Law No. 2014-02 January 6, 2014 law No. 2014-02 6 January 2014 on...
Law No. 2014-02 6 January 2014 regulating Information offices on Credit in the Member States of the Union monetary Ouest africaine (UMOA) explanatory memorandum the creation of offices of 'BIC' or «Credit Reference Bureau» Credit Information participates in actions for improvement of the business climate in the Member States of the monetary West African Union (WAMU) which are among the priorities of their economic policies.
Indeed, in the "DOING BUSINESS" report, published annually by the (IFC) International Finance Corporation, the Member States of the Union are classified among the worst performing economies in the business climate. One of the criteria used to classify countries, figure that relating to "the extent of the credit information', for which the Member States of the WAMU obtained a very low note, while countries where the banking environment is analogous display satisfactory ratings. The weakness of the note of the Member States of the Union on this criterion is explained by the absence of BIC.
The BIC is an institution that collects, to financial institutions, public sources and large billers (companies providing water, electricity, telephone companies, etc.), data on history of credit or payment from a customer. This information, then, marketed with the credit institutions, (SFD) decentralized financial systems and of big billers, in the form of credit reports detailed.
The importance of the exchange of credit information system has been widely proven in developed countries, Latin America and Asia. Several empirical studies have confirmed its positive impact on customers, credit institutions, the SFD and other member companies to the system for exchanging information such as mobile phone companies and the national economy: 1. for customers, it allows better accessibility to credit with pricing based on individual risks that can induce a decrease in the cost of credit and guarantees taking into account the reputation as well as an improvement of the quality of service and the relationship with financial institutions and other members;
2. for credit institutions, the SFD and other financial institutions concerned, it constitutes an effective tool of analysis, evaluation and risk management, which allows to anticipate the overindebtedness of borrowers, make better decisions in the granting of credits, to reduce the asymmetry of information and to increase the volume of jobs with an improvement in the quality of the portfolio;
3. for the national economy, he contributed to the improvement of the financing of economic agents at a lower cost, because of its advantages for borrowers and lenders. It also helps to strengthen the effectiveness of the supervision of the activity of credit, including the prevention of over-indebtedness, and control of systemic risk. In doing so, the BIC contributes to enhance the reputation of the country internationally and gives an assessment of the soundness of its financial system.
The creation of the BIC in UMOA Member States is one of the main recommendations of the report of top Committee Ad Hoc of Heads of State on the financing of the economies of those States.
This Act aims to regulate the credit information sharing and operations of the BIC in UMOA Member States.
It processes the information on credit and is designed to guarantee their use in respect of the rights of consumers of their privacy and to ensure the truth, accuracy and confidentiality in authorized use information to minimize credit risks and to contribute to the proper functioning of the banking sector and the other components of the financial system.
The device is open to financial institutions supervised by the BCEAO and the Banking Commission of the (credit institutions) and SFD WAMU as well as all other suppliers of services unsupervised by the abovementioned entities with histories of payment on economic agents.
This Act is based on the key principles of reciprocity, confidentiality and explicit consent and prior physical and legal persons on which information on the credit are met. It grants a notable importance to the protection of the rights of consumers, with a particular focus on the principle of the consent of the consumer before any collection and dissemination of information by the BIC.
It shall establish an appropriate balance between the ability of creditors to share information and the right to privacy of individuals.
With regard to the sensitive nature of the information collected and processed by the BIC and their origin, essentially, from the SFD and credit institutions, regulations that their is applicable has many similarities with that of the law on banking regulations. Indeed, it was selected subject them, by parallelism, comparable procedures, including accreditation and withdrawal of accreditation, various permissions, rules applicable to leaders and personnel, accounting and reporting to the Central Bank.
The Bill consists of seventy-six (76) articles, divided between eleven (11) securities below:-General provisions;
-Approval and withdrawal of approval of a BIC;
-Managers and staff a BIC;
-Regulation of BIC;
-Supervision of BIC;
-Permitted activities, rights and obligations of the parties;
-Protection of personal information;
-Credit information sharing;
-Provisions relating to the organisation of collective liability clearance procedures;
-Transitional and 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: title I. - General provisions chapter one. -DEFINITIONS Article 1.
For the purposes of this Act, is meant by: (harmful) adverse Actions: any refusal or cancellation of credit or adverse change in the terms and conditions of a transaction concerning a contract of loan or services, involving a physical or legal person.
BCEAO or Central Bank: Central Bank of the States of West Africa.
(BIC) Credit information Bureau: approved entity that performs as usual occupation, the collection, compilation, storage, processing and dissemination of information on credit and other related data that are received from sources or data providers, in accordance with a special agreement signed by the parties, for the purposes of compilation and provision of credit reports and offering services to add value to users.
Client: the consumer / borrower (physical or legal person) whose data has been or could be included in the application of the BIC, in accordance with a contractual relationship of credit with suppliers of credit data in the Member States of the WAMU.
Consent: the authorization written, signed, specific and informed by which, the client, natural or legal person, agrees explicitly to the lender or the provider of services to share data, including personal data, with users and the BIC or to consult with the BIC of the information about its solvency.
