Legal News Overview / November 2022

We are pleased to propose a summary of the legal news in Monaco in November 2022.

Freezing of funds and economic resources: new amendment to Sovereign Order 8.664 of 26th May 2021

The amendments made to Sovereign Order n° 8.664 concern:

• the general provisions (new website of the Government dedicated to the freezing of funds and economic resources; duration of implicit freezing decisions by the Minister of State; designations of persons and entities made by the Minister of State);
• provisions relating to the exchange of information;
• specific provisions on restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

Reference text: Sovereign Order 9.533 of 7 November 2022 (JDM 8616 of 11 November 2022).

Reform of co-ownership: publication of the Ministerial Order for the application of Articles 12 and 21 of Law 1.329

When the assembly is called upon to deliberate on the question of works or expenses, estimates must be attached to the convocation, if the amount of the works is greater than :

• 10,000 € when the building has less than ten main lots;
• 20,000 € when the building has ten to twenty main lots;
• 50,000 € when the building has more than twenty main lots.

The Ministerial Order also sets out :

• the (non-exhaustive) list of the building’s documentation (which includes the essential financial and technical data relating to the co-ownership and its building) that the syndic must draw up and keep up to date;
• the (minimum) list of documents that the professional syndic makes available in the secure online space accessible to all co-owners.

Reference text: Ministerial Order 2022-588 of 8 November 2022 (JDM 8616 of 11 November 2022).

Usury rate for home loans to individuals revised upwards again

The average rate charged by lenders is thus set at :

– For individuals :

• Overdrafts: 14.88% (unchanged)
• Personal loans: 3.32% (unchanged)
• Home loans: increased from 2.13% to 2.49%

– For businesses and individual entrepreneurs:

• Overdrafts: 8.36% (unchanged)

Reference text: Sovereign Order 9.532 of 7 November 2022 (JDM 8616 of 11 November 2022).

Urban planning regulations for the ordely districts (quartiers ordonnancés)

The special provisions RU-LRS-DP-V13D (Annex 10) and the corresponding coordination plans applicable to the La Rousse 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 9.571 of 21 November 2022 (JDM 8618 of 25 November 2022).

Justice

Investigating Judges

Mrs Sandrine LADEGAILLERIE, Judge at the Court of First Instance, is appointed Investigating Judge for a period of three years, as from 24 October 2022.

Mr Ludovic LECLERC, First Judge at the Court of First Instance, is reappointed as Investigating Judge for a period of three years, as from 1st November 2022.

Mr Franck VOUAUX, Judge at the Court of First Instance, is reappointed as Investigating Judge for a period of three years, from 1 November 2022.

Reference texts: Sovereign Orders 9.514, 9.515, 9.516 of 2 November 2022 (JDM 8615 of 4 November 2022).

Guardianship Judge

Mrs. Léa PARIENTI, Judge at the Court of First Instance is appointed to exercise the functions of Guardianship Judge.

Mrs Catherine OSTENGO, Judge at the Court of First Instance is appointed to carry out the functions of substitute guardianship Judge.

Reference text: Order of the Secretary of State for Justice, Director of Judicial Services 2022-25 of 4 November 2022 (JDM 8616 of 11 November 2022).

Accessibility of the built environment

The Ministerial Order 2017-893 of 21 December 2017 is amended, which sets out the terms of accessibility of the built environment in application of Law 1.441 of 5 December 2016.

As a reminder, establishments receiving the public, buildings for industrial or office use, collective buildings for residential use, temporary constructions and temporary installations, as well as car parks and the outdoor spaces that serve them, must be accessible to people with disabilities.

Reference text: Ministerial Order 2022-589 of 8 November 2022 (JDM 8616 of 11 November 2022).

Five laws passed – Public session of 30 November 2022

1. Alternative measures to prosecution, preliminary investigation

The main contributions of the voted Bill 1030 (received by the Conseil National on 9 April 2021) are the following:

• Introduction of alternative measures to prosecution (directing the offender to a health, social or professional structure, penal mediation, removal measures, etc.);
• Adjustment of the police custody (garde à vue) regime (guarantees in the event of extension, full body search);
• Establishment of the free hearing (audition libre);
• Framing of the preliminary investigation (the most substantial contribution of Bill 1030).

2. Investigation (instruction), appeal for review (pourvoi en révision) in criminal matters

The main purpose of Bill 1031 (submitted to the Conseil National on 9 April 2021) is to reform the pre-trial investigation procedure in terms of the guarantees afforded to the accused under the European Convention on Human Rights:

• Strengthening the adversarial process and the interaction between the investigating judge, the civil parties and the defendants;
• Stricter supervision of searches carried out on the premises of persons who are granted specific protection because of their professional activity;
• Possibility for the investigating judge to use real-time geolocation of a person on the territory of the Principality;
• 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);
• Overhaul of the nullity procedures and purge of nullities.

It also makes adjustments to the appeal for review with regard to equality of arms and the liability of legal persons.

3. International mutual legal assistance (entraide judiciaire internationale)

The purpose of Bill 1068 voted (received by the Conseil National on 3 November 2022) is to comply with the 37th Recommendation – Mutual Legal Assistance of the Financial Action Task Force (FATF) and to strengthen Monaco’s international cooperation in criminal matters.

The term “commission rogatoire” is replaced by “request for mutual assistance” (“demande d’entraide”).

The ordinary law of the international mutual assistance regime (in the absence of an international convention stipulating otherwise) is modified with regard to the following aspects:

• Control of the transmission and execution of foreign requests for mutual assistance;
• Possibilities of appeal against measures executed on Monegasque territory in application of a foreign request for mutual assistance;
• Transmission of documents for the execution of a request for mutual assistance to the authority of the requesting State.

4. Seizure and confiscation of instruments and proceeds of crime

Bill 1067 voted (received by the Conseil National on 3 November 2022) transcribes:

• Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and the proceeds of crime in the European Union concerning counterfeiting currency, fraud and counterfeiting of non-cash means of payment, money laundering, and terrorism (in application of the Monetary Agreement of 29 November 2011 with the European Union);
• the FATF International Recommendations (taking into account the observations of the MONEYVAL Committee of the Council of Europe made in the context of the 5th evaluation cycle of Monaco).

The main thrusts of the reform are as follows:

• Clarification of the ordinary confiscation penalty (confiscation of mixed proceeds, value confiscation and registration formalities);
• Creation of specialised money laundering assistants to provide magistrates with additional technical expertise;
• Extension of the seizure of property liable to confiscation to all underlying offences;
• Extension of the tasks of judicial police officers to the detection and tracing of confiscable assets;
• Reinforcement of procedural guarantees for persons affected by a seizure or confiscation order;
• Creation of a management service for seized or confiscated assets (“service de gestion des avoirs saisis ou confisqués”), placed under the authority of the Director of Judicial Services, responsible for disposing of, allocating free of charge, or destroying them, if necessary.

5. Submission of the domiciliation activity to the anti-money laundering and terrorist financing provisions

Bill 1072 voted (received by the Conseil National on 24 November 2022) subjects to Law 1. 362 “30°) persons who, on a regular basis, carry out the activity of domiciliation consisting of providing third parties with a registered office, a business 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 offices or meeting rooms, administrative assistance linked to the activity of domiciliation, with the exception of the exercise of any regulated activities.”

The activity of domiciliation is currently subject to Law 1.362 when it is included among the activities offered by “persons who habitually carry out operations of creation, management and administration of legal persons, legal entities or trusts, in favour of third parties” referred to in point 6°) of Article 1.