Key Benefits:
The Prime Minister,
On the report of the Seal Guard, Minister of Justice,
Considering the Treaty establishing the European Community;
Considering the agreement on the European Economic Area signed in Porto on 2 May 1992 and adapted by the protocol signed in Brussels on 17 March 1993, in particular its annex VII, together with Act No. 93-1274 of 2 December 1993 which authorizes its ratification and Decree No. 94-113 of 1 February 1994 which publishes it;
Having regard to Council Directive 89/48/EEC of 21 December 1988 on a general system of recognition of higher education diplomas which sanction vocational training for a minimum of three years, supplemented by Council Directive 92/51/EEC of 18 June 1992 on a second general system of recognition of vocational training, as amended in particular by Directive 2001/19/EC of the European Parliament and the Council of 14 May 2001;
Considering the civil code, including articles 1316 and following;
Considering the trade code;
Considering the monetary and financial code;
Considering the tourist code;
In light of Act No. 70-9 of 2 January 1970 regulating the operating conditions of certain transactions relating to real property and trade funds, as amended in particular by Order No. 2004-634 of 1 July 2004 relating to the intermediation and management of buildings and trade funds;
Having regard to Decree No. 67-236 of 23 March 1967 amended on commercial companies;
In light of amended Decree No. 72-678 of 20 July 1972 setting out the conditions for the application of Act No. 70-9 of 2 January 1970 regulating the conditions for the exercise of activities relating to certain transactions relating to buildings and trade funds;
Having regard to amended Decree No. 84-406 of 30 May 1984 on the register of trade and societies;
Having regard to the advisory committee on financial legislation and regulations dated 13 May 2005;
The State Council (inside section) heard, Decrete:
The above-mentioned decree of 20 July 1972 is amended in accordance with articles 2 to 59 of this decree.
The first four paragraphs of section 1 shall be replaced by the following:
"The professional card issued to persons established in the national territory who exercise one or more of the activities referred to in section 1 of the Act of 2 January 1970 referred to above shall bear the following:
"1° "Transactions on buildings and trade funds, in the event of the exercise of the activities mentioned in 1° to 5° and 8° of Article 1 of the Law of 2 January 1970;
"2° "Real estate management, in the event of the activity mentioned in the 6th of the same article;
"3° "Roll of lists, in the event of the activity mentioned in the 7th of the same article.
"The mention "Registration Marchand is exclusive to previous ones. If the holder of the card bearing this reference carries out the other activities referred to in section 1 of the Act of January 2, 1970, the holder of another card bearing the corresponding mention(s).
"When the holder of a card intends to engage or assist, as an incidental measure, in the operations referred to in Article L. 211-1 of the Tourism Code, this card also bears the mention "Tourist benefits".
"The card issued to non-established persons in the national territory bears the additional mention "Service benefits. »
The second paragraph of Article 2 is supplemented by a sentence as follows:
"The applicant shall, if any, indicate that the applicant intends to engage or assist in the operations referred to in section L. 211-1 of the Tourism Code as incidental. »
Section 3 is replaced by the following:
“Art. 3. - The request shall be accompanied by:
« 1° The justification that the applicant is satisfied with the conditions of professional fitness specified in Chapter II;
« 2° sufficient financial guarantee certificate issued under the conditions provided for in Article 37;
« 3° The insurance certificate against the monetary consequences of professional civil liability issued in accordance with the second paragraph of Article 49;
« 4° An excerpt from the trade register and companies dating less than a month if the person is registered in that register or a duplicate of the application if the person must be registered;
« 5° Depending on the case, an attestation issued by the credit institution that opened the account under either section 55 or section 59, with the indication of the account number and branch that holds it, or an opening certificate on behalf of each bank account or postal account holder provided for in section 71;
« 6° Where applicable, where the application tends to the issuance of a card bearing the mention "Transactions on immovables and funds of trade or "Trade lists, of the declaration on honour that it is not received any funds, effect or value on the occasion of the transactions mentioned in 1st to 5th, 7th and 8th of Article 1st of the law of January 2, 1970 referred to above.
