CODE OF THE INVESTMENTS

CODE OF THE INVESTMENTS

Within the framework of the new governmental economic policy, the country was endowed since 2002 of a new Code of the investments with the aim of favoring and reassuring the investments, and also the other legislation to stimulate the trade and secure the investments.

The Code of the investments establishes the equality absolved from processing between national and foreign investors and simplifies the approval procedure which ends in the granting of the fiscal and customs advantages. The key points include:

• The membership of the D.R.C to the OHADA (Organization for the harmonization of the business law in Africa)

• The exclusion from the nationalization and from the expropriation

• The freedom of transfer abroad dividends and other income generated by the investments

• The dispute settlement following the agreement CIRDI (International Center of settlement of investment disputes), sitting in Washington City

• The creation of a Single window regarding investment: the ANAPI

• The deletion of certain formalities of the process of new business start-up such as the authentication of visas, certificate of non-state employee, police record, etc.

• A sensitive reduction of the cost of the registration in the new register of trade

• The publication of the statutes in the official news to save time

• The creation of numerous notarial offices through the country

• The mechanisms to assure the safety of the investments such as the membership of the D.R.C to the MIGA (Multilateral Investment Guarantee Agency) 

          and in the ACA (Agency for the insurance of the trade in Africa) to obtain insurances-export credits, insurances against the political risks, the insurances-                     investments and the other financial products which will allow to limit the risks and the commercial costs incurred to make affairs in Africa

• The adoption of several bilateral conventions on the mutual protection and the promotion of the investments between the D.R.C and the friendly countries.

• The guarantees and advantages granted by virtue of the mining Codes, the investments, and other

• The creation of commercial courts, and the work

• The other reforms are in the course of adoption by the Government

Eligibility

• Eligible sectors: several industries, services, (transport, hotel business, health, tourism, accommodation, information technologies, etc.), agriculture, infrastructure, sport, culture, etc. Not eligible sectors: mining, banks, reinsurance, production of armaments and explosives, trades (purchase and sale without treatment / transformation), etc. 

• In agreement with the article 8 of the Code of the investments, to be eligible, any project subjected to the ANAPI should present the following characteristics:

• Concern an economic entity of right Congolese

• Concern a minimum amount of 200 000 US D 

• Make a commitment to train the national staff / create permanent posts

• Make a commitment to respect the regulations regarding environmental protection and regarding the human life

• Guarantee a rate of added value equal or upper to 35 %

Advantages

The advantages are granted according to the region where is located the investment. The duration of application is of three years for Kinshasa, four years 

for Bas - Congo, Lubumbashi, Likasi and Luozi, and five years old for the rest of the country.

Conditions

The concerned good cannot be made in D.R.C

The price of the identical national product is upper, more than 10 %, to the price of the imported product

Fiscal and customs advantages

• Some tax exemptions for the following ones: professional tax, tax on the constitution and on the increase of the share capital of commercial companies, tax on rental revenues and tax on products and national services

• With the exception of the administrative fee, the investments in the public interest benefit from the total exemption from the rights and the taxes for the import for machines, the new equipment and the material, the spare parts of first subsidy not exceeding 10 % of the value C.I.F of said equipment, after presentation of their requests approved by the A.NA.P.I

• With the exception of the administrative fee due to the services of the Customs fixed to 5 % of the value C.I.F of the imported equipment, the approved companies benefit from the exemption from duties and the taxes in the import, For machines, equipment and material new, the spare parts of first subsidy not exceeding 10 % of the value C.I.F Said equipment, necessary for the equipment of a new company or an existing company

Protection 

• The minimal guarantees supplied to the foreign investors by the Congolese State:

• National treatment(processing)

• Just and fair treatment(processing)

• Recognition of intellectual property rights

• Compensation in case of expropriation

• Transfers of money

• Transfers of dividends

• Arbitration(Refereeing)

Important legislation

Law n°004 of February 21st, 2002 carrying Code of the investments.

GENERAL COMMERCIAL LAW

The Congolese general Commercial law is very concise and goes back to the colonial time. His main sources are a decree dating 1913, the Decree of commercial law, on the traders and the proof of the commercial commitments and the decree dating March 6th, 1951, as well as later prescriptions, on the commercial register.

Traders and commercial acts

Every person who, within the framework of a professional activity, realizes commercial transactions is considered as a traders. The mention "within the framework of a professional activity" involves that this person has to exercise these commercial acts in a regular way and pull a revenue stream.

