Company and tax law
99 AVOCATS ensures the legal follow-up of commercial companies and structures of wealth management (civil societies, family offices):
- Legal Audits
- Legal acts to support the implementation of projects
- Creation of (multi) family office
- Creation, transfer of company, sale of business assets
- Organization and formalization of the relations between partners and company executives
- Restructuring operations (M&A, mergers, contributions, etc.)
- Dissolution, liquidation of companies
- Legal follow-up of companies, legal secretariat
- Company tax advice (in collaboration with foreign partners if necessary)
- Preparation of tax returns (in collaboration with accounting firms)
- Management of relations and litigation with the tax administration
- Compliance with AML/FT-C regulations
- Support for submitting an offre de jetons (Security Token Offering – STO, Initial Coin Offering – ICO)
- Litigation on requests for information from foreign tax authorities
Company law in Monaco
Contrary to France, few texts govern Monegasque company law, which allows for flexibility and contractual freedom.
The Commercial Code (Code de commerce) contains, in its First Book / Fourth Title, around thirty provisions applicable in company law. Additionally, among others, the provisions of the Ordinance of 5 March 1895 on public companies and limited partnerships by shares completed by Law No..408 of 20 January 1945 and Law No. 1.331 of 8 January 2007 are applicable.
There are four types of commercial companies in the Principality:
- Société à Responsabilité Limitée ((SARL) (private limited company) formed by at least two partners (natural or legal persons), the liability of the partners being limited to the amount of their contributions. The minimum amount of share capital is €15,000. The activity carried out must be commercial, but commercial capacity is not required. Liberal, civil, financial and insurance activities (except insurance brokerage) cannot be carried out via an SARL. The articles of association of the limited liability company may be drawn up by private deed, except if the share capital consists, in whole or in part, of real estate subject to land registration, in which case a notarial deed is required.
- Société Anonyme Monégasque (SAM) (public limited / joint stock company) formed by at least two shareholders (natural or legal persons), the liability of the shareholders being limited to the amount of their contributions. The company's object may be either commercial (commercial capacity is not required) or civil (the exercise of a liberal activity via a SAM with a civil object is possible). In principle, the minimum amount of share capital is €150,000 (but may be higher for certain activities such as financial activities). The articles of association of the SAM must be drawn up by notarial deed.
- Société en Commandite Simple (SCS) (active and limited partnership) formed by at least two partners, a general partner (a natural or legal person who is a trader and is indefinitely and jointly and severally liable for all of the company's debts) and a limited partner (who is not a trader and is only liable for the amount of his contribution) The object of the company may be commercial or non-commercial. The minimum amount of share capital is freely determined. The articles of association of the SCS may be drawn up by private deed, except if the share capital consists, in whole or in part, of real estate subject to land registration, in which case a notarial deed is required.
- Société en Nom Collectif (SNC) (general partnership) formed by at least two partners (natural or legal persons), the partners being indefinitely and jointly and severally liable on their personal assets for the debts of the company. The activity carried out must be commercial and commercial capacity is required. Liberal or civil activities cannot be carried out via an SNC. This legal form is mandatory for certain professions such as pharmacy. The minimum amount of share capital is freely determined. The articles of association of the SNC may be drawn up by private deed, unless the share capital consists, in whole or in part, of real estate subject to land registration, in which case a notarial deed is required.
The possibility of individual practice must also be mentioned. The Entreprise en Nom Personnel (sole trader), which is not subject to the constraints of company formation, is open to natural persons wishing to carry out a commercial activity (commercial capacity required), a professional activity or a craft activity (persons whose personal or professional status prohibits them from carrying out commercial acts on a professional basis cannot carry out activities under this legal form). The entrepreneur's personal assets are not protected from the risks inherent in his activity.
One of the main features of Monegasque company law is that (except for persons of Monegasque nationality) the exercise of any commercial, craft, industrial or liberal activity in the Principality of Monaco is subject to the prior authorisation of the Minister of State, whether the activity is exercised in a personal capacity or in a company. No economic activity may be carried out in the Principality without this prior authorisation.
Only a Société civile (non-trading companies) that do not have a commercial activity (management of real estate assets, pooling of resources for the exercise of a profession, management of a portfolio of securities on its own account) is exempt from this prior authorisation. The partners (natural or legal persons) are indefinitely liable for the company's debts to third parties in proportion to their share in the company's capital on the date of payment. The articles of association may be drawn up by private deed or by notarial deed.
Certain regulated activities may also require specific authorisation (banking and financial activities, real estate, legal and accounting activities, etc.).
Tax in Monaco
Monegasque tax law presents a couple of specificities, e.g. no income tax for individuals in Monaco, no property tax and no residency tax.
The profit tax (ISB "impôt sur les bénéfices"), together with the value added tax (VAT), form the basis of the Monegasque tax system.
The Franco-Monegasque Tax Convention of 18 May 1963 instituted the Monegasque ISB which is established and collected under the same conditions as French corporation tax. ISB is, in principle, only due by companies who make more than 25 % of their turnover outside of Monaco. The collection by a company of proceeds from patents and copyrights is also subject to the ISB. The tax rate has been gradually reduced since 1 January 2019: from 33.33% before 1 January 2019, it has been reduced to 31% as of 1 January 2019, to 28% as of 1 January 2020, to 26.5% as of 1 January 2021, and finally 25% as of 1 January 2022.
The Convention also provides that VAT is levied on the same basis and at the same rates as in France. Monaco thus transcribes each year in the Code of Taxes and Turnover ("Code des taxes et du chiffre d'affaires") the provisions of the French Finance Law concerning VAT. The standard rate is 20%, the reduced rate is 10%, and 5.5% for basic necessities. Sales of new buildings are subject to real estate VAT.
Excise duties (alcoholic beverages, tobacco products, energy products) are based on those in force in France, as are duties and taxes on beverages and precious metals.
Other duties and taxes are applicable in the Principality. For example, inheritance or donation tax applies to property located in the Principality or based there (subject to the provisions of the Franco-Monegasque Convention of 1 April 1950). Registration duties are levied at the time of the registration of deeds (deeds of transfer of businesses, leases, notarial, judicial and extra-judicial deeds, declaration of inheritance, deeds concerning civil companies, deeds of sale of boats), on transfers of property and real estate rights (Law No. 1.381 of 29 June 2011). Stamp duties are payable on the occasion of, among others, the completion of administrative formalities.
International tax cooperation
Regarding the international administrative assistance in tax matters, Monaco conducts the automatic exchange of information relating to financial accounts in accordance with the OECD Common Reporting Standard (CRS):
- with the Member States of the European Union, in the framework of the Amending Protocol of the Agreement with the European Community providing for measures equivalent to those contained in Directive 2003/48/EC;
- with other third States subject to declaration, in the framework of the Convention on Mutual Administrative Assistance in Tax Matters and the Multilateral Agreement between Competent Authorities.
The Principality is also a member of the Inclusive Framework on BEPS (Base Erosion and Profit Shifting) and a Party to the Multilateral Agreement between Competent Authorities on the Exchange of Country-by-Country Declarations concerning multinational enterprise groups (Action 13).
In addition to the Franco-Monegasque agreements (above-mentioned Tax Convention of 18 May 1963 and Amendments of 25 June 1969 and 26 May 2003, Exchange of letters of 6 August 1971 modifying the rules for sharing the recovery of turnover taxes; above-mentioned Convention of 1 April 1950 on the avoidance of double taxation and the codification of rules of assistance in inheritance matters; Customs and Tax Protocol of 23 December 1951; Agreement in the form of an exchange of letters of 18 July 1977 on the introduction of a flat-rate tax of 4% on the sale of precious metals; Agreement of 25 February 2019 on the tax treatment of gifts and legacies made to public persons and non-profit organisations), Monaco has also concluded bilateral tax treaties or agreements on the exchange of information in tax matters with the following other countries Andorra, Argentina, Australia, Austria, Bahamas, Czech Republic, Denmark, Finland, Greenland, Faroe Islands, Guernsey, Iceland, India, Italy, Liechtenstein, Luxembourg, Mali, Malta, Mauritius, Montenegro, Netherlands, Norway, Qatar, San Marino, Samoa, South Africa, Seychelles, Sweden, United Kingdom, United States.
Related recent developments
- Since Law No. 1.439 of 2 December 2016, Monegasque public limited companies ("société anonyme") have been eligible for multi-family office status.
- Law No. 1.492 of 8 July 2020 introduced the obligation to open an account in a credit institution in Monaco for any public limited company, general partnership, limited partnership with shares or limited liability company (exclusively intended for the exercise of its professional activity). At the same time, it introduced a right to a bank account for legal persons domiciled in Monaco (having their registered office in the Principality within the meaning of Article 2 of the Code of Private International Law) who would not have a deposit account.
