Monaco Legal News Overview – December 2022
04.01.2023
We are pleased to propose a summary of the legal news in Monaco in December 2022.
#AML/CFT #Corporate #Banking #Financial #Health #Compensation #Social #HotelCateringSector #RemoteWorking-Covid-19 #Criminal #Procedure #Public #PublicServant #UrbanPlanning #International #FATF #MONEYVAL #EU
Fight against money laundering, terrorist financing and corruption
Domiciliation activities carried out as a principal activity:
Law No. 1.362 of 3 August 2009 on the fight against money laundering, terrorist financing and corruption has been amended once again to make the activity of domiciliation carried out on a principal basis, i.e. independently of the activity consisting in carrying out “operations of creation, management and administration of legal persons, legal entities or trusts”, subject to the Law.
Article 1 of Law No. 1.362 thus newly refers to: “29°) persons who habitually carry out the activity of domiciliation consisting of providing third parties with a registered office, a commercial address or premises, an administrative or postal address for a capital company, a partnership or any legal person or entity, in addition to the ancillary services of renting out offices or meeting rooms, administrative assistance linked to the activity of domiciliation, with the exception of the exercise of any regulated activities.”
This reform was requested by the representatives of the MONEYVAL Committee after their on-site visit (from 21 February to 4 March 2022), based on the FATF and EU standards.
Reference text: Law No. 1.537 of 9 December 2022 (JDM No. 8621 of 16 December 2022).
Update of the list of States or territories with strategic deficiencies in their anti-money laundering, combating the financing of terrorism or corruption:
The FATF‘s update of its list of countries under enhanced scrutiny due to deficiencies in the AML/CFT framework has been incorporated into Ministerial Order No. 2021-703 of 8 November 2021, with the addition of the Democratic Republic of Congo, Mozambique and Tanzania.
More information > https://gbmlf.miam.dev/en/automatic-exchange-of-information-financial-accounts-jurisdictions-subject-to-declaration-ministerial-order-n2022-729-of-21-december-2022/
Reference text: Ministerial Order No. 2022-662 of 2 December 2022 (JDM No. 8620 of 9 December 2022).
Health
Nosocomial (Hospital-acquired) infections:
Law No. 1.541, passed on 7 December 2022, is built on the following three axes:
- Definition of actions to be implemented by public and private health establishments in order to prevent the occurrence of nosocomial infections (prophylaxis);
- Framing of the system of liability for fault of the health establishment for the harmful consequences of a nosocomial infection;
- Establishment, in the absence of fault on the part of the establishment, of a mechanism for compensation by the State for damage resulting from a nosocomial infection, subject to conditions.
The provisions governing the liability of the health care establishment and compensation by the State are applicable: to events following the publication of the law (23 December 2022), as well as to earlier events for which no legal proceedings have been instituted before this publication.
More information > https://gbmlf.miam.dev/en/law-no-1541-of-16-december-2022-on-nosocomial-infections/
Reference text: Law No. 1.541 of 16 December 2022 (JDM No. 8622 of 23 December 2022).
List of non-conventional practices contributing to the well-being governed by Law No. 1.516:
As a reminder, Law No. 1.516 of 23 December 2021 (JDM No. 8572 of 7 January 2022) regulates health care practices that are not scientifically recognised by conventional medicine.
The list of non-conventional practices contributing to well-being that may be practised in Monaco has been established as follows: art therapy, fire-cutting, animal mediation, meditation, modelling, reflexology, reiki, shiatsu, sophrology.
This list, which will be reviewed annually, is established on the basis of objective criteria to ensure the protection and safety of individuals, taking into account the level of risk to physical, psychological or mental health.
For more information > https://gbmlf.miam.dev/en/law-no-1-516-of-23-december-2021-on-unconventional-practices-contributing-to-well-being/
Reference text: Ministerial Order No. 2022-722 of 14 December 2022 (JDM No. 8622 of 23 December 2022).
Social
Extension of the exceptional scheme for remote working during the Covid-19 period:
The exceptional scheme for remote working during the health crisis for employees, civil servants, State and Commune agents residing in Monaco, France or Italy, which was due to end on 31 December 2022, has been extended until 30 June 2023.
Reference text: Ministerial decision of 21 December 2022 (JDM No. 8622 of 23 December 2022).
