NOTÍCIAS

Following the government’s authorization to launch an international public tender for the concession of the new Luanda International Airport (Presidential Decree 273/23, of 10 November 2023), the main rules of such concession (the “Concession Rules”) have now been published by way of Presidential Decree 222/23, of 13 November 2023. Below is a summary of the Concession Rules:

• The activities covered by the concession will be specified in the Tender Specifications and in the future Concession Contract and will include inter alia the following:

1. Operation and maintenance of the airport terminal;
2. Operation and maintenance of the runways;
3. Operation, maintenance and expansion of the passenger terminal;
4. Operation, maintenance and expansion of the airport support facilities;
5. Operation and maintenance of the internal roads of the airside, parking and other areas within the concession perimeter;
6. Operation and maintenance of firefighting equipment and services;
7. Operation of the fuel farm, transport and supply of fuel to the aircraft;
8. Assistance to stationed aircraft, including catering, ramp or other services to aircraft between flights (including facilitating such assistance to be provided by third parties);
9. Operation and maintenance of all equipment to be included within the perimeter of the concession.

• The perimeter of the concession will be defined in the Tender Specifications and future Concession Contract.

• The future airport operator (“Concessionaire”) may set up its offices within the airport premises in its discretion. The Concessionaire may use part of the ENNA, EP (Angolan air navigation company) building subject to a specific agreement.

• The “concession establishment” includes all assets and rights related to the concession, including the following:

1. Moveable assets, including equipment and machinery;
2. Real estate assets;
3. Improvements to the above;
4. Contracts related to the concession, including employment contracts.

• The Concessionaire shall make the following payments to the state:

1. Upfront bonus payment;
2. Annual rent in an amount to be set in the Tender Specifications and future Concession Contract.

• The concession term is 25 years, renewable for additional 15 years.

• The Concessionaire shall not be entitled to any compensation for handing over the assets to the state at the end of the concession, except as follows:

The Concessionaire shall be compensated for the net accounting value of
the assets acquired or built within the last 5 years of the concession term
subject to all of the following conditions being met:

1. Concessionaire has fully complied with the Minimum Technical Standards attached to the Concession Contract;
2. The asset is essential to the airport functioning;
3. The asset is allocated to the concession;
4. The state has authorized the respective cost;
5. The cost was incurred in the 5 years prior to the asset being handed over to the state;
6. Termination of the concession was not due to Concessionaire’s fault.

The state may off-set any amounts owed by the Concessionaire against
this compensation, including rentals in arrears, fines or interest penalties
imposed on the Concessionaire, or debts to suppliers, banks, employees,
etc.

• In order to participate in the public tender bidders must purchase the “tender pack” which includes the Tender Program, the Tender Specifications and ancillary documentation. This is subject to payment of a fee to be set by the Ministry of Transports.

• Disputes between the state and the Concessionaire shall be referred to arbitration in the terms of the Tender Specifications and future Concession Contract.

• Angolan law will be the governing law of the Concession Contract.

• The Concession Contract will obey the Public Contract Law and will take the form of a public deed (escritura pública).

• The concession will be subject to:

1. The Concession Rules specifically;
2. The general regime for airport concessions established in Presidential Decree 250/20, of 1 October 2020;
3. The Public Contract Law; and
4. The Concession Contract.

Has been prepared by OneLegal , to which MC&A is a member.

The Terms of Reference for the ongoing bidding round for the onshore Kwanza and Lower Congo blocks contemplates the payment of certain bonuses and contributions under the respective Production Sharing Contract (PSC). These are structured as follows:

• Production Bonus – A production bonus is due annually starting from the second year of production. The amount of the bonus is subject to offer/negotiation and is set in the respective PSC.
• Social Projects Contribution – A contribution for social projects is due annually starting from First Oil. This may also include environmental projects. The amount of the contribution is subject to offer/negotiation and is set in the respective PSC.