- Law No. 1.491 of 23 June 2020 opened up the possibility for legal entities registered in Monaco to submit an "offre de jetons"(Security Token Offering – STO, Initial Coin Offering – ICO) to the Minister of State, who issues prior administrative authorisation in the form of a label (a company in the process of being formed in Monaco may nevertheless submit an application for a label). STOs are reserved for joint stock companies.
- Since its amendment by Sovereign Ordinance No. 8.372 of 26 November 2020, Ordinance No. 8.566 of 28 March 1986 on residence certificates specifically governs requests for the issue of a residence certificate "to fulfil a formality of a fiscal nature", in particular in the context of the automatic exchange of tax information on financial accounts. Furthermore, it now defines the notions of "principal or habitual residence" and "principal centre of activities".
- Law No. 1.528 of 7 February 2022 provides for the regulation of digital asset services and crypto-asset services with an authorisation regime for companies registered in Monaco, and has introduced the dematerialised tax stamp.
- Law No. 1.529 of 29 July 2022 on various economic and legal provisions, has : extended from 5 to 10 years the duration of pledges ('"nantissement") of motor vehicles, goodwill and capital goods and of the act of subrogation in the benefit of the pledge of capital goods, as well as the duration of retention of the privilege; introduced the assignment of professional receivables; remedied the hypothesis of vacancy of the position of foreign manager of the limited liability company in case of death, default or departure by allowing an authorised partner of the company to hold the position of manager during a transitional period; strengthened the effectiveness of the measures applicable in case of failure to communicate the accounting documents of public limited companies and limited partnerships with shares, and commercial companies other than joint stock companies.
- Law No. 1.537 of 9 December 2022 made the principal activity of domiciliation subject to the anti-money laundering and terrorist financing provisions of Law No. 1.362.
As part of the Principality's digital transition, the Government Bill No. 1039 tabled on 27 May 2021 envisages the use of a digital recording device on a shared register (covering the main features of blockchain technology) by public limited companies and limited liability companies to keep the register of transfers, to record the registered securities issued (public limited companies)..., to record the distribution of shares (limited liability companies)..., for information sharing, a statutory provision, the use of smart contracts.
In addition, the government has announced plans to reform company law.
In this context, a first Bill No. 1050 deposited on the Bureau of the Parlimaent on 6 December 2021 envisages the creation of the "Société Civile Particulière de Santé" (SCPS), a special civil health company, which would allow regulated professionals practising in the field of human health or veterinary medicine a new possibility of practising within a more efficient structure in order to reduce costs by sharing resources such as premises, working equipment and administrative staff.
In addition, on 9 May 2023 the Parlimaent tabled two dratf laws aimed at creating two new forms of commercial company: Draft Law No. 256 on the creation of the Société Unipersonnelle à Responsabilité Limitée (SURL) which limits the liability of the sole shareholder to the amount of his or her contributions, and the Draft Law No. 257 of the "Société d'Innovation Monégasque par Actions (SIMA)" to meet the needs of startups and innovative project holders to raise funds from investors with one or more partners (natural or legal persons).
Bill No. 1077 (Part I) on the fight against money laundering and terrorist financing intends to strengthen the obligations relating to beneficial owners: reporting of discrepancies or the absence of discrepancies with the Register of beneficial owners ("Registre des bénéficiaires effectifs - sociétés et GIE"); penalties for non-compliance; obligation for legal persons to appoint a person residing in Monaco responsible for obtaining, keeping, updating and making available information on beneficial owners It is also planned to introduce a mechanism for the permanent control of the good repute of directors, shareholders and associates, beneficial owners, and to increase the penalties incurred by natural and legal persons in the event of failure to comply with Law No. 1.362
Related publications
Criminal law
99 AVOCATS advises and defends legal and natural persons (investors, business managers, corporate officers, partners, individuals):
- Identification and assessment of criminal risk (audit of criminal liability);
- Prevention and protection against criminal risk with the implementation of appropriate legal tools (health and safety of persons, prior authorizations, delegation of authority);
- Filing of complaints, preliminary inquiries, investigations, trials (general criminal law offenses, specific infringements of business and intellectual property law, digital identity theft, technology crime);
- International judicial assistance (international letter rogatory), extradition, transnational criminal proceedings.
We intervene at all stages of the judicial process (assistance, preparation and defence).
We are specialized in criminal business law, which includes complex offenses and foreign related factors:
- Money laundering
- Bribery, trading in influence and offences committed in support of corruption
- Breach of trust
- Concealment
- Fraud
- Fraud in intra-community trade
Monegasque criminal law
Criminal law is governed by the Criminal Code ("Code pénal") of 28 September 1967, and specific laws such as Law No.1.299 of 15 July 2005 on freedom of public expression, Law No.1.362 of 3 August 2009 amended on anti-money laundering, anti-terrorism financing and anti-corruption, Law No.1.338 of 7 September 2007 on financial activities.
Criminal procedure is governed by the Code of Criminal Procedure ("Code de procédure pénale") promulgated on 2 April 1963.
Monegasque criminal business law is very different from the French criminal business law. Some criminal offences do not exist in Monaco, e.g. misuse of company assets.
It may also be noted, on the one hand, that the European Arrest Warrant (EAW) issued by a judicial authority of a European Union country is not valid on the territory of Monaco, and on the other hand, that judicial cooperation with France is simplified due to their close links.
Among other features, Law No. 1.421 of 1 December 2015 on various measures on State responsibility and remedies has introduced an exceptional procedure for the reopening of criminal proceedings in the event of a decision of the EHCR finding a violation to the European Convention on Human Rights or its additional protocols.
At the international level, the Principality of Monaco is a party to numerous multilateral conventions in criminal matters, including:
- United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on 20 December 1988 (Sovereign Order 10.201 of 3 July 1991) ;
- European Convention on Extradition of 13 December 1957 (Sovereign Order 2.120 of 23 March 2009) and Additional Protocol of 15 October 1975 (Sovereign Order 2.121 of 23 March 2009), Second Additional Protocol of 17 March 1978 (Sovereign Order 2.122 of 23 March 2009);
- European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters (Sovereign Order n° 1.088 of 4 May 2007);
- Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990 (Sovereign Order 15.452 of 8 August 2002), updated and extended by the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, adopted on 16 May 2005 (Sovereign Order 9.393 of 29 July 2022);
- Council of Europe Convention on Cybercrime (CETS No. 185), opened for signature in Budapest (Sovereign Order 6.492 of 28 July 2017) and its Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (Sovereign Order 6.493 of 28 July 2017);
- Criminal Law Convention of 27 January 1999 on Corruption (Sovereign Order 1.089 of 4 May 2007) and its Additional Protocol of 15 May 2003 (Sovereign Order n° 4.668 of 15 January 2014);
- United Nations Convention on the fight against transnational organised crime of 15 November 2000 (Sovereign Order No. 16.025 of 3 November 2003) and Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Additional Protocol against the Smuggling of Migrants by Land, Sea and Air;
- European Convention of 27 January 1977 on the Suppression of Terrorism (Sovereign Order 1.416 of 23 November 2007) ;
- International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 (Sovereign Order No. 15.319 of 8 April 2002);
- Council of Europe Convention of 16 May 2005 on the Prevention of Terrorism (Sovereign Order 6.030 of 9 September 2016) and its Additional Protocol (Sovereign Order 6.494 of 28 July 2017);
- Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Sovereign Order 5.209 of 20 February 2015);
- Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Sovereign Order 5.208 of 20 February 2015);
- Council of Europe Convention on Action against Trafficking in Human Beings concluded in Warsaw on 16 May 2005 (Sovereign Order 5.803 of 11 April 2016).
Monaco has also concluded the following bilateral agreements in criminal matters:
- with France: Convention of 8 November 2005 on Mutual Assistance in Criminal Matters between the Government of the French Republic and the Government of His Serene Highness the Prince of Monaco (Sovereign Order n° 1.828 of 18 September 2008), Protocol of 26 March 2021 of agreement between the Keeper of the Seals, Minister of Justice of the French Republic and the Secretary of State for Justice, Director of the Judicial Services of the Principality of Monaco concerning the fight against terrorism, signed in Monaco (Sovereign Order n° 8. 665 of 26 May 2021), Convention of 8 June 1978 between the Government of His Serene Highness the Prince of Monaco and the Government of the French Republic on the reciprocal enforcement of fines and confiscation (Sovereign Order n° 6.939 of 8 October 1980);
- with other countries: Agreement of 24 March 2007 between the Government of His Serene Highness the Prince of Monaco and the Government of the United States of America on the sharing of confiscated proceeds of crime or property (Sovereign Order n° 1.138 of 4 June 2007); Agreement of 13 September 1999 on mutual legal assistance in criminal matters between the Government of His Serene Highness the Prince of Monaco and the Government of Australia (Sovereign Order n° 15. 063 of 12 October 2001); Agreement of 27 July 2010 between the Principality of Monaco and the Federal Republic of Germany on assistance in civil and criminal tax matters through exchange of information (Sovereign Order n° 3.627 of 12 January 2012), Bilateral treaty on mutual legal assistance in criminal matters between the Principality of Monaco and the Republic of Kazakhstan (Sovereign Order n° 5.892 of 20 June 2016);
- with EUROPOL: Agreement of 6 May 2011 on operational and strategic cooperation between the Government of H.S.H. the Sovereign Prince of Monaco and the European Police Office (Sovereign Order n° 3.509 of 2 November 2011).
