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Main contributions of the Law n° 19-20

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In the continuity of the efforts made by Morocco for the modernization of the legal arsenal in corporate law, the law n°19-20 has been promulgated in the Official Gazette ” BO ” N°7006 of July 22, 2021 in order to modify and complete the law 17-95 on public companies and the law n° 5-96 on the partnership, the limited partnership, the partnership limited by shares, the limited liability company and the joint venture company, published.

The main changes in the law are based on the following points:

Main News Changes made
Law 17-95 on Public Companies “SA
1. The representation of women and men in the Board of Directors and supervisory board of Publicly listed company.

 

Articles: 39, 83, 105-1, 105-2, 105-3, 105-4 and 105-5

 Publicly listed company must ensure

  • 30% representation of women as of January 1, 2024
  • 40% representation of women as of January 1, 2027

 

  1. In the event of non-compliance with these provisions, directors’ fees may not be paid to members of the Board of Directors or the Supervisory Board until their composition is regularized.
  2. In the case of a Board of Directors or Supervisory Board composed of no more than 8 members, the difference between the number of members of each sex may not exceed two (2).
  3. The technical committees provided for in articles 51, 76 and 106 bis of law n°17-95 must include at least one representative of each sex
2. Improving the financing capacity of public companies by facilitating the use of bonds

 

Articles: 293, 294, 296 and 298

Companies with less than two years of existence may issue bonds provided on condition:

  • That the capital is fully paid up;
  • That the issue be preceded by a verification of the assets and liabilities by an auditor;
  • That the placement of the issue be made exclusively with qualified investors as defined by the laws and regulations in force.
3. Involvement of delegated general manager and shareholders in the obligation to communicate regulated agreements to the Chairman

 

Article: 58

 The delegated general manager and the shareholders concerned are also required to inform the Chairman of the Board as soon as they become aware of a regulated agreement and may not take part in the vote on the authorization requested.
4. Clarification of Articles 300 to 302 of the Public Limited Companies Act concerning the representative of the bondholders’ group ;

 

Articles: 300, 301, 301-bis and 302

 The provisions of articles 300 to 302 of the law, relating to the representative of the body of bondholders, have been repealed and replaced by other articles aimed, among other things, at strengthening the role of the representative of the body of bondholders by clarifying :

  • the criteria for its appointment and the qualities required for its appointment (must justify financial and legal expertise while being independent of the company)
  • the terms of its remuneration
  • its mission (drawing up, if it deems it necessary, 15 days following each anniversary date of the bond issue, a report for the bondholders describing, in particular, the actions and diligence carried out in the context of its mission to safeguard the interests of the bondholders)

 
5. Introduction of a rotation system for auditors ;

 

Article: 163

 Establishment of a rotation system for the renewal of the mandate of the auditors within Publicly listed companies for a period not exceeding 12 years with a void period of 4 years following the end of their mandate
6. Extension of the scope of the provisions allowing remote meetings by means of videoconferencing to all decisions

 

Articles: 50, 110, 111 and 131-bis

 Possibility of recourse, in a general way, to the means of videoconference for the remote holding of all the meetings of the bodies of governance of the Public Companies as well as their General Assemblies in the respect of the provisions of article 50 bis of the law 17-95.

Unless otherwise provided for in the articles of association. These are inapplicable when exceptional circumstances require it and are declared by the public authorities.

 

Any shareholder may also vote by correspondence using a form, when exceptional circumstances require it and are declared by the public authorities, in accordance with the laws and regulations in force.

 
7. Introduction of the obligation to hold meetings of the Board of Directors and the Supervisory Board at least twice a year

 

Articles: 73 and 90-bis

 The Chairman of the Board of Directors and the Supervisory Board must convene the boards at least twice a year.
8. Repeal of Title XV: on the simplified publc company between companies

 

Articles: Title XV (425 to 440)

 The provisions relating to the simplified public company between companies have been repealed and replaced by the creation of a new form of company
Law 5-96 on the partnership, the limited partnership, the partnership limited by shares, the limited liability company and the joint venture company
9. Institution of a new form of public company called “Société par Action Simplifiée

Articles: Title III bis (articles 43-1 to 43-15).

