Regulatory Alerts2017-12-06
Government Decree No. 2017-1332 of December 6, 2017
The Tunisian Prime Minister, on the proposal of the Ministry of Finance, issued Government Decree No. 2017-1332 to establish approval conditions for the creation, management, and early liquidation of sukuk common funds. The decree mandates that the Financial Market Council grant approvals, defines the custodian's organizational and operational independence, and outlines strict custody, reporting, and control obligations for fund managers. It further regulates public offerings by requiring approved prospectuses, specifies early liquidation procedures including asset evaluation and periodic reporting, and assigns execution responsibilities to the Finance Minister and Financial Market Council President.
Page 4214 Official Journal of the Republic of Tunisia — December 12, 2017 No. 99 By order of the Minister of the Interior dated October 25, 2017. Mr. Bilel Kosksi, public services advisor, is appointed to the position of head of the conferences and seminars subdivision at the information and conferences division of the Mahdia governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mrs. Atika Cherif, interior administration advisor, is appointed to the position of head of the social action and solidarity subdivision at the social affairs division of the Mahdia governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mr. Ridha Hamadi, interior administration advisor, is appointed to the position of head of the citizen relations office at the Tozeur governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mrs. Hedia Ibna Cheik, interior administration advisor, is appointed to the position of head of the programs and coordination with structures subdivision at the neighborhood committees division of the Nabeul governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mr. Naceur Saidi, interior administration advisor, is appointed to the position of head of the studies, statistics and monitoring subdivision at the neighborhood committees division of the Gafsa governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mr. Zouhair Abidi, interior administration advisor, is appointed to the position of head of the information subdivision at the information and conferences division of the Kef governorate, with the rank and prerogatives of head of service and benefits granted to the latter. By order of the Minister of the Interior dated October 25, 2017. Mrs. Ikbel Karkeni, public procurement controller, is relieved of the position of head of the studies, statistics and monitoring subdivision at the neighborhood committees division of the Sousse governorate, with the rank and prerogatives of head of service. MINISTRY OF FINANCE Government Decree No. 2017-1332 of December 6, 2017, on fixing the approval conditions for the establishment of sukuk common funds and their early liquidation. The Prime Minister, On the proposal of the Minister of Finance, Having regard to the Constitution, Having regard to Law No. 94-117 of November 14, 1994, on the reorganization of the financial market, as amended and supplemented by subsequent texts, Having regard to Law No. 2013-30 of July 30, 2013, on Islamic sukuk and in particular its Article 14, Having regard to Presidential Decree No. 2016-107 of August 27, 2016, on the appointment of the Prime Minister and his members, Having regard to Presidential Decree No. 2017-124 of September 12, 2017, on the appointment of members of the government, Having regard to the opinion of the administrative court.
No. 99 Official Journal of the Republic of Tunisia — December 12, 2017 Page 4215 Enacts the government decree as follows: Title One The conditions for establishing the sukuk common fund Chapter One Approval procedures Article 1 - The approval for establishing the sukuk common fund requires submitting a request to this effect to the Financial Market Council, accompanied by the necessary documents, sent by registered letter with acknowledgment of receipt or deposited at the registry office of the Financial Market Council against a receipt. The Financial Market Council determines, by regulation, the list of documents to be attached to the approval request. Art. 2 - The Financial Market Council processes the approval request within a maximum period of three months from the date of deposit of the request accompanied by the necessary documents. The Financial Market Council may require any additional information or document for processing the request. In this case, the three-month period is suspended until receipt by the Council of the requested information or document. Art. 3 - Any modification affecting one of the elements of the approval certificate for establishing the sukuk common fund must be promptly brought to the attention of the Financial Market Council. The Financial Market Council determines, by regulation, the cases requiring an update of previously issued approvals. When modifying one of the approval elements requires updating it, the management company of the sukuk common fund must submit an update request to the Financial Market Council in accordance with Article 1 of this government decree. The Financial Market Council processes the approval update request within a maximum period of one month from the date of deposit. Art. 4 - The management company of the sukuk common fund informs unit holders of modifications affecting one of the approval elements through an information notice published in two daily newspapers, one in Arabic, and by publication in the official bulletin of the Financial Market Council. Chapter II The custodian of the sukuk common fund Section 1 - General provisions Art. 5 - The custodian of the sukuk common fund must be a bank within the meaning of Law No. 2016-48 of July 11, 2016, on banks and financial institutions. It must exercise its functions with the diligence of a prudent entrepreneur and a loyal agent, and must respect professional secrecy even after ceasing its functions. Art. 6 - The custodian of the sukuk common fund must provide sufficient guarantees regarding its organization, technical and financial resources, the integrity and experience of its management. It must take measures to ensure operational security and protect the rights of unit holders of the sukuk common fund. Art. 7 - The management of the custodian cannot simultaneously hold positions as managers of the management company of the sukuk common fund for which it acts as custodian. The custodian of the sukuk common fund must be organizationally and structurally independent from the management company of the sukuk common fund. Art. 8 - The conditions for exercising the duties of the custodian of the sukuk common fund are defined by an agreement concluded between it and the management company. This agreement sets out the mutual attributions and responsibilities of the parties. Art. 9 - The custodian of the sukuk common fund must designate a manager responsible for coordinating all assigned missions and ensuring their proper execution. The custodian communicates to the Financial Market Council the name and curriculum vitae of the designated manager. The custodian must prepare a document containing the organization of its assigned functions in terms of resources used and procedures followed, which will be made available to the Financial Market Council.