Furthermore, the Monetary Agreement of 29 November 2011 with the European Union provides for the implementation by Monaco of legal provisions equivalent to those of the European Union acts listed in its Annex B in the area of money laundering, fraud and counterfeiting (such as the 6th Directive (EU) 2018/1673 of 23 October 2018 to combat money laundering by means of criminal law).
Monaco's accession to this network of international conventions has contributed to the evolution of the provisions of the Criminal Code and the Code of Criminal Procedure.
Reforms to the Criminal Code
In the past years, the face of criminal law and criminal procedure law changed substantially, in particularly to adapt to the new constraints imposed by the Council of Europe (MONEYVAL, GRECO, GREVIO):
- With regard to anti-money laundering, Law No. 1.322 of 9 November 2006 and Law No. 1.462 of 28 June 2018 have substantially amended the applicable rules, enlarging the list of the money laundering predicate offenses, and introducing the case of presumptive money laundering in the Criminal Code. Most recently, Law No. 1.521 of 11 February 2022 added new underlying offences, a new aggravating circumstance for natural persons subject to Law No. 1.362 on the prevention of money laundering, new provisions on the criminal liability of legal persons, and an exception to the principle of double criminality.
- In corruption matters, Law No. 1.394 of 9 October 2012 and Law No. 1.462 of 28 June 2018 have reshaped the existing offenses, in accordance with the Criminal Law Convention on Corruption of 27 January 1999.
- With regard to cybercrime, Law No.1.435 of 8 November 2016 has incorporated into Monegasque law the Council of Europe (Budapest) Convention on Cybercrime: introduction of new offenses in the criminal code (offences involving information systems, digital identity theft); modernization of traditional criminal offenses (criminal threats); modernization of criminal proceedings rules (search of computer systems, seizure of computer data).
- On the recommendations of the OECD, the penalties for breach of professional secrecy have been aggravated by Law No. 1.444 of 19 December 2016.
- Law No. 1.464 of 10 December 2018 strengthened the protection of persons against non-public defamation and insult (amendment of the Penal Code) and public defamation and insult (amendment of Law No. 1.299 of 15 July 2005 on freedom of public expression, modified). The reform takes into account defamatory or abusive language through the “use of a false name, false quality, false identity, or any other means of concealing its real identity”.
- A recent major reform of the Principality’s criminal policy was carried out by Law No. 1.478 of 12 November 2019, which modernized the concept of the sentence (introduction of day-fines, community service, partial suspension, period of day-parole and placement in society,).
- Law No. 1.494 of 8 July 2020 created the offence of fraudulent organisation or aggravation of insolvency, which punishes fraud resulting from the various acts of impoverishment carried out by the debtor in order to claim his insolvency and thus prevent the recovery of the debt from his assets.
- Law No 1.516 of 23 December 2021 created the offence of fraudulent abuse of ignorance or weakness.
- Law No. 1.517 of 23 December 2021 carries out a wide-ranging reform of sexual offences and crimes (rape, sexual assault, sexual exhibition, sexual harassment, sexual blackmail, sexual assault).
- Law No 1.513 of 3 December 2021 criminalised, among other things, harassment in schools, hazing, racketeering among adolescents, provocation to commit suicide, the exploitation of an image or representation that undermines dignity or is used to threaten or blackmail, and repeated malicious telephone calls or messages.
- Law No. 1.521 of 11 February 2022 introduced a reversal of the burden of proof for crimes and offences punishable by at least three years' imprisonment that may be subject to confiscation and made adjustments to offences relating to non-cash payment instruments.
Reforms to the Code of Criminal Procedure
Similarly, the provisions of the Code of Criminal Procedure are constantly evolving in the light of the guarantees for the individual arising from the European Convention on Human Rights:
- Law No. 1.394 of 9 October 2012 introduced new special investigation techniques, such as the sound and image fixation of certain places or vehicles, the procedure of infiltration and anonymous testimony.
- The police custody regime was recasted and adjusted by Laws No. 1.343 of 26 December 2007 and No. 1.399 of 25 June 2013 (criteria of detention, guarantee of human rights, right to silence, right to counsel …).
- The rules of criminal procedure relating to the search and seizure of computer data were modernized by Law No. 1.435 of 8 November 2016.
- The provisions of the Code of Criminal Procedure relating to the summons to appear in court and the arrest warrant issued by the criminal court have been amended by Law No. 1.449 of 4 July 2017.
- Law No 1.513 of 3 December 2021 adjusted the rules on juvenile criminal justice governed by Law No 740 of 25/03/1963 (educational measures).
- Law No 1.517 of 23 December 2021 extended to incapacitated adults victims the protective procedural provisions for minor victims concerning offences against the person, allowing the presence of a psychologist, a doctor, a member of the family of the adult or the ad hoc administrator to be requested during the victim’s hearing or confrontation with the alleged perpetrator.
- Recently, a major reform has taken place with four laws passed on the same day: introduction of alternative measures to prosecution for minor offences and misdemeanours (directing the perpetrator to a health, social or professional structure, penal mediation, removal measures, etc.), changes to the police custody system (guarantees in the event of extension, full body search), supervision of the unrestricted hearing and the preliminary investigation by the judicial police (home visits, requests for the nullity of acts carried out in this context, regime for the seizure of documents, computer data, objects with a view to providing evidence, etc.), introduction of the general procedure for obtaining additional information (Law No. 1. 533 of 9 December 2022); creation of the status of assisted witness, overhaul of the investigation procedure, introduction of geolocation, specific procedures applicable to the prosecution, investigation and judgment of offences committed by legal persons, adaptations to the appeal for review (Law No. 1. 534 of 9 December 2022); with regard to seizure and confiscation, widening the possibilities of seizure of confiscable assets, facilitating the tracing of these assets, creation of specialised assistants to participate in money laundering procedures, appeals by persons affected by a seizure measure or confiscation decision, establishment of a 'management service for seized or confiscated assets' (Law no. 1. 535 of 9 December 2022 following the FATF Recommendations and Directive 2014/42/EU of 3 April 2014); reform of the common law on international mutual legal assistance (Law No. 1.536 of 9 December 2022).
International and European law
99 AVOCATS works for private persons and institutional actors in the issues of private international law, European law (Council of Europe and European Union) and public international law:
- Conflicts of law or jurisdiction (contractual clause, arbitration agreement, international succession …)
- Recognition and execution of foreign judgments and public instruments
- Compliance with the European Union rules applicable to entities located in Monaco (activities and regulation of credit institutions, personal data protection …)
- Respect of international obligations in domestic proceedings (European Convention on Human Rights, international criminal cooperation, extradition, administrative assistance in tax matters …)
- Claims before the European Court of Human Rights
The relationship between international and domestic law in Monaco
International treaties and agreements, which take precedence over domestic laws, even subsequent ones (Court of Revision, judgment of 21 April 1980), occupy second place in the Monegasque legal system after the Constitution of 17 December 1962, amended by Law No. 1.249 of 2 April 2022.
The Principality is a dualist State: in order to enter into force in Monaco, international treaties and agreements signed and ratified are subject to a sovereign ordinance making them enforceable.
Treaties and international agreements which affect the constitutional organisation, or the ratification of which entails the modification of existing legislative provisions, or which entail the Principality's membership of an international organisation whose operation involves the participation of members of the National Council, or the implementation of which has the effect of creating a budgetary charge relating to expenditure whose nature or purpose is not provided for by the budget law, are subject to ratification by Parliament ("Conseil National").
International public law issues are dealt with in Monaco, particularly in the context of mutual legal assistance in criminal matters, extradition and international administrative cooperation in tax matters (reservations and scope of application, direct or indirect effect of treaty provisions for private individuals, compliance with the rules of double criminality, the ne bis in idem principle etc.).
International and European law on human rights and fundamental freedoms
Since the Principality joined the Council of Europe on 5 October 2004, it has been possible to invoke the European Convention for the Protection of Human Rights in the context of domestic remedies and any person subject to legal proceedings has the right, after exhausting Monegasque remedies, to apply to the European Court of Human Rights (Art. 4 of Protocol No. 15 amending Art. 35 § 1 ECHR, which entered into force on 1 February 2022, reduced the time limit for lodging an application with the Court from 6 to 4 months following the last final domestic decision).
Furthermore, Law No 1.421 of 1 December 2015 instituted an exceptional procedure for reopening a trial in the event that a judgment of the ECHR had found the Monegasque State to be in breach of the European Convention for the Protection of Human Rights or its additional protocols, not only in criminal and correctional matters, but also in the context of a dispute falling within the jurisdiction of the Monegasque courts in civil matters, as well as the jurisdiction of the Labour Court.
