Administrative Instruction No. 006 Regulating the Activity of Financial Messengers (Modification No. 1)

ADMINISTRATIVE INSTRUCTION N° 006 ON

REGULATION OF THE ACTIVITY OF FINANCIAL MESSENGERS

(Modification No. 1)

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The Central Bank of the Congo, acting pursuant to the provisions of Laws No. 005/2002 of May 7, 2002, relating to the formation, organization, and functioning of the Central Bank of the Congo, No. 003/2002 of February 2, 2002, relating to the activity and control of Credit Institutions, and Ordinance-Law No. 67/272 of June 23, 1967, as modified and supplemented to date, defining the regulatory power of the Central Bank of the Congo in matters of exchange, hereby adopts the following provisions concerning the activity of Financial Messengers:

CHAPTER 1: GENERAL PROVISIONS

Article 1

Financial Messengers are legal entities under Congolese law, other than Credit Institutions, which habitually perform, as their regular profession, transfer operations in the current state, without physical movement of funds from the principal.

Article 2

There are two categories of Financial Messengers, namely:

• Financial Messengers operating exclusively on national territory (Category A);
• Financial Messengers operating both on national territory and with foreign countries (Category B).

CHAPTER II: APPROVAL

Article 3

Any legal entity under Congolese law wishing to carry out fund transfer operations, according to one of the categories or modalities set out in Article 2 of this Instruction, is required to obtain approval from the Central Bank of the Congo as a Financial Messenger.

Article 4

Paragraph 1: The status of Financial Messenger is granted by the Central Bank of the Congo based on an approval act.

Paragraph 2: The application for approval addressed to the Governor of the Central Bank of the Congo must be accompanied by the following documents:

• a copy of the original notarized statutes;

• the act of depositing the statutes with the registries of the High Court of the jurisdiction where the Financial Messenger's activities are located;

• a certified copy of the New Trade Register specifying that the applicant intends to exercise exclusively the activity of Financial Messenger;

• a certified copy of the National Identification Certificate;

• proof of the existence of accounts in national currency and/or foreign currencies opened with the Congolese banking system;

• a copy of a notarized collaboration contract concluded abroad with a financial partner approved by the financial sector supervisory authority of the country of residence, in the case of a Category B Financial Messenger;

• the curriculum vitae and criminal record extracts dated less than three months for the promoters and the persons in charge of the administration and management of the Financial Messenger.

Paragraph 3: The examination of the approval application is subject to the payment of file fees representing 3% of the security deposit.

Paragraph 4: Any approval application must indicate the company name, the registered office address, as well as the telephone, email, and fax coordinates of the Financial Messenger.

Paragraph 5: The Financial Messenger must make fund transfer its sole activity.

Article 5

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

1. Have been convicted in the Democratic Republic of Congo or abroad as a perpetrator, accomplice, or for attempted commission of any of the following offenses:

• counterfeiting;
• counterfeiting or falsification of banknotes, checks, public instruments, shares, bonds, and interest coupons;
• counterfeiting or falsification of seals, stamps, punches, and marks;
• forgery and use of forgery in documents;
• theft, extortion, misappropriation or abuse of confidence, fraud, or handling stolen goods;
• bankruptcy, fictitious circulation of commercial instruments;
• issuing a check without sufficient funds;
• corruption or extortion;
• money laundering;

2. Have been convicted of an offense under Law No. 003/2002 relating to the activity and control of Credit Institutions or the Exchange Regulation;

3. Have been declared bankrupt, unless rehabilitated in their favor, even if the bankruptcy was opened abroad;

4. Have been convicted of a crime or common law offense and for an offense assimilated by law to any of those listed above;

5. Have participated in the administration, direction, or day-to-day management of a Credit Institution whose forced liquidation has been ordered or whose bankruptcy has been declared, unless explicit authorization is granted by the Central Bank of the Congo.

Article 6

Paragraph 1: Approval as a Financial Messenger is granted after an on-site inspection by the Central Bank of the Congo, to assess the minimum conditions of the premises and to ensure the existence of necessary equipment for its proper functioning, namely:

• a communication means (telephone, voice mail, fax, or electronic messaging);
• a safe;
• a cash register or calculator;
• a computer;
• a banknote detector;
• a banknote counting machine;
• a photocopier.

Paragraph 2: Following a favorable opinion, the Central Bank of the Congo invites the applicant to constitute the security deposit and pay the fees fixed as follows:

• Security Deposit:

  • for Category A: USD 5,000.00;
  • for Category B: USD 10,000.00.

• Approval Fees:

  • 20% of the security deposit.

Except for the security deposit, fees may be paid in national currency.

Paragraph 3: The payment of the security deposit and the fees may be made:

• by bank transfer or wire transfer to the credit of an account at the Central Bank of the Congo;
• by a named check payable to the Central Bank of the Congo;
• in cash at the counters of the Central Bank of the Congo.

