Capital markets

Law no. 13/2016, of 30 December 2016, which amended and republished the Mozambican VAT Code, was recently rectified by a Notice, dated June 8th. The Notice specifically confirmed the elimination of the VAT exemption previously applicable to the acquisition of drilling, exploration and infrastructures construction services for the mining and oil and gas sectors at the prospecting and exploration stages. This abrogation was already foreseen in Law 13/2016 but not reflected in the republished version of the VAT Code. The Notice corrects this omission. The Notice further clarifies that any artistic, scientific, sporting, entertainment, educational services or ancillary services, as well as transport services provided within the national territory should be deemed as located in Mozambique (and not when they are provided outside the national territory, as previously foreseen in the republished version). Annexes I, II and III on VAT-exempt goods were also amended, which mainly list categories of goods and their tariff codes. Amendments were warranted given the need to bring these lists in line with the new Customs Tariff.

Presidential Decree no. 193/17, which approves the Regulation on the Licensing of Establishments and of Commercial Activity and Market Services (“Regulation”), was published on 22 August. The Regulation, which will enter into force on 21 October (60 days after its publication), establishes the conditions and procedures governing the licensing of commercial activities and market services, as well as the licensing of the respective establishments, revoking Presidential Decree no. 288/10, of 30 November (Regulation on the Licensing of Commercial Activity and the Provision of Market Services), as well as all prior regulations on the matter contrary to the provisions of the new Regulation. Scope of Application This Regulation governs the licensing of the following types of commercial activities: wholesale, retail sales, general trade, precarious commerce, street market trading, itinerant trading and the provision of market services (as defined in the Commercial Activities Law, approved by Law no. 1/07, of 14 May), as well as indirect representation commercial activities and any other commercial activity not regulated under special legislation. Activities authorised by special legislation, such as oil activities, are excluded from the scope of this Regulation. Main changes introduced by the Regulation Autonomisation of the licensing of commercial establishments and of the provision of market services  According to the Regulation, any natural or legal person, whether national or foreign, that intends to carry out a commercial activity or provide market services in Angola must obtain (i) a Commercial Licence, (ii) a Precarious Commerce Licence, (iii) a Street Market Vendor Licence, (iv) an Itinerant Trader Licence, or (v) a Market Stall Licence, depending on the activity to be carried out; In turn, the licensing of commercial, warehousing and market services provider establishments is independent from the licensing of commercial activity per se, seeing as the Regulation sets forth that the setting up and modification (if significant) of commercial establishments and of those used for the provision of market services is subject to the issuance of a commercial permit; Centralisation of licensing competencies in one single entity Licensing competencies (whether related to commercial activities or establishments) are now centralised in a single entity, namely, the Ministerial Department responsible for Trade and Market Services, which can grant private entities powers to perform the necessary administrative licensing procedures through a public service concession contract; Exclusion of import and export activities  Import and export activities are no longer subject to commercial licensing and now only require registration with REI - Registo de Importadores e Exportadores (Importers and Exporters Registry). Specific requirements for natural or legal persons are no longer foreseen Contrary to the previous legislation, the current Regulation does not foresee any special rules or procedures for foreign entities, which are now subject to the same requirements as national entities; Reduction of licensing entity’s response time The deadline for the issuance and notification of a decision on a (duly filed) request for a commercial licence is now reduced from 10 to 5 working days. If no answer is provided within this deadline, the request is considered