"The absence of incapacity or prohibition to practise as defined in Part II of the Act of 2 January 1970 is established by a Bulletin 2 of the applicant's criminal record, issued at the request of the prefect. »
The first paragraph of section 5 is replaced by the following provisions:
"The professional card is issued by the prefect of the department in which the applicant has his seat, if it is a legal person, or his principal institution, in the other cases, and, in Paris, by the police prefect. »
Section 6 is amended as follows:
1° The second paragraph is replaced by the following:
"The professional card holder must promptly notify the prefect who has issued this card of any change in address of his seat or principal institution. In case of travel to another department, it is exempt from requesting a new card. Once the reality of the displacement has been verified, the prefect who issued the card forwards the file to the prefect now competent under section 5. »
2° In the third paragraph, the word "also" is deleted.
The fifth paragraph of Article 8 is replaced by the following provisions:
"After justification, in accordance with the provisions of this Order, of what it meets the conditions set out in 1° and 4° of section 3 of the Act of January 2, 1970 referred to above, it shall be given to the person who directs the establishment, branch, agency or office a receipt of declaration in accordance with a model fixed by joint order of the Seal Guard, Minister of Justice, and the Minister of the Interior. »
Section 9 is amended as follows:
1° In the first paragraph, the words ", the Minister of the Interior and the Minister of Economy and Finance" are replaced by the words "and the Minister of the Interior";
2° In the last paragraph, the words "(paragraphs 1 and 3)" are deleted.
Section 11 is replaced by the following:
“Art. 11. - Are looked at as justification for the professional fitness required to obtain the professional card provided for in article 1 of the persons who produce:
« 1° Either a diploma issued by the State or by an institution recognized by the State, of a level equal to or greater than three years of higher education after the baccalaureate and sanctioning legal, economic or commercial studies;
« 2° either a university degree in technology or the patent of a higher technician specialized in real estate;
« 3° Either the degree from the Institute of Economic and Legal Studies applied to the construction and housing, option sale and management of buildings. »
Section 12 is replaced by the following:
“Art. 12. - Are looked at as justification for the professional fitness required to obtain the professional card provided for in Article 1 for persons who cumulatively meet the following conditions:
« 1° Be a holder of a bachelor's degree or other degree issued by the State or by an institution recognized by the State and sanctioning studies of at least equivalent levels;
« 2° Having occupied for at least three years a subordinate employment related to an activity referred to in section 1 of the Act of January 2, 1970 referred to above. »
Section 14 is replaced by the following:
“Art. 14. - Are looked at as justification for the professional fitness required to obtain the card provided for in Article 1 for persons who have occupied one of the jobs mentioned in Article 12 2 for at least ten years. This period is reduced to four years if it is a framework employment for which the applicant was affiliated as such with a supplementary pension institution or a public employment of category A or equivalent level. »
Section 15 is replaced by the following:
“Art. 15. - The occupancy periods referred to in sections 12 and 14 are defined as full-time employment or the full-time equivalent of part-time employment, whether this occupation has been continued or not. »
In Article 16, the words "13, or article" are deleted.
In the title of chapter II, section II, the words: "European Communities" are replaced by the words: "of the European Community or part of the European Economic Area Agreement".