Paragraph 4: The security deposit is not remunerated. It is refundable in foreign currency upon cessation of activity, subject to deduction of any sums due to the Public Treasury and the Central Bank of the Congo.

Article 7

Paragraph 1: The Central Bank of the Congo assigns an approval number to each Financial Messenger and periodically publishes in the Official Journal the list of approved Financial Messengers.

Paragraph 2: Financial Messengers are required to commence their activities within a period of six months from the date of approval.

Article 8

The Central Bank has 90 days from receipt of the approval application to examine the file. The absence of a decision at the expiration of this period constitutes authorization.

CHAPTER III: AUTHORIZATIONS

Article 9

Paragraph 1: The following operations are subject to the prior authorization of the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries:

• the absorption, split, or merger of Financial Messengers;
• the change of category and company name;
• the opening of an Extension of a Financial Messenger;
• the closure of the Financial Messenger or an Extension;
• the change of directors or promoters;

Paragraph 2: Any opening of an Extension is subject to the payment of a security deposit representing 50% of the security deposit paid at the time of approval and file fees of approximately 3% of the security deposit.

By Extension, it is meant a branch of the Financial Messenger established in one of the cities of the Democratic Republic of Congo other than that of the registered office. Conversely, by Counter, it is meant an office of a Financial Messenger opened in the city where the registered office or the extension is established. Any opening of a counter is subject to the payment of file fees of 1% of the security deposit, depending on whether it is opened in the city of the Financial Messenger's headquarters or its Extension, in accordance with the provisions of Article 6 of this Instruction.

Paragraph 3: Financial Messengers that do not have an Extension or Counter in a city or locality may sign a collaboration contract with another and inform the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries.

Paragraph 4: Financial Messengers are required to open accounts for their Extensions with Credit Institutions within the jurisdiction of the activities of said Extensions.

Paragraph 5: The approval or extension authorization numbers must be reproduced on each document or correspondence of the Financial Messenger.

Paragraph 6: Any change in telephone coordinates of any operating point and address must be immediately communicated to the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries.

Article 10

Authorization is granted within 90 days from the date mentioned on the receipt notice from the Central Bank. The absence of a decision at the expiration of this period constitutes authorization.

CHAPTER IV: OPERATIONS ON NATIONAL TERRITORY

Article 11

Financial Messengers are authorized to receive and effect, in the current state and without physical movement, funds in national currency and/or foreign currency on behalf of their clients.

CHAPTER V: OPERATIONS WITH FOREIGN COUNTRIES

Article 12

Financial Messengers are authorized to effect unilateral private transfers abroad per person per day for a total amount less than USD 10,000 or the equivalent in another foreign currency.

Article 13

Paragraph 1: Financial Messengers must collect commissions from their external partners on each transfer and repatriate them into their RME accounts.

Repatriation must be done monthly under a service export declaration, within 30 calendar days from the date of validation, which must take place on the 5th working day of each month.

Paragraph 2: Financial Messengers are required to transfer to their external partners the commissions due to them under a service import declaration.

Paragraph 3:

• Financial Messengers are required to calculate, on behalf of the Central Bank of the Congo, a Foreign Exchange Control Levy (RCC) of 2‰ on the commissions collected and paid in the context of operations carried out with the foreign partner.
• The bank of the Financial Messenger is required, by debiting the RME account of the latter, to collect the Foreign Exchange Control Levy on behalf of the Central Bank of the Congo.

Article 14

The commission rate to be collected must appear on the contract or agreement signed with the external partner. Any modification of this rate must be communicated to the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries with a copy to the Direction of Foreign Services.

CHAPTER VI: ADMINISTRATIVE DIRECTIVES

Article 15

Approved Financial Messengers must display to the public, in addition to the approval act and copies of the authorization for the opening of Extensions, all their tariffs and conditions.

Article 16

Financial Messengers have the obligation to:

1) keep proper accounting, i.e., present synthesis statements in accordance with the Congolese General Accounting Plan.

2) establish an organization and internal procedures to ensure compliance with the provisions of Law No. 04/016 of July 19, 2004, on the fight against money laundering and the financing of terrorism, as well as an internal control system to ensure their effective implementation.

3) report to the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries any transaction deemed unusual, atypical, or suspicious in the context of the fight against money laundering and the financing of terrorism;

4) reproduce their approval or extension authorization numbers on all their documents and correspondence;

5) collect and photocopy the identities of their clients, principals, or transfer beneficiaries at their counters;

6) carry out operations based on a transfer slip established in duplicate from a continuous numerical series, the model of which is attached as an annex.

The original is handed to the client and the copy is retained by the Financial Messenger.