tacitly approved; Two categories of commercial permit The Regulation classifies the various types of commercial, warehousing and market services provider establishments (defined in accordance with the Regulation on the Organisation, Exercise and Functioning of Retail Trade, approved by Presidential Decree no. 263/10, of 25 November) taking into account their dimension, organisation and the activities provided;  The classification of these establishments determines the type of commercial permit they will be subject to: Alvará de Comunicação Prévia (Prior Notice Permit), where the inspection of the commercial, warehousing and market services provider establishments is performed only after the respective prior notification, within 60 days of the date of its acceptance, or Alvará de Autorização (Authorisation Permit), in cases where issuance or renewal of a permit is dependent on prior inspection;  The latter authorisation procedure is applicable to establishments providing market services such as the sale of foodstuffs, medication and cosmetics, cars or the commercialisation of fuels and lubricants (under Annex VII of the Regulation), as well as those specified in Article 27 of the Regulation – all other establishments merely being subject to prior notice and subsequent inspection; The classification of commercial, warehousing and market services provider establishments is also decisive as regards the licensing of their respective owners (licensing of commercial activities and market services). The administrative procedure applied is similar in the case of owners of establishments subject to mere prior notice and subsequent inspection and those of establishments subject to the authorisation regime. In the latter case, if the authorisation request is accepted, the licensing process will advance with an inspection to the establishment in question, which should take place up to 10 days after the decision is served; pecial regime for the provision of market services The licensing of market services may (i) not be subject to any licensing procedure, as in the case of financial services or services of general economic interest, notably, in the electricity, natural gas, telecommunications and transport sectors, (ii) be subject only to prior notice and subsequent inspection, as in the case of construction activities or food and beverage services, or (iii) be subject to authorisation and prior inspection, in the case of services related to the sale of foodstuffs, medication and cosmetics, cars or the commercialisation of fuels and lubricants; Licensing proceedings through SILAC Licensing requests and applications for commercial permits, duly accompanied by the documents required by law, are to be submitted to the Angolan Ministry of Trade through SILAC – Sistema Integrado de Licenciamento da Actividade Comercial (Integrated System for the Licensing of Commercial Activities). FINAL NOTES The main objective of this Regulation is to clarify the administrative procedures for the opening and closing of establishments and to simplify the legal framework governing the provision of market services in Angola. The legal framework now set forth represents a break from the previous framework, established by Decree-Law no. 288/10, of 30 November. One of the main new features is the autonomisation of the authorisation to carry out commercial activities or market services, represented by a licence, the model of which varies according to the activity to be performed and the licensing of the commercial establishment, represented by a commercial permit. The simplification of the opening procedures applicable to establishments subject only to prior notice and subsequent inspection is also worthy of note, as well as the fact that several market services are no longer subject to licensing, namely those deemed of significant importance to the national economy, developed in sectors such as electricity, gas, telecommunications and transportation. The licensing process has also been simplified, no specific requirements now being foreseen for foreign natural or legal persons. A common framework has been introduced, which is characterised by a reduction in the licensing entity’s response time and by faster and more effective licensing procedures. The Regulation safeguards all licences issued under Presidential Decree no. 288/10, of 30 November, which will remain valid until their respective expiry date (5-year term), after which the issuance provisions foreseen in the Regulation should be observed. 

