Commercial companies (excluding unregistered companies) must be registered with the Register of Commerce (RCCM). Commercial companies recognized by the Unified Commercial Companies Law:

1. LLC (SOCIÉTÉ À RESPONSABILITÉ LIMITÉE – SARL) (LTD)

Article 309 of the Uniform Commercial Companies Law states that a limited liability company is a company in which partners are liable for the company’s debts only to the extent of their respective contributions and the rights of partners are represented by the number of shares they hold in the company. A limited liability company can be incorporated by an individual or legal entity or between two or more individuals or legal entities.

There is no minimum share capital in Congo.

The company is commanded by one or more natural persons (general) appointed in the articles of association or a subsequent report of the organization.

SARL is more suited to small businesses.

2. Limited liability company (SOCIETE ANONYMOUS) (SA)

Article 385 of the Uniform Commercial Companies Law states that a public limited company is a company in which shareholders are liable for the company’s debts up to their contributions, and shareholders’ rights are represented by shares. The main difference between a limited liability company and a public liability company is that a civil liability company can apply for capital to the public.

The par value of shares is freely set in the articles of association. If a company wishes to draw public attention to capital, the minimum share capital of the company must be 100 million CFA francs.

Unlike other forms of business, shares in a public limited company cannot represent contributions from partners.

A public limited company is managed by a general manager (Administrateur général) or a board of directors (conseil d’administration) depending in particular on the number of shareholders.

3. Simplified joint-stock company (SOCIÉTÉ PAR ACTIONS SIMPLIFIES) (SAS)

The revised Uniform Business Companies Act created SAS. This form of company [SAS] offers much more flexibility for shareholders and managers than a public limited company, which until now has been the most commonly used vehicle for foreign investment in Africa. With the introduction of SAS, OHADA benefits from a type of company more suitable for investment operations than those found in other countries with similarly dynamic economies.

SAS can be incorporated without a minimum share capital requirement and have legal entities and individuals as shareholders. Its management method is flexible and can be adapted to the needs of shareholders. The Uniform Commercial Company Law provides that, subject to mandatory rules (e.g. representation of the company by the president, exclusive authority of the general meeting of shareholders to make certain corporate decisions, such as decisions regarding annual accounts and profits, share capital, and company reorganization), the SAS articles of association may freely provide for the organization, management and functioning of the company. It includes the ability to delegate general managers, deputy general managers, an executive committee, and a supervisory board.

This flexibility will allow for the customization of management practices tailored to different investor profiles in private equity deals in joint ventures between a local partner and a foreign partner.

4. Not registered company (PARTICIPATION IN SOCIÉTÉ EN)

Section 114 of the Revised Uniform Commercial Companies Law provides that partners may agree not to register a company. An unregistered company (which may be a joint venture) is not a legal entity and is not subject to registration with the RCCM.

5. The company established (DE FACTO AND A DE FACTO COMPANY)

Section 864 of the Revised Uniform Business Companies Act states that an organization is considered a de facto company when two or more individuals or entities act as partners without forming one of the companies recognized by the Revised Uniform Business Companies Act. If an entity is recognized as a de facto company, the partnership rules (sociétés en nom collectif – SNC) set out in the Revised Unified System of Business Companies Act apply to the object.

If an organization is recognized as a de facto company, the partnership rules (sociétés en nom collectif – SNC) will apply to that organization.

6. Branch 

Article 116 of the Uniform Laws on Commercial Companies states that a branch is a commercial or industrial enterprise or service owned by a company or natural person, which receives certain independence of administration. A branch can be established by a company or an individual.

A branch does not have a separate legal entity separate from the company or owner. It is governed by the national law of the member state. However, it must be registered with the Commercial Register.

Previously, the Unified Companies Law provided that branches owned by foreigners must be transferred to a local company no later than two years after the opening of a branch unless the Minister of Commerce ordered that this requirement be canceled. Thus, enterprises could obtain an indefinite extension of such a refusal after receiving permission from the relevant minister or delegated the administrative authority, despite the significant local activity. However, the said waiver will now be limited to two years (Article 120) and in case of violation of the aforementioned obligation, there will be penalties.

In practice, the transformation of a local branch into a subsidiary can be realized through:

• contribution of the assets and liabilities of the office towards increasing the capital of the company that benefits from the contribution; 
• sale of branch assets, whereby a pre-existing or newly incorporated local company acquires the assets and pays the appropriate price or records the debt for the same amount.

It is important to note that the tax costs of such transactions can be very crucial and, therefore, such transactions should be carried out with the help of experienced lawyers.