The Minister of Justice and Human Rights and the Minister of Finance in the DRC signed jointly in December 30, 2014 the interdepartmental Order No. 002/CAB/MIN/JGS &DH/014 and No. 243/CAB/MIN/FINANCES/2014 determining the form of the Articles of Association and the minimum capital of a limited liability company. According to this order, the following provisions must henceforth apply to single-member and multi-member SARL:
the Articles of Association are established by notarial deed or private agreement (article 1);
the share capital is freely set by the shareholders, taking into account the business (article 2);
the pay-in slip cleared by a credit or microfinance institution constitutes proof of paying up of shares and the deposit of funds from the paying up thereto (article 3);
all conflicting previous provisions are abrogated (article 4).
As a result of these provisions, are theoretically abolished in the DRC the obligations of notarized Articles of Association, of a minimum capital of 2.000USD (the equivalent to 1,000,000 FCFA) and of the certification by the Notary Public of the paying up of shares and the deposit of funds from the paying up thereto. These obligations would apply to date pursuant to articles 10, 311 and 314 of the AUSCGIE, but it is clear that the Congolese authorities have intended to make use of the possibility given by the same articles to the member States to have contrary national provisions.
Thus the removal measures taken certainly have some advantages (I). However, their implementation by an interdepartmental Order and the content of the Order itself entail significant weaknesses that we have pointed out (II). Given that the DRC is not the first OHADA member State  to take such measures, a comparative approach with the other member States having taken similar measures will help us strengthen our remarks.
As stated above, the DRC is not the first OHADA member State to implement more flexible national provisions regarding the creation of SARL according to articles 10, 311 and 314 of the AUSCGIE. Benin, Senegal, Ivory Coast, Togo, Burkina Faso and Guinea have done it before.
Being the first OHADA member State to ease in its jurisdiction the formalities of creating SARL , the Republic of Benin has decreed that the Articles of Association of the single-member or multi-member SARL are established by private agreement , that the shareholders freely determine the share capital, and that the funds from the paying up of shares are deposited in a bank or any other authorized credit or microfinance institution, the receipt of payment being sufficient to certify the paying up of shares and the deposit of funds.
Ivory Coast was the second, opting for the Articles of association of SARL to be established by notarial deed, by any deed providing guarantees of authenticity or by private agreement, enabling the shareholders to freely set up the amount of the share capital, and making optional the intervention of the Notary Public in making out the statement for subscription and payment of shares.
The third State was Senegal, which departed from the Uniform Act on the sole issue of the minimum share capital of the SARL, which is not left to the discretion of shareholders but is set to 100 000 CFA.
Then Togo, fourth of the group, took similar measures leaving the choice between notarial deed and private agreement for the constitution of SARL and making also optional the intervention of the Notary Public for the notarized statement of subscription and payment of shares. It sets the minimum share capital to 100 000 CFA.
It is then Burkina Faso, fifth of the group, which chose to leave to entrepreneurs the choice between notarial deed and private agreement for the establishment or amendment of the Articles of Association of SARL, the minimum capital being set at 100 000 FCFA and the intervention of the Notary Public becoming optional regarding the statement of subscription and payment of shares.
Finally it is Guinea which, in sixth place, has decided to leave the choice between notarial deed and private agreement drafted by a lawyer or registered legal counsel, and to make non-mandatory the deposit to the rank of the minutes of the Notary Public. The amount of share capital is freely determined by the shareholders, and the minimum nominal value of the shares is 100,000 GNF.
The importance of these flexible measures for the countries concerned is to positively affect the business climate by reducing what is perceived as possible difficulties in creating a company. The business climate being a factor of investment attractiveness, the perception for improvements thereto by means of quantified instruments in line with the World Bank Doing Business report is an added value for a State.
