POLITICAL PULSE X: EMANCIPATION-
THE NEW OVERSEAS COLLECTIVITY- WHAT IS IT?
On February 7, 2007, all the necessary administrative approvals necessary were finally obtained and the island of Saint Barthelemy, to date a Commune of the island of Guadeloupe, which in turn is a Department of France, became an Overseas Collectivity of France. We are no longer officially part of Guadeloupe although there remains strong administrative ties.
France has historically had a variety of manners in which to rule its overseas possessions, including Departments, Collectivities, Departments and their Communes, among others, and each in some why crafted so as to best address the various conditions of the possession and taking into consideration the historical, economic, social and cultural particularities associated with each. Overseas possessions are governed either by Article 73 or Article 74 of the French Constitution. Article 73 applies to the overseas departments and Regions, it being understood that each overseas department is also a region.
The principle of Article 73 is legislative assimilation: the collectivity is governed by the same law as the mother country.
The principal of Article 74 is legislative specificity, and applies to Overseas Collectivities: the collectivity is subject to laws that address the particular conditions, economics, culture and history of the possession.
The 2003 referendum in Saint Barthelemy (also refers to the terms “St. Barth”, “St. Barts”, “St. Barths” and “St. Bart”) was undertaken in order to ask residents of Saint-Barthélemy whether they wished that Saint Barthelemy remain a Commune of Guadeloupe, or whether the residents preferred to become an Overseas Collectivity under Article 74 of the French Constitution. The island voted overwhelmingly for the modification to an Overseas Collectivity. That referendum, the vote and a study of its meaning has been addressed in a prior Political Pulse article.
On January 24, 2007, the island of Saint Barthelemy became, at long last, an Overseas Collectivity of France. The island remains French, continues to fly the French flag, continues to be subject to the French Constitution, is subject to respect all Foreign Treaties with France and remains a member of the European Community. We now enter the transitory phase.
This Article will attempt to explain, in simple terms and without getting involved at this point in the complexities of quorums and other details, the new structure of the Government to be elected in the newly approved Collectivity, what powers are held locally, what powers remain with France and what the implications are to non-residents of Saint Barthelemy under the Collectivity.
I. THE POWERS TRANSFERRED:
The Collectivity retains all the powers relating to those granted the Communes, Department and Region of Guadeloupe. In addition, the Collectivity St. Barthelemy has been granted very broad fiscal and legislative authority and in particular has the authority of enacting laws and regulations relating to the following matters:
-Regulation regarding prices market regulations and the repression of fraud;
-Issues of zoning, construction, buildings and residences, management of public property;
-Roads, Traffic Circulation, transportation, Maritime affairs to the extent the same relate to Territorial concerns, registration of vessels, creation, management and operation of sea ports with the exception of labor laws relating to the same. These powers will of course encompass questions of the number of rental cars on island, the importation and circulation of large trucks, etc);
- Management of public roads and property belonging to the Collectivity, it being understood that France remains in control of the property belonging to it.
- Environmental issues including the protection of woodlands;
- Employment regulations regarding foreign workers;
- Creation and organization of public series and offices of the Collectivity;
- Organization and management of schools and school transportation;
- Water and garbage;
- Postal organization and setting of rates (this is to be subject to an agreement to be entered into with France);
- Management of Sportive and Cultural matters of territorial and regional interest;
- Local Taxes (both direct and indirect) and duties (the tax structure of the Collectivity replacing the National rules currently applicable relating to the same). The issue of residence and income and other taxation is discussed later in this Article.
II. THE STRUCTURE OF GOVERNMENT
The Collectivity consists of three branches and a President: There is the Territorial Council, the President of the Territorial Council, the Executive Council and the Economic, Social and Cultural Council.
A - THE TERRITORIAL COUNCIL
The Territorial Council is the legislative, decision-making branch of local Government (pursuant to Amendment nº 91).
There are 19 elected members and each holds a five (5) year term. The President of the Territorial Council likewise is elected for, and holds a five (5) year term. They are elected in a two round voting process.
Seat of the Council:
The seat of the Territorial Council is at City Hall.
Upon notice of the President of the Territorial Council, the Council meets at least once per trimester.
The Territorial Council may also be called to meet at the request of the Executive Council, at the request of at least one-fourth(1/4) of the members of the Territorial Council, or at the request of the State’s (France) representative. Exceptionally, the Council may be called to meet by Decree.
Meetings of the Territorial Council are open to the public, but notwithstanding the same, upon the request of 5 members or of the President of the Territorial Council, the Council may decide, by a majority vote of those present or represented, that the meeting will be closed. There are certain circumstances in which it will not be possible to have a meeting closed to the public.
At least 12 days prior to a meeting of the Territorial Council, the President addresses to the councilors a report relating to each of the issues to be addressed.
The President of the Territorial Council presides the meetings.
The Territorial Council shall be consulted on projects and proposed laws, ordinances or decrees introducing, modifying or removing matters particular to Saint Barthelemy, together with matters concerning treaties and agreements within the powers of the Collectivity. The Territorial Council will have the period of one month within which to submit its opinion, the time being reduced to 15 days in the event of urgency.
In order to effectively pass resolutions, there is a requirement that there be present a majority of the Council members. That being said, a member may empower another member to vote for him in the event he cannot attend the meeting. No member may hold more than a single voting proxy at any meeting.
Any Council member may resign at any time and in the event any one of them misses four (4) consecutive meetings within a four-month period without justification, they are considered to have resigned as a matter of law.