To determine what establishes a commercial act, the Decree of commercial law establishes a not exhaustive list of commercial acts including the sale, the resale, the renting activities, the banking activities, the construction, etc.

All the commercial companies created on the Congolese territory according to the Code of the Congolese trading companies are considered for exercising commercial acts.

Register of trade

The procedure of Congolese registration contains two main characteristics. At first, for all the companies, the registration absolutely has to precede any commercial activity in D.R.C, with the exception of the LIMITED COMPANIES which have, them, a lapse of two months after the obtaining of the presidential authorization to fill the obligation of registration. In the second place, a person can realize of other commercial activity than those quoted in the register. However, the failure to respect these two obligations is not sanctioned in a direct way. For example; the people who make affairs without being duly registered find themselves simply in the scope of the laws forbidding the dishonest practices and are sanctioned in reality rarely.

New commercial register: by the Prescription dating February 7th, 1979, the Congolese legislator wished to break with the past and to introduce a new commercial register ("NRC"). In fact, besides the change of name, no important modification was brought.

All the previous rules remained current (such as that of the Decree dating March 6th, 1951) and all the registered people in "the former" commercial register had to record again with the new commercial register within six months following the coming into force of the new prescription. What meant that the former registrations were not valid anymore after this period of transition.

As mentioned previously, the Decree on the commercial register is always effective and the article 2 of this one stipulates that nobody can make affairs in D.R.C without being registered to the commercial register.

Foreign companies: the Congolese legislation establishes a distinction between Congolese and foreign persons and institutions. Any foreign company (independently of the statutory seat) opening an agency, a subsidiary, a center of exploitation or establishment of affairs in D.R.C must be registered to the commercial register. The request of registration must be put down by the foreign company to the county court of the district aimed for the setting-up. If several establishments are created, the company can choose the district wished as the registration.

To note that S.A.R.L Congolese completely held by foreigners, as well as Congolese LIMITED COMPANIES all the directors of which are foreigners, are considered as foreigners and thus have to follow the mentioned procedure higher.

Finally, the registration to the commercial register involves an assumption of traders status. An assumption particularly important for the physical persons because traders status ensues from the fact that a person, within the framework of a professional activity, exercises commercial acts. However, commercial companies are created to lead activities for counter-party or financial earnings and thus are "traders".

Important legislation

Law 73/009 of January 5th, 1973 concerning the Trade 

Authorizes n°79-025 of February 7th, 1979 - New commercial register 

Decree on trading companies 

Law 78-002 carrying general arrangements applicable to public enterprises

Land code

• Land laws are organized in the land Code which establishes a distinction between the property of the ground and the right of possession of a landed property

• The earth belongs exclusively to the Congolese State and any natural or legal entity can obtain a property right by means of a contract of concession

• These concessions can be granted free of charge or for payment

Perpetual concessions

A perpetual concession confers to the beneficiary the right to enjoy its earth for an unlimited period, as long as the conditions of granting of concessions are respected; this type of concession is reserved for the physical persons of Congolese nationality. The contract of concession stipulates the rights and duties of the respective parts as well as the capacities of the land Code.

Obligations: when the concession is granted in return by a payment, the dealer has to pay taxes as well as price of the concession suited. The State has for its part the major obligation to guarantee to the dealer a serene use of the concession on the duration of its validity.

Rights: the right first one of the dealer, such as expressed by the land Code, is the one to build, to plant and to get rid of any construction or already present plant or such as he built or planted further to the obtaining of the concession. Besides, the dealer becomes the justifiable owner of all which is on its earth for a period of the concession. What means that a dealer can build a building on its ground, of which he will be an owner during the duration of validity of his concession, and can become so subject to the rights of construction and plantation.

Termination: a perpetual concession cannot come to an end that so certain specific conditions, established by the land Code, are gathered. In case of expropriation, the dealer will be indemnified for any building or other construction an owner of which he is.

Ordinary concessions 

Besides the perpetual concessions, which are accessible only to the Congolese nationals, the land Code also plans ordinary concessions which can be granted to the particular foreigners as to the Congolese or foreign companies and are available under forms of lease of ground, building lease, usufruct, community right of user, or rent.

Lease of ground: the right(law) to enjoy completely a ground belonging to the State, subject to protecting the value of the ground and paying a tax. This right(law) is renewable every 25 years.