Therefore, the fact for the DRC to also take measures easing the conditions and formalities as for the creation of SARL, which happens to be the most common form of company in the country, is a significant factor of attractiveness and competitiveness in the OHADA region. It carries at the same time the following advantages for the country itself with regard to the improvement of the business climate:
the cut of time for creating a business: according to the estimations from the Doing Business 2015 report, the time for creating a business in the DRC is 16 days. This time includes the step at the Notary Public office, which is not negligible especially in the regions where One-stop Business Creation Office is not yet operational. By removing the requirement to authenticate the Articles of Association and the requirement of a notarial statement of subscription and payment for the SARL, the Congolese authorities would make entrepreneurs save time.
the reduction of cost for creating a business: notarial services don’t cost only in terms of time but also in terms of money. The removal for the SARL of notarial interventions will contribute to reduce the cost of creating a business, which has been estimated by the Doing Business 2015 report for the DRC to 30% of income per inhabitant.
the promotion of micro-enterprises: the 1,000,000 CFA (2,000 USD) minimum capital required to date for creating a SARL has been enclosed in the Doing Business 2015 report as a complication to creating a business, occurred after the entry into force of the OHADA law in the country. This difficulty has particularly hit micro-entrepreneurs, of which studies  showed that the capital ranges between 1000 USD and 5000 USD.
That said, the real scope of the impact of these advantages on the improvement of the business climate in the country will only be assessed in the next Doing Business report.
II.1. Fragility of the Order with regard to constitutional and legal powers of the Ministers
The fragility of the interdepartmental Order that concerns us is apparent from examination of the powers devolved to the two Ministers who have signed it. After recalling the principle regarding the powers and prerogatives in a State (II.1.1.), we examine what the countries that took these measures before the DRC have done (II.1.2.) before returning to what the DRC has done (II.1.3.) and concluding with proposals for a solution (II.1.4.).
II.1.1. The principle
In principle, the nature of the act to be taken by public authorities for any measure is determined by whether the concerned matter is related to the domain of the law or that of the regulations. These domains are generally delineated by the constitution of each country, which lists the matters for which the law lays down the rules, and gives to the other matters a regulatory nature.
Once a matter is classified as related to the regulatory domain, it is the rules of competence established by the constitution, the laws or their implementation measures that empower such or such other authority of the executive power to act according to his remit.
II.1.2. What the States that have taken the measures before the DRC have done
For the OHADA member States that eased the formalities of creating SARL before the DRC as listed above, their national measures have been taken by ordinance or decree, except in Senegal where they have been taken by a law. A quick check in the respective constitutions of these countries enables to verify the rules of allocation of powers that have governed the taking of these acts.
In Benin, in accordance with article 98 of the Law No. 90-032 of December 11, 1990 introducing the country's constitution, law is limited to determining the fundamental principles of the 'regime of property, of titles and of civil and commercial obligations '. It follows that the specific matter that engages us is of a regulatory nature, in terms of article 100 of the same Law. In other respects, in terms of article 54 of the said Law, it is the President of the Republic who exercises the regulatory power. That is why, acting in his capacity of head of State and head of Government, it was the latter who took the measures relating to the creation of SARL by the Decree No. 2014-220 of March 26, 2014 determining the modalities of creation of SARL. It should be noted that the decree was taken on the proposal of the Ministers whose sectors are concerned.
In Ivory Coast, the specific matter of corporations is also related to the domain of regulations, the law being limited to providing the fundamental principles in accordance with articles 71 and 72 combined of the Law N ° 2000-513 of August 1, 2000 introducing the constitution of Ivory Coast. The first paragraph of article 41 makes the President of the Republic the exclusive holder of the executive power, and article 44 confers him the prerogative to make regulations applicable on the whole Republic. This explains that it is by the Ordinance No. 2014-161 of April 02, 2014 relating to the form of the Articles of Association and the share capital of the limited liability company that the Ivorian President has implemented the measures under review, on a joint report of the Ministers in charge of the sectors concerned. Article 7 of the said ordinance has even stated that it will run as a law of the State.
In Senegal, an extensive interpretation of the " fundamental principles [...] of the regime of property, of titles and of civil and commercial obligations, of labor law, of union law and social security ' ranges the matter under review in the domain of law, under article 67 of the Constitution of January 22, 2001, while a restrictive understanding of the same wording could classify it in the domain of regulations under article 76 of the Constitution. The first interpretation certainly prevailed, as it is by the Law No. 17/2014 of April 15, 2014, setting the minimum capital of the limited liability company, that the concerned measures have been taken.
