Post-Budget : a series of Legislation will be amended

After each Budget, some Legislation is being revised to allow the implementation of measures announced by the Minister of Finance. Here are the main ones.

Bank of Mauritius Act : More powers to the Central Bank

The Bank of Mauritius Act will be amended to –
(i) reinforce the powers of the BoM with a view to counter money laundering and for the prevention of financing of terrorism; and
(ii) increase the fine to Rs 1 million where a financial institution fails to comply with guidelines issued by the BoM.
The Banking Act will be amended to –
(i) allow for banks carrying on exclusively private banking business in Mauritius, to import gold and other precious metals as part of managing their clients’ investment portfolio and provide safety vault services;
(ii) allow for the identification and certification of good conduct of beneficial owners in determining an application for a banking licence;
(iii) allow the BoM to impose a fine of up to Rs 1 million where confidential information of bank customers has been disclosed;
(iv) allow for the fine-tuning of the provision on licensing of issuers of commercial papers;
(v) allow every financial institution using new or developing technologies for both new and pre-existing products to –
a. undertake a risk assessment prior to the launch or use of such products, practices and technologies;
b. identify and assess the money laundering and terrorism financing risks that may arise in relation to the launch or use of such products, practices and technologies;
c. take appropriate measures to manage and mitigate the risks identified; and
d. implement programmes against money laundering and terrorism financing, having regard to the money laundering and terrorism financing risks and the size of its business, which include, amongst others internal policies, procedures and controls.
(vi) clarify that a non-bank deposit taking institution has to maintain a minimum capital of Rs 200 million or such higher amount as may be prescribed, after deduction of the accumulated losses;
(vii) allow every financial institution and every holder of a licence operating in a group structure to implement group-wide programmes against money laundering and terrorism financing which are applicable to all branches and subsidiaries of the financial group and include, amongst others, the internal policies, procedures and controls;
(viii) allow the BoM to revoke the appointment of auditors of a financial institution where the circumstances so warrant; and
(ix) allow financial institutions and every holder of a licence to ensure that their foreign branches and subsidiaries apply measures to combat money laundering and terrorism financing –
a. consistent with the home country requirements, where the minimum requirements of the host country are less strict than those of the home country, to the extent that host country laws and regulations permit; and
b. where the host country does not permit the proper implementation of anti-money laundering and combatting the financing of terrorism measures and inform their home supervisors.

Companies Act : Enhanced protection to minority shareholders

The Companies Act will be amended to –
(a) make provision for an offence being committed by a director for breach of duty where the director fails to disclose that he has an interest in a transaction or a proposed transaction with the company. On conviction, the Director will be liable to a fine of up to Rs 100,000 and to imprisonment for a term of up to 1 year;
(b) make provision for the Annual Report of a company to also mention any major transaction which took place during the accounting period to which it refers;
(c) provide that where the Registrar restores a company on his own motion, the requirement to give public notice in 2 daily newspapers will no longer apply to avoid unnecessary costs in relation to publication;
(d) eliminate the requirement for a certificate of current standing to contain a statement regarding payment of licence fees as same are no longer applicable;
(e) allow for disclosure and availability of Beneficial Ownership Information following enquiries related to AML/CFT;
(f) allow for the time for keeping the share register to be extended to 7 years following the removal of the company from the register;
(g) allow for enhanced protection to minority shareholders;
(h) allow for more transparency to shareholders; and
(i) allow for recovery of outstanding fees during liquidation process.

Morcellement Act : eliminate undue delay in the processing of applications

In order to eliminate undue delay in the processing of applications for Morcellement Permits, the Morcellement Act will be amended to –
(a) introduce the same definitions for Early Retirement Scheme, Voluntary Retirement Scheme and Land Surveyor as provided in the Sugar Industry Efficiency Act and the Land Surveyor’s Council Act respectively;
(b) provide a revised definition for morcellement, as the division of a plot of land or land of a holder of a title deed into two or more lots does not include State Land;
(c) eliminate the requirement for the submission of a PER when applying for a morcellement permit;
(d) provide that the Morcellement Board may, within 2 weeks of receipt of an application, make only one written request for additional information specifying the time limit for submission;
(e) reflect that section 15 of the Additional Stimulus Package (Miscellaneous Provisions) Act, relating to Morcellement Act, has lapsed; and
(f) provide that an excision or a morcellement under the Property Development Scheme or the Smart City Scheme will not require a morcellement permit.

