Act No. 2014-01 of January 6, 2014 Act No. 2014-01 of January 6, 2014 the treatment of dormant accounts in the books of financial institutions of the Member States of the Union Monétaire Ouest africaine (UEMOA) explanatory memorandum in most of the Member States of the WAMU, legislative and regulatory frameworks do not provide for special provisions for the treatment of dormant assets on the books of financial institutions.
These assets consist, among other things, the balances of the accounts in the books of settlements of credit, the decentralized financial systems, postal financial services or the national savings banks, which, for a relatively long period, were the subject of no movement or transaction on the initiative of their owners; These manifested more, even after an attempt to contact on the part of the depositary, to the address indicated in their documentation.
Facing the legal vacuum in this area in most of the Member States of WAEMU, it is observed a differentiated approach to the treatment of these assets by depository institutions. In some institutions, no action is taken for management transparent such assets, which is likely to prejudice the interests of the applicants. Other institutions tend to enforce the rules of ordinary law relating to prescription in civil or commercial matters.
Given the differing interpretations of the time limits in civil or commercial matters, depository institutions are exposed to risks of litigation that could against holders of relevant assets or their privies. Moreover, these accounts could give rise to fraud or internal malfeasance, which would expose the financial bodies at risk of reputation.
To assess the extent of the phenomenon, the Central Bank of Africa (BCEAO) States conducted a census of dormant assets from the banking system, the institutions of microfinance and financial services of the post office which confirms the number of accounts affected and the importance of credit balances that are enrolled.
It thus appears a need to regulate the treatment of dormant assets within the Union, in order to preserve the legal security of depository organizations and safeguard the interests of investors.
In a participatory approach, preliminary, inspired by foreign material experiences and orientations taking account of the specificities of the Union, has been shared with all relevant actors, when organized consultations, in 2011, in the Member States of the Union.
By Decision No. CM/WAMU/005/05/2012, of May 10, 2012, the Council of Ministers of the WAMU has approved these guidelines and requested that a draft specific legal framework of treatment of dormant accounts in the books of financial institutions of the Member States of the WAMU be developed.
The Uniform Act has been developed within this framework. Objectives, expected results, its structure and its content are set out below.
I. objectives of draft of uniform law this uniform act has the main following objectives: define the concept of dormant accounts.
recall the obligations of the depositories of the assets concerned agencies;
propose modalities for the conservation and management of the dormant assets;
adopt uniform provisions on prescription rights and devolution of dormant assets.
II. expected results the main results expected from the adoption of this text are: better protection of the interests of the users of financial services and enhancing their confidence in banking and financial institutions;
the reduction of the risk of litigation between the financial institutions of the Union and holders of dormant assets or their successors, contributing to the strengthening of the legal certainty of these institutions;
the prevention of the risk of fraud and other malfeasance involving staff of financial institutions, contributing thereby to the preservation of their reputation;
the preservation of financial stability in the EU Member States.
III. STRUCTURE and content of draft of uniform law law uniform is composed of twenty-four (24) articles divided into five (5) titles, in addition to the preliminary title dedicated to the definition of key terms that are used.
The first title to the "General provisions" (articles 2 and 3) defines the object and the scope of the text, in particular the relevant accounts and agencies subject to the Act.
Title II entitled "Treatment of dormant accounts" (articles 4 to 15), specifies in particular lesobligations of research of holders of dormant accounts to the burden of the depository bodies and modalities of preservation of dormant assets by the BCEAO. It also addresses the procedure to claim assets dormant by licensees or their successors as well as of prescription and vesting such assets.
Title III deals with "Sanctions" (articles 16 and 20) offenders to the provisions of this Act.
Title IV on the "transitional provisions" (articles 21 and 22), stipulates the special treatment of the States of the Union which already have legislation on dormant accounts in their legal order.
Title V of the draft uniform Act (articles 23 and 24) deals with the "final provisions".
The National Assembly adopted in its session of Monday, December 30, 2013, the President of the Republic enacts the law whose content follows: preliminary title: DEFINITIONS Article 1 for the purposes of this Act, is meant by:-'Dormant assets': financial assets held in a dormant account.
-' Beneficiary': any natural or legal person who, under a legally established link with the holder, holds the power to have in place of the financial assets held in dormant account;
-"Central Bank" or "BCEAO": the Central Bank of West African States;
-' Banking commission": the Banking Commission of the West African Monetary Union.
