REGULATION OF JANUARY 20 TH, 2008 RELATING TO THE SYSTEM OF PREVENTION AND FIGHT AGAINST THE ISSUING OF DUD CHEQUES

Transcription

1 REGULATIONS 2008

2 REGULATION OF JANUARY 20 TH, 2008 RELATING TO THE SYSTEM OF PREVENTION AND FIGHT AGAINST THE ISSUING OF DUD CHEQUES The Governor of the Bank of Algeria, Whereas Order of September 1975 as amended and completed relating to the Commercial Code, namely its articles 526 bis through 526 bis 16; Whereas Order of Joumada 27 th Ethania, 1424 corresponding to August 26 th, 2003 relating to Money and Credit, namely its article 98; Whereas the Presidential Decree of Rabie 10 th, El Aouel, 1422 corresponding to June 2 nd, 2001 relating to the appointment of the Governor and Vice-Governors of the Bank of Algeria; Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 02 nd, 2001, relating to the appointment of the members of the Board of Directors of the Bank of Algeria; Whereas the Presidential Decree of Rabie 10 th, El Aouel, 1422 corresponding to June 02 nd, 2001 relating to the appointment of the members of the Council of Money and Credit of the Bank of Algeria; Whereas the Presidential Decree of Chaâbane 26 th, 1423, corresponding to November 2 nd, 2003 relating to the appointment of one member of the Board of Directors of the Bank of Algeria; Whereas the Presidential Decree of Joumada El Aouel 05 th, 1427 corresponding to June 1rst, 2006 relating to the appointment of the Vice-Governor of the Bank of Algeria, Whereas Regulation of March 22 nd, 1992 relating to the organization and operation of the Overdue Payments Department; Further to the Resolution of the Council of Money and Credit, of March 07 th, 2007 and January 20 th, 2008, Promulgates the Regulation the content of which follows:

3 Article 1: The purpose of this Regulation is the setting up of a system of prevention and fight against the issuing of dud cheques in which participate banks, the Public Treasury and financial services of Algérie Poste. Article 2: The system mentioned above shall be based on an information centralization system relating to faulty payment of cheques for failure or insufficient provision and their diffusion at banks, Public Treasury and Algérie Poste financial services for consulting and exploitation, namely, during the delivery of the first of the first cheque book to their client. Article 3: In accordance with article 526 bis of the Commercial Code, banks, the Public Treasury and Algérie Poste financial services shall, prior to the delivery of the first cheque book to the client, consult the records of the Overdue Payments Department of the Bank of Algeria. Article 4: As soon as a faulty payment due to a lack or insufficient provision is recorded, the drawee shall be compelled to notify such in accordance with the provisions of the Commercial Code - to the Overdue Payments Department of the Bank of Algeria, within the four (04) working days following the date of submission of the cheque. Within this framework, he shall also be compelled to establish, to submit or have a non payment certificate submitted to the beneficiary. Article 5: As soon as the first faulty payment is recorded, for a lack or insufficient provision, duly established, the drawee shall send to the cheque issuer, within the deadline provided for by the law in force, an injunction letter according to the model given in the schedule attached to this regulation (schedule 01). Article 6: The injunction letter sent to the account holder shall indicate that the faulty payment declaration has been made to the Overdue Payments Department and that failing any regularization within the 10 day deadline prescribed by law, the following measures shall be taken: The account holder shall be forbidden to issue cheques during a (05) year period, at all declaring institutions and thus, as from the injunction date Cheques formulas in his possession and in that of his representatives which have not yet been issued shall be returned.

