Legislative Overview 2021
Monaco ǀ Civil ● Criminal ● Public ● Social ● Real Estate & Construction
GIACCARDI & BREZZO Avocats is pleased to provide you with a summary of the laws published in the Journal de Monaco (JDM) in 2021 which are of particular interest to professionals and residents or employees of Monaco (excluding laws relating to the Covid-19 pandemic and the budget)[1].
[1] The following laws are not presented: Law No. 1.509 of 20 September 2021 on compulsory vaccination against COVID-19 for certain categories of persons (JDM No. 8557 of 24 September 2021); Law No. 1.510 of 19 October 2021 fixing the budget for the financial year 2021 – corrigendum (JDM No. 8561 of 22 October 2021); Law No. 1.519 of 23 December 2021 fixing the primitive general budget for the financial year 2022 (JDM No. 8571 of 31 December 2021).
♦ Law No. 1.511 of 2 December 2021 amending the civil procedure (JDM No. 8569 of 17 December 2021)
Law No. 1.511 (69 articles) is the result of Bill No. 1028 (2021-1, 5 January 2021) received by the National Council on 22 January 2021 and voted on 24 November 2021.
It is one of the major reforms that have already taken place in this area, and “aims to contribute to a legible, accessible, rapid, modern and efficient justice system that is always respectful of fundamental rights and freedoms, the cornerstone of civil procedure.” (Explanatory Memorandum to Bill No. 1028, p. 6.)
Law No. 1.511 updates the existing provisions, with major innovations to the organisation and functioning of civil proceedings. The numerous amendments that are made (mainly to the Code of Civil Procedure) are based on Monegasque judicial practice, and some of them are inspired by French civil procedure.
Transitional provisions are provided for in order to settle questions of application of the new law over time (depending on whether the proceedings are in progress on the date of entry into force of the law, or initiated after its entry into force). Law No 1.511 enters into force on 18 February 2022 (two months after its publication in the Journal de Monaco).
Objectives of Law No. 1.511:
> Evolving ageing provisions;
> Repealing obsolete provisions;
> Responding to the legitimate needs and expectations of litigants;
> Promoting the amicable settlement of disputes;
> Optimising the quality of justice;
> Complying with the requirements of the ECHR case law (freedom, defence, fundamental principles of procedure).
♦ Law No. 1.513 of 3 December 2021 on the fight against harassment and violence in schools (JDM No. 8569 of 17 December 2021)
Law No. 1.513 (19 articles) stems from government bill No. 1036, received by the National Council on 10 May 2021 and voted on 24 November 2021, itself following parliament bill No. 243 adopted on 2 December 2019.
Law No. 1.513 includes a preventive and combative component within the framework of national education, and a repressive component that concerns minors and adults, with the enrichment of the offence of harassment and the creation of other offences that are not specific to the school environment but which may be related to it (such as hazing, suicide provocation, racketeering, revenge porn).
The entry into force of the preventive measures (amendments to Law No. 1.334 of 12 July 2007 on education) was set as of the start of the school year following the publication of Law No. 1.513.
Regulatory provisions determine, where necessary, the conditions of application of Law No 1.513.
Some provisions are inspired by French law.
Objectives of Law No. 1.513:
> Establishing a comprehensive educational approach to the prevention and reduction of harassment and violence in schools, comprising nine essential components:
- Leadership role for the state;
- Adequate and regular training of teachers;
- A proactive approach, through awareness-raising actions and the development of a “Prevention and Control Plan”;
- A safe environment in schools and classrooms, both psychologically and physically, through the handling of bullying situations;
- Establishment of reporting mechanisms for students affected by bullying, support and care services;
- Involvement of all actors in the educational community, including parents, and introduction of new actors in the support and care process;
- Empowerment and participation of pupils;
- Collaboration and partnerships between the education sector and a wide range of partners (health, social services, etc.);
- Collecting ‘evidence’ and evaluating responses.
