Ministry of the JUSTICE Decree No. 2016-570 April 27, 2016 Decree No. 2016-570 of 27 April 2016 on the status of judicial agents taken in application of the Uniform Act organizing collective proceedings for the clearance of the liability report of PRESENTATION the Council of Ministers of OHBLA adopted on 10 September 2015, in Grand Bassam (Republic of Côte d'Ivoire), the new Uniform Act organizing collective proceedings for the clearance of the liabilities.
For a good efficiency of this reform aimed at the recovery of viable businesses and the liquidation of enterprises economically condemned to maximize the recovery of unpaid debts, the legislature of the OHADA held the status of judicial agents including determining the conditions for access to this status and the procedures for the exercise. The Uniform Act refers however to the national law to clarify certain aspects of the new regime.
First, article 4 invites each State party to adopt, in as long as necessary, rules for the application of the new Community system including through the establishment of a national authority responsible for regulation, inter alia, the supervision of judicial agents.
Article 4-1 then provides that, to be representative of a collective procedure of preventive regulation of legal redress or liquidation of assets, must be entered on the national list of legal representatives. According to article 4-2 this listing candidate must fulfil a number of conditions including: "being expert accountant or be empowered by national legislation".
Articles 4-2 in fine and 4-6 add that each State party has the possibility of additional conditions and the obligation to undertake the control of agents in the exercise of their functions.
Finally, articles 4-17 and 4-22 require States parties to establish a scale of remuneration of agents and to appoint banks with whom the trustees have an obligation to establish a special account for the purpose of is to domicile the procedures for recovery and liquidation of assets transactions.
With regard to the authority of regulation and supervision, it is, for this draft decree, set up a National Commission to control the access and the exercise of the activity of judicial agent playing the role of disciplinary body.
Regarding the list of agents, the choice of the OHADA is clear: it must be an expert accountant or be authorised by national law. As a result, more accounting experts on the national agenda of accountants and Chartered Accountants (ONECCA), it appeared appropriate to approve this Statute certain categories of experts who were previously authorized by the courts themselves. It is the experts in commercial, tax, sections maritime-goods of the national ordre des experts et évaluateurs agréés du Sénégal (ONEEAS).
Furthermore, Regulation n ° 5/CM/UEMOA of September 25, 2014, on the harmonisation of the rules governing the profession of lawyer in the UEMOA stipulates in article 3, paragraph 4, that 'lawyers can be amicable or judicial, liquidators administrators interim and trustees'. Counsel thus approved as trustee can seek their inclusion on the list of legal representatives in this capacity.
Nevertheless, to clarify that the turnaround of a company in difficulty presupposes a deep knowledge of the rules of administration, management and direction of these entities. This requires, while studies attested by a diploma and a deep knowledge of the accounting matter, but especially a great experience for a practical long world of the company. Therefore, it became necessary to add other conditions to the rules governing the inclusion on the national list judicial agents provided by the Uniform Act, y related.
The present draft decree sets the rules for access to the exercise of judicial agent activity, composition, to the functioning of the regulatory body and disciplinary measures.
Such is the economy of the draft decree.
The PRESIDENT of the Republic, pursuant to the Constitution including in articles 43 and 76;
Having regard to the Treaty concerning the Organization for harmonization in Africa of of business law (OHADA) signed on 17 October 1993 in Port Louis (Mauritius), as revised in Quebec City on October 17, 2008;
Having regard to the Uniform Act organizing collective proceedings for the clearance of the adopted passive 10 September 2015 at Grand Bassam (Republic of Côte d'Ivoire);
Having regard to Decree No. 2014 - 845 06 July 2014 appointing the Prime Minister;
Mindful of Decree No. 2014-853 09 July 2014 on the distribution of the services of the State and control of public institutions, societies and corporations with public participation between the Presidency of the Republic, the Prime Minister's Office and the ministries, amended by Decree No. 2015-299 06 March 2015.
Considering Decree No. 2014 - 870 22 July 2014 on the powers of the Minister of Justice, keeper of the seals.
Having regard to Decree No. 2015 - 855 of 22 June 2015 on the composition of the Government.
The report of the keeper of the seals, Minister of Justice, DECREED: title I. - General provisions Article 1. -This Decree fixed the national rules applicable to judicial mandates under preventive regulation, receivership and the liquidation of the assets provided by the Uniform Act organizing collective proceedings to discharge of liability.
The purpose is to:-provide the terms and conditions for the approval of judicial agents;
-create the body responsible for the supervision of judicial agents and determine the composition, operation and missions;
-to organize the activity of judicial agents control and disciplinary rules that apply to them.
TITLE II. -SPECIAL chapter i. provisions - Regulatory Section I. - establishment article body 2. - it is created, pursuant to the provisions of articles 4, 4-1, 4-2, 4-6 and 4-22 of the Uniform Act organizing collective proceedings for the clearance of liabilities, a body of regulation of function referred to as judicial representative "National control and discipline of judicial agents Commission".
This Commission is placed under the authority of the Minister responsible for Justice.
