Trade and Industry Register (RCI) (Moneyval): changes up to date with Law no. 1.559 of 29 February 2024 (PART IV)

UP TO DATE WITH THE LATEST AMENDMENTS 2024 made by Law no. 1.559 (Part IV) and Sovereign Order no. 10.451 of 15 March 2024

Entry into force on 25 September 2023 of the new provisions governing the Trade and Industry Register ("RCI" Répertoire du Commerce et de l'Industrie), which refers to any natural or legal person deemed to be a trader by law and carrying on a commercial activity in the Principality, as well as (newly) economic interest groupings ("GIE" groupement d'intérêt économique):

• Law 721 of 27 December 1961 amended by Law 1.550 of 10 August 2023 (Chapter I) and Law no. 1.559 of 29 February 2024 (PART IV)
• Sovereign Order 2.853 of 22 June 1962 implementing Law 721 of 27 December 1961 creating a Trade and Industry Register, as amended by Sovereign Order 10.116 of 21 September 2023 and Sovereign Order no. 10.451 of 15 March 2024
• Ministerial Order 2023-577 of 26 September 2023 authorising seven agents from the Economic Development Department (control)

The amendments follow on from the recommendations of the MONEYVAL Report which focused on strengthening measures to ensure greater transparency of legal entities in order to prevent them from being used for money laundering or terrorist financing purposes, in particular to ensure that the competent Monegasque authorities have enhanced and extended access to satisfactory, accurate and up-to-date "basic information" and on beneficial owners, and on the control of legal entities.

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SUMMARY

The main changes for those subject to Law no. 721, from 25 September 2023:

• "GIE" are subject to obligations similar to those imposed on companies;
• Applications for registration must be sent to the Economic Development Department ("DDE") within 1 month of the date of issue of the receipt for the declaration of activity or the administrative authorisation to operate, failing which the declaration or authorisation will lapse;
• List of basic information and supporting documents to be provided, set by Sovereign Order 2.853;
• Obligation to communicate to the RCI department the identity of the person or persons designated as responsible for the basic information of the legal person and, if different, that of the person or persons responsible for the information on the beneficial owners;
• New situations requiring a supplementary or amending declaration with a view to mentioning the change in the RCI ;
• Power for the DDE to make an ex officio entry in order to update the information contained in the RCI, or to identify a breach involving the registered person, and ex officio deletion;
• Updating, storage and availability of basic information and corresponding supporting documents in Monaco for 10 years;
• Maintenance of a register of company members or shareholders;
• Basic information accessible to the public, shown on the extract from the RCI.
• Supervision by the DDE, documentary and on-site inspections.
• New administrative and criminal penalties.

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IN DETAIL

¤ Obligation to register in the RCI

— GIEs are subject to obligations similar to those imposed on companies, and general clarifications. (art. 1 L. 721)

It is specified that failure to register is punishable by penalties, and that "No person may be registered in the register if he does not meet the conditions necessary for the exercise of his activity and if he has not completed the formalities prescribed by the laws and regulations in force concerning them".

¤ Declaration for registration

— (Unless otherwise provided by law) The application for registration must be sent in writing to the Economic Development Department (DDE) (formerly the Minister of State) within one month of the issue of the receipt for the declaration of activity under Law no. 1.144 of 26 July 1991, as amended, or the administrative authorisation required to carry out the activity applied for (formerly within two months of the day on which the taxable person actually began to carry out his commercial activity). (art. 2 L. 721)

The aforementioned 1-month period may be extended by the Director of Economic Development (DDE) for a period that he determines, upon request, for a legitimate and duly justified reason (taking into account any difficulties that the applicant may have in gathering all the required supporting documents).

Failing this, the administrative declaration or authorisation lapses and the case is closed without further action.

