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Most of the following section was sourced from De Wolf and Partners, Investing in the Democratic Republic of Congo, A Legal Guide, 2012.
Investment Code Within the framework of the new government economic policy, the country was provided since 2002, with a new Investment Code intended to favor and secure investments, and other laws aiming to favor business development and secure investments.The Investment Code sets absolute of treatment between domestic and foreign investors and simplifies the approval procedure which results in the grant of customs and tax benefits. Important points include:
Eligibility Sectors eligible: Various industries, services, (transport, hotel trade, health, tourism, housing, information technologies, etc.), agriculture, infrastructure, sport, culture, etc. Sectors not eligible: mining, banking, reinsurance, production of armaments and explosives, trade (buying and selling without any processing), etc. In accordance with article 8 of Investment Code, to be eligible, a project submitted to ANAPI should have the following charateristics:
Advantages Advantages are being granted is determined in relation with the region where the investment is made. The period of application is set at 3 years in Kinshasa, 4 years in Bas-Congo, Lubumbashi, Likasi and Luozi, and 5 years in the rest of the country. Conditions:
Tax and Customs Advantages:
Protection These guarantees are the minimum offered by the Congolese State to foreign investors:
Important Laws
General Commercial Law General Congolese commercial law is very concise and dates back to the colonial era. The most important sources are a decree from 1913, the Commercial Law Decree, on merchants and the proof of commercial commitments, and a decree dated March 6, 1951, and subsequent ordinances, on the commercial register. Merchants and Commercial Acts Any person who, on a professional basis, carries out commercial transactions is considered a merchant. The reference made to ‘on a professional basis’ implies the person needs to undertake commercial acts on a regular basis, and as a source of income. In order to determine what constitutes a commercial act the Commercial Law Decree sets out a non-exhaustive list of commercial acts comprising, sale and resale, renting activities, banking activities, construction, etc. Furthermore, all commercial companies created within the Congolese territory in conformity with the Congolese Commercial Companies Code are considered to carry out commercial acts. The importance of being qualified as a merchant lies in the fact that merchants are subject to a variety of specific laws and regulations, and that they must keep books of account19 and obtain a national identification number Commercial register Commercial register:The Congolese registration procedure has two main characteristics. First of all, the registration has to occur preceding conducting business in the DR Congo One exception is made for public limited companies, who dispose of a term of two months after obtaining the presidential authorization to fulfil the obligation of registration. Secondly, no person may conduct other commercial activities than those mentioned in the register. These two obligations are however not being sanctioned in a direct manner. For example; persons conducting business without being properly registered merely fall within the scope of application of the laws prohibiting dishonest practices, and are in practice not often sanctioned. New Commercial register: by ordinance dated 7 February 1979, the Congolese legislator wanted to break with the past and introduced a new commercial register (“NRC”). Actually, besides a mere alteration of the name, no important changes were introduced. All prior rules remained in force (such as the Decree dated March 6, 1951) and all persons registered with the “old” commercial register had to re-register with the new commercial register within six months after entry into force of the new ordinance. This meant that all old registrations would no longer be valid after this transitional period. As previously mentioned, the Decree on the commercial register is still in force and article 2 of the latter stipulates that no one may conduct commerce in the DR Congo without being registered with the commercial register. Foreign companies: the DR Congo legislation differentiates between Congolese and foreign natural or legal persons. Foreign companies (regardless of their statutory seat) opening an agency, a branch office, exploitation centre or any other place of business in the DR Congo are obliged to register with the commercial register. The demand for registration of foreign companies must be lodged with the Tribunal of Grand Instance of the district where the business establishment is situated. In case multiple establishments are being created, the company is free to choose in which district it desires to be registered. Noteworthy is the fact that Congolese private limited companies fully owned by foreigners, and Congolese public limited companies of which all directors are foreigners, are considered foreign and need to conform with the above mentioned procedure as well. Finally, registration with the commercial register entails a presumption of the status of merchant. This presumption is especially important for natural persons since the status of merchant is being deducted from the fact that somebody carries out, on a professional basis, commercial acts. Commercial companies however, are created to carry out activities for consideration or financial gain, and are thus merchants. Important Laws
