CMS Pasquier Ciulla Marquet Pastor Svara & Gazo > Monaco, Monaco > Firm Profile

CMS Pasquier Ciulla Marquet Pastor Svara & Gazo > Firm Profile

CMS Pasquier Ciulla Marquet Pastor Svara & Gazo joined the CMS network in April 2017. Since then, we have worked to combine a deep understanding of the local market with a global overview, collaborating with 80+ offices in 45+ countries, with over 5,000 lawyers worldwide.

Our firm, founded by three members, has now grown to one of the largest in Monaco, with over sixty professionals, including six Avocats Associés Monégasques, almost 40 associates, experts in Monegasque law, and a support team. Four of our six partners are also Avocats Défenseurs. Our team is one of the largest in Monaco.

What sets us apart?

Our Monegasque roots & history: We are strongly anchored in the Monegasque market and well familiar with the particularity and diversity of its economy. Our firm in Monaco was originally founded in 2009 by three of our six current Partners: Christine Pasquier Ciulla, Olivier Marquet and Sophie Marquet. The growth of our team was followed by nomination of three new partners: Stephan Pastor in 2018 and Raphaëlle Svara and Géraldine Gazo in 2019.

High level of specialisation: Our firm is structured around seven practice groups, each dedicated to a specific area of expertise: Banking & Finance, Business & Investments, Real Estate & Construction, Employment, Tax law, Private Clients and Criminal law. If the matter at hand raises issues of various areas of law, our teams coordinate internally, seamlessly advising you on complex matters and making us a one-stop-shop for all your legal questions.

Leading individuals: Our partners and associates are genuine experts in their fields, with attention to detail that’s second to none. The passion for our job keeps us up to date with the newest trends in the legal market all around the world. We are happy to see our firm named among the top law firms in Monaco by international directories (Chambers & Partners, Legal 500, Who’s Who Legal…), but our most valued award is the trust of our clients.

Our values: We are proud of our firm’s culture, which puts our values at the heart of what we do. We encourage our teams to deliver the “More than expected” approach. Our team has a history of providing our clients not only with sharp advice, but also with real results. We value proactivity, team spirit and the ability to keep a fresh and open mind, which is an indispensable quality of a good lawyer. We’re diverse, supportive and inclusive, embracing our corporate social responsibility and creating a culture in which every one of our people can maximise their potential and thrive.

Lawyer Profiles

Photo	Name	Position	Profile
	Me Géraldine Gazo	Avocat Associé | Partner	View Profile
	Me Olivier Marquet	Avocat Associé | Managing Partner	View Profile
	Me Sophie Marquet	Avocat Associé | Partner	View Profile
	Me Christine Pasquier-Ciulla	Avocat Associé | Partner	View Profile
	Me Stephan Pastor	Avocat Associé | Managing Partner	View Profile
	Me Raphaëlle Svara	Avocat Associé | Partner	View Profile

Doing Business In

Monaco

Monaco at a glance

Being the second smallest country in the world after the Vatican, Monaco is located at the crossroads of France and Italy and is opened on the Mediterranean basin, which gives its residents an exceptional quality of life and makes it easily accessible by all means of transportation, Nice Airport being only 22 km away from Monaco. It is about 3.3 km long and 0.6 km wide, with a surface area of about 2 sq. km, some of which has been reclaimed from the sea over the past decades, especially through the construction, between 1966 and 1973, of the Fontvieille area, which can be qualified as the Monaco business and industries district.

With 38,350 inhabitants (as of December 2020) among which 9,571 are Monaco nationals and a density of around 19,300 inhabitants per sq. km, Monaco has an urbanization that covers almost all its surface area, making it the most densely populated country in the world and contributing to maintaining real estate prices that are among the highest in the world.

For that reason, the Principality, being aware of its need for space, launched the building of a 6-hectare eco-neighborhood through an extension of the Principality’s territory over the sea. Work on the construction site has advanced well and is due to last until 2025 for a global cost of 2 billion euros. This gigantic project, which includes the construction of high-quality housing, a public car park, a pedestrian walk and a park, is marked by a strong ambition as regards sustainable development and the protection of the environment and biodiversity, in line with the sustainable city policy implemented by the Principality.

The economy

Overview

The GDP of Monaco for the year 2020 amounts to 5.97 billion euros compared to 6.60 billion in 2019. It is down by -11.8% in volume, adjusted by inflation. (Source: IMSEE).

Following two years of robust growth (+6.0% and +6.9%), GDP fell to a level slightly below that of 2018. Reaching €2.9 billion at the end of December 2021, the overall volume of trade, excluding France, is up significantly (+23.0 %), and get its pre-crisis dynamic back.

