DEMOCRATIC REPUBLIC OF CONGO Law and Practice Contributed by: Salvatrice Bahindwa, Concorde Akonkwa and David Djunga, LegalterLaw
7. Foreign Investment/National Security 7.1 Applicable Regulator and Process Overview The DRC has established a system for controlling for - eign investments through various regulatory mecha - nisms that take into account national security and strategic interest considerations. Specifically, certain sectors deemed strategic or sen - sitive are expressly excluded from the scope of the 2002 Investment Code, which otherwise provides benefits and protections to foreign investors. These sectors notably include the production of military armaments and related equipment, explosives manu - facturing, and the assembly of military and paramili - tary equipment for security services. Recently, a fourth department called the “Department of Economic and Financial Intelligence” (DIEF) was created within the National Intelligence Agency. This department is responsible for the research, investi - gation, inquiry, collection, exploitation, interpretation, dissemination, and monitoring of economic, financial, digital, and technological intelligence relevant to state security, both nationally and internationally. This service generally operates by controlling exist - ing companies or summoning individuals in cases of suspected investment activities that threaten state security. 7.2 Criteria for National Security Review The evaluation criteria include the following key con - siderations. • Impact on national sovereignty – assessing how an investment might affect the state’s ability to main - tain sovereign control over its strategic resources and infrastructure. • Proximity to sensitive sites – scrutinising invest - ments near military facilities, critical government sites, or strategic natural resources. • Transfer of sensitive technologies – evaluating the risk of technology transfers that could have dual- use applications, both civilian and military.
The review is based on a thorough analysis of the finan - cial and commercial data of the companies involved, including balance sheets, production, and resources deployed. The decision-making process requires dual validation, with the technical opinion of the Competition Commission followed by the minister’s decision, after Based on the Competition Act, the competent author - ity may require the following corrective measures and commitments. • Order the companies to modify or complete the concentration operation in order to preserve com - petition. • Condition the implementation of the operation on requirements that compensate for any harm to competition through economic and social contribu - tions. consultation with the sectoral minister. 6.3 Remedies and Commitments • In cases of abuse of a dominant position or eco - nomic dependence, order the modification, com - pletion, or termination of the agreements that have led to such abuses. These measures are taken by the minister responsible for the economy, following the opinion of the Competi - tion Commission. 6.4 Antitrust/Competition Enforcement Based on the Competition Law framework in the Dem - ocratic Republic of Congo: • the Minister of Economy, upon recommendation from the Competition Commission, may order the company or group of companies involved to modify, complete, or terminate, within a specified timeframe, any agreement or act that has led to abuses resulting in the concentration of economic power; and • the Competition Commission may also propose to the Minister of Economy the temporary closure of companies found to be in violation. Decisions made by the Minister of Economy may be subject to an administrative appeal before the supe - rior administrative authority (the Prime Minister) and to judicial review before the administrative courts.
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