NEWS

Sumário

O Decreto-Lei n.º 19/2019, aprovado no dia 28 de Janeiro de 2019 e com entrada em vigor a 1 de Fevereiro de 2019, cria as Sociedades de Investimento e Gestão Imobiliária (SIGI), acompanhando a tendência de outros mercados internacionais de referência (através dos Real Estate Investment Trusts).

Desta forma, o Governo português pretende atrair mais investimento estrangeiro no sector imobiliário, dinamizando a economia portuguesa de uma forma geral, e o mercado de arrendamento, em especial.

Este diploma pretende também potenciar a diversificação de fontes de financiamento das empresas, mediante recurso a capitais próprios (ou reinvestimento de lucros) e redução de dependência do financiamento bancário, assim contribuindo para a sanidade do sector financeiro português.

1 – Classificação

As SIGI devem ter sede e direção efetiva em Portugal; devem também preencher cumulativamente, os seguintes requisitos:

a) Adotar o tipo de sociedade anónima, cujo modelo de fiscalização corresponde a um conselho fiscal e um revisor oficial de contas (ou uma sociedade de revisores oficiais de contas);

b) Ter como objeto social principal:

i. A aquisição de direitos de propriedade, de superfície ou outros direitos equivalentes, sobre imóveis, para exploração económica (nomeadamente, para arrendamento);

ii. A aquisição de participações noutras SIGI, ou outras sociedades sediadas na União Europeia (UE) que: (1) tenham objeto social equivalente às SIGI; (2) cujo ativo respeita os limites previstos na legislação portuguesa (conforme referido no ponto 3, abaixo); (3) cujo capital social seja totalmente representado por ações nominativas; (4) cujo regime de distribuição de lucros seja semelhante ao previsto neste diploma;

iii. A aquisição de unidades de participação ou ações de: (1) sociedades com políticas de distribuição de lucros semelhantes à das SIGI; (2) Organismos de Investimento Coletivo ou Fundos de Investimento Imobiliário para arrendamento habitacional;

c) Ter capital social mínimo subscrito e realizado de €5.000.000, representado por ações ordinárias;

d) Cumprir os limites de endividamento (melhor descritos mais abaixo)

e) A sua firma deve incluir a menção “Sociedade de Investimento e Gestão Imobiliária, S.A.” ou “SIGI, S.A.”;

f) As ações são admitidas à negociação em mercado regulamentado ou selecionadas para negociação num sistema de negociação multilateral, a funcionar em Portugal ou noutro Estado membro da UE ou do EEE (no prazo de um ano a contar do respetivo registo comercial)

2 – Constituição

As SIGI podem ser constituídas com ou sem apelo a subscrição pública, aplicando-se, naquele caso, o disposto no Código das Sociedades Comerciais quanto a Sociedades Anónimas.

Não é permitido o diferimento da realização de entradas. Igualmente, não é permitida a criação de categorias de ações, desta forma, aos promotores não é atribuída qualquer vantagem (sendo estas ações imediatamente alienáveis).

As sociedades anónimas podem converter-se em SIGI (devendo para tal, respeitar os requisitos do Decreto-Lei n.º 19/2019 de 28 de Janeiro, acima referidos).

Também os Organismos de Investimento Imobiliário (OII) sob forma societária, constituídos ao abrigo do Regime Geral dos Organismos de Investimento Coletivo (RGOIC), podem converter-se em SIGI (devendo para tal, respeitar os requisitos do Decreto-Lei n.º 19/2019).

3 – Limites de Endividamento:

Uma das maiores diferenças das SIGI relativamente a outros tipos de sociedades é o seu regime de limites ao endividamento. Assim, devem as SIGI respeitar, cumulativamente, os seguintes limites:

i. O valor dos direitos de propriedade, de superfície ou direitos equivalentes sobre imóveis, e participações deve representar pelo menos 80% do valor total do ativo da SIGI;

ii. O valor dos direitos sobre imóveis objeto de arrendamento ou outras formas de exploração económica deve representar pelo menos 75% do valor total do ativo da SIGI.