The Principality’s revenue, excluding Financial and insurance activities, largely exceeds that of 2019 and amounts to €16.0 billion, an increase of 13.3 % compared to 2020.  Source: IMSEE).

For the first time since 2021, imports from outside the European Union are higher than acquisitions from the EU. Driven by the Manufacture of other industrial products and other service activities, imports from the United Kingdom have multiplied by almost three, making it the Principality’s second largest source of import. One fifth of all trade is with Italy, still Monaco’s leading trading partner. Outside the EU, the Principality’s three main partners are Switzerland (€235 million), the United Kingdom (€226 million) and China (€218 million).

Source: Monaco Statistics (IMSEE)

Main trade sectors

Monaco has a dynamic economy, both on the local and the international levels, which has gone through a significant evolution during the second half of the past century, from an economy dominated by and dependent on the activities of the State owned Société des Bains de Mer, which runs the casinos and the major hotels in Monaco, to an economy that has managed to develop across many other sectors such as construction and real estate (20,3% of the GDP) although the real estate market remains affected by the health crisis and its economic consequences (in 2021, it counts 29 transactions and 160 million euros more than in 2020, but a decrease of 5% in volume and 17% in value compared to 2019), financial and insurance activities (18,3% of the GDP), scientific and technical activities (20,3% of the GDP), wholesale and retail business (around 13,5 % of the GDP) or industry (3.5 % of the GDP), through well-structured family businesses (mainly in the construction and real estate sectors) as well as subsidiaries and branch offices (mainly in the banking and finance as well as luxury sectors).

In 2020, the Wholesale trade major economic sector (MES) comprised 1,277 businesses and employed 2,550 employees. It generated revenue of more than €4.2 billion, down nearly 11%. It was the leading sector in terms of revenue, but only the ninth largest employer in the Principality.

Finally, the traditional sector of tourism, which highly contributed to the international fame of the Principality due to Monaco’s mild climate, its history, casinos and world famous events such as the Monaco Grand Prix, the Monte-Carlo Rolex Masters or the Monaco Yacht Show, remains important, although it was negatively impacted by the COVID-19 crisis. At the end of 2021, the hotel sector indicators, are on the rise but remain below their 2019 levels. Since March 2021, the occupancy rate has increased every month compared to 2020, especially in autumn.

Business Environment

One of the major features of the Monaco economy being that it is government-driven, the Principality is, subject to certain conditions, open to trade and foreign investments.

Despite not being a member of the EU, the Principality of Monaco belongs to the euro zone and has established permanent relations with the EU and accredited an ambassador in Brussels in 1999. In addition, its customs regulations comply with French regulations, since both countries are, since 1968, part of a Customs Union which enables capital to move without restrictions between Monaco and France and results in the Principality being part of the EU customs zone, it being specified that:

• The French customs service collects duties on the products unloaded in Monaco and pays a share to the Principality.
• Monaco taxes exportations to all countries but those members of the EU customs zone.
• By virtue of the Franco-Monegasque agreements concluded on 18 May 1963 and 26 May 2003, Monaco collects VAT on the same basis and according to the same rate as in France.

Over the past years, Monaco law firms continued to be engaged in the restructuring of the banking sector in Monaco, it being specified, however, that according to the Monaco Financial Activities Association (AMAF) and some members of the Government, this trend did not prevent the Monaco financial place to keep developing its overall resources, as over the past decade:

• The number of asset management companies has increased up to almost 100 licensed companies including banks managing more than 140 billion euros worth of assets.
• Whereas on the same period, the number of banks dropped from 35 to 30.

According to many observers and members of the AMAF this trend is the result of:

• The increased compliance costs imposed by regulators, as well as the low interest rates, which factors will continue to favor concentrations in the banking sector in small financial places like Monaco, since a larger volume of assets is now needed to generate the same profitability, while both new international clients join Monaco Banks and the overall amount of AUM (Assets Under Management) keeps growing in Monaco (from 10% in 2021), as it was demonstrated through the figures presented by the AMAF.
• The growing international recognition of the competence of Monegasque financial institutions and asset management companies in the field of asset management.

Because of this trend, the Monaco banking place has adapted and evolved towards an activity more on shore, as all the financial places in the rest of the world. On one hand, it focused on developing quality of service and asset management and new means of attractiveness for foreign clients, who represent almost the half of its turnover. On the other hand, it worked on increasing the amount of assets deposited by Monaco residents, since it was estimated that these Ultra Net Worth Individuals only deposit an average of 10 % of their assets in Monaco banks.