It is responsible for the regulation, supervision, control and discipline of judicial agents acting on the territory of Senegal.
Section II. -Composition articles 3. - the National Commission of control and discipline of judicial agents is composed:-the Director of Civil Affairs and the seal of the Ministry of Justice, President;
-from one (01) the Court of appeal of Dakar Advisor appointed by the first President;
-of one (01) representative of the public prosecutor of the Court of appeal of Dakar designated by the Attorney general;
-of one (01) tax inspector designated by the Minister in charge of economy and finance;
-of one (01) Director of company chosen by the National Confederation of employers of Senegal (CNES);
-of one (01) Director of company chosen by the national Council of the patronat (CNP);
-of one (01) Professor of private law selected by the Dean of the Faculty of sciences juridiques Université Cheikh Anta Diop de Dakar (UCAD);
-of a (01) representative of the national order of Chartered Accountants and Chartered Accountants (ONECCA) appointed by the president of the order;
-of a (01) representative of the national order of the experts and evaluators of Senegal (ONEEAS) appointed by the president of the order;
-of a (01) representative of the order of lawyers appointed by the Dean;
-of one (01) representative of judicial agents, exercising usually the activity of preventive regulation expert or trustee designated by its representative bodies or, failing that, by the Minister in charge of Justice.
S. 4 - members of the National Commission of control and discipline of judicial agents, with the exception of the President, are appointed for a term of three (03) years renewable once (01).
They cannot be represented in the exercise of their functions.
They are subject to an obligation of secrecy for all the information which they are aware in the exercise of their functions.
Section III. -Operation s. 5. - the National Commission of control and discipline of judicial agents meets as many times necessary at the call of its Chairman.
The Commission may validly deliberate only if six (06) at least one of the members are present. The Commission's decisions are taken by a majority of the members present. Tie, the vote of the President is dominating.
It establishes an annual report to the Minister in charge of Justice.
Section IV. -Missions art. 6. - the National Commission of control and discipline of judicial agents is to mission:-to receive and adjudicate requests for inscription on the list of professional representatives;
-to stop the list of legal representatives;
-to control the exercise of the tasks of judicial agents;
-to pronounce disciplinary sanctions.
Chapter II. -The judicial representatives Section I. - access to the functions of judicial agents s. 7 - only individuals are designated as legal agents.
Any person applying for inscription on the list of legal representatives must meet the following requirements: 1. have the full exercise of their civil and civic rights;
2. not to have undergone any disciplinary sanction other than warning or a final criminal conviction to imprisonment proprietary of liberty for a crime of common law, or to a sentence of at least three (03) months of imprisonment, not of sentence for an offence against property or offence in economic or financial matters that is incompatible with the exercise of the function of judicial;
3. accounting expert be included in the table of the national order of Chartered Accountants and Chartered Accountants (ONECCA) or expert registered in sections commercial, tax, maritime-goods of the national order of experts and appraisers of Senegal (ONEEAS);
4 justify of a tax domicile and to update their tax obligations at the time of the registration application;
5 present morality guarantees deemed sufficient by the authority or the competent court;
6 justify, as appropriate, training or experience in the management, administration and the management of the companies adapted to the practice of judicial agent;
7 justify a policy of insurance with an insurance regularly based in Senegal.
Counsel included in the big picture of the order of lawyers and meeting the requirements listed above in 1 °, 2 °, 4 °, 5 ° and 6 ° may be entered on the list of judicial agents but only as a trustee.
S. 8 - the candidate for inclusion on the national list of judicial agents address its application to the National Commission of control and discipline of judicial agents before June 30 of each year by letter to the wearer against a receipt or by registered letter with request for acknowledgement of receipt or by any written means.
He joined to this request, original or certified copies, the following parts: 1. a bulletin No. 3 of the criminal record of less than three months;
2. a document emanating from the order stating that the person concerned is regularly registered on his table at the time of the request;
3. a document emanating from the order certifying that the person concerned did not subject to disciplinary sanction other than warning;
4. a tax discharge issued by the competent services of the Ministry in charge of finance;
5. a certificate of good character;
6. one or more documents evidencing a training or experience in the management, administration and the management of the companies adapted to the practice of judicial agent.
S. 9 - the Commission ensures the reception of applications for registration of candidates on the national list of legal representatives, examines their compliance with the provisions of the Uniform Act organizing collective proceedings for discharge of liabilities and this Decree.
The Commission shall adopt the list of judicial agents which it shall forward to the Minister in charge of Justice which makes an order on the national list of legal representatives.
Order on national list of legal representatives is published in the Official Journal of the Republic of Senegal and the Official Gazette of OHADA no later than November 30 of each year. This list shall be transmitted without delay to the courts and tribunals.
The list is revised every year to take into account the new inscriptions and radiations.
S. 10 - the decisions by which the Commission rejects an application for registration must indicate the reasons which justify their use. They shall be notified to the person concerned and may, within a period of fifteen (15) days from their publication, subject to recourse for excess of power.
The decisions by which the Commission accepts a registration request are communicated to various professional bodies to which belong the judicial agents.