— Basic information to be provided (art. 3 L. 721; art. 5 OS 2.853)

I. For natural persons:

1. surname, customary name, nickname or pseudonym, first names and home address;
2. date and place of birth and nationality(ies);
3. family situation and, where applicable, date and place of marriage and marital status;
4. the activity or activities carried out;
5. if used, the trade name or sign(s);
6. the address of the establishment and, if applicable, that of any ancillary premises in Monaco;
   the surname, given name(s), nickname(s) or pseudonym(s), forename(s), date and place of birth, home address and nationality(ies) of the person(s) authorised to sign on behalf of the declarant on a regular basis;
7. the name of the credit institution established in Monaco where the deposit account is opened for the exercise of its professional activity pursuant to law no. 1.492 of 8 July 2020;
8. where the lessor owns the business and is a natural person: the lessor's surname, forenames and registration number in the register; - where the lessor owns the business and is a legal entity: the lessor's name or business name and registration number in the register;
9. where applicable, a statement to the effect that the business is carried on jointly ;
10. a statement that the business is being set up, or that an existing business is being acquired, or that the legal status of the business is being changed. In the latter two cases, the name, surname and forenames of the previous operator must be given in the case of a natural person, or the name or business name in the case of a legal entity, its registration number in the register and the date of deregistration. In the case of purchase or auction, the stipulated price and, in the case of division, the valuation of the business, are indicated, as well as the address for service, the title and the date of the newspaper in which the first publication required by law was published; and
11. the status of the business as of its commencement date.

II. I. For foreign companies and establishments:

1. the legal form of the company ;
2. the name or business name of the company, followed, where applicable, by the acronym used and the trade name or sign(s) used;
   the company's objects;
3. the duration of the company as set out in the Articles of Association; in the case of a company with its registered office abroad, the date on which it obtained the administrative authorisation provided for in article 5 of law no. 1.144 of 26 July 1991, as amended;
4. the address of its registered office and, if applicable, the location of its principal place of business and those of the various establishments of any kind operated by it in Monaco;
5. the date of incorporation of the company and a) for companies other than joint stock companies: the date of filing at the general registry of the extract from the memorandum of association and the date of publication of said extract in the Journal de Monaco; b) for joint stock companies: the date of filing at the general registry of the copy of the articles of association and the date of publication of said articles of association in the Journal de Monaco;
6. the amount of the company's share capital, the number of shares or corporate units representing it and their nominal value, with the exception of companies whose securities are admitted to trading on a regulated market, for which the nominal value of the securities need not be disclosed;
7. the closing date of the company's financial year;
8. the surname, name in use, nickname or pseudonym, forenames, date and place of birth, nationality(ies), home address, marital status and, if applicable, the date and place of marriage and the matrimonial property regime of: a) each of the persons authorised to administer, direct, manage or commit the company and the duration of their mandate; b) each partner or shareholder of the company, with the exception of those of companies whose securities are admitted to trading on a regulated market. Where the above-mentioned persons are legal entities, the application for registration must include the name or corporate name, the legal form, the address of the registered office, the number and place of registration in a public register, as well as the surname, customary name, nickname or pseudonym, forenames, date and place of birth, nationality(ies) and home address : a) the persons authorised to administer, direct, manage or bind them on a regular basis with regard to third parties, or their equivalents under foreign law; b) the permanent representative, where his appointment is provided for by law or regulation;
9. the identity of the person or persons designated as responsible for the basic information of the legal person and, if different, the identity of the person or persons responsible for the information on the beneficial owners;
10. the name of the credit institution established in Monaco where the deposit account is opened for the exercise of its professional activity pursuant to law no. 1.492 of 8 July 2020 ;
11. the status of the company as at the date of commencement of business ;
12. in the case of unrestricted management, the start and end dates of operations and the dates of the first and second publication in the Journal de Monaco :
    - Where the lessor who owns the business is a natural person: surname, first names, registration number;
    - Where the lessor owning the business is a legal entity: name or company name and registration number.

III. For economic interest groupings ("groupements d'intérêt économique" GIE) :

1. the name of the grouping, followed, where applicable, by the acronym used ;
2. the address of the group's registered office;
3. the purpose of the grouping and the nature of its activities, whether civil or commercial ;
4. the duration for which the grouping is formed;
5. for each natural person who is a member of the grouping, the information provided for in points 1° to 3° of I and, where applicable, the registration number in a public register;
6. for each legal entity that is a member of the grouping, the information provided for in points 1°, 2°, 3° and 5° of II and, where applicable, the registration number in a public register;
7. for the directors and persons responsible for overseeing the management and auditing the accounts of the grouping, in the case of natural persons, the information referred to in 5° above and in the case of legal persons, the information referred to in 6° above;
8. the identity of the person or persons designated as responsible for the basic information of the legal entity and, if different, that of
9. the person or persons responsible for the information on the beneficial owners; and
10. the status of the group constituted on the date of commencement of business.

