02
Jun
2023
Legal overview
Companies and taxation
International and European law
Commercial law
Labour law
Public law
Compliance
2023
Legal overview
Companies and taxation — International and European law — Commercial law — Labour law — Public law — Compliance
Monthly Legal Overview (May 2023)
99 Avocats associés proposes a selection of legal news in Monaco in May 2023.
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EUROPEAN • FUNDAMENTAL FREEDOMS • PUBLIC
ECHR ● Monaco : Conclusions of a lawyer, freedom of expression and defamation
Case SARL Gator / Monaco, 11 mai 2023, No. 18287/18
The case brought before the European Court of Human Rights (ECHR) originated in an action for nullity of a contract for the free management of a business in Monaco, concluded between the applicant SARL and a Société Civile Professionnelle (SCP).
The Monaco Court of Appeal had ordered the deletion of a passage in the written submissions of the applicant's lawyer, which was found to be defamatory of the SCP, and this was subsequently upheld by the Court of Revision.
The SARL then applied to the ECHR, claiming that the deletion infringed its right to freedom of expression protected by Article 10 of the European Convention on Human Rights.
The ECHR found that there had been no violation of Article 10 of the Convention, considering that the removal of the disputed comments was not disproportionate to the legitimate aim pursued, namely the protection of the reputation of others.
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INTERNATIONAL • COMPLIANCE
New Bill (Part II) to combat money laundering, the financing of terrorism and of the proliferation of weapons of mass destruction
On 30 May, the Government tabled Bill No. 1078 (Part II) on the Bureau of the Parliament, adapting legislative provisions to combat money laundering, the financing of terrorism and of the proliferation of weapons of mass destruction. It focuses on the transparency of legal entities.
It is the second of four bills aimed at implementing the recommendations of the MONEYVAL Committee arising from Monaco's 5th Mutual Evaluation Report in this area by June 2024. The first Bill n°1077 (Part I) was tabled on 12 April 2023.
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COMPANIES • SOLE TRADER • START-UP • COMMERCIAL
Proposal to create two new types of commercial company for individual entrepreneurs and holders of Innovative Projects
On 9 May, the members of the Parliament tabled draft laws 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.
The creation of the SURL with a sole partner (individual or legal person) would enable individual entrepreneurs to set up on their own, with liability limited to the amount of their contributions (as is the case with the SARL - and the French EURL). The legislator's objectives are, on the one hand, to offer an alternative to the Sole Proprietorship where the entrepreneur's personal assets are not protected from the risks inherent in his business, and on the other hand, to enable foreign companies to set up in Monaco without associating with partners.
The creation of the SIMA with one or more partners (individual or legal person) 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". This legal form could also benefit foreign companies wishing to set up in Monaco to develop Innovative Projects.
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SOCIAL • PUBLIC
Revaluation of the minimum growth wage (S.M.I.C.) and minimum pay for apprentices on 1 May 2023
Circulars No. 2023-4 and No. 2023-5 of 27 April 2023 (JDM No. 8642 of 12 May 2023) list the new S.M.I.C. (salaire minimum interprofessionnel de croissance) rates. For those aged 18 and over, the gross hourly rate has been increased (from €11.27 on 1 January 2023) to €11.52 from 1 May 2023, giving a gross monthly salary of €1,946.88 (compared with €1,904.63 on 1 January 2023) [for 39 hours a week, i.e. 169 hours a month].
Similarly, Circular No. 2023-6 of 27 April 2023 (JDM No. 8642 of 12 May 2023) lists the revalued minimum wage scales for apprentices under an apprenticeship contract, with effect from 1 May 2023.
In accordance with the provisions of article 2 of Ministerial Decree no. 63-131 of 21 May 1963 setting minimum wage rates, minimum wages must be increased by an exceptional allowance of 5% of their amount.
This increase follows that of the neighbouring region. Under article 1 of Ministerial Order no. 63-131, in Monaco, "the minimum amounts of wages, bonuses, allowances of all kinds and supplements other than those provided for by the legislative provisions relating to working hours may not be lower than those which, by virtue of regulations or collective agreements, for identical working conditions, are applied in similar professions, businesses or industries in Nice or, failing that, in the Alpes-Maritimes department".
