UPDATE: Algerian Legal Research

Vincent Ramette holds an MA in Business Law, and is an Expert in Business Process Management, Lean Certified.

NOTE: The content of this article is for general legal information purpose. It is not exhaustive and does not intend to dispense legal advice. Attention is drawn to the fact that some texts may not be published and that official authorities or agencies should be consulted before undertaking any action.

Published May/June 2018

(Previously updated in February 2013)

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1. Introduction

The Algerian legal corpus can be divided into the traditional categories of public or private law, national or international law according to the legal nature of the legal entities concerned (public entities or individuals for example, states or international companies). Given the importance of public bodies and policy in Algeria, laws and regulations are first-class means to move, shift forward, or guide the Algerian society according the social, economic, religious, ethical, cultural, fiscal or diplomatic goals the country assigns to itself.

As a consequence, the number of texts and articles is continuously increasing with a growing impact on the overall level of activity and development pace. A selection of legal subjects has been made for the purpose of this study to allow the reader to get an up to date view of major issues in the legal field. Since legislative activity may introduce reforms all along the year, it is highly recommended to visit the sitography at the very end of this article. The reader should also be informed that if most of the applicable texts are published in official journals or bulletins, not all of them are available. Thus, it is highly recommended to consult official institutions or agencies, private experts, or lawyers in any decision-making process.

Understanding Algerian legislation often means to learn basics of French law: it has been playing a major role in the building of the Algerian legislation not only because from a historical point of view it has been applicable years after the French left Algeria in 1962, but also because it has been a source of inspiration for lawmakers since independence. There is no disputing however that an independent and autonomous set of texts is getting more and more important while, in addition to official publications, a large number of law books are published in Arabic.

2. The Constitution and Public Institutions

2.1. General Constitutional Provisions

Founded in 1962 after the war against the French colonial power, the People's Democratic Republic of Algeria succeeded the previous French administrative institutions. The new Algerian political regime (led by Ahmed Benbella), promulgated the first constitution in 1963. This constitution has been replaced the Constitution of 1976 and then the Constitution of 1989 (modified in 1996). The last modifications have been made by three laws on constitutional revisions: law n° 02-03, of April 10, 2002, n° 08-19 of November 15, 2008 and 16-01 of March 6, 2016. The preamble defines Algeria as an Arab country "land of Islam, part of the Greater Maghreb."

In its first version in 1963, Algeria was declared a one-party state, with classical Arabic as its official language and Islam as the religion of the State. Algeria's Constitution of 1976 emphasized the role of socialism in the society which aimed at building “a socialist democracy” and “fight against every form of exploitation of man." In 1989, the new constitutional reform introduced a multiparty system (about 50 political parties participate in the democratic debate) and abandoned the reference to socialism.

Today, Algeria (according to the 1996 version of the 1989 Constitution) is defined as a People's Democratic Republic (art. 1). Islam is the religion of the State (art. 2). Arabic is the national and official language (art. 3). Tamazight is a national language. Hence, while "feudalism, regionalism and nepotism" are prohibited from the institutions, together with people exploitation or dependence links, the constitution stresses that institutions aim at achieving social justice, equality, and freedom for all. Social and ethical considerations are also pillars of the institutions. These are set to protect the national sovereignty and independence together with the social and cultural fulfillment and anti-corruption practices. These ambitions include men and women equality (art. 34, 35, 36) while the constitution also guarantees fundamental freedom and human and citizen rights (art. 38).

The country's flag is composed of two equal vertical bands (from left to right): green (symbolizing heaven in Islamic tradition) and white (symbolizing purity and peace) with a red (symbolizing blood of the martyrs) five-pointed star (each represented one of the five Islam Pillars) and a red crescent (coming from its Arabian history and symbolizing the path to heaven).

The constitution provides the basic concepts of public organization and institutions: legitimacy and sovereignty, people and citizens, State, assemblies, Wilaya and commune, decentralization and collectivity, public and national properties. These keywords illustrate how this part of the constitution has been written: from general to the specific, from the political organization to transport or natural resource issues.

People's will is the legitimacy of the State (Constitution, art. 12), in the sense that the actions of the State are legitimate because if committed in the people's interest and based on the principle of freedom of choice of the representatives within the framework of the constitution and the electoral law. Because of this legitimacy, the State exercises its sovereignty on the territory and national sovereignty belongs exclusively to the people (Constitution, art. 12 and art. 13): terrestrial and air spaces, and waters. Any abandonment or alienation of a part of this territory would affect the people's interest and is proscribed as illegitimate.

Democratic organization and social justice are two pillars on which the State is based. The people participate to the management of public affairs indirectly, through the election of its representatives to the assembly which also stands as the elementary tool of decentralization (Constitution, art. 15), as the commune stands for the elementary (basic) collectivity (Constitution, art. 16).