Land Code Land tenure is organised by the Land Code creating a distinction between ownership of the land and ownership of the right to use the land. The soil belongs exclusively to the Congolese State and all natural or legal persons can obtain a right of possession by means of a concession contract. These concessions can be obtained either free of charge or against payment. Concessions in Perpetuity A concession in perpetuity grants its beneficiary the right to enjoy his land eternally, as long as the conditions for the granted concessions are being met, and in order to be eligible for this kind of concession the applicant must be a natural Congolese national66. The concession contract stipulates the parties' respective rights and obligations in addition to the prescriptions of the Land Code. Obligations: whenever the concession was granted against payment, the concessionaire is held to pay levies and the agreed price for the concession. The State on the other hand has the main obligation to safeguard the concessionaire's undisturbed use of his concession for the remaining of its validity. Rights:the main right of the concessionaire, as stipulated in the Land Code, is the right to construct, to plant, and to dispose of any constructions or plants which were already present or which he constructed or planted after obtaining the concession. Furthermore the concessionaire becomes the rightful owner of everything incorporated on his land for the duration of his concession. This means a concessionaire may construct a building on his land, of which he will become the owner for as long as his concession is granted, and can be compared with building and planting rights. Termination:a concession in perpetuity can only cease to exist in very specific situations, as set out in the Land Code. And in case an expropriation takes place, the concessionaire will be indemnified for any buildings and other constructions of which he is the owner. Ordinary Concessions Beside the concessions in perpetuity, which can only be granted to Congolese nationals, the Land Code also provides for ordinary concessions to be granted to foreign individuals and to Congolese or foreign companies, which take the form of a land lease, building lease, usufruct, right of common, or rent. Land Lease: the right to have full enjoyment of a piece of land belonging to the State, under the obligation to maintain the land value and to pay a duty. This right is granted for renewable 25 year terms. Building lease:also granted for renewable 25 year terms, the right to enjoy a piece of land belonging to the State grants its beneficiary all the rights. However, the beneficiary may not dispose of any buildings on his land except in specific circumstances. Usufruct: the right of usufruct allows its beneficiary to use and enjoy the land, besides the State, but with the obligation to keep the land in its original state. Once again, this right is also granted for renewable 25 year terms but ends upon decease of its beneficiary. Right of common: granted for a renewable 15 year term, the right of common allows its beneficiary and his family to live or create a warehouse on the premises. Rent:a rent can only be accorded for 3 years and is often used as preparation for another kind of concession. Concessions are also easily transferable. Intellectual Property The Industrial Property Law is not applicable to the protection of literary and artistic property and in order to benefit from its protection foreigners residing outside the DR Congo must be nationals from countries party to the International Union for the Protection of Industrial Property. In case the latter wouldn't apply, a foreigner will still benefit from the protection in case of reciprocity of protection between the DR Congo and their respective home State. Inventions may be accorded protection by issuing a patent to the inventor. Of course, in order to benefit from a patent, every invention must be the result of an innovative process and should be "new". This condition makes reference to an innovative process and the novelty of the invention: Patents grant their beneficiaries a temporary exclusive exploitation right and, according to DR Congo law, take the form of either an inventive patent, an importation patent, or a perfection patent. The Industrial Property Law mentions an exhaustive list of inventions for which a patent can never be obtained, and creates a regime of "incentive licences" for useful discoveries throughout a non-innovative process of an unknown application of already existing products. Acquisition of IP titles: in order to file an application, the file must contain certain information in relation to e.g. the author, previous foreign patents, a clear description of the invention, etc. This file must be presented by the author or his proxy and foreign applicants are even obliged to act through an authorized Congolese agent. Decision: once the file is submitted, the competent authority must decide upon the request within a delay set at 3 months for national demands, and 5 months for demands carried out abroad. Noteworthy, the competent authority is not obliged to conduct a preliminary research as to the existence, novelty nor the accuracy of the description before deciding upon granting a patent. However, during this period, applicants are allowed to modify their demand however, which is also a good opportunity to adjust erroneous applications. Duration: once a patent is granted, the beneficiaries will enjoy a protection which lasts 20 years. Given the ancillary character of importation and perfection patents, their lifespan is subject to the validity of the main patent to which they refer. The DR Congo is also signatory to a number of international agreements with organizations such as the World Intellectual Property Organization (WIPO), and the Paris Convention for the Protection of Intellectual Properties, which protects trademarks and patents. The DR Congo is also a member of the Berne Convention that protects copyrights, artistic works, and literary rights. The maximum protection that