.