Publications

Estoppel, legal principle of limited application

28 September 2017

Estoppel is a legal principle of Anglo-Saxon origin whereby a party is prevented from making assertions that are contradictory to the detriment of its opponents. It is generally referred to as “the prohibition of contradicting oneself to the detriment of another”. It constitutes, in civil proceedings, a plea of ​​inadmissibility, that is to say, a means of defense which results in a final termination of the proceedings without any debate on the merits.

Far from embodying a general prohibition of contradicting itself to the detriment of others, the principle of estoppel may only be usefully opposed only under certain conditions: the contradiction which it is supposed to sanction must result from a change of position in law of a litigant liable to mislead the other party in its intentions and intervene in the same proceeding.

In a recent decision of 22 June 2017, the Court of Cassation persists in its restrictive tendency by imposing two additional conditions:

– The first requires that the contradictory positions be adopted in the course of a “judicial debate”. In the present case, a party was accused of having contradicted itself in its “writings” by adopting a position contrary to that taken in correspondence exchanged with its opponent before referral to the courts. The Court of Cassation considered that only judicial writings filed by the parties had to be taken into account in assessing whether there was a contradiction. The formula used by the High Court also suggests that even exchanges after the issuance of the summons could be indifferent.

– The second consists in taking only into account a contradiction between “claims” (that is to say, claims made in the context of the legal proceedings initiated). Only allegations (i.e. the facts relied upon) would not allow a characterization of a breach of the duty of coherence of the litigants.

In the Principality of Monaco there is little published case law on the subject. The Higher Court has a tendency to leave the task of defining the elements capable of characterizing estoppel to the discretion of the trial judges. It merely states that the principle requires a contradiction capable of characterizing procedural disloyalty. The Court of Appeal was able to point out that the contradiction must take place within the same procedural framework (thus meeting the requirements of the Court of Cassation) and between the same parties. It also seems to require that the contradiction be invoked in bad faith by the litigant to whom it is reproached, thus, in a way, referring to the notion of procedural disloyalty

It can therefore be argued that the Monegasque courts, like those in France, have a restrictive interpretation of the principle of estoppel, thus demonstrating their willingness to grant the litigants a certain tolerance in the development of their arguments.

AUTHORIZATION TO LEAVE THE COUNTRY FOR ANY MINOR UNACCOMPANIED BY THE HOLDER OF PARENTAL AUTHORITY

17 March 2017

The Government of Monaco, by Ministerial Order No. 2017- 4 of 12 January 2017, has implemented proceedings for obtaining permission to travel abroad of a minor who is not accompanied by a holder of parental authority, similar to proceedings that have been made mandatory in France since 15 January 2017.

This authorization to leave the country was reintroduced by the French Parliament by Article 49 of Law 2016-731 dated 3 June 2016, the details of which have been specified under a decree of 2 November 2016 and an order of 13 December 2016, to deal with the departure of minors to conflict zones.

In order to avoid any inconvenience to its residents in the event of a minor’s departure from France, the Principality has introduced a similar obligation.

In practice, this authorization is requested by filling out a form (http://service-public-particuliers.gouv.mc/content/download/11003/140517/file/AST_Formulaire_Mco%20V170106-2000-LB.pdf), providing the following information:

–       surname (and commonly used surname, if applicable), first name and middle names, date and place of birth of the minor authorized to leave the country;

–       surname (and commonly used surname, if applicable), first  name and middle names, date and place of birth of the holder of parental authority who is signatory to the authorization and the capacity under which that authority is exercised, address and, where appropriate, telephone contact details;

–       duration of the authorization, which may not exceed one year;

–       signature of the holder of parental authority.

This duly completed and signed form must be accompanied by a legible copy of a valid official identity document of the holder of parental authority.

 

Further progress in jurisprudence on International Letter Rogatory and respect for fundamental freedom.

24 February 2017

In a final ruling issued on 2 February 2017, on behalf of two of our clients, the Court of Appeal, sitting in Chambers, Investigating Court of Second Instance, declared that it was the “jurisdiction to guarantee the respect
for the rights of the defense “and retained its competence to rule on the application for release of the frozen bank accounts presented regardless of the procedural status of the case in the requesting country.

On the merits, it then granted the application for release by providing, on this occasion, useful information on the reasonable period of time during which such provisional and/or probationary measures may last while Monegasque provisions are silent on the subject.

International Letter Rogatory – Remedies and sanctions for violation of Article 6 of the ECHR

21 November 2016

According to the decision rendered on 13 October 2016 on an application lodged by our Law Office on behalf of one of our clients, the Court of Appeal, sitting in Chambers, had the opportunity to once again issue a reminder of the principles established by the Court of Revision concerning the right to access the file for any person subject to an International Letter Rogatory (“ILR”), on the basis of the defence rights guaranteed by Article 6 of the ECHR.