The constitution also refers to "public properties" which are different from "national properties" (private or public assets of the State, the wilaya or the commune). "Public properties" is the expression used to designate all the natural elements composing the territory, from a geological or an utilitarian perspective: "the underground, mines, quarries, natural resources of energy, mineral, natural and living resources either in maritime areas, water or forests" (Constitution, art. 18). It clearly appears as a complement to the provisions of article 13: "the sovereignty of the State is exercised on its terrestrial and air space and its waters. As the Constitution gives a list, which can be modified, the terms are so extensive that unless reducing it, it is clear that Constitutional writers tried to give the most extensive definition of the public properties. It also includes the following utilities: "rail, maritime and air transport, the mail and telecommunications" notwithstanding "other properties defined by the law." The national collectivity owns the public properties.

2.2. Local and Regional Government

Algeria is divided into forty-eight wilayas governed by a Popular Wilaya Assembly composed of thirty deputies elected every five years. Wilaya government is responsible for the distribution of public services, regulation of small and medium-sized industry, agriculture. Furthermore, 1,541 communes (basic element of the territorial structure and organization) are grouped into 227 administrative districts called Daïras and are managed by Communal Popular Assemblies responsible for local administration, economy and finance, planning. Having no economic and little political autonomy, however, the communes administer central government programs rather than initiate independent projects. Each communal assembly has ten to eighty members, who are elected for five-year terms. The assembly elects a communal executive from its membership.

2.3. The Legislative Power

The parliament, which exercises the legislative power, is composed of two chambers: the People's National Assembly and the Council of Nation, which members benefit from parliamentary immunity (Constitution, art.126). If an agreement cannot be found after parliamentary discussions and the meeting of a special commission composed of representatives of the two chambers, the text is withdrawn, except for the financial law, which will be promulgated by the President of the Republic in case of disagreement (Constitution, art. 138). If not promulgated by the President of the Republic within 30 days, a law does not enter into force.

The People's National Assembly (492 members, 25% of which are women) is elected on a universal, direct and secret suffrage for a period of five years (Constitution, art. 119).

The Council of Nation (144 members which can be considered as a Senate) is partly (two-thirds) elected on an indirect and secret balloting by the elected members of the communal assemblies and wilayas. The other part (one-third) is designated by the President of the Republic (Constitution, art. 101). The duration of the mandate is limited to 6 years, members are renewed every three years (Constitution, art. 102).

The constitution does not provide the conditions for the candidates to the People's National Assembly (the law provides it); it specifies the conditions to be candidate to the election to the Council of Nation: one third of its members are designated by the President of the Republic among national personalities chosen according to the level, quality, and renowned competences. Since no specific criteria or control is established, it is a specific competence of the President who is widely free to choose these members according to his idea of the personalities deserving to join the Council.

While each chamber of the parliament sets up permanent committees, it meets in two ordinary sessions per year, each lasting at least four months (Constitution, art. 117).

The parliament is competent to legislate in limited but wide domains (Constitution, art. 140). The parliament is competent in the following areas: State budget, tax and duties, customs, monetary and banking regulations, insurance, labour law, natural resources (mines, hydrocarbons, forest, water, etc.), information, financial regulations, and privatizations (Constitution, art. 122).

N.B. Concerning family law and, generally speaking, the hierarchy of norms, the Sharīʿah cannot be considered as governing family law or Algerian law. Article 222 of the Family Code refers to the Sharīʿah but only as a complementary source for subject not dealt with by the code. For example, the code contains dispositions on marriage in its article 4 to 46, on divorce in its article 47 to 80, or custody in its articles 58 to 73. More precisely the Sharīʿah consists of two corpora: the Koran and Sunna. But at the top of the hierarchy lies the constitution, followed by the ratified international treaties, organic laws, ordinary laws, regulations. The law is the rule voted on by the parliament. Sharīʿah

2.4. The Regulatory Power

As defined by the Constitution (art. 143), domains other than those attributed to the legislative power (or to the President: presidential decrees) are under the regulatory power of the prime minister (executive decrees). Regulatory acts are unilateral acts. The prime minister may delegate a power of signature to the Secretaries of State who are thus entitled to sign various regulatory acts such as ministerial orders while central administrations publish other acts such as circulars or instructions.

However, other regulatory acts may be adopted by local institutions such as the walis (equivalent of regional prefects) or the presidents of the municipal assemblies. Lastly, other public institutions or regulators may adopt regulations (e.g. the Currency and Credit Council) upon control by the Secretary of State in charge.

2.5. The Judicial System

The judicial power is constitutionally independent and guarantees the safeguard of fundamental rights. It is based on a duality of jurisdictions system, lawfulness and equality (Constitution, art. 140). Art. 148 also refers to the free will of the judge. Supreme Courts are not only institutions deciding on issues of law, but are also charged with regulating the jurisdictional activity. As a consequence of the principle of separation of powers, a court decision could not be empowered at a general scope without infringing upon this rule. Finally, the concept of fair trial is present in the Algerian judicial system; the defendant is entitled to be informed of the indictment and no exhibits can be produced before the court unless parties have exchanged them earlier.

