Key Benefits:
Publics concerned: Professionals (business domiciliar).
Subject: Condition of accreditation of persons carrying on business domicile.
Entry into force: Difference to April 1, 2010.
Notice: The decree determines the conditions for the implementation of the obligation of registration to which persons carrying on business domicile activity are subject, in accordance with theOrder No. 2009-104 of 30 January 2009 which ensures the transposition in French law of Directive 2005 / 60 / EC of the European Parliament and the Council on the prevention of the use of the financial system for money laundering and the financing of terrorism.
The order specifies the contents of the application file, sets the conditions for the examination of the application by the prefect, provides the requirement for the applicant to update the information provided and allows the prefect to suspend or withdraw the approval in case of non-compliance with that obligation or where the conditions of the approval are no longer fulfilled. The entry into force of the system is postponed to allow the persons concerned to organize themselves.
References: The texts modified by this decree can be consulted, in their drafting, on the site Légifrance (http : / / www. legifrance. gouv. en).
The Prime Minister,
On the report of the Minister of State, Minister of Justice and Freedoms,
Having regard to Directive 2005 / 60 / EC of the Parliament and Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism;
Given the trade code, including its articles L. 123-11-3, L. 123-11-4, L. 123-11-5 and L. 123-11-7 ;
Given the monetary and financial code, including its Articles L. 561-37 to L. 561-43 ;
See?Order No. 2009-865 of 15 July 2009 related to the application in Saint-Barthélemy, Saint-Martin, Saint-Pierre-et-Miquelon, Mayotte, New Caledonia, French Polynesia and the Wallis and Futuna islands of theOrder No. 2009-104 of 30 January 2009 the prevention of the use of the financial system for money laundering and the financing of terrorism;
The State Council (inland section) heard,
Decrete:
At the beginning of subsection 3 of chapter III, section 1, title II, of Book I, of the Commercial Code, five articles are inserted as follows:
"Art.R. 123-166-1.-The approval provided for in Article L. 123-11-3 is issued by the prefect of the department where the head office of the business of domicile is located.A Paris, this approval is issued by the police prefect.
"Art.R. 123-166-2.-The application file includes:
« 1° With respect to an individual company, a statement indicating its name, activity, address, address of its secondary establishments and the civil status, domicile, profession and quality of its operator, together with a copy of an identity document that is valid for the operator;
« 2° In the case of a legal person, a statement indicating his or her name, legal form, activity, head office, address of his or her secondary institutions and the civil status, domicile, profession and quality of his or her legal or statutory rights, directors and shareholders or associates holding at least 25% of the vote, shares or voting rights, together with a copy of a valid identity document;
« 3° All evidence of what is satisfied by the domicile company and, where applicable, by its secondary establishments, subject to the conditions set out in 1° and 2° of II of Article L. 123-11-3;
« 4° A certificate on the honour of what is satisfied with the conditions set out in the 3°, 4° and 5° of the II of Article L. 123-11-3.
"Art.R. 123-166-3.-The prefect having an application for approval has two months to instruct him, from his reception.
"The prefect's failure to respond within the time limit mentioned in the previous paragraph is to reject the request.
"When the domiciliar meets the requirements of sections L. 123-11-3, L. 123-11-4 and R. 123-166-2, the approval is granted for a period of six years.
"Art.R. 123-166-4.-Any substantial change in the guidance provided in section R. 123-166-2 shall be reported within two months to the prefect who issued the approval.
"When the home company creates one or more secondary establishments, it justifies within two months with the prefect who approved it of what the conditions laid down in 1° and 2° of Article L. 123-11-3 are realized for each of the operated establishments.
"The Prefect shall, if any, issue a new approval.
"Art.R. 123-166-5.-The approval may be suspended for a period of not more than six months or withdrawn by the prefect when the domicile undertaking no longer meets the conditions set out in II of section L. 123-11-3 or has not made the declaration provided for in section R. 123-166-4.
"When the business of domicile is the subject of a procedure before the National Sanctions Commission established in Article L. 561-38 of the monetary and financial code, its approval may be suspended by the prefect, as a provisional measure, for a period of not more than six months, renewable by specially reasoned decision. The suspension decision can only be made after the domiciliar has been put in a position to present his observations. It ceases to have effect as soon as the Commission has rendered its decision.
"The decision to suspend or withdraw may be made for a single institution. »
Regardless of their full application in New Caledonia and French Polynesia, the provisions of this Decree are applicable in the Wallis and Futuna Islands.
The provisions of this decree come into force on the first day of the fourth month following the date of its publication in the Official Journal of the French Republic.
Persons exercising the activity referred to in Article L. 123-11-2 of the Commercial Code at the date of publication of this Order shall submit to the Prefect, within one year of that date, a record of application for approval comprising all of the documents referred to in Article R. 123-166-2 as well as a record of registration in the Trade and Corporate Register.
The filing of the application results in receipt. It empowers the applicant to exercise his or her activity regularly until the prefect's decision is taken. By derogation from section R. 123-166-3, this decision must be express regardless of the content.
The Minister of State, Minister of Justice and Freedoms, and the Minister of the Interior, Overseas and Territorial Authorities are responsible, each with respect to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done on 30 December 2009.
François Fillon
By the Prime Minister:
The state minister, keep seals,
Minister of Justice and Freedoms,
Michèle Alliot-Marie
The Minister of the Interior,
the overseas and territorial authorities,
Brice Hortefeux
