Case law • Supreme Court (February 2025)

Our Administrative Law Department presents two decisions handed down by the Supreme Court of Monaco in February 2025), which are of interest in terms of the qualification of the withdrawal of an authorisation to practise and the invocation of constitutional and conventional principles in repressive matters, as well as a reminder of the principles applicable in terms of evidence, substitution of grounds, injunctions against the administration.

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Tribunal Suprême, 7 February 2025, r.D v État de Monaco (dismissal) — Revocation of an authorisation to practise - Opinion of the Commission • Qualification of the measure • Right to respect for private and family life (Article 8 ECHR) • Principles in repressive matters (Article 20 of the Constitution, Article 4 of Protocol No 7 ECHR)

Subject of the action:

• Decision to revoke the authorisation to practise as a property trader and the express decision to reject the informal appeal, on the grounds that he no longer had all the character guarantees required to practise (criminal conviction by the Monaco Court of Criminal Appeal for forgery of a private commercial or bank document and use of forgery).
• Action for annulment on the basis of Law no. 1.144 of 26 July 1991 concerning the exercise of certain economic and legal activities, Law no. 1.252 of 12 July 2002 on the conditions for the exercise of activities relating to certain transactions involving immovable property and goodwill, article 8 ECHR and article 4 of Protocol no. 7 ECHR.

Decision of the Supreme Court (dismissal):

• OPINION OF THE COMMISSION

The Commission's opinion does not have to be produced to the applicant by the administrative authority which, moreover, "has appropriated the meaning and content of this opinion and has mentioned its content in its decision".

In this case, the decision includes the legal and factual considerations on which it is based, and is sufficiently reasoned in the light of article 2 of the Law of 29 June 2006 on the grounds for administrative acts.

• QUALIFICATION OF THE REVOCATION OF THE AUTHORISATION TO PRACTISE

Revoking the authorisation of a professional who no longer offers guarantees of good character is an administrative police measure, with the preventive aim of preserving public order.

The authority issuing a professional licence has the power to revoke or withdraw it if the conditions under which it was issued are no longer met.

Revocation measures taken on the basis of article 9 of Law no. 1.144 of 26 July 1991, aimed at revoking a previously granted authorisation to practise, may legally take the form of either an administrative police measure or an administrative sanction imposed for the purpose of punishment.

In fact, the heading of the "Administrative sanctions" section under which articles 9 and 10 of the Law of 26 July 1991 are incorporated (cases of revocation and contradictory procedure benefiting the holder of the authorisation) has no normative scope and does not prevent the competent authority from revoking or withdrawing the authorisation to practise a professional activity "with a preventive aim, in order to guarantee the morality of a sector of regulated activity and to preserve public economic order".

The revocation "does not, in this case, having regard to its grounds and purpose, have the character of a sanction having the nature of a punishment but must be regarded as an administrative police measure".

• RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (article 8 ECHR)

The revocation measure, which did not entail a general ban on carrying on an activity in the Principality and had been lawfully taken with a view to preserving public order, does not affect the right to respect for private and family life of the person concerned in a manner disproportionate to the aims for which it had been taken.

Interference by a public authority with the right to respect for private and family life guaranteed by Article 8 ECHR must be "in accordance with the law" and "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The revocation measure was taken because of a criminal conviction that "raised doubts about the professional morality of the person concerned (...) having regard to the nature and seriousness of the offences (...) and taking into account the characteristics of the commercial activity carried out and the specific features of the property sector".

• PRINCIPLES IN REPRESSIVE MATTERS (Article 20 of the Constitution, Article 4 of Protocol No. 7 ECHR)

The principles of legality, necessity and proportionality of penalties deriving from article 20 paragraph 1 of the Constitution and the principle of non bis in idem provided for in article 4 of Protocol no. 7 ECHR cannot be invoked against a revocation decision that does not constitute a sanction in the nature of a punishment but an administrative police measure.

The constitutional principles of legality, necessity and proportionality of penalties govern criminal law.

The plea alleging infringement of the ne bis in idem rule, according to which the applicant who had been convicted of forgery of a private document and use of forgery would have been punished a second time for the same acts by the administrative penalty imposed in the revocation decision, is inoperative as there is no combination of criminal and administrative penalties in the present case.

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Tribunal Suprême, 7 February 2025, j.A v État de Monaco (dismissal) — Refusal of authorisation to practise • Evidence • Substitution of grounds • Application for injunction to the Minister of State

Subject of the action:

• Action for annulment on the basis of Article 25 of Sovereign Order no. 1. 720 of 4 July 2008 relating to the regulation of taxis, delivery vehicles and motorbikes on request
• Decision refusing authorisation to operate as a managing partner of a SARL (limited liability company) for the hire of vehicles with drivers, and of the express decision rejecting the informal appeal substituting a new ground for refusal (lack of proof of being the managing partner of a tourism or transport company for at least 3 years) for that used in the first decision (failure to produce a professional passbook).
• Injunction to the Minister of State to issue the requested administrative authorisation under penalty, failing which to re-examine the authorisation application.

Decision of the Supreme Court (dismissal):

• EVIDENCE

An appeal sent by recorded delivery with acknowledgement of receipt, which does not contain an annex or attached document, does not establish that the documents and exhibits produced before the Supreme Court to justify the diploma or professional experience were sent or communicated to the Minister of State at the time of the application for authorisation to practise or the appeal.

The applicant's curriculum vitae (CV), the only element that the Minister of State was shown to have had in order to make his decision, "is a set of indications relating to a person's civil status, abilities and past activities; insofar as it indicates, it does not prove".

Thus, the insufficiently convincing nature of the supporting documents produced could be legally invoked as grounds for rejecting the application for authorisation, without having to first ask the applicant to provide other documents.

• SUBSTITUTION OF GROUNDS

The substitution of the reason for refusal in the decision rejecting the informal appeal has the effect of withdrawing the first decision insofar as it was based on an erroneous reason.

The reason given in the first decision for the failure to produce a professional passbook was erroneous, since Article 25 of Sovereign Order no. 1.720 does not require the manager of a chauffeur-driven car hire company to have a professional passbook.

As a result of the withdrawal, the appeal against the first refusal decision became devoid of purpose.

• APPLICATION FOR INJUNCTION TO THE MINISTER OF STATE

The Supreme Court does not recognise its power to issue injunctions to the administration.

Hence the inadmissibility of the submissions seeking injunctions.

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