7) transmit to the Central Bank of the Congo/Direction of the Supervision of Financial Intermediaries, with copies to the Directions of Credit and Financial Markets and Foreign Services, no later than the 10th day of the following month, the consolidated monthly statement according to the model in the annex, providing information on:

• the volume of operations by currency, by type of operation, and by country or locality of their consolidated statistics;
• details by Extension, origin or destination, as well as commissions to be received and paid;
• information from the slip.

Extensions of Financial Messengers operating in provincial or local communities other than those of the registered office are required to transmit their monthly statements to the provincial entities of the Central Bank of the Congo to which they belong, according to the above-mentioned periodicity.

8) subscribe to an insurance policy taking into account the volume of transactions;

9) Financial Messengers are required to organize themselves into a Professional Corporation.

This Corporation has the following objectives:

• the representation of the collective interests of its members before the public authorities and the Central Bank;
• the information of its members and the public;
• the study of any question of common interest and the elaboration of recommendations relating thereto, with a view, if necessary, to favor cooperation between networks;
• the organization and management of services of common interest.

The draft statutes of this Corporation are submitted for approval to the Central Bank of the Congo.

CHAPTER VII. WITHDRAWAL OF APPROVAL

Article 17

Withdrawal of approval is pronounced by the Central Bank when the Financial Messenger:

• renounces its approval;
• does not commence activities within six months following the grant of approval;
• no longer exercises its activities for more than six months;
• no longer meets the conditions to which the approval is subject;
• obtained approval in violation of the provisions of Article 5 of this Instruction;
• violated the provisions of Articles 5 and 6 of this Instruction.

The Central Bank of the Congo proceeds, at the expense of the Financial Messenger, to the publication in the official journal of the decision to withdraw approval.

Article 18

Withdrawal of approval entails the removal of the Financial Messenger from the list provided for in Article 4 of this Instruction. Removal carries with it the forced dissolution of the Financial Messenger in accordance with the legal provisions on commercial companies.

In the event of withdrawal of approval, the security deposit is returned after deduction of any sums due to the Treasury and the Central Bank of the Congo. In the event of insufficiency of the security deposit, the Financial Messenger is required to pay the amount of the excess fees within 7 days.

CHAPTER VIII: SANCTIONS

Article 19

Paragraph 1: Without prejudice to the provisions of Article 13 of Ordinance-Law No. 67-272 of June 23, 1967, defining the regulatory power of the Central Bank of the Congo in matters of exchange, as modified and supplemented to date, and those of Law No. 003/2002 of February 2, 2002, relating to the activity and control of Credit Institutions, if a Financial Messenger has infringed a provision of this Instruction, the Central Bank may impose one of the following disciplinary sanctions:

• a reprimand;
• a censure;
• suspension of activities;
• withdrawal of approval.

Paragraph 2: In addition, the Central Bank of the Congo may impose, either instead of or in addition to these sanctions, a financial sanction in accordance with the Tariffs and Conditions of the Central Bank of the Congo.

Article 20

A reprimand is pronounced by the Central Bank of the Congo against any Financial Messenger found guilty of minor offenses likely to cause prejudice to its clients or to the Central Bank of the Congo.

Article 21

A censure is pronounced by the Central Bank of the Congo against any Financial Messenger found guilty of repeated minor offenses or in the event of recidivism of an offense that would warrant a second reprimand within a year.

Article 22

Suspension of activities not exceeding a duration of three months is pronounced by the Central Bank of the Congo against any Financial Messenger found guilty of a serious offense or in the event of recidivism of an offense that would warrant a censure within a year.

Article 23

Withdrawal of approval is pronounced by the Central Bank of the Congo by virtue of the administrative and disciplinary powers it exercises over the Financial Messenger in accordance with the provisions of Articles 17 and 19 of this Instruction.

Article 24

Paragraph 1: Any Financial Messenger is required to pay the fines and administrative fees imposed pursuant to legal or regulatory provisions within a period of thirty days from the date of notification of the sanction. After this period, settlement is made by automatic debit of the security deposit.

Paragraph 2: The Financial Messenger has a period of seven days to replenish the security deposit within the limits provided for in Article 6, Paragraph 2 of this Instruction.

Article 25

Within a period of five working days from the date of notification of the sanction, the Financial Messenger having received one of the sanctions provided for in Article 19 of this Instruction may file a reasoned appeal with the Central Bank of the Congo to the extent applicable.

However, the appeal is not suspensive of the sanction.

CHAPTER IX: FINAL PROVISIONS

Article 26

Paragraph 1: Financial Messengers are required to comply with this Instruction.

Paragraph 2: Existing Financial Messengers have a period of 3 months from the date of entry into force of this Instruction to regularize their situation.

Article 27

Any matter relating to the activity of Financial Messengers not provided for by these provisions is to be submitted to the appreciation of the Central Bank of the Congo.

Article 28

This Instruction enters into force on the date of its signature.

Made in Kinshasa, on

J-C. MASANGU MULONGO
Governor