Professional bodies can exert recourse for excess of power against the recording of a representative under their jurisdiction.
Section II. -Missions art. 11 - in addition to its tasks as defined in articles 4-4 to 4-5 of the Uniform Act organizing collective of discharge of liability proceedings, judicial representative designated in preventive regulation proceedings, receivership or liquidation of assets is required to inform the Commission of his appointment in transmitting a copy of the appointment decision.
Trustees designated in a procedure of legal redress and liquidation of property are required to establish a special account for the purpose of y domicile procedures of legal redress and liquidation of property transactions.
This account is opened in a bank designated by the judicial decision declaring the receivership or liquidation of property.
Section III. -Control art. 12. - the Commission controls the exercise of the tasks of judicial agents and renders opinions on matters relating to their activity.
The monitoring mission is carried out by a Committee composed of the following members:-the representative of the Ministry responsible for finance;
-the representative of the national order of Chartered Accountants and Chartered Accountants (ONECCA);
-the representative of the public prosecutor of the Court of appeal of Dakar.
S. 13 - the Oversight Committee has a general power of investigation, verification and control activity of the legal representative.
It may in particular to inspect accounts and any document held by a representative in connection with his activity without that privilege to be enforceable. The agent under control may be assisted by any person of his choice.
The monitoring report is presented to the Commission, which shall transmit a copy to the Minister in charge of Justice.
S. 14. - the National Commission of control and discipline of judicial agents ensures that each representative is the subject of a general inspection at least once every five (05) years.
She meets within three (03) months from the filing of the report to decide on this one.
Section IV. -Discipline art. 15. - any violation of the laws and professional or any rules made contrary to probity, honour or the delicacy made by a legal representative, exposes it who is the author to disciplinary proceedings before the National Commission of control and discipline of judicial agents under the conditions and according to the procedures provided for by the Uniform Act organizing collective proceedings for discharge of the liabilities and this Decree.
S. 16. - any disciplinary proceedings against a judicial representative falls under the exclusive competence of the National Commission of control and discipline of judicial agents.
The Commission may be seized of a request for disciplinary proceeding by the Crown. It can also take ex officio or on the basis of a report drawn up in accordance with article 13, paragraph 3 of this order, or when a judicial agent saw his mandate revoked by the competent court.
S. 17 - the disciplinary panel of the Commission consists of five members.
It is chaired by the representative of the Court of appeal judge.
The President of the Commission means for each case the other four members to sit in disciplinary training.
S. 18 - any member of the disciplinary Commission may be disqualified or recuse himself:-if it is related or allied to the continued legal representative or if it is associated with professionally;
-If there is a judicial or administrative proceeding or a professional dispute between this member and the judicial agent pursued;
-If there is suspicion of bias.
S. 19 - judicial agent is called to testify, at least three weeks in advance, by letter recommended with a request for acknowledgement of receipt, signed by the President of the Commission. This letter says to the person concerned the facts attributed to him, informed him that it can take knowledge of his case without moving of room and tells it that it has the right to attend a Council.
A copy of the folder is issued to the legal representative or counsel at his request and at his expense.
Fault by him to appear, the legal representative is quoted again by Ministry of bailiff at the request of the President of the Commission.
S. 20 - the case is heard by a member of the Commission designated by the President outside the disciplinary training.
S. 21 - the national control and discipline of judicial agents Commission, disciplinary, may, without prejudice to criminal sanctions, pronounce a disciplinary sanctions under article 4-9 of the Uniform Act organizing collective discharge of liability proceedings.
The commission may, at the request of the person concerned, terminate the provisional prohibition laid down in article 4-9 of the Uniform Act organizing collective proceedings for the clearance of the liabilities.
She ends the provisional prohibition when disciplinary action is off or when the disciplinary proceeding gave rise to a penalty.
S. 22 - the decisions of the Commission taken in disciplinary matters are notified to the judicial representative to order whose jurisdiction it falls, the Attorneys General pres appellate courts which shall notify without delay the first presidents of the said courses and presidents of district courts.
S. 23 - the decisions made by the Commission in disciplinary matters are appealable within fifteen days of their notification.
The call is registered at the registry of the Court of appeal of Dakar, only competent to know the remedy. It is examined by the Court in the Council Chambers.
It is served within the time referred to in paragraph one of this article, the President of the Commission and the Attorney general about said Court by the person concerned.
S. 24. - If, subsequent to the issuance of a sanction, a new fact occurs, the legal representative can ask the Commission review of the case. The same right belongs to the heirs, after the death of the agent.
Section V. - Remuneration Art. 25. - an order of the Minister in charge of Justice fixed the rate of remuneration of legal agents.
This scale reflects the conditions and compensation criteria set out by the Uniform Act organizing collective proceedings for the clearance of the liabilities.
Chapter III. -Provisions finals s. 26. - the Minister of Justice is responsible for the implementation of this Decree which shall be published in the Official Journal of the Republic of Senegal.
Made in Dakar, April 27, 2016 Macky SALL by the President of the Republic: Prime Minister Mahammed Boun Abdallah DIONNE