STUDY ON THE CREATION OF A BRANCH IN THE OHADA SPACE
In the OHADA area relating to commercial company law,the establishment of a foreign company or the multiplication of a local structure, can be carried out in particular by a branch. It is defined as « a
commercial or industrial or service-providing establishment, owned by a company or individual and with a degree of management autonomy. »
In other words, the branch is a secondary institution of the constituent enterprise, and has no legal autonomy, own legal personality, or heritage distinct from the latter. Thus, the rights and obligations that arise from its activity or resulting from its existence, are included in the heritage of the constituent society.
Nevertheless, the management of a branch in this space implies that it is often subject to the establishment of summary financial statements, but also to the social and territorial tax legislation..
Creating a branch, requires first having a legal existence,making a decision finding the opening of the branch, or even appointing the local manager..
Having a legal existence
The opening of a branch implies that the company or the individual person (individual company) constituting, has a legal existence. This legal existence is acquired by obtaining a Register of Trade and Credit Furniture (RCCM) or the Register of Trade of Companies (RCS)..
Decision creating the branch
Generally, in a minutes of the general meeting or the board of directors, depending on the social form and statutory provisions, the company constituting the branch should make a decision opening that structure.
Failure to comply with this legal duration of the branch implies that « the clerk (…) proceeds to delist the branch of the register of trade and furniture. credit, after a decision of the competent court, ruling on request, at his request or that of all interested. »
Despite its limited duration, the branch is a tactically interesting structure.
Indeed, it can be wise, when the constituent company wishes to carry out a project of limited duration requiring local monitoring,a construction site for example, whether in its country or in another country of the OHADA space.
Appointment of a local official (legal representative)
by a natural person, in this case, the local official.
The latter is entitled to act on behalf of the legal person, and to represent it in all its acts of everyday life (recruitment of staff, disbursement of banking, etc.).
Conditions of form
In the OHADA area, the branch of the foreign company, obtains its legal personality by its registration in the Register of Trade and Credit Furniture (RCCM), in one of the States Parties to theTreaty.
In doing so, the individual company or a constituent company can open a branch in its national territory.
This structure will proceed to an amending registration to the RCCM to create the branch. However, where the branch of a local company is located within the jurisdiction of a registry that is territorially separate from that of head office, there will be an obligation to register the headquarters and branch separately.
As the branch is a « dismemberment » of the constituent society, its incorporation is usually carried out without a requirement of social capital..
This exemption is a major asset of this structure. In addition, the opening of a branch is legally an extension of the constituent society in one’s country or even in another. Thus, it is a detached element of the company, a distant arm.
The maximum « social life » of a branch is limited to two (2) years for foreign constituent companies. However, this period may be extended by the Ministry of Commerce for two (2) years, non-renewable; according to Article 120 of the aforementioned Uniform Act.
As a result, a branch with a maximum duration of four (4) years in the OHADA space, when the branch is created by a company registered outside the national territory.