MODERNISATION/Some reforms appear to be increasingly urgent for certain civil society professionals or institutions. National Council elected representatives have been forewarned.
Civil society has its say in the running of a State. Particularly in a country where only a minority fringe has voice by means of an election. In fact, only the Monegasques have the right to vote in general and local elections in Monaco. So, as in other countries, it is often through the Economic and Social Council (ESC) that public opinions are expressed in Monaco. “After the Second World War, in most countries there was a desire to give civil society a greater say. It was at that time that economic and social councils, trade unions, professional orders and various other organizations came into being,” explains the president of the Monegasque ESC, André Garino. What is their function? “The opinions of the ESC are not intended to engage the government but to provide full, diversified information on what civil society thinks. So it is a form of participative and representative democracy,” he says. Some ideas have moreover broken through as far as obtaining legal effect. “The idea of teleworking came from our meeting in 2007,” recalls André Garino, ESC president. “There were high expectations within civil society, from both company leaders and employees.” The areas of interest are various. An apolitical assembly, the ESC has formulated 800 wishes in 70 years. It has even prepared a report on Monaco’s traffic black spots and places that are dangerous, for pedestrians in particular. The only downside is that its reports are not accessible to everyone – never mind published on the web. This inevitably hinders public debate.
Another body has been in existence since 2011 – the Strategic Council for Attractiveness (SCA). “The topics covered and discussed have been many, and of great importance for Monaco’s future: the welcome plan, e-administration, reduction in administrative times, improved communication between users and the administration, accessibility for people with reduced mobility, the number of events and their location, competition with other iconic cities, the development of Boulevard des Moulins, office and construction tenancies, establishment of family offices, VIP attractiveness etc.,” summed up former Minister of State Michel Roger. Through different commissions, the method is the same. “The idea is to interview foreign residents and establish a series of new working themes,” explains Robert Calcagno, director of the Oceanographic Museum and president of the Quality of Life commission. They include “the taxi service – the weak link in travel, whose quality and availability are frequently considered lacking; public safety and matters related to reinforcing the protection of adolescents.” The influential SCA thus emphasises transparency and dialogue, requesting that a town plan on the scale of the city is prepared “in coordination with local business players but also with the neighbouring towns, with a view to consistency in future construction plans and infrastructure (transport, environment, housing etc.)” It points out some issues: noise (building sites, motorcycles) and urban renewal (slippery pavements, poor coordination of works and lack of information).
Speed up business creation
Its recommendations include one widely shared by economic actors – simplification of administrative procedures and a shortening of the times required, to foster the setting up of businesses. This recommendation has had a favourable response. Although the law still stipulates a 3 month period for the issue of a business licence, according to the SCA an entrepreneur may a priori “start invoicing 40 days after applying” and submitting its file application. But does that suffice for Monaco to seem like the promised land of entrepreneurship? It is not certain. “Even in France, you can establish a company 10 times faster,” mocks one leader.
A sign of changing customs, recently a text coming from representatives of civil society was transformed into a bill. Drafted by lawyers and then approved – unanimously – by National Council members on 29 June, it is intended to protect the moral integrity of persons by illegalising defamation and insult when uttered because of disability, origin, sexual orientation, real or supposed belonging or not belonging to an ethnic group, nation, race or religion. This transformed test also shows the weight civil society can take on, even in Monaco. L’Obs’has created an overview of the ideas submitted by institutional representatives of civil society (ESC and SCA) and the two sides of industry, but also by professionals, relays of investors or all citizens.
_Milena Radoman and Sabrina Bonarrigo
IDEAS/
The impetus of youth
A Youth Economic and Social Council has been in existence since November 2007. What is its goal? “To hatch a youth civil society,” according to ESC president André Garino. 36 high school students aged 16 or 17 give their opinion on what needs changing. And they are sometimes successful, as shown by the actual introduction of alcohol tests on leaving nightclubs in 2009, or the use of road surfaces to generate energy. Their latest wishes recommend achieving zero waste in school catering in Monaco, creating a cable link between the cruise terminal and Monaco-Ville, and a wave power plant in Monaco. Go youth! _M.R.
ECONOMY/
Connected reforms!
Professionals operating in many areas are awaiting approval of the law to modernise the economy, still under National Council review. However, lawyer Thomas Giaccardi is challenging the drawing up of too long a text. “With hindsight, it’s clear that all those long texts could never come to fruition. Be it for the code of criminal procedure, the environment code, or now the code of business law modernisation.” According to the lawyer a methodological problem is leading to a disconnected reform, “We entrusted law professors outside Monaco with the task of reworking a totally new code without considering the existing one, which is not aligned with the practice of the Monegasque business world. Moreover, consultation with professionals will take place only when the bill is ready.”