— Documents to be submitted in support of the application for registration, with the exception of documents that have already been submitted with the declaration to practise or the application for administrative authorisation to practise (art. 5 bis L. 721; art. 5 bis OS 2.853)

1. depending on the case, a copy of the title deed of the premises or the certificate of ownership, a copy of the lease or the amendment registered with the Direction des Services Fiscaux, a copy of the precarious occupation agreement registered with the Direction des Services Fiscaux, a copy of the accommodation contract or the accommodation certificate;
2. in the case of management leases or the acquisition of a business or leasehold rights, the contract or deed of sale registered with the Direction des Services Fiscaux, as well as the relevant insertions in the Journal de Monaco;
3. the certificate relating to the opening of a deposit account in a credit institution established in Monaco or the bank certificate of payment of the minimum legal amount for the limited liability company;
4. where the nature of the activity carried out requires an insurance policy covering professional civil liability, the insurance certificate.

Notwithstanding these documents, the taxable person must provide the documents required to prove :

1. the identity of the declarant ;
2. the accuracy of the information given on the application ;
3. completion of the various formalities and conditions prescribed by the laws and regulations in force, and that prior authorisations have been obtained.

— Any legal entity applying for registration in the RCI must, at the same time, notify the RCI service of the identity of the person or persons designated as responsible for the basic information of the legal entity and, if different, of the person or persons responsible for the information on the beneficial owners. Any change relating to the designated person(s) must be communicated within one month of the change. These deadlines may be extended for a period of one month by the Director of Economic Development upon a reasoned and justified request. (new art. 3-1 L. 721)

With regard to the legal entity's basic information, the designated person(s) is/are responsible for :

• keeping the required information adequate, accurate and up to date ;
• communicating this information to the DDE and updating it so that it can be registered in the RCI;
• communicating the required information to the authorised agents of the DDE and the competent authorities, on request and within the specified time limit, and providing any other form of assistance to these authorities;
• keeping the required information and documents for 10 years after the date of dissolution or liquidation of the legal entity at a location in Monaco communicated to the RCI service.

¤ Supplementary and amending declarations

— Any change in one of the basic items of information must be the subject of a supplementary or amending declaration by any registered natural person or legal entity, so that it can be entered in the RCI, failing which it will be unenforceable against third parties. This declaration must be made to the department within one month of the deed recording the change or, where applicable, the issue of the receipt for the declaration of intent to practise or the administrative authorisation relating to the change concerned. This period may be extended by the Director of Economic Development for a period that he determines, upon request, for a legitimate and duly justified reason. The declaration must be accompanied by supporting documents to establish the accuracy of the amended information. (art. 4 and 4-1 L. 721; art. 6, 7, 7bis OS 2.853)

In particular :

1. partial or total cessation of activity, whether temporary or permanent, with the possibility of declaring continued registration, in the case of total cessation, for a period not exceeding six months;
2. for sole traders, the death of the registered person, with the possibility of declaring that the registration will be provisionally maintained for a maximum period of one year, and if the business continues subject to the issue of a receipt for the declaration or the obtaining of authorisation, the declaration will be made by the person or persons continuing the business, stating their identity;
3. dissolution of the legal entity;
4. the death of a partner, shareholder or manager of a registered legal entity.

¤ Automatic information and deletion

— The following are automatically included in the RCI: (art. 8 L. 721)

1. decisions ordering a measure for the protection of incapacitated adults with regard to a person registered in the register, measures of incapacity or prohibition from carrying out a professional activity, managing, administering or directing a legal entity resulting from a final court decision or prohibition from carrying out an activity, from carrying out certain operations, managing, administering or directing a legal person resulting from a final administrative decision and administrative decisions suspending or rendering ineffective the declaration of activity, suspending or revoking the authorisation to practise or the authorisation to set up;
2. judicial decisions ordering the dissolution or nullity of a legal entity;
3. the dissolution of a company on expiry of the term set out in the Articles of Association, except in the event of an extension decided by the partners under the conditions set out in article 1704 of the Civil Code;
4. failure to make the five-year declaration provided for in article 4-2;
5. a declaration that the Company has ceased trading;
6. final court decisions ordering the compulsory liquidation of the company or the total sale of its assets;
7. judgements of cessation of payments as referred to in the second paragraph of article 408 of the Commercial Code;
8. the death of a registered shareholder;
9. the reunification of all the shares in a single hand, as well as the date on which this event occurs, or the court decision granting an extension under the conditions set out in article 1703-I of the Civil Code.

