Administrative Instruction No. 006 Regulating the Activity of Financial Messaging Services (Modification No. 2)

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CENTRAL BANK OF THE CONGO

THE GOVERNOR

ADMINISTRATIVE INSTRUCTION NO. 006 REGULATING THE ACTIVITY OF FINANCIAL MESSAGING SERVICES

(Modification No. 2)

The Central Bank of the Congo,

Having regard to Law No. 18/027 of 13 December 2018 on the organization and functioning of the Central Bank of the Congo, particularly Articles 10, 11, and 25;

Having regard to Law No. 22/069 of 27 December 2023 on the activity and supervision of Credit Institutions, particularly Articles 167 and 168;

Having regard to Ordinance-Law No. 67/272 of 23 June 1967, as amended and supplemented to date by Decree-Law No. 004/2001 of 31 January 2001 on the regime for national and foreign currency operations in the Democratic Republic of the Congo;

Having regard to Law No. 22/068 of 27 December 2022 on the fight against money laundering and terrorist financing and the proliferation of weapons of mass destruction, particularly Titles I and III;

Having regard to Law No. 18/019 of 19 July 2018 on payment and securities settlement systems;

Having regard to the foreign exchange regulations of the Democratic Republic of the Congo of 28 March 2014;

Enacts the following provisions concerning the activity of Financial Messaging Services:

TITLE I: GENERAL PROVISIONS

CHAPTER I: OBJECT AND SCOPE OF APPLICATION

Article 1:

This Instruction aims to define the conditions required for the exercise of fund transfer activities by Financial Messaging Services.

Financial Messaging Services are Congolese legal entities other than Credit Institutions that, as a regular profession, without physical movement of the order giver's funds and regardless of the medium used, carry out fund transfer operations.

They may also carry out electronic fund transfers via computer applications or platforms.

This Instruction applies to Credit Institutions and financial companies regarding Articles 32 and 64.

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CHAPTER II: DEFINITIONS OF CONCEPTS

Article 2:

For the purposes of this Instruction, the following terms shall mean:

• Financial Messaging Service agent or agent: an economic operator, natural or legal person, not qualifying as a Credit Institution or financial company, that carries out fund transfer operations in the name and on behalf of a Financial Messaging Service, pursuant to a written contract;

• branch: a division of the Financial Messaging Service established in a city of the Democratic Republic of the Congo other than the head office city;

• counter: an office of a Financial Messaging Service opened in the city where the registered office or branch is located;

• fund transfer: an operation by which a Financial Messaging Service receives funds from a person, without being able to dispose of them for its own benefit, and is obliged, upon the order of that person, to transmit them to a designated third-party beneficiary;

• significant transaction: a transaction whose amount does not correspond to the economic profile of either the order giver or the beneficial owner;

• electronic fund transfer: a money transfer operation from one account to another via a computer interface.

TITLE II: LICENSING AND PRIOR AUTHORIZATIONS

CHAPTER I: GENERALITIES

Article 3:

Financial Messaging Services are grouped into two (2) categories, namely:

• Category A or national Financial Messaging Services
• Category B or international Financial Messaging Services

Category A or national Financial Messaging Services are those whose fund transfer operations are confined to the national territory.

Category B or international Financial Messaging Services are those that carry out fund transfer operations both on the national territory and with foreign countries. This category also includes international fund transfer labels, which must now be established as Congolese legal entities to operate in the Democratic Republic of the Congo.

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CHAPTER II: CONSTITUTION

Article 4:

Financial Messaging Services must be incorporated as a Limited Liability Company (SARL).

Article 5:

A parent or guardian may not represent more than two minors in the shareholding.

Article 6:

The Financial Messaging Service must make fund transfer its sole activity.

CHAPTER III: LICENSING CONDITIONS

Article 7:

Any Congolese legal entity wishing to carry out fund transfer operations as a Financial Messaging Service, under one of the categories set out in Article 3 of this Instruction, must obtain approval from the Central Bank of the Congo.

A change in the category of a Financial Messaging Service is also subject to approval by the Central Bank of the Congo.

Article 8:

Any application for approval shall be addressed to the Governor of the Central Bank of the Congo upon payment of processing fees, representing a percentage of the minimum capital, as fixed in the Tariffs and Conditions of the Central Bank of the Congo.

This application must indicate the requested category, the company name, the registered office address, as well as the applicant's telephone and email coordinates.

The approval application must be supported by a file consisting of the following elements:

• the resolution of the constituent general meeting of the applicant company and those of the extraordinary general meetings of corporate shareholders authorizing them to participate in the capital of the Financial Messaging Service;
• a certified copy of the original notarial articles of association of the applicant company;
• the act of depositing the articles of association with the Commercial Register and Movable Credit Registry of its jurisdiction;
• a certified copy of the Commercial Register and Movable Credit Registry registration number specifying that the applicant intends to exercise exclusively the fund transfer activity;
• a certified copy of the National Identification Certificate;

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• elements to assess the honorability and competence of the shareholders as well as the persons appointed to administer and manage the company, namely their duly signed curricula vitae, their Criminal Record Extracts dated less than three (3) months old, and the audited financial statements of the last three accounting years for corporate shareholders;
• a business plan for a minimum horizon of three (3) years including operational organization (notably the organizational chart, adequacy of staff, skills, technical and financial resources, and information systems) as well as forecasts supported by projected balance sheets and income statements;
• the articles of association and audited financial statements of the last three (3) years for corporate shareholders;
• proof of the existence of at least two bank accounts (in national currency and foreign currency) opened with financial institutions approved by the Central Bank of the Congo;
• the anti-money laundering and terrorist financing and proliferation framework in compliance with legal and regulatory requirements, including in the organization the position of the person in charge of the fight, notably the reporting of suspicious transactions to CENAREF;
• proof of paid-up social capital by a deposit certificate of the minimum capital in a bank account opened in the name of the applicant company;
• the specimen of the notarized collaboration contract(s), concluded with one or more foreign financial partner(s) approved by their respective financial sector supervisory authorities for Category B Financial Messaging Services;
• proof of payment of processing fees to the Central Bank of the Congo.