> Completing the penal arsenal, adapted to the personality of the offenders and the seriousness of the acts, for both minors and adults.
♦ Law No. 1.505 of 24 June 2021 on the concerted organisation of working time (JDM No. 8545 of 2 July 2021)
Law No. 1.505 of 24 June 2021 on the concerted organisation of working time (7 articles) is the result of governmengt bill No. 1025, received by the National Council on 23 October 2020, and voted during the Public Session of 17 June 2021.
Originally conceived by the Government as a temporary tool limited to one year in response to the economic and social consequences of the health crisis, the concerted organisation of working time over a reference period longer than a week, which cannot exceed one year, has finally been integrated into Monegasque law in a permanent manner.
The organisation of working time implemented by the employer in application of a collective labour agreement or a company agreement adopted in accordance with Law No. 1.505 applies to employees who concluded their employment contract before the entry into force of the law, in principle, without the need to conclude an amendment to the employment contract. However, for employees who concluded an employment contract with a weekly working time of less than 39 hours before the entry into force of the law, the organisation of their working time is subject to their written agreement.
Any collective agreement or company agreement, or any clause of said agreement or agreement, concluded or implemented in disregard of the provisions of Law No. 1.505 are null and void.
Objectives of Law No. 1.505:
> Incorporating a modern management tool, offering an effective solution to structural problems inherent to certain sectors of activity, which is a win/win for employers and employees.
♦ Law No. 1.512 of 3 December 2021 on the acquisition of nationality by marriage (JDM No. 8569 of 17 December 2021, Erratum JDM n° 8578 of 18 February 2022)
Law No. 1.512 (5 articles) is the result of government Bill No. 1038 submitted on 17 May 2021 to the office of the National Council and voted on 24 November 2021, following parliament Bill No. 244 adopted on 2 December 2019.
The duration of the marriage required to be eligible for Monegasque nationality is extended from 10 to 20 years, for marriages celebrated from 1 July 2022.
The legislator based his decision on IMSEE statistics which highlight the exponential increase in the number of Monegasques since 1950 and for the next fifty years, noting that it will be increasingly difficult to build new state housing for Monegasques.
At the same time, in the best interests of children of Monegasque nationality, a priority ranking in favour of their foreign father or mother for private and public employment is added.
Objectives of Law No. 1.512:
> Ensuring the proper integration of spouses into the national community, while allowing the Monegasque social model (aid and housing) to be maintained at a high level of quality.
♦ Law No. 1.506 of 2 July 2021 recognising the “Children of the Country” (“Enfants du Pays“) and their contribution to the development of the Principality of Monaco (JDM No. 8547 of 16 July 2021)
Law No. 1.506 (single article) stems from government bill No. 993, voted by the National Council in Public Session on 30 June 2021, following the parliament bill No. 231 adopted on 24 October 2017.
Law No. 1.506 does not create a new category within the population of Monaco or national minority with collective rights. However, the definition of the status of “Children of the Country” is not only symbolic, but also accompanied by concrete rights. Formally, these rights are not included in Law No. 1.506.
The main issue for the “Children of the Country” is the question of access to sheltered housing. Their rights are contained in Law No. 1.235 of 28 December 2000 on the rental conditions of certain residential premises built or completed before 1 September 1947 as amended, which was reformed by Law No. 1.508 of 2 August 2021 on the safeguarding and reconstruction of residential premises falling under the provisions of Law No. 1.235 of 28 December 2000 (see below).
Objectives of Law No. 1.506:
> Recognising in law the contribution of “Children of the Country”;
> Defining the expression “Children of the Country”;
> To echo the constant concern of the public authorities to preserve a stable social fabric on the territory of the Principality by maintaining a non-Monegasque population with deep ties to Monaco.