Justice decisions are pronounced in public hearings (Constitution, art. 144) by magistrates (Constitution, art. 146) and the right for defense is recognized and guaranteed in penal matters (Constitution, art. 151). The Supreme Court is the highest jurisdictional degree unifying the jurisprudences across the country. In the criminal field, a criminal court is competent for crimes, offenses and legal infringements.

In judicial matters, tribunals compose the first level of jurisdiction. Tribunals hear cases in sole instance for issues lower than 200,000 DA. In labor law cases, tribunals also hear plaintiffs in sole instances in disciplinary measures, pay slip or labour certificate litigation; in these matters the territorial jurisdiction is determined by reference to the place of domicile of the defendant.

Since the reform of 1996, two specific judicial orders are ruled by two distinct bodies: the High Court for the activities of courts and tribunals and a Council of State for the administrative jurisdictions (appellate judge for administrative courts or Supreme Court judge in specific matters). A public prosecutor is represented in each jurisdictional order.

Three specialized courts and tribunals are also competent for specific matters. A Tribunal of Conflicts arbitrates conflict of competency between the two councils (Constitution, art. 152), the High Council of Magistracy is competent for magistrates concerning their professional activity (Constitution, art. 149) and the High Court of State, competent for the President of the Republic in case of high treason or the Head of Government for crimes and infringements (Constitution, art. 158). A Constitutional Council controls the conformity of organic laws and rules of procedure of the two chambers of the Parliament and controls the constitutionality of treaties, laws and regulations (Constitution, art. 167, Regulation of June 28th, 2000).

Whenever the State, a wilaya, or a municipality is concerned, administrative jurisdictions are competent. The following courts compose the administrative jurisdictional bodies: the Court of Audit, the lower administrative courts and the high administrative court ("Conseil d'Etat" or Council of State), organized as collegial courts with state commissioners whose role is to file submission before any decision can be made. The Council of State does not only act as the appellate body for the lower administrative courts; its role is also settle conflicts of jurisdiction between courts and to give advice to the Government.

2.6. Arbitration

Alternative dispute resolution exists in Algeria since the civil code in its version of 1975 established the rules for transaction, defined as a contract between the parties, each of them committing in obligations to settle a dispute. Even if the provisions of the civil code on transactions constitute a general framework that can be used in a variety of legal areas, practitioners should pay attention to expressly limit the terms of transaction to matters which are not governed by public order rules or principles.

While a transaction is a contract between private persons, arbitration is an alternative jurisdictional way to settle dispute and is based on the contractual agreement (pre-existing or concluded after a litigation arose) of the parties to submit a dispute to an arbitral tribunal. The arbitration tribunal has the obligation to settle the case and make a decision.

Arbitration in Algeria refers both to internal commercial dispute and international arbitration. Algeria ratified the 1958 UNCITRAL convention of New York in February 7th, 1989 which entered into force in May 8th. But arbitration is prohibited to public bodies except in international trade or public procurement areas.

Selection of Texts:

3. Civil Law

Concerning natural persons, the existence of a legal personality starts with the birth of the living child and ends with his death (Civil code, Art. 25). According to the Civil Code, a legal person (i.e. the State, the wilaya, the municipality, corporations, cooperatives or any other grouping recognized as a legal person by the law), owns assets, legal capacity, has a legal domicile, a legal representative and the right to justice (Civil code, Art. 50).

The Civil Code defines a contract as an agreement according to which on or more persons undertake to give, do or not to do something (Civil Code, Art. 54). A contract is a meeting of consistent will, and can be expressed either orally or in writing. The contract is formed as soon as the parties have expressed their concurrence of will (Civil Code, Art. 59). If an agreement contains an offer but no acceptance deadline, the offer must be accepted immediately to bind the debtor (Civil Code, art. 61).

3.1. Contract Law

A contract stands as the law between the parties and must be performed in good faith according to its provisions. But if general, unforeseeable and exceptional circumstances occur, making the performance impossible or excessively expensive, the parties may request the judge to revise the contract (Civil Code, art. 107).

Contractual obligations are divided into three distinct categories: the obligation to give, to do, or to omit, the obligation of mean (or diligence) or result and simple or complex obligations (with several objects or purposes, several persons, including conditions or a term). These obligations should end by the payment, i.e. the execution of the contract. But there are other ways to terminate a contract: the end of the limitation period, the release of the debt, the transfer in lieu of payment, the novation of the contract or the optional set-off of the obligation.

A contract may be annulled in the case of a substantive error (Civil Code, Art. 81). A substantive error is defined as an error so serious that should the error have not occurred; the contractor would not have expressed his will to the agreement. A contract must have a subject, either certain, even in the future, or at least determined. A contract without a lawful subject or cause is void.

Considering a litigation context, the plaintiff is normally charged with the burden of proof, and documentary evidence (in the commercial area facts may be proved by any means) is required for disputes dealing with more than 100,000 DA (about €710,000 or 870,000 USD).