 Introduction of the simplified public company and the simplified public company with a sole shareholder a type of company that favors contractual freedom and introduces flexibility in the operation and management of the company.

 

The legal system of the check in Morocco

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A check is an instrument by which the drawer disposes of his funds deposited with the drawee (which must be a bank), by making sight withdrawals, either to himself or to the beneficiary.

The check puts in relation three persons, namely:

  • The drawer: the person who issues the check;
  • The drawee: the bank that must pay;
  • The beneficiary: the person who must receive the payment

1– Conditions for the creation of the check:

The check, like all commercial instruments, is a written document subject to the formalities of the law of exchange relating to the information it must contain.

The check must contain a certain number of mandatory statements:

  • Name: The cheque must contain the word “cheque”, inserted in the text of the document itself and expressed in the language used for the drafting of the document.
  • Mandate for payment of a specific sum: According to paragraph 1 of article 239 of the commercial code, the sum is generally written in letters and figures. In the event of differences between the two mentions, it is the sum carried in letters which prevails.
  • Name of the drawee: This is the name of the banking institution.
  • Place of payment: The check must indicate the place where it is payable.
  • Date and place of creation: The cheque must bear an indication of the place where it is established as well as the date of the day it is written.
  • Name and signature of the drawer: The person who issues the cheque must sign it. The signature must be handwritten.

2- Payment of the check:

a) Presentation for payment:

The presentation for payment of the check can be done from the day of the issue since it is payable at sight. The bearer has a certain period of time during which he must present the check for payment or lose his right to recourse to the exchange.

The time limits are 20 days from the date of issue for checks issued in Morocco, and 60 days for checks issued abroad.

After the expiry of the presentation period, the drawee is still required to pay the bearer under penalty of a fine of 5,000 to 50,000 dirhams.

b) Limitation periods:

Article 259 of the Commercial Code provides for three limitation periods depending on the parties involved:

  • For the actions of the bearer against the endorsers, the drawer and the other debtors, the limitation period is 6 months from the expiration of the presentation period;
  • For actions of the various obligees against each other, the limitation period is also six months from the day on which the obligee has repaid or from the day on which he himself has been sued;
  • Finally, for the action of the bearer against the drawee, the limitation period has become one year from the expiration of the presentation period.

After this period, the bank may refuse payment of the check, but the claim is not extinguished and the bearer retains recourse against the signatory.

The check will then be considered as an acknowledgement of debt that can be used as evidence to initiate an action for payment.

c) Blocking the payment of a cheque:

According to Article 271 of the Commercial Code, the drawer may only block the payment of the check, and thus prevent payment of the check given to its seller, in the following cases:

  • Loss of the check;
  • Theft of the check;
  • Fraudulent use of the check;
  • Forgery of the check;
  • Declaration of the bearer in a state of receivership or judicial liquidation

The drawer must immediately confirm his opposition to payment in writing and support this opposition with any useful document.

Domiciliation in Morocco

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The domiciliation of the company is a fixed-term contract by which the domiciliary puts the head office of his company at the disposal of a physical or legal person called domiciled to establish the head office of his company.

In general, the company’s activity is not necessarily based in the address of the domiciliation, it will only be an address for correspondence with administrations and third parties.

The law n°89-17 modifying and completing the law n°15-95 forming the Commercial Code has established a complete legal framework for the relationship between the domiciled person and the domiciliary, in particular articles   544-1 to 544-11, in order to fill the legal vacuum and the obsolete regulations of the instruction n° 1421 of the Ministry of Justice of 2003.

The law provides that any physical person may use the address of his or her residential premises for the exercise of a commercial or professional activity, provided that there is no legislative provision to the contrary and that the exercise of such an activity is personal and does not require the reception of either customers or goods.

The major innovation is that the domiciliation contract is concluded for a renewable period by tacit agreement, and established according to a model set by regulation.