Monegasque law is evolving under the impetus of the case law of the European Court of Human Rights (ECHR) and the prism of guarantees for the individual. This is the case, for example, in the context of reforms to criminal procedure (most recently, Law No. 1.533 of 9 December 2022 concerning preliminary investigations, home visits, police custody, free hearings, alternative measures to prosecution, Law No. 1.534 of 9 December 2022 concerning the status of assisted witness, the investigation, and the appeal for review in criminal matters) or civil procedure (most recently, Law No. 1.511 of 2 December 2021 with the objective of making justice more readable, accessible and rapid).
The recommendations of the Office of the United Nations High Commissioner for Human Rights are also a source of reforms, such as Law No. 1.481 of 17 December 2019 instituting the common life contract ("contrat de vie commune") open to same-sex and non-same-sex couples, and Law No. 1.523 of 16 May 2022 on the promotion and protection of women's rights by amending and repealing obsolete and unequal provisions.
The main treaties concluded by Monaco in this area are the following:
- Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol Nos. 11 14, 14 bis, 15 and its Additional Protocols Nos. 4, 6, 7, 13;
- International Covenant on Civil and Political Rights of 16 December 1966 and its Second Optional Protocol aiming at the abolition of the death penalty;
- International Covenant on Economic, Social and Cultural Rights of 16 December 1966;
- Convention on the Rights of the Child of 20 November 1989 and Optional Protocol on the involvement of children in armed conflict of 25 May 2000, Optional Protocol on the sale of children, child prostitution and child pornography;
- International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966;
- Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979;
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984;
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment as amended by its two Protocols of 26 November 1987.
Monegasque private international law
With the presence of 139 different nationalities in the Principality, relations or disputes between private persons often have an international dimension whatever their nature (civil, commercial, social...), and questions relating to private international law (determination of the applicable law, conflicts of jurisdiction, recognition and enforcement of foreign judgments) are frequently raised.
Law No. 1.448 of 28 June 2017 responded to the needs linked to the internationalisation of trade and the diversity of Monaco's residents, by codifying the rules of Monegasque private international law (jurisdiction of Monegasque courts and applicable law in matters of status and capacity of natural persons, marriage, filiation and adoption, maintenance obligations, successions, contractual and non-contractual obligations). The provisions of the Code of Private International Law apply without prejudice to Monaco's international commitments in this area.
The Principality is party to the following eight Hague Conventions:
- Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents
- Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
- Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
- Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
- Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition
- Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption
- Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
- Convention of 13 January 2000 on the International Protection of Adults
Monaco is also party to the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and to the European Convention on Information on Foreign Law.
Special rules are applicable with France. The Convention of 21 September 1949 on mutual legal assistance provides for simplified procedures for the enforcement of judgments and arbitration awards in civil and commercial matters, and admits as evidence, without legalisation, copies of civil status and judicial documents, affidavits, notarial deeds, and life certificates for life annuitants (simplified rules for proving their authenticity).
European Union law
Although the Principality of Monaco is not a member of the European Union, some of its rules apply, which requires great vigilance in practice.
Due to the Franco-Monegasque agreements, Monaco is considered as French territory for customs purposes and is therefore part of the customs territory of the Union (Customs Convention of 18 May 1963 between the Government of the Principality of Monaco and the Government of the French Republic, Regulation (EU) No 952/2013 laying down the Union Customs Code), for VAT, transactions originating from or destined for Monaco are treated as transactions originating from or destined for France (Franco-Monegasque Tax Convention of 18 May 1963, Directive 2006/112/EC of 28 November 2006 on the common system of value added tax), as for excise duties, movements of products subject to excise duty from or to Monaco are treated as movements from or to France (Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty), with the rules of the European Union applying.
Under the Monetary Agreement of 29 November 2011 between Monaco and the European Union, the European Union acts listed in its Annex A (Legislation applicable to the activity and supervision of credit institutions and to the prevention of systemic risks in payment and securities settlement systems) are applicable in the Principality as soon as they are included in French law. Furthermore, the Principality implements legal provisions equivalent to those of the European Union acts which appear in Annex B of the Agreement in terms of prevention of money laundering, fraud and counterfeiting in accordance with international standards (FATF, MONEYVAL),
Furthermore, the Principality implements measures to freeze funds and economic resources and measures of economic restrictions adopted by the European Union.
Community acts in the fields of medicinal products for human and veterinary use, cosmetic products and medical devices also apply to Monaco by virtue of the Agreement of 4 December 2003 with the European Community.
Finally, some EU acts may be applicable because of their extraterritorial scope, such as Regulation (EU) 650/2012 on international successions, and Regulation (EU) 2016/79 on the protection of personal data (GDPR).
International environmental law
In accordance with the tradition of environmental protection desired by the Sovereign Princes, Monaco is party to numerous international conventions in this field, including:
- United Nations Framework Convention on Climate Change (UNFCCC) of 9 May 1992 and the Kyoto Protocol, replaced by the Paris Agreement of 22 April 2016 for the post-2020 period;
- Convention on Wetlands of International Importance especially as Waterfowl Habitat of 2 February 1971 (Ramsar Convention);
- Convention on International Trade in Endangered Species of Wild Fauna and Flora of 3 March 1973 (CITES), ;
- Bonn Convention on the Conservation of Migratory Species of Wild Animals of 23 June 1979 (CMS);
- Convention on the Conservation of European Wildlife and Natural Habitats of 19 September 1979 (Bern Convention);
- Rio Convention on Biological Diversity of 29 December 1993 (CBD).
The Environmental Code, created by Law No. 1.456 of 12 December 2017, recognises the fundamental general principles of environmental law that result from European and international instruments (right to live in a healthy, balanced environment that respects health and biodiversity, prevention principle, precautionary principle, principle of correction at source, polluter-pays principle, principle of integration in public policies).
Its purpose is to "contribute to the sustainable management of the environment and its protection against all forms of pollution or degradation, to the fight against climate change, to the energy transition, to the preservation of human health and biological diversity, to the safeguarding and enhancement of natural environments and resources, as well as to the maintenance and improvement of living conditions and the living environment of present and future generations" (Article L.100-1).
Monaco is committed to reducing its greenhouse gas emissions compared to 1990, by 55% by 2030 (intermediate) and 80% by 2050 (carbon neutrality).
International sport law
Sport is an economic sector in its own right in Monaco. Numerous international sporting events take place here (Formula 1 and Formula E Grand Prix, Monte Carlo Rally, Herculis International Athletics Meeting and Mare Nostrum Swimming Meeting, Rolex Monte-Carlo Masters, Monte-Carlo International Jumping, UEFA Super Cup, etc.).
The Principality is heavily involved in the fight against doping and has signed the Copenhagen Declaration (2003), ratified the Council of Europe Anti-Doping Convention of 16 November 1989 (Sovereign Order No. 16.234 of 27 February 2004), the UNESCO International Convention against Doping in Sport (Sovereign Order No. 959 of 7 February 2007), and applies the World Anti-Doping Code.
Arbitration by the Court of Arbitration for Sport (CAS) is recognised under Monegasque law.
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Property and construction law
The law firm 99 Avocats can assist in every step of a real estate project, throughout the construction operations and during the different phases of the life of a property, in particular:
- Project design and financing
- Implementation of contracts for the completion of the building
- Assistance regarding the treatment of difficulties encountered during construction
- Counselling and settlement of disputes relating to condominium
- Counselling and settlement of disputes relating to leases, including the special status of leases for office use and commercial leases
- Follow-up of judicial expertise
- Liability claims before the judicial and administrative courts
- Construction litigation
Monegasque property and construction law
The real estate sector holds an important place in the Principality and there is a great demand for property. The attractiveness of Monaco and its limited area are two important factors that define the characteristics of the sector.
There are many transactions and a constant stream of new construction projects, including the extension at sea (urbanization project of 6 hectares), in progress.
These projects, due to Monaco’s size and the geological constraints can be very technical. In this framework, a good knowledge of the regulatory constraints and geotechnical issues is essential.
The requirements of the Environmental Code created by Law No. 1.456 of 12 December 2017 must not be neglected (town planning permission, energy performance of buildings…).
In addition, Law No. 1.446 of 12 June 2017 on the preservation of the national heritage has amended the Ordinance-Law No. 674 of 3 November 1959 on town planning, construction and roadways. In the event of demolition of remarkable built-up elements and alteration of remarkable landscape elements (insalubrity, serious disorder or disaster, development operation in the perimeter of which the building appears), the owner may be forced to rebuild.
It is planned to regulate the profession of property trader independently (parliamentary bill No. 252 adopted on 10 May 2021, pending transformation into a government bill).
With regard to the rental sector, contrary to France, fewer laws are applicable. This allows, in principle, a significant contractual freedom for the assets of the so-called « free sector ».