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SOCIAL • PUBLIC
Reimbursement of employers' social security contributions in the event of recruitment
Circular No. 2023-10 of 12 May 2023 from the Labour Department (JDM No. 8643 of 19 May 2023) reminds Monegasque companies of the conditions for entitlement to reimbursement of employers' social security contributions when recruiting an employee, the period and procedures for reimbursement, and finally the employer's obligations.
The right to reimbursement is reserved for the recruitment of an employee who is either a Monegasque or the child/spouse of a Monegasque, or who lives in Monaco or in the neighbouring french municipalities and has already studied or worked in Monaco.
Furthermore, in all cases the employee must have no family ties and no previous professional relationship with the employer.
The reimbursement period is either one year, or two years if the employee is Monegasque or is the beneficiary of a training course planned at the time of recruitment and financed by the employer and validated by the Labour Office.
The employer's social security contributions are reimbursed in full (up to the ceiling set by the Monegasque Social Security Funds) on a quarterly basis (in arrears).
The employer is obliged to return the sums received (except in the event of dismissal for misconduct) if it terminates the current employment contract of the employee concerned during the reimbursement period or within six months of the last reimbursement, or if it dismisses an employee employed in the same job during the reimbursement period.
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JUSTICE • SOCIAL
New member of the Labour Court (employee representation)
Sovereign Order n° 9.908 of 17 May 2023 (JDM No. 8644 of 26 May 2023) amends Sovereign Order No. 8.923 of 23 November 2021 appointing the members of the Labour Court (employer representation and employee representation) until and including 3rd October 2027.
Ms Marie-Paule GARDY-LAVOGEZ is appointed member of the Labour Court in the capacity of employee representative to replace Mr Michel ALAUX.
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ENVIRONMENT • PUBLIC
Drought: "alert" level measures from 13 May until 31 October 2023
By Ministerial Decision of 11 May 2023 (JDM No. 8642 of 12 May 2023), the Minister of State has placed the territory of Monaco on drought "alert" status from 13 May 2023 until 31 October 2023, in accordance with the new provisions of the Environment Code aimed at guaranteeing the rational use of water resources (new articles O. 322-4-1 to O. 322-4-7 created by Sovereign Order No. 9.896 of 4 May 2023).
The measures set out in Ministerial Order No. 2023-255 of 4 May 2023 relating to the "alert" level drought situation are applicable, namely :
- A 20% reduction in the use of water for industrial, craft and commercial purposes, and during the organisation of events;
- Restrictions on watering, washing of boats and/or pleasure craft, cleaning of pavements and other impermeable surfaces;
- Filling baths/swimming pools/paddling pools/pools, washing vehicles and equipment, cleaning facades and roofs is prohibited (with some exceptions);
- Public and private fountains closed (with some exceptions);
- Postponement of exceptional water-consuming operations (such as fire drills) unless required for public safety reasons.
Also published on the same day were Ministerial Order No. 2023-253 of 4 May 2023 relating to the "reinforced alert" level of drought, and Ministerial Order No. 2023-254 of 4 May 2023 relating to the "crisis" level of drought.
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EUROPE • HIGHER EDUCATION
The Lisbon Convention on the recognition of qualifications concerning higher education enforceable in Monaco
Sovereign Order No. 9.901 of 10 May 2023 (JDM No. 8.643 of 19 May 2023) made the UNESCO and Council of Europe Convention on the Recognition of Qualifications concerning Higher Education in the European Region (known as the "Lisbon Recognition Convention") of 11 April 1997 enforceable in Monaco from 20 May 2023.
The Principality is the 55th State to have acceded to it,
This Convention is the major legal instrument in Europe that promotes the fair recognition of academic qualifications, thereby facilitating the mobility of individuals.
Essentially, it stipulates that:
- applications must be examined fairly and within a reasonable period of time;
- the recognition of a qualification can only be refused if it is substantially different from that awarded by the host country, which will have to prove this.
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