Instruction No. 13 (Modification 5) on Listing to the Index for Credit Institutions

BANQUE CENTRALE DU CONGO

THE GOVERNOR

INSTRUCTION NO. 13 TO CREDIT INSTITUTIONS
RELATING TO LISTING TO THE INDEX
(Modification No. 5)

The Central Bank of the Congo, acting in accordance with the provisions of Law No. 003/2002 of February 2, 2002 relating to the activity and control of Credit Institutions, specifically Article 76, enacts the following provisions:

TITLE I: PROCEDURE FOR LISTING TO THE INDEX

Article 1:

a. The Central Bank of the Congo may, on its own initiative or at the request of a Credit Institution, list any natural or legal person who, after warnings notified to them, maintains unpaid debts or violates the provisions relating to Foreign Exchange Regulation.

b. The accused person is, in all cases, informed of the opening of the listing procedure.

Article 2:

a. All Credit Institutions are required to declare to the Central Bank of the Congo any credit in arrears whose total or partial recovery is improbable or uncertain.

b. Credit Institutions are also required to communicate to the Central Bank of the Congo any violation of Foreign Exchange Regulation by clients.

Article 3:

The declaration provided for in Article 2 above must mention the identifying data as included in the Central Risk Database.

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When the listing procedure is initiated against a person who maintains unpaid debts, the declaration must also mention the following elements:

• The amount, purpose, and form of the credit granted; the date of grant, the part of the credit already repaid, the amount of the credit in arrears, and the initial repayment plan;

• The personal and real guarantees constituted to ensure the repayment of the credit in arrears and the procedures already initiated at the level of the requesting Credit Institution to recover the debt.

When the listing procedure is initiated against a person who violates foreign exchange regulation, the declaration must also mention the following elements:

• The qualification of the facts, accompanied by a succinct statement of the facts;

• The references of the exchange documents by which the facts were recorded as well as other supporting documents.

The Central Bank of the Congo reserves the right to request any other information that may contribute to the objective examination of the request.

Article 4:

Upon receipt of the file provided for in Article 3, the Central Bank of the Congo, after examination, may initiate the listing procedure:

a. The accused person is ordered to honor their commitments and/or regularize their situation with the concerned Credit Institution.

The duration of the order is two months from the notification to the Credit Institutions.

b. After this deadline, the requesting Credit Institution must transmit to the Central Bank of the Congo a written report on the evolution of the client's commitments following the decision to issue the order.

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c. Upon receipt of the report, in case of non-payment, non-conclusion of a repayment plan, or non-regularization of their situation, the Central Bank of the Congo immediately lists the accused person, informs other Credit Institutions, and makes broad publicity in the press.

Article 5:

The requesting Credit Institution is required to notify the concerned client of the listing decision without delay.

TITLE II: EFFECTS OF THE ORDER AND LISTING TO THE INDEX

Article 6:

During the duration of the order, the concerned person is authorized to benefit from banking services and facilities.

Article 7:

a. Listing to the index implies, for the person affected, the suspension or prohibition from benefiting from services and facilities at all credit institutions.

b. Listing to the index of a legal person also implies the listing to the index of its directors and partners, regardless of the legal form of the company.

c. However, during the duration of the listing to the index, the affected person may make payments or transfers related to current international transactions using only the account(s) of their banker(s).

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Article 8:

Any credit institution, other than the requesting one, that receives in its books a credit in favor of a person listed to the index is required to inform the concerned person and the requesting credit institution simultaneously, to allow the latter to negotiate the recovery of its due or the regularization of the file.

Article 9:

The listing to the index measure does not prevent the requesting credit institution from resorting to any other means of recovery, notably the implementation of constituted guarantees or forced recovery by judicial means.

Article 10:

As long as the listing to the index measure is in force, it is prohibited for the affected person to change their corporate name, to proceed with the merger or division of companies.

The directors and partners of the listed company are also prohibited from proceeding with the creation of a new company.

Any violation of this provision may result in the removal of the concerned person from the commercial register at the diligence of the Central Bank.

TITLE III: LIFTING OF THE LISTING TO THE INDEX

Article 11:

The listing to the index measure is lifted automatically by the Central Bank of the Congo or at the request of the requesting credit institution.

The request must be accompanied by proof of the full or partial repayment of the initially declared contentious debt or the regularization of the situation.

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In the event of the conclusion between parties of a repayment plan or a particular arrangement, the execution of the listing to the index is frozen for three months.

The lifting of the listing to the index measure must be subject to publicity in the press.

TITLE IV: PENALTIES, FILE FEES, AND INTERVENTION FEES

Article 12:

Violation of the provisions contained in this instruction will result, depending on the case, for Credit Institutions, in the application of penalties whose rates are to be determined by the Central Bank of the Congo or other sanctions provided for in Article 77 of Law No. 003/2002 of February 2, 2002 relating to the activity and control of Credit Institutions.

Article 13:

As soon as the Central Bank of the Congo initiates the listing to the index procedure, it automatically debits the requesting Credit Institution of file fees, in accordance with the tariffs and conditions of the Central Bank.

Upon the cessation of the listing to the index procedure, the Central Bank of the Congo automatically debits the concerned Credit Institution of intervention fees equivalent to 2% of the amount actually repaid.

Done in Kinshasa, 29 APR 2013

J-C. MASANGU MULONGO
Governor