The SICCFIN Control Report Review Commission (the “La Commission d’Examen des Rapports de Contrôles” hereinafter “CERC”) was established by Law n°1,462 of June 28, 2018 amending Law n° 1.362 of August 3, 2009 and is responsible for formulating proposals for sanctions to be imposed on the Minister of State (“Ministre d’Etat”) in the event of non-compliance by reporting entities with obligations related to anti-money laundering and terrorist financing (AML/FT), the failures of which would have been previously recorded by SICCFIN in a report.

By creating the CERC, the AML/FT legislation has thus created an independence between the supervisory authority (SICCFIN) and the prosecuting authority (CERC) that did not exist until then.

Since the establishment of the CERC, its procedure has been modified several times, especially by :

• The law n°1503 of December 23, 2020 (reinforcing the system of fight against money laundering, terrorism financing and corruption) which introduced in particular a new simplified procedure in case of simple warning considered by the CERC (art. 65-2 Law n° 1.362);
• Sovereign Orders n°7.065 of July 26, 2018, n°7.285 of January 10, 2019, n°7.559 of June 28, 2019, n°8.634 of April 29, 2021 or more recently with Sovereign Order n°9.125 of February 25, 2022;
• The law n°1.520 of February 11, 2022 introducing new rules applicable to the ordinary procedure, whose adversarial character is reinforced (art. 65-3, 65-4 Law n° 1.362);
• Sovereign Order 9.170 of April 4, 2022, which created a new article 57-1 establishing the procedures for recusal of CERC members.

Numerous deadlines must be satisfied within the framework of this procedure, being specified that this one is singular by the existence of many particularities.

For example, under the ordinary procedure, the Minister of State has a period of 18 months from the date of referral to the CERC to notify in writing to the organization concerned any grievances that may be qualified as serious, repeated or systematic breaches of the AML/FT legislation. Failing this, the procedure will be terminated and no further action may be taken on the procedure that was initiated.

Again by way of example in the ordinary procedure, in the event that the body concerned has been notified of the objections, it will have a period of two months in which to formulate its written observations in response, it being specified that an additional period of time may be granted by the Chairman of the CERC upon reasoned request.

In the event of administrative and/or financial penalties being imposed by the Minister of State (“Ministre d’Etat”), the bodies in question may initiate recourse before the Court of First Instance within two months of the date of notification (art. 67-4 Law n°1.362).

Finally, please note that as of April 2022, to our knowledge, no legal action has been initiated.

Régis BERGONZI’s team is at your disposal to explain the particularities of this contradictory administrative procedure, to explain the financial and reputational stakes for your organization and to provide useful assistance during the various procedural stages.

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Financial activities in the Principality have been regulated differently according to the evolution of Monegasque legislation. In 2021, when Law n°1.515 came into force, these activities were drastically limited regarding unlicensed financial companies, i.e. financial activity companies and credit institutions that had not requested and/or received a license from the Commission de Contrôle des Activités Financières (CCAF).

Indeed, when it came into force in December 2021, Law n°1.515, prohibited these companies from welcoming solicitations made by potential customers, a process commonly referred to as “reverse solicitation”, in addition to prohibiting any approach aimed at offering, regardless of the place or means used, financial services or products, which was already prohibited in the past.

As it stood, unlicensed companies had their scope of business reduced to zero, as the law prohibited “solicited or unsolicited” business. Thus, how were such companies supposed to approach or acquire new clients in the Principality? Only the possibility existed for unregistered companies to go through the intermediary of a company registered in the Principality, but it does not seem that this was put in place in practice…

It is then that the Law n°1.529 of last July 29 came to soften certain provisions and thus to clarify what would be henceforth allowed.

Under the new section 29 of the Act, the principle remains a rather general prohibition. Indeed, the article reiterates the provision according to which “any person or entity not authorized under the conditions provided for by the present law is prohibited from taking any steps, whether solicited or unsolicited, on the territory of the Principality, with a view to offering, regardless of the place or means used, financial services, instruments or products to persons domiciled in the Principality“.