Building lease: also renewable every 25 years, the right to enjoy a ground belonging to the State; confer to his beneficiary full rights. However, this beneficiary is not authorized to destroy any building being on the ground, do not safe in case of exception.

Usufruct: the right of usufruct allows his beneficiary to use and to enjoy a ground, in the same way as the State, but by respecting the obligation to keep this ground as is of origin. This right is also renewable every 25 years but goes out with the beneficiary at the time of its death.

Community right of user: granted for a renewable period of 15 years, the community right of user allows his beneficiary and the members of his family to live and to create a warehouse on the scene.

Rent: a rent can be applied for a period not exceeding three years and is often used as way of transition towards another type of concession.

The concessions can be easily transferred.

Intellectual property

The intellectual property law does not extend in the protection of the literary and artistic property and to benefit from such a protection, any foreigner living outside the territory of the D.R.C has to be a national of a member state of the Union international for the protection of the industrial property. For lack of the precedent, the foreigner will benefit all the same from the aforementioned protection if there is a reciprocity of protection between the D.R.C and its respective country of origin.

Patents are freed to protect the inventions. To benefit from a patent, any invention has to be of course the result of an innovative process or be "new". This condition applies to the innovative processes and to the novelty of the invention:

Patents confer to their holders an exclusive right of temporary exploitation and, by virtue of the Congolese legislation, come in patent, patent of import or patent of improvement.

The intellectual property law supplies an exhaustive list of not patent able inventions and creates a regime of "certificate of encouragement" for the useful discoveries made through the not innovative process of an unknown application of an already existing product.

Acquisition of titles of Intellectual property: to apply, the file has to contain certain information carrying on, for example, the author, the titles freed abroad, the clear description of the invention, etc. This file must be presented by the author or his representative and the not Congolese depositors even have to act by means of an approved Congolese representative.

Decision: once the put down file, the competent authorities have to rule on the request received within three months for the demands made from the national territory, and five months for the demands from the foreigner. To note that the granting of a patent by competent authorities can be made without preliminary examination to confirm the existence, the novelty or the precision of the description. However, during this period, every depositor can modify his request, what allows the depositors to bring corrections to the applications containing errors.

Duration: the granting of a patent confers to the beneficiaries a protection over 20 years. Seen the secondary character of the patents of import and improvement, their life expectancy is subject to the period of validity of the main patent to which they relate.

D.R.C is also signatory of a significant number of international agreements with organizations such as the World Intellectual Property Organization (W.I.P.O) and the Convention of Paris for the protection of the industrial property, which protects the marks and the patents. The D.R.C is also a member of the Convention of Bern for the protection of copyright, artistic and literary works. The level of maximum protection conferred by these conventions is of 20 years for patents and of 20 years, renewable, for the marks from the date of deposit.

Guaranteed 

The Congolese legislation on guarantees, with its civil-law approach, divides guarantees into two categories by establishing a distinction between the personal guarantees and the real guarantees. A necessary distinction because the personal guarantees aim at introducing an additional guarantor for the obligations of the main debtor while the real guarantees confer on a creditor of the right realities in terms of property rights on an asset.

Labor law

A Labor code applicable to all the employees and the active employers in D.R.C was introduced on October 16th, 2002.

A ministerial decree dating October 26th, 2005 defined the maximal percentage of authorized immigrant workers, in the limits defined by the Labor code, by the sector and the category of workers. An exemption at the level of price lists(rates) can be granted by the minister of employment, the Work and the social Foresight by means of a decree, on the basis of a corresponding and motivated opinion emitted(uttered) by the national Commission of the employment of the foreigners, not exceeding 50 % of the authorized legal maximum amount, and the number of immigrant workers was never have to be upper to 15 %. It is important to note that certain posts in these sectors are exclusively reserved for the Congolese nationals.

Contracts of employment

The Labor code establishes the requirements minimum to be respected by the employers towards their employees, and stipulates that any clause planning a less favorable treatment is null and void. All the contracts of employment must be noticed in writing, mention certain details, and in the absence of a written contract, the employee can prove by all legal means, including witnesses, the existence and the field of such a contract.

Duration

A contract of employment can be fixed-term or indefinite. In the absence of written contract, the contract will be presumed indefinite until proved otherwise in paper.