4. Commercial and Corporate Law

4.1. General Commercial Rules

4.1.1. Forms of Business

Merchants are defined by the Code of Commerce as people who usually operate commercial transactions (Code of Commerce, Art. 1), which means that if a commercial transaction is not operated on a usual basis, it may not always be granted the status of merchant. Considered as commercial transactions within the field of the Code of Commerce are the following transactions: sales operations (like buying developed or undeveloped properties for the sole purpose of reselling them), renting movable or immovable assets, construction works, provision of services, mines or quarries development, banking and insurance activities (Code of commerce, art. 2). Any transaction made by a merchant in its business interest or development should also be considered as commercial transactions (Code of commerce, Art. 4), as well as any transaction made by commercial companies, business agencies, business goodwill, or transactions between merchants.

Business goodwill is composed (Code of commerce, art. 78) of a range of various assets. Some are tangible, others are intangible. The fundamental elements are intangible assets and are usually preeminent enough to determine the value of the business goodwill. Such elements are the customer base, the right to the lease and the business name.

Under the regime of a business goodwill, the tenant with a commercial leasehold has a right to renew the lease for at least two years if he signed a written contract. Unless the tenant gives notice within an at least six-month period of time, the leasehold is renewed tacitly. The renewal period is based on the contract and cannot last longer than nine years (Code of commerce, art. 172). If the renewal request is rejected, the lessee is entitled to an eviction indemnity (Code of commerce, Art. 176).

The specific customer base of the business goodwill is the key element since it generates the turnover. In the case of damages, the business goodwill can be protected by the unfair competition action in order to obtain a compensation and the end of the unfair practice. The business name is the name under which the business is run. Such name can be a patronymic family name or a fanciful denomination. The dedicated legal protection of a business name is the unfair competition action.

Under the article 187 bis of the Code of Commerce in force since February 2005, the eviction compensation regime has been substantially modified: for leases concluded before 2005, the right of the lessor to refuse the renewal of a lease upon expiration was completed by a legal right of the tenant to obtain an eviction compensation. Since 2005 the eviction compensation is a contractual right.

Secondary elements of the business goodwill are composed of other intangible assets (the brand which can be the business name, trademarks, patterns, works of applied art, designs and models or tangible assets (equipment, supplies and goods). A business goodwill may exist without its secondary elements.

In the case of suspension of payments, the legal or natural person declares its insolvency, which will allow the opening of a bankruptcy proceeding (Code of commerce, Art. 215). Based on the bankruptcy decision, partners who are jointly liable will be also sued (Code of commerce, Art. 223).

4.1.2 Main Commercial Contracts

Contracts of Sale: A contract of sale is considered as a contract under civil rules and, without specific legal provisions, a contract of sale is subject to the general rules applicable to contracts. Even if it is not a condition for substantive validity, an invoice must be issued by the seller. A contract of sale is a commercial transaction otherwise governed by commercial law. Hence, proof can be proven by any kind of lawful evidence, ten-year limitation period, presuming financial solidarity. The seller has an obligation to guarantee hidden or latent defects (one-year limitation period, nullity of the contract), he must provide the warranty of quiet possession, even from his own cause, and he must guarantee under consumer law, the conformity of the product or service sold.

On the other side, the buyer must comply with two the obligation of payment and to enter into possession of the goods or to accept the delivery of the service according to the terms of the contract. The principle set out by the article 388 of the civil code is that payment is made at the time the good or the service is delivered. But the contract may decide to separate the two obligations (cash or instalment credit, down payment, deposit, etc.).

Contracts for Hiring or Leasing Goods: A contract for goods, equipment or material hiring is subjected to the ownership by the lessor of the said good or other tangible asset. The lessor is bound by the obligation of delivery, maintenance and repair. The parties may decide to add an obligation to provide advice with or without the obligation to install the said good or asset. The lessee is bound to take delivery of the good hired, to pay the rent according to the terms of the contract, to compel to compliant usage, and to make restitution when applicable.

Loan Agreements: According to Article 538 et seq. and 450 et seq. of the Civil Code, a loan agreement is not valid until the effective delivery of the expandable or non-expandable thing according to the terms of the contract. In a loan for use (non-expandable items) the borrower has the obligation to pays the rent and to make a restitution of the items, the lender is bound to refrain to interfere in the quiet use by the borrower. But this obligation does not constitute a kind of warranty. In this kind of loan, even in the case of force majeure events, the borrower might be responsible for damage or deterioration he might have prevented. In the case of a simple loan or consumer loan, the lender is responsible of any damage or loss that might occur before the delivery to the borrower. Because the object of such contract is expandable items, the borrower is not bound to restitute the items borrowed but the equivalent in kind and quantity or amount, and to pay interest in the case of an onerous contract. It must be stressed that individuals (private persons) cannot conclude onerous contracts between them. Onerous loan agreements can exclusively be concluded by credit institutions.