For Togo also, a broad interpretation of the wording " the regime of property, real titles and civil and commercial obligations " can range the matter that concerns us in the domain of law, under article 84 of the Constitution of the fifth Republic of Togo, while a restrictive understanding gives it a regulatory nature. The second interpretation prevailed, since it is by the Decree No. 2014-119/PR of May 19, 2014 determining the form of the Articles of Association and the share capital for limited liability companies that the measures concerned have been taken.
With regard to Burkina Faso, the law is limited to determining the fundamental principles of the 'the regime of property, titles , and civil and commercial obligations ' in accordance with article 101 of the Constitution of June 02, 1991 as amended to date. The matter of the present study is therefore of a regulatory nature, under article 108 of the Constitution. This explains that the measures under review have been taken by the Decree No. 2014-462/PRES/PM/MJ/MEF/MICA of May 26, 2014 establishing the national provisions applicable to the form of the Articles of Association and share capital for limited liability companies.
As for Guinea, finally, the law is also limited to determining the fundamental principles of the 'property, titles, and civil and commercial obligations ' in accordance with article 72 of the Constitution of May 7, 2010. It follows that the matter that occupies us falls within the domain of regulations, pursuant to article 74 of the Constitution. The regulatory power being held by the President of the Republic following the first paragraph of article 46 of the same text, it is the latter who has taken measures under consideration by the Decree No. D/2014/124/PRG/SGG of May 30, 2014, establishing rules applicable to the form and the establishment of Articles of Association, and the determining of the share capital of a limited liability company.
II.1.3. What the DRC has done
Contrary to the above countries which preceded the DRC, it has chosen to take its easing measures by a ministerial text, namely an interdepartmental Order. Although each country has its specificities and sovereignly defines the domains of competence of its public powers, this choice made by the DRC poses a problem within its own intern law, and constitutes a real weakness for the reform implemented which is yet judicious as to its substance.
We must first remind the rule that in the DRC, it is the articles 122, 123 and 128 paragraph 1 of the Constitution of February 18, 2006 as amended to date that define matters within the domain of the law and that of a regulatory nature. Afterwards, in accordance with the first paragraphs of articles 92 and 93 of the same constitution, it is the Prime Minister who has regulatory authority. As for the Ministers, they apply the Government's program in their departments under the direction of the Prime Minister. The respective attributions of the different Ministers are defined in article 1 of Ordinance No. 12/008 of June 11, 2012, determining the functions of the ministerial departments.
In this instance, the powers of the signing Ministers of the interdepartmental Order under review, namely the Minister of Justice and Human Rights and the Minister of Finance, are clearly specified respectively in sections B.4 and B.6 of article 1 of Ordinance No. 12/008 of June 11, 2012 indicated above.
For the Minister of Justice and Human Rights, section B.4 above limits his powers to the areas of justice and human rights. Regarding justice in particular, besides the functions related to the administration of justice, the management of specialized services and specific activities such as Notary Public function, cemetery police and others, the Minister exercises the powers conferred to him by the code of judiciary organization and competence, the law on the status of magistrates, and the criminal, civil and commercial, criminal procedure and civil procedure codes. Regarding the 'commercial code' here named, we emphasize that since the entry into force of OHADA law in DRC the commercial matter is governed by the regional uniform acts, and these do not confer any specific prerogatives to the Minister of Justice and Human Rights relating to the matter that occupies us.
As for the Minister of Finance, section B.6 above also restrictively lists his powers, which are especially the monetary, customs, tax, accounting and insurance of the State policy , monetary issues, banks, credit and microfinance institutions, the monitoring of the management of the Central Bank of Congo and particularly the situation of the general account of the Treasury, the mobilization of resources of the State and external resources, the authorization of expenditure of the State, etc.
It is clear that, although the interdepartmental Order under review invokes in its motivation the Ordinance No. 12/008 of June 11, 2012 determining the functions of departments, this ordinance does not give the Ministers concerned the jurisdiction to regulate on commercial companies in general, and on the creation of SARL in particular.