Cada um dos direitos e das participações (ativos da SIGI), tem de ser detido durante, pelo menos, 3 anos após a sua aquisição.

O valor do endividamento não pode corresponder a mais de 60% do ativo total da SIGI.

4 – Distribuição de Rendimentos

No prazo de 9 meses após o encerramento de cada exercício, as SIGI devem distribuir, sob a forma de dividendos:

a) 90% dos lucros do exercício, que resultem do pagamento de dividendos e rendimentos de ações ou participações (quando as SIGI detêm participações noutras sociedades, como referido em 1.b).ii);

b) 75% dos restantes lucros do exercício, distribuíveis nos termos do Código das Sociedades Comerciais.

Adicionalmente, são também impostas políticas de reinvestimento, determinando a lei que pelo menos 75% do produto líquido da alienação de ativos deva ser reinvestido noutros ativos, no prazo de 3 anos a contar da alienação.

Por fim, a reserva legal das SIGI não pode exceder 20% do capital social.

5 – Regime Sancionatório

No caso de incumprimento das disposições do Decreto-Lei n.º 19/2019, as sociedades perdem a qualidade de SIGI (sendo que, ficam impedidas nos três anos seguintes de adquirir tal qualidade novamente).

No entanto, a perda da qualidade de SIGI não prejudica a manutenção da natureza de sociedade aberta.

6 – Regime Fiscal

As SIGI beneficiam de um regime fiscal neutro, aplicável às sociedades de investimento imobiliário (descrito no artigo 22º do Estatuto dos Benefícios Fiscais).

As SIGI estão sujeitas ao pagamento de IRC, calculado com referência ao lucro tributável, que corresponde ao resultado líquido do exercício (que por sua vez é calculado de acordo com as normas contabilísticas aplicáveis aos Organismos de Investimento Coletivo).

Published in furtherafrica.com

The new Regulation on the Private Investment Law (“Regulation”) was recently enacted by Presidential Decree no. 250/18 and has entered into force on 30 October 2018.

This Regulation establishes the procedure for the realization of the private investment, foreseen under the terms of the Law no. 10/18 of the Private Investment (“LIP”), in force since 26 June 2018.Scope

The provisions set out in the Regulation will cover the entire cycle of the Investment Projects (“Projects”), from (i) the submission of the investment proposal, (ii) its approval, (iii) execution and (iv) cancellation of private investment registration.

The LIP and it´s Regulation do not apply to the investment projects submitted before 30 October 2018.

Approval

The approval of the Projects is the responsibility of the Private Investment and Export Promotion Agency (“AIPEX”), regardless of the proposed investment regime. There are two regimes for the purpose of granting benefits and incentives (i) the Prior Declaration Regime and the (ii) Special regime, the latter applies to investments made in the priority activity sectors, as defined in the Annex II of the Regulation.

Private Investment Procedures

As opposed to the previous legislation, the company through which the investment project is implemented (“Special-Purpose Vehicle”) must be set up beforehand. In this sense, the Regulation provides facilities in the legal registrations related to the incorporation of the company. The investment procedures begin with the submission of the private investment proposal addressed to AIPEX, which must be instructed with the following documentation:

1. Letter requesting the registration of a private investment project and issuance of the Private Investment Registration Certificate (“CRIP”);
2. Investment project declaration form (available on the AIPEX website) that will have to be submitted through the Electronic Private Transaction Processing System (SETIP);
3. Copy of the identity of the tenderer (identity card or passport), if it is an individual or a copy of the tenderer’s legal documentation, namely the Company’s articles of association and the commercial register certificate, if it is a legal person;
4. Documents attesting the financial situation (proof of funds);
5. Training plan;
6. Powers of attorney, in case of representation.

Issuance of the Private Investment Registration Certificate

After submission of all documents, AIPEX notifies the tenderer by means of an official receipt and has five (5) business days to communicate the decision on the registration of the investment; In case of deferment, the CRIP will be issued, which will be the only document proving the status of investor. Under the new Regulation, there is a simplification of the procedures for registration and approval of projects, since CRIP replaces the Private Investment Contract, and the stage of negotiation and conclusion of the contract under the previous regimes is over.