However, the article goes on to introduce important exceptions:

1. The law now introduces an exception related to the nature of the potential client. Indeed, the prohibition does not apply when the person domiciled on the territory of the Principality is an institutional investor; an authorized company or a client of an authorized company when the steps are carried out through its intermediary. Here are therefore 3 targeted categories of potential clients who fall directly outside the scope of article 29.

2. With regard to solicitation, it is specified that the prohibition referred to in the first paragraph does not apply to events organized on the territory of the Principality which bring together professionals from the banking and financial sector, subject to prior notification of the Commission and unless the Commission gives an unfavorable opinion. Consequently, approaches made on the occasion of these events would be considered as authorized.
3. The third exception arises from a reading a contrario of article 29-1, which provides that “all unsolicited approaches made at a distance with a view to offering financial services, instruments or products to persons domiciled in the Principality, regardless of the means of communication used, are also prohibited to any person or entity that is not authorized under the conditions provided for by this law“. In fact, this provision suggests that solicitations, made at a distance, with a view to offering financial services, instruments or products to persons domiciled in the Principality, are now permitted. In fact, the legislator has not specified “all approaches, solicited or not” but only “all approaches, not solicited”, thus leaving the possibility of accepting the famous reverse solicitation, provided that it is carried out at a distance.
   This third exception nevertheless raises the question of the exact definition of “domicile” and what this notion excludes. Without any further clarification from the legislator, it is appropriate to refer to article 79 of the Monegasque Civil Code, which states that “a foreigner holding a residence permit is presumed, in the absence of proof to the contrary, to have his domicile in the Principality. Companies and legal entities having their registered office in the Principality are deemed to be domiciled there“.Even if this is a simple presumption, which can be overturned by any person who has an interest in it, the fact remains that this definition covers a large part of the foreigners present on Monegasque territory. Indeed, any foreigner who holds a residence permit will be deemed to be “domiciled” in Monaco. Foreigners who are only passing through Monaco, such as visitors, who do not hold a residence permit, would be excluded from this definition.
4. Finally, this same article specifies that the prohibition does not apply when the person domiciled in Monaco is already a client of the non-authorized person or entity. The clarification is finally provided: entities may freely continue a client relationship already established before the entry into force of this law. We understand from this provision that the relationship must already be established (contractually) and that any form of discussions, negotiations or talks cannot fall within the scope of this exception.

Summary of the exceptions introduced by the Law n°1.589 :

Unauthorized persons or entities may take steps, whether solicited or not, on the territory of the Principality to offer financial services, instruments or products, regardless of the place or means used:

– to institutional investors domiciled in Monaco;

– to approved companies domiciled in Monaco;

– to the client of an approved company in Monaco if the procedures are carried out through the latter;

– persons who request their services, provided that these steps are taken remotely to offer financial instruments or products to persons domiciled in Monaco,

– to people who are already customers of the offering company.

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The conjugal life of spouses and its consequences do not escape the phenomenon of contractualization. Beyond the traditional choice of “matrimonial regime”, couples now plan much more than the property consequences of their union. They also choose the law applicable to the matrimonial regime, since the definition of a same matrimonial regime varies from one country to another.   

Marriage is, in most cases, subject to a matrimonial regime, whether chosen by the spouses or imposed by law. Indeed, if the spouses do not provide for anything, suppletive provisions fill the absence of a contract. For example, in the absence of any contract, Monegasque law designates: the law of the country where the spouses establish their domicile after the marriage. In the absence of a common domicile on the same territory, it will be the law of the country of which the spouses have the nationality and, failing that, the Monegasque law[1].

If, by virtue of these suppletive rules, Monegasque law would apply, the spouses would then be married, by default, under the regime of separation of property [2](« Séparation de biens ») by virtue of which each spouse has the free administration, enjoyment and disposal of his or her property and is solely liable for his or her debts[3].