Rider No. 2 to the Collective Agreement of the Hotel Industry of Monaco:
Rider No. 2 of 18 October 2022 to the Collective Agreement of the Hotel Industry of Monaco of 1 July 1968 (Annex to JDM No. 8.614 of 28 October 2022), which introduced differentiated minimum wages, according to qualifications and the different methods of remuneration (fixed or percentage), is made compulsory for all employers and employees in the hotel, restaurant and drinking establishment sector.
The salary scales (which had not been published at national level since the end of the 1990s) have thus been updated, with a revaluation of the sector’s professions to increase their attractiveness, given the current inflationary context, the shortage of labour, and the recent measures taken in France.
For employees paid on a fixed salary basis, a new grid has therefore been defined. The hourly base has been increased by 1.08% in order to have a basic salary equivalent to France, for a 39-hour week, excluding conventional benefits (in France, hours between the 36th and 39th hour are increased by 10%).
For employees paid on a percentage basis, according to their qualification, an annual guarantee of the gross salaries in the attached grid will be applied at the end of the fiscal year. In the event of a cumulative gross annual salary that is lower than the gross annual salary of the grid, the difference will be paid to the employee.
Reference text: Ministerial Order No. 2022-677 of 2 December 2022 (JDM No. 8620 of 9 December 2022).
Automatic exchange of information on financial accounts (tax)
The list of jurisdictions subject to reporting under the automatic exchange of financial account information has been amended, with the addition of Peru as of 1 January 2023 (rest unchanged).
In concrete terms, as the source state of the capital, Monaco will transmit to the state of tax residence a block of predefined information on its taxpayers concerning the financial accounts they hold in Monaco, systematically and on an annual basis.
More information > https://gbmlf.miam.dev/en/automatic-exchange-of-information-financial-accounts-jurisdictions-subject-to-declaration-ministerial-order-n2022-729-of-21-december-2022/
Reference text : Ministerial Order No. 2022-729 of 21 December 2022 (JDM No. 8623 of 30 December 2022).
Criminal procedure
Mutual legal assistance:
Law No. 1.536, passed on 30 November 2022, renovated the general framework for mutual legal assistance to comply with the 37th FATF Recommendation and to strengthen Monaco’s international cooperation in criminal matters, with regard to the following aspects:
- Supervision of the transmission and execution of foreign “requests for mutual assistance” (replacing the term “letters rogatory”);
- Possibilities of appeal against measures executed on Monegasque territory in application of a foreign request for mutual assistance;
- Transmission of the execution documents of a request for mutual assistance to the authority of the requesting State.
Reference text: Law No. 1.536 of 9 December 2022 (JDM No. 8621 of 16 December 2022).
Preliminary investigation, alternative measures to prosecution, police custody, free hearing:
Law No. 1.533, passed on 30 November 2022, clarified and improved the existing provisions of the Code of Criminal Procedure in the following respects:
- Introduction of alternative measures to prosecution (known as “third way”) for offences (directing the offender to a health, social or professional structure, penal mediation, removal measures, etc.);
- Tinkering with the regime of police custody (guarantees in the event of prolongation, full body search) [contribution of the Legislation Committee];
- Framing of the free hearing (which allows a person suspected of having committed an offence to be questioned without being taken into custody) [contribution of the Legislation Committee];
- Supervision of the preliminary investigation by the judicial police (the first stage of the criminal trial, to be distinguished from the flagrante delicto investigation) [the most substantial contribution of the reform];
- Introduction of the general procedure for additional information (which allows the Court to request additional investigative acts before ruling).
Reference text: Law No. 1.533 of 9 December 2022 (JDM No. 8621 of 16 December 2022).
Assisted witness, investigation, appeal for revision in criminal matters, offences committed by legal persons:
The main purpose of Law No. 1.534, passed on 30 November 2022, is to reform the pre-trial procedure in the light of the guarantees for the accused under the European Convention on Human Rights. Among its notable contributions:
- Creation of the status of assisted witness (témoin assisté);
- Organisation of the presence of the lawyer during the first appearance examination (interrogatoire de première comparution);
- Strengthening of the adversarial process and interaction between the investigating judge, the civil parties and the defendants;
- Stricter supervision of searches carried out at the homes of persons who are granted specific protection because of their professional activity;
- Possibility for the investigating judge to use geolocation in the Principality;
- Time limit within which a request for nullity may be made by the accused, the witness or the victim;
- Insertion of specific procedures applicable to the prosecution, investigation and judgment of offences committed by legal persons;
- Adaptations made to the appeal for review (pourvoi en révision)with regard to equality of arms.