Tax benefits

The tax benefits are granted automatically and are fixed according to the investment regimes (Regime of Prior Declaration or Special Regime). Unlike the previous regime, benefits are now granted accordingly with sectors of activity and location of the investment, instead of the amounts-based criteria. Underthe Special Regime,the company may benefit, for a period not longer than ten (10) years, from a reduction of the tax rate between 20% to 85%, among other benefits and facilities, instead of two (2) years of benefits and a reduction of 20% to 50% as established in the Prior Declaration Regime, depending on the case.

Reinvestments

The projects for reinvestments shall profit from tax benefits if the initial project is duly implemented.

Financial Benefits

Foreign investors cannot access internal credit through Government programmes of support to economy during the implementation of the first project. The ineligibility of access the said credit ceases after the implementation.

Corporate changes and enlargement of the project

The regulation only requires the obligation to communicate within fifteen (15) business days after the respective corporate change. Nevertheless, in case the scope of the project is extended, it is recommended to apply for a prior authorization, since the regulation allows for adjustments regarding the benefits.

This new piece of legislation prioritizes the simplicity and promptness of procedures so that investment developments are achieved with maximum effectiveness, aiming to add value to the national economy.

Published in furtherafrica.com

On June 26, 2018, Law no. 10/18, modifying the legal framework for Private Investment, was published, aiming to increase new investments in the Country, while also reducing bureaucratic obstacles.

In comparison with the previous regime, this new Investment Law (“LIP”) brought several changes to the applicable legal framework. Contrary to the previous regime, LIP introduced a new type of mixed investment operation, combining national investment operations with foreign investment operations.

Local Partners

The mandatory requirement of having an Angolan partner (both in share capital and in management) was eliminated for investment projects in strategic sectors, such as Hotel Business and Tourism, Transports and Logistics, Telecommunications and Information Technology. Sectors that are regulated by special legislation (such as oil and gas) constitute exceptions to this regime.

Tax and Financial Benefits

Similarly with previous regimes, tax and customs benefits are not automatic, being limited in time.
Benefits are, however, of automatic concession, despite varying according to the development zone, in the Special Regime. In the previous regime, granting of benefits was conditioned by the amount of investment made, which is modified by LIP, as the new regime attributes incentives according to the priority sectors and development zones, being superior for the Special Regime in comparison with the Prior Notice Regime.

Nonetheless, both regimes are yet to be regulated, for which reason the possibility of minimum thresholds being introduced in the future.

Investment Projects

The benefits to be granted are now varying according to the regime applicable to the investment project. In contrast to the previous regime, there are two regimes according to LIP: the Prior Notice Regime and the Special Regime.
Investors may freely opt for either regime.

The new Prior Notice Regime is a simplified regime for the approval of investment projects, featuring the simple submission of an investment proposal with the competent body, for concession of benefits and registration.

In this regime, companies shall be already incorporated, with the filling of the Private Investment Certification being exempt in the incorporation act.

Prior Notice Regime allows for the following tax benefits:

• Real Estate Transfer Tax – reduction of the applicable tax rate in 50%, for the acquisition of real estate that will be the office and establishment of the investment;
• Corporate Income Tax – reduction of the provisory tax rate and final tax rate in 20%, for a 2-year period;
• Capital Gains Tax – reduction of the tax rate on distribution of dividends in 25%, for a 2-year period;
• Stamp Duty – reduction of the tax rate in 50%, for a 2-year period.

Special Regime is applicable to private investments made in the priority activity sectors and development zones, being characterized for requiring a negotiation between the investor and the competent body, regarding the specific terms for the investment and benefits to be granted. Regarding the granting of benefits, private investments are subject to registration within the legally competent authority.

The Special Regime entitles greater benefits than the Prior Notice Regime for the same taxes, with the possibility of graduation of tax rates and concession periods, varying according with the activity sector and with the location of the investment.

The maximum periods for the reduction of the tax rates and respective percentages are expressly indicated.