Section 16-1 is amended as follows:
1° In the first paragraph, the words: "without having the diplomas required by Article 11 (b)" and "European Communities" are replaced, respectively, by the words: "without fulfilling the conditions set out in section I of this chapter" and: "of the European Community or part of the agreement on the European Economic Area";
2° In the first paragraph, after the words: "the formation of a Member State", the words "or part" are inserted;
3° In the second, fourth and fifth paragraphs, after the word "member", the words "or part" are inserted;
4° In the third paragraph, the words "Community" are replaced by the words "European Economic Area";
5° It is supplemented by a sub-item:
"However, the two years of professional experience referred to in the preceding paragraph may not be required where the training title(s) held by the applicant sanction regulated training allowing the exercise of the activities referred to in section 1 of the aforementioned Act of 2 January 1970. »
Section 16-2 is replaced by the following:
"Art. 16-2. - Can obtain the professional card provided for in Article 1 without meeting the conditions set out in section I of this chapter, nationals of a Member State of the European Community or a party to the agreement on the European Economic Area which justify:
« 1° Be held with diplomas, certificates or other titles issued by the Member State or part of origin or origin and sanctioning legal, economic or commercial studies of a minimum of three years after graduation sanctioning the end of secondary education and giving access to higher education;
« 2° be holders of diplomas, certificates or other titles issued by the Member State or part of origin or origin and equivalent to a university degree of technology or a patent of a higher technical specialist in real estate issued by the French State or a diploma equivalent to the diploma mentioned in the last paragraph of Article 11;
« 3° Be a holder of a degree sanctioning the end of secondary education and giving access to higher education issued by the Member State or party of origin or origin and having occupied for at least three years, in a Member State or party or in France, under the conditions provided for in Article 15 of this Decree, a subordinate employment related to an activity mentioned in Article 1 of the law of 2 January 1970 referred to above;
« 4° He or she held a subordinate job for at least ten years in connection with an activity referred to in section 1 of the Act of 2 January 1970. This period is reduced to four years if it is a framework job. »
In paragraph 2 of section 16-5, the word "four" is replaced by the word "two".
Section 19 is amended as follows:
1° The first paragraph is replaced by the following:
"When the credit institution referred to in the seventh paragraph of Article 3 of the law of 2 January 1970 referred to above is a mutual bail corporation governed by Chapter V, Part III, of Title I of Book V of the Monetary and Financial Code, the purpose of this corporation is to guarantee:"
2° In the third paragraph, the words: "Under the conditions set out in section 12 of Act No. 92-645 of 13 July 1992 setting the conditions for the exercise of the activities relating to the organization and sale of travel or stays and by this Order" are replaced by the words: "In the conditions provided by section V of this chapter, and in the event of an incidental exercise of the activities referred to in section L.
Section 22 is replaced by the following:
“Art. 22. - Can subscribe to the written undertaking mentioned in the seventh paragraph of Article 3 of the Law of 2 January 1970 referred to insurance companies and credit institutions registered in France or in another Member State of the European Community or part of the agreement on the European Economic Area.
"For the purposes of these provisions, credit institutions approved in the Principality of Monaco are deemed to be registered in France. »
After Article 22, an article 22-1 is inserted as follows:
"Art. 22-1. - The written undertaking referred to in the seventh paragraph of Article 3 of the above-mentioned Act of 2 January 1970 sets out the general terms and conditions of the guarantee, including the amount, duration, terms and conditions of remuneration of the guarantor, the terms and conditions of control exercised by the guarantor and any counter-guarantees required by him.
"In the event of a change of guarantor, the new commitment may state that the guarantor takes the guarantee of the precedent with all its effects. »
In Article 26, the words: "Each of the two categories of activities that correspond to the professional cards provided for in Article 1 of this Decree" are replaced by the words: "Each of the categories of activities referred to in Article 1 to 3 of this Decree".
Section 27 is replaced by the following:
“Art. 27. - The same person may only place all of the transactions under each of the categories of activities mentioned in the 1st to 3rd of Article 1st under one mode of guarantee. »
In section 30, the words: "that results from either a deposit to the Caisse des dépôts et consignations, or a written deposit provided by an insurance company or by a credit institution," are deleted.
Section 35 is amended as follows:
1° The words: "as provided for in Article 1 (paragraph 1)" are replaced by the words: "with the reference provided for in 1° or 3° of Article 1";
2° The words: "Article 1 (1° to 5° and 7°)" are replaced by the words: "The 1° to 5°, 7° and 8° of Article 1st".