However, the law prohibits the domiciliation of legal entities with their registered office in Morocco and also prohibits the choice of more than one domiciliation office (physical person or legal entity).

In this context, the parties involved in the domiciliation contract are required by the following obligations under Articles 544-4 and 544-6, under penalty of liability:

  • The obligations of the direct debit agent:
    1. To provide the person domiciled with premises equipped with means of communication;
    2. Ensure the identity of the person domiciled;
    3. Keeping documents relating to the company’s activity and the obligation to update them;
    4. Keep documents that can identify the person domiciled for at least five years after the end of the domiciliation relationship;
    5. Maintain a file on each resident containing authentication documents;
    6. Ensure that the domiciliary is registered in the trade register within three months of the date of conclusion of the domiciliation contract;
    7. Communicate to the services in charge of taxes and the General Treasury of the Kingdom, and if necessary, the Customs Administration, the list of persons domiciled during the past year and this, before the date of January 31 of each year;
    8. Notify the tax authorities and the General Treasury of the Kingdom, and where applicable, the Customs Administration, within a period not exceeding fifteen days from the date of receipt of the registered letters sent by the tax authorities to the persons domiciled, of the impossibility of delivering them;
    9. Inform the clerk of the competent court and the tax services and the General Treasury of the Kingdom, and if necessary, the Customs Administration, of the end of the direct debit contract or its early termination within one month of the date of termination;
    10. To communicate to the judicial commissioners and the public debt collection services with a mandate of execution, the information likely to enable them to contact the person domiciled;
    11. To ensure the confidentiality of information and data relating to the person concerned.

In the event of failure to comply with certain obligations set out above, the domiciliary shall be jointly and severally liable for the payment of taxes and duties relating to the activity carried out by the domiciliary.

 

  • The obligations of the domiciled person:
  1. Make a declaration of any change to the domiciliary;
  2. Give the domiciliary all the registers and documents provided for in the legislative and regulatory texts in force and necessary for the performance of its obligations;
  3. Inform the domiciliary of any probable dispute or matter in which the domiciliary is involved in relation to its business activity;
  4. Inform the clerk of the competent court and the tax authorities, the General Treasury of the Kingdom and, if applicable, the Customs Administration, of the termination of the domiciliation within one month of the date of the end of the contract or its early termination;
  5. To give a power of attorney accepted by the domiciliation contract to receive all notifications on its behalf;
  6. Mention his status as a domiciliary of the domiciliary in all his invoices, letters, order forms, price lists, prospectuses and all commercial documents intended for others.
  • Offences and fines :

 

Legal reference of the offence Nature of the offence Amount of fine
Art 544-9 Failure to declare the activity (receipt required before starting the activity) Between 10.000 and 20.000 DH
Art 544-10 Non-compliance with the provisions of Article 544-6

 

 Between 5.000 and 10.000 DH
Art 544-11 Non-compliance with the provisions of Articles 544-4 and 544-8 Between 10.000 and 20.000 DH

Tax Framework for Temporary Cessation of Business Activity

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The Moroccan Finance Act 2018 established a simplified tax framework for cases of temporary cessation of business activities applicable to companies (corporations or individual professional) subject to corporation tax or income tax in respect of professional income determined according to the regime of actual net income or the regime of simplified net income.

Tax incentives:

This framework allows eligible companies to lodge a declaration of temporary cessation of activity for a period of 2 years, renewable for a single year, with:

  • The exemption from payment of the minimum amount of the minimum contribution relating to the years concerned by this declaration (i.e. 3,000 MAD for companies and 1,500 MAD for professionals) ;
  • A reduction in the VAT declaration obligations through the filing of only one declaration per year concerning the turnover relating to the previous year, possibly accompanied by the payment of the corresponding VAT and this, before the end of the month January of each year.

Tax obligations:

Eligible companies can subscribe to the declaration of temporary cessation of activity, in the month following the closing date of the last financial year of their business activity. However, these companies must continue to file their tax returns for corporation tax and income tax in respect of professional income.