these conventions provide is 20 years for patents and 20 years, renewable, for trademarks, beginning from the date of registration. Securities Congolese security law, with its civil law based approach, divides all security interest into two categories based on a distinction between personal security and real securities. This distinction is made because personal securities aim to introduce an additional guarantor for the original debtor’s obligations, whereas real securities operate as a right in rem granting a creditor a right over an asset. Labour Law A Labour Code was introduced on October 16, 2002 applicable to all employees as well as to all employers operating in the DR Congo. A Ministerial Decree dated October 26, 2005 has fixed the maximum authorized percentage of foreign workers, within the limits set out by the Labour Code, per sector and per category of workers. An exemption regarding the rates may be granted by the Minister of Employment and Social Foresight by means of a decree, on the basis of a corresponding and motivated advice issued by the National Commission of the Employment of the Foreigners, not exceeding 50 % of the legally authorized maximum, and the number of foreign workers may never exceed 15 %. It is important to note that certain functions in these sectors are even exclusively reserved to Congolese nationals Employment Contracts The labour code sets out the minimum requirements to be met by employers towards employees and stipulates that any clause according a less favourable treatment is null and void. Any employment contract should be evidenced in writing, mention certain details, and in absence of a written contract the employee may prove by all legal means including witnesses the existence and the scope of the contract. Duration Every employment contract shall either be a fixed term contract or an open-ended contract. In absence of a written contract the contract shall be presumed open-ended until evidence of the contrary in writing. In view of protecting employees, a fixed term contract cannot exceed a period of two years, reduced to one year if the employee is married and separated from his family, or when he is widower/widow or divorced and separated from any children under his custody. Furthermore, a fixed term contract can only be renewed once and any violation of the requirements set out in this section leads to the immediate conversion into an open-ended contract. Probation Period The labour code stipulates that every employment contract can be accompanied with a probation period as long as this period is evidenced in writing and does not exceed a period of 1-6 months depending on the specialization of the employee. The probation period may not exceed 1 month for an unskilled labourer without specialization, and 6 months for the other employees. Any stipulated longer duration will be automatically reduced to the allowed maximum. Annual Leave After having obtained 1 year of service, the labour code grants employees a right to remunerated annual leave. The length of annual leave is being calculated in relation with the age of the employee:
This will increase with 1 day per month for every period of 5 years of service for the same employer or substitute employer. Termination of contract Every employment contract can be terminated by both the employer and the employee but termination cannot be done freely and is subject to a strict regime115. This regime differs in relation with the duration of the contract and in relation to the party who is terminating the contract. Finally, there exist two exceptions to the general regime in case there was a probation period, or if the contract is ended by reasons of gross misconduct. Open-ended contracts Termination by the employer: in the first place, open-ended contracts can only be terminated by an employer on grounds of a valid motive concerning the aptitude or the behaviour of the employee in relation to his work, or because of business necessities. In case a termination was found invalid by the courts the employee has the right to be reinstated, in absence of which he will be entitled to reparation which may not exceed an amount equal to 36 times his latest monthly wage. Secondly, when discharging an employee, the employer has to take into account a notice which may not be less than fourteen working days, increased by seven working days for every full year of employment. Termination by the employee: termination of employment contract by the employee is not subject to the requirement of a valid motive since this rule is aimed at protecting employees against arbitrary dismissal. On the other hand, also employers deserve a degree of certainty that their employees will not leave their job from the one day to the next. Therefore employees also have to take into account a notice period which is half as long as the one an employer should have observed in case he would have ended the contract. Fixed term contracts Fixed term contracts always end by expiration of the term for which they were initially concluded, and any clause stipulating the possibility of giving notice is null and void. Therefore, every premature termination of fixed-term contracts gives rise to compensation116. Probation periods and gross misconduct Sometimes there exist reasons calling for immediate termination of contract. Therefore the foregoing has to yield in case termination of contract is the result of a probation period or gross misconduct. Probation period: in case an employment contract contains a probation period, both parties are allowed to terminate their contractual relationship for any valid reason concerning the aptitude or the behaviour of the other party. However, also in these situations termination is subject to a three days’ notice. Gross misconduct: finally, any employment contract may be immediately terminated when gross misconduct