Besides banking and finance, the legal market kept being marked in 2020-2021:

• By the implementation of additional anti-money laundering measures enacted through law n° 1.503 of 23 December 2020 and Sovereign Order n°8.634 dated 29 April 2021, which were intended to implement the provisions of the EU 5^th Directive on the fight against money laundering, terrorist financing and corruption, as well as the development of SICCFIN controls whose reports are now heard before a specific commission named “CERC” (Commission d’Examen des Rapports de Contrôle), which in turn created work opportunities for lawyers.
• By the necessity for various kinds of companies, from small sized to international groups and from various sectors, to review their workforce structure, due to a lack of profitability, which created work opportunities for labor lawyers.
• By the maintenance of a significant number of real estate transactions, which account for a substantial part of the legal market in terms of fees, due to the exceptionally high prices of the real estate market in Monaco.
• The perspective of the signature of an association agreement between Monaco and the UE, which would have significant legal consequences in regard with running a business in Monaco. Such an agreement would indeed open the EU market to Monaco, since products and goods manufactured in Monaco are currently not easily exportable within the
  EU market. Consequently, the association agreement currently in negotiation between Monaco and the EU would aim at facilitating the exportation of Monaco manufactured products and goods and the settlement of businesses by Monaco citizens in the EU market, while maintaining in Monaco a derogatory regime consisting in the requisite of a prior Government approval for EU citizens and companies wishing to invest in Monaco.

All things considered, Monaco’s security and political stability, its tax legislation and its position as a hub for High Net Worth Individuals and as a strategic financial place at the cross-roads of Southern and Northern Europe, as well as Western and Eastern Europe, with access to the Mediterranean and world class infrastructures, make it an excellent location for investors that besides the banking and finance area, wish to develop small and medium sized companies (which are the most common types of companies in Monaco) in areas such as consulting, shipping, tourism, fashion, leisure or the industry, IP, or international groups that wish to benefit from a subsidiary, a branch or administrative offices in a place likely to provide a high quality lifestyle to their employees and executives, security and a high level of education for children.

Such attractiveness makes Monaco’s legal market quite dynamic, with a rather high and varied dispute resolution activity focused on judicial litigation, and small and medium-sized companies that continue to outsource their legal work to law firms (Avocats Défenseurs).

How to invest in Monaco

Application for a permit to carry on an activity for foreign investors (and Monaco citizens for financial activities)

According to Monaco law n° 1.144 of 26 July 1991, foreign citizens who wish to carry on a business activity in Monaco and the Monaco citizens who wish to carry on financial activities must file an application for a permit to carry on an activity in Monaco, be it as a shareholder, a manager (“gérant”), or a sole trader. Such prerequisite also applies to foreign companies wishing to create a branch office or an administrative office in Monaco.

The application must be submitted to the Minister of State (through the Direction de l’Expansion Economique), who is in Monaco the equivalent of the Prime Minister and is normally held to deliver the permit within 3 months (6 weeks are observed in practice). In the absence of a reply beyond the expiry of this 3 months’ period, the authorization is presumed acquired.

Such permit is personal and cannot be transferred or sold to a third party and delimits the business activity authorized, it being specified that any change in the said activity or its headquarters requires a new application for a permit.

Prior to the constitution of a company, such company does not legally exist if the required Government authorizations are not delivered for all shareholders and directors.

Such authorization is also required for the creation of a SAM, although being governed by specific rules provided for by the order of 5 March 1895, according which the creation of a SAM is subject to a ministerial order.

Such authorization regime, although not being common in Western Europe economies, is justified in Monaco by the will of public authorities to exercise a control over the economy in such a small country, to preserve the general interest of business.

Declaration of business activity for Monegasques citizens

Monaco citizens who wish to carry on a business activity (other than financial activities or certain regulated activities) only have to file a declaration of business activity with the Minister of State. An authorization is however required for certain specific activities.

A receipt is then notified to the declarant within 15 days of the submission of its declaration, it being specified that any modification to the activities mentioned in the declaration or to their headquarters requires a new declaration.

Regulatory environment

Besides the Monaco Government, which exercises control over each foreign investment in Monaco, other key regulators supervise specific sectors, such as the Commission for the Control of Financial Activities (“CCAF”- Commission de Contrôle des Activités Financières) for any investment regarding the financial activities run by the banks and asset management companies (be it by a foreigner or a Monaco citizen), the Prudential Supervisory Authority (“ACPR”, Autorité de Contrôle Prudentiel et de Résolution – French authority supervising banking activities in Monaco by virtue of Franco Monegasque treaties), the CCIN (Commission de Controle des Informations Nominatives – independent authority in Monaco for data protection) as well as the SICCFIN (Service d’Information et de Contrôle sur les Circuits Financiers – supervisory authority that combats Anti Money Laundering-Terrorism Financing/Corruption).

Business structures

Monaco business law is characterized by the subsistence of the ancient regime of the prior Government authorization, with in return a legislation relating to companies and other business structures which is marked by a certain contractual freedom, while being relatively inspired by French company law.