Priority Sectors

For the purpose of attributing benefits, the following sectors are deemed as being priority sectors:

• Education, Professional Training, College Education, Scientific Investigation and Innovation;
• Agriculture, Food and Agribusiness;
• Health;
• Reforestation, Industrial Transformation of Forest Resources and Forestry;
• Textile Industry, Clothing Industry and Shoes Industry;
• Hotels, Tourism and Leisure;
• Construction, Public Construction, Telecommunication and Information Technologies, Airport Infrastructures and Railway Infrastructures;
• Production and Distribution of Energy;
• Basic Sanitation, Waste Collection and Treatment.

Development Zones

According to LIP, the following areas are deemed as development zones, with benefits being granted increasingly:

• Zone A
  Provinces of Luanda, some municipalities of Benguela and Huíla and municipality of Lobito;
• Zone B
  Provinces of Bié, Bengo, Cuanza-Norte, Cuanza-Sul, Huambo, Namibe and other municipalities in the Provices of Benguela and Huíla;
• Zone C
  Provinces of Cuando Cubango, Cunene, Lunda-Norte, Lunda-Sul, Malanje, Moxico, Uíge and Zaire;
• Zone D
  Province of Cabinda.

Other Benefits

According to the Special Regime, the company is exempt from paying fees and duties, namely customs fees and duties, provided that such fees and duties were requested by any government entity that is not a government company, for a period not higher than 5 years.

Transference of Dividends and Profits Overseas

LIP did not modify the previous regime. The investors are entitled to repatriate the following sums: i) dividends; ii) liquidation sum; iii) indemnities; and iv) royalties and other income related to technology loans.

Repatriating of the above-mentioned sums is only subject to: i) implementation of the project; and ii) evidence of the execution of the project, regardless of the amount invested.

Corporate Changes

Conversely to the previous regime, according to which any extension to the object of the investment agreement was dependent of prior approval by the competent authority, LIP establishes that capital raises, extension of the corporate object and transmission of shares are subject to mere communication duty.

In case these changes require importing capital, modifying or extending the object, the prior approval of the Agency of Investment and Promotion of Exports (“AIPEX”) is required.

Competent Authority

The Technical Unit for Support of Private Investment (“UTAIP”) was replaced by the AIPEX, according to the Presidential Decree no. 81/18, of March 19. AIPEX will function as the sole authority for the negotiation, approval and supervising of investment projects.

Temporal Scope

LIP shall not be applicable to investment projects approved prior to the date LIP entered into force (even if such projects were yet to be implemented), unless the investor expressly informs otherwise.

Article by Duarte Amara da Cruz

Published in furtherafrica.com

The amendments implemented by Decree Law nº 1/2018 of 4 May to the Mozambican Commercial Code, aim not only to improve the bureaucratic system, but also to streamline services and make procedures less complex.

We summarize below our analysis to the changes which, in our opinion, are relevant to the general corporate acts of commercial companies (namely the incorporation of companies and the simplification of procedures) and the regime of the private limited companies:

a) It will be henceforth mandatory to incorporate a company by means of a private document, being no longer possible to enter into any contract by a public deed, except in the cases legally established (for instance, in the transfer of immovable assets to a company);

b) The signatures of the parties affixed to any company contract will no longer need to be legalized before the notary, as they may be recognized by resemblance, i.e., the signature is recognized by simple comparison with the signature affixed to the respective identity card or equivalent document, which provides greater flexibility in the registration process of a commercial company;

c) Likewise, the signatures affixed to the minutes of any General Assembly will no longer need to be legalized;

d) Another very relevant change concerns the companies subject to Corporate Income Tax (IRPC) with organized accounting, as the balance sheets and annual accounts must be deposited with the Registry of Legal Entities within 90 days following the General Meeting that approves them. Such documents shall be available to any interested party whenever requested;

e) The Registry of Legal Entities will henceforth make the publication related to the incorporation of any company by means of a simple certificate stating some mandatory data on the company. Any interested party may request a copy of such publication;

f) As to the rights of the shareholders, new provisions have been added, and according to which such rights must be expressly described. Penalties are also provided for the shareholders who misuse them;