Another urgency: to give a branch of the new economy – the digital economy – the means to grow. “In order to develop the sector, we need to fill the gaps. At present there are real shortcomings, particularly regarding protection of computer data. There is no criminal offence for computer fraud and hacking. That’s the first thing new investors demand!” This is a flaw that should settle the approval of the cyber crime law by the end of 2016. As for the law on the Digital Economy passed in 2011, its implementing regulations are still pending…
LABOUR/
Protect employees working in basements
The Economic and Social Council advocates a new measure: protect employees working in basements, in so-called ‘blind’premises, in difficult conditions “likely to cause physical or mental harm”. According to the regulations, premises are considered blind when the first light source is more than 6 metres from the place where the employee is located. The authorities could impose fines for non-compliant premises. Another idea in the works: the ESC is also advocating the creation of an unemployment benefits scheme in Monaco.
LABOUR/
Why not boost severance pay?
Monaco dreamed of a labour code one day. Now the idea seems well and truly buried. And the employment contract and salaries bills shelved. For the Union des Syndicats, it is nevertheless crucial to amend article 6 of the employment contract law which allows an employer to dismiss an employee on a permanent contract without cause. “It is inhuman to tell an employee from one day to the next that they must leave their job and go home, without giving them any justification,” has often said Christophe Glasser, the new secretary-general of the USM, who would like to see the obligation for the employer to justify the dismissal ratified in the law. Wishful thinking, going by the latest statements of the Minister of Social Affairs, Stéphane Valeri, for whom there is no consensus in Monaco to abolish article 6.
Blocking
A National Council member from 2003 to 2008, lawyer Thomas Giaccardi witnessed the submission of the employment contract bill (the most recent one). Convinced that it “is urgent to legislate in the labour area,” the lawyer deplores “the obvious blocking of this text” and would like “parliament and government to shoulder their responsibility to finally reform the employment contract.” He highlights another problem – the capping of severance pay. “What shocks me is not article 6 itself, as it allows some flexibility, but the limitation of severance pay to a maximum of 6 months’salary, as provided by law.”
On the employers’side, Fedem president Philippe Ortelli proposes reviewing the law on redundancy. “Elimination of the position must be able to be caused by proven economic difficulties or defined technological changes, but also form part of a reorganization undertaken to safeguard the company’s competitiveness, ensure better organization or a more rational management of it,” he states.
ECONOMY/
For corporate foundations
In the Economic and Social Council we want to see corporate foundations established. At present, only natural persons can create them. A law would allow business leaders based in Monaco who want to offer their sponsorship as a legal person “to include their action in a philanthropic or cultural type of approach, entering the economic and social fabric of Monaco,” the ESC explains.
LABOUR/
Sanction harassment
For the Fédération des syndicats de salariés de Monaco (F2SM) this is an urgency. “No law on harassment at work, whether sexual or moral, has been approved yet in Monaco. Yet more and more cases of burnout and depression are being recognised at the occupational health service. The increase is fairly significant,” Jean-Luc Cloupet explained recently to Monaco Hebdo. “Employees need the opportunity to appeal, either to the department of employment or the labour inspectorate, to state that they are a victim and bring the evidence. There is a real legal vacuum,” says the lawyer, who is waiting for the National Council to take in the subject. A bill aimed at preventing harassment and violence at work was submitted to the National Council in December 2012…
ECONOMY/
Expand the law on tenders
In most countries, a tender or a notice of competitive public tender is a call for competition by a public procurer to address public spending. What is the logic behind that? The commendable desire to spend public money properly. Yet according to business lawyer Thomas Giaccardi, Monaco’s laws are flawed. He is relentless, “We must amend our law on tenders in public procurement. The existing rules, that take up no more than a page, are insufficient, inaccurate or not restrictive enough. Today, the State must equip itself with legal tools that guarantee greater transparency.”
CRIMINAL LAW/
For criminal appeal and sanction the misuse of corporate assets
Justice and legal security are a guarantee of attractiveness in a country. Yet for lawyer Frank Michel, a top priority is establishing criminal appeals. “Why does a two-stage procedure not exist for the most serious cases? It is contrary to the European Convention on Human Rights. That’s somewhat shocking.” And reminding us with a smile that “the ideological basis of the absence of criminal appeals in France is based on the sovereignty of the people who are always supposed to be right. The concept does not exist in Monaco.”
At the same time, the criminal lawyer shows that he also favours French style indictment (which is accompanied by an adversarial debate) and the appointment of a judge of freedoms. “In this context the lawyer has the opportunity to appeal the conviction.” Finally, he advocates the introduction of assisted witness status in Monegasque law. “We need an intermediate status that is lighter than indictment, allowing access to the records.” He regrets that in Monaco we incorporate “solely punitive provisions, contrary to the rights of the defence, as shown by the bill on internal security. For example, I deplore the introduction of the principle of opportunity concept, and the suppression of the possibility to raise nullities up to the sentencing hearing.”
