Navigating the French legal landscape can be a complex business, and this complexity increases when we consider the specific context of French Polynesia. With its extensive autonomy, this overseas collectivity has developed a unique legal ecosystem in which mainland French commercial law applies only in part, leaving room for local adaptations and unique legal institutions. For any entrepreneur or investor, understanding these particularities is not just an intellectual curiosity, but a practical necessity if they are to secure their operations and defend their interests effectively. This article provides a detailed analysis of the legal framework, players and rules that shape commercial law in French Polynesia.
The legal autonomy of French Polynesia and the foundations of local commercial law
The commercial law applicable in French Polynesia is the result of a combination of the principle of legislative speciality and the selective application of ordinary French law. The autonomy granted to the collectivity, defined by the organic law, allows it to have its own standards, in particular through the "lois du pays", which govern entire areas of economic life. For an in-depth understanding of the general framework, it is essential to refer to the principles and issues of the overseas commercial law. Polynesia's autonomy is manifested mainly through two mechanisms: outright exclusions of sections of the French Commercial Code and adaptation provisions that modify French rules to bring them into line with local realities.
Significant exclusions from French ordinary law
Several major areas of commercial law in mainland France are expressly excluded in French Polynesia, which means that economic players must refer exclusively to local regulations. A useful comparison can be made with specific legislation and local adaptations in New Caledonia. The most notable exclusions, resulting in particular from Article L. 940-1 of the French Commercial Code, concern :
- Competition law : Book IV of the French Commercial Code, which governs free pricing, anti-competitive practices and practices restricting competition, is inapplicable in its entirety. French Polynesia has its own Competition Code and a local authority to ensure compliance.
- Regulated professions : An important part of business law, Book VIII, which governs the professions of court-appointed administrator, court-appointed agent and statutory auditor, does not apply. The regulation of these professions is a local matter.
- Certain rules on commercial leases : Key provisions, such as those relating to setting the rent on renewal (capping) or the three-yearly review (articles L. 145-34 to L. 145-36, L. 145-38 and L. 145-39), have been set aside in favour of local mechanisms.
- Voluntary sales of furniture by public auction: This sector is also governed by legislation specific to the local authority.
- Guarantees on general shop deposits : The warrants regime provided for in Book V of the Code does not apply.
Adaptation provisions: when French law goes local
When a metropolitan text is declared applicable, it is often subject to adaptations. These mainly involve replacing references to institutions or codes in mainland France with their Polynesian equivalents. This approach ensures consistency between the applicable law and the local institutional environment. The main adaptations, which must be taken into account in each case, concern :
- Tax and social security matters : Any reference to a French tax or social security code is systematically replaced by a reference to the provisions applicable locally. For example, to benefit from the status of commercial leases, an artist must be recognised as such under the Polynesian tax code (C. com., art. L. 941-11).
- Accounting : The simplified accounting systems for individual traders are subject to the tax thresholds and rules defined by the local authority's tax regulations (C. com., art. L. 941-3).
- Lease management : The business lease management regime has been adapted, in particular with regard to rent review procedures (C. com., art. L. 941-9 and L. 941-10).
- Banking transactions : The provisions relating to commercial paper and pledges have been adjusted to take account of specific local tax issues (C. com., art. L. 945-5 and L. 945-7).
The Mixed Commercial Court of Papeete: a key player in commercial litigation
At the heart of Polynesia's commercial judicial system is a court with an original structure: the Tribunal Mixte de Commerce de Papeete, a central player in the resolution of all commercial disputes. Unlike commercial courts in mainland France, which are made up exclusively of elected judges from the business world (consular judges), this court combines professional magistrates and elected judges, a feature shared, for the most part, with other overseas territories.
Organisation and composition: a single overseas jurisdiction
The composition of the Mixed Commercial Court of Papeete reflects its hybrid nature. It is presided over by a career magistrate, in this case the President of the Court of First Instance of Papeete or one of his vice-presidents appointed for this function. This professional magistrate sits alongside six elected judges. The latter are traders or company directors elected by their peers for a four-year term, according to an electoral body and procedures specific to French Polynesia. The panel of judges is therefore made up of the president, a magistrate, and three elected judges, guaranteeing the numerical superiority of the latter. In the event of a tie, the chairman has the casting vote, as specified in article L. 947-2 of the French Commercial Code. Finally, another notable difference is the nature of the registry, which is a public registry run by the chief clerk of the civil court, and not a private ministerial office as in metropolitan France.