To protect the employees, fixed-term contracts cannot exceed a period of two years, returned to one year if the employee is married and separated from his family, or when it or it is a widower / widow or a divorcee or separated from children among whom he(it) or she(it) is given custody. Furthermore, a fixed-term contract can be renewed only once and any violation of the requirements described in this section pull the immediate conversion of the contract in a permanent employment contract.

Trial period

The Labor code stipulates that any contract of employment can be accompanied by a trial period which must be noticed necessarily in writing and cannot exceed 1-6 months according to the degree of specialization of the employee. The trial period cannot exceed one month for the unspecialized workers, and six months for the others. Any indicated superior duration will automatically be reduced at the most admitted.

Annual leave

After 1 year of service, the Labor code grants to the employees the right(law) for paid annual leaves. The duration of this annual leave is calculated according to the age of the employee:

• • A minimum of day off a month integer of service for the employees being more than 18 years old

  • A minimum of one and a half day of vacation(notice to leave) a month integer of service for the employees being less than 18 years old

Which will be increased in the daytime a month, for every period of five years in the service of the same employer or in the service of his replacement.

Termination of the contract

Any contract of employment can be cancelled on the initiative or of the employer or the employee but this termination cannot be freely made and is subject to a strict regime. The regime varies according to the duration of the contract and the party wishing to cancel her(it). Finally, there are two exceptions to this general regime: in case of trial period and if the contract is cancelled because of serious offence.

Permanent employment contracts

Termination by the employer: first of all, permanent employment contracts cannot be cancelled on the initiative of the employer only for a valid motive bound to the capacity or to the conduct of the employee on the scene of work in the exercise of his/her duties or according to the necessities of functioning of the company. A termination of permanent employment contract judged without valid motive by a court gives the right, for the employee, to a reinstatement. For lack of this one, the employee is entitled to damages which can not exceed an amount equivalent to 36 months of his(her,its) last remuneration. In the second place, when an employee is sent back, the notice of termination given by the employer cannot be lower than 14 working days. This deadline is increased by seven working days a year whole of continuous duties.

Termination by the employee: the termination of the contract of employment by the employee is not submitted to a requirement of valid motive because this rule aims at protecting the employees of arbitrary redundancies. However, it is advisable to assure(insure) the employers, to a certain extent, that their employees cannot leave their employment overnight. Thus, the employee also has to supply an advance notice which is equal in the middle of the one that should have put back the employer if he had taken the initiative.

Fixed-term contracts

Fixed-term contracts come to an end at the expiration of the term initially fixed by the parties. Any clause planning the right(law) to end it by advance notice is null and void. Consequently, any premature break of fixed-term contract gives rise to damages.

Trial periods and serious offence

In certain cases, the immediate termination of the contract is justified. The aforesaid capacities give in in the face of any termination of contract associated with a trial period or for serious offence.

Trial period: in case the test contract matched by a trial clause, each of the parts(parties) can, for a valid motive bound(connected) to the capacity or to the conduct of other one, end the contract. However, this type of termination is subject to an advance notice of three days.

Serious offence: finally, any contract of employment can be immediately cancelled, for serious offence. A part is considered for having committed a serious offence when the honest rules do not allow to require from other than it continues to execute the contract. The Labor code supplies a not exhaustive list of examples of serious offences and also stipulates that any compulsory redundancy for serious offence must be notified in the fifteen days following the discovery of the facts establishing the aforementioned fault.

Social Security

There is in D.R.C a compulsory national insurance scheme which covers the social-security benefits associated with occupational accidents, professional diseases, pensions and welfare. The competent authority on the subject is the national Institute of Social Security and every employer has to, within a week according to the hiring of an employee, submit an application for membership to the national insurance scheme which has to specify certain information.

Employers' contribution 

National insurance contributions are paid(poured) by the employer every month, calculated according to the legal minimum wage or to the real wage if this last one is upper to the legal minimum and consist following contributions(taxes):

• 3,5 % for the pensions

• 1 % for the occupational hazards

• 16,7 % for the social-security benefits

Thus, an amount equivalent to 21,2 % of the salary of the employee must be paid by the employer in the form of contribution in the national insurance scheme.

Social-security benefits

Occupational hazards: the social-security benefits supplied in case of occupational accidents or of professional diseases raise rules concerned to the occupational hazards. The occupational accident defines itself as any accident arisen to the employee by the fact either on the occasion of its work, and by the extension, also includes any accident arisen on the direct route traveled(browsed) to go in or return of the workplace. The professional diseases being of the regime of occupational hazards are indicated in a special decree.

