Amicable settlements

Mr C owns a residential apartment in the rent-controlled sector jointly with his nephew, who lives overseas. He made a complaint to the High Commissioner after the Housing Department refused his nephew permission to keep the apartment for use as a second home, while housing a distant relative there in his absence. By dispensation from the principle laid down by Act No. 1,235 of 28 December 2000 governing the rent-controlled sector, which requires properties in this sector to be rented exclusively to persons recognised as protected, Article 35-1 gives the owner a right of retention, intended to enable him to occupy his property or to house certain specified family members, provided the property is actually occupied. In this case, one of the co-owners wished to retain the property for his own personal, intermittent use, while also using it to regularly house a person who could not legally benefit from the aforementioned right of retention. The High Commissioner therefore explained to the claimants that the Housing Department was correct to demand that the apartment be declared vacant and made available to rent. 

Mr B, a Monegasque national, was temporarily forced to leave his State-owned apartment due to substantial water damage which rendered it uninhabitable until repair work was completed. With no alternative accommodation available in the Principality, he stayed with his family in the neighbouring country, over two hours’ drive from Monaco. He then decided to apply for a new home under a new scheme launched at the time for State-owned housing, but his application was rejected by the Government Departments on the grounds that it was submitted late. Arguing that he had been unable to submit his application to the Housing Department by the required deadline due to the fact that he was living some distance from Monaco, and considering the decision unfair, he referred the matter to the High Commissioner. After noting that the reason given by the tenant for failing to submit his application on time did not constitute force majeure, the High Commissioner declined to intervene, indicating that in principle, the Administration cannot be criticised for requiring all applicants to adhere to strict deadlines in order to guarantee that housing is allocated transparent and fairly. 

Mr E made a complaint to the High Commissioner as he had still not received a response from the Police Department regarding his application for a first residence permit after two years, despite sending several reminders.  When contacted by the High Commissioner, the Government departments concerned indicated that they had asked the applicant to produce a specific judicial document to prove his good moral standing. The applicant had apparently been unable to provide this document, and this prevented his application from being processed. Without adopting a position on the merits of the matter, the High Commissioner underlined that it was important for the applicant to be notified of a decision one way or the other, even a rejection, in view of the time that had passed. The matter could not simply remain “frozen”, and in any event, a member of the public whose application for residency is rejected remains free to renew their application at a later time. Following the High Commissioner’s intervention, the applicant was to be sent a decision (in this case the application was dismissed), ensuring that at the very least, he was officially informed of the status of his application.

Company S leased and operated a restaurant business. Despite the business flourishing, the company saw its turnover severely impacted by the start of major real estate construction works immediately nearby. This led to a sudden and sharp drop in custom, due to the disruption and noise caused by the work and the difficulty in accessing the restaurant, as a result of fewer above-ground parking spaces being available for customers. In financial difficulties and no longer able to plan for the future due to the announced duration of the work, company S terminated its business lease agreement and filed a compensation claim with the Commission for Compensation of Economic Loss owing to the irreversible damage done to its business by the work, which included the construction of both private and public buildings. However, its claim was rejected as ineligible, on the grounds that the construction was being entirely carried out by a private developer. Company S then referred the matter to the High Commissioner, which observed that, insofar as compensation proceedings before the Commission for Compensation of Economic Loss concern solely damage caused by works “carried out by a public service, the Commission had no jurisdiction to hear company S’s compensation claim. However, the High Commissioner observed that this did not mean the State could not be held liable, for two reasons. Firstly, the construction project partly entailed public works - understood to be any works carried out on behalf of a public body in the general interest, even where carried out by a private contractor (French Conseil d’Etat, 10 June 1921, Commune of Montségur). Secondly, the State retained owner’s prerogatives over the building to be constructed on its behalf, and as such was obligated to bear principal liability for any neighbourhood disturbance caused by the works. The High Commissioner thus showed that the action taken by company S against the State was legitimate, and that the agreements between the State and the developer, requiring the developer to bear sole liability for all risks inherent to the works, could not be used to force company S to redirect its claim against the private operator alone. The High Commissioner therefore recommended that the Government acknowledge the claim directly, send notice of it to the developer required to take over its financial liability as stipulated in their agreement, and arrange (in consultation with company S if possible) for an appraisal of the total commercial loss suffered by company S owing to the deterioration of the site, with a view to then agreeing on compensation to be paid by the operator. This recommendation was accepted by the Minister of State, who proposed to rely informally on the expertise of the Commission for Compensation of Economic Loss to evaluate the loss to be compensated, based on the information already provided by company S.