4 Article 7: Within the (20) days following the expiry of the ten day deadline injunction, mentioned in article 6 above, the issuer of the non paid cheque may proceed with the regularization of the faulty payment by the constitution of a sufficient and available provision with settlement of the discharging penalty provided for by the Commercial Code in favour of the Treasury. Article 8: Failing any regularization of the faulty payment, under the terms and conditions provided for in article 526 bis 3 of the commercial code, the drawee shall: not allow the account holder to issue cheques for a period of five (05) years as from the date of the injunction. The interdiction shall apply in accordance with article 526 bis 10 of the Commercial Code, as well as to the representatives, as far as the holder s accounts are concerned. Send to the account holder an injunction for regularization of the faulty payment by constituting a sufficient and available provision with settlement of a discharging penalty provided for by the Commercial Code in favour of the Treasury. Failing this, the person who has been forbidden to use a cheque book shall be authorized to issue cheques only after the expiry of the interdiction deadline. Article 9: The injunction letter provided for in article 8 above, shall state precisely the amount and payment deadline of the discharging penalty. The model of the injunction letter shall be attached to this regulation (schedule 02). Article 10: Failing any regularization of the faulty payment within the cumulated deadlines provided for by the Commercial Code, legal proceedings shall be undertaken in accordance with the provisions of the commercial code. Article 11: The drawee shall be compelled, in accordance with article 526 bis 7 of the Commercial Code, to immediately declare to the overdue payments any measure forbidding the issuing of cheques taken against one of his clients. The Bank of Algeria shall communicate on a regular basis to the Public Treasury and Algérie Poste services, the updated list of the persons not authorized to issue cheques.

5 Article 12: As soon as the list of the persons not authorized to use cheque pursuant to articles 526 bis 8 and is communicated to the Bank of Algeria, Banks, the Public Treasury and Algérie Poste financial services shall: Avoid delivering a cheque book to any client whose name is indicated in such list Require the client concerned to return the formulas of cheques that have not yet been issued Article 13: Pursuant to article 526 bis 15 of the Commercial Code, The drawee shall jointly be compelled to pay the civil indemnifications granted to the bearer for non payment if the latter does not justify that the account opening and delivery of cheques have been carried out according to the legal and regulatory procedures governing the payment incidents. Article 14: infringements to the provisions of this Regulation and to those of the subsequent articles shall be declared to the Bank commission. Article 15: The terms of application of this Regulation shall be stated precisely by an instruction from the Bank of Algeria. Article 16: Any otherwise provision to this Regulation shall be repealed. Article 17: This Regulation shall be published in the Journal Officiel of Peoples Democratic Republic of Algeria. The Governor Mohammed Laksaci

6 SCHEDULE 01 Institution.. Agency of. Name, first name, or Company s style Or commercial registered name Address Subject: Injunction regularization Attention : Mrs. Miss. Mr. We regret to inform you that the cheque No Of an amount of issued on and submitted for payment on Has been rejected for lack or ( insufficient ) provision. In accordance with the regulation in force, we hereby have delivered to the beneficiary a non payment certificate No equivalent to the loan deed pursuant to the provisions of Article 531 of the Commercial Code. Consequently, we hereby request you correct the faulty payment mentioned above within a ten (10) day deadline as from the transmittal date of this letter, and maintain your account in credit with sufficient and available provisions so that we may proceed with the payment of the cheque within the above mentioned deadline and therefore avoid he bank interdiction that you might be liable for. In case of non regularization within the prescribed deadline, you will not be authorized to issue cheques for a period of (05) five years, as from the transmittal date of the injunction letter, in accordance with the legal provisions.

7 1. You shall not be authorized to issue cheques other than debit cheques (counter cheques) at the drawee or certified cheques on your account 2) you shall be compelled to return all the cheque formulas in your possession and in that of your representatives 3) In order to be able to issue cheques again, you shall be obliged to Pay the payment of the discharging penalty in favour of the Treasury together with the payment of the unpaid cheque. In the future, you are requested to ensure the availability of a sufficient provision before any cheque issuing. Done in.., on

8 SCHEDULE 02 Institution.. Agency of. Name, first name, or Company s style Or commercial registered name Address Subject: Injunction regularization Further to a second faulty payment Attention : Mrs. Miss. Mr. We regret to inform you that the cheque No Of an amount of issued on and submitted for payment on Has been rejected for lack or ( insufficient ) provision. In accordance with the regulation in force, we hereby have delivered to the beneficiary a non payment certificate No equivalent to the loan deed pursuant to the provisions of Article 531 of the Commercial Code. We hereby wish to remind you that this faulty payment has occurred less than one month further to the first faulty payment subject of our registered letter with acknowledgement of receipt dated:.. Consequently, this is to in form you that you are not authorized to issue cheques for a period of FIVE YEARS (05) as from pursuant to the legal and regulatory provisions. To this end,