By contrast, owners of properties in the protected sector must bear some legal constraints. Flats in buildings constructed before 1 September 1947 are governed by law No. 1.235 of 28 December 2000 (modified by law No.1.291 of December 21, 2004) and therefore, the contractual freedom of their owners is significantly diminished.
The latter has recently been reformed by Law No. 1.508 of 2 August 2021 on the preservation and reconstruction of residential premises (priority rankings, partial allocation of premises for professional or commercial activity now possible, procedure for rehousing of the evicted tenant following the complete demolition of the residential premises, legal mechanisms to ensure the preservation and reconstruction of flats in the protected sector), as well as by Law No. 1. 507 of 5 July 2021 on the creation of the rent compensation allowance (compensation for owners for the effects of the rent control regime in order to obtain a fairer income).
In addition, Law no. 1.490 of 23 June 2020 revised the regime for the domiciliation of a professional activity in a residential premises owned by the State.
The lease for office created by Law No. 1.433 of 8 November 2016, which concerns the leasing of premises for the exercise of an intellectual and administrative activity, is a specificity of Monaco. Its regime is autonomous compared to other Monegasque leases (commercial, industrial or artisanal lease, rental lease).
Insurance law
99 Avocats intervenes to preserve the interests of insurance companies, businesses, and individuals, in particular:
• Assistance in obtaining authorizations and carrying out insurance activities in Monaco
• Professional indemnity
• Accidents at work
• Bodily injury
• Traffic accidents
• Assistance for expertise
Monegasque insurance law
The Monegasque insurance law is mainly governed by : Law No. 129 of 22 January 1930 on the duration of insurance contracts; Law No. 609 of 11 April 1956 codifying the legislation on taxes due by insurance companies; Implementing Ordinance No. 3.041 of 19 August 1963 giving effect in Monaco to the Convention signed in Paris on 18 May 1963 on the regulation of insurance; Implementing Ordinance No. 4.178 of 12 December 1968 instituting State supervision on insurance undertakings of all types and on capitalization undertakings, and organizing the insurance industry.
The law of the Principality shares a common basis with the French law. It presents however some fundamental differences.
Collected taxes on insurance contracts, guarantees, contract arrangements of work-related risks, rates on additional health contracts are inter alia governed by national specificities.
As Monaco is not a member of the European Union, the free provision of services does not apply.
In this particular framework, a good knowledge of this case law and our experience in litigation enable us to support our clients in the most efficient ways when such issues arise.
A reform has recently been proposed regarding the right to be forgotten in relation to bank loan insurance (Bill No. 251 submitted to the National Council on 10 May 2021).
Commercial law
The law firm 99 Avocats assists entrepreneurs and companies in their business activities, in particular:
- Negotiating and drafting of commercial agreements (sales contracts, service provision contracts…)
- Drafting of standard contract (general conditions)
- Assistance in international trade operations (negotiating and drafting of international contracts, cross-border transactions security)
- E-commerce contracts (distance sales contracts, web site development agreement, domain name convention…)
- Assistance during mediation sessions
- Judicial and arbitral litigation
Monegasque commercial law
The Commercial Code of 5 November 1867 is mainly inspired by French law with some important differences, especially with regard to legal liquidation, commercial pledge, pledge of money and pledge securities.
Some disciplines, interrelated with commercial law that arose in European countries pursuant to the Community law did not develop in Monaco since Community law does not apply. For example, there are no specific competition law regulations.
However, this statement must be tempered since, by means of treaties entered by Monaco, Community law may be de facto applicable in the Principality.
Therefore, caution is required when drafting a contract.
The apprehension of electronic commerce by Monegasque law is relatively recent. The Law No. 1.383 of 1 August 2011 has reinforced the growth of the digital economy sector in the Principality.
Law No. 1.482 of 17 December 2019 reformed Law n° 1.383 for a Digital Principality, with in particular new provisions applicable to online service platforms (search engines, price comparators, marketplaces, classified ad sites, social networks…).
It has also transposed the “paper” contractual formalities into the Civil Code to the electronic context (provision of contractual stipulations or information on goods or services, transmission of information requested for the conclusion of the contract or addressed during its execution, delivery of an electronic writing).
The Law No. 1.426 of 4 July 2016 specifically governs the electronic commerce of medicines.
The Law No. 1.448 of 28 June 2017 on Private International Law governs jurisdiction, the recognition and enforcement of decisions in commercial matters, and the law applicable to contractual obligations. The solutions are based, in part, on the European regulations Brussels I and Rome I, as well as proposals from the European Group of Private International Law (EGPIL).
Civil law
The law firm 99 Avocats intervenes in all areas coming under civil law and private international law:
- Assets and ownership
- Contract law and civil liability
- Inheritance
- Assistance in trusts matters
- Recognition and enforcement of foreign legal acts and judgments
Monegasque civil law
The Civil Code of 21 December 1880 presents some provisions similar to the French Napoleonic Code and shares some of its fundamentals. If the Monegasque civil law was mainly inspired by French law, it presents however some differences.
These differences are even more significant since the adoption in France of the Ordinance No. 2016-131 of 10 February 2016 on the reform of contract law, the general regime and the proof of obligations.
Among the specificities of Monaco, it may be noted that the general rules of the Civil Code apply to relations between professionals and consumers in the absence of the Monegasque Consumer Code.
Only Title II of Law n° 1.383 of 2 August 2011 for a Digital Principality, as amended by Law n° 1.482 of 17 December 2019, provides specific guarantees in the context of e-commerce for distance contracts. Consumer contracts are also covered by Law No. 1.448 of 28 June 2017 on Private International Law, which protects the consumer against the application of a law that would be less protective than that of her/his State of residence.
It should be noted that the aforementioned Law No. 1.482 also amended the provisions of the Civil Code on (digital) contract and evidence, in particular with the transposition of “paper” contractual formalities to the electronic context, the modification of the conditions relating to the requirement of a plurality of originals, the facilitation of electronic archiving, and the overhaul of the evidentiary regime of copying.
The preponderance of foreigners in Monaco raises many private international law issues in the context of civil disputes.
The Law n° 1.448 of 28 June 2017 meets the needs of the 139 nationalities within the territory of the Principality, codifying the rules of the Monegasque private international law (jurisdiction of Monegasque Courts and law applicable to the status and capacity of natural persons, marriage, filiation and adoption, maintenance obligations, inheritance, contractual and non-contractual obligations).
The Principality of Monaco is also party to eight Hague conventions on private international law. It has recently ratified the Hague Convention of 13 January 2000 on the International Protection of Adults.
With regard to family law, Law No. 1.440 of 5 December 2016 amended certain provisions of the Civil Code relating to the family name (devolution of the mother’s name, ‘name of use’), and Law No. 1.450 of 4 July 2017 has introduced the alternating residence and recast the provisions relating to family mediation.
In addition, Law No. 1.481 of 17 December 2019 introduced into the Civil Code the civil solidarity contracts (CCS) [contrats civils de solidarité], namely the common life contract (CVC) [contrat de vie commune], which recognises free union in the Principality, and the cohabitation contract (CDC) [contrat de cohabitation], which can be concluded between two members of the same family and living under the same roof.
Law No. 1.494 of 8 July 2020 created the offence of fraudulent organisation or aggravation of insolvency, which punishes fraud resulting from various acts of impoverishment carried out by the debtor in order to claim insolvency and thus prevent the recovery of the debt from his assets. The offence covers convictions handed down by the civil courts in matters of tort, quasi-delict or maintenance. By extension, judicial decisions and legally approved agreements imposing an obligation to pay benefits, subsidies or contributions to the expenses of the marriage are treated in the same way as orders for the payment of maintenance.
The law of the Principality has a remarkable characteristic in terms of trusts. The validity and the effects of a trust on Monegasque territory were recognized by Law No. 214 of February 27th, 1936, amending the Law No. 207 of July 12th, 1935, on Trusts.
The Monegasque Code of Civil Procedure has also evolved in recent years. The Law No. 1.401 of 5 December 2013 reformed the civil limitation periods.The Law No. 1.423 of 2 December 2015 made a major overhaul of the procedural nullities due to defects of form and substantive irregularity. It also put an end to the automatic nature of civil fines. Law No 1.511 of 2 December 2021 finally brought about a far-reaching reform of civil procedure, updating and introducing major innovations to the organisation and operation of civil proceedings, based on Monegasque judicial practice, and in some cases inspired by French civil procedure.
It should be noted that Law No. 1.421 of 1 December 2015 on various measures on State responsibility and remedies has introduced a procedure for the reopening of civil proceedings in the event of a decision of the EHCR finding a violation to the European Convention on Human Rights or its additional protocols.
Family law
The firm 99 99 Avocats intervenes in all issues relating to family law and private international law:
- Personal status (civil status, filiation, guardianship, adoption)
- Matrimonial regimes
- Divorce and situation of children (parental authority, residence, rights of access, alimony, maintenance contribution, international abduction)
Monegasque family law
The preponderance of foreigners in the Principality of Monaco has an impact on family law litigation, which is frequently of an international nature.