Public data: records, archives, list, roller or other data which are collected, stored, processed and held by a public or semi-public organisation and whose public nature and permanent public accessibility are guaranteed by law.
Sensitive data: the personal data relating to religious, philosophical, political, trade union activities or opinions, sexual life or race, health and social measures.
Data providers: credit institutions, the decentralized financial systems, regional Institutions common funding, Financial Institutions regional or international carrying of credit guarantee, the operators of fixed and mobile telephony, companies of supply of water and electricity as well as all other private institutions or public bodies (courts, managers of public registers, etc.) which provide the BIC of information related to payment of a physical or legal person history established in the Member States of the WAMU.
Information about credit or Information (s): information about the history of credit, payment of a physical or legal person history, including its borrowing and repayment ability and behavior, all of the credit risk, the volume of loans, the maturity, the terms and conditions, refunds, the guarantees and other financial commitments, which determine, at any time , the financial situation and exposure of the natural or legal person concerned.
Credit report: credit history, payment history, or compilation of information provided by a BIC on written or electronic support, related to financial obligations of a person or entity including history of payment of its commitments, or information accessible to the public and all other relevant data collected by the BIC and authorized under this Act.
Scoring: the statistical methodology developed from data collected by the BIC, which allows to assess the creditworthiness or the risk of an applicant's credit profile.
Value-added services: other services, developed, related or derived from any treatment or statistical analysis (such as the scoring) or consolidation of data provided by users/providers of data, or other sources.
SFD: Decentralized financial systems.
Data processing: operation or set of operations or technical procedures, automated or not, that allow to compile, organize, store, develop, select, extract, compare, share, transmit or erase information contained in a database.
WAMU: Union Monétaire Ouest Africaine.
User or user data: any credit institution or decentralized financial system or all other data providers having the right of access to the database of the BIC under contract with the BIC, to obtain credit reports and other services in accordance with the provisions set out in this Act.
Chapter II. -Subject matter and scope of APPLICATION Article 2.
This Act is designed to set the legal framework for the creation, approval, of the Organization of the activity and supervision of the BIC in UMOA Member States.
This Act applies to the BIC, the providers and users of credit data exercising their activities on the territory of the Republic of Senegal regardless of their legal status, the location of their registered office or principal place of business in the WAMU and the nationality of the owners of their capital or their leaders.
It applies also to the customers of suppliers and users of data referred to in the first paragraph above.
TITLE II. -APPROVAL and withdrawal of approval of a BIC first chapter. -APPROVAL of a BIC Article 4.
No person shall, without having been previously approved and registered on the list of BICs, practise as BIC, nor rely on the quality of BIC, or create the appearance of this quality with references such as 'Office of Credit Information', 'BIC', «Crédit Bureau» and «Credit Reference Bureau.
The BIC quality approval may be issued to any corporation pre-selected on the basis of a call for competition and which undertakes to comply with the provisions of this act as well as the specification clauses laying down general conditions of establishment and operation of the BIC. The invitation to tender is organized by the Central Bank.
Application for approval as a BIC to a preselected company is addressed to the Minister responsible for Finance of the Member State of the registered office of the CIO and registered with the Central Bank, which educated them.
The Central Bank informed the Ministers of Finance of other States members of this request for approval.
The BCEAO checks whether the moral person seeking approval satisfies the conditions and obligations laid down in articles 13, 14, 16, 17, 18, 19 and 20 of this Act.
The Central Bank shall consider, business plan and technical and financial means that it intends to implement. She also appreciates the ability of the applicant to achieve its development goals, under conditions consistent with adequate protection of client data.
Central Bank Gets all the quality information of persons having secured the capital and, where appropriate, on that of their guarantor so that the good repute and experience individuals called to direct, administer or manage the BIC and its subsidiaries and/or branches.
The BCEAO may limit the number of BIC in activity in the Member States of the WAMU, depending on the volume of activity of the data providers, including credit institutions and the SFD and the size of the market on which they occur.
A statement from the Central Bank determines the constituent elements of the application for approval.
Is approved by order of the Minister of Finance of the State of the registered office of the company, after obtaining the assent of the Central Bank.
The approval shall be deemed to have been denied, if it is not pronounced upon the expiry of the period of one hundred and twenty (120) days of the receipt of the request by the Central Bank, unless otherwise given to the applicant.
Approval shall be evidenced by the inscription on the list of BICS.
This list is established and maintained by the BCEAO which assigns a registration number to each BIC.
The list of BICs, as well as the changes which it is subject, including radiation, are published in the Official Gazette of each Member State of the WAMU to the diligence of the BCEAO.
The rejection of the application for registration is motivated and notified to the applicant by registered letter the Minister with acknowledgement of receipt or otherwise legally recognized to certify that the information has been brought to its attention.
A BIC that has received authorisation in a Member State of the WAMU is authorized to carry on business within the territory of the Republic of Senegal, including opening offices of representation, branches and/or subsidiaries.
However, prior to the opening of an office of representation, a subsidiary or a branch within the territory of the Republic of Senegal, the BIC shall notify its intention to the Central Bank.