Page 4216 Official Journal of the Republic of Tunisia — December 12, 2017 No. 99 Section 2 - Duties of the custodian of the sukuk common fund Art. 10 - Upon creation of the sukuk common fund, the custodian is responsible for drafting the fund's internal regulations jointly with the management company and preparing the deposit certificate corresponding to the initial issuance amount. Art. 11 - The asset custody function can only be exercised by a single custodian. The latter must open in the name of the sukuk common fund a cash account and a sukuk account. Art. 12 - The custodian is obligated to retain the assets entrusted to it by the sukuk common fund. It must exercise necessary care in their retention. The custodian must verify the correspondence between retained assets and sukuk registered in unit holders' accounts. Art. 13 - Upon request by the management company of the sukuk common fund, the custodian transfers deposited assets to another custodian after informing the Financial Market Council. Art. 14 - The custodian must inform the management company of the sukuk common fund regarding operations related to retained assets for its account. The custodian processes the operations and registers sukuk and cash in accounts. Art. 15 - The custodian of the sukuk common fund must promptly inform the management company:
- of the execution of all operations concerning assets,
- of events affecting the sukuk common fund's assets as soon as it becomes aware,
- of elements concerning the taxation of retained sukuk. Art. 16 - The custodian of the sukuk common fund must ensure that the management company provides all information enabling it to perform necessary controls. Likewise, it is responsible for knowing and being able to assess the procedures and information systems used by the management company of the sukuk common fund, within the framework of compliance with good conduct and independence rules between parties. The management company of the sukuk common fund must respond to custodian requests regarding the exercise of its control function. Art. 17 - The custodian of the sukuk common fund must periodically review, as often as necessary, the accounting of the sukuk common fund. Art. 18 - The custodian of the sukuk common fund must be able to assess at all times the coherence of information produced by the fund's accounting department. Art. 19 - The custodian of the sukuk common fund must define the nature of its control operations and must perform, at minimum, the following control operations:
- control of the inventory of assets of the sukuk common fund,
- approval of the asset inventory of the sukuk common fund at the end of each financial year,
- review of the organization and accounting procedures of the sukuk common fund. The overall duties are described in an annual control plan that the custodian of the sukuk common fund must establish and keep available to the Financial Market Council. Art. 20 - The custodian of the sukuk common fund must, in case of anomalies or irregularities found during its control exercise, send to the management company of the sukuk common fund:
- a regularization request,
- a formal notice if the regularization request remains unanswered for a period of 10 trading days. In all cases, the custodian of the sukuk common fund must promptly inform the statutory auditor and the Financial Market Council of any anomalies or irregularities found. Art. 21 - The custodian of the sukuk common fund must ensure that liquidation procedures, and in particular the distribution methods of its results, comply with provisions set forth in the internal regulations of the sukuk common fund. Chapter III The public offering of securities Art. 22 - The public offering conducted by the sukuk common fund is subject to notification of approval by the Financial Market Council to the management company and the preparation of a prospectus according to a model fixed by regulation of the Financial Market Council.