The Principality of Monaco is party to eight Hague conventions of private international law. It has recently ratified the Hague Convention of 13 January 2000 on the International Protection of Adults.
Monaco’s accession to the Council of Europe on 5 October 2004 led to changes in family law, influenced by the case law of the European Court of Human Rights.
Among the latest reforms, Law No. 1.440 of 5 December 2016 amended certain provisions of the Civil Code relating to the family name (devolution of the mother’s name, “name of use”).
Law No. 1.450 of 4 July 2017 introduced the possibility of alternating residence for the child in case of separation or divorce, and recasted the provisions relating to family mediation.
Law No. 1.448 of 28 June 2017 responds to the needs related to the internationalization of exchanges and to the diversity of the 139 nationalities on the territory of the Principality. It has created the Code of international private law (international competence of the Monegasque courts, applicable law to the status and legal capacity of natural persons, marriage, parentage and adoption, maintenance obligations).
The provisions of the IPL Code relating to adoption have been clarified by Law No. 1.470 of 17 June 2019 (conditions for consent and procedure for the forced execution of a foreign adoption decision). In parallel wih this, it substantially recast the internal rules for simple and full adoption.
Finally, Law No. 1.474 of 2 July 2019 introduced new measures for the protection of vulnerable adults (guardianship by Court Order and mandate for future protection) and expressly affirmed the fundamental principles in this field, in the wake of Recommendation No. R(99) of the Committee of Ministers to Member States of the Council of Europe on Principles concerning the legal protection of incapable adults.
It should be noted that Law n° 1.481 of 17 December 2019 introduced into the Civil Code the civil solidarity contracts (CCS) [contrats civils de solidarité], namely the common life contract (CVC) [contrat de vie commune], which recognises free union in the Principality, and the cohabitation contract (CDC) [contrat de cohabitation], which can be concluded between two members of the same family and living under the same roof.
Moreover, Law No. 1.494 of 8 July 2020 created the offence of fraudulent organisation or aggravation of insolvency, which punishes fraud resulting from the various acts of impoverishment carried out by the debtor in order to claim insolvency and thus prevent the recovery of the debt on his assets. This offence covers convictions handed down by the civil courts in matters of maintenance, court decisions and judicially approved agreements imposing an obligation to pay benefits, subsidies or contributions to the costs of the marriage.
A wide-ranging reform of civil procedure was carried out by Law No 1.511 of 2 December 2021, which updated and introduced major innovations to the organisation and operation of civil proceedings, based on Monegasque judicial practice, and in some cases inspired by French civil procedure. With regard to family law in particular, the practice of emergency placement of a minor by the public prosecutor’s office has been codified.
Finally, it may be noted that Law No 1.512 of 3 December 2021 extended from 10 to 20 years the time limit for acquiring Monegasque nationality for a foreign national who marries a Monegasque national. This new 20-year period applies to persons married as from 1 July 2022.
Labour law
The law firm 99 Avocats advises and represents mainly companies and their managers, notably:
- Social impact of restructuring
- Staff representation
- Responsibility of the company director and delegation of authority
- Health and safety conditions at the workplace
- Hiring formalities
- Complex employment contracts
- Mobility, secondment
- Daily advice to companies for the application of labor law
- Accidents at work and compensation
- Implementation of teleworking
- Social litigation
Monegasque labour law
Labour law in Monaco is mainly governed by Law No.729 on employment contract of 16 March 1963, Law No.739 on salary of 16 March 1963, Law No.845 of 27 June 1968 on dismissal or layoff compensation, Ordinance-Law No.677 of December 2, 1959 on working time, Law No.629 of 17July 1957 on hiring and dismissal conditions, national collective employment agreements.
The Law No.1.429 of 4 July 2016 has modernised the Monegasque Labour Law, by introducing the teleworking. It will be shortly applicable to nearly 83 % of employees in the Monegasque private sector (teleworking from Monaco, France or Italy).
It should be noted that the concerted organisation of working time was recently introduced into Ordinance-Law No. 677 of 2 December 1959 on working hours (by Law No. 1.505 of 24 June 2021).
The Law No. 1.451 of 4 July 2017 has globally reformed the occupational health (Law No. 637 of 11 January 1958 relating to the creation and organization of the occupational health, Law No. 1.348 of 25 June 2008 on the reclassification of employees declared unable to work), in order to adapt it to the new realities of the prevention of occupational risks and the protection of the health of workers (“Office de la médecine du travail”, examination and medical follow-up, medical incapacity).
The Law No. 1.457 of 12 December 2017 expressly prohibited harassment, sexual blackmail and workplace violence in the private and public sectors, subject to disciplinary, civil and criminal penalties. The employer must prevent the occurrence of these behaviours and put an end to them.
The Law No. 1.410 of 2 December 2014 governs the status of disabled workers in accordance with the provisions of the United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006.
Recently, Law No. 1.471 of 2 July 2019 opened the possibility for retail stores to derogate from the principle of Sunday rest within the limit of 30 Sundays per year and per employee. The objective is to make the Principality more attractive and to enable the retail stores to face regional competition.
It should be noted that since Law No. 1.482 of 17 December 2019 for a Digital Principality and its application texts, the dematerialisation of pay slips is possible, unless the employee objects.
Moreover, Law No 1.481 of 17 December 2019 on civil solidarity contracts (CCS) [contrats civils de solidarité], which introduced the common life contract (CVC) [contrat de vie commune] and the cohabitation contract (CDC) [contrat de cohabitation] into Monegasque law, has implications in terms of employment and work (eligibility for the status of staff delegate, order of priority in hiring, exceptional absences, etc.).
In some ways, labour law in Monaco is very specific and is less regulated that in France. Employment contracts are mainly ruled by ordinary laws that applies to any contract, but also by some specific provisions arising out of Law No.729 on employment contract of 16 March 1963. Work permit requirements and the hiring priority system are other important characteristics that apply to Monegasque employment contracts.
Overall, Monegasque labour law, compared to French law, offers more possibilities for contractual negotiations. Given the limited number of texts applicable in the discipline, case law holds an important place.
Contrary to France, the labour court is not equally represented: it is composed of two employees, two employers and a professional judge.
Labour litigations, as any other Monegasque litigations, face private international law matters since labour contracts often includes foreign elements. Before moving to teleworking, it is essential to become better acquainted with the new legal environment.
Law No. 1.448 of 28 June 2017 on private international law determines the jurisdiction of the Monegasque courts for individual labour contracts, and the law applicable to them in the absence of choice made by the parties.
Intellectual property law
The law firm 99 Avocats intervenes in the protection of creations and innovations, depending upon the professional profile, notably:
- Counselling, negotiation and drafting of contracts (confidentiality agreement, research and development contract, license agreement, transfer of intangible assets, exploitation of drawings, models or patents …)
- Strategy consulting (availability study, breach monitoring, protection strategy, filing strategy, protection of digital assets: domain names, identifiers on social networks)
- Managing of IP portfolio (application for trademarks, drawings, models, domain names…)
- Managing of online identity and reputation breaches
- Trademarks, designs and models proceedings (counterfeiting)
- Domain names proceedings (conflicts between domain names, between domain names and trademarks)
- Tort actions
Monegasque IP
Monegasque intellectual property law is governed by four main laws : Law No.1058 of 10 June 1983 on Trademarks and Service marks; Law No.606 and No.607 of 20 June 1955 on patents, and on Designs and Models; Law No.491 of 24 November 1948 on the Protection of Literary and Artistic Property.
The main intellectual property treaties are applicable, as Monaco entered most of the Agreements in the discipline. Monegasque intellectual property law is therefore developing according to international standards.
With regard to domain names, the Network Internet Centre of the Electronic Communications Division of Monaco is the registration and management office for the “.mc” naming area.
Law No. 1.482 of 17 December 2019 amending Law No. 1.383 of 2 August 2011 for a Digital Principality, created a tax relating to the allocation or renewal of a “.mc” domain name.
The Principality has recently concluded a working agreement with the European Patent Organization (EPO) to ensure the legal value of the invention. With the filing of a national patent application, it makes it possible to require the establishment by the European Patent Office of a search report on the state of the art and of a written opinion on patentability (Sovereign Ordinance No. 6.409 of 2 June 2017).
Sovereign Ordinance No. 6.337 and Ministerial Order No. 2017-217 of 5 April 2017 have updated the national regulation on patents.
Sovereign Ordinance No. 6.874 of 29 March 2018 harmonized procedures in the three areas of industrial property: patents; designs and models; trademarks.
A major reform in the field of intellectual property is underway. On the one hand, Bill No. 1044, tabled on 14 September 2021, aims to overhaul the system and the amount of droit de suite in order to establish conditions in Monaco equivalent to those governing other European art markets. On the other hand, Bill No. 1045 on the recognition and regime of the ownership of intellectual works (104 articles), also tabled on 14 September 2021, would replace Law n° 491 of 24 November 1948 on the protection of literary and artistic works, amended. The proposed provisions are inspired by the relevant EU legislation.