9 1 You shall not be authorized to issue cheques other than debit cheques (counter cheques) at the drawee or certified cheques on your account 4) you shall be compelled to return all the cheque formulas in your possession and in that of your representatives However, in order to be authorized to issue cheques again, you shall be submitted to the payment in favour of the Treasury of the discharging penalty of an amount equal to In the future, you are requested to ensure the availability of a sufficient provision before any cheque issuing. Done in Algiers on

10 REGULATION RELATING TO THE MINIMUM CAPITAL OF SAVING AND CREDIT FUNDS The Governor of the Bank of Algeria, Whereas Order of Joumada Ethania 27 th, 1424 corresponding to August 26 th, 2003 relating to Money and Credit Whereas Law of Safar 09 th, 1428 corresponding to February 27 th, 2007 relating to saving and credit cooperatives, namely its article 11; Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 02 nd, 2001 relating to the appointment of the Governor and Vice-Governors of the Bank of Algeria; Whereas the Presidential Decree of Dhu El Quida 24 th, 1424 corresponding to June 02 nd, 2001 relating to the appointment of the members of the Council of Money and Credit; Whereas the Presidential Decree of Djoumada El Aouel 1427 corresponding to June 1rst, 2006 relating to the appointment of the Vice-Governor of the Bank of Algeria; Further to the Resolution of the Council of Money and Credit, of July 21rst, 2008; Promulgates the Regulation the content of which follows: Article 1: the purpose of this Regulation is to set the minimum capital that should be released by saving and credit funds at their incorporation. Article 2: Saving and credit funds shall make available, at their incorporation, a capital in cash totally released equalling at least five hundred million Algerian Dinars ( ). Article 3: This Regulation shall be published in the Journal Officiel of the Peoples Democratic Republic of Algeria. The Governor Mohammed Laksaci

11 REGULATION SETTING THE TERMS AND CONDITIONS FOR AUTHORIZING AND APROVING THE INCORPORATION OF CREDIT AND SAVING COOPERATIVES The Governor of the Bank of Algeria, Whereas Order of Joumada Ethania 1424 corresponding to August 26 th, 2003 relating to Money and Credit, namely its articles 82 through 95 Whereas Law of Safar 09 th, 1428 corresponding to February 27 th, 2007, relating to saving and credit cooperatives, namely its articles 7 and 9, Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 02 nd, 2001 relating to the appointment of the Governor and Vice- Governor of the Bank of Algeria, Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 02 nd, 2001 relating to the appointment of the members of the Board of Directors Whereas the Presidential Decree of Dhu El Quida 24 th, 1424 corresponding to January 14 th, 2004 relating to the appointment of the members of the Council of Money and Credit, Whereas the Presidential Decree of Djoumada El Aouel 05 th, 1427 corresponding to June 1 st, 2006 relating to the appointment of a Vice Governor of the Bank of Algeria, Whereas Regulation of July 21 st, 2008 relating to the minimum capital of saving and credit cooperatives, Further to the Resolution of the Council of Money and Credit, Promulgates the Regulation the content of which follows: Article 1: the purpose of this regulation is to set up the terms and conditions relating to: The authorization for saving and credit cooperatives incorporation The approval of said saving and credit cooperatives

12 Article 2: Saving and credit cooperatives, subject of this regulation are incorporated cooperatives aiming at the grouping of wage earners under the same legal entity, the same group, the same institution or the same community whose members share the same interest and with whom a reference contract shall be concluded, in accordance with the provisions of article 4 below. Article 3: Application for the authorization to proceed with the incorporation of a credit and saving cooperative shall be sent to the President of the Council of Money and Credit in accordance with the legal provisions. It shall be supported by a file the constituting elements of which shall be defined by an instruction from the Bank of Algeria. Article 4: The authorization application file mentioned in article 3 above and submitted by the applicants shall namely contain al the elements and data relating to: The activity program scheduled over a highlighting the financial and operation terms five year business plan The network development strategy and means provided for to this end Financial means, to their origin and technical means to be implemented The identity of the members founding the saving and credit cooperatives. Credit standing of the entity or legal entities partners of the saving and credit cooperative and to the extent of their technical and financial commitment(s) materialized by a contract which shall namely define the level and terms of their financial support. Said support may take the form of a subordinated non bearing interest loan and/or a capital contribution which shall not exceed 70% of the saving and credit cooperative capital. The qualities required and to the members acceptance procedure Obligations relevant to the member status including the terms of use of the saving and credit services The terms of withdrawal and exclusion of any member, and should such be the case, to the terms of evaluation and alienation of the member s participation in the cooperative