In the event of resumption of activity during the period covered by the aforementioned declaration, the concerned taxpayer must notify the administration through an information letter within a period not exceeding one month following the resumption of activity. The tax payer should also proceed to the regularization of his tax situation for the financial year concerned under the conditions of common tax law.

Legal references: 

Articles 144-I-C-3°; 150 bis ; 221-I et 232-VIII-17° of the Moroccan Tax Code

2021 Tax incentives for real estate investment trusts (REITs)

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The Moroccan Finance Act 2017 has introduced a derogatory tax regime regarding real estate contributions in kind to REITs. Indeed, this specific taxation mode expressly derogates from articles 8 and 33-II of the Moroccan Tax Code which define the notions of taxable income. This regime is temporary applicable to contributions made until December 31, 2022.

Previously, this regime was applicable to contributions made until December 31, 2020. However, the 2021 Finance Act has provided for an additional two-year period for the application of the transitional measure to encourage real estate contributions to REITs.

Thus, the article 247-XXVI of the Moroccan Tax Code provides that taxpayers who proceed to the contribution of real estate registered in their fixed assets to a REIT are not taxed on the net capital gain realized as a result of the said contribution, subject to the following conditions:

  1. Filing of a specific declaration at the tax administration within 60 days;
  2. Evaluation of the contribution by a certified public accountant;
  3. Commitment in the contribution deed to pay the tax on the capital gain at the time of sale of the REIT’s securities;
  4. The contribution must be made before December 31, 2022 (Finance Act 2021).

If these conditions are satisfied, the company having made the contribution, benefits at the time of the total or partial disposal of the REIT shares, from a 50% reduction in corporate tax on the capital gain realized following the contribution of real estate to the REIT.

This leads to the computation of the tax at the time of the recognition of the capital gain on the contribution, and its payment at the time of the total or partial transfer of REIT shares.

Furthermore, in accordance with the provisions of article 6-I (A and C) of the MTC, the REIT benefit from:

  • The total and permanent exemption from corporate income tax for activities carried out and authorized by law n°70.14 regulating REITs.
  • Permanent exemption from withholding tax on dividends received by REITs as well as on interests paid to REITs.

The benefit of the above-mentioned exemptions was subject to the respect of certain conditions provided by article 7-XI of the MTC, namely:

  1. To evaluate the elements contributed to these organizations by a certified public accountant;
  2. To keep the real estate contributed to the said REITs for a period of 10 years minimum as from the date of the said contribution;
  3. To distribute :
    • 100% of the dividends and income from equity securities;
    • 100% of the income from fixed-income investments;
    • At least 60% of the capital gain realized on the sale of securities;
    • At least 85% of the result of the fiscal year relating to the rental of buildings constructed for professional use. The 2021 finance act has completed these provisions by specifying that REITs which distribute at least 85% of the result of the financial year relating to the rental of buildings constructed for residential use are also eligible for the above-mentioned exemptions.

Legal references:

  • The articles 6-I (A et C), 7-XI et 247-XXVI of Moroccan Tax Code (MTC)
  • The law 70-14 relating to OPCI

Registration duties of capital increase operations

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The Finance Act 2018 has introduced a registration duty exemption for acts of capital increase realized by cash, by incorporation of shareholder’s current account or by capitalization of profits or reserves.

However, the proportional rate of 1% remained applicable to some capital increase operations carried out by:

  • Contributions in kind;
  • Incorporation of liquid and payable debts on the company (other than those appearing in shareholder’s current account);
  • Incorporation of capital gains resulting from the revaluation of the company’s assets in case of merger.

The Finance Act 2021 has reduced the registration duties applicable to acts of capital increase carried out through the above mentioned operations. This rate is now 0.5% instead of 1%, it is applied on the amount or value of the contribution, including the share premium.

It should be noted that merger operations are subject to the common law regime for contributions carried out at the capital increase of companies. However, in the event of a merger by absorption, the deed recording the capital increase of the absorbing company is subject to registration duty at the rate of 0.5%, calculated on the amount or value of the contribution, including the merger premium and after deduction of the liabilities encumbering the contribution borne by the absorbing company.