-' Account': an account, a savings account, an account titles, a notice or any other term deposit account in which are individualized assets held by FSIS on behalf of their clients;
-"Dormant account": any account held in the books of a financial institution, which has been the subject of any intervention for at least ten (10) years, on the part of the holder or his successors in title and which holder said and his successors are not manifested over the same period, despite attempts by the Organization to come into contact with them notably on the basis dela documentation provided by the licensee;
-"Intervention": any operation of the holder or of a having interest in the account or contact the holder or a right in the direction of the Agency custodian;
-«Depositary»: the financial body content of account on behalf of a licensee;
-' Financial institution': any Credit institution within the meaning of the law on banking regulations in the Member States of the WAMU, any system decentralized financial (SFD) within the meaning of the Act regulating the SFD in Member States of the WAMU as well as any service financial post and the Caisse Nationale d'Epargne;
-' Holder': a natural or legal person on whose behalf an account is opened in the books of the financial institution;
"WAMU": West African Monetary Union.
First title. -PROVISIONS sole chapter General. -Object and scope article 2. - this Act is to establish the rules applicable to the dormant accounts held on the books of financial institutions of the Member States of the WAMU, as defined in article 1 above.
Are not covered by this Act:-account which has not undergone any intervention on the part of its holder for at least ten (10) years, where it has made during this period, an intervention on accounts held in the books of the same financial institution or has had contact with said organization.
-account subject to special supervision by virtue of a decision of justice or administration;
-term deposits over the contractual period of ten (10) years or more.
S. 3. - all financial organization operating on the territory of the Republic of Senegal, regardless of its legal status, the location of its head office or principal place of business in the WAMU, is subject to the provisions of this Act.
TITLE II. -PROCESSING of accounts DORMANT first chapter. -Search obligations art. 4 - organizations depositaries are required to search the holders or beneficiaries of accounts that were the subject of any intervention for at least eight (8) years.
In the absence of results, the research continued over a period of two (2) years.
At the end of the second year of research continues and failing to find the owners or their successors, the relevant accounts are considered dormant. The depositary shall, in this case, follow the procedures referred to in articles 6 and 7 of this Act.
The terms and conditions of research of the holders of the accounts referred to in the first paragraph of this article are specified by an instruction of the BCEAO.
Chapter 2. -Proof of the intervention
S. 5 - proof of the intervention of the holder or beneficiaries is the responsibility of the depositary. She moved by all means.
The acknowledgement of receipt of correspondence including includes an intervention of the holder or the rightsholders.
The depositary may use any means of communication to establish proof of the intervention of the holder or the rightsholders.
Chapter 3. -Procedures for conservation of dormant accounts first Section. -Role of the depositary s. 6 - If despite the research referred to in article 4 of this Act, the account in question is not the object of intervention on the part of the holder or his successors in title, the depositary is required to close it at the end of the tenth year after the last intervention.
The dormant account retirement shuts samples of management and remuneration as well as income tax expense expense y related.
S. 7 - the assets held in the closed account are transferred to the BCEAO, thirty (30) days at the latest following the closing date.
The terms of transfer of the assets held in the closed accounts are established by a statement from the Central Bank.
Section 2. -Role of the BCEAO art. 8 - the assets transferred to the BCEAO are kept by the latter on behalf of the holder or his successors until the expiration of a period of twenty (20) years, effective beyond date of transfer by the depositary.
The BCEAO places dormant assets kept in his books primarily on Government securities.
The BCEAO renders the assets received at the request of the holder or his successors in title.
Chapter 4. -Procedure of claim of dormant assets art. 9. - until the expiry of the time limit of twenty (20) years referred to in article 8 of this Act, any person who believes to be the owner or a beneficiary of dormant assets transferred to the BCEAO may claim them by sending a written request to the Central Bank, with expansion to the original depositary.
S. 10 - the claims made by a natural person must be accompanied by the supporting documents relating to the identity of its author and the right he claims to hold to dormant assets. The proof of the identity of the author of the claim is made by the presentation of a national ID or any original official document in lieu thereof, valid, and include a photograph.
In the case of an estate, the interested parties must produce, in addition to the documents prescribed in the preceding paragraph, any authentic document attesting to their status as successors.