13 The list of the main managers in the sense of article 59 of Law N of Safar 09 th, 1428, corresponding to February 27 th, 2007 relating to the saving and credit cooperatives constituting the team in charge of the setting up of the project. Such list shall include information regarding their experience and know-how in banking and financial fields and their commitment to manage the cooperative according to the mutual assistance and good management principles in general, as defined by the law relating to the saving and credit cooperatives and articles considered for its implementation. The projects relating to the saving and credit articles The internal organization that is to say, to the organization chart, indicating the manpower provided for as well as the competency fields devoted to each grade and to the internal control system The observance of good governance rules Article 5: The business plan shall indicate, namely, the resources origin and cost, the credit allocation terms and the provisions aiming at guaranteeing the financial balance, liquidity and solvency of the cooperative The business plan shall also indicate: Advantages in nature, (offices, material, free or on credit availability of wage earners) Free availability of resources, namely, under the form of capital grants, loan with an interest below the market normal terms. Commercial and payment agreements by the company for the supply of financial services Article 6: A project for the incorporation of a saving and credit cooperative shall not be subject to any advertisement liable to let believe that such has obtained the authorization for incorporation and/or approval or entailing the use of such expressions. Any information published before obtaining the approval shall specifically mention that it is a project under approval

14 Article 7: Application for the authorization to incorporate saving and credit cooperatives shall be submitted to the Council of Money and Credit for examination, after submission of all the information constituting the file mentioned in articles 3 and 4 above, as well as any other additional piece of information requested by the structures of the Bank of Algeria for the purpose of file assessment. The Council of Money and Credit shall give a ruling on the application for the incorporation of a saving and credit cooperative within a maximum deadline of five months as from the date of reception of the regulatory file mentioned in paragraph one above. Article 8: The Authorization granted for the incorporation of saving and credit cooperatives shall get in force as from the date of its notification. Article 9: Rejection of the authorization for the incorporation of a saving and credit company may entail a resort in accordance with the article 10 of Law mentioned above, under the terms and conditions stated in article 87 of Order relating to money and credit. Article 10: the saving and credit cooperative which has obtained the authorization mentioned in article 7 above shall be have to request from the Governor the approval mentioned in article 9 of Law of Safar 1428 corresponding to February 27 th, 2007 relating to credit and saving cooperatives and article 92 of Order mentioned above. Application for approval, supported by documents and information legally and regularly required, namely, the list of the managers and documents stating that any possible special conditions, relevant to the such authorization, shall be sent to the Governor of the Bank of Algeria, within (12) twelve months at the latest, as from the date of notification of the authorization mentioned above. The nature of the documents and content of the information mentioned in the paragraph above shall be determined by an instruction from the Bank of Algeria. Before obtaining the agreement mentioned in paragraph 1 above, the saving and credit cooperative shall not be authorized to proceed with any banking transaction. Article 11: The authorization shall be granted by a decision from the Governor of the Bank of Algeria as far as the applicant has met all the conditions for incorporation as determined by the law and regulations in force, as well as any possible specific conditions relevant to said authorization.

