Analysis of the legal decree ARCA n ° 16/001, DRC.

Decree 16/001 of 26 January 2016 establishing, organizing and operating the Insurance Regulatory and Inspection Authority (ARCA) is a follow-up to article 385 and 396 of Act No. 15/005 of 17 March 2015 issuing the Insurance Code.

The adoption of this decree marks a new stage in the process of liberalization of the insurance sector in the DRC.

These articles provide that the regulation and supervision of insurance should be carried out by a public institution of a technical nature whose establishment, organization and functioning will be determined by decree of the Prime Minister deliberated in the Council of Ministers on the proposal of the Minister having The insurance sector in its attributions and determine the tasks of that institution.

Adopted belatedly after the publication of the law in the Official Gazette and almost one month before the entry into force of the said law, this decree will enter into force on 18 March 2016, ie one day after the entry into force of the aforementioned law Which will take place on 17 March 2016.

In accordance with the Insurance Code, this decree should in principle only include the elements indicated in the Code, namely the organization and operation of the ARCA.

ORGANIZATION OF THE ARCA

As a result, chapter II presents the organizational structure of the ARCA, which is made up of a Board of Directors, a General Management and a Colleague of Statutory Auditors.

This Board of Directors, appointed by Order of the President of the Republic on the proposal of the Government deliberated in the Council of Ministers, is composed of a President of the Council, a Director-General of the ARCA, the Government of the Central Bank of Congo or His delegate, a representative of the Ministry having insurance in his attributions, an independent member chosen for his competence in the field of insurance by the Minister having the finances in his attributions. We can note in this last sentence the slip made by the drafters of this decree which presumably wanted to mention “assurances” and not “finances” in his attributions.

It is in particular responsible for defining the general policy of this sector and issuing licenses for insurance and reinsurance undertakings as well as authorizations for insurance intermediaries as provided for in Article 396 of the Code. The general management is in charge of the management and organization of the ARCA. The Board of Auditors is responsible for overseeing the financial transactions of the ARCA.

In addition to the conditions of good repute and integrity, persons eligible to be members of the Council or the General Directorate are expected to have a higher education degree equivalent to a bachelor’s degree in economics, finance, law and statistics. As regards the governance of the insurance sector, the mention of an insurance diploma should have been a prerequisite.

It should also be noted that the absence of the Congolese nationality reference leaves the possibility of having a foreigner among the members of the Council.

This tripartite composition of the ARCA creates a confusion over the designation of the “Regulator”. Indeed, logically the regulator as we understand it should be the head of the ARCA ie the CEO. Nevertheless, with the establishment of a Board of Directors whose Chairman is distinct from the Chief Executive Officer and who has the broadest powers to act, there is doubt that the Regulator will be the Chairman of the Board of Directors and not the Chairman General manager.

Since the Code makes no mention of the composition of the ARCA, this tripartite composition of the ARCA’s structure can not be disputed, although it may confuse the identity of the key players in this sector.

It will therefore be necessary to wait for the appointment of the members of the Board of Directors to know the name of the “Governor” of the insurance sector.

Although not mentioned in the Code, the Auditor’s colleague is part of the Government’s commitment to transparency in good governance, which can not be disputed, especially if the choice of the two (2) Statutory Auditors Is done in complete transparency.

TO THE CONFUSION OF THE DECREE

Chapter III of the Decree refers to the Disciplinary Committee, which, in Article 32 of the Decree, is presented as an advisory committee called the “Disciplinary Committee” with the task of investigating breaches of the provisions of Law No. 15 / 005 of 17 March 2015 relating to the Insurance Code and the related statutory instruments. This is inconsistent with Article 397 of the Code, which refers to the Insurance Advisory Board, which is responsible for examining and issuing opinions on matters before it and on the issue of

situation of the insurance sector and its organization as well as the means likely to improve its services as provided for in Article 398 of the said Code. Is there any confusion in the powers of these two (2) advisory bodies, or is it a mistake in terms of language by presenting the Disciplinary Committee as an advisory committee thus disturbing these two bodies ?

Furthermore, in Article 33 of the Decree, the composition of the Disciplinary Committee, which provides that it should consist of two (2) members of the Council, one (1) senior judge with expertise and / or experience in the fields Economic and Financial Affairs does not mention the quality of the two (2) members of the Board and raises the question of the incompatibility of these two functions, in particular with respect to one of the five-year functions, which is renewable once Board) and the other is 3 years. Therefore, could a member of the Council still be a member of the Disciplinary Committee after his term as a member of the Council?

At this stage in the process of liberalization of the insurance sector and the presence of several insurance companies which have expressed their willingness to set up in the DRC, it would have been desirable in Chapter V dedicated to financial resources of the ARCA to Mention of the amounts of the fees for granting authorization or authorization to insurance companies and insurance intermediaries so that they can assess the costs of setting up in the DRC even if this amount is bound to evolve over time .

In conclusion, although it is a step forward in the process of liberalization of the insurance sector, this decree shows that there are still a number of actions to be carried out before 17 March 2016 (date d The coming into force of the Act) so that this sector can be operational and functioning. Hopefully, the ARCA will not wait until March 18, 2016 to get to work and begin the vast project that awaits.

 

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