Annex II – Model of guarantee on first demand<\/a>, of Ordinance No. 3.647 of 09\/09\/1966 concerning town planning, construction and roads.<\/em><\/p>\nAs a consequence of the insertion of the autonomous guarantee in the Civil Code, it is added that it is impossible for the spouses<\/strong> to commit the community property<\/strong> by an autonomous guarantee unless it has been contracted with the consent of both spouses, as is already provided for in the case of surety bonds and loans (paragraph 4 of Article 1251 of the Civil Code).<\/p>\nThis addition was made for the sake of legal certainty. Since Article 1415 of the French Civil Code (similar to Monegasque law) does not provide for this impossibility for an autonomous guarantee, it was left to the judge to decide on the question of the commitment of the community property of the spouses by an autonomous guarantee. The French Court of Cassation thus considered that Article 1415 of the Civil Code, although only referring to surety bonds or loans, was “applicable to the first demand guarantee which, like surety bonds, is a personal security, which consists of a commitment by which the guarantor undertakes, in consideration of an obligation entered into by a third party, to pay a specific sum, and is therefore of a nature to impoverish the community assets” (Court of Cassation, 1st Civil Court, No. 04-11.037).<\/em><\/p>\n-Extension from 5 to 10 years of the registration periods for pledges of motor vehicles, businesses and capital goods, and for the act of subrogation in the benefit of a pledge of capital goods, as well as the duration of the period of conservation of the privilege.<\/strong><\/span> (Articles 5 and 9 Ordinance-Law n\u00b0 676; Articles 5 and 8 Sovereign Order of 23 June 1907; Articles 5 and 7 Ordinance-Law n\u00b0 664).<\/p>\nThis reform takes into account the increase in the duration of bank loans. The effect of the pledge is to create a privilege for the benefit of the creditor who has a priority of payment over other creditors.<\/em><\/p>\nThese provisions are applicable to pledges registered on the day of entry into force of Law No 1.529 (13 August 2022). Pledges of motor vehicles, goodwill and capital goods already registered and still effective on the day of entry into force of Law No. 1.529 shall retain the privilege for a period of ten years from their registration. (Articles 35 to 37 of Law No 1.529).<\/em><\/p>\n-Introduction of the assignment of business claims,<\/strong><\/span> the purpose of which is to meet the financing and cash flow needs of businesses (Section V, Articles 17 to 23 of Act 1.529), based on the model of the French “bordereau Dailly” (Articles L.313-23 et seq. of the Monetary and Financial Code).<\/p>\nOnly credit institutions and finance companies can be assignees<\/strong>. The assignor<\/strong> (beneficiary of the credit) is either a legal person under private or public law, or a natural person, but acting in the course of his professional activity.<\/em><\/p>\nThe transfer to the assignee of the ownership of receivables held vis-\u00e0-vis a third party<\/strong> (assigned debtor) is organised in practice by a framework agreement and takes place through the mechanism of a slip (“bordereau”) containing compulsory information<\/strong> (defined by Sovereign Order) which materialises the assignment act.<\/em><\/p>\nThe assignment of a claim may be made as a guarantee (to secure the repayment of claims recorded in a current account opened with the assignor) or as a discount (to secure the repayment of a loan granted in a loan account).<\/em><\/p>\nThe assignment is enforceable against third parties from the date shown on the slip.<\/em><\/p>\nContrary to the mechanism of ordinary law (Articles 1529 et seq. of the Civil Code) which only envisages the assignment of a single claim, the system of assignment of professional claims allows the assignment of one or more claims in a single operation, and admits the transferability of not only present but also future claims.<\/em><\/p>\n♦ FINANCIAL ACTIVITIES<\/strong><\/span><\/p>\n-Allowing the CCAF<\/strong><\/span> (Commission de contr\u00f4le des activit\u00e9s financi\u00e8res<\/em>), in case of lack of management of a licensed company or when it can no longer be managed under normal conditions, to appoint a provisional administrator<\/span><\/strong> (ex officio or at the request of the managers) to whom all the powers of administration, management and representation of the legal person concerned will be entrusted (new Article 42-1 Law n\u00b0 1.338).<\/p>\nThe provisional administrator disposes of the movable and immovable property of the company in the interest of the interest of good administration. His remuneration is fixed by the CCAF and paid, as well as the expenses incurred by the provisional administrator, by the authorised company to which he is appointed.<\/em><\/p>\n-Legal recognition of the obligation of professional certification<\/span><\/strong> (new 2nd paragraph of Article 23 of Act 1.338) for certain functions within authorised companies (managers, salespersons, financial analysts, trading room operators).<\/p>\nProfessional certification for financial activities in Monaco was introduced by Ministerial Order n\u00b0 2014-168 of 19 March 2014 setting out the terms and conditions for the application of Article 7 3\u00b0) of Sovereign Order n\u00b0 1284 of 10 September 2007 setting out the minimum knowledge required to carry out certain activities within a bank or a management company.<\/em><\/p>\n–<\/span> New provisions relating to the relationship between authorised companies and their clients in order to comply with the obligations of producers of financial instruments located abroad<\/span><\/strong> (new Article 23-3 of Act 1.338).<\/p>\nAuthorised companies must ask their clients, including potential clients, for information on their investment knowledge and experience in order to assess the suitability of the financial instrument offered or requested by the client<\/strong>. Where appropriate, authorised firms are now required to warn their clients<\/strong>, including potential clients, if they consider that the activity or financial instrument concerned is not suitable for them, and to inform them of the risks involved<\/strong>.