In section 37, the words: "The Caisse des dépôts et consignations, the insurance company or the credit institution, as the case may be, shall be replaced by the words: "The organization that has granted its guarantee shall issue".
In the second and third paragraphs of Article 38, after the words: "demanding the map" are added the words "reporting the mention".
The first two paragraphs of section 39 are replaced by the following:
"The financial guarantee covers any receivable originating in a payment or remission made in connection with an operation referred to in section 1 of the Act of January 2, 1970 referred to above. It is effective on the only justifications that the receivable is certain, liquid and enforceable and that the secured person is failing, without the guarantor being able to require the creditor to act in advance against the debtor professional for collection purposes. »
In section 41, the words "45 and 46" are replaced by the words "44 and 45".
The first four paragraphs of section 44 are replaced by the following:
“Art. 44. - The guarantee ceases in the event of the resignation of the member of a mutual bond company, the denunciation of the guarantee contract or the expiration of that contract.
"It also ceases in the event of the closure of the establishment, death, termination of activity of the secured person or the leasing of the trade fund.
"The termination of the warranty is subject to notice in a seemingly daily or, if not, distributed in the department where the seat is located, in the case of legal persons, or the principal institution, in the other cases, of the person to whom the guarantee was given and, where applicable, in the department where the establishments, branches, agencies or offices that depend on the guarantee are located. This notice refers to the period of filing of claims under the third paragraph of section 45 and its starting point. When the termination of the warranty is accompanied by a change of guarantor, the notice specifies, if any, that the new guarantor has stipulated the clause in the last paragraph of Article 22-1.
"The guarantee cannot cease before the expiry of a period of three free days following the publication provided for in the preceding paragraph. »
Section 45 is replaced by the following:
“Art. 45. - In the event of a termination of the warranty, the guarantor shall forthwith, by registered letter with notice of receipt, inform the persons who have made payments and handovers to the holder of the professional card for less than 10 years and whose names and addresses are on the register of the warrants set out in section 51, as well as persons who have given the mandate to manage their buildings and whose names and addresses are on the register of the warrants set out in section 65. When the card holder is a co-owner or a company manager, the guarantor also informs, under the same conditions, the president or, if not, members of the union council or the supervisory board. In all cases, the letter refers to the period of filing of claims under the third paragraph of this article and its starting point.
"However, where the termination of the warranty is accompanied by a change of guarantor and the new guarantor justifies with the former having stipulated the clause in the last paragraph of Article 22-1, the notice referred to in the third paragraph of Article 44 shall be the information provided for in the preceding paragraph.
"All claims referred to in section 39 that originate in a payment or remission made prior to the date of termination of the guarantee shall be covered by the guarantor if they are produced by the creditor within three months of the receipt of the letter provided for in the first paragraph, where the guarantor is among the persons mentioned in that paragraph, or, in the other cases, of the publication of the notice provided in the third paragraph of section 44. This period is limited to those mentioned, as well as the point of departure, by the letter or notice, as the case may be. »
Section 47 is amended as follows:
1° At the end of the first paragraph, the words "paragraph 3" are deleted;
2° In the second paragraph, the words "three previous articles" are replaced by the words "articles 44 and 45".
The first paragraph of section 49 is replaced by the following provisions:
"The persons referred to in Article 1 must be able to justify at any time the existence of an insurance contract covering, for each establishment, branch, agency or office, the monetary consequences of the professional civil liability that they may take as a result of their activity. »
In section 50, the words "the insurance company or the registered insurer" are replaced by the words "the insurance company".
In the first paragraph of Article 51, the words: "From the map "Transactions on buildings and trade funds" are replaced by the words: "From the map bearing the mention "Transactions on buildings and trade funds or "Trade lists".
Section 53 is replaced by the following:
“Art. 53. - Records and documents referred to in Articles 51 and 52 may be established, kept and kept in electronic form under the conditions prescribed by Articles 1316 and following of the Civil Code.