The authorization request is addressed to the Ministry of Finance of each Member State concerned and filed with the BCEAO.
The BCEAO inform the State of the registered office of the CIO to the request made by the latter as well as Ministers responsible for Finance of the other Member States of the WAMU.
The Central Bank determines by statement, the information must contain the declaration of intent and documents to join.
Chapter II. -WITHDRAWAL of approval of a section 8 BIC.
The withdrawal of the authorisation of a BIC is pronounced by an order of the Minister in charge of Finance of the State of the registered office of the CIO, after obtaining the assent of the Central Bank, in the following cases: 1. the BIC does not actually start its activities within a period of twenty-four (24) months from the notification of the order approving said BIC. However, this period may be extended by the Central Bank on reasoned request of the BIC. In this case, the BCEAO informs the Minister in charge of Finance of the Member State of the concerned WAMU;
2. the commission of serious or repeated infringements to the regulation of the BIC or any other regulations applicable to the BIC;
3. where it is found that the BIC has more activities for at least one (1) year;
4. the BIC proceeded to the transfer of its head office out of the WAMU, including as a result of any merger by absorption, splitting or creating a new society.
Withdrawal of approval may intervene at the request of the BIC, after six (6) months notice.
In the event of withdrawal of authorization, database as well as any electronic copies of relief are transferred to the Central Bank in the terms and conditions laid down by a statement of the BCEAO.
Article 9 withdrawal of authorization requests are sent to the Minister responsible for Finance of the State of the seat of the BIC and filed with the Central Bank. They require including the liquidation plan, the staff compensation plan and the terms of cessation of use of the information contained in the database of the BIC, under penalty of sanctions provided for in article 70 of the Act.
The BIC must cease their activities within the time limit fixed by the decision of withdrawal of authorization.
Withdrawal of approval of the CIO for the State of the seat of origin of the BIC automatically extends to representative offices and branches in other UMOA Member States that need to stop their activities as a BIC.
In case of withdrawal of authorization of a parent, each Minister of the Finances of the State settlement decided the withdrawal of the authorisation of installation of each of the subsidiaries located within the national territory.
However, at the request of a subsidiary, after obtaining the assent of the BCEAO, the Minister in charge of Finance of the State of its head office may decide that the withdrawal of the approval of the parent from a BIC does not extend to it. In this case, the subsidiary wishing to pursue the activities of BIC, must seek approval under the conditions defined by an instruction of the BCEAO.
The Central Bank informs the Minister responsible for Finance of the State of reception of each representative office, branch or subsidiary of the withdrawing approval of the parent company.
On order withdrawal of the approval or the authorisation of installation is notified to the BIC by the Minister of Finance of the State concerned, within a period of thirty (30) days.
The order is published in the Official Journal of the State of the head office.
The BCEAO provides the information of withdrawing approval of the BIC data providers.
TITLE III. -LEADERSHIP and personal BIC Article 13.
It is prohibited to any person convicted of common crime, fake or forgery in public writing, for fake or forgery in private writing, trade or Bank, for theft, fraud or punishable by sentences of the scam, for breach of confidence, for bankruptcy, for misappropriation of public funds, for subtraction by public custodian for extortion of funds or assets, for corruption, for offences in cheques, credit cards and other instruments and electronic processes payment for breach of the regulation of external financial relations, for an offence under the legislation against money-laundering and the financing of terrorism, for injury to the credit of the State or for concealment of things derived using these offences , for any offence treated by law as one of those listed above: 1. to direct, administer or manage a BIC or its representative offices, branches or subsidiaries;
2. to propose publicly the creation of a BIC;
3. to take stakes in the capital of a BIC.
Any conviction for attempt or complicity in the commission of the offences listed in the first paragraph carries the same prohibitions.
The same prohibitions apply to the bankrupt not rehabilitated, dismissed corporate officers and managers of a BIC suspended or dismissed pursuant to section 64 of this Act.
Prohibitions above shall apply ipso jure when sentencing, the bankruptcy, the dismissal, suspension or resignation has been pronounced abroad. In this case, the public prosecutor or the person concerned may seize the competent court of a request tending to establish whether or not the conditions for the application of the prohibitions above are met; the tribunal shall decide after checking the regularity and legality of the foreign judgment, the applicant duly called in Council Chamber. The decision cannot be the subject of an appeal in cassation.
When decision, which results in one of the prohibitions laid down in this article, is later rescinded or reversed, the ban stops right, provided that the new decision is not likely to remedies.
It is prohibited the credit institutions and of the SFD staff to perform the duties of Chairman of Board of directors or General Manager of a BIC.
Any BIC shall deposit and keep up-to-date with the Central Bank and the responsible Registrar of holding the trade and personal property Credit, list of persons exercising functions management, directors or managers of the BIC or its representation, its branches and/or subsidiaries offices. Any proposed amendment to the above-mentioned list should be notified to the Central Bank at least thirty (30) days prior to taking office of new leaders.
The Clerk shall forward copy of the above list and its amendments within a week, on plain paper, the Prosecutor of the Republic.