g) Regarding the special rights of the shareholders: (i) the right to elect one or more members of the administration, (ii) the right to a preferential percentage of profits or to a different social participation; (iii) the right to reject any social decision; (iv) the right to vote for or against the admission of new members, these rights may only be removed or modified with the consent of the respective holder;

h) As to the right to information available to any shareholder, it will henceforth be possible to limit such right, as any shareholder shall be able to establish a minimum percentage for the exercise of the right to written information on the company management;

i) Concerning the bodies of the company, namely, the board of the general meeting, some dispersed competences are gathered together, such as: (i) calling for loans of capital (ii) the supplementary and ancillary capital contributions (iii) setting of the remuneration of the corporate bodies. A new competence is also added, for the implementation and removal of the special rights of the shareholders;

j) The rules regarding the votes and the majority-voting system in the General Meetings of private limited companies (SQ) and joint-stock companies (SA) are also amended;

k) The duties of the administrators are also changed and, therefore, the exercise of any competition activity by any director is now subject to the prior consent of the shareholders, unless such director already is developing the activity prior to his appointment to the functions.

l) Finally, it is also defined that only the assets of the company (which are not owned by the shareholders) serve to cover the company’s debts towards its creditors.

We hope that the implementation of these measures will in fact contribute to reducing bureaucracy, as well as to making procedures more flexible and simpler, thus helping to boost the Mozambican business field.

Article by Aurea Guinda

Published in furtherafrica.com

Last May the new Angolan Law on Competition (Law no. 5/18, of 10 May) was published. This new Competition Law aims to meet the need for laying down rules and principles regarding the competition of the economic activities carried out on a permanent or occasional basis in Angola, both for public and private companies, as well as for groups of companies, cooperatives and business associations.

The main purpose of this law is to ensure the compliance with the rules of a healthy competition, which shall henceforth be governed by the Angolan Competition Regulatory Authority (“ARC”), a public entity created specifically for this purpose.

Thus, the new Competition Law establishes as anti-competitive practices, any acts, from whatever source, which in any way are intended or otherwise able to produce the following effects:

• Dominant position – the cases in which a company operates on the market without significant competition or abuse of dominant position, the cases in which a company by adopting a specific conduct which result in agreements purely intended to restrain the competition and to compel the suppliers or consumers not to enter into business relations with a competitor, etc.;
• Prohibited collective practices – the practices executed by means of horizontal agreements restricting competition, the coordinated actions and decisions taken by business associations which maybe detrimental to competition, the purchase and sales price fixing, the limit of production control or distribution of goods and services; however vertical agreements are also prohibited whenever they systematically enforce discriminatory price conditions or impose excessive prices or unjustified increases on prices of goods and services, among others; and
• Abuse of economic dependence – whenever the illegal use of market power is exercised by one or several companies over another company or in the cases where the companies are in a state of dependency due to lack of an equivalent alternative for the supply of goods or services.

Notwithstanding, the new Competition Law allows agreements or justified coordinated practices or decisions, providing that they contribute to an improvement in the production and distribution of goods and services, or to the promotion of technical or economic development.

However, such justified situations must always be submitted to ARC’s prior authorization. Exceptionally, there may be concerted acts not requiring ARC’s prior authorization, but only a mere communication to this authority.

It should also be noted that all legal transactions relating to a merger of companies that contravene ARC’s deliberations will be considered void, since said decisions are binding on the sectorial regulatory authorities.

The acts related to the assessment of a merger of companies resulting from prior notification, issuance of copies and certificates and any other acts that constitute a provision of services by ARC will be subject to the payment of fixed fees, to be approved, collected and settled according to a Presidential Order.

With this new legislation, ARC will control the anti-competitive practices where they imply the eventual acquisition of the totality or part of the share capital of a company, as well as the acquisition of rights of ownership, rights of use, if they are of long-term nature (either individual or jointly), and considering the pleas of fact and law they will determine a strong influence on the activity of a company.

Any anti-competitive practices are considered as violations subject to criminal liability and administrative legal measures. The new Competition Law punishes such violations by means of payment of heavy fines between 1% to 10% of the previous year’s turnover of the companies involved.