Ms J, already employed full-time for over a year by a Monegasque hotel group, applied for an additional work permit in order to take temporary work during the high season. However, not only was the application for an additional seasonal work permit made by her employer rejected, but at the same time her valid indefinite term work permit was revoked. This very abruptly left Ms J out of work. The Department of Employment justified its decision by the findings of a background check ordered as part of the processing of Ms J’s additional work permit application, showing that Ms J had received a criminal conviction several years earlier. Owing to a “material error”, this conviction had been overlooked when the original work permit was issued, whereas it should normally have resulted in that first application being rejected. Distressed and quite unable to understand this sudden and unexpected decision, Ms J complained to the High Commissioner after her appeal to the Minister of State to review the ruling was itself dismissed. The High Commissioner pointed out that it is not unusual for the Administration, when exercising its discretion over the issuing of work permits, to reject applications by individuals with criminal records. As a result, these individuals can for some considerable time find themselves prevented from holding, at the very least, certain positions deemed incompatible with the offences of which they were convicted. In light of this practice, the High Commissioner believed that Ms J had, over the past year, probably benefited from a work permit that the Monegasque authorities had not actually intended her to hold. However, the unilateral decision to revoke the work permit, taken by the authorities after the fact while investigating an application intended solely to enable Ms J to perform temporary work in addition to her main employment, appears on first view to contravene the principle that the individual effects of legal acts are inviolable. Provided it is lawful, an individual administrative act that creates rights cannot subsequently be revoked by the Administration unless the circumstances have changed. Unlawful acts, meanwhile, should be revocable or repealable only for a certain period of time (ideally until they have become definitive owing to the expiry of the period allowed for appeals), and the principles of legal certainty and protection of rights acquired by citizens must then logically prevail. The High Commissioner noted that, although the Supreme Court has not had cause to give a ruling on such matters, these judge-made rules, established in France some time ago and since codified, should also apply for the benefit of Monegasque citizens and residents. The High Commissioner also observed that, under current positive laws, there is no provision permitting the Administration to unilaterally revoke a work permit, including one granted for indefinite term employment. Work permits may only be cancelled by the Minister of State as part of the general police powers vested in him by Article 1, section I, final paragraph, of Act No. 1,430 of 13 July 2016. In this case, however, such a measure - given its impact on the private life of individuals - must absolutely be justified by the existence of a serious threat to public order. The High Commissioner did not consider there to be any such threat here, given that the facts of which Ms J was convicted dated back almost seven years, that they were of an isolated nature, and that she was then able to work in Monaco for over a year without causing the slightest public disorder. 

For all of these reasons, the High Commissioner indicated to Ms J that her complaint appeared to be well founded. However, considering that a further attempt to resolve the matter amicably via the High Commissioner’s office had no chance of succeeding within the very limited time left to the applicant in which to take action (around one month), the High Commissioner invited her to bring legal proceedings in order to protect her rights.

Mr D. was refused a licence to carry on a regulated profession in the Principality, on the grounds that he supposedly failed to provide all of the required guarantees of good character. The Administration based its refusal on the claim that he had been accused of bankruptcy fraud by misappropriation of assets, but Mr D. produced a court judgment that definitively cleared him of any liability for the insolvency of the company he managed.  The High Commissioner intervened on the basis of this information, pointing out that the legal action for repayment of company assets filed against Mr D., owing to his previous position as executive manager, was a purely civil law matter, and that the court found no evidence of any mismanagement on his part. In view of these clarifications, the Administration agreed to reconsider its original decision and issue the licence.

Ms R, who is registered disabled and receives the disabled adult’s allowance (AAH) in France, complained to the High Commissioner after her application for a first residence permit was rejected. She had made the application after her mother, recently married to a Monegasque national and with whom she had lived up until that point, settled in the Principality. Owing to her disability, Ms R was dependent on her mother for carrying out everyday tasks. Considering Ms R’s lack of resources on leaving France, and the entitlements she could claim in respect of the AAH in Monaco should she move to the Principality, the authorities decided to reject her application. Despite the intervention of the High Commissioner, who sought to explain how the medical and family circumstances meant that this situation needed to be handled in a human way, the Government stood by its decision, and the Monegasque State was therefore under no legal obligation to offer Ms R residency. The High Commissioner took the view that, in reaching their decision, the authorities had not found a fair balance between the interests of applicants and their own interest in controlling immigration, by failing sufficiently to consider the dependent relationship between mother and daughter, which went beyond normal affective relations and justified allowing them to remain together. The High Commissioner’s recommendation that Ms R be permitted to move into her mother’s place of domicile on a permanent basis was not followed. Consequently, the family was separated, and Ms R’s mother was forced to rent accommodation for her daughter on the other side of the border, in order to keep her nearby and continue to provide her with daily assistance. 

Ms J complained to the High Commissioner after her application for residency in Monaco was rejected more than six months after she had filed it, without any explanation as to the reasons why the application had taken so long to be processed. However, when she was informed of the decision verbally at the Police Department, she was told that the police files showed that she had had some criminal legal troubles in France, and therefore failed to meet the condition of good moral standing required in order to qualify for a residence permit. Ms J claimed that there must have been a mistake, as she had never had any dealings with the police or the courts in any country.  The High Commissioner immediately invited her to request a review of this decision in order to protect her rights. Alongside this review, the Commissioner also raised the issue with the Government, suggesting that Ms J may have been confused with another individual with the same name. This theory was confirmed after her application was reviewed by the authorities. With this misunderstanding having been corrected, Ms J’s application was finally approved and she was immediately issued with her first residence permit.