"They must be kept for ten years regardless of their support. »
In article 54, after the words: "professional card", the words "reporting the mention".
In the first paragraph of section 55, the words: "only assigned to the receipt of payments or remittances referred to in section 5 of the above-mentioned Act of 2 January 1970" are replaced by the words: "especially assigned to the receipt of payments or remittances referred to in section 5 of the above-mentioned Act of 2 January 1970, excluding amounts representing remuneration or commissions".
The first paragraph of section 56 is supplemented by the words: ", either by payment card. "
Section 59 is amended as follows:
1° The first paragraph is replaced by the following:
"When the guarantee results from a consignation, the person who is the holder of the professional card bearing the mention: "Transactions on immovables and funds of trade or "Registration Marchand is required to open a special account for entries which is specially assigned to the receipt of the payments and discounts referred to in section 5 of the law of January 2, 1970 referred to above, excluding representative amounts of the remuneration or commissions. This account is open to a credit institution or the Caisse des dépôts et consignations. Payments and remittances received by the card holder on the occasion of the transactions referred to in 5°, 7° and 8° of section 1 of the Act are obligatoryly deposited in that account under the following conditions. »
2° The second paragraph is supplemented by the words ", either by payment card".
Section 61 is amended as follows:
1° In the sixth paragraph, the words: "in Article 1 of the Law of 2 January 1970 (1° to 5° inclusive and 7°)" are replaced by the words: "at 1° to 5°, 7° and 8° of Article 1 of the Law of 2 January 1970 referred to above";
2° In the seventh paragraph, the words: "the trustee, in the event of a judicial settlement or disposition of property" are replaced by the words: "the administrator or judicial representative appointed after the commencement of a procedure under Book VI of the Commercial Code".
In the first and second paragraphs of Article 64, after the words: "of the professional card", the words "bearing the mention".
Section 65 is amended as follows:
1° In the first paragraph, after the words: "professional card", the words "reporting the mention" are inserted;
2° It is supplemented by a sub-item:
"The register may be held in electronic form under the conditions prescribed by articles 1316 and following of the Civil Code. »
Section 68 is replaced by the following:
"Art. 68. - Payments with a seasonal rental reservation within the meaning of section 1 [1] of the law of January 2, 1970 referred to above shall not take place more than six months before the keys are handed over or exceed 25% of the total rent amount. The balance may only be required one month, at the earliest, before entering the premises.
"Notice of these payments is given to the owner or lessor under the terms and conditions specified in the warrant. »
Section 69 is amended as follows:
l° In the first paragraph, after the words: "professional card" are inserted the words: "reporting the mention";
2° In the same paragraph, the words: "in Article 1 (1° to 5°)" are replaced by the words: "at 1° to 5°, 7° and 8° of Article 1";
3° In the last paragraph, the words: "an insurance company or an insurer authorized under the aforementioned decree of June 14, 1938" are replaced by the words "an insurance company".
In the title of Chapter VII, the words "(paragraph 1)" are deleted.
Section 72 is amended as follows:
l° In the first paragraph, the words: "of the map provided for in article 1 (paragraph 1) of this decree" are replaced by the words: "of the professional card bearing the mention: "Transactions on buildings and trade funds";
2° The penultimate paragraph is supplemented by the sentence:
"It may be held in electronic form under the conditions prescribed by articles 1316 et seq. of the Civil Code. »
Section 73 is amended as follows:
1° In the first paragraph, the words: "of the professional card provided for in Article 1 (paragraph 1) of this Order" are replaced by the words: "of the professional card bearing the mention "Transactions on immovables and funds of commerce";
2° It is supplemented by a sub-item:
"The holder of the professional card shall promptly receive his or her remuneration or commission once the transaction concluded by his or her intermediary has been authenticated. »
In section 74, the words "third paragraph" are replaced by the words "last paragraph of the I".