Direct investments in Monaco tend towards the creation of a subsidiary or a branch or by foreign companies, or the acquisition of existing Monaco companies by such foreign companies or individuals wishing to develop small and medium-sized businesses in a stable and dynamic business environment, it being specified that for such acquisitions, cash is in practice most commonly used as consideration in Monaco, since most sellers do not have strategic goals when selling their business and rather wish to retrieve some liquidity.

Besides these traditional means of entering the Monaco market, foreign companies also have the possibility to use Monaco to relocate the administrative functions of their businesses through the creation of administrative offices, which are comparable to a branch and benefit from an advantageous tax legislation in the Principality.

Considering the scope of the due diligences required, the need to obtain financing,
if applicable, and the applicable regulatory approval processes, the duration of the process regarding acquiring/selling a business in Monaco generally takes between 2 and 12 months.

Most common companies’ structures

The investment vehicles mostly used are the limited liabilities companies, which in Monaco are either the “société anonyme monégasque” (SAM, public limited company) or the “société à responsabilité limitée” (SARL, private limited company), it being specified that since its creation through the law
n° 1.331 of 8 January 2007, the latter replaced progressively the “société en commandite simple” (SCS, limited partnership), SARL being a corporate structure much easier to understand for investors while preserving the family character of a business.

SARL minimum share capital required is 15,000 €, which is ten times lower than that required for incorporating a SAM, making it a corporate structure particularly well adapted for small and medium-sized businesses directly owned by natural persons having a limited cash flow when starting their business, although particular attention should be paid in avoiding undercapitalization, which is closely scrutinized in Monaco by judicial liquidators (“Syndic”) in charge of companies’ insolvency proceedings when dealing with shareholders and/or directors’ personal liability in respect with the insufficiency of assets affecting, as the case may be, their bankrupt company.

SAM, in which shareholders’ liability is also limited to the amount of their contributions, are for their part appreciated by foreign investors for the development and transfer of ownership of existing companies, since unlike what is applicable for SARL:

• The sale or transfer of shares to persons or companies which are third parties to the SAM are free and are not subject to the shareholder’s prior agreement nor to the prior authorization of the Monaco Government.
• SAM can proceed to public offering through the issue of bonds.
• SAM offers a solid and reliable image, particularly sought by international groups of companies realizing most of their turnover abroad.

SAM directors may benefit from a favorable status by cumulating – under specific conditions – a corporate mandate with an employment contract within the SAM, thus involving a favorable social security regime linked to the employment status

Eventually, it is worth noting that due to the higher minimum amount of share capital a SAM requires and to its more complex rules of functioning, a SAM is more adapted than a SARL for industrial projects usually requiring greater investments. These characteristics led the Monaco regulator to make the appointment of a statutory auditor (“Commissaire aux Comptes”) compulsory in a SAM, for the purpose of exercising a general and permanent mission of supervision relating to the regularity of the company’s transactions and accounts, whereas such appointment is required in SARL only when their share capital is superior to 150,000 € or when, for two years in a raw, they reach at least two of the following thresholds:

• Their balance sheet is superior to 1,500,000 €
• Their turnover before taxes is superior to 2,500,000 €.
• They employ more than 20 employees.

Branch office

Foreign companies can create a branch office (“succursale”) in Monaco for the purpose of carrying out commercial activity in the Principality.

Branch offices are recorded on the Monaco Companies Register (“Répertoire du Commerce et de l’Industrie”), they do not have legal personality.

Administrative Offices

As a branch office, an administrative office does not have legal personality and may be created by a foreign group of companies, for exercising from Monaco effective and regular functions of administrative and financial management for the sole benefit of the said group.

No commercial activity can be performed through an administrative office, which entity is subject to a 8 % tax based on the global amount of its operation expenditures. Such office’s main advantage consists for an international group in relocating its directors and executive in a place with a high-quality lifestyle and social security regime for lower contribution amounts.

Sole trader

It is not possible, under Monaco law, to form a sole shareholder company, even though it is worth noting that the creation of such a corporate structure, on the same basis as the French “Entreprise Unipersonnelle à Responsabilité Limitée” (EURL), was once considered in the Principality, through the explanatory memorandum of the law project relating to the modernization of economic law dated
1 July 2013, which project has eventually been withdrawn.

Therefore, individuals who wish to invest and create or acquire a business in Monaco on their own may pursue such activity through the direct ownership of such business.

The sole trader status enables to start a business quickly and easily, without being subject to the constraints or the obligations imposed on companies such as bylaws, a minimum share capital, or the obligation to file accountancy documents with the Monaco Companies Register or to appoint a statutory auditor.