♦ Law No. 1.508 of 2 August 2021 relating to the safeguarding and reconstruction of premises for residential use covered by the provisions of law No. 1.235 of 28 December 2000, relating to the rental conditions of certain premises for residential use built or completed before 1 September 1947, as amended (JDM No. 8550 of 6 August 2021)
Law No. 1.508 (10 articles) is the result of Government Bill No. 1006 passed in the Public Session of 21 July 2021 resulting from the transformation of the parliament Bill No. 239 adopted on 20 August 2018.
Law No. 1.508 aims to ensure the continuity of the protected sector in order to allow “protected persons” to continue to reside in Monaco because of their Monegasque nationality or their special ties with the Principality. It introduces legal mechanisms reconciling the imperatives of the fundamental right of ownership and that of priority access to housing.
Law No. 1.508 has four parts:
– Redefinition of the persons protected under Law No. 1.235;
– Possibility for the tenant to partially allocate a dwelling subject to Law No. 1.235 to the exercise of a commercial activity;
– Conditions for issuing authorisations to demolish and rebuild when one or more dwellings subject to the provisions of Law No. 1. 235 are subject to full demolition works;
– Two schemes for rehousing the evicted tenant, one to be paid by the State in the case of full demolition works, the other to be paid by the owner in the case of works other than full demolition.
Objectives of Law No. 1.508:
> To put an end to the programmed disappearance of premises in the protected sector as a result of property developments, by reconciling social and economic interests;
> Ensuring the transformation and renewal of the protected sector to allow, in the long term, the protected categories to live in more comfortable buildings;
> To free, in the long run, the private owner from the constraints inherent in Law No. 1.235, by making the State play the social role.
♦ Law No. 1.507 of 5 July 2021 establishing the compensatory rent allowance for premises governed by Law No. 1.235 of 28 December 2000, as amended (JDM No. 8547 of 16 July 2021)
Law No. 1.507 (5 articles), is the result of governemnt Bill No. 1015 voted in Public Session on 30 June 2021 which followed the parliament bill No. 242 adopted on 3 December 2018.
The compensatory rent allowance, a new aid paid by the State, is intended to enable small landlords to obtain rental income equivalent to that of landlords charging the highest rents in the protected sector, which mainly concern refurbished premises.
The entry into force of Law No. 1.507 has been set for 1 January 2022.
Its conditions of application are determined by sovereign ordinance and ministerial order.
Objectives of Law No. 1.507:
> Responding to a current need by recognising, in political and legal terms, that owners in the protected sector are suffering from an infringement of their property rights, a loss which the State must compensate for, by assuming its social role.
> Compensating for the effects of the rent control regime through the reference rent system on rental income from residential premises in the protected sector, so that landlords can earn a fairer income.
♦ Law No. 1.514 of 10 December 2021 amending certain provisions of Law No. 1.357 of 19 February 2009 defining the “housing-capitalisation” contract [CHC] in the domanial sector, as amended (JDM No. 9570 of 24 December 2021)
Law No. 1.514 (18 articles) is the result of government bill No. 1034, received by the National Council on 26 April 2021 and voted on 2 December 2021.
Law No. 1.514 modernises the legislative framework of the CHC, which allows Monegasque nationals to constitute an estate that can be transferred to their beneficiaries, consisting of both a capital sum and a right of dwelling, with a view to making it more attractive for its beneficiaries.
The new provisions apply to contracts in force on the date of entry into force of Law No. 1.514.
Any request to subscribe to a CHC from the Administration des Domaines, after the date of entry into force of Law No. 1.514 and following a refusal by the Administration for a previous subscription request, shall give rise to the establishment and notification of a CHC under the financial and price conditions set at the date of this new subscription request and in no case at the date of the refusal previously notified to the applicant.
The Government noted that in 12 years, no less than 1,175 CHC – 990 of which are currently active – have been taken out by Monegasques.
Objectives of Law No. 1.514:
> To provide answers to practical difficulties encountered by holders of CHCs;
> To allow the adaptation of the CHC over time, according to the professional or family background of the holder or in the event of a possible destruction of the flat, and the transmission of the capital to a third party in the event of death.