— Entries are automatically deleted when: (art. 8-1 L. 721)

1. a decision of rehabilitation, removal of incapacity or amnesty is made, which removes the incapacity or disqualification ;
2. the ban set by the court expires;
3. the executive who is the subject of an incapacity or ban no longer performs his duties.

¤ Obtaining, updating, keeping and making available basic information and documents (art. 16 L. 721, art. 1-1 OS 2.853)

— Legal entities are required to keep adequate, accurate and up-to-date information and the corresponding documents for 10 years after the date on which they cease to be customers of the bodies and persons referred to in articles 1 and 2 of Law no. 1.362 of 3 August 2009, as amended.

This information and these documents are kept and made available at the registered office of the legal entity, or failing that, at another location in Monaco and in particular at one of the persons or bodies referred to in numbers 6°), 13°), 19°) or 20°) of article 1 or in numbers 1°) or 3°) of article 2 of Law no. 1.362 of 3 August 2009, as amended. The identity and address of the person who keeps the said information and documents are communicated to the RCI service.

.— Directors or liquidators are required to keep basic information and the corresponding supporting documents for 10 years after the date of dissolution or liquidation of the legal entity.

This information and these documents must be kept and made available in Monaco at a location notified to the Department of the Interior. It may also be entrusted for the same purposes to one of the persons or bodies referred to in points 6°), 13°), 19°) or 20°) of article 1 or in points 1°) or 3°) of article 2 of law no. 1.362 of 3 August 2009, as amended, whose identity is communicated to the RCI service.

Access to basic information and supporting documents, and communication to foreign authorities (art. 16-1, 17 L. 721)

This information and supporting documents are accessible on request to the following authorities:

• authorised agents of the Economic Development Department ;
• authorised officials of the Monegasque Financial Security Authority (and through it, the Monegasque Financial Security Authority, the Bar Council) ;
• authorised personnel of the judicial authorities;
• judicial police officers from the Public Safety Department acting at the request of the Public Prosecutor or on delegation from an Examining Magistrate;
• authorised agents of the seized or confiscated assets management department of the Directorate of Judicial Services.
• police officers of at least the rank of captain, individually and specially authorised by the Director of Public Safety;
• authorised agents of the Budget and Treasury Department;
• authorised agents of the Tax Department;
• authorised agents of the Commission de Contrôle des Activités Financières. (financial activities supervisor)

The information and documents provided or made accessible may be communicated to foreign authorities by the authorities referred to in the first paragraph of Article 20 of Law no. 721 under the conditions set out in Article 51-1 and Chapter VIII of Law no. 1.362, or by means of international judicial assistance.

¤ Register of company members or shareholders

— Companies must keep a register of members or shareholders (or of its members in the case of EIGs) with an indication of their identity. It must be kept and made available at the registered office of the legal entity, or failing that, at another location in Monaco, and in particular, at one of the persons or bodies referred to in points 6°), 13°), 19°) or 20°) of article 1 or in points 1°) or 3°) of article 2 of law no. 1.362 of 3 August 2009, as amended, whose identity and address are communicated to the RCI department (art. 16-1 L. 721; art. 12 OS 2.853).

If an agreement by which a partner, shareholder, manager, director or member acts on behalf of another person is declared null and void, the register must indicate the identity of these persons and designate the principal and the agent.

The information in the register must be kept up to date at all times:

• Identity of the partners or shareholders of the company: surname, given name, nickname or pseudonym, forenames, date and place of birth, nationality(ies), home address and family situation and, where applicable, their marital status, as well as their contact details.
  • Where the above-mentioned persons are legal entities: their name or corporate name, their legal form, the address of their registered office, their number and place of registration in a public register, as well as the name, surname or pseudonym, first name(s), date and place of birth, nationality(ies), and home address : a) the persons authorised to administer, direct, manage or bind them on a regular basis with regard to third parties, or their equivalents under foreign law; b) the permanent representative, where his appointment is provided for by law or regulation.

• LThe register shall also indicate the number of shares held by each member or shareholder, the categories of shares, the corresponding numbering of the shares and the voting rights attached thereto.