is at hand. Gross misconduct refers to a situation in which no party, exercising all reasonable and usual care, can demand the adverse party not to break the contract. The Labour Code gives a non-exhaustive list of examples of gross misconduct and further states that any compulsory redundancy because of gross misconduct must be notified within fifteen days after discovery of the facts constituting the gross misconduct. Social Security In the DR Congo there exists an obligatory system of social security covering social benefits in case of work related accidents or illness, pensions, and family allowance. In relation to these matters the competent authority is the National Social Security Institute, and any employer is obliged to send, within eight days after hiring an employee, a demand to join the social security system which has to include certain information. Employer's contribution The social security contribution is due by the employer on a monthly basis, is calculated on the basis of the legal minimum wage or on the basis of the actual wage if the latter is higher than the legal minimum, and consists of the following contributions:
Thus, an amount of 21.2 % of the employee's wage must be paid as contribution to the social security system by the employer. Social benefits Professional risks: the social benefits received in relation to work related accidents or illness fall within the scope of the rules governing professional risks. A work related accident is defined as every accident incurred to an employee because or as a result of performing his work, and by extension, also accidents incurred on the direct way to, or from, the workplace. The professional illnesses falling within the scope of the professional risks system are set out in a special decree. Pensions: in the DR Congo, the retirement age is set at 65 for men, and 60 for women. In order to benefit from the pensions system, the beneficiary must have stopped every activity as an employed person and must prove at least sixty months of contributions during the last forty trimesters. Once eligible for a pension, the amount is set at sixty percent of the average monthly income of the periods in which the beneficiary made contributions to the pensions system. Family allowance: any employee subject to the Social Security system is entitled to a dependent-child allowance. Important Laws :
Tax and Customs Taxes DR Congo's tax and duties system is based on a three-pillar structure: Direction Générale des Impôts: the Directorate-General for taxation is responsible for all matters relating to the basis, control, recovery and disputes of taxation in the DR Congo. These competences are exclusive and the DGI has to give account for their actions to the Minister of Finance. Office des Douanes et Accises: the Office for customs and excise taxation is competent in the fields of collection of duties, surveillance of State borders, and finding custums and accises infractions. Direction Générale des Recettes Administratives, Judiciaires, Domaniales et de Participations: the Directorate-General for fees, dues and royalties is also placed directly under the authority of the Minister of Finance and its mission includes the collection of all fees, dues and royalties due in the DR Congo. The Decree Law dated February 10, 1969 relating to income tax describes the main income tax requirements (Income Tax Decree). Most income related taxes are governed by this text but there are also other taxes set out in specific regulations. Customs Following a modernisation process under impulse of the Directorate General of Customs and Excises, a new Customs Code has been proclaimed by the President by means of Ordinance-Law nr. 10/002 dated 20 August 2010 which entered into force on the 21st of February 2011. Declarations: besides the normal regime where a declaration must be done three days after the arrival of the goods, a new regime allowing declarations prior to arrival of the goods has been installed, thus allowing to anticipate and facilitate the release of goods. Moreover, there is also a possibility to make a provisional or incomplete prior declaration and, if necessary, modify the latter. Representation: one of the other novelties is the possibility to have a representative take care of the customs formalities. Important Laws
The Mining Code The Congolese Mining Code makes a clear distinction between ownership of mineral materials and surface exploitation rights. In no way may a holder of surface rights avail himself of his title to claim any right of ownership whatsoever over the deposits of mineral materials, including the underground water and geothermal deposits which his concession may contain. The Mining Code regulates the following activities; the prospecting, exploration, exploitation, processing, transportation and sale of mineral materials, and not the preliminary geological work, exploration and extraction of liquid or gaseous hydrocarbons, as well as the activities or operations relating to thermal or mineral waters, which are excluded from the scope and are governed by special laws. To benefit from the Mining Code, the investor needs to be eligible to obtain mining or quarry rights. Any Congolese individual or legal entity having mining as its corporate purpose and having its administrative office in the DR Congo is eligible to obtain these rights. Foreign individuals or legal entities however, are required to elect domicile with an authorized mining and quarry agent located in the DR Congo, and must act through this intermediary. The Mining Code also excludes certain categories of persons from eligibility but this article relates mostly to officials and those not having obtained legal capacity yet. The Mining Code makes a distinction between mining and quarry rights, both subject to different regimes. The following are classified as