Another reform is desired by some judicial players: incrimination of the misuse of corporate assets. “Today, misuse of corporate assets is reclassified as breach of trust when specific legal texts are needed,” the former Bar President argues.
TRIAL PROCESS/
Functioning of justice: can do better
There is general consensus. With its 11,6 million budget, Monegasque justice is far from becoming ‘homeless’like its French counterpart. However, according to lawyer Thomas Giaccardi, heading a survey of thirty lawyers, “its functioning can be improved”. How? “For example, the interlocutory provision does not exist in Monegasque law. Its integration would allow part of the claimed amounts to be received quickly, when a debt is not questionable. Ditto for interlocutory in futurum proceedings, intended to retain or obtain evidence before any trial. This procedure would prevent deterioration of evidence and enable us to know whether it is worth progressing to a trial.” A bill is now under review at the Council of State to modernise civil procedural law. But according to Thomas Giaccardi the problem “is the over-strong tendency to model Monegasque law on that of our neighbour country. There is a cruel lack of ambition! While many French reforms are common sense, they are often dictated by cost saving considerations. Why should we import these issues when our constraint is not budgetary?” The lawyer therefore proposes drawing inspiration from the law of other countries. Why not from the Italian civil procedure of proof and hearing of witnesses, which allows the judge to hear testimony for divorce or contract performance cases?
PROPERTY/
For a lease observatory
In its latest report, the high council for attractiveness listed the reforms to be finalised quickly. In particular, in the property area they include defining the calculation of leasable areas and differentiating the construction index of buildings intended as residential from that of buildings “for office use, to encourage private developers to develop this sector”. The SCA property committee is currently working on a new lease, without commercial ownership. “This new lease with commercial ownership, which is more flexible, would be concluded by mutual agreement of a landlord and their tenant. This contractual freedom will entail less financial risk for companies wishing to set up in Monaco and will enable us to enrich our commercial offering in the presence of increased competition.” The SCA also proposes creating a lease Observatory managed by IMSEE, that “would give us a real picture of the rentals market in Monaco (commercial, office, residential and industrial leases) and allow us to analyse any increases.”
SOCIETY/
Alternating custody and cohabitation on the menu
“Is the law a reflection of dogmas or a principle of sociological reality?” For lawyer Thomas Giaccardi there is no debate and the second option takes precedence! “In a country in which almost one in every two couples divorces, it is abnormal that alternated custody does not exist in the texts,” he laments. “Today we use a balancing act by fixing the residence at one parent’s address and rights of access at the other every other week – with the consequences this entails regarding payment of the allowances.” Another reform to undertake quickly is the institutionalisation of cohabitation. “It is already reality for part of the population, whether couples are heterosexual or homosexual. We should not act hypocritically. We cannot always hide behind the fact that Monaco is a concordatory State for postponing reforms, taking social reality into account,” warns the lawyer. In 2014, the Union Monégasque parliamentary group submitted a bill to recognise cohabitation. According to the text, which is far from being passed as it is, an agreement signed before a notary named “Pacte de vie commune” (PVC) (Cohabitation Pact) gives unmarried couples rights, same sex couples included. The Horizon Monaco majority has promised its approval in 2017. But given the speed of the legislative process, it will take several more months – or even years – for this bill to become law.
Gay marriage, however, is the subject of debate. The union of homosexual couples has just been passed in Italy but in Monaco it is far from being on the agenda. “90% of homosexuals are against it,” says another lawyer, Frank Michel, who is also against surrogacy. “Surrogacy is a serious danger as we are getting into the commercialisation of women’s bodies,” continues the lawyer, shocked by what Pierre Bergé came out with during the debate on marriage for all in France: “We cannot make distinctions of rights, whether for ART, surrogacy or adoption. I am for all freedoms. Renting your womb to create a child or renting your arms to work in a factory, what’s the difference? It makes a distinction that is shocking.” That does not rule out that the debate will be on the agenda in Monaco one day. Staunchly Catholic Ireland passed marriage for all in 2012, in a referendum with 62% of votes.
SOCIETY/
For a law legalising abortion
Lawyer Frank Michel advocates legalising abortion. “There is great hypocrisy today. Women who want an abortion get one in Nice. But abortion should not be carried out for reasons of convenience, of course. We need to strike the right balance.” A right balance that elected member Eric Elena will have to strike. His Renaissance party has in fact announced the imminent submission of a bill to that effect.
_Milena Radoman and Sabrina Bonarrigo