Pensions: in D.R.C, the retirement age is defined in 65 years for the men and 60 years for the women. To benefit from the regime of pensions, the insurant must have stopped any salaried activity and prove of at least sixty months of contributions(taxes) during the last forty quarters. Once the right (law) for the pension opened, the amount is fixed in so much of sixtieth of the monthly average remuneration which the beneficiary counts of month of contribution to the regime of pensions.

Welfare: the employees submitted to the national insurance scheme have right for an allocation for every dependent child.

Important legislation:

• Law No. 015/2002 of October 16th, 2002 carrying Labor code

• Authorize law No 74/098 of June 6th, 1975 carrying protection of the hand of national work

• Departmental order No. 11/74 of September 19th, 1974, revised by Ministerial decree No. 025/95 of March 31st, 1995, concerning the redundancy of the workers

Taxes and customs

Taxes

In D.R.C the tax regime and rights articulates around three major axes:

General tax office or Direction générale des Impôts (D.G.I) : the General tax office manages all the questions relative to the base(basis), to the control, to the covering and to the fiscal disputes in D.R.C. They are exclusive skills in the D.G.I, which is connected with Minister of Finance.

Office of Customs and Excises or Office des Douanes et Accises (OFI.D.A) : Office of Customs and Excises has for missions the collection of rights, the supervision of the borders of the State and the search and the observation of breaches regarding customs and excises.

Head office of the administrative, judicial, state-owned receipts and the participation:  is also directly connected with Minister of Finance; it is in charge of recovering all the receipts, the due amounts and the royalties in D.RC.

Authorize law dating February 10th, 1969 which deals with the income tax describes the main requirements (Decree on the income tax). The majority of the taxes associated to the income are governed by this text but there are other taxes which are the object of specific regulations.

Customs

Further to a process of modernization introduced by the Head office of Customs and Excises, a new customs Code was promulgated by the president by Authorize law no 10/002 dating August 20th, 2010, come into effect on February 21st, 2011.

Statements: besides the normal regime which stipulates that the statements must be made three days after the arrival of the goods, a new regime planning the recording of statements before the arrival of the goods was set up, what allows to anticipate and to facilitate the customs clearance of the goods. Furthermore, it is from now on possible to make a preliminary statement temporary or incomplete and so necessary, to modify it later.

Representation: another novelty is the possibility of leaving to a representative the load of customs formalities.

Important legislation

• Decree n°011 / 42 of November 22nd, 2011 carrying measures of execution of Authorize law n°10 / 001 of August 20th, 2010 carrying institution of the value-added tax

  • Ministerial decree n°065 / CAB / MIN / finance / 2011 of November 29th, 2011 fixing the complementary methods of repayment of the credits of the value-added tax

  • Ministerial decree n°071 / CAB / MIN / finance / 2011 of December 30th, 2011 concerning suspension of the perception of the Value-added tax certain staple commodities

  • Inter ministerial order n°019 / CAB / MINAFFET / 2011 and n°317 / CAB / MINFINANCES / 2011 of December 23rd, 2011 establishing a committee in charge of the examination of the quotas of the goods intended for the official custom of the diplomatic and consular missions and the representations of the international organizations to be exempted from the value-added tax

  • Ministerial decree n°072 / CAB / MIN / finance / 2011 of December 30th, 2011 carrying suspension of the perception of the value-added tax in the import in favor of the oil companies of production and of the mining companies being a matter of a conventional regime

  • Ministerial decree n°067 / CAB / MIN / finance / 2011 of November 29th, 2011 fixing the conditions of approval of the fiscal representatives of the established or domiciled indebted of the value-added tax outside the Democratic Republic of the Congo

  • Inter ministerial order n°016 / CAB / MIN / health / 2011 and n°328 / CAB / MIN / finance / 2011 of December 28th, 2011 fixing the list of the pharmaceutical inputs exempted from the value-added tax

  • Ministerial decree n°037 / CAB / finance / 2011 of August 11th, 2011 carrying modification of the threshold of subjection in the value-added tax

  • Memorandum n°01 / 0197 / DGI / DG / CR / TSHI 2011 concerning measures on the methods of statement of stocks by the retailers of the imported products

The mining Code

The Congolese mining Code establishes clearly a distinction between the property of mineral substances and the exploitation rights of surface. In no way the land dealer cannot take advantage of its title to claim any property right on the holiday shelters of mineral substances, including subterranean waters and the geothermal holiday shelters which would contain its concession.