The new Competition Law also foresees the situation where a company/ offender relapses by means of a progressive increase of the fine, which will depend on the number of infringements occurred irrespective of the fines, the companies/ offenders are also subject to ancillary sanctions such as, the sanction being publicized in a widely read newspaper, the demerger of the company or, the transfer of share control, among others.

The application of these sanctions is subject to a procedure (also regulated by the new Competition Law), which contemplates the following stages, from the opening of the investigation process, to the conclusion and deliberation, and finally to the final investigation and decision. During the investigation of the proceedings, provisory measures may also be taken to suspend the referred practices, should they be considered to cause imminent and serious or, irreparable damage to competition.

In conclusion, it is expected that this new Competition Law will be a very important law for the Angolan economy, in order to facilitate and improve the efficiency and dynamism of the national companies.

Article by Candice Saraiva

Published in furtherafrica.com

Article 132 of the Constitution of the Republic enshrines the Bank of Mozambique (hereinafter referred to “BM”), as the Central Bank of the Republic of Mozambique. This institution is governed by its own law and enjoys regulatory power in the exercise of its supervisory functions, pursuant to Article 143 (5) of the Constitution.

Law No. 1/92, of January 3, establishes, in its Article 28, the nature, the objectives and the functions of BM and determines that this institution is the Exchange Authority of the Republic of Mozambique. In this context, Law 11/2009, of March 11 (Foreign Exchange Law) empowered BM to regulate the provisions set out therein, except for any specific issues where the regulatory power shall be exercised by the Council of Ministers, in accordance with the powers expressly assigned thereto. Within this framework, Decree No. 83/2010, of December 31, approved the Foreign Exchange Control Regulation.

The Foreign Exchange Control Regulation (Decree no. 83/2010, of December 31), approved by the Government of Mozambique, entered into force on July 11, 2011 laying down the rules and procedures to be followed in the execution of deeds, businesses, transactions and foreign exchange operations under the Foreign Exchange Law (Law no. 11/2009, of March 11), aiming to regulate the market and increase BM’s ability to collect foreign currency.

This regulation established, inter alia, the following exchange policy measures: (i) companies with export revenues should hold bank accounts denominated in foreign currency, either in commercial banks located in Mozambique or abroad; (ii) companies should convert into meticais 50% of their foreign currency revenues; and (iii) such conversion should be carried out no later than 90 days after the export revenue has been collected.

Furthermore, the scope of this regulation has been extended to meet BM’s regulatory practices, which, regardless of whether the solutions adopted are the fairest ones, reinforces the legal security of the respective recipients.

The review of the Foreign Exchange Regulation occurs nearly six years after it entered into force, aiming at enabling BM to effectively perform its functions as a foreign exchange authority, under the terms of the Constitution and of Law nº 1/92, of January 3.

Within this scope, the Government approved Decree No. 49/2017, of September 11, which reviews the Regulation of Law No. 11/2009, of March 11 (Foreign Exchange Law), therefore repealing Decree No. 83/2010, of December 31, and published Notice no. 20/GBM /2017, with the purpose to establish the rules and procedures regarding the foreign exchange transactions.

By virtue of the powers conferred on it, BM shall approve any subsequent regulatory rules, and shall set forth the procedures, forms, deadlines and other terms and conditions regarding foreign exchange transactions. Specifically, BM shall regulate the following issues:

• The terms and conditions for granting prior authorization for the execution of foreign exchange transactions;
• The terms and conditions for the execution of foreign exchange trading activity;
• The limits related to the declaration for the import/export of foreign currency and other means of payment abroad;
• The terms and conditions for the remittance of export earnings of goods and services and investment revenue generated or held abroad.

As an Exchange Authority, BM shall also approve any other rules and procedures for the implementation of the Foreign Exchange Law.

It is our opinion that this new regulation does not entail significant changes in relation to the subject matters dealt with in the previous regulation, considering that most of the powers that were legally assigned to the Government, and are now conferred on BM have, in practice, been exercised by this Bank.