People who contribute to the direction, administration, stewardship, control or operation of the BIC, are held to professional secrecy, subject to the provisions of article 24, paragraph 3 of this Act.
It is prohibited to the same people to use confidential information which they have knowledge in their activity, to perform directly or indirectly from operations on their own account or the benefit of other people.
These provisions are applicable to providers and users of data, through their participation in the sharing of credit information system.
TITLE IV. -Regulation of BIC chapter first. -FORM legal Article 16.
The BIC is made in the form of limited company with fixed capital.
It can take the form of a one-person company.
It must have its head office in the territory of one of the Member States of the WAMU.
The shares issued by the BIC having its registered office in the Republic of Senegal must be in registered form.
CHAPTER II. -SOCIAL CAPITAL and RESERVE special section 18.
The BIC capital cannot be less than the minimum amount set by the Council of Ministers of the WAMU.
The share capital must be fully released on the day of the approval of BIC to the minimum amount required in the approval decision.
Users and providers of credit data can have, directly or indirectly, participation in the share capital of a BIC exceeding a threshold set by the Council of Ministers of the WAMU. This threshold can be greater than forty nine percent (49%) of the share capital of the BIC.
The BIC are required to constitute a special reserve, including all legal reserve possibly required by laws and regulations in force, fueled by an annual levy on net profits, after posting of any again deficit report. The amount of this levy is fixed by a statement from the Central Bank.
Special reserve may be used for the clearance of the losses, provided that all other available reserves are previously used.
CHAPTER III. -PERMISSIONS various section 21.
Shall be subject to the prior authorization of the Minister of finance, following operations relating to the BIC having their registered office in the Republic of Senegal: 1. any change in the name or trade name;
2. any transfer of the registered office in another Member of the WAMU.
3. any operation of merger by absorption or creation of a new society, or split;
4. any dissolution early;
5. any taking or sale of participation which would increase the participation of the same person, directly or through an intermediary, or a group of persons acting in concert, first beyond the blocking minority, then beyond the majority of the voting rights in the BIC, or lower participation below these thresholds;
6. any layout managers or cessation of all its activities in the Republic of Senegal.
Is considered blocking minority the number of votes that could preclude an amendment to the statutes of the BIC.
Are particularly considered in persons interposed against the same natural or legal person: 1. legal persons in which the person holds the majority of voting rights;
2. the subsidiaries to majority participation, i.e. companies in which the companies referred to in the preceding paragraph have the majority of the voting rights or in which their participation, added to that of the natural or legal person concerned, holds the majority of voting rights.
Prior authorizations provided for in this chapter shall be granted as accreditation.
CHAPTER IV. -ACCOUNTING and INFORMATION of the central section 23 bank.
The BIC must keep to their head office, principal place of business or offices of representation, branches and/or subsidiaries in Republic of Senegal, according to the case, accounts of their operations on the territory of the Republic of Senegal and the whole of the territories of the Member States of the WAMU.
They hold in States other than those of their headquarters, an accounting of transactions in each of the Member States.
They are required, as appropriate, to prepare their accounts in a consolidated form, in accordance with accounting system accountant West African (SYSCOA) and other special rules laid down by the Central Bank.
Before 30 June of the following year, the BIC must communicate to the Central Bank, their annual accounts, within the deadlines and conditions prescribed by the Central Bank.
These accounts must be certified regular and sincere by one or more (s) to the accounts Commissioner, in accordance with the rules adopted by the uniform act of the Organisation for the Harmonisation of the Droit des Affaires (OHADA) relating to the right to commercial companies and economic interest grouping.
The BIC must provide, upon request of the Central Bank, information, clarifications, justifications and documents deemed useful for the review of their operation and, more generally, compliance with the specifications governing their activities.
At the request of the Central Bank, any external auditor of a BIC is required to submit all reports, documents and other materials, as well as all information deemed useful for the accomplishment of its mission.
Professional secrecy is opposable to the judicial authority or the Central Bank acting in the course of criminal proceedings.
The provisions of section 24 of this Act are applicable to providers and users of credit data in terms of their relations with the BIC.
Title V. - SUPERVISION of the BIC Article 26.
The BIC are required to comply with the decisions the Council of Ministers of the WAMU and the Central Bank, in the exercise of the powers conferred on them by the West African Monetary Union Treaty and the statutes of the Central Bank.
The BIC are required to conform to the standards of quality of service in their specification developed by the BCEAO.
The BICS are subject to the control of the Central Bank. They cannot if object to the checks carried out by the Central Bank, or the request, by the General Secretariat of the Banking Commission of the WAMU or Ministry responsible for Finance of the Republic of Senegal.
Pursuant to the provisions of articles 26, 27 and 28 of this Act, the Central Bank is responsible inter alia: 1. to ensure the respect by the BIC, the suppliers and users of data provisions of this Act;
2. to approve the Code of conduct governing relations between the BIC and the suppliers of data and users and to ensure its application;
3. to ensure respect for the rules of good governance, privacy, protection and preservation of the customer data, including their personal data and their rights, by all of the stakeholders to the device for sharing information on credit in States members of the WAMU;
4. to ensure the implementation of procedures and control measures to ensure integrity, availability and security of the information.