Reference text: Law No. 1.534 of 9 December 2022 (JDM No. 8621 of 16 December 2022).
Seizure and confiscation of instruments and products of crime:
The major axes of the reform carried by Law No. 1.535, voted on 30 November 2022, are the following:
- Strengthen the effectiveness of the confiscation penalty: widening the possibilities of seizing confiscable assets, facilitating the tracing of these assets, creating specialised assistants to take part in money laundering procedures;
- Guarantee respect for the rights of persons affected by a seizure measure or confiscation order: effective means of appeal;
- Improve the management of seized or confiscated assets: establishment of a “service de gestion des avoirs saisis ou confisqués” (seized or confiscated assets management service) placed under the authority of the Directeur des Services Judiciaires (Director of Judicial Services);
- Payment of damages awarded to victims of crime: possibility of obtaining from the said service the payment of sums awarded by deduction from the funds or the liquidated value of confiscated property.
In doing so, Law No. 1.535 transcribes certain provisions of Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Unionn, as well as the FATF International Recommendations, following the observations of the MONEYVAL Committee in the framework of the 5th evaluation cycle of Monaco.
Reference text: Law No. 1535 of 9 December 2022 (JDM No. 8621 of 16 December 2022).
Compensation for victims of sexual offences, crimes against children and domestic violence:
Bill No. 1074 on compensation for victims of sexual offences, crimes against children and domestic violence was received by the National Council on 19 December 2022.
The purpose of the bill is to ‘introduce a system of compensation for victims to compensate for the insolvency of offenders‘ and ‘to give greater recognition to the devastating nature of violence against women and thus to strengthen the compatibility of measures taken at national level with Monaco’s international commitments’ (Explanatory Memorandum, p. 3).
This compensation system would be applicable to convictions that became final during the last two years before the law came into force.
More information > https://gbmlf.miam.dev/en/bill-no-1074-on-compensation-for-victims-of-sexual-offences-crimes-against-children-and-domestic-violence/
Public
Statute of the civil servants of the Commune:
Law No. 1.538, voted on 7 December 2022, ratified the modernisation of the statute of the Commune’s civil servants which had not been revised since Law No. 1.096 of 7 August 1986. This reform came into force on 1 January 2023, at the same time as the reform of the status of State civil servants (brought in by Law No. 1.527 of 7 July 2022 amending Law No. 975 of 12 July 1975), the main features of which it takes up:
- Priority access for Monegasque nationals;
- Reinforcement of the transparency of recruitment conditions;
- Exercise of teleworking functions;
- New rules for promotion;
- Advances concerning social rights (extension of the duration of maternity and paternity leave or in case of adoption, creation of a family support leave).
Reference text: Law No. 1.538 of 16 December 2022 (JDM No. 8622 of 23 December 2022).
Procedures for the award of building and public works contracts by the State:
Ministerial Order No. 2022-708, in force since 1st January 2023, sets:
- on the one hand, for restricted public tenders, the terms and conditions for the award of building and public works (B.T.P.) contracts by the State (Titles I to V);
- on the other hand, the procedures for awarding contracts for renovation work entrusted by mutual agreement by the State (Title VI).
More information: https://gbmlf.miam.dev/en/ministerial-order-no-2022-708-of-12-december-2022-setting-out-the-procedures-for-the-award-of-building-and-public-works-contracts-by-the-state/
Reference text: Ministerial Order No. 2022-708 of 12 December 2022 (JDM No. 8621 of 16 December 2022).
Urban planning regulations for the ordered districts sector:
The special provisions RU-CND-DP-V15D (Annex 4) and the corresponding coordination plans applicable to the La Condamine orderly district are amended.
The plans can be consulted at the Direction de la Prospective, de l’Urbanisme et de la Mobilité.
Reference text: Sovereign Order No. 9.613 of 15th December 2022 (JDM No. 8622 of 23rd December 2022).
Accessibility of the built environment to persons with disabilities:
Law No. 1.540, voted on 7 December 2022, amended Article 16 of Law No. 1.441 of 5 December 2016 on the accessibility of the built environment to persons with a disability (substantial, lasting or definitive alteration of one or more physical, sensory, mental, cognitive or psychological functions, or disabling health disorder).
It sets the deadline for adapting the existing built environment belonging to a public entity and assigned to a public service mission at seven years (instead of five).
Reference text: Law No. 1.540 of 16 December 2022 (JDM No. 8622 of 23 December 2022).