Sonangol P&P and private Angolan oil companies are exempt from these payments in accordance with Presidential Legislative Decree 3/12, of 16 March 2012. Only foreign oil companies are liable to these payments.

The bonuses and contributions are not eligible for cost-recovery under the PSC.

The bidder’s offer for bonus/contribution is one of the items to be evaluated in the bidding round with a total weight of 15% (10% for bonus, 5% for social projects contribution). These percentages are applicable to all blocks on offer. The bonus/contribution element is the second most relevant criteria for bid evaluation after the minimum work program offer.

No “signature bonus” or other bonuses are required in this bidding round.

The deadline to submit bids is 15 November 2023.

Has been prepared by OneLegal , to which MC&A is a member.

The activity of freight forwarder and logistics provider (hereinafter “freight forwarder”) is subject to a new legal regime in Angola as enacted by Presidential Legislative Decree 9/23, of 23 October 2023 (PLD 9/23). Below is an outline of the new regime:

1. Classification of Freight Forwarders: There are four types of freight forwarders as follows:

1. Class A – A company that provides the basic service of moving products from one place to another on behalf of a client;
2. Class B – A company that is internationally defined as a Third Party Logistics (3PL) provider;
3. Class C – A company that is internationally defined as a Fourth Party Logistics (4PL) provider;
4. Class D – A company that is internationally defined as a Fifth Party Logistics (3PL) provider.

2. Excluded entities: The following entities are specifically excluded from PLD 9/23:

1. Customs brokers;
2. Shipping agents;
3. Ship owners;
4. Port, airport, railway or road operators

3. License: The freight forwarder activity is subject to licensing to be issued by the regulator “Entidade Reguladora de Certificação de Carga e Logística de Angola” (Angolan Regulator for Cargo and Logistics Certification). License applications must be processed within 15 days. The license is valid for 5 years, renewable for equal periods.4. Special Purpose Entity: Freight forwarder companies must be exclusively dedicated to freight forwarding and ancillary activities.

   5. Minimum Share Capital: Freight forwarder companies must have a minimum share capital equivalent to USD 10.000,00.  In the case of 3PL and 4PL providers the minimum share capital is set at USD 30.000,00.

   6. Reporting obligations: Freight forwarders must submit their financial statements to the regulator on an annual basis. In addition, the appointment of board members must also be informed to the regulator.

   7. Insurance: Freight forwarders must have civil liability insurance as required by law.

   8. Technical Director: The staff must include a “freight forwarder technical director” with a minimum 5 years’ experience approved by the regulator.

   9. Fees: The fees that freight forwarders can charge are regulated as follows;

1. Customs clearance services provided by the freight forwarder – To be agreed between freight forwarder and client;
2. Customs clearance services provided by a third party – Maximum of 1.5% of cargo value;
3. Cargo transportation – Maximum of 3%;
4. Stevedoring services – Maximum of 2%;
5. Storage – Maximum of 2%.

10. Penalties: Penalties/fines of a minimum of Kz.308.000 (roughly USD 370) and a maximum of Kz. 3.000.000 (roughly USD 3.600) can apply in case of breach of PDL 9/23. In case of serious offences, the license may be suspended or cancelled.The following previous laws are specifically repealed:

•  Order (Portaria) 5.560, of 12 June 1946
• Decree 68/89, of 11 December 1989
• Executive Decree 9/90, of 31 March 1990
• Executive Decree 95/09, of 29 September 2009
• Joint Executive Decree 64/10, of 16 June 2010

PDL 9/23 will enter into force on 22 December 2023 (60-day grace period).

Has been prepared by OneLegal , to which MC&A is a member.

A Assembleia da República de Moçambique aprovou, através da Lei nº 13/2023, a nova Lei do Trabalho (abaixo “NLT”).

O regime agora aprovado revoga o anterior, datado de 2007, ao qual introduz importantes alterações.