Leasing Contracts: Under the provisions of Ordinance 96-09 a leasing contract may be concluded for tangible or intangible assets (including business goodwill). The leasing company acquires a good or asset, rents it to the lessee in order to sell it to him (transfer of ownership) at the end of the contract.

4.1.3. Commercial Bills and Guarantees

Cheque: Payments made by cheques (Article 474 and following of the Code of Commerce) involve three parties: a drawer, a drawee, and a payee. The drawer, who must be legally capable, gives the instruction to the drawee to pay, on demand, a certain amount of money to a beneficiary. A cheque is a payment instrument requiring that the account from which funds should be withdrawn must have a credit balance. It must not be considered as a credit transaction.

Letter (bill) of Exchange: A letter of exchange (Article 420 and Following of the Code of Commerce) is an instrument according to which a drawer gives the instruction to a drawee to pay at a certain date a certain amount to a beneficiary. A Letter of Exchange is a short-term credit instrument and is defined as a commercial act. If no deadline is specified, the letter is payable on demand.

Payment Guarantees: Any creditor can benefit from the common pledge on the assets or properties of his debtor on a pro rata basis, each common creditor being treated equally to the others. Even without privilege, these creditors may claim for specific measures such as arrest (seizure or confiscation of the assets of the debtor). The creditor may intervene in a derivative action (Article 188 and following of the Civil Code) to proceed to certain decisions in the interest of the debtor in the case he fails to protect his assets or recover money. The creditor may also intervene in an action called "Paulienne" (Article 191 and following of the Civil Code) according to which, in the case of a fraudulent behavior of the debtor, the creditor may seize a property, asset or amount of money that the debtor would have sold or transferred to a third party. Personal guaranties clauses (unilateral contracts), may be inserted in contracts according to the provisions of article 644 to 673 of the Civil Code. Securities on property may also be concluded (mortgage-article 882 to 936 of the Civil Code and pledge-article 969 to 981 of the Civil Code-according to the movable or non-movable nature of the property concerned by the guaranty).

4.2. Company Law

Under article 416 of the Civil Code, legal entities are created by contractual means either by legal or natural persons in order to share the profit of a common activity, to generate savings or to aim at a common economic interest. Any partnership, limited partnership, limited liability company or joint-stock company is considered as a commercial company (Company Code, Art. 544). But if legal or natural persons can be recognized as merchants, only legal persons (with a minimum capital of DA 2 million) can set up an import/export activity.

4.2.1. General Provisions

Companies are divided into two general categories: civil and business companies. Some companies are business companies because of their legal form: Joint-stock company (Sociétés par actions), Private limited company (Société à responsabilité limitée - SARL), Small business as a limited company (Entreprise à responsabilité limitée - EURL), Partnership limited by shares (Société en commandite par actions - SCA), Limited partnership (Sociétés en commandite simple), General partnership (Sociétés en nom collectif - SNC).

According the prevailing element among the two following criteria, these companies can be qualified as companies or partnerships. The first criterion is the regime of the liability of the partners: in a partnership a partner is liable with his own assets and a creditor may require the whole debt to any of each of the partners. In a business company, each partner is liable only to the extent of his contribution but without limitation of the amount owed to the creditor.

The second criterion refers to how important the intuitu personae is. If strong, meaning that the company is set up because of the individual qualities of its partners, the company will be categorized as a partnership. One of the main consequences is that the disposal of the shares will be possible (in a company) or not (in a partnership).

General rules are contained in the following provisions:

The form, the duration (which cannot exceed 99 years), head office (Algerian law applies to companies having an activity in Algeria) and name of a company must be defined by the statutes while incorporating (or dissolution) documents must be registered in the registry of commerce upon nullity (Code of Commerce, Art. 548). Once the company created, a managing director is appointed by the partners. Once appointed he cannot hold an employment contract with the company. Any agreement between the company and one of the directors requires a prior authorization from the management board after a report from the auditor.

The share capital of limited liability companies must be in a registered form (Code of Commerce, art 567) and cannot be represented by negotiable instruments. If partners can be freely transmitting their shares to their spouses, ascendants or descendants, the selling to a third person must be approved by the majority of at least ¾ of the capital share and registered in an authenticated document.

According to the Ordinance n°96-27, a company whose capital share is held by more than 50% by one company is its subsidiary. Holding less than 50 % of a share capital means holding an equity participation in a company (Code of Commerce, art. 729). A company holding directly or not more than 50% of voting rights of the share capital it owns or pursuant to an agreement with other shareholders or partners or if it holds more than 40% of the voting rights and no other partner or shareholder, directly or not, hold more than what it holds, so that it can make decisions during shareholder’s meeting.

Such companies controlling other companies are called "holding companies." When a company takes control of another company registered in Algeria, it must be notified in the annual report (see art. 716).