Jurisdiction and proceedings before the Commercial Court
The Tribunal Mixte de Commerce de Papeete has broad jurisdiction, modelled on that of the consular courts in mainland France (C. com., art. L. 947-1). It hears disputes relating to commitments between traders, commercial companies and commercial deeds. Its jurisdiction also extends to the opening and monitoring of collective proceedings (safeguard, receivership and compulsory liquidation) for local commercial and craft businesses. Before examining the specific features of the Papeete Court, it is useful to familiarise oneself with the general rules of procedure. proceedings before the commercial court. An important procedural feature is Article 16 of the Code of Civil Procedure of French Polynesia, which declares null and void any jurisdiction clause designating a court outside the territory. This provision aims to protect local litigants by ensuring that Polynesian courts have jurisdiction over any dispute arising in the territory. In addition, judicial practice takes account of "distance periods", which may be granted by magistrates to take account of the geographical dispersion of the islands and the difficulties of routing notifications, thus guaranteeing respect for the rights of the defence.
Insolvency proceedings in French Polynesia: special rules for companies in difficulty
In French Polynesia, the study of collective proceedings begins with an understanding of initiation of insolvency proceedingsThe general framework is largely based on Book VI of the French Commercial Code. While the general framework is largely based on Book VI of the French Commercial Code, there are some important exclusions and adaptations that affect the treatment of companies in difficulty. The inapplicability of certain provisions relating to the guarantee of wage claims (AGS) and, above all, the total exclusion of Book VIII relating to administrators and court-appointed representatives, require recourse to specific local mechanisms and players.
Procedural bodies and their local characteristics
The exclusion of Book VIII of the French Commercial Code has one major consequence: the court-appointed receivers and agents operating in French Polynesia are not those registered on the national lists for mainland France. French Polynesia has its own regulations governing the approval and appointment of these professionals. Their tasks of diagnosis, assistance, representation of creditors or liquidation are similar to those of their counterparts in mainland France, but their status is governed by Polynesian legislation. This local organisation, which is an integral part of the system, aims to ensure that practitioners have a better understanding of the island's economic fabric. Specific local features of procedural bodies during the observation period are crucial for companies in difficulty in Polynesia.
Suspicious period and invalidity of acts: Polynesian case law
The suspect period, the crucial period preceding the opening of receivership or liquidation proceedings during which certain acts carried out by the debtor may be annulled, is a concept that is fully applicable in French Polynesia. The fundamental principles are the same as in mainland France: the aim is to reconstitute the company's assets by cancelling the abnormal acts that have harmed the creditors. Local case law in this area closely follows the guidelines of the Cour de cassation. The Polynesian courts are equally rigorous in their examination of the conditions for nullity, whether these be de jure nullities (gratuitous acts, abnormal payments) or optional nullities (onerous acts entered into with a co-contractor who was aware of the cessation of payments). However, it is essential to obtain recent local case law in order to refine any analysis on this subject.
Competition law in French Polynesia: a differentiated legal framework
Book IV of the French Commercial Code is excluded in its entirety in French Polynesia. This exclusion is fundamental, as it means that neither French competition law nor European Union law applies there. French Polynesia has built its own legal framework to regulate markets, with rules adapted to an island economy that is small and heavily dependent on imports.
The absence of European Union rules: what are the implications?
As French Polynesia is not a territory of the European Union but an Overseas Country and Territory (OCT), it is not subject to the European treaties, particularly in terms of competition (cartels, abuse of dominant position). This situation has practical implications: companies cannot be penalised on the basis of Article 101 (cartels) and Article 102 (abuse of a dominant position) of the Treaty on the Functioning of the European Union (TFEU). Similarly, the European Commission is not responsible for controlling mergers between companies. The Polynesian Competition Authority, an independent local administrative authority, has sole jurisdiction to investigate and sanction anti-competitive practices in the territory.