In the exercise of its tasks, the Central Bank may carry out inspections on parts and place. To this end, it has: 1. access to all books, records, contracts, minutes of meetings and all other documents in the possession or under the control of a Director, officer or employee of any BIC;
2. the right to require any administrator, Director, auditor or employee of a BIC to provide information or to produce books, records or documents that are in his possession or under his control.
At the request of the Central Bank, the Minister responsible for finance may decide the placing under a BIC's provisional administration, when its management including endangers the security of information and generally, where serious deficiencies with respect to the specification loads are recorded.
In this case, the Minister in charge of Finance appointed a provisional administrator to which it confers the powers necessary for the management, administration or stewardship of the concerned BIC.
The extension of the term of office of the provisional administrator and the lifting of the provisional administration are pronounced by the Minister of finance, in the same forms.
A statement of the BCEAO specifies the modalities of appointment of provisional administrator.
Provisional administrator appointed with a BIC, instead of its headquarters, is organizing the provisional administration of representative offices and branches established in the other Member States of the UMOA and who benefited from the approval of the said establishment.
In the event of withdrawal of the authorisation of installation to subsidiaries, the provisional administrator appointed with a BIC in the Member State of establishment of the parent company, coordinates the provisional directors of the subsidiaries established in the other Member States of the UMOA and who benefited from the approval of the said BIC.
The Central Bank decisions are enforceable right on the territory of the Republic of Senegal.
TITLE VI. – ACTIVITIES PERMITTED, OBLIGATIONS AND RIGHTS OF PARTIES CHAPTER ONE. – ACTIVITIES permitted by the BIC Article 33.
The BIC is authorized to engage in the following activities: 1. collect and store information about the credit;
2 treat the credit information;
3 merge different sources of information and put at the disposal of users of credit for remuneration reports;
4 dissemination of information and credit reports for users;
5 provide value added to users after authorization from the Central Bank;
6. any other related activity authorized by the Central Bank.
BIC identifies clients by any appropriate means, including biometrics.
The data collected and disseminated by the BIC in a Member State of the WAMU, including databases and backup sites, can be delocalized, preserved and maintained in another EU Member State.
The BIC relocate, keep or maintain databases and backup sites referred to in the preceding paragraph, outside the WAMU is prohibited.
BIC may offer its services to users who provide information under the principle of reciprocity.
BIC's information dissemination is carried out by any technological means, electronic device or computerized system for processing information, via a public network or private telecommunications, provided that they comply with the requirements of security, confidentiality, protection of data, including personal data, and integrity laid down by this Act.
In the exercise of its activities, the BIC may, under the conditions laid down in the laws and regulations in force, collect, keep, process and disseminate in the credit and reports in respect of the value-added services that it provides, public information including: 1. the civil status;
2. the data on decisions on debt, files for insolvency proceedings, winding-up of companies contained in the records of the registries of the courts and tribunals;
3. the data contained in the register of trade and Credit furniture, the land register and in any other registry or existing public directory in Senegal;
4. the data contained in the Central of the WAMU banking risks;
5. the data contained in the Central of Incidents of payment from the Central Bank;
6. the data contained in the Central of the risks of the SFD;
7. the information maintained in the Central of the balance sheets of the Central Bank;
8. the data classification agreements or any other public signing of the beneficiaries of credit quality rating system;
9 any other information of a public character.
The BIC invoice users information services it provides them on the basis of a fee schedule.
The grid is certified under the conditions laid down by the Central Bank statement.
Article 40: The fee schedule is brought to the knowledge of the public by display in the premises of the BIC and by publication in newspapers at intervals defined by the Central Bank.
The fee schedule is communicated, at intervals set by the Central Bank, BCEAO itself, the Professional Associations of Credit institutions and of the SFD as well as established in the WAMU Consumer Associations.
CHAPTER II. -OBLIGATIONS of the BIC, suppliers and users of data Article 41.
The BIC shall meet the following obligations: 1. place a suitable technical device of data collection on the credit from data providers;
2. provide users to data from credit reports detailed, updated on the basis of information historical and current of the client including the approved balances and overdue credit credit limits, payment terminations, the balance of arrears;
3 broadcast only information for which seniority does not exceed five (5) years;
4 archive information within a further period of five (5) years, and use them in the event of litigation or at the request of the BCEAO;
5 grant to customers whose credit histories are saved in the database, access to their own credit reports on presentation of proof of identity;
6. give customers the right to challenge and correct data concerning them;
7. develop a device for treatment of claims of clients;
8 maintain adequate levels and minimum standards of data quality;
9. keep a record of all requests for information and requests received from users in a format which States, inter alia, the purpose for which the information was requested;
10 inform the Central Bank on the shortcomings of the safety device whenever the system records a threat;
11. take all necessary measures to ensure that a suitable device is set up to secure the database and avoid access, modification and disclosure of information by individuals (including members of its staff) or unauthorized institutions;
12 take all provisions required its personnel to retain personal data contained in the information on credit in a strictly confidential manner;
13 take in the same way as data providers all necessary measures to ensure that the data are accurate, up-to-date and sincere;
14 keep a register on quality failure data transmitted;
15. establish a program of monitoring of the quality of the data to periodically back to the Central Bank and users deviations from the specifications defined for the data transmitted;
16. to submit an annual audit of compliance of an external firm, which will notably cover the regulatory, technical and operational aspects of its activities;
17 file a report of compliance with the BCEAO at the end of each year;
18. establish internal control adapted to the specificities of its activity;
19. establish a computer backup device;
20 create a backup site and develop a plan of continuity and of security last updated at least once per year;
21 develop a code of conduct and ethics.