Likewise, in the event the operation of the Territorial Council proves impossible, the Government, pursuant to Ministerial Decree of the Council of Ministers, may choose to dissolve the Council, either on its own decision or at the request of its President of the Territorial Council. In the event of dissolution, a new Territorial Council is elected within two (2) months.
In the event of an Emergency, the Minister of overseas French Territories may temporarily suspend the Territorial Council.
B - THE PRESIDENT OF THE TERRITORIAL COUNCIL:
The President is elected by a simple majority by the Territorial Council, the quorum of 2/3 of which must be present at the vote.
In the event the requisite 2/3 of the Territorial Collectivity is not present, the elections are held 3 days later, regardless as to whether or not the quorum described is attained.
The President is in charge of the Police Powers of the Collectivity of Saint Barthelemy. He may also exercise the following upon assignment of powers by the Territorial Council:
-The preparation, execution and payment of contracts, which may be approved without formalities as a result of the amount concerned;
-The representation of the Collectivity with third parties;
-The request of opinion of the Administrative Tribunal as to the interpretation of the legislative Statute of Saint Barthelemy, and in the event of serious difficulties, make its request before the State Council; and
-After decision by the Executive Council, to negotiate, within the limits of the powers of the Collectivity, the administrative arrangements made with the various offices of State, American or Caribbean Territory, all in order to foster the economic, social and cultural development of the Collectivity of Saint Barthelemy.
C - THE EXECUTIVE COUNCIL:
The Executive Council is the Executive Branch of the local Government.
The Territorial Council elects the members of the executive council.
The Executive Council is comprised of the President of the Executive Council, President, 4 Vice-Presidents and two other councilors.
The members of the Executive Council other than the President are elected for the same duration as the President.
The candidates for the different positions of the Executive Council are submitted to the President within the hour of the election of the Territorial Council. If within this time frame, only one candidate has presented himself for each position, the nominations take effect immediately and the same is read by the President.
Otherwise, other than the President, the other members of the executive Council are elected based on the different lists presented, with a proportional representation without preference.
Each Territorial Council or group thereof may present a list of candidates to the Executive Council in the hour following the expiration of the time frame set forth above.
Upon the suggestion of its President, the Territorial Council may decide to remove a Vice-President, and another successor is thereafter named.
The Territorial Council may remove, with the approval among its members, remove a member of the Executive Council that is not a Vice-President.
The President of the Territorial Council notices a meeting of the Executive Council each time he deems the same useful.
Unlike those of the Territorial Council, the meetings of the Executive Council are not open to the public, but will be the object of a report made public.
The meetings of the Executive Council are presided by the President of the Territorial Council.
At his/her request, the State representative is heard by the Executive Council.
-To determine the drafts of legal instruments and projects to be submitted to the Territorial Council for discussion and decision;
-To exercise those powers as assigned by the Territorial Council, with the exception of those powers concerning budget and local referendum, which may not be assigned;
-To enact, after request by the President of the Territorial Council, those regulations and laws that are necessary to effect the decisions made by the Territorial Council;
-To make decisions regarding the individual requests for work permits, authorizations regarding land use and rights of expropriation; and
-To be the branch consulted by the Minister of Overseas Possessions or by the State representative relating to rescue operations , access by air and by sea and regarding regulations relating to matters of immigration and visitors.
D - THE ECONOMIC, SOCIAL AND CULTURAL COUNCIL:
The Economic, Social and Cultural Council shall consist of groups of representatives of island Professionals, unions and associations involved in the economic, social and cultural life of the Collectivity of Saint Barthelemy, the list of groups represented therein subject to a decree by the Minister of Overseas Possessions.
This Council shall be consulted in matters relating to :
-The distribution and use of the State funds for the use in investments of the Collectivity;
-The preparation of a plan of durable development of Saint Barthelemy;
-The general use of the funds in the budget of Saint Barthelemy; and
-The economic, social and cultural projects and proposals of the Territorial Council.
THE QUESTION OF TAXES:
As to taxes, the Collectivity has jurisdiction to enact and enforce local taxes such as the Port Duty, which is to be increased from 4 to 5%, indirect taxes (gas, alcohol, etc), taxes relating to property on island and their representative shares in the event the same are held through a corporation (for example relating to the transfer taxes), etc.
Another approved tax at this time is a Tourist Tax in the amount of 5%
Relating to issues of income and other taxes, a physical person is considered as having his tax home on the island of Saint Barthelemy if they have in fact resided here for a period exceeding 5 years on January 1 of the year in question. As to each of the 5 years, a physical person must have been physically present for the period of 183 days for each of those years.
It is anticipated that non-residents will be subject to French taxation as provide for pursuant to the General Code of Taxation. In particular, non-residents will need to file income tax returns, pay income taxes, as applicable and perhaps pay the wealth tax.
In order to prevent the island of Saint Barthelemy from becoming a Tax Haven and to avoid the influx of persons wishing to avoid taxation, matters relating to the same will be the subject of a Tax Treaty between Saint Barthelemy and France, it being understood that all the provisions contained therein must in perfect harmony and in no manner contradictory to the terms set forth in the various International Treaties with other countries.
At this time, there is a Draft of the Tax Treaty available but in that the same is effectively just that- a draft, I rather not provide an analysis at this time of provisions that may not in fact be present in its final version.
Once the draft of the Saint Barthelemy-France Tax Treaty is finalized, I will provide an analysis of the Treaty.