Two or more legal persons may write an agreement in order to create a grouping for a limited period of time and for the purpose to use any mean to facilitate and develop the economic activity of its members or improve and increase its results. The agreement is not opposable to third parties until it is published.

The existence of a grouping does not require making and sharing profits and it can exist without capital, but it has a personality in law. The rights of its members cannot be represented by negotiable instruments but they can issue bonds.

4.2.2. Main Forms of Companies

General Partnership (Société en nom collectif - SNC): This form of company is adapted for small businesses in which partners are willing to control the decisions. Each partner is partners is liable for the full amount for the company's liabilities with its own assets. A minimum of two partners is required, all of them must be must be merchants ("commerçants"). Contribution to the capital can be made in cash, in kind or in services units with no minimum amount. The capital is represented by non­transferable and inalienable shares. General partnerships are companies in which the intuitu personae is prevalent element. In a general partnership, each partner is legally considered as a manager. But the article of association of the company may contain different provisions according to which, for example, only one partner is appointed manager.

Private Limited Company (Société à responsabilité limitée - SARL): In private limited companies, the partners' liability is limited to their contributions. If created by a single partner, the private limited company is called a single owner limited liability company (EURL). Contribution to the capital can be made in cash, in kind or in services units with a minimum amount of 100,000 DA divided into shares of at least 1,000 DA. The regime of the transfer of shares appear to be hybrid between business companies and partnerships: The transfer is free between partners but must be approved by the majority of at least three quarters of the partners. If disapproved, the shares must be buy back by the other partners. One (or more) person is appointed manager of the company. The manager may be at the same time an employee.

Joint Stock Companies: In the case of a joint stock-companies (Code of Commerce, art. 592 to 715 bis), the capital is divided into shares between at least seven partners who are liable only to the extent of their contribution. In these companies the number of votes is equal to the number of shares subscribed and cannot exceed 5 percent of the total capital share. If the company is not listed on a regulated market, the minimum legal capital is 1,000,000 DA, 5,000,000 DA if listed on a regulated market. Shares can be transferred freely since the intuitu personae is not supposed to prevail in this form of company. The chief executive officer (president of the General Assembly) effectively leads the company and is considered as the managing director.

If fictive dividends are distributed or if a false balance sheet is communicated or published to hide the actual situation of the company, the president, the directors or the executive officers can be sentenced to a fee and a one to five years’ period of imprisonment.

The board of d`irectors of a joint-stock company is composed of at least three members and no more than twelve. They are elected by the ordinary general meeting of shareholders for a duration that cannot exceed six years and each natural person cannot belong to more than five directors. If they can be reelected, they can be dismissed at any time by the ordinary general assembly. The Board of Directors also decides of the amount of the attendance fee of its members and elects a President for a duration that cannot exceed six years. He can be dismissed at any time.

An extraordinary shareholders meeting can decide to update the statutes in order to introduce a Management Board (three to five members) controlled by a supervisory board (which members cannot belong to the Management Board). On the other hand, an ordinary shareholders' meeting will deal with any other subject than the modification of the statutes. It meets at least once a year.

Accounting records must be kept by any commercial company with a personality in law (art.716): assets and liabilities must be accounted and the operating account, a profit and loss statement and the balance sheet must be kept. All these documents are sent to the statutory auditor together with a report on the activity during the year. Once validated by the shareholders' meeting, the corporate accounts are deposited in the registry of commerce (Code of Commerce, art. 717).

Dividends: the share paid as dividends is decided by the shareholders' meeting after the approval of accounts (art. 723). The shareholders' meeting (or in its absence, the board of directors or the managers) decides the way dividends is being paid in a maximum period of nine months after the closing of the fiscal year (art. 724).

A project of merger or spin-off must be approved by the shareholders meeting and has to contain the purpose and conditions, date of the closing of the accounts, designation of the assets and liabilities to be transferred to the absorbing company, the exchange ratio, the value of merger/spin-off premium. It also must be registered in a notary firm and published in an announcement journal of legal notices.

In the case of a dissolution, a company is in liquidation and its personality in law ends with the company but it has no effects to third parties if it has not been published and registered in the business and company registry. The names of the liquidators are published in a journal of legal notices of the wilaya where the registered office of the company is located. The liquidators communicate all the information published to the shareholders. The selling of total or part of the assets to the liquidator, its employees, spouse, ascendant or descendant is forbidden.

Non-Trading Company: This form of companies requires a non-business form and a non-trading activity: non-trading or non-stock companies such as the Société civile. Its activity has to be a non-trading activity. At least two partners must own a non-trading company without a maximum number. Such partners could be either natural or legal persons. Like Private limited companies, contribution to the capital of non-trading companies can be made in cash, in kind or in services units with no minimum amount. One (or more) person is designated as director to lead the company.

Selection of Texts:

5. Tax Law

5.1. Global Revenue (Natural Persons)

Individuals with a tax residence in Algeria are taxable on the base of the Global revenue provisions.