Art; 11 - when the claim is made on behalf of a legal person, including the case of undivided ownership, her representative must present documents certifying powers that are conferred.
In addition, it must provide exhibits its identity by presentation of a national ID or any original official document in lieu thereof, valid, and include a photograph. Proof of address professional or home of the representative is provided by the submission of any document capable of establishing it.
Are also required, on the one hand, the original, the expedition or the certified copy of the Statute, extract of the trade register and Credit furniture, the certificate of declaration of existence and/or any other Act including the legal the legal person concerned and its registered office form and, on the other hand, the document justifying its right on dormant assets.
S. 12 - the terms of claim of dormant assets are specified by an instruction of the BCEAO.
Chapter 5. -Publication of the list of dormant accounts art. 13. - during the entire period of conservation funds, the BCEAO publishes, by all appropriate means, the list of holders of dormant accounts whose balance was transferred in his books.
The BCEAO may disclose the data related to the list of dormant accounts only for those who establish their right on these accounts, to the judicial authorities and supervision of the financial system, as well as to the cells national processing information financial (CENTIF), in the context of the fight against money laundering and the financing of terrorism.
Chapter 6. -Prescription and devolution of dormant assets art. 14 - limitation period of dormant assets is thirty (30) years, from the date of the last intervention by the holder of the account or his successors in title.
S. 15. - at the end of the delaivise in article 14 of this Act, the BCEAO transfers dormant assets unclaimed in the Treasury of the State of implementation of the original depositary, within a maximum period of three (3) months. This transfer out all the concerned assets which are definitively acquired rights audit public Treasury.
TITLE III. -SANCTIONS art. 16 - non-compliance with the provisions of this Act by a Credit institution is established and sanctioned by the BCEAO or the Banking Commission, in accordance with the provisions of the law on banking regulations.
S. 17 - non-compliance with the provisions of this Act by a SFD is found and punished, as appropriate, by the Banking Commission, the BCEAO or the Ministry of finance, in accordance with the provisions of the framework law on the regulation of the SFD.
S. 18 - non-compliance with the provisions of this Act by a financial service of the post office or a Caisse Nationale d'Epargne is established and sanctioned by the Minister in charge of finance.
S. 19 - shall be liable to a penalty which estegal to one quarter of the amount of the credit balance of the dormant account, any depositary organization that contravenes the provisions of this Act.
In case of recidivism, the penalty referred to in the preceding paragraph shall be one hundred percent (100%) of the balance of the said account.
Penalties against a Credit institution or an SFD are taken as appropriate, by the Commission Bancaire, the BCEAO or the Minister in charge of finance. Penalties against a financial service of the post office or a Caisse Nationale d'Epargne are taken by the Minister in charge of finance.
The amounts corresponding sontrecouvrees on behalf of the public Treasury of the place of holding of the dormant account, as the case may be, by the Central Bank or by the Ministry responsible for finance.
S. 20. - in addition to the penalties provided for in article 19 of the Act:-the Banking Commission may pronounce disciplinary sanctions against Credit institutions, in accordance with the provisions of article 28 of the annex to the Convention governing the Banking Commission;
-the Banking Commission, the BCEAO or the Ministry responsible for finance, as the case may pronounce disciplinary sanctions against the SFD.
TITLE IV. -TRANSITIONAL provisions art. 21 - within a period of three (3) months, as from the entry into force of this Act, organizations depositaries shall notify the BCEAO the list of accounts that were the subject of any intervention for at least eight (8) years in their books.
They interlock, without delay, the surveys referred to in article 4 of this Act.
S. 22. - the provisions of law No. 76-66 of July 02, 1976, on the domain of the State Code shall apply to financial institutions, as defined in article 1 of this Act, until 31 December 2013.
All claims or disputes relating to assets used or managed by the State under Act No. 76-66 of July 02, 1976, on the Code of field of the Etatsont of the responsibility of the Republic of Senegal.
All necessary measures are taken by the State of Senegal, for the management of dormant accounts which he received resources.
TITLE v - provisions finals s. 23. - this Act comes into force on January 1, 2014.
Are repealed, as from this date, all previous provisions contrary.
This Act will be enforced as law of the State.
Made in Dakar, January 6, 2014, by the President of the Republic: Macky SALL.
The Prime Minister, Aminata TOURÉ