The register must contain all supporting documents required to establish the accuracy of the information contained therein.

¤ Publication of the RCI and communication to foreign authorities

— Basic information recorded in the RCI and accessible to the public by providing an extract from the said register: (art. 19 L. 721; art. 10 and 11 OS 2.853)

I. For natural persons:

1. the date and number of entry in the register;
2. the activity or activities carried out;
3. if used, the trade name or sign(s);
4. the address of the establishment or, if applicable, of any ancillary premises in Monaco;
5. the surname, given name(s), date and place of birth, nationality(ies) and, where applicable, marital status of the registered person and of persons with general authority to sign on behalf of the registered person on a regular basis;
6. the method of operation;
7. entries made automatically in the register;
8. the status of the business.

II. For companies, foreign establishments and economic interest groupings (GIEs) :

1. its date of incorporation, date and registration number in the register;
2. its legal form;
3. its name or business name followed, where applicable, by the acronym used and the trade name or sign(s) used;
4. its corporate purpose;
5. its duration;
6. the address of its registered office and, if applicable, the address of the secondary establishment or ancillary premises in Monaco;
   the amount of its share capital, with the exception of economic interest groups;
7. the closing date of its financial year;
8. the surname, first names, date and place of birth and nationality(ies) of each of the persons authorised to administer, direct, manage or bind the company. In the case of legal entities, their name or corporate name, their legal form, the address of their registered office, their number and place of registration in a public register and, where applicable, the full name(s) of its permanent representative;
   a) for companies other than joint stock companies: the date of filing at the general registry of the extract from the memorandum of association and the date of publication of the said extract in the Journal de Monaco; b) for joint stock companies: the date of filing at the general registry of the copy of the articles of association and the date of publication of the said articles of association in the Journal de Monaco;
9. information automatically entered in the register;
10. the main elements governing the operation of the company;
11. the status of the company or economic interest group; and
12. in the case of an economic interest group, the surname, forenames, date and place of birth, nationality(ies) and home address of the persons responsible for auditing the accounts and management control.

— The information in the RCI may be communicated to foreign authorities by the authorities referred to in the first paragraph of article 20 of Law no. 721 under the conditions provided for in article 51-1 and Chapter VIII of Law no. 1.362 of 3 August 2009, as amended, or by means of international mutual legal assistance. (art. 20 L. 721)

¤ Supervision by the Economic Development Department (DDE)

— Documentary and on-site inspections (art. 22, 23 and 24 of L. 721; art. 15 OS 2.853)

Professional secrecy may not be invoked with regard to information and documents relating to the legal entity being audited.

Authorised officers of the DDE, specially commissioned and sworn for this purpose, may carry out documentary audits and in particular:

1. carry out all necessary checks;
2. obtain all documents required to carry out the duties set out in this article, regardless of the medium, of which they may take a copy by any means;
3. obtain from the trader, partners or shareholders, managers, members of the group and any other person, any information, documents or supporting evidence necessary for the performance of their duties;
4. hear any person likely to be able to provide them with information, if necessary by means of a videoconference or audioconference system.

In the event that the documentary inspection proves impossible or unsuccessful, the aforementioned agents may access all the taxable person's business premises or premises used for business purposes, after informing the taxable person or his representative in advance, or the registered office of the taxable person, with the exception of the parts of the premises used for the private residence, in order to carry out the operations provided for in points 1°) to 4°). Access to premises or parts of premises that are not accessible to the public must have the prior consent of the taxable person or his representative.

At the end of an inspection, the authorised agents of the Economic Development Department who took part in the inspection draw up a report, in accordance with the conditions laid down by Sovereign Order.

During inspections, taxable persons' premises may only be visited between 9 a.m. and 6 p.m., or outside these hours when access to the public is authorised or when a professional activity is in progress.

Agents authorised under article 23 of Law no. 721 are bound by professional secrecy, subject to the penalties set out in article 308 of the Criminal Code.

¤ New sanctions

The new provisions implement the recommendations of the Moneyval report, which found that the sanctions applicable to legal persons and their directors or persons involved in their administration were insufficient and not dissuasive in the event of failure to comply with their obligations in terms of the fight against money laundering and terrorist financing.

— Administrative and financial penalties (art. 25 to 27 of L. 721)

— Criminal penalties (art. 30 to 36 of L. 721)

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