Exempted are:

Taxable natural persons are those who have a business activity in Algeria, members of partnerships, undeclared partnerships/joint ventures who are jointly and severally liable, whether or not they reside in Algeria. As far as international tax treaties are concerned, a person is considered to have his tax residence in Algeria if is tax household is located in Algeria, if his principal place of residence is in Algeria or if he holds a business activity in Algeria.

Their global revenue (Tax Code, Art. 1) is the addition of the total net revenues coming from (Tax Code, art. 2) the following activities (net of the deficit in an income category, interest rates of professional loans, pension and social security insurance, maintenance allowance):

Tax Rates on Wages and Salaries:

DZD

Tax Rate

< 10 000

n/na

> 10 000 <30 000

20 %

> 30 000 < 120 000

30 %

> 120 000

35 %

Investment revenues (dividends) are subject to a withholding tax of 10% while capital gains are exempted during a 5-year period. Concerning real estate capital gain, a tax rate of 5% is applied (real estate properties owned for more than a ten-year’s period are exempted).

5.2. Taxation of Companies

5.2.1. Income Tax

Any company (except partnerships and joint ventures) and public bodies with commercial and industrial activity (art.136) is taxable for its effective profits or business revenues in Algeria.

The net profit is the result of the difference between the net asset value at the closing and opening fiscal year, minus the capital surplus plus debits done during this period (Tax Code, art. 140).

The following charges are deducted to calculate the net profit (Tax Code, art. 141):

Global Tax Rates:

Activities

Tax Rate

Production of goods

19 %

Construction, Public Works, Hydraulic industries, tourism industry

23 %

Others

26 %

5.2.2. Capital Gain on Sale

Short-term capital gain result from the selling of elements of the fixed assets acquired or created since a period no longer than three years. Long-term capital gain result from the selling of elements of the fixed assets acquired or created since a period longer than three years.

Also considered as fixed assets are: fully owned shares or capital shares acquired giving control of at least ten percent of the capital of a third party company and investment portfolio acquired since a period of at least two years before the selling.

5.2.3. Asset Tax

Subject to asset taxes (Tax Code, art 274) are individuals with their tax residence in Algeria for their properties (located in Algeria or not) and whose tax residence is not located in Algeria but who owns a property in Algeria. But work related properties (properties necessary for the activity and share or capital share) are exempted.

5.2.4. Value Added Tax

The VAT is applicable on sale transactions, construction work and provision of services (sales transactions, delivery operations, banking and insurance operations...). It is applicable to legal or natural persons (VAT Code, art.4) with no consideration of the type importation transactions possibly involved in the taxable transaction (VAT Code, art.1). In the case of import deals: goods exempted from the VAT in the internal Algerian market are also exempted when imported. In the case of export deals, are exempted of VAT, sales or work transactions. The main tax rate applicable is the following (see also ANDPME):

5.2.5. Local Authority Tax

For the benefit of local authorities, a flat rate tax is calculated on the amount of wages and value of benefits in kind paid by natural or legal persons registered or having an activity in Algeria (Tax Code art 208). The tax on professional activities (standard tax rate of 2%, 1% applied to the activities of production of goods) based on the annual turnover is allocated to local authorities.

Subject to the property tax (Tax Code, art. 248) are developed properties located in Algeria, and also concerned are: facilities used as shelters for people or goods, commercial facilities of airports or train stations, soils directly adjacent to buildings, and non-commercial terrains used for commercial or industrial purpose.

Public buildings (State, wilaya or municipalities) are exempted from the property tax, as long as they are dedicated to a public service and do not generate incomes. Places of worship are also exempted.

Subject to the property tax (Tax Code, art. 261) are undeveloped properties like terrains located in urbanized areas (or suitable for being urbanized), quarries, sand pits, saltpans and agricultural land. Public properties (State, wilaya or municipalities, public scientific, social or educational bodies) are exempted from the property tax, as long as they are dedicated to a public service and do not generate incomes. Places of worship are also exempted.

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6. Labor Law

The official working hours amount to 40 hours a week: 8 hours a day (including a one-hour period of rest, 30 minutes of which considered as working time). The guaranteed minimum wage amounts to DA 15,000 per month. Extra work time is paid with an additional bonus of 50% per hour.

Foreign workers are allowed to work in Algeria provided they ask for a work permit at the national employment agency. Applications for resident cards must be submitted to the local police station. Salaried workers are employed to provide an intellectual or a manual job and receive a compensation for it workers benefit from trade unions right and collective bargaining, social security and pension entitlement, health, safety and medical services, strikes, etc.

The working relationship exists with written or verbal contracts since the work is done on behalf of the employer. In the case of a verbal agreement, the contract is permanent. If the contract is written, it can be either permanent or temporary. The minimum age to go into a working relationship is sixteen years old. Each worker enjoys a weekly rest of one day (Friday) while annual holidays are based on the number of days worked from July to June (acquisition of a maximum of 2.5 days per month). An employment contract can be modified by a mutual agreement on the changes to be made.

