06
Jul
2023
Legal overview
Banking and financial law
Companies and taxation
International and European law
Property and construction law
Commercial law
Civil law
Labour law
Personal data
Public law
Compliance
2023
Legal overview
Banking and financial law — Companies and taxation — International and European law — Property and construction law — Commercial law — Civil law — Labour law — Personal data — Public law — Compliance
Monthly Legal Overview (June 2023)
99 AVOCATS is pleased to propose a summary of legal news in Monaco in June 2023
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INTERNATIONAL ● EUROPEAN UNION ● PUBLIC ● COMPLIANCE
Ukraine/Russia ● 11th package of EU sanctions (asset freeze and restrictive measures) applicable to Monaco
The European Union's 11th sanctions package, applicable to Monaco, includes measures to freeze funds and economic resources and restrictive measures (sectoral and individual).
These measures are primarily aimed at combating the increasing circumvention of EU sanctions.
On the one hand, pursuant to Implementing Regulation 2023/1216 of 23 June 2023 implementing Regulation (EU) No 269/2014, Ministerial Decision No 2023-52 of 26 June 2023 added 71 persons and 33 entities to the national list for freezing funds and economic resources.
In addition, the criteria for designating natural or legal persons, entities or bodies subject to an assets freeze and a prohibition on making funds and economic resources available to designated persons or entities were amended by Council Regulation (EU) 2023/1089 of 5 June 2023 and Council Regulation 2023/1215 of 23 June 2023.
On the other hand, Council Regulation (EU) 2023/1214 of 23 June 2023 amending Regulation (EU) No 833/2014 has (inter alia) extended the prohibitions/restrictions (financial instruments, intellectual property, items and goods that could strengthen Russian military capabilities, transport of goods by road, access to ports and locks, etc.), and designated 87 entities (Russian or from third countries) directly supporting Russia's military-industrial complex.
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SOCIAL • PUBLIC
Publication of Law no. 1.547 of 22 June 2023 on the donation of leave
Law no. 1.547 of 22 June 2023 on the donation of leave (JDM no. 8649 of 30 June 2023), passed on 15 June 2023, enables a private sector employee to donate one or more days of rest to a colleague who has to cope with a death or another particularly serious family situation. The details of its application will be set out in a Sovereign Order.
At the margin, Law no. 1.547 harmonises the existing arrangements for donating leave applicable to State and Commune civil servants with the new arrangements applicable to private sector employees.
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WEALTH • PUBLIC
Publication of the Ministerial Order setting out the terms and conditions for State compensation for nosocomial infections
Ministerial Order no. 2023-384 of 27 June 2023 (JDM no. 8649 of 30 June 2023) applies article 7 of Law no. 1.541 of 16 December 2022 on nosocomial infections. It sets out :
- the documents to be attached to the application (on pain of inadmissibility), and the deadlines and procedures for submitting the application.
- The procedure to be followed until the decision is taken by the Minister of State, who will make his decision after receiving the opinion of the Commission d'indemnisation des infections nosocomiales (the composition, tasks and operation of which are also defined).
- The criteria and procedures for assessing the amount of compensation that may be awarded by the State, the maximum of which is set at €800,000.
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ENVIRONMENT • ECOLOGICAL TRANSITION • PUBLIC
Grant for ecological vehicles: changes since 26 June 2023
Ministerial Decree no. 2023-348 of 15 June 2023 (JDM no. 8648 of 15 June 2023) replaced, with effect from 26 June 2023, the provisions of the Environment Code concerning "Aid for the purchase of an ecological vehicle" (grant) that had been in force since 1 January 2019.
The new scheme will continue to apply to both electric and hybrid motor vehicles.
However, the eligibility criteria relating to pollution levels and the purchase price of the vehicle have been tightened, and the amount of the grant has been lowered.
The scheme is easier to understand:
- The amount of the grant is set out in greater detail for each type of vehicle (private, light commercial and goods vehicles, two-three wheelers and quadricycles).
- The list of supporting documents to be provided has been included.
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PERSONAL DATA PROTECTION • CCIN • COMPLIANCE
Video surveillance: CCIN authorises cameras filming the interior of lifts in public areas
We would like to draw your attention to the revised position of the Commission de Contrôle des Informations Nominatives (CCIN), which since 17 May 2023 has authorised cameras filming the interior of lifts in premises open to the public "where the aim is to enhance the security of the premises and in particular to prevent the risks of theft and assault".
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PUBLIC • SUPREME COURT •AUTHORISATION TO CARRY ON AN ACTIVITY • NON-REGULATED SECTOR
The Supreme Court clarifies the system for authorising the exercise of an economic activity in the absence of specific regulations (property loan brokerage)
Tribunal Suprême, 23 mai 2023, Monsieur P. D., Monsieur F-X. F., Monsieur J-M. F., Monsieur C. N. et Société L. L. SA c/ État de Monaco, Décisions TS 2022-18 à 22 ● Action for ultra vires • Objection of unconstitutionality
The applicants, who were foreign nationals, brought an action for annulment of the Minister of State's decision rejecting their application for authorisation to carry on as self-employed persons the principal activity of property loan brokerage as well as various ancillary activities. None of the activities covered by the application were linked to a regulated sector in the Principality.
Our article focuses on the reasoning of the Supreme Court, which :
- rejected the plea of unconstitutionality, holding that Law no. 1.144 of 26 July 1991 concerning the exercise of certain economic and legal activities "by leaving the Administration a discretionary power, does not infringe the constitutional principles of equality and legal certainty" ;
- annulled the contested decision, upholding the plea of insufficient reasoning, considering that the Administration "states that no authorisation is issued for this activity in the Principality on the grounds that it is not subject to specific regulations" and in so doing "has misunderstood the scope of the provisions of the Law of 26 July 1991"
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TAXATION • PUBLIC
Increase in State tax revenues ● Vote on Bill 1048
Bill 1048 containing various tax provisions was passed on 29 June 2023.