The BIC is committed, in the event of withdrawal of its approval or authorization, to no longer engage in the activities referred to in article 33 above, under penalty of sanctions provided for in article 70 of the Act.
Any data provider:
1 obtain the prior consent of the client for the sharing of information on credit concerning with the BIC and the consultation of such information by the users of the BIC;
2. keep the consent of the client under the provisions of this Act;
3. keep absolute confidentiality with respect to the content of the information provided to the BIC.
4 sign a contract for provision of services with the BIC and adhere to the Code of conduct and ethics that confers the status of data provider at BIC.
5. provide at BIC information on their customers credit history having consented to sharing and consultation of information on credit on them.
6 transmit BIC information on credit within the time fixed by the Central Bank, according to the statement, the format established and agreed with the CIO under the contract of delivery of services and the Code of conduct signed with the BIC.
7. provide the BIC of the credit reliable, accurate, up-to-date information and correct them, if necessary in the conditions laid down by this law.
Article 43 the credit data user must fulfil the following obligations: 1. keep absolute confidentiality with respect to the content of the information provided by BIC;
2 to implement all means to ensure that the members of his staff, called in the exercise of their function, to access the personal data contained in the reports of credit provided by the BIC, retain such data in a strictly confidential manner;
3 sign a contract for provision of services with the BIC and adhere to the code of conduct which confers the status of user with the BIC;
4 inform the customer in the event of adverse actions and provide to the customer a copy of the credit report which formed the basis for the decision;
5. refrain from communicating the information contained in credit reports or use them for purposes of commercial prospecting, marketing or marketing studies, and targeting customers of other users;
6. refrain from using the data contained in credit reports for surveys of market and/or promotions, advertising and/or direct sales of products or services marketed by the user with the reviews of other users.
CHAPTER III. -RIGHTS of customers SECTION i. - entitled Article 44 customer INFORMATION.
The providers and users of data are required before requiring the consent of the client, to provide the following information: 1. the object of the collection, processing and dissemination of the information by the BIC;
2. the categories of data concerned;
3. the coordinates of the BIC at which these information is transmitted;
4. the recipients to which these information are likely to be communicated, especially other users who have access to the database of BIC, including those located in the territory of another State member of the WAMU.
5. being able to ask to not be included in the database of the BIC and the possible consequences of a refusal to be included;
6. the shelf life of this information at the level of the BIC;
7. the existence of a right of access to data in the database of the BIC to verify his credit histories, to challenge and make correct or delete incorrect information concerning in the said database or in a credit report;
8. the right to receive all information maintained by a BIC on its history of credit, in the form of a free credit report once per year and in case of dispute related to an error in the data, due to the data provider or BIC, upon presentation of a signed request accompanied with a proof of identity or secure electronic medium.
The BIC must put at the disposal of the customer details on the referral procedure allowing access to information about the credit, to correct or delete.
The credit made available to a customer by the BIC report must be read in a clear, comprehensive and accessible form. The report is transmitted to the client within a period not exceeding five (5) working days from the receipt by the BIC of the customer's request, and free of charge once per year.
The history of credit provided to the client must include the list of users who have accessed its data during the six (6) months, codes used in the report of credit and their meaning and the identity of the provider of the data that were used in the development of the credit report.
When a negative sequence is given by user to a credit application client, based in whole or in part on information contained in a report of credit from a BIC, the client must be informed of this event by the user who must furnish a copy of the credit report.
SECTION II. -PROCEDURE of claim and right of recourse of the customer Article 48.
If the customer disputes the information contained in a credit report, it can file a claim with the CIO, accompanied by the documents proving the inaccuracy of the data.
The claim may also be transmitted to the BIC through a credit or an SFD establishment with which the client is an account holder.
BIC transmits the request from the client to the data provider within a period of five (5) days from the date of receipt of the request.
The data provider has a period of fifteen (15) days from the receipt of the correspondence of the BIC, for confirming that the BIC data, correct, or delete them, if necessary.
Upon receipt of the response by the provider, the BIC confirms data, amended or shall cancel, within a period of ten (10) days and shall inform the client.
The BIC sends the credit report modified to all users who requested a report on the client during the six (6) months preceding the date on which the dispute has been mentioned.
Where the process to implement the client's claim is not finalized within a period of thirty (30) days after the request from the client, the BIC must remove temporarily the consultation by data users, the complete record of the client, until the resolution of the dispute. However, it is obliged to mention that the correction or cancellation of the data is ongoing.