In Article 79, the words: "as provided for in Article 1 (paragraph 1) of this Order" are replaced by the words: "with reference to "transactions on immovables and funds of trade".
Section 79-1 is amended as follows:
1° In the first paragraph, the words "prepared in the first paragraph of Article 1 of this Decree" are replaced by the words: "reporting the mention: "list market";
2° After the fourth preambular paragraph, a sub-item reads as follows:
"This registry may be held in electronic form under the conditions prescribed by articles 1316 et seq. of the Civil Code. »
Section 79-2 is amended as follows:
1° The first paragraph is replaced by the following:
"The agreement between the purchaser of lists or files and the holder of the card bearing the mention: "Registration market specifies its object, its duration, the characteristics of the property sought and the amount of the remuneration agreed upon and recalls the prohibition for the holder to receive payment prior to the fulfilment of its obligation to effectively provide the lists or files. » ;
2° The second paragraph is deleted;
3° After the fourth preambular paragraph, a sub-item reads as follows:
"This registry may be held in electronic form under the conditions prescribed by articles 1316 et seq. of the Civil Code. »
In the first paragraph of Article 79-3, the words "of the map provided for in the first paragraph of Article 1" are replaced by the words: "of the map bearing the mention: "Roll of lists and of the map bearing the mention: "Transactions on immovables and trade funds".
Section 80 is amended as follows:
1° In the first paragraph, the words "one year" are replaced by the words "ten years";
2° The sixth preambular paragraph is deleted;
3° In the seventh preambular paragraph, the words "Article 1st (1st to 5th and 7th)" are replaced by the words: "The 1st to 5th, 7th and 8th of Article 1st".
Section 86 is amended as follows:
1° In the third and fourth paragraphs, after the words: "from the map" are inserted the words: "bearing the mention";
2° In the same paragraphs, the words "(paragraph 1)" are deleted;
3° After the fourth preambular paragraph, a sub-item reads as follows:
"If the guarantor sees a lack of guarantee, he shall promptly notify the prefect after a stay of regularizing his vain. »
After article 86, an article 86-1 is inserted as follows:
"Art. 86-1. - The Public Prosecutor's Office shall promptly notify the competent prefect in accordance with the first paragraph of section 5 of any criminal conviction against a professional card holder and shall result in the inability to carry out the activities referred to in section 1 of the Act of 2 January 1970 referred to above.
"The Clerk responsible for maintaining the business register and companies shall promptly notify the prefect of the delisting of a professional card holder, regardless of the reason. »
At the beginning of the first paragraph of Article 92, the words are inserted: "In addition to the mentions prescribed by Articles 8, 28 and 56 of the decree of 23 March 1967 referred to above and by Article 72 of the decree of 30 May 1984 referred to above."
In section 93, the words: "persons referred to in section 1 (paragraph 1)" are replaced by the words: "holders of the card bearing the words "Transactions on buildings and trade funds or "Trade of lists".
Section 94 is amended as follows:
1° After the words: "professional card" are inserted the words: "release";
2° The words: "in sections 3 (paragraph 1, 7°), 85 (paragraph 1, 4°)" are replaced by the words: "at 6° of Article 3 or at 4° of Article 80".
Sections 13, 17, 34, 43, 46, 82, 83, 84, 85, 87, 88, 89, 90, 91 and 95-2 are repealed.
The provisions of this Decree come into force on 1 January 2006. Professional cards valid at that date remain valid until the date originally scheduled for their expiry.
The Minister of State, Minister of Interior and Land Management, the Minister of Economy, Finance and Industry, the Minister of National Education, Higher Education and Research and the Minister of Justice, are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done in Paris, October 21, 2005.
Dominique de Villepin
By the Prime Minister:
The Seal Guard, Minister of Justice,
Pascal Clément
The Minister of State,
Minister of Interior
and landscaping,
Nicolas Sarkozy
Minister of Economy,
finance and industry,
Thierry Breton
Minister of National Education,
higher education
and research,
Gilles de Robien