The measures of the mining Code govern the following activities: the prospecting, the search, the exploitation, the treatment(processing), the transport and the marketing of mineral substances and not the gratitude, the exploration and the exploitation of liquid hydrocarbons or gaseous as well as the activities or the operations concerning thermal or mineral waters, which are excluded from the scope and governed by particular legislation.

To benefit from the mining Code, the investors must be eligible in mineral rights and of careers. Every natural person of Congolese nationality or every legal entity of Congolese right(law) who has her administrative siege in D.R.C. and the business purpose of which concerns the mining activities can aspire to these rights. However, the foreign physical persons or the moral persons of foreign right(law) have to take up residence with a representative in mines and quarries approved established in D.R.C. and to act by his(her) intermediary. The mining Code excludes also certain categories of people of the eligibility but this article aims essentially at the state employees and at those being under the blow of a legal incapacity.

The mining Code distinguishes the mineral rights of the rights of careers, which are submitted to different regimes.

Are classified in careers: holiday shelters or deposits of non-metallic mineral substances usable in the ceramic industry, as materials of construction, metalling and road or to improve the culture of lands. These holiday shelters include in particular: the sand, the chalk, the gravel, the stones with lime and with cement, the laterite, fuller's earths and smectiques clays, fossils and diatomites, with the exception of the marble, of the granite, the phosphates, the nitrates, the alkaline salts and the other associated salts. All the holiday shelters and the deposits of mineral substances not classified in careers are classified in mines.

Mining search

The licence of mining search confers to his(her) holder the exclusive right to make, inside the perimeter on which it is established and during the duration of its validity, the research works of mineral substances for which the licence is granted and associated substances if the holder asks for the extension of the licence these substances. However, the holder of a licence of search is on no account authorized to make works of exploitation.

Limitation: the right(law) to make mining searches is noticed by a certificate the duration of validity of which is of four years for precious stones (renewable twice for a period of two years) and of five years for the other mineral substances (renewable twice for a period of five years). However, every renewal covers only 50 % of the surface for which the initial licence was freed to limit the scale of the existing searches and allow new searches to begin. Besides, the surface being the object of a licence of searches can exceed a maximum of 400 km2 and on no account, a natural or legal entity, and his(her) affiliated companies, can hold no more than 50 licences of search in D.R.C.

Extension: every licence is associated with certain mineral substances and before proceeding to the active search for mineral substances other than those for whom its licence of search was established, the holder has to obtain the extension of this one in these other substances. Such an extension is of right(law) if  the licence of search is of current validity and if the holder describes the information which persuades him(her) in the existence of mineral substances for which the extension of the licence is asked.

Processing: the holder of a licence of search can request the processing of his licence in multiple licences of search or in business licence.

The holder of a licence of search can request the processing of his initial licence of search in multiple licences of search. To do it, the following conditions must be gathered:

• • The licence of search is of current validity

  • Only squares covered by the initial licence can be covered by the new licences of search

  • The same licence of search can cover no more than 471 squares

  • The holder must have settled all the right superficiaries during the period of validity of the initial title

The part of the perimeter not transformed remains subjected to the terms and the conditions of the initial licence of search. The duration of these multiple licences is equal to the duration not fallen to the initial licence.

The holder of a licence of search cannot only request the processing of his licence of search in multiple licences, but also in business licence.

Search for products of careers

Just like for the mining searches, an authorization of search for products of careers confers to his(her) holder the exclusive right to make, inside the perimeter on which it is established and during the duration of its validity, the research works of mineral substances for which the licence is granted and associated substances if the holder asks for the extension of this authorization these substances. However, the holder of an authorization of search is on no account authorized to make works of exploitation.

Limitations: the right(law) to make searches for products of careers is noticed by a certificate of a duration of validity of one year, renewable once. The surface being the object of this authorization can exceed a maximum of 4 km2 and on no account, a natural or legal entity, and his(her) affiliated companies, can hold no more than ten authorizations of search in D.R.C.

Extension: the mining Code does not make fact mention of a possibility of extension for the authorizations of search for products of careers and the holder of such an authorization has to put down a new authorization request if he actively wishes to look for other mineral substances.

