Recall of facts
On December 13, 2018, the territorial council authorized by fifteen votes to (out of twenty-one) an evolution of the governance of Semsamar. According to article 1 of the deliberation, “the Territorial Council approves the modification of the governing bodies of Semsamar which could result from a proposal to unify the functions of president with those of director general, leading to the appointment of a president -General manager".
In addition, in the wake and in the event that the board of directors votes for the change in governance, the candidacy of Yawo Nyuadzi for the post of CEO was adopted by the elected officials, Yawo Nyuadzi already being president of Semsamar.
Sem's board of directors met a few days later and approved the change of governance and appointed Yawo Nyuadzi P-DG, thus dismissing Marie-Paule Bélénus-Romana, then director general.
Contest of decision by Louis Mussington
On March 1, 2019, Louis Mussington, territorial adviser to the opposition, seized the administrative court of Saint-Martin to ask him to have the two deliberations of the territorial council canceled. Louis Mussington was absent on the day of the plenary session on December 13, 2018 but had given power of attorney to Bernadette Davis to vote against.
The hearing of the administrative court took place on January 23, 2020 in Saint-Martin, Louis Mussington challenged the deliberations on the grounds that the elected officials had not had enough elements and information to pronounce correctly on the evolution of the governance of Semsamar and consequently on the candidacy of Yawo Nyuadzi for the post of CEO, which the public rapporteur had also mentioned in his conclusions.
On February 11, the administrative court ruled in favor of Louis Mussington and canceled the two deliberations of the territorial council on the grounds that insufficient information had been given to elected officials so that they could position themselves on the question.
Why did the COM have to decide on the evolution of governance?
Since the law of January 2, 2002, the board of directors of a Sem must request the approval of the deliberative assembly to act on decisions relating to statutory changes. "To allow [the deliberative assembly] to be able to possibly oppose what it would consider to be a drift of the SEM compared to its founding statutes, the agreement of its representative can no longer intervene without it has previously pronounced favorably, "said a circular from the Ministry of Justice in 2003.
In the case of Semsamar, its board of directors could not therefore change the governance of the Sem without the agreement of the territorial council of Saint-Martin. This is why elected officials were invited on December 13, 2018 to deliberate on the choice to merge the positions of President and Chief Executive Officer.
The consequences of the decision of the administrative court
The judgment does not call into question the choice of the mode of governance but only the decision of the territorial council to approve this choice and that of the candidacy of Yawo Nyuadzy for the post of CEO
It remains to be seen whether the validation of the change in the mode of governance by the board of directors of Semsamar is still valid insofar as it no longer has the agreement of the territorial council or the deliberative assembly as required by the law.
According to the Collective, “the board of directors of Semsamar has validly deliberated and the deliberations are final. The applicant's request [Louis Mussington], even if it was accepted by the court, however has no effect on the current governance of Semsamar ”.
(Soualigapost.com).
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