quarries: deposits of non-metallic mineral materials, which can be used in the ceramics industry as building materials, ballasting materials and road building materials, to improve land cultivation. These deposits include in particular: sand, chalk, gravel, limestone and cement, laterite, fullers earth, clay, fossil, resins and diatomite, with the exception of marble, granite, phosphates, nitrates, alkaline salts and other associated salts. All deposits of mineral materials not classified as quarries will be treated as mines. Prospection Relevant information is available in Chapter 6.2. under “To Invest in Mining”. Mining Exploration The exploration permit for mining activities entitles its holder the exclusive right, within the area on which it is granted for and for the term of its validity, to carry out mineral exploration work related to mineral materials for which the permit has been granted, and for associated substances if the holder applies for an extension of his permit. However, in no event may the holder of the exploration permit proceed to exploiting activities. Restriction: mining exploration right is evidenced by a certificate and is valid for a period of 4 years for precious stones (renewable twice for a period of 2 years), and 5 years for other mineral materials (renewable twice for a period of 5 years). Every renewal however, will only cover 50% of the surface area of the original permit213 in the view of limiting the scope of existing explorations and allowing new explorations to commence. Furthermore, exploration permits cannot refer to an area exceeding 400 square kilometres and no natural or legal person, together with its affiliated companies, may hold more than fifty exploration permits in the DR Congo. Extension: each permit relates to certain mineral materials and before proceeding to actively explore for mineral materials other than those for which the exploration permit has been granted, the holder must obtain an extension of his permit to include these other substances. Such extension will automatically be granted if (a) the exploration permit is valid, and if (b) the holder describes what leads him to believe in the existence of the mineral materials for which the extension of the permit is being applied. Transformation: the holder of an exploration permit has the possibility to transform its permit into multiple exploration permits, or into an exploitation permit. The holder of an exploration permit may request the transformation of its original exploration permit into multiple exploration permits. The following conditions must be met:
The part of the perimeter which is not transformed remains subject to the terms and conditions of the original exploration permit. The duration of these multiple permits equals the period of validity of the initial permit which has not yet expired. Besides transforming an exploration permit into multiple permits, the holder of an exploration permit may also request the transformation of the latter into an exploitation permit. Quarry Exploration As with mining exploration, a quarry exploration authorization entitles its holder the exclusive right, within the area on which it is granted for and for the term of its validity, to carry out mineral exploration work related to mineral materials for which the permit has been granted, and for associated substances if the holder applies for an extension of his authorization. However, in no event may the holder of the exploration authorization proceed to exploiting activities. Restrictions: the quarry exploration right is evidenced by a certificate and is valid for a period of 1 year, renewable once. This authorization cannot refer to an area exceeding 4 square kilometres and no natural or legal person, together with its affiliated companies, may hold more than ten exploration authorizations in the DR Congo. Extension: the Mining Code doesn't mention the possibility of extension for quarry exploration authorizations and the holder of the authorization will have to apply for a new authorization if he wants to actively explore for other mineral materials. Mining Exploitation The exploitation permit entitles its holder to the exclusive right to carry out, within the area for which it has been granted, and during its term of validity, exploration, development, construction and exploitation works in connection with the mineral materials for which the permit has been granted, and associated substances if he has applied for an extension. Restrictions: the mining exploitation right is evidenced by a certificate and is valid for a period of 30 years, renewable for additional periods of 15 years each. But no natural or legal person, together with its affiliated companies, may hold more than fifty exploitation permits in the DR Congo. Extension:each permit relates to certain mineral materials and before proceeding to actively exploit other mineral materials, the holder must obtain an extension of his permit to include other associated or non-associated substances. Such extension will automatically be granted for associated substances if the holder of the licence demonstrates that they are located together with the substances for which the permit has been granted, and that they are in such a state of association that it is necessary to extract them simultaneously. Processing and transportation: the holder of the permit, or his processing or transformation entity, is free to process or transform the mineral materials and he is free to transport or store the mining products originating from his exploitation area. Sale: the holder of the permit is equally free to sell his products to the customers of his choice and at freely negotiated prices. However, the exportation of unprocessed ores for treatment outside the DR Congo is subject to the approval of the Minister of mining and quarries. The approval will furthermore only be granted if the applicant can demonstrate that it is impossible to treat the substances within the DR Congo at a cost which is economically viable for his mining operations, and that there are advantages for the DR Congo if the exportation were authorized. Quarry Exploitation There exist four categories of quarry exploitations:
Exploitation authorizations for both temporary as permanent open quarries entitle its holder the exclusive right to carry out, within the area for which they have been granted, and during their term of validity, exploration, development, construction and exploitation works in connection with the mineral materials for which the authorization has been granted, and other substances if the holder has applied for an extension. Moreover, the exploitation authorization for a temporary open quarry also has to mention the quantity of the substances to be extracted, the duties to be paid as well as the conditions for occupation of the sites necessary for sampling and related activities, and any quantity exceeding the determined volume can be confiscated or may be subject to additional taxes. Term: the term of validity for quarry exploitation authorization varies depending on the type of quarry; authorizations for permanent open quarries are valid 5 years and can be renewed, whereas authorizations for temporary open quarries are only valid 1 year without possibility of renewal235. Extension: the extension of a valid authorization to include other substances than those for which the permit was originally granted is subject to the same conditions as when applying for a new exploitation authorization and the extension will only be valid for the remaining period of the already existing exploitation authorization. Sale: the holder of the authorization is free to sell marketable products originating from his quarry to the customers of his choice at freely negotiated price. Obligations and Protection Obligations relating to the validity of mining and quarry rights
Obligations relating to mining and quarry activities Any person carrying out exploration or exploitation works has to take into account certain obligations relating to the protection of the environment, the protection of the cultural heritage, safety and health regulations, and the infrastructure of the works. Most of these obligations are dealt with in the Mining Regulations, and other specific regulations. Cases of force majeure are however taken into account. Guarantees for investors
Lease and assignment of rights The Mining Code provides for the possibility of leasing and assigning mining and quarry rights under certain conditions and payment of related fees. Securities The Mining Code’s explanatory statement affirms that securities create an important lending instrument allowing holders of mining or quarry rights to obtain sufficient funds to finance their activities. Accordingly, a special regime of mortgages and pledges especially aimed at financing mining activities, complementing the general securities regime exists. Taxes The new Mining Code sets out a uniform tax and customs regime applicable to all holders of mining rights, without distinction. Noteworthy however, is the fact that the holders of quarry rights are subject to the general tax and customs regime. The Forestry Code and the Farming Code There is a strict distinction between ownership of the resources and the right to exploit the resources; the State remains the owner of the forests but private parties can exploit them. Forest Code All forests are being divided into three categories in function of the legislator's degree of intervention. Depending on the level of protection the legislator accords to each type we can distinguish: classified forests (forêts classées), protected forests (forêts protégées), and permanent exploitable forests (forêts de production permanente) Forest concessions Eligibility: every person willing to obtain a forest concession must meet the following requirements: being domiciled (natural persons) or incorporated (legal entities) in the DR Congo, and deposit caution-money with a financial institution operating in the DR Congo to guarantee any future liability incurring because of the forestry activity. The deposit can also be replaced by a bank guarantee if preferred, and the amount of the caution-money is determined in function of the value or the surface area of the concession. Allocation: every concession is being offered by an invitation to tender and the allocation of concessions on mutual agreement is very exceptional and must be well argued and approved by the Minister. Concession contracts: A concession contract gives the right to exploit the surface of the forest if the authorization for exploitation (see infra) has been given. Although a concession contract confers a right to the concessionaire, the latter is not allowed to rent or assign his concession right without prior approval of the Minister responsible for forests. Forestry exploitation Forestry exploitation not only covers the usual activities of logging and harvesting forest products, but also covers the use of the forest for cultural, touristic or recreational use, and is subject to a prior authorization which is strictly personal and cannot be rented nor assigned. The rules governing exploitations can be found jointly in the Forestry Code and a Ministerial Decree. Logging permits are delivered for a concession not exceeding 1,000 hectare and the holder may be beneficiary of multiple permits at a time. Furthermore the validity period is set at a maximum of one calendar year. Once a concession has been granted the concessionaire is obliged to commence exploitation works within 18 months after signature of the concession contract. After this delay he may be given notice by the government administration to start exploitation within 