15 The approval shall be limited to the carrying out of the banking transactions mentioned in article 5 of Law of Safar 9 th 1428 corresponding to February 27 th, 2007 in accordance with the authorization of the Council of Money and Credit Article 12: Any modification of the articles, namely those relating to the purpose, or affecting the operation of the cooperative, especially in relation to the terms and conditions of credit allocation or reference contract binding the company, intervening before or after obtaining the approval shall be submitted to the Council of Money and Credit and shall obey to the same terms and conditions as those which have been defined in articles 3 and 4 above. Article 13: Modifications other than those provided for in article 12 above shall be subject to a prior authorization from the Governor of the Bank of Algeria. Article 14: The list, the Curriculum Vitae and administrative file of the members of the Board of Directors of saving and credit cooperatives shall be sent to the Governor of the Bank of Algeria in order to be approved. Article 15: The capacity of member of the Board of Directors shall be approved by the Governor of the Bank of Algeria when delivering the authorization. Should such list be amended before obtaining the approval decision, the saving and credit cooperative shall, pursuant to article 94 of Order N mentioned above, require the prior approval of the Governor of the Bank of Algeria. Should such list be amended before the approval has been obtained, the saving and credit cooperative, shall, pursuant to article 94 of Order N mentioned above, require the prior approval of the Governor of the Bank of Algeria. During social life, any amendment of the Board of Directors, further to a decision from the General Assembly shall be subject to the approval of the Governor of the Bank of Algeria, pursuant to article 59, paragraph 1 of Law mentioned above failing this, the appointment shall be considered as null. Article 15: The procedure provided for in paragraph 1 of article 14 above, shall apply to the General Managers and Deputy General Managers non members of the Board of Directors

16 Article 16: This Regulation shall be published in the Journal Officiel of the People s Democratic Republic of Algeria. The Governor Mohammed Laksaci

17 REGULATION OF DECEMBER 23 RD, 2008 RELATING TO THE MIINIMUM CAPITAL OF BANKS AND FINANCIAL INSTITUTIONS OPERATING IN ALGERIA The Governor of the Bank of Algeria, Whereas the Order of Joumada Ethania 27 th, 1424 corresponding to August 26 th, 2003, relating to Money and Credit, namely to its articles 62, 63, 64, 65 and 88 Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 02 nd, 2001 relating to the appointment of the Governor and Vice-Governors of the Bank of Algeria, Whereas the Presidential Decree of Rabie El Aouel 10 th, 1422 corresponding to June 2 nd, 2001 relating to the appointment of the members of the Board of Directors of the Bank of Algeria, Whereas the Presidential Decree of Djoumada El Aouel 1427 corresponding to June 1rst, 2006 relating to the appointment of a Vice-Governor of the Bank of Algeria, Whereas Regulation of March 4 th, 2004 relating to the minimum capital of Banks and financial institutions operating in Algeria, Whereas the Resolution of the Council of Money and Credit of December 23 rd, 2008, Promulgates the Regulation the content of which follows: Article 1: The object of this regulation is to set up the minimum capital which shall be paid-up by the banks and financial institutions operating In Algeria after their incorporation Article 2: The Banks and Financial institutions which have been incorporated as joint stock companies under the Algerian law shall have a capital totally paid up in cash available at the date of their incorporation, equal at least to: a- ten billions of Dinars ( AD) for banks mentioned in article 70 of Order N of Joumada Ethania 1424 corresponding to August 26 th, 2003 mentioned above.

18 b- Three billion and five hundred millions of Dinars ( AD) for the financial institutions defined in article 71 of Order N 11 of Joumada Ethania 27 th, 1424 corresponding to August 26 th, 2003 mentioned above. Article 3: Banks and financial institutions having their headquarters based abroad, shall place a capital at the disposal of to their branches which have received the approval of the Council of Money and Credit to carry out bank transactions- equal at least to the minimum capital required for the incorporation of banks and financial institutions under the Algerian law and pertaining to the same category for which the creation of the branch has been authorized. Such capital shall be paid up under the same conditions as those provided for in article 2 mentioned above. Article 4: A twelve (12) month time limit, as from the date of promulgation of this regulation shall be given to operational Banks and financial institutions in order to comply with the obligations. After expiry of the time limit provided for in paragraph 1 above, banks and financial institutions which have not met the requirements of this regulation shall have their approval withdrawn under article 95 of Order of Joumada Ethania 27 th, 1424 corresponding to August 26 th, 2003 mentioned above, Article 5: The provisions of Regulation of March 4 th, 2004 relating to the minimum capital of banks and financial institutions operating in Algeria, shall be repealed, Article 6: This regulation shall be published in the Journal Officiel of the People s Democratic Republic of Algeria. The Governor Mohammed LAKSACI