However, sole trading implies that the investor is liable on all his personal assets, which can also affect his/her spouse’s assets, depending on their matrimonial regime.

Advantages of Monaco as a business location

Tax legislation and Government incentives supporting businesses

Due to (i) the absence of income tax for individuals (except for certain French citizens and for US citizens), (ii) the absence of wealth tax and (iii) the 0% rate of inheritance tax on assets located in the Principality transferred between spouses and to children, Monaco remains quite attractive from a tax point of view for its residents.

In terms of business taxes, Monaco constitutes also an advantageous place for foreign investors:

• Companies which carry out in Monaco an activity other than of a commercial or industrial nature do not pay corporate tax.
• Companies which carry out an industrial or commercial activity in Monaco do not pay corporate tax on their profits provided that at least 75 % of their turnover is generated in Monaco. Should such companies realize less than 75 % of their turnover in Monaco, then they are liable for corporate tax on their taxable profits at the same rate as the one in force in France, that is to say 28 % for financial years starting as from January 1^st, 2020 (26.5 % as from January 1^st, 2021 and 25 % as from January 1^st, 2022).
• In such case, companies which are subject to corporate tax can benefit from a research tax credit based on their eligible research expenditure, which amounts to 30 % of the portion of their expenditure up to 100 million euros and to 5 % for the portion of their expenditure superior to that amount, it being specified that this tax credit is capped at 10 million euros.
• Eligible new companies benefit from a 5-year corporate tax exemption scheme : they are fully exempt from corporate tax for the first two years and benefit from a partial corporate tax exemption for the third to the fifth years (year 3 only 25 % of the tax base is subject to corporate tax, year 4 only 50 % of the tax base is subject to CIT, year 5 only 75 % of the tax base is subject to corporate tax).
• The “administrative offices regime” makes Monaco a preferred jurisdiction for the location of foreign companies’ administrative offices, carrying out management, coordination or control functions for the sole benefit of their group. “administrative offices” are subject to corporate tax at a fixed rate of 2.24 % (reduced to 2.12 % in 2021 and 2 % as from 2022), derived by applying the standard corporate tax rate to 8 % of their operating costs.
• Monaco also allows for carry-forward and carry-back of tax losses, under certain conditions.
• Last but not least, there is no withholding tax in Monaco on dividend, interest and royalties.

Labor legislation

Foreigners can occupy a salaried position in Monaco, subject to prior obtaining a work permit delivered by the Employment Department for the position they have acquired.

Apart from that constraint, which is also applicable to foreigners in other European countries, Monaco labor law is rather flexible, since:

• Employers can have recourse to fixed-term employment contracts without justifying their choice. No precariousness premium nor severance indemnity shall be paid at the termination of such contract.
• Employers can terminate permanent employment contracts without giving reasons.
• The collective redundancy procedure is much simpler than in neighboring countries such as France.
• There is a visibility over financial contentious risks: indemnities for abusive dismissal are based on legal calculation rules and capped. Monaco Labor jurisdictions therefore developed a case law with relatively constant ranges of damages attributed to employees in such cases.
• Monaco has implemented in 2016 a Law on telework. In parallel a temporary remote working system was deployed in 2020 as part of the health crisis and emergency measures related to the Covid-19 pandemic. It is worth to notice that the number of employees benefitting from telework measure has increased by 20% between 2019 and 2020 in addition to those under the temporary remote working system.

Current opportunities and prospects

The Principality of Monaco made a recent move towards the promotion and support of new technologies, through a project involving the Monaco State and Monaco Telecom, the Principality telecommunications service provider, which resulted in the creation and opening in November 2017 of MONACOTECH, a startup incubator.

This incubator currently hosts 12 startups and aims at encouraging the creation and development of innovative companies in Monaco, through the selection and accompaniment of project promoters, especially in terms of management and business strategy (business plan, banking negotiations, search for sponsors and financial support, legal and financial diligences).

Hosted entities, regardless of their legal form, are allocated a registration number by the Monaco Department of Economic Expansion, which enables innovative project promoters to develop their activity in Monaco and have an easy access to the various administrations involved for setting up a company in the Principality.

MONACO TECH is therefore an interesting opportunity for project promoters and investors who wish to develop innovative businesses in a pro-business environment such as Monaco which in addition constitute, due to its world fame, a quality brand for such projects.

https://cms.law/en/MCO/Publication/Pass-StartUp-Program-and-MonacoTech-incubator

In 2021, the state of Monaco set-up another incubator Monaco Boost. Dedicated to Monegasque citizens or spouses of a Monegasque citizen, it aims at facilitating and accelerating the creation and development of businesses in the Principality.