In case of disagreement between the client and the provider of data on the information passed to the BIC to prove the error and if the dispute is not resolved by agreement within thirty (30) days, the BIC must allow the client to enter a message in the credit report, containing up to one hundred (100) words, explaining the reason for the dispute until a definitive solution is found.
Where the data provider indicates that the error mentioned in the motion filed by the client is attributable to the BIC, the latter must correct it within a period of ten (10) working days from the receipt of the notification of the data provider.
If the customer is not satisfied with the follow-up to its application by the BIC, the data provider or data user, he may file an application with the Central Bank, which shall act within a period of sixty (60) days from referral to the client.
Without prejudice to recourse to the Central Bank or any other competent structure, the customer can enter the courts of common law.
TITLE VII. -PROTECTION OF THE INTELLIGENCE PERSONNEL CHAPTER ONE. -PRINCIPLE of consent beforehand, RESPECT of the purpose for the collection and sharing of data and accountability section 53.
Any collection of information, any use and about sharing and dissemination of personal information, including information about the credit, shall be subject to the prior consent of the client, physical or legal person, concerned.
The consent of the client must be registered as part of the request credit or the credit agreement.
Consent obtained, users can carry out information from the BIC and for the duration of the relationship of business and for the purposes authorized by this Act. Information cannot, under any circumstances, carry on customer deposits.
The requirement to obtain the consent of the customer, provided for in the first paragraph above, does not apply to public data. It does not also cover the information requested by the Central Bank, by the Banking Commission of the WAMU, by the tax administration or the judiciary acting in criminal proceedings.
The consent of the natural or legal person is the basis for the collection and transmission of data to a BIC and the issuance of credit reports.
Article 55 personal information may be collected only for the purposes determined by this Act. They must be: 1. collected honestly and lawful, and not in an arbitrary manner;
2 Treaty fairly and lawfully;
3. adequate, relevant and not excessive in relation to the purposes for which they are collected and for which they are processed later.
4. accurate and up to date. Appropriate measures must be taken for that data inaccurate, incomplete unambiguous, outdated or whose collection, use, communication or conservation is prohibited are revoked or rectified;
5 preserved in a form which permits identification of data subjects and to preserve privacy and inaccessibility to any third party not authorized.
All parties designated by this Act are responsible for the personal information they have in their possession or under their custody.
Article 57: The data provider engages his civil and criminal liability for any collection of information relating to a natural or legal person who have not given his consent.
He also committed his liability for transmission of erroneous data to a physical or legal person to a BIC.
The credit data user commits his civil and criminal liability for any credit reports not authorized by the person or entity concerned and for any illegal or improper use of information on the credit of the persons which are provided.
CHAPTER II. -PROVISION of a CREDIT section 59 report grounds.
The BIC can provide a credit report for the following reasons: 1. the evaluation of the creditworthiness of a client in the context of the granting of a credit or the recovery of a debt;
2. the requisition of justice;
3. the application of an international treaty ratified by a Member State of the WAMU, subject to reciprocity;
4. the monitoring of risks and the needs of the supervision of financial institutions by the empowered bodies;
5 any other reason approved by the Central Bank;
6. at the request of the client.
TITLE VIII. -CHAPTER I: CREDIT INFORMATION SHARING. -ENTITIES concerned by the sharing of information section 60.
Credit institutions and the SFD submitted to the control of the BCEAO and the Banking Commission of the WAMU must: 1. petition, for assessment of credit risk, the BIC in order to obtain a credit report before extending credit to a customer provided that free, prior and written consent has been given by the client concerned;
2 to be included in the record of each client seeking financial aid, the credit report;
3 share data on all loans in their portfolio.
SFD submitted mainly to the control of the Ministry responsible for Finance Republic of Senegal, common regional financing Institutions, regional or international financial Institutions exercising an activity of credit guarantee, commercial companies, concessionaires of public services, and any other entity or intermediary whose activities include the granting of credits or provide payment deferred options , may: 1. participate in the system for exchanging information on credit in the conditions laid down in article 60 of this Act;
2 petition the BIC in order to obtain a credit report under the conditions defined in section 60 of this Act.
CHAPTER II. -BANS various Article 62: it is forbidden to providers and users of data as well as the BIC of collect, keep, process, disseminate, show a report of credit, or any form, format, or medium, sensitive data.
The same prohibition applies to data on the balances and transactions of savings accounts, from checking accounts with the exception of the accounts of unpaid cheques, certificates of deposit of any kind of other deposits or other similar products.
It is expressly forbidden to the BIC and users provide or request, any type of information and credit report for marketing purposes or for purposes other than those provided for by this Act.
TITLE IX. -PENALTIES CHAPTER ONE. -ADMINISTRATIVE measures and disciplinary SANCTIONS section 63.
When, subsequently, either of a serious lack of vigilance, or deficiency, a supplier or a data user infringed the obligations under sections 41, 42, 43 and 44 of this Act, the supervisory authority shall act under the conditions laid down in the laws and regulations in force-specific.