The elections of the employee delegates

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Following the launch of the Election of delegates employees 2021, which are scheduled to take place between 10 and 20 June 2021, all establishments with 10 or more employees are required to organise employee delegate elections in accordance with the provisions of the Labour Code.

However, workplaces with fewer than ten permanent employees may adopt the system of an employee representative by written agreement.

The employee delegates are the employees’ spokespersons to the head of the company, and their tasks are:

  • To represent the staff before the employer and to inform him of individual complaints relating to working conditions arising from the application of labour legislation, the employment contract, the collective labour agreement or the internal regulations;
  • To refer these complaints to the labour inspector in the event that disagreement persists;

The employee delegates are elected for a fixed term of six years by the company’s employees of both sexes, divided into two colleges, labourers and employees on the one hand and managers and similar staff on the other.

  1. Establishment of electoral lists

The employer is obliged to draw up and post the electoral lists of all employees who meet the conditions listed in article 430 of the Labour Code by 30 April 2021 at the latest. These lists must be signed jointly by the employer and the labour inspector.

Within eight days of the posting of the electoral lists, any employee may request his or her registration, as well as the registration of an omitted voter or the removal of a person who was wrongly registered, from 30 April 2021 to 7 May 2021.

The employer is obliged to respond to employees’ complaints about the electoral lists within 10 days, from 30 April 2021 to 9 May 2021, and these complaints are recorded in a register made available to the voters by the employer, which indicates the outcome of the complaints.

The employees must lodge an appeal against the electoral lists by means of a petition registered free of charge at the court of first instance against the electoral lists from 10 May 2021 to 17 May 2021.

  1. Collection of Nomination Lists

The Candidates must file nomination lists, against receipt, with the employer who must sign a copy between 18 May 2021 and 01 June 2021.

  1. Constitution of the electoral commission and polling station

Following the collection of the lists of candidates, the electoral commission is established, composed of the employer or his representative and a representative of each of the lists of candidates.

This commission is in charge of studying and verifying the lists of candidates and to designate the members of the polling station or stations. The mission of the polling station is mainly to ensure the smooth running of the election.

The employer is required to post the lists of candidates in the places provided for this purpose in accordance with Article 455 of the Labour Code, and this from 02 June 2021 until 09 June 2021.

  1. Organization of the electoral operations.

The employer is obliged to proceed to the elections of the employees’ delegates between 10 June 2021 and 20 June 2021, by proportional representation according to the rule of the highest average and by secret ballot.

The results of the elections are validly proclaimed in the first round when the number of voters is at least equal to half of the registered voters. Otherwise, if the number of voters is less than half of the registered voters, a second round of voting is organized within a maximum of 10 days.

The results of the elections are posted after the counting of the votes in the places provided internally for this purpose.

In conclusion, it is to be reminded that the employer is obliged to organize the elections of the staff delegates in the modalities and conditions presented above, the non-respect of this obligation subjects the employer to a fine of 25.000 to 30.000 dirhams, doubled in case of recidivism.

Tax incentive of mobile payment for individual professionals

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The Finance Act 2020 has introduced a 25% tax rebate on the taxable basis corresponding to the mobile payment turnover made by individual professionals working under the simplified net income regime or the lump sum benefice regime.

This tax benefit aims to reduce the payments in cash and to foster payment through mobiles. It allows the following operations to be carried out:

– Money transfers;

– Payment of commercial transactions;

– Cash withdrawal and deposits.

In order to stimulate this payment method, the Amending Finance Act 2020 has replaced the above-mentioned rebate with provisions which stipulate that the turnover generated through mobile payment is not considered for five consecutive years when determining:

– The taxable basis of the income tax due by professional taxpayers working under the Simplified Net Income regime (RNS) or the Unique Professional Contribution regime (CPU);

– Thresholds for the application of income tax according to the above-mentioned regimes;

– Thresholds for application of VAT.