In general, due to its very small territory, the Principality of Monaco is seeking to refocus on activities with high added value and that consume little space. Innovation and digital technology are therefore sectors of the future for Monaco, which wishes to become a world reference in this field. Traditional industry is therefore, in Monaco as elsewhere, in decline, giving way to activities more related to research and development than to pure production.

The creation of Monaco Tech in 2017, Monaco Boost in 2021 and the appointment of an inter-ministerial delegate in charge of digital transition are strong markers of the choice made by the Principality of Monaco over the past decade towards digital transition.

Legislative and regulatory changes of 2019 impacting on business

Law n° 1.482 of 17 December 2019 for a digital Principality

This bill aims, first and foremost, to build trust in the online environment. It enshrines the principle of network neutrality and the principle of fairness of digital service platforms and provides a framework for the legal regime for providers whose business is to collect, moderate or disseminate online opinions from consumers.

The second purpose of this bill is to promote the development of digital exchanges, by inserting into the Civil Code provisions relating to the electronic stamp, the electronic original, time stamping and electronic registered mail, and by it guaranteeing a legal value equivalent to that of the original for any digitized copy. Finally, it incorporates to the Civil Code provisions which are specific to contracts concluded by electronic means.

The third purpose of this bill is to strengthen the security of digital exchanges by modifying the legal regime governing cryptographic means and by creating requirements for trust service providers that are likely to secure the use of qualified trust services.

Lastly, this bill aims to facilitate the use of digital technologies, in particular by using electronic means for exchanges between administrations and the public, by recognizing the legal value of documents and supporting documents drawn up, kept or transmitted in the budgetary and accounting framework and by establishing the possibility of using electronic pay slips in the private sector.

https://cms.law/en/mco/publication/new-bill-in-monaco

https://cms.law/en/mco/publication/act-no-1.482-of-17-december-2019-for-a-digital-principality

Law n° 1.483 of 17 December 2019 on digital identity

This bill aims to strengthen the confidence of consumers, businesses and public authorities in online communication services to the public by providing a framework for those responsible for one of these services to make tools available to their users that will enable them to certify their identity.

This text thus provides that the State may create and assign a digital identity to any natural person of Monegasque nationality and to any natural person holding a residence permit, and that a digital identifier may be created and assigned to any legal entity by an executive service of the State, as well as by private operators.

Finally, for security reasons and for the purposes, in particular, of facilitating the exchange of information between public services, the draft law sets up a Monegasque national register in which all digital identities and all digital identifiers created and allocated by the executive services of the State will be centralized. It should be noted that this bill should be considered as a general framework which will serve as a basis for specific legislations that may me introduced in the future about digital identity.

Law n°1.491 of 6 August 2020 relating to token offerings

The purpose of Law n° 1.491 on token offerings is to provide a framework for fundraising through the issue of tokens. Practically speaking, a company issues “tokens”, on a dedicated platform. If the initial fundraising amount is reached, investors will receive their tokens in exchange for the funds. In the event of failure, the funds raised, which until then had been placed in escrow, will be refunded.

Fundraising can be done in two ways :

• Initial Coin Offerings (ICOs) involve “utility tokens” that confer a right of use (use of technology, access to products and services offered by the issuer of the tokens) on their holder in return for their investment.

They are private or public and reserved for legal entities registered in the Principality.

• Security Token Offerings (STOs) only involve “security tokens” granting political or financial rights, which can therefore be assimilated to financial instruments.

The offering of tokens can then only be made by a Monegasque joint-stock company to a private circle.

In both cases, the token offering is subject to prior administrative authorisation issued by the Ministry of State. The Law also requires the use of a digital platform authorized by the Minister of State.

https://cms.law/en/mco/publication/the-principality-has-adopted-a-legislative-framework-for-tokens-offerings

The legal system

Monaco is a constitutional monarchy currently governed by the Constitution of 17 December 1962, developed from the Charter of 1848 and the Constitutional Act of 1911 which established the separation of powers in the Principality. According to the Constitution, the Prince heads the executive power. The legislative power is exercised by the National Council.

Although the Principality of Monaco has, as a sovereign State, its own legal system, the latter is relatively influenced by the French legal system and is widely based on Roman Law and the Napoleonic Code. In this respect, some important parts of Monaco law are inspired from French law, such as contracts law and delict. Indeed, it is likely that if the 2016 French reform on contract law appears to be a success from a practitioners’ point of view, the Monaco Government will consider implementing in the Principality a reform widely based on the provisions of the French reform.

Indeed, Monaco authorities use to “wait and see”, further to reforms implemented in France, as they already did, for example, when they reformed prescription delay applicable to civil matters in 2013, after France did so in 2008.

Also Monaco has recently adopted by a Law enacted on 2^nd December 2021 setting in place a wide reform of its Code of civil procedure that enters into force on 17^th February 2022.