Let’s see now how things can be arranged when the future spouses wish to foresee the future…

By adopting the Law n°1.448 of June 28, 2017 on Private International Law, the Principality of Monaco has provided itself with legal tools allowing future spouses, often of different foreign nationalities, to choose the law applicable to the marriage and the law applicable to their potential divorce, which could thus be different. 

The preparation of this law already took into account an existing reality, namely the drafting of prenuptial agreements for Anglo-Saxon nationals and the willingness of future spouses to us them internationally. Moreover, the explanatory memorandum of this law confirmed that this text would thus allow the recognition in Monaco of prenuptial agreements[4].

However, as per the Monegasque system, the choice remains limited to specific options. As regards the law applicable to the matrimonial regime, the spouses may choose between: the law of the country where the spouses establish their domicile after the celebration of the marriage; the law of a country of which one of them is a national at the time of the choice, the law of the country where one of them is domiciled at the time of the choice, or the law of the country in which the marriage is celebrated[5].

With regard to the law applicable to the divorce, the options offered by the Private International Law are: the law of the country of which both spouses are nationals; the law of a State of which either spouse is a national or the law of the State in which they have their common domicile[6].

If the Monegasque judge were to hear the divorce, by virtue of article 40 of the Law on Private International Law[7], he would have to verify whether the spouses had made a choice beforehand. If this is the case, the marriage certificate will bear a mention in the margin, confirming the existence of a contract, which he will have to take note of.

Marriages celebrated in Monaco often involve a foreign element. The future spouses, most often Anglo-Saxon, may require the drafting of a nuptial agreement (pre- and/or post), to protect an important patrimony from the consequences of a possible divorce…

The marriage contract and the prenuptial agreement have long been opposed as it seems that one provides for the property consequences during the marriage and the other provides for the consequences of divorce only. 

But the prenuptial agreement is much broader: it provides for the question of the matrimonial regime, the management of the couple’s assets, the contribution to the expenses of the marriage, the financial compensations in case of divorce[8], etc.

However, the Principality of Monaco recognizes a foreign valid marriage contract and moreover, it requires to be informed of it in case of a celebration in Monaco.

In concrete terms, the future spouses will have to inform the Civil Status Department of the Monaco City Hall of the existence of this document, before the celebration of the marraige. More specifically, they will have to produce a certificate from the foreign Notary confirming the signing of a marriage contract, indicating the date and other details concerning the future spouses. This document must be accompanied by an original certified translation into French.

But this is only a first step. Indeed, it is one thing for Monaco to recognize the existence of this foreign contract; it is another to have it applied by the Monegasque courts, should they deal with the divorce proceedings.

The question then arises as to the recognition of prenuptial agreement clauses concerning the divorce and, more precisely, on the fixing in advance of the sums which could be paid in respect of the duty of support (alimony, contribution to the education and maintenance of the children), or of the compensatory allowance. 

Indeed, the prenuptial agreement may provide by agreement for the sums due in respect of the compensatory allowance. Some agreements even go so far as to provide a detailed breakdown of the sums due according to the number of children born during the marriage, the years of marriage, etc.

Monegasque law, which does not allow the amount of spousal support and alimony to be set in advance, does, however, allow the future spouses to choose a foreign law that does.

It will thus be up to the Monegasque judges to define the limits of this contractualization. If it is not possible, in Monaco, to fix the amount of maintenance obligations in advance, the Monegasque court could nevertheless recognise a foreign agreement which provides for it, by virtue of the law under which it was drawn up. For example, the judge could recognize and apply an English law agreement which provides in advance for the amount of maintenance obligations. It will remain the prerogative of the Monegasque courts[9] to actually allow this practice. For the time being, the published Monegasque case law is not yet sufficiently abundant on the subject to identify major principles.