IT and communication law
99 Avocats advises and assists actors and users of new information and communication technologies, in particular:
- Legal security of e-commerce transactions
- Legal security of the use of communication tools at work, including teleworking
- Liability of service providers
- Relations with the Economic Development Department (Direction de l’Expansion Economique – DEE) to manage electronic signature and electronic seal certificates (registration, checking the file and the identity of the holder, renewal and revocation)
- Offences via electronic communication networks (digital identity theft, defamation and damage to e-reputation, fraud, computer crimes, …)
Monegasque IT law
The information technology law (IT law) is a growing field in the Principality of Monaco.
It is a hybrid law at the crossroads of a multitude of more traditional rights.
With regard to e-commerce, online service platforms (search engines, price comparators, marketplaces, classified ad sites, social networks), providers of online advice from consumers, technical service providers (trust services, hosting, cryptology, etc.), particular reference should be made to Law No. 1.383 of 2 August 2011 for a Digital Principality, amended by Law No. 1.482 of 17 December 2019.
It should be noted that the Economic Development Department (DEE) offers an electronic signature and electronic seal trust service for Monegasque companies registered with the RCI (presumption of reliability on Monegasque territory).
Furthermore, Blockchain technology has been legally recognised in the Principality of Monaco since the aforementioned Law No. 1.482. Indeed, it defines the notion of “digital recording device on a shared register” (dispositif d’enregistrement numérique sur un registre partagé) , which covers the essential features of Blockchain technology, while being broader and neutral, which has the advantage of not limiting the application of dematerialisation to this technology alone in the future.
In its extension, Law No. 1.491 of 23 June 2020 relating to « offres de jetons » (Security Token Offering – STO, and Initial Coin Offering – ICO) introduced into Monegasque law a legal framework for fundraising carried out using a digital recording device on a shared register, such as the Blockchain. In parallel, Law No. 1.528 of 7 July 2022 regulates the activities of service providers on digital assets or crypto-assets, and has introduced into Monegasque law the notions of "metaverse" and "avatar".
In addition, In May 2021, the Bill No. 1039 was tabled in Parliament, which envisages the use of a digital registration device on a shared registry (covering the main features of Blockchain technology) by joint stock companies and limited liability companies.
Finally, In criminal matters, the Law No. 1.435 against technological crime transposed the provisions of the Council of Europe Convention on Cybercrime of 23 November 2001.
Related publications
Personal data
99 Avocats acts in all issues related to the protection of personal data, at all stages and whatever your sector of activity, among others:
- Compliance with Monegasque and European regulations on the protection of personal data;
- Preparation of files and administrative formalities (declarations, request for authorisation to transfer data....), with the Commission de Contrôle des Informations Nominatives (CCIN);
- Mandatory information (contracts, website);
- Data retention policy;
- Complaints.
Specificities of the Monegasque law on personal data protection:
Monaco signed on 10 October 2018 the Amending Protocol to Convention 108 of the Council of Europe for the protection of individuals with regard to automated processing of personal data and its Additional Protocol on Supervisory Authorities and Transborder Flows of Personal Data.
At the national level, Law No. 1.165 of 23 December 1993 consolidated (by the Law of 1 December 2015) transcribes the international obligations of Monaco and governs the protection of personal data. It should be noted that a major overhaul of the personal data legislation is underway, with the draft law No. 1054 (received by the parliament on 20 December 2021). The Principality aims to ensure a level of protection substantially equivalent to that of the European Union and to obtain an adequacy decision from the European Commission so that transfers of personal data from the EU (and Norway, Liechtenstein, Iceland - members of the European Economic Area - EEA) to Monaco can take place without any specific framework (transfers to Monaco would be treated as intra-EU transfers).
Furthermore, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR) is applicable to companies that are established in Monaco that offer goods or services to persons located in the European Union or that track their behaviour.
Given the extraterritorial scope of the European Union rules, a certain vigilance is required in order to comply not only with national but also with European regulations on personal data.
In addition to this general legislation, specific regimes are also applicable.
For example, in tax matters, Law No. 1.444 of 19 December 2016 imposes additional obligations on Monegasque Financial Institutions relating to personal data transmitted in the context of the automatic exchange of information on financial accounts.
Similarly, in the health sector, a special regime applies, justified by the sensitive nature of medical data, consisting of Law No. 1.454 of 30 October 2017 relating to consent and information in medical matters, and its implementing Order No. 6.903 of 27 April 2018, as well as Sovereign Order No.° 8.357 of 5 November 2020 relating to personal health data produced or received by health professionals and establishments, and its implementing Ministerial Order No. 2020-764 of 5 November 2020.
Yachting and maritime law
The law firm 99 Avocats provides legal advice and acts in litigation before ordinary courts and in arbitration proceedings, in particular:
- Financing of yachts
- Negotiation, drafting of construction contracts, contracts for the acquisition and sale of yachts
- Transactions and litigation related to the occupation of the public maritime domain
- Maritime debt recovery (preventive seizure, seizure of ships)
- Litigation related to the construction or renovation of ships (defects, hidden defects, faulty workmanship, non-conformity)
- Disputes involving ship-owner and seamen/ship captain
- International arbitration in the course of disputes involving cruise companies and crew members
Yachting and maritime law in Monaco
For several years, Monaco has become an important place in the yachting industry.
Yachting is the fourth industry in the Principality in terms of sales revenue.
Yachting has been favoured in this privileged town thanks to the constant expansion of the port areas and investment in yachting-dedicated new structures.
To manage the requirements in terms of port capacities, the Principality has invested in a 6-hectare project of reclaiming land from the sea that includes a port, and in Italy with the takeover of the concession of the future marina of Ventimiglia.
The Monegasque Code of the Sea, created by the Law No. 1.198 of 27 March 1998, governs in particular the Monegasque maritime areas and the protection of the marine environment, the status of ships (naturalization, responsibility of the owners, maritime mortgage, privileges, seizure … ), marine insurance contracts, contracts of engagement, offenses committed by crew members.
The Environmental Code, resulting from Law No. 1.456 of 12 December 2017, shall apply without prejudice to the provisions of the Code of the Sea.
Public law
The law firm 99 Avocats advises natural and legal persons in the framework of their relationships with the Monegasque administration, and acts in the context of administrative and constitutional remedies:
- Establishment in the Principality
- Administrative authorisations necessary for business activity
- Transactions and litigation related to the occupation of the public domain
- Disputes concerning the public authority liability (award and performance of public contracts, malfunctioning of a public service…)
- Preliminary administrative complaints
- Action for validity assessment and annulment of a harmful administrative act on grounds of ultra vires
- Compensatory remedies
- Action for annulment of a law
Monegasque public law
The Constitution of 17 December 1962 states that the Principality of Monaco is subject to the rule of law and is committed to the respect of fundamental rights and freedoms. The Principality also recognizes the principle of the hierarchy of norms. In this framework, some rules apply to the State itself.
The Supreme Court protects the fundamental rights and freedoms arising out of the Constitution and is deemed to be the oldest constitutional court in the world.
The Supreme Court also controls the administrative acts (validity assessment, annulment on grounds of ultra vires).
The Court of First Instance ruling on administrative matters has jurisdiction with respect to contractual and non-contractual liability of the public authority.
Law No. 1.421 of 1 December 2015 on various measures relating to State responsibility and remedies enshrined the public authorities’ liability in case of a dysfunction of the justice system by opening to the litigants a new way of national remedy against the State.
It also introduced a procedure for the reopening of civil proceedings in the event of a decision of the EHCR finding a violation to the European Convention on Human Rights or its additional protocols.
Sovereign Ordinance No. 7.264 of 20 December 2018 modernized the state procurement regulations (public supply, services and works contracts).
Lastly, the recent publication of the regulatory texts for the application of the Environmental Code (air quality, waste management and reduction at source, aid for the production of photovoltaic electricity) should be noted. This has resulted in new administrative obligations for businesses.
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Family Office
With our knowledge of business and private wealth, we assist our clients in the organisation, management and transfer of their assets, both nationally and internationally, in particular:
- Organisation of professional or personal assets in the context of the search for legal security or tax optimisation;
- Transfer of companies;
- Inheritance planning using all appropriate legal tools (in particular companies, donations, trusts, future protection mandates, etc.) and including private international law matters;
- Assistance to individuals in all administrative procedures required for their settlement in the Principality of Monaco:
Applications for residence permits;
Our services for residence permit applications
We assist our clients with the necessary administrative procedures at all stages:
- Obtaining the required settlement visa
- Collecting all the required documents
- Completing the application form
- Preparing for the preliminary interview
- Renewing the residence permit at its expiry date.
We also accompany the applicant - whose presence is mandatory - to the interview with the inspectors of the Residents' Section of the Direction de la Sûreté Publique (Public Safety).
Our firm can also take care of coordinating the procedures inherent in settling in the Principality, such as renting or purchasing accommodation, concluding various contracts (electricity, water), enrolling minor children in school, hiring domestic staff, etc.