Will notify, in addition, the Central Bank and the Prosecutor of the Republic.
When the BCEAO notes that a supplier or a data user, other than those falling within his authority or the Banking Commission of the WAMU, infringed the obligations referred to in the first paragraph of this article, it shall inform the authority of control of the said provider or user data.
When the central bank supervisory authority of the BIC is an offence under this Act and in particular articles 15 paragraph 2, 24 paragraph 1, 35 paragraph 2, 41 and 51, committed by a BIC in the territory of a Member State, it shall notify the Minister responsible for Finance of the State, and without prejudice to criminal or other sanctions incurred , pronounced one or more of the following disciplinary sanctions: 1. warning;
2. the blame;
3. the suspension or banning of all or part of the operations;
4. all other limitations in the exercise of the profession;
5. the suspension or the resignation of office of responsible leaders;
6. withdrawal of approval or authorization of installation.
The BCEAO may pronounce, in addition to disciplinary sanctions referred to in the first paragraph above, a financial penalty, the amount is fixed by the Central Bank statement.
The corresponding amounts are recovered for the benefit of the Public Treasury, in accordance with the legislation on the recovery of the claims of the State.
CHAPTER II. -Article 65 penal SANCTIONS.
Anyone who violates any of the prohibitions laid down in article 13 of this Act, shall be punished by imprisonment for one (1) year five (5) years and a fine of ten million (10,000,000) to twenty-five million (25,000,000) CFA francs or one of these two (2) penalties only.
Anyone who was sentenced for one of the provided in article 13 first paragraphs and 2 and in article 14 of this Act can be used, in any capacity whatsoever, by a BIC. The provisions of article 13 paragraphs 4 and 5, apply to this prohibition.
In the event of breach of this prohibition, the author is liable to the penalties provided for in article 65 of the Act and the employer, to a fine of twenty-five million (25,000,000) to fifty million (50,000,000) CFA francs.
Is punished by imprisonment of one (1) months to two (2) years and a fine of ten million (10,000,000) to one hundred million (100,000,000) CFA francs, or one of these two (2) sentences only, anyone who violated the provisions of article 15 (2) of this Act.
In case of recidivism, the maximum penalty is carried to five (5) years ' imprisonment and three hundred million francs CFA fine (300,000,000).
Article 68: Shall be punished by imprisonment for one (1) months to one (1) year and a fine of five million (5,000,000) to fifty million (50,000,000) CFA francs, or one of these two (2) penalties only, any officer or staff of a BIC who, acting on his behalf or that of a third party, knowingly provided the Central Bank, documents or incorrect information or objected to one of the controls referred to in articles 28 and 30 of this Act.
In case of recidivism, the maximum penalty will be increased to two (2) years ' imprisonment and one hundred million (100,000,000) francs CFA fine.
Is punishable by a fine of ten million (10,000,000) to one hundred million (100,000,000) francs CFA, all BIC who contravened any of the provisions of articles 14, 20, 21, 23, 24 and 26, without prejudice to the penalties provided for in article 64 of this Act.
The same penalty may be imposed against officials of the offence and any external auditor who has contravened the provisions of section 24 of this Act.
Are liable to the same punishment, persons who have taken or sold a stake in a BIC in contravention of the provisions of Community legislation relating to the freezing of funds and other financial resources in the fight against the financing of terrorism in the Member States of the West African Monetary and economic Union.
Shall be punished by imprisonment for one (1) months to two (2) years and a fine of ten million (10,000,000) to fifty million (50,000,000) CFA francs, the exercise without approval of the activity of BIC or the creation of the appearance of BIC through the use of the terms BIC in a trade name, company, or on a sign documents.
A BIC staff, without prejudice to the penalties provided for by the social legislation, or a user who intentionally provides information concerning a customer from files from BIC to an unauthorized person, is liable to a fine of two hundred thousand (200,000) to two million (2,000,000) CFA francs and an imprisonment of three (3) months to one (1) year or one of these two (2) penalties only.
An unauthorized person who obtains, voluntarily or fraudulent, the part of a member of the Board of Directors, officer, staff or third parties, information about a customer from a BIC or a Subscriber, and order to the client harm, an offence punishable by a fine of five hundred thousand (500,000) to five million (5,000,000) CFA francs and an imprisonment of three (3) months to one (1) year.
The public prosecutor shall notify the competent control authority of the prosecution against the data providers, data users or the BIC within its disciplinary authority.
TITLE x. - provisions has the Organization of collective discharge of liability Article 74 PROCEDURES.
When the withdrawal is BIC continued accreditation or is followed by the opening of a collective procedure for the clearance of the liabilities, it is wound up under the provisions of the Uniform Act organizing collective proceedings to discharge of liability.
TITLE XI. -TRANSITIONAL provisions and final Articles 75.
The provisions of this Act relating to the protection of personal data are without prejudice to those laid down by legislation of a Member State of the WAMU on the subject.
However, in the event of conflict between the provisions of this Act and those of any national legislation on the protection of the personal data, hereby shall prevail.
Instructions of the Central Bank shall specify the implementing of the provisions of this Act.
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