Furthermore, if the future spouses wish to draw up a contract in Monaco, they will be subject to the limits of public order and good morals in the Principality and will not be able, for example, to fix in advance the amount of the compensatory allowance or to derogate in advance from the rules on parental authority.

Whatever the content, when drawing up a contract under Monegasque law, it is strongly recommended that the future spouses draw up the contract sufficiently in advance, that they have a copy in a language they understand, that they have a respective counsel for each of them and that they have a detailed presentation of the respective assets of the parties and of their income. But beware, although the satisfaction of these measures will favour the efficiency and the recognition of the marriage contract abroad, it can never guarantee a universal recognition of the contract, especially before the English judge, who has a very wide discretionary power, mainly guided by the intention of the parties[10].

In conclusion, even if the Principality of Monaco does not allow the same degree of contractualization offered by the prenuptial agreement, it is not unaware of its existence and content. Nevertheless, some precautions and compulsory measures must be taken before the celebration of the marriage in Monaco. Our firm offers to assist you in these steps, do not hesitate to contact us at: r.bergonzi@regisbergonzi.com

[1] Art. 38 of the Law on Private International Law;

[2] Art.1235 of civil Code ;

[3] Art.1244 and 1245 of civil Code ;

[4] Explanatory Memorandum of the Law n°1.448 on Private International Law, p.40 

[5] Art.36 of the Law on Private International Law ;

[6] Art.41 of the Law on Private International Law ;

[7] When the domicile of the spouses is on the territory of the Principality, when the last domicile of the spouses was on the territory of the Principality and one of the spouses still resides there; when the defendant spouse has his or her domicile on the territory of the Principality; when one of the spouses is Monegasque, when the legal separation was pronounced in Monaco;

[8] AJ Famille 2008, Le couple et la mondialisation, p.67 ;

[9] Defrénois, Choix matrimoniaux et successoraux : conseils donnés à un couple de Britanniques, Raymond LE GUIDEC, n°23 – 15 décembre 2015 ;

[10] Droit de la famille n°6, Aspects pratiques des contrats de mariage internationaux – L’expérience anglaise, Etude par William HEALING, Juin 2015, dossier 31 ;

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Maître Régis Bergonzi has been re-elected for a new mandate as the President of the Monaco Bar Association. His colleagues, Maître Christophe BALLERIO and Maître Xavier-Alexandre BOYER were also re-elected as Syndic Rapporteur and Secrétaire-Trésorier, respectively. It is therefore with great enthusiasm that Me Régis Bergonzi will fulfill his assignment, through the Bar Association, by defending the collective interest of lawyers and justiciable parties. This second mandate will allow him to achieve some projects already initiated over the course of his first mandate and to further support the development of the Profession. Maître Régis Bergonzi also continues his own practice as a lawyer, within his law firm.

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Bergonzi Law Firm was named as « Law Firm of the Year – Monaco » at the Citywealth International Financial Center Awards in London last January.

The Awards for International Finance Centre were established to be recognition of advisors and managers in the private wealth sector. 

The Winners are those judged to have “excelled in achievement, innovation, expertise and service”.

In the picture, Régis Bergonzi, President of the Monaco Bar Association and only Partner of the Firm – on the left –  receives the award from David Flatman who hosted the event.

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​The Executive Committee of the UIA which met in Luxembourg (Grand-Duchy of Luxembourg) on November 5, 2019 approved the appointments and renewals of terms of office of UIA Representatives at the International Organisations.

Regis Bergonzi was reelected, for 2020, representative of the International association of Lawyers to the Council of Europe.

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On Thursday 28th November 2019, Regis BERGONZI was elected President of the Monaco Bar Association.

Alongside him, Christophe BALLERIO and Xavier-Alexandre BOYER were also elected respectively as Syndic-Rapporteur and Secretary-Treasurer.

The newly constituted Council of the Order took up its duties immediately after the election.

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The Firm received the distinction : “Award won – Corporate Law within Monaco”.

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