Wages paid include a base salary and bonuses (seniority, overtime, performance, etc.). In order to allow equal pay for equal work, each employer guaranties equal treatment between its employees. Minimum wages are applicable in some specific business sectors and include the base salary and flat rate allowances or premiums. The breach of an employment contract results either from a resignation of the employee or a collective or individual dismissal.

Working relations also benefit from the framework of collective agreements, which can deal either with global working and employment policy for one or several occupational categories or with specific aspects of working and employment conditions. Such agreements are written and signed by the employer (or a group of employers) and the union representatives.

7. Mining and Hydrocarbons

1971 was a year of nationalization in Algeria according to President Boumediene’s strategy. Nationalization in the field of energy and hydrocarbons in particular was conceived as an extension of a full recovery of the exploitation of the wealth of its soil and Saharan sub-soil (see Valhyd Plan studies). The early 70’s were a period of a strong increase of oil prices, and hydrocarbons became a major interest since it would give the country the power to play an important international role while reducing the dependence on occidental countries and developing and modernizing the country according to their own objectives and values. The oil and gas sector generates (2015 E&Y survey) 97% of Algeria’s export revenue and 60% of Algeria’s budgeted resources.

7.1. Mining Activities

Mineral heritage is by nature incorporated into the public domain. But permit or titleholder must implement a major hazard prevention plan. Mineral exploration, prospection or exploitation are subject to the authorization by special permits and payment of corresponding duties. Collecting activity is also subject to authorization and duty payment.

Mining activities can be operated without condition based on status or nationality of the operator providing he has been delivered a permit or title deeds (an impact assessment must be attached to the permit applications form). If exploration permits or title deeds can be transmitted or sold (under authorization of the National Agency for the Mining Heritage), exploitation permits or title deeds are not considered as mining titles.

These activities can take the form of an industrial undertaking, a small or medium sized undertaking, an artisanal operation, a collection activities or quarries and sandpits exploitations according to the production capacity of the plant and to the automated means involved in the production.

Title deeds delivered by the wali in charge can be either authorizations for prospection or exploration permits: in the case of mining researches; a mine concession, a small or middle-sized mining exploitation permit or an artisanal mining activity: in the case of exploitation activities. The State may also entrust a private company with public share capital to undertake mining activities on his behalf. In the case of a concession, an agreement is signed with the company beneficiary of the title deed or permit.

7.2. Hydrocarbons

Sonatrach is a public owned company supplementing the action of the State in the field of research, exploitation, transport, refining and transformation of hydrocarbons. Hydrocarbon resources or substances unveiled or not, are national properties, which the State is in responsible for. Environmental considerations must be taken into account in the exploitation of these resources. Exploration, exploitation, transportation, refining or transformation activities are commercial transactions opened to any natural or legal person with a fiscal existence in Algeria.

Net oil and gas prices are established on a yearly basis in order to promote low environment impact hydrocarbon products and encourage natural gas consumption in industrial activities. The sales prices include the price measured at the refinery gate, refining, transport, storage and distribution costs in addition to depreciation cost and a reasonable margin.

The main taxes applicable to research and exploitation activities are: a superficiary tax, an income tax (payable on a yearly basis), monthly royalties and tax on oil profits and property tax on operating assets.

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8. Foreign Investments

Investments with external contribution benefit from the guarantee as capital invested and net profit sold. Banks, financial institutions and licensed intermediaries are entitled to examine the requests for transfer, and to proceed to the transfer in respect of dividends, profits or disposal of the foreign investments, together with attendance fees for foreign Board Directors.

During the implementation phase of a foreign investment project (see The National Agency of Investment and Development), the following taxes rate are equal to 0%: VAT, customs and transfer duties. During the operational phase, a 0% rate is applicable for the tax on profits and the tax on the professional activity. Additional advantages are also provided with local financing programs and export incentives. Profits and dividends of mixed investments (national and foreign investments) can be transferred within the limit of the amount of the foreign contribution in the capital.

Excluded from the foreign investments regime are: activities not registered in the Commercial Register, some imported second-hand capital goods in the case of relocation of activities from foreign countries. The beneficiaries of the foreign investments regime are not allowed to sell or transfer their investments before the end of the depreciation period without reporting to the Tax Office and the commitment of the purchaser to undertake the liability for the obligations incumbent to the initial investor. In the case of a partial transfer of assets, the pro-rated part of the advantages perceived from the foreign investments regime will be refunded.

Excluded from the regime are activities such as restaurants, drugstores, wrapping and packaging, real estate agencies, insurance general agencies, commercial agents, stockbrokers.

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9. Electronic Resources

10. Key Facts on Algeria

According to the World Bank survey Doing business in Algeria 2018, Algeria ranks 145 out of 190 economies for the topic "Starting a business" and 71 for the criteria "resolving insolvency".

11. Sitography

11.1. General Information

11.2. Institutional Websites

See the list of ministries.

12. Legal Publishers