The consequence of this is that, in our opinion, the interdepartmental Order No. 002/CAB/MIN/JGS&DH/014 and No. 243/CAB/MIN/FINANCES/2014 of December 30, 2014 determining the form of the Articles of Association and the minimum capital of the limited liability company can validly be attacked in cancellation by any interested person, or be subject to an exception of unconstitutionality which can be raised by any litigant wanting to challenge the quality of a limited liability company established under the regime of the said Order. The application of this text is therefore entailed with non-negligible risks for the SARL to be created pursuant to its provisions, and the Congolese authorities must resorb these risks to prevent compromising the efforts for the improvement of the business climate.
Two options are envisaged to solve the problem. They depend on the two possible interpretations of section 8 of article 122 of the Constitution of the DRC above-mentioned.
Indeed, among the matters listed in article 122 indicated above as those for which the law lays down the rules, section 8 mentions "trade, the regime of property rights and the civil and commercial obligations". It is possible to interpret this formulation of the Constitution maker as including the legislation on commercial companies, and therefore to range this matter in the domain of the law. It is also possible to consider that the corporate law is a different matter from trade in general, and thereby give it a regulatory nature as in this case it would not be included in the enumeration of article 122 a quo.
It follows that, if it is the first interpretation that is retained, the solution will be the adoption of a law to effectively implement the removal, in creating a SARL, of a minimum capital requirement and the intervention of the Notary Public.
On the other hand, if it is the second interpretation that prevails, the Prime Minister will then have to take a decree on the issue, since, as we have pointed out above, it is he who has regulatory authority in accordance with article 92 of the Constitution.
Of course, the interpretation of section 8 of article 122 above-mentioned is within the competence of the Constitutional Court. This court will have to be consulted to determine which of the two options above will be applied.
II.2. No taking into account of the acts amending the Articles of Association
Article 1 of the interdepartmental Order under review is worded as follows:
"The Articles of Association of single-member or multi-member limited liability company are established by notarial deed or by private agreement ".
This formulation is silent as to the form of the amending acts of targeted Articles of Association, as to whether they will be also established by notarial deed, by private agreement, or by one of these two forms at the choice of the shareholders.
Yet, article 10 of the AUSCGIE to which the above provision intends to derogate provides for the form both of the establishment and amendment of the Articles of Association. It states indeed:
« Except contrary national provisions, the Articles of Association are established by notarial deed or by any deed providing guarantees of authenticity in the State where the company is based, filed with recognition of handwritings and signatures by all parties to the rank of the minutes of a Notary Public. They can only be amended in the same form ».
The above provision means in substance that, if member States do not provide otherwise in their intern law, the company’s Articles of Association are established and amended by notarized deeds. Therefore, the possibility of providing contrary national provisions links up with both the Articles of Association as well as their amending acts.
Consequently, since in the absence of contrary national provisions it is the article 10 above that applies, the fact for a member State to internally provide only for the appropriate form for the Articles of Association and remain silent on the amending acts automatically binds the latter to the regime of article 10. The amending acts will in this case be established by notarized deed, regardless of the form defined by the national provisions for the Articles of Association.
It is exactly in this situation that, in our opinion, the Order under review has placed the DRC. Since this text organizes only the form of the Articles of Association and remains silent regarding the form of the amending acts, the Articles of Association of SARL which have opted for private agreement may only be changed by notarized deed. This significantly attenuates the scope of the easing measures under review and is such as to question the advantages spoken highly of above.
Therefore, even when the problem of the fragility of the Order under review as explained above (II.1) will be solved, the measures of flexibility regarding the constitution of SARL will remain insufficient because of the lacuna that we note here regarding the amending acts of the Articles of Association. The new enforceable text which will be taken as per our suggestion should adopt a more complete formulation, stating that the Articles of Association of single-member or multi-member limited liability company will be established and amended either by notarial deed or by private agreement.
We acknowledge that there is another way of interpreting Article 10 of the above specified AUSGIE that we do not share. This interpretation understands the sentence " they can only be amended in the same form " as also related to the form provided for by contrary national provisions, and says that the amending acts will be established following the same form organized internally for the Articles of Association.
Our objection to such an interpretation is that it would mean that the Community legislator would have limited the ability that it leaves to member States to take contrary national provisions, and would have let them organize only the form of the Articles of Association and imposed that the amendment of the latter must be in the same form. This would make it impossible for a State to provide internally, for example, that the Articles of Association can be established by notarial deed and amended by private agreement. This does not appear to be the spirit of the text.