Ms E., who was already a regular visitor to the Principality for short stays, was keen to take up permanent residence with her Monegasque daughter. From France, she was able to obtain a long-stay visa valid for three months, which is an essential prerequisite for non-EU nationals applying for permanent residency in Monaco. She then applied for her first residency card. Despite repeated verbal assurances from the police that her case would be resolved quickly and that she could therefore safely remain in Monaco while awaiting her permit, Ms E. was ultimately informed that her application for residency had been turned down, but not until after her visa had expired. Forced to return to her home country late, the administrative incident which had arisen with the French border police meant that she was effectively unable to return to France - and therefore also to Monaco - for five years. The matter was referred to the High Commissioner, who successfully obtained a certificate from the Monaco Police Department allowing the claimant to prove to the French authorities that she had overstayed her visa owing to a delay in the processing of her case by the Monegasque authorities. This removed all obstacles preventing her from obtaining a short-stay visa in the future.

Ms Z, 58, applied for a job in a managerial role. She learned that she had been ranked in first place following the recruitment interviews, but her application was ultimately rejected. Believing her age to have been the reason for the rejection, she took the matter to the High Commissioner. Upon further investigation, the High Commissioner found that while Ms Z’s age had indeed - and wrongly - been considered,  it was not the deciding factor in the final decision. In fact, the candidate had been led to understand that her application had been rejected on account of her age, but this was done in order to avoid disclosing the true reason for the decision, namely that her interpersonal skills were judged to be insufficient for the position. The High Commissioner thus concluded that the recruitment process and its outcome should be considered as objectively justified. However, the High Commissioner did find that it was important to acknowledge the very strong sense of injustice felt by the applicant upon being informed that her application had been rejected, as a result of various missteps in the recruitment process and which led to her application being ranked incorrectly. Incidentally, the High Commissioner’s investigation revealed an error with the applicant’s positioning in terms of her remuneration. This allowed a retroactive repositioning to be applied by way of compensation.

In response to concerns raised by the Remand Prison Management about the potential suicide risk posed by an inmate who had received a long custodial sentence, an intensive night patrol regime was introduced. The Remand Prison’s own medical department believed that the patient’s psychiatric condition did not warrant additional patrols, which excessively affected the inmate’s sleep quality.

The matter was referred to the High Commissioner, who recommended an independent evaluation of the inmate’s psychiatric condition to assess whether or not there was a proven suicide risk. Following the evaluation, which found no suicide risk, the heightened surveillance measures were able to be suspended.

A couple approached the High Commissioner to complain that the State had not taken sufficient steps to comply with an order of the Supreme Court [1] relating to them. The order concerned the State Property Authority’s refusal to grant their application for a CHC offer for the apartment they occupied, on the grounds that in principle the building was to be demolished under the National Housing Plan (a CHC or "habitation-capitalisation" contract is a means of acquiring life tenancy of a state-owned apartment on repayment of a loan from the Monegasque State). Without calling into question the grounds on which the Government relied when deciding whether or not to enter into a CHC, the Supreme Court had found that there was no provision for such a criterion (i.e. planned demolition) in the Act of 19 February 2009 governing CHCs, and that consequently the refusal should be set aside. Following this ruling, the applicants were unable to obtain a satisfactory CHC offer. The High Commissioner therefore intervened to emphasise that the financial terms of the new offer needed to reflect the fact that it was in fact a response to an earlier application, both in terms of the price and the rent paid in the interim period. A solution acceptable to all parties was ultimately found. 

A young foreign national, who was born in Monaco and had always resided in the Principality with his parents, wished to live independently in separate accommodation. Having been born in Monaco, he therefore asked to be designated as a “protected person”, but this request was denied on the grounds that, according to the residency certificate issued by the Police Department, he had not resided continuously in Monaco. The certificate showed him as having not had a home in the Principality for a period of two months, which happened to be a transitional period between two homes, during which the family had been forced to seek accommodation in a hotel in a neighbouring commune. In light of the provisions of Article 3 of Act No. 1,235 of 28 December 2000 defining categories of protected persons, and Ordinance No. 8,566 of 26 March 1986 on residency certificates, which sets down the conditions for obtaining a certificate of residency in the Principality, the High Commissioner argued that the period of absence in this case, being less than six months, could not be treated as an “interruption of residence” that would constitute grounds for rejecting an application to be entered on the register of protected persons. The applicant was ultimately granted special dispensation to be registered as a protected person, and was thus able to apply for rent-controlled housing.