This measure is applicable for income declarations filed for the years 2020 to 2024.

Legal reference:

Article 247 ter of Moroccan Tax Code (MTC).

Tax regime for restructuring operations of intragroup companies

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In order to facilitate restructuring operations, The Finance Act for FY2017 introduced a tax incentive scheme in favor of intragroup operations related to reallocation of production means and transfer fixed assets.

According to this regime completed by the Finance Act 2020, the transfer of fixed assets can be carried out between companies subject to corporate income tax, except for real estate investment trusts, without affecting their taxable income, if the said transactions are carried out between the members of a corporate group, constituted at the initiative of a “parent company” which holds continuously, directly or indirectly, at least 80% of the share capital of the said companies.

Fixed assets concerned:

  • Tangible fixed assets (Land, construction, office equipment…);
  • Intangible assets (Patents, trademarks, commercial funds…);
  • Financial fixed assets (Equity securities, fixed loans…).

Conditions of the transfer:

  • The fixed assets subject to the transfer must be registered in the fixed asset of the companies concerned by the transfer operations.
  • The transfer of fixed assets is any operation resulting in a transfer of ownership of tangible, intangible and financial fixed assets between companies members of the same group;
  • The fixed assets must not be sold to another company that is not part of the group and must not be removed from the fixed assets of the companies to which they have been transferred;
  • The companies concerned by the transfer operations must not leave the group.

Consequences:

  • The transferred fixed assets, according to the aforementioned conditions, must be evaluated at their actual value on the day of the transfer and the resulting capital gain is not taken into consideration for the determination of the tax result of the companies having carried out the said transfer.
  • The companies which benefit from the transfer of fixed assets can deduct from their tax result the depreciation charges of these fixed assets only up to the limit of the depreciation calculated on the basis of their original value booked at the level of the group company which carried out the first transfer operation.

In order to carry out the operations of transfer of fixed assets (tangible, intangible and financial), and to benefit from the tax incentive regime for intra-group restructuring operations, the following declarative obligations must be respected:

For the parent company:

  • File a specific application before its local tax administration within three months of the opening date of the fiscal year in which the option for the tax incentive is made;
  • Accompany this application with a list of the companies that are members of the group, specifying the name, the fiscal ID and the address of these companies as well as the percentage of their capital held by the parent company in order to join the group;
  • Produce a copy of the agreement of the companies to join the group.

In the event of a change in the composition of the group, the parent company must attach to its tax return for each financial year a statement listing the new companies integrated the group, with a copy of the deed recording their agreement, as well as the companies that left the group during the previous financial year.

In case of transfer operations, the parent company must also produce a statement clarifying all the operations of transfer of fixed assets carried out between the companies members of the group during a specific fiscal year, as well as the destination of the said fixed assets after the transfer operation, and this within a period of 3 months following the closing date of the fiscal year during which the transfer was carried out or the one during which a change in the destination of the said fixed assets was operated.

For members of the corporate group:

When a company becomes a member of the group, it must file a statement showing the group to which it belongs, the parent company that formed it and the percentage of share capital held by the parent company and the other companies in the group, within three months of the opening date of the first fiscal year in which it joined the group.

The companies having transferred the fixed assets within the group must file a statement specifying their original value appearing in the assets of the company of the group having carried out the first operation of transfer as well as their net book value and their real value at the day of the transfer and this, within the three months following the closing date of the fiscal year of the transfer.

The companies having profited from the transfer of the aforementioned fixed assets must file within three months following the closing date of each fiscal year, a statement specifying the original value appearing in the fixed assets of the company of the group having carried out the first operation of transfer, the net book value and the actual value at the date of the transfer as well as the deductible depreciation and those added back into the taxable result.

If a company leaves the group or if a fixed asset is withdrawn or sold to a company that is not part of the group, the local tax administration must be notified by the concerned company within three months following  the closing date of the financial year concerned.

Legal references:

Article 161 bis-I of Moroccan Tax Code (MTC)

Article 20 bis of Moroccan Tax Code (MTC)