From our analysis to Notice no. 20/GBM/2017, we have noted that some of the amendments introduced may affect, albeit to a lesser extent, the issues referred to in the above paragraphs.

By way of example, the mandatory registration to which all exchange transactions are subject will henceforth be carried out by credit institutions and financial corporations, unless provided otherwise. Given that this register was drawn up by the Bank under the Regulation already repealed, it is clear that BM intends to decentralize some of its competences.

Notwithstanding, the competent entities will be obliged to deliver the entire registration process to BM, within a specific time frame of between 5 to 90 days, according to the exchange operation requirements.

Moreover, the registration procedure, formerly made available, either manually or electronically, is now exclusively authorized by electronic means and in real time.

In addition, the resident entities are obliged to declare to the Exchange Authority their values ​​and rights generated, earned or held abroad and such declaration shall be updated every year or, in case a significant change occurs, within 90 days following such change.

With regard the repatriation of revenues resulting from the export of goods and services and foreign investment income, BM sets forth the possibility for resident entities to hold the funds in foreign currency, whilst the former regime stipulated that such funds, should be held in national currency.

The decentralization of the registration of foreign exchange operations implied the adoption of general and specific obligations by the authorized entities, such as the duty to check the identity and legitimacy of the operators involved, as well as the economic grounds for carrying out the transaction and its nature, and for this purpose any documents deemed convenient shall be required.

Another new aspect of this Regulation is the introduction of the “Term of Commitment”, which is a declaration issued by the intermediary bank certifying that the importer or exporter is a client of the bank and is brokering the transaction. In this document, to be sent to the competent customs authority, the importer or exporter shall also undertake the irrevocable commitment of delivering all the relevant documents or the export earnings, within the deadlines established for that purpose.

In addition to the list of the new changes, the values allowed for some operations have increased considerably, namely in what concerns the direct advance payment, where the fee to be paid for a request of performance guarantee has increased from 50.000 USD to 250.000 USD. This increase is not extended, however, to the import and export of physical currency, which is kept in the maximum amount of USD 5,000.

In the event of a significant change, in respect of capital transactions authorized by either BM or an intermediary bank, this fact shall be reported to BM for valuation and authorization.

The capital transactions concerning to foreign direct investment, real estate investment, operations on equity certificates of collective investment bodies, and portfolio investment operations, relating to securities and other instruments traded in the capital and money market are authorized for transactions carried out by residents, who may undertake investments abroad in the amount of USD 250,000 per year, provided that the legal requirements are complied with.

On the other hand, the registration of foreign direct investment is no longer subject to the prior authorization of BM, being only dependent upon the registration with the intermediary bank. Nevertheless, the registration must be filed with BM whenever the investment is made through the importation of equipment, machinery or other material assets, or when it is carried out under the right of use patented technologies and trademarks.

In relation to the financial credits, the Regulation will be henceforth allowing contracting amounts up to USD 5,000,000, provided that the established interest rates are respected, and the credit has a maturity of 3 years or more.

Concerning the transfers for insurance contracting, the transfer of insurance premiums is authorized regardless the duration of the underlying contract.

With regards to the import or export of foreign banknotes and metallic coins, the registration with the exchange authority becomes compulsory.

One of the most significant developments of the new regulation is the introduction of special foreign exchange regimes, which regulate the foreign exchange operations related to the oil, gas and mining activities taking place in the national territory.

This chapter sets forth the obligation to the intermediation of banks entitled to operate in Mozambique for the execution of special exchange operations linked to the participants to whom these provisions shall apply. These provisions lay down the terms under which concessionaires may dispose of the funds that will be deposited in their bank accounts, either in MZN or currency.

Finally, it is important to refer that BM will now guarantee the operation of its powers through means of notices, i.e., deeds issued by the Governor of BM in the exercise of its powers.

In conclusion, the need to review foreign exchange regulations and instruments was mainly due to the increase occurred in the financial flows between Mozambique and the foreigner countries. However, although BM’s role as an exchange control authority has indeed been strengthened, in particular, by the attribution of its own regulatory power, in fact, there has been no substantial change in the regime in force.

Article by Luis Leão Neves