With effect from 1 October 2023, the following amounts will be increased:
- a fixed registration fee of €50 (the same for all the deeds concerned). For deeds relating to increases in the share capital of commercial companies, this fixed duty replaces the 1% registration duty and the 0.50% stamp duty.
- proportional duties (in particular on transfers of property and real estate rights) depending on the transparency (4.75%) or opacity (10%) of the entity.
In addition, from the same date, real estate transactions subject to VAT will only benefit from a 50% exemption from the applicable registration duties, rather than a total exemption (still subject to conditions).
Finally, from 1st January 2024, a tourist contribution will be applicable to those aged 18 and over, not resident in the Principality and staying in a hotel or hotel residence in the Principality.
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INTERNATIONAL • MONEYVAL • COMPLIANCE
Fight against money laundering, financing of terrorism and the proliferation of weapons of mass destruction ● Vote on Bill 1077 (Part I)
Bill 1077 (Part I) adapting legislative provisions to combat money laundering, the financing of terrorism and the proliferation of weapons of mass destruction was passed on 29 June 2023.
It implements the recommendations of the MONEYVAL Committee arising from Monaco's 5th Mutual Evaluation Report in this area.
The new provisions will come into force on the date set by the implementing regulations, but no later than 30 September 2023.
SICCFIN will be replaced by the Autorité monégasque de sécurité financière (Monegasque Financial Security Authority), which will have the power to impose sanctions on those subject to its jurisdiction (including, from now on, notaries and bailiffs), along with a new supervision and sanction mechanism applicable to lawyers.
Penalty procedures have been reviewed, and the amount of financial penalties has been adjusted depending on whether or not they are imposed on financial institutions.
The wording of the criminal penalties incurred by natural persons and legal entities in the event of failure to comply with Law no. 1.362 has also been revised, and their quantum increased.
Another major part of the amendments to Law no. 1.362 concerns the obligations relating to beneficial owners (including the new requirement to appoint a "responsable des informations élémentaires et des informations sur les bénéficiaires effectifs""- person responsible for basic information and information on beneficial owners)). with an extension to foundations, associations and federations of associations.
Other new features include the introduction of a mechanism for ongoing monitoring of the good repute of directors, shareholders and members, and of the beneficial owners of reporting entities.
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EUROPE • FUNDAMENTAL RIGHTS • PUBLIC • BANKING
CEDH ● L’impossibilité d'utiliser des dons déposés sur un compte bancaire sous le prisme du droit à la vie
ECHR, 3rd section, Case Pitsiladi and Vasilellis / Grèce, 6 juin 2023, nos 5049/14 et 5122/14 ● Article 2 • Right to life• Positive obligations of the State
In support of their application to the European Court of Human Rights (ECHR), the applicants argued that the fact that they had been unable to access the money in a bank account resulting from a fundraising campaign and to transfer it to a hospital in the United States so that their son, who was suffering from a serious illness, could undergo treatment there, had led to his death, in breach of the right to life protected by Article 2 of the European Convention on Human Rights.
The ECHR concluded that there had been no violation of Article 2 of the Convention, noting the good faith of the national authorities and the impossibility of establishing a causal link between the authorities' conduct and the child's death.
This case is interesting for several reasons, not least because it illustrates a tendency, including at national level, to mobilise the right to life in non-traditional areas, in this case in support of the action for compensation brought against the bank and its employees.
More information
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COMPANIES • SOLE PROPRIETORSHIP • START-UP • COMMERCIAL
Adoption of parliamentary bills no. 256 and no. 257 creating two new types of commercial company
On 15 June 2023, the Pariament adopted bills no. 256 and no. 257 creating two new types of commercial company, the Société Unipersonnelle à Responsabilité Limitée (SURL) and the Société d'Innovation Monégasque par Actions (SIMA) respectively, which had been tabled on 9 May.
For this to be effective, the Government still needs to transform the proposed law into a governmental bill, which would then be studied by the Parliamentary Committee before being voted on by the Parliament.
The creation of the SURL with a single shareholder (natural person or legal entity) is intended to offer an alternative to the Personal Company, where the entrepreneur's personal assets are not protected from the risks inherent in his business, and to enable foreign companies to set up in Monaco without having to take on partners.
The creation of SIMA with one or more partners (individuals or legal entities) is intended to meet the needs of start-ups and holders of Innovative Projects, to raise funds from investors and to enable them to set up permanently in the Principality, as an extension of the MonacoTech incubator and the "PASS Startup Programme" or for the benefit of foreign companies wishing to set up in Monaco to develop Innovative Projects.
More information
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CIVIL • SECURITIES • COMPARATIVE LAW • COUR OF CASSATION (FRANCE)
Autonomous guarantee ● The principal does not have to prove prior reimbursement of the guarantor in order to take action against the beneficiary for wrongful collection of the amount of the guarantee.
Cour de cassation, Ch. Com., 14 juin 2023, Pourvoi n° 21-23.864 (Publié au Bulletin) ● First demand guarantee
For the first time, the Commercial Chamber of the French Court of Cassation has expressly ruled that "After payment of an autonomous guarantee (or counter-guarantee), the principal is entitled to bring an action against the beneficiary to have the latter held to have unduly received the amount of the guarantee, without having to prove prior reimbursement by the guarantor".
This solution, based on the criterion of payment of the guarantee and not on prior reimbursement of the guarantor, helps to maximise the effect of the autonomous guarantee, a security detached from the principal debt.
This case is worth noting in Monaco, where the autonomous guarantee mechanism was recently enshrined in the Civil Code, modelled on the provisions of the French Civil Code.
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