12 months. If even after this additional period the concessionaire still hasn't commenced works, his concession rights are automatically revoked. Tax regime There exists an additional forestry tax regime independent of the normal tax regime due by every concessionaire or exporter of forest products. These taxes are set out in separate Ministerial Decrees and comprise the following dues and taxes: dues on the surface area of the concession, a logging tax, an exportation tax, a deforestation tax, and a reforestation tax. Farming Law The Farming Law applies to all agricultural exploitation, research and training, and the financing and commercialising of agricultural activities. Stock farming, fishery and aquaculture however, are excluded from the scope of application. The acquisition of farm land is reserved to Congolese nationals or Congolese companies of which the majority shareholders are Congolese nationals Banking sector The DR Congo financial system is broken down into three main sectors: the intermediation sector (banks and non-banks), the capital market and micro-finance institutions. The informal sector has penetrated all the economic activities and the government has undertaken an incentive policy for micro-finance with the introduction of financial intermediaries. All credit institutions are governed by the Banking Law creating a uniform regime for all enterprises conducting banking activities on a regular basis. The banking activities are divided into three sub categories: public fund raising, credit transactions, and payment management. However, credit institutions are not limited to these three activities. Besides these main activities, credit institutions are equally allowed to conduct connected activities such as e.g.: exchange transactions, issue of commercial paper, equity participation, etc. One an enterprise is conducting one of these banking activities on a regular basis, it will fall within the scope of the Banking Law and it will be classified as one of the following credit institutions: bank, savings and loans cooperative, savings bank, specialized financial institution, or financing company. The Congolese Central Bank has to grant the authorization to conduct banking activities on a regular basis within the DR Congo. Besides granting authorization, the Central Bank is also the monitoring agency. Anti-money laundering law This law imposes certain obligations upon credit institutions whenever a transfer is being made of which the origin is vague, or when the amount exceeds the equivalent of USD 10,000. The raison d’être of the law is prevention and therefore all credit institutions are obliged to keep information on the true identity of their clients, report any suspicious transactions, and keep records of financial transactions which must be handed over to the Congolese Central Bank upon request. Furthermore, whenever an intermediary is being consulted, the latter is not allowed to invoke any professional secrecy by which he might be bound. Besides these general obligations, the anti-money laundering law also imposes additional obligations to specific categories of businesses such as credit institutions, exchange offices, and casinos. Important Laws
Telecommunications This law issues all principles, rules and institutions regulating telecom activities, networks, and services. The DR Congo telecommunications sector is governed by two regulators each possessing specific tasks. First of all, the Minister of Telecommunications is competent for determining the general policy and for issuing the regulatory framework governing the sector. Secondly, the National Regulatory Authority (“Autorité de regulation de la poste et des telecommunications” or “ARPTC”) can be seen as a watchdog. Concession Licence In order to be allowed as a telecom operator in the DR Congo, a future operator has to apply for a licence with the Minister of Telecommunications. Every legal person obtaining an exploitation licence must however take the form of a Public Limited Company, of which at least 30% of the social capital is held by Congolese nationals. Furthermore this licence will set out the nature of the activity, and will also determine the framework for execution of the granted concession Public Network Operator The Public Network Operator is granted exclusive rights to render telecom services within the DR Congo and all other operators are operating as concessionaires. This temporary exclusivity is granted over the only network to which all concessionaires must be interconnected to transit their national and international telephone traffic. However, a concessionaire may exceptionally obtain authorization to possess his own network for handling long distance and international calls. Arbitration The Congolese Code of Civil Procedure sets out a framework in articles 159 to 201. These are mandatory rules in relation to arbitration clauses (articles 159 to 174), ground rules for arbitral procedures (articles 175 to 177), and arbitral awards and their execution (articles 178 to 194). some private initiatives have been put into place in conformity with the mandatory rules of the Code of Civil Procedure: the “Centre d’Arbitrage du Congo - CAC” founded by former President of the national Bar, and the “CENACOM” which is the arbitration centre of the “Fédération des Entreprises Congolaises – FEC”. International Arbitration The DR Congo State, the state owned companies and Congolese operators can validly accept international arbitration (ICC, UNCITRA) and their specific rules. The DR Congo adhered to the Geneva Convention of 26 September 1927 on the execution of foreign arbitration awards but not yet to the New-York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards. |
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Investment Legislation
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