In this case, following the freezing of bank accounts in Monaco pursuant to an ILR of the French Courts, only a partial transmission of the request for mutual assistance and of the documents drawn up while implementing the ILR had been effected. The appendices to the request for mutual assistance and the appendices of certain minutes of enforcement procedures were missing.

As all requests to the Attorney General to obtain copies had remained unsuccessful, an appeal was launched in front of the Court of Appeal, sitting in Chambers.

Noting that the parties had requested a copy of the ILR file even before the return of the related documents to the requesting foreign authorities, the Court refused to stay the proceedings pending a possible regularization by the Public Ministry and sanctioned the infringement of the applicants’ rights of defence, by pronouncing the release of the relevant freezing measures.

On this occasion, duly implementing the recent case law of the Court of Revision (sentence of 3 March 2016, M. c. / CA.), the Court ruled that:

« (…) The respect of the rights of defence requires the disclosure of all material relevant to the decision of the freezing of GR and MR’s assets, and it is irrelevant that the missing documents were not essential to the implementation of the measures requested, as alleged by the Public Ministry, which their lack of communication does not allow moreover to evaluate. » (G. R. and R. v. / MP, 13 October 2016).

The case law is now well established as to the communication of the case file.

However, there still remains a step to be taken with the recognition by the Courts of the admissibility of an appeal in order to challenge the criteria laid down by law under which the Attorney General and the Director of Judicial Services allow the execution of the ILR, similar to that already in place in many countries, such as Italy, Switzerland or Luxembourg.

Monaco in the age of teleworking

21 July 2016

The Teleworking Act No. 1429 of July 4, 2016 came into effect on July 16, 2016 in accordance with public policy rules.

In the absence of bilateral agreements on social security with other countries, teleworking can be only be carried out, for the moment, in the Principality and in France. Discussions with Italy are still ongoing.

It consists of performing regular work outside of the employer’s place of business, with the use of information technology, to the extent of two-thirds of the total working time.

Prior to the introduction of teleworking in the company, the employer must:

  • Inform staff representatives of organizational arrangements and implementation of the teleworking project, as set out in Article 2 of the Ministerial Decree 2016-425 of 1 July 2016

 

  •  Send these by registered letter with acknowledgment of receipt to the Director of Employment

Teleworking can be implemented upon receipt of the declaration of conformity from the Department of Employment or, in the absence of any answer, after the period of two months.

Teleworking must then necessarily be agreed in writing between the employer and the employee concerned or by the initial employment contract or by an amendment to it, which shall include the mandatory provisions listed in Article 1 Ministerial Decree No 2016-425 of 1 July 2016.

The introduction or termination of teleworking must be declared to the Employment Office in order to update the work permit or the employment declaration.

The termination of the amendment to the employment contract may take place at the request of either party by registered letter with acknowledgment of receipt, within six months of signing, with a notice period of one month.

In all other cases, any issues arising concerning teleworking require the agreement of both parties.

The Act affirms the principle of equal treatment between teleworkers and employees working exclusively on the premises of the employer, both in terms of individual rights and in terms of collective rights. It also stipulates specific obligations of the employer with regard to teleworkers.

The Act No. 1429 strengthens the provisions of Article 9 of Act No. 1.144 of 26 July 1991 on the exercise of certain economic and legal activities. If the company does not have the premises or staff enabling effective activity in Monaco, the Minister of State may withdraw, suspend or revoke the administrative authorization given.

Non-compliance with certain provisions of the Act is punishable by a fine.

Filing obligation relating to a Change of Beneficial Owner

25 July 2014

Pursuant to Law N°1.381 of 29 June 2011, any legal entity (other than civil companies[1] incorporated in Monaco) which hold rights in rem in immovable property located within the territory of the Principalty of Monaco, regardless of the place of its registered offices or the national law applicable to it, is subject to an annual obligation of filing with the Monaco tax authorities in respect of a change or an absence of change of the identity of the beneficial owner or of one of the beneficial owners of those rights.

Failure to make such filing or a late filing would expose the company to a tax fine.

The aforementioned legal entities must appoint a professional representative duly accredited[2] by the Monaco tax authorities, who will be in charge of such filing.

With regard to the time period between 1 July 2013 and 30 June 2014, the declaration of the change or of the absence of change of beneficial owner must be filed between 1 July and 30 September 2014.

For more information, please contact:

Arnaud Zabaldano – azabaldano@zabaldano.com


[1] save for civil companies incorporated in Monaco as société anonyme or société en commandite

[2] A. Zabaldano is a duly accredited professional representative