Mining

The business licence confers to his(her) holder the exclusive right to make, inside the perimeter on which it is established and during the duration of its validity, the works of search, development, construction and exploitation aiming at mineral substances for which the licence is established and associated substances if he asked for the extension.

Limitations: the right of mining exploitation is noticed by a certificate the duration of validity of which is of 30 years, renewable several times for a duration of 15 years. On no account, a natural or legal entity, and his(her) affiliated companies, cannot hold any more fifty business licence in D.R.C.

Extension: every licence is associated with certain mineral substances and before proceeding to the active exploitation of the other mineral substances, the holder has to obtain the extension of his licence in these other associated or not associated substances. 

The extension in associated mineral substances is of right(law) if the holder of licence demonstrates that they are with substances for which the licence was granted in a state of association such as it pulls inevitably their simultaneous extraction.

Processing or transformation and transport: the holder of a licence, or his entity of processing or transformation, is authorized to handle or to transform mineral substances and has the right to transport or to store the mining products which result from its perimeter of exploitation.

Marketing: the holder of a business licence can sell his products to the customers of his choice at freely negotiated prices. However the authorization of the ministry of Mines is required for the export of ores in the rough for processing outside of the D.R.C. This authorization is granted only if the holder who asks for it demonstrates at the same time the non-existence of a possibility of processing in D.R.C. to a profitable economic cost for the mining project, and the advantages for the D.R.C. in case the export permit is granted.

Exploitation of quarries

Careers are classified in four categories:

• • The open permanent careers, either on a state-owned ground, or on a perimeter being the object of a land title held by a third party for the business concern by private persons

  • The open careers in a temporary way, either on a state-owned ground, or on a perimeter being the object of a land title held by a third party for the business concern by private persons

  • The open careers in a temporary way on a state-owned ground for the works in the public interest

  • The open careers in a temporary way by the occupant duly authorized or the owner of a ground for the not commercial exploitation or exclusively in its own domestic use

Any authorization of exploitation relating to an open career in a temporary or permanent way confers to the holder the exclusive right to make, inside the perimeter on which it is established and during the duration of its validity, the works of research, development, construction and exploitation aiming at mineral substances for which the authorization is established as well as other substances if he asked for the extension. Furthermore, the authorization of temporary exploitation of careers has to fix the quantity of substances to be extracted, taxes to be paid as well as the conditions of activity of grounds necessary for the takings and for the related activities. Any positive quantity in the volume fixed by the authorization can be seized or be the object of an additional taxation.

Duration: the duration of validity of the authorization of exploitation of careers varies according to the type of career; she(he) is of five years and renewable for the authorization of permanent exploitation of careers and of one year only and not renewable for the authorization of temporary exploitation.

Extension: to obtain the extension of his authorization in substances other than those for whom the authorization is established, the holder has to follow the same procedure as that planned for the institution of his authorization of exploitation of current validity. The extension is granted for period not fallen to the duration of the authorization of exploitation of the holder.

Marketing: the holder of an authorization can sell the marketable products resulting from his career to the customers of his choice at freely negotiated prices.

Obligations and protection

Obligations relative to the validity of mining right(law) or careers

• The beginning of the works (within six months)

• The payment of right superficial

Obligations relative to the operations by virtue of the mining title or of the careers

Every person making works of research or exploitation has to respect certain obligations relative to the environmental protection, the protection of the cultural heritage, the safety and the hygiene, and the planning and the use of the infrastructures of the mining project. The modalities of these obligations are specified in the Mining Regulation and other specific laws. The cases of absolute necessity are however taken into account.

Guaranteed to the investors

• The exchange

• Funds transfers towards the foreigner

• The right to have freely their properties

• The ban on expropriation

• The stability in terms of law enforcement

• Legal remedies

Lease and transfer of the rights

The mining Code plans the possibility of lease and transfer of mining rights and careers subject to certain conditions and to the payment of the associated expenses.

Safeties

In the preamble of the mining Code, it is specified that the safeties create an instrument of important loan allowing the holders of mineral rights and careers to obtain funds required to finance their activities. Consequently, a special regime of mortgages and wages, dedicated to the financing of the mining activities, exists as a supplement to the general regime of safeties.

Taxes

The new mining Code establishes a uniform tax and customs regime, applicable to all the holders of mineral rights, without distinction none. To note however that the holders of rights of careers are subjected to the fiscal and customs general regime.

The forest Code and the agricultural Code

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