By the effect of this reform, the Principality has modernized its civil procedures that are in majority inspired from French law. Among these new sets of new rules, as regards business perspectives, the most important enhancements concern the extension of the scope of the emergency judgments (ordonnances de référé), the possibility to obtain provisory money judgments as well as the creation of a case of emergency disclosure judgment before trial.

In terms of judicial organization, Monaco has three levels of civil jurisdictions:

• 1^st degree:
  • The Justice of the Peace, which deals with claims up to 10,000 €,
  • The First Instance Tribunal, which is competent to rule on civil and commercial litigation and certain areas of administrative disputes involving the State or public organisms, for claims superior to 10,000 €.
  • The Employment Tribunal, which is competent for disputes related to employment contracts.
  • The Commercial Lease Arbitral Commission and the Rents Arbitral Commission.
• 2^nd degree:
  • The Court of Appeal, which has general jurisdiction over appeals, except, mainly, for the appeal of some decisions issued by the Judge of the Peace.
• The Court of Revision acts as a Cassation jurisdiction which role is therefore to ensure that lower degree jurisdictions issued decisions which correctly apply the law. Although not being a third degree of jurisdiction, due to the judicial organization in Monaco, the Court of Revision becomes a third-degree jurisdiction when, after having set aside a decision of a lower jurisdiction, the Court refers the relevant case to itself, composed differently, to retry it definitively both in fact and in law.

Criminal institutions are organized as follows:

• Investigating Judge (“Juge d’Instruction”), who conducts judicial investigations which are opened either upon the request of a victim or upon the request of the Public Prosecutor. The investigating judge identifies criminal law offenses, their perpetrators and their circumstances and decides if there is enough evidence to send the alleged perpetrator before the Correctional or Criminal tribunal for trial. His orders can be appealed before the Court of Appeal in Chambers.
• Public Prosecutor (“Procureur Général”), who receives complaints and denunciations which are either addressed directly to him or lodged with the police services supervised by him. Upon receipt of complaints and denunciations, the Public Prosecutor may request the police services to carry out additional investigations as part of a preliminary inquiry or, if the case requires in-depth investigations, he may decide to open a judicial investigation by referring the case to an Investigating Judge. If there is enough evidence, the alleged perpetrator will undergo trial before the Correctional or Criminal Tribunal.
• Criminal Tribunal (“Tribunal Criminel”), which has jurisdiction over most serious offences classified as “crimes” (“crimes”) committed by adults or by minors with the participation of an adult. Its decisions are not subject to appeal and can only be referred to the Court of Revision for violation of the rules of jurisdiction, for failure to observe substantial formalities, or for violation of the law.
• Correctional Tribunal (“Tribunal Correctionnel”), which has jurisdiction over offences classified as misdemeanors (“délits”) and which are punishable by penalties generally limited to 5 years imprisonment and up to 90,000 euros in fines, as well as over offences classified as “crimes” but committed by minors under 18 years of age who are not already prosecuted as adults. The Correctional Tribunal’s decisions are subject to appeal before the Court of Appeal, which are in turn subject to review by the Court of Revision for violation of the rules of jurisdiction, for failure to observe substantial formalities, or for violation of the law.
• Police Tribunal (“Tribunal de Police”), which has jurisdiction over minor offenses (“contraventions”). Its decisions are subject to appeal before the Correctional Tribunal, which are in turn subject to review by the Court of Revision for violation of the rules of jurisdiction, for failure to observe substantial formalities, or for violation of the law.

Eventually, the constitutionality of laws is controlled by the Supreme Court (“Tribunal Suprême”), which is also competent for constitutional disputes such as actions for compensation related to the infringement of constitutional rights and freedoms. The Supreme Court also acts as an administrative jurisdiction competent in administrative cases such as proceedings for obtaining the annulment administrative authorities’ decisions and administrative acts, and rules on conflicts of jurisdiction.

Interviews

Olivier Marquet and Stephan Pastor, Managing Partners

Olivier Marquet and Stephan Pastor, the Managing Partners of CMS, discuss the Monegasque market, clients’ expectations and needs and the evolution of their firm.

What do you see as the main points that differentiate CMS from your competitors?

Olivier Marquet: Surely the size of our firm – we have grown to be the largest law firm in Monaco, with 6 partners and over 60 members, including more than 40 associates and a professional support team. The other factor would be the breadth of the offering across different fields of law, and the fact that we are equally strong across all those areas. Most of our associates have practiced abroad and speak multiple languages, which is a true advantage for the highly international clientele of the Principality.