Law no. 13/2016, of 30 December 2016, which amended and republished the Mozambican VAT Code, was recently rectified by a Notice, dated June 8th. The Notice specifically confirmed the elimination of the VAT exemption previously applicable to the acquisition of drilling, exploration and infrastructures construction services for the mining and oil and gas sectors at the prospecting and exploration stages. This abrogation was already foreseen in Law 13/2016 but not reflected in the republished version of the VAT Code. The Notice corrects this omission. The Notice further clarifies that any artistic, scientific, sporting, entertainment, educational services or ancillary services, as well as transport services provided within the national territory should be deemed as located in Mozambique (and not when they are provided outside the national territory, as previously foreseen in the republished version). Annexes I, II and III on VAT-exempt goods were also amended, which mainly list categories of goods and their tariff codes. Amendments were warranted given the need to bring these lists in line with the new Customs Tariff.

Decree-Law 79/2017, of 30 June 2017, was published last Friday and amends both the Insolvency and Corporate Recovery Code and the Companies Code, in order to implement the goals of the “Programa Capitalizar” approved by Council of Ministers Resolution 42/2016, of 18 August 2016 Simplified share capital increase by conversion of shareholders loans The main amendments are designed to implement a simplified mechanism for share capital increase by conversion of shareholders loans at limited liability companies by quotas as follows: Shareholders representing the voting majority required to resolve on amendments to the Articles of Incorporation may notify the board of directors of the company of the share capital increase by conversion of the their shareholders loans to the company as booked in the latest approved balance sheet; The board of directors then notifies the share capital increase to the other shareholders in writing within 10 days, advising that the share capital increase becomes effective if no other shareholder expressly opposes the notified conversion in writing within 10 days as from the notice of conversion. Notwithstanding the fact that this type of share capital increase is an increase in kind, it may be made by mere statement of the certified accountant or statutory auditor (where the statutory audit is a legal requirement), setting out the amount in the accounting records, its source and the date. The wording of new Article 87.4 of the Companies Code raises a few issues however, particularly because it only refers to shareholders of “limited liability companies by quotas” while at the same time referring to “managers” and “directors”, and being included in the general provisions of the Code. The relevant bill submitted to public consultation did not restrict the simplified mechanism to members of limited liability companies by quotas, and so we could arguably infer that the legislator intended afterwards to limit the mechanism to limited liability companies by quotas having “forgotten” to remove the references to “directors” (paragraph 4), “board of directors” (paragraph 5) – which should have been replaced with board of managers –, and to insert the new regime under the chapter dedicated to limited liability companies by quotas. This doubt should be addressed by rectifying the statute. This new regime also waives the rules of equality between members, as: The share capital increase is not required to be resolved at a general assembly duly convened or with unanimous waiver of prior notice formalities; A rather short deadline (10 days) is foreseen for the remaining shareholders to expressly state their opposition; and No tag along rights are foreseen for the remaining shareholders, whether through conversion of their own shareholders loans or through any other type of contributions, so as to avoid dilution of their stake. We fear that the regime now approved may shoot itself in the foot, as it were, since it does not require the remaining shareholders to justify their opposition or the opposition to be underpinned by relevant own or equity interests. Dematerialization and electronic minute books As part of the development of one of the State’s modernization axes – streamlining –, another amendment was made to the Companies Code, specifically Article 4-A, to expressly recognize that the demand for or requirement of a signed document under the Companies Code will be deemed satisfied with electronic signatures. The door is open for the implementation of one of the measures set out in the Simplex+ program, namely the adoption of electronic minute books. It will be interesting to see how Registry Offices and Notary Services will react to this amendment and the new documents issued under it. The amendments come into force on 1 July 2017. VdA is available to provide more detailed clarifications on the consequences of the new decree-law. 

Bearer securities have been prohibited under Law 15/2017, of May 3, 2017, published today. The Companies Code and the Securities Code have been amended in order to implement this measure. Law 15/2017 – which takes effect tomorrow – greatly impacts limited liability companies by shares by eliminating bearer shares and allowing nominative shares only Under the new Law:  It is no longer possible to issue bearer securities (including shares); and  Existing bearer shares must be converted into nominative shares within 6 months of the new Law’s entry into force. The new Law, which is mostly silent, or unclear at best, on the consequences of its provisions, in effect forces limited liability companies to have nominative shares only. The Law also foresees publication of a Government statute within 120 days of the new Law’s entry into force. The statute is aimed at regulating the conversion of bearer securities, but should also determine that all legal and statutory references to bearer shares, notably as regards the way of circulation of shares, are references to nominative shares, the only kind admitted under the new Law. Also, any references to the issue of bearer shares must be replaced with references to nominative shares. Bearer shares still existing at this date must be converted into nominative shares within 6 months with all ensuing legal consequences, notable the registry of these shares in the share ledger book, if those shares are titled and have not been admitted to trading on the regulated market, or in the securities register of the issuing company.  Failure to convert bearer securities into nominative securities will entail, as from November 4, 2017: Suspension of the right to receive dividends in respect of shares, and interest in respect of bonds, while conversion is pending; Prohibition to transfer the bearer securities, which means that any identified transfers are null and void. The new Law amends a number of provisions of the Codes on bearer securities in general and bearer shares in particular and seeks to take on the consequences of this measure. Mandatory communications under Article 448 of the Companies Code regarding change of ownership of bearer shares – more honored in the breach than in the observance – will be no longer required after the entry into force of the new Law. This measure creates a legal void regarding documentation of any transfer acts that may take place within the next 6 months, until which the conversion required by law must take place.