Article 9:

The Central Bank of the Congo may, if it deems it useful, summon the applicant's representative(s) for an interview as soon as an approval application is submitted.

Article 10:

Financial Messaging Services must have a minimum capital fully paid up in cash, fixed as follows:

1. the equivalent in Congolese francs of USD 75,000 (Seventy-Five Thousand US Dollars) for Category A;
2. the equivalent in Congolese francs of USD 150,000 (One Hundred Fifty Thousand US Dollars) for Category B;
3. the equivalent in Congolese francs of USD 200,000 (Two Hundred Thousand US Dollars) for Category B Financial Messaging Services that are subsidiaries of international fund transfer companies.

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The Central Bank of the Congo reserves the right to require capital higher than the aforementioned minimums based on the promoters' ambitions expressed through their submitted business plans.

The net assets of Financial Messaging Services must not be lower than the minimum capital.

Net assets are calculated as follows:

a) Included:

• subscribed social capital;
• legal, statutory, discretionary, and other reserves;
• carried forward credit balance;
• positive result of the last closed accounting year certified by statutory auditors pending allocation, net of anticipated dividend distributions;
• positive result of the current accounting year provided that, on the one hand, it is calculated after deducting all charges, amortization provisions, provisions, and value adjustments related to the period as well as anticipated taxes, dividend advances, or dividend forecasts, and on the other hand, it has been certified by statutory auditors.

b) To be deducted:

• the unpaid portion of social capital;
• carried forward debit balance;
• intangible and financial fixed assets, namely participations held in other financial institutions;
• negative result of the last closed accounting year, pending approval and certified by statutory auditors;
• negative result of the current accounting year.

Article 11:

No one may create, administer, direct, or manage, even through an intermediary, a Financial Messaging Service if they:

(i) have been convicted of offenses under laws or regulations relating to Credit Institutions, financial companies, insurance, stock market transactions, retirement system management, or foreign exchange; (ii) have been declared bankrupt and have not been rehabilitated, even when the bankruptcy was opened in a foreign country; (iii) have been convicted in the Democratic Republic of the Congo or abroad as a principal, accomplice, or for attempting any of the following offenses:

• counterfeiting currency;

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• counterfeiting or falsifying banknotes, public securities, shares, bonds, or interest coupons;
• counterfeiting or falsifying seals, stamps, punches, and marks;
• forgery and use of forgery in documents;
• corruption of a public official or extortion;
• theft, extortion, misappropriation or abuse of confidence, fraud, or handling stolen goods;
• simple or fraudulent bankruptcy, fictitious circulation of commercial instruments;
• issuing a check without sufficient funds;
• money laundering and terrorist financing and proliferation.
  (iv) have been convicted of any intentional offense to at least 12 months of principal penal servitude; (v) have participated in the administration, direction, or day-to-day management of a Credit Institution or financial company whose dissolution has been ordered.

When the decision resulting in one of the prohibitions referred to in this article is subsequently revoked or overturned on final appeal, the prohibition ceases by operation of law.

Furthermore, the Central Bank of the Congo reserves the right to reject any approval application if it considers that approval may pose significant risks to the sector based on the information at its disposal.

Article 12:

Approval as a Financial Messaging Service is granted after an on-site inspection by the Central Bank of the Congo to assess the minimum security conditions of the facilities and to ensure the existence of necessary equipment for proper functioning, namely:

• a communication means (telephone, fax, or email);
• a safe;
• a cash register or calculator;
• a banknote counting machine;
• a computer;
• a counterfeit bill detector;
• a photocopier;
• an internet connection.

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Article 13:

When the applicant intends to carry out electronic fund transfers, they must include in their approval application file the technical and functional specifications of their IT solution as well as the measures implemented regarding security, data protection, and the fight against money laundering and terrorist financing and proliferation.

In this case, the applicant must prepare a demonstration of their solution to be presented to the Central Bank of the Congo/Department of Licensing and Regulation during a working session.

Article 14:

Following its favorable opinion, the Central Bank of the Congo invites the applicant to pay the approval fees, representing a percentage of the minimum capital, as fixed in the Tariffs and Conditions of the Central Bank of the Congo.

Article 15:

The Central Bank of the Congo may, depending on the applicant's risk profile, attach additional conditions to its approval decision, notably concerning governance structure or operational organization.

Article 16:

The Central Bank of the Congo rules on the approval application within ninety (90) days from receipt of the complete file.

Article 17:

Approval as a Financial Messaging Service is confirmed by an approval act issued by the Central Bank of the Congo, including the corresponding reference number.

Article 18:

The Central Bank of the Congo assigns an approval number