A NLT entrará em vigor no dia 21 de Fevereiro de 2024.

É importante ter presente que, dado o facto de a NLT só entrar em vigor em 21 de Fevereiro de 2024, todos os factos iniciados (ou constituídos) antes desta data serão regulados pelo anterior regime jurídico (Lei 23/2007).

 O regime não é aplicável a diversos tipos de trabalho, ainda que subordinado (previstos no artigo 3º do diploma), nomeadamente o trabalho doméstico, marítimo, mineiro e petrolífero.

De acordo com o disposto no artigo 21º “ Entende-se por contrato de trabalho o acordo pelo qual uma pessoa, trabalhador, se obriga a prestar a sua actividade a outra pessoa, empregador, sob autoridade e direcção desta, mediante remuneração”.

Abaixo sublinham-se algumas das alterações mais relevantes previstas no novo regime:

– implementação de várias disposições legais que, em geral, reflectem um tratamento mais favorável do trabalhador;

– liberdade atribuída às pequenas e médias empresas para a celebração de contratos a prazo, no sentido de tornar mais viável a sua actividade;

– imposição de um prazo máximo para a duração dos contratos a prazo, sob pena de os mesmos se considerarem convertidos em contratos por tempo indeterminado;

– a inexistência de motivo para a celebração de contrato de trabalho a prazo implica conversão  do mesmo em contrato por período indeterminado;

– direito a férias: 12 dias no primeiro ano do contrato e 30 dias nos anos subsequentes;

– adopção pela NLT, de diversos princípios relativos ao teletrabalho, de acordo, aliás, com a prática já existente aquando do alastramento da pandemia de Covid 19;

– aceitação dos usos e costumes laborais de cada profissão, sector de actividade ou empresa como fontes de direito do trabalho, desde que não forem contrários à lei e ao princípio da boa-fé;

– igual aceitação dos códigos de conduta estabelecidos entre as partes, como fonte do direito de trabalho;

– possibilidade de suspensão da relação laboral por motivos de caso fortuito ou força maior;

– estabelecimento de um regime sancionatório para os casos de assédio no trabalho;

– permissão do regime de horário de trabalho em alternância;

– maior clareza na definição e regulamentação das diversas fases do processo disciplinar.

MC&A is pleased to announce that, together with the Brazilian firm Schmidt Valois Advogados, has joined the OneLegal platform as a member. With this integration, MC&A strengthens its presence in the Community of Portuguese Language Countries (CPLP), including Portugal, Angola, Brasil, Mozambique, Guinea-Bissau, Timor-Leste, Cape Verde and São Tomé e Príncipe.Our participation in OneLegal will considerably enhance the firm’s capabilities to assist clients in international projects involving all Portuguese speaking countries around the world.

OneLegal was launched by the Portuguese-Angolan lawyer Rui Amendoeira, a recognized expert in the oil and gas sectors.

For more information, please visit the link www.onelegal.pt

MC&A has partnered with international law firm Simmons & Simmons in providing content for the Angolan and Mozambican sections of the Clean Energy Tool.  The Clean Energy Tool is designed as a “one -stop-shop”, user-friendly platform for comprehensive information relating to investment and developments in the clean energy sector. It already covers almost 50 jurisdictions, with more being added every month. As climate change disrupts traditional business mindsets across various sectors, the renewable energy market continues to expand rapidly, especially on the African continent, which is richly blessed with a wealth of renewable energy resources.

The Clean Energy Tool provides investors, developers and other market players with detailed legal and regulatory overviews across several areas of particular importance to renewable energy projects. These include  revenue streams, grid connections, land rights and acquisition, finance, tax, structuring and finance, and dispute resolution. An additional feature of the tool is the ability to perform cross-jurisdictional comparisons within each of these areas. To learn more about the tool, or to request a demo/free trial please visit the Clean Energy Tool.

MC&A contributions come from several collaborators spread across Africa.

Clean Energy Tool

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