DRC Law and Practice Contributed by: Serge Nawej Tshitembu, Xavier Huberland, Daniel Yamba and Katerina Papachristou, ProximA International
joint venture must be assessed from two com - plementary legal angles: competition law and company law. The Law on Pricing Freedom and Competition (Law No. 18/020 of 9 July 2018) establishes a national merger control regime that requires prior notification of economic concentrations when certain thresholds are met. These include com - bined turnover in the DRC (to be set by regula - tion), a joint market share of at least 25%, or any transaction likely to create or reinforce a domi - nant position. The notification is submitted to the Competition Commission, with a copy to the Ministry of National Economy, and a technical opinion is issued within 45 days. In the absence of a formal decision or request for additional information within that period, the law provides for the possibility of tacit approval. Sanctions for failure to notify include fines, annulment of the transaction or structural remedies. At the same time, OHADA law, and more spe - cifically AUSCGIE, governs the legal formalities applicable to mergers, partial contributions of assets and similar corporate reorganisations. These transactions require: • approval by the relevant corporate bodies; • drafting of a merger or contribution agree - ment; • filing with the commercial registry; and • legal publication and, where applicable, audi - tor certification and mechanisms to protect minority shareholders. While OHADA does not impose market thresh - olds, it ensures that transactions are legally val - id, transparent and enforceable under corporate law. Consequently, a concentration might com - ply with competition law requirements but still be
unenforceable if the OHADA procedures are not properly followed – and vice versa. In addition to these frameworks, sector-specific regulations impose further conditions for trans - actions involving a change of control. For exam - ple: • in the mining sector, Article 185 of the Mining Code (as amended) requires prior authori - sation from the Ministry of Mines for any direct or indirect transfer of control, including changes at shareholder level; • in the hydrocarbons sector, similar approval requirements apply under Articles 55 and 56 of the Hydrocarbons Law, particularly when rights or contracts are being assigned or restructured; and • in agriculture, especially for large-scale land leases or agribusiness operations, a change of control may trigger a new authorisation under the Land Law (Law No. 73/021 of 20 July 1973) and regulations governing strategic resources, particularly when tied to foreign investment or customary land concessions. In practice, it is essential to approach any trans - action involving a change of control or combina - tion of undertakings with a co-ordinated legal and regulatory strategy. This includes prior legal review, preparation of governance documents, alignment of merger control filings with OHADA corporate processes, and notification or clear - ance from sectoral authorities where required. For cross-border groups or projects involving sensitive sectors, early engagement with both the Competition Commission and the relevant line ministries is strongly advised – even in the absence of formal thresholds or published guid - ance.
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