Stephan Pastor: It is also worth mentioning that in 2017 we joined the CMS network, which reunites over 75 offices worldwide. This enables us to combine our strong Monegasque roots and local presence with an international edge, as most of the cases we handle are cross-border and demand a well-connected global network. Remaining completely independent, we are able to seamlessly exchange the know-how with our colleagues based abroad and this also adds a fresh and creative perspective to the way we handle our cases.

Which practices do you see growing in the next 12 months? What are the drivers behind that?

SP: Monaco is a very attractive place for investors, and we see the growing demand for advice in different areas of business law. The growing number of foreign nationals looking to set up in Monaco also keeps our Private Clients and Real Estate teams busy.

OM: The changing and demanding regulatory environment has a significant impact on financial institutions and we notice that there is an increasing need for advice in compliance matters. On the top of that, new ways of working and unstable political and macroeconomic situation push many companies to seek for assistance in employment law.

What’s the main change you’ve made in the firm that will benefit clients?

SP: We have decided to create a CMS Academy and to invest in AI. The CMS Academy is a customized space in our office, dedicated to our lawyers and clients, enabling them to receive continuous, high-quality trainings. We truly believe that this investment will raise the quality of our offering to the clients and will help them gain useful and practical knowledge. As far as AI is concerned, this tool will help us identify and collect a precise and specific information that we may look for in the context of our work.

Is technology changing the way you interact with your clients, and the services you can provide them?

OM: We observe the growing role of technology in the legal world for a while now and we invest in tools that are both beneficial for our clients and efficient for us in terms of managing the workflow. We use tools created specifically for the legal industry and we also develop some of them independently, in order to have the software which is perfectly shaped for our needs. The confidentiality of our files is crucial, and we have put in place numerous custom-made security and compliance tools. We also adapt each meeting to the needs of our clients and we have invested in materials enabling us to organize professional hybrid and remote meetings, as these are becoming more and more common. Nevertheless, technology being extremely important these days, we also notice an important demand for face-to-face interactions.

Can you give us a practical example of how you have helped a client to add value to their business?

SP: The structuring of our teams around distinct areas of law enables our clients to get a one-stop-shop advice. It is a very common case to have a client contacting us for advice in, for example, business law, with a matter that finally also implicates real estate or private law matters (eg. family office acting on behalf of an individual). We create ad-hoc, dedicated teams of associates, we brainstorm the case, and we are able to see it from many different perspectives, since each area of law has its own challenges and opportunities. I think that this synergy is very beneficial for our clients, who can entrust their matter to one single firm able to handle it from A to Z.

Are clients looking for stability and strategic direction from their law firms – where do you see the firm in three years’ time?

OM: I think that the legal industry is currently facing a real challenge, since the high quality of advice and global capacity are taken for granted by most clients. It is therefore crucial to innovate and develop the firm, surprise clients with creative approach. Great technical skills are no longer enough, today it is essential to be a trusted advisor who understands the real challenges that clients face. Our key rule is to listen to our clients and take their opinions and preferences into consideration.

SP: In three years’ time we would like to keep the same dynamics as we have now – focusing on innovation, with teams passionate about their work and clients who are listened to and reassured by our assistance.

What do you think are the top three things most clients want and why?

OM: Availability, a tailor-made and practical advice, being listened to. Lawyers should understand that clients invest in our work in order to get pragmatic solutions to their problems or new ways helping them develop their business. From our experience, they also like being involved in the strategy, the advice shouldn’t be imposed but discussed together to find a solution which is effective from the legal point of view, but also makes the client feel comfortable.

What do you think makes a great lawyer?

SP : I think that keeping a fresh and open mind is an indispensable quality of a good lawyer. Obviously, you have to be meticulous, strategic, able to foresee the consequences of different strategies, but most importantly you have to be a good listener, observer and a team player. At CMS we believe that we are stronger together, as a team. Collaboration and synergy are crucial. The language we use matters, you never speak about “my case”, it’s always “our case”. It’s all about how successful you are making your client, the team, and not yourself individually.

Do you have any internal policies regarding the ESG ?

OM : We are proud of our firm’s culture, which puts our values at the heart of what we do. We engage in many charity initiatives, both locally and on an international level together with the CMS network. This year we started an official, internal group focusing on our ESG policy, as we are trying to raise awareness of our employees regarding the ecological issues, introducing simple, but consequent actions in the office. Reducing paper waste and printing, promoting the digitalization of documents, looking for sustainable mobility solutions for commuting, energy reduction, recycling etc. are some of our goals. We also joined the Monegasque National Energy Transition Pact in November 2019.

Comparative Guides

• Monaco: Banking & Finance

  Published: February 2023

  Authors: Olivier Marquet Victoria Moreau

  This country-specific Q&A provides an overview to Banking & Finance laws and regulations that may occur in Monaco.