We ensure the follow-up after the requests by acting as a link between the administration and the client, in particular by transmitting any additional information that may be required.
Our services for setting up companies in Monaco
Our aim is to offer our clients a “tailor-made” service, allowing them to concentrate their efforts on the commercial aspects of their project's development.
Whatever the planned activity, we assist and advise our clients during the different stages of the creation of the legal entity:
- Choosing the legal form
- Drafting the statutes
- Defining the corporate purpose
- Drafting the legal documentation
- Gathering the documents required for the examination of the authorisation request by the Direction de l’Expansion Economique and, if necessary, by any other relevant authority.
We also carry out all the "post-authorisation" procedures required by law:
- Registration with the Répertoire du Commerce et de l’Industrie (RCI - Trade and Industry Register)
- Publication formalities
- Declaration of the activity to the Direction des Services Fiscaux (Tax Services)
- Membership of social organisations, etc.
If necessary, we collaborate with the various professionals in the marketplace to find a registered office and open a bank account.
For activities that are not commercial in nature, it should be noted that the creation of a non-trading company under Monegasque law does not require prior authorisation. The formalities for setting up are therefore simplified.
Here again, we offer our clients "turnkey" solutions for the development of personal projects involving real estate, assets, etc.
Residence permit
Any natural person aged 16 or over who wishes to take up residence in the Principality of Monaco or who wishes to stay there for more than three months a year must apply to the competent authorities for a “Carte de séjour” (residence permit).
As part of the Extended Monaco programme, the Principality has introduced a digital identity with probative value for residents. The digital residence card with an electronic memory, issued by the Directeur de la Sûreté Publique (Public Safety), is both a residence permit and a digital identity that the holder can use on the MConnect Mobile application to carry out online procedures.
A “Certificat de résidence” (residence certificate), which attests to actual residence in the Principality, can be issued to complete a Monegasque administrative formality.
A residence certificate may also be issued to fulfil a tax formality, in particular in the context of the reporting obligations in relation to the automatic exchange of tax information on financial accounts (introduced by Sovereign Order n° 6.208 of 20 December 2016).
The regime applicable to the residence certificate was recently recast by Sovereign Order 8.372 of 26 November 2020.
Creation of a company
With the exception of Monegasque nationals, the exercise of any commercial, craft, industrial or liberal activity in the Principality of Monaco is subject to prior authorisation from H.E. the Minister of State, whether the activity is carried out in a personal capacity or in a company.
Certain activities subject to regulation may also require specific authorisation (banking and financial activities, real estate, legal and accounting activities, etc.).
In order to better meet the expectations of residents and businesses, the Extended Monaco programme has modernised the operation of public services by developing e-government.
In this context, Law no. 1.483 of 17 December 2019 provides for the creation and allocation of a digital identity by the State to legal entities (registered in a public service register), and the possibility for persons in the private sector to create and allocate a digital identity to natural or legal persons.
The Direction de l’Expansion Économique (DEE) offers an electronic signature and electronic seal trust service for Monegasque companies registered in the Répertoire du Commerce et de l’Industrie (RCI) (presumption of reliability on Monegasque territory).
In this context, we can act as a certification agent in order to manage your company's fleet of electronic certificates during their life cycle (registration process including the control of the file and the identity of the holder, renewal and revocation process with the DEE).
Arbitration and mediation
99 AVOCATS assists legal and natural persons in the amicable settlement of disputes:
- Domestic and international arbitration (representation)
- Judicial and contractual mediation (preparation, assistance at meetings, drafting of the protocol)
- We also act as arbitrators.
Arbitration in Monaco
Domestic arbitration in civil and commercial matters is governed by Book III of the Code of Civil Procedure. The arbitrators decide according to the rules of law, or if the agreement gives them this power, decide as amiables compositeurs (rule in equity). The arbitration judgment, which may be appealed, is made enforceable by an order of the President of the Court of First Instance.
The Superior Court of Arbitration is a special jurisdiction instituted by Law No. 473 of 4 March 1948 for the settlement of collective labour disputes which cannot be resolved directly, either amicably or by applying the provisions of collective agreements. It rules on collective labour disputes of a legal nature (disputes relating to the execution of collective agreements, laws, ordinances and decrees on labour) according to the rules of law. It rules in equity on all other collective labour disputes, especially those of an economic nature.
Similarly, the Commercial Rent Arbitration Commission, created by Law No. 490 of 24 November 1948, has, as its name indicates, the specific task of settling disputes between landlords and tenants on the conditions for the renewal and revision of commercial leases.
At international level, Monaco is a party to the Geneva Protocol on Arbitration Clauses of 24 September 1923 (Sovereign Order n° 287 of 17 December 1924), and to the New York Convention on the Recognition and Enforcement of Arbitral Awards of 10 June 1958 (Sovereign Order n° 7.485 of 14 September 1982).
On the basis of the New York Convention, foreign arbitral awards are recognised or enforced on the territory of the Principality of Monaco by an order of the President of the Court of First Instance, a speedy and inexpensive procedure applicable to domestic arbitral awards (in accordance with the Convention's prohibition against subjecting the enforcement of arbitral awards to substantially more stringent conditions and substantially higher legal costs than those imposed for the recognition or enforcement of domestic awards) (CA, 31 January 2019).
The Monegasque judge ensures that any reservations made are respected, that the dispute is arbitrable and that it is not contrary to public policy. Monaco has made a reservation on the basis of reciprocity and a reservation on the basis of the commerciality of disputes. Thus, the New York Convention applies only to the recognition and enforcement of awards made in another Contracting State of the Convention and when the legal relations in question are considered to be of a commercial nature by Monegasque law (CA, 11 March 2021).
Furthermore, the arbitration of the Court of Arbitration for Sport (CAS) is recognised under Monegasque law.
Mediation in Monaco
Monegasque legislation does not contain a general provision on judicial or contractual mediation.
In the last decade, several developments have taken place in this field.
Since the Law n° 1.401 of 5 December 2013, the Civil Code provides that mediation constitutes a cause of suspension of prescription whether or not it has been agreed to by written agreement.
Family mediation was introduced into the Civil Code by Law 1.336 of 12 July 2007 and amended by Law 1.450 of 4 July 2017.
Criminal mediation between the perpetrator and the victim (except in cases of domestic violence) is provided for in the Code of Criminal Procedure since Law n° 1.533 of 9 December 2021.
Institutional mediation is a mission of the High Commission for the Protection of Rights, Freedoms and Mediation, a public and independent entity (ombudsman) created by Sovereign Order n° 4.524 of 30 October 2013.
Arbitration and mediation, which are increasingly sought after by the Principality's economic players, are destined to develop.
Compliance
99 Avocats offers multidisciplinary, global advice (legal and operational) adapted to the needs of its clients, in order to assist them in their compliance plan of action and answer their growing needs arising from the increase in the obligations incumbent upon them:
- Risk mapping ;
- Evaluation of the systems in place;
- Compliance with legal and regulatory obligations (prudential, AML/FT-C vigilance, protection of personal data, workplace health and safety, etc.);
- Internal compliance and compliance with supervisory authorities;
- Establishment and review of internal procedures;
- Prevention of criminal risk;
- Crisis management and remediation plan;
- Legal and regulatory monitoring (Monegasque and European) ;
- Awareness and training for managers and employees,
- Assistance in the event of a SICFFIN inspection ;
- Assistance within the framework of the procedure of the Commission of examination of control reports (Commission D’examen des Rapports de Contrôle)
In addition to our traditional expertise as analysts of offenses or breaches already constituted, we intervene at all stages of compliance:
- upstream, assessment and prevention of the risk of infringement and sanction, training in order to secure the company's assets;
- downstream, demonstration that all preventive measures have been implemented in order to exonerate the company from its liability and to ensure that its reputation is protected.
Specificities of Monegasque law
The duality of the law applicable in banking matters in the Principality of Monaco results in the constraints imposed by the French and Monegasque supervisory authorities.
Indeed, relations between the bank and customers are governed by Monegasque law. On the other hand, the regulatory and prudential organization of banks falls under the French Monetary and Financial Code under the Monetary Agreement of 29 November 2011 between Monaco and the European Union, the acts of the European Union which appear in its Annex A being applicable in the Principality as soon as they are included in French law.
Questions relating to the scope of application of European Union acts to Monegasque credit institutions thus arise on a recurring basis.
Another specificity of Monegasque law is to implement in the fight against money laundering, the financing of terrorism and corruption, legal provisions equivalent to those of the acts of the European Union, such as for example the " anti -laundering package" (Regulation (EU) 2015/847 and Directive (EU) 2015/849 consolidated) aligned with the revised FATF recommendations.
Great vigilance is also required, for example, with regard to the protection of personal data, as Monegasque companies are likely to be subject both to Monegasque legislation and to Regulation (EU) 2016/79 (GDPR) which contains provisions with extraterritorial reach.
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