<\/p>\nThe creation of these new obligations is intended to oblige authorised firms to classify their customers in order to meet the constraints specific to producers of financial instruments located abroad, which are subject to product governance and supervision rules. Authorised companies distributing the products of these producers must be able to justify that the target market of customers has characteristics and objectives that are compatible with the financial instruments distributed in Monaco.<\/em><\/p>\nThese new provisions are similar to certain European Union rules, in particular those of Directive 2014\/65\/EU (MiFID\/MIF2) mentioned above.<\/em><\/p>\n-New provisions relating to solicited and unsolicited approaches by unauthorised companies to offer financial services or products<\/span><\/strong>, to remove the difficulties of interpretation of Article 29, first paragraph of Act 1.338 which provided that “unsolicited or unsolicited approaches by unauthorised companies […] to offer financial services or products, regardless of the place or means used, are prohibited”<\/em> (Article 29, new Articles 29-1 and 29-2 Act 1.338).<\/p>\nThe former wording could be understood as prohibiting companies not authorised in the Principality (including companies under foreign law authorised to offer financial services and products in the country in which they are established) from offering these services to a person domiciled in Monaco, even though the person domiciled in Monaco may already be a client of the non-authorised company or may have requested this offer.<\/em><\/p>\n\u2022 The principle<\/strong> of the initial prohibition on any person or entity not authorised under the conditions provided for by Law n\u00b0 1.338 from taking any steps, whether solicited or unsolicited, on the territory of the Principality<\/strong>, with a view to offering financial services, instruments or products to persons domiciled in the Principality, regardless of the place or means used, is maintained.<\/p>\nBy way of exception<\/strong>, this prohibition does not apply when the person domiciled in the Principality is: 1\u00b0) an institutional investor; 2\u00b0) an authorised company; 3\u00b0) a client of an authorised company when the steps are taken through its intermediary. It should be noted that the prohibition for non-authorised companies to make unsolicited and solicited approaches to a single family office in the Principality is maintained.<\/p>\nFurthermore, an exemption is provided for events organised in the Principality which bring together professionals from the banking and financial sector<\/strong>, subject to prior notification of the CCAF and unless the CCAF gives an unfavourable opinion (removal of the prohibition on making approaches in public places, and replacement of the CCAF’s authorisation by its prior notification).<\/p>\n\u2022 It is also prohibited for any person or entity not authorised under the conditions provided for by Law n\u00b0 1.338, to take any unsolicited steps, carried out<\/strong> remotely<\/strong>, with a view to offering, whatever the means of communication used, financial services, instruments or products, to persons domiciled in the Principality.<\/p>\nBy way of exception<\/strong>, this prohibition does not apply when the person domiciled in Monaco is a client of the non-authorised person or entity. It is thus permitted to maintain a business relationship previously established with non-authorised persons or entities.<\/p>\n\u2022 Steps requested by a person domiciled in the Principality<\/strong> from a person or company based abroad are now authorised, provided that these steps are carried out exclusively remotely<\/strong>.<\/p>\n♦ BUSINESS LAW<\/span><\/strong><\/p>\n-Remedy for the case of vacancy of the foreign national manager (g\u00e9rant<\/em>) of the SARL<\/strong><\/span> (LLC<\/em>) in case of death, deficiency or departure that may cause difficulties in the management of the company. One of the authorised partners of the company is therefore allowed to act as manager for a transitional period of 3 months, after which administrative authorisation as manager must be sought (Article 7 Law no. 1.144). Partners and managers are required, if they are of foreign nationality, to obtain an administrative authorisation issued by decision of the Minister of State.<\/em><\/p>\n–Reinforcement of the effectiveness of the measures applicable in case of failure to comply with the obligation to communicate the accounting documents of <\/span>soci\u00e9t\u00e9s anonymes<\/em><\/span>\u00a0<\/strong>(PLC<\/em>) and soci\u00e9t\u00e9s en commandite par actions <\/em><\/span><\/strong>(partnerships limited by shares<\/em>) to the Minister of State (Articles 38 and 39 Law n\u00b0 408).<\/p>\n\u2022 Modification of the purpose of the formal notice<\/strong>: the fact of having to provide “all useful justifications” to the Minister of State is replaced by an injunction to the directors “to communicate to him, within fifteen days at the most, the said documents, under penalty of the sanctions provided for in the first paragraph of Article 37\u2033<\/em> (fine of 200 to 600 euros, provided for in paragraph 3 of Article 29 Penal Code). The directors then have the possibility, within fifteen days of the formal notice, to request an additional period of time (which may not exceed three months from the receipt of the formal notice) by providing all useful justification.<\/p>\n\u2022The purpose of the report that the Minister of State may commission from a chartered accountant in the event of an unsuccessful formal notice is specified:<\/strong> “to obtain accurate information on its economic and financial situation”.<\/p>\n\u2022 Depending on the conclusions of the report, the Minister of State may invite the company to comply with the law within a period of three months. If the directors fail to do so or if the company can no longer be managed under normal conditions, the Minister of State may refer the matter to the President of the Court of First Instance by way of a request for the appointment of an ad-hoc representative <\/strong>(mandataire ad hoc).<\/em>\u00a0Finally, reference is made to the Commission referred to in Article 2 of Law n\u00b0 767 of 8th July 1964 relating to the revocation of authorisations for the formation of soci\u00e9t\u00e9s anonymes<\/em> and soci\u00e9t\u00e9s en commandite par actions<\/em>.<\/p>\n–<\/span>Introduction of similar rules relating to the communication of accounting documents for <\/span><\/strong>c<\/em>ommercial companies other than joint stock companies<\/strong><\/span><\/span><\/span>\u00a0to the department in charge of the RCI<\/span><\/strong> (
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