Exclusive import agreements and geographical constraints
One of the special features of Polynesian competition law concerns the regulation of exclusive import agreements. In a context of heavy dependence on imports and insularity, these agreements can quickly create monopoly situations and high prices. The Polynesian Competition Code therefore strictly regulates these practices. However, it also recognises that "geographical constraints" (dispersion of islands, low volumes, high logistical costs) may, in some cases, justify agreements that would be considered anti-competitive in another context. The Autorité de la Concurrence's analysis is therefore made on a case-by-case basis, weighing up the need to preserve effective competition against the economic constraints inherent in the territory.
Commercial leases in French Polynesia: regulations and local particularities
The status of commercial leases in French Polynesia is based on the French Commercial Code, but with some notable exclusions that modify some of the most protective aspects for tenants. In addition to the specific features of French Polynesia, it is essential to understand day-to-day management of a commercial leaseincluding rights, obligations and changes. The right to renewal, a pillar of the statute, is maintained, but the rules for setting the renewal rent are different.
Rent caps and specific protection for tenants
The articles of the French Commercial Code relating to the ceiling on the rent for a renewed lease (art. L. 145-34) and the three-yearly review (art. L. 145-38) are expressly excluded. In the absence of these mechanisms, the setting of the renewal rent is in principle a matter of contractual freedom or, in the absence of agreement, of the decision of the judge hearing the dispute, which is based on the rental value. However, in order to protect tenants from excessive rent increases, local regulations have introduced a number of limitations. Local laws", passed by the Assembly of French Polynesia and promulgated by the President of French Polynesia, may introduce temporary ceilings or mechanisms for smoothing rent increases, particularly in areas where real estate pressure is high, in order to preserve the economic equilibrium of businesses.
Local start-up aid: opportunities for businesses
To boost its economic fabric and encourage new businesses to set up here, French Polynesia offers a range of local assistance to businesses. These schemes can take the form of subsidies, tax exemptions or tax credits for investments made. In the context of commercial leases, this assistance can be particularly attractive, by reducing the costs of setting up and fitting out premises. Companies setting up in priority sectors (tourism, pearl farming, digital technology, energy transition) or in archipelagos other than the Windward Islands can benefit from enhanced support, making their commercial project more financially viable from the outset.
Company law and formalities in French Polynesia: creation, life and dissolution
Company law in French Polynesia is very similar to that in mainland France. The corporate forms (SARL, SAS, SA, etc.) are identical and, for the most part, the basic operating rules remain the same. The main differences are the administrative formalities and associated costs, which are managed by local institutions.
Specific administrative and legal formalities
Setting up, amending or winding up a company in French Polynesia involves dealing with local contacts, sometimes under the supervision of the High Commissioner's departments in certain areas. The Trade and Companies Register (RCS) is kept by the registry of the Mixed Commercial Court of Papeete. Legal publication formalities must be carried out in the Journal Officiel de la Polynésie Française (JOPF) or an authorised legal gazette. Although the procedures are similar to those in mainland France, deadlines and administrative practices may vary. It is therefore important to familiarise yourself with the specific requirements of the Papeete clerk's office to ensure that the formalities are carried out correctly.
Dissolution costs and procedures: comparison with mainland France
The procedure for dissolving and liquidating a company follows the same main stages as in mainland France: a decision to dissolve by the shareholders, appointment of a liquidator, realisation of assets, settlement of liabilities and closure of the liquidation. However, direct costs may differ. The rates for legal publications in the Journal Officiel de la Polynésie Française or the Bulletin Officiel are specific to the territory. A decree published in September each year may, for example, set the amounts. Similarly, registry fees for formalities relating to dissolution and striking off the company register are set locally. Although the liquidator's fees remain the main item of expenditure, these additional administrative costs must be anticipated, as they may differ from the rates applied in mainland France. This unique regulatory framework requires constant vigilance.
Commercial law in French Polynesia is a rich and complex field, requiring in-depth knowledge of the interactions between ordinary law and the many specific local features. If you have any questions or require assistance, please do not hesitate to contact us at contact our expert lawyers in polynesian commercial law.
Sources
- Commercial Code (in the version applicable in French Polynesia)
- Code of civil procedure of French Polynesia
- Code of judicial organisation
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