Financial Intelligence and Anti-Money Laundering Act : implementation of more sanctions

The Financial Intelligence and Anti-Money Laundering Act will be amended to allow for necessary sanctions to be imposed where a financial institution fails to comply with guidelines of the BoM for the prevention of money laundering and financing of terrorism.
The Financial Services Act will be amended to –
(i) allow the FSC to –
a. give directions to any person as may be required, for the purposes of its functions, to ensure compliance with licensing conditions;
b. take actions against a licensee which fails to comply with section 52 or section 52A of the Bank of Mauritius Act; and
c. appoint an administrator in relation to the business activities of a person whose authorisation has been withdrawn;
(ii) ensure that licensees maintain the requirements needed for the grant of a licence at all times;
(iii) extend the scope of the offence with respect to licensees who provide false and misleading information;
(iv) extend the scope of the offence with respect to a person who destroys, falsifies, conceals or disposes of, or causes or permits the destruction, falsification, concealment or disposal of any document, information stored on a computer or other device where such information is relevant to the Commission;
(v) clarify that the Review Panel needs to receive the application for review within 21 days of the issue of the written notification;
(vi) allow for any determination of the Review Panel to be published except that any information which the Review Panel considers to be sensitive shall be omitted;
(vii) allow the FSC to regulate Custodian Services (Digital Asset) and Digital Asset Marketplace;
(viii) allow the FSC to regulate Compliance Services and Global Shared Services;
(ix) cease the issuance of Category 2 Global Business Licence as from 1st January 2019;
(x) rename the Category 1 Global Business Licence as Global  Business Licence;
(xi) remove all restrictions applicable to dealings in Mauritius;
(xii) provide that all resident companies and partnerships incorporated/registered under the laws of Mauritius whose majority shareholdings/parts are held by non-resident and which conduct business mostly outside Mauritius will be required to seek a Global Business Licence or an authorisation from the FSC, through a duly appointed Management Company. The latter will be responsible for Anti-Money Laundering/Combating the Financing of Terrorism (AML/CFT), Legal, Regulatory & Corporate Governance compliance of these companies/partnerships; and
(xiii) provide for enhanced substance requirements for entities holding a Global Business Licence.

Environment Protection Act : reduction of time frame

The Environment Protection Act will be amended to –
(a) define “National Electronic Licensing System” as established under the Economic Development Board Act 2017;
(b) provide for the electronic submission of a preliminary environment report (PER) through the NELS, and to clarify that a PER has to be in conformity with the policy or relevant environmental guidance. Provision will also be made for a PER to specify the particulars of the applicant of the undertaking or his duly appointed legal representative;
(c) make provision for the applicant to submit electronically any additional information, specified in guidelines issued by the Director of Environment. Likewise, provision will be made for the Director of Environment to request public department, enforcing agency, non-governmental organisation or any other person to submit their observations on the PER electronically;
(d) provide a time frame of 5 days, from the date of receipt of a PER, for the Minister responsible for the subject of the environment to make a determination (i.e. approve, reject or request submission of an application for an Environmental Impact Assessment (EIA) licence);
(e) provide for the electronic application of an EIA Licence and submission of an EIA report electronically, through the NELS. Furthermore, only 3 printed copies, instead of 15, will have to be submitted by the applicant;
(f) remove the requirement for an EIA report to be signed by the proponent or his duly appointed legal representative. The EIA report will, however, have to specify the particulars of the proponent or his duly appointed legal representative;
(g) provide for a time frame of 3 working days from the date of receipt of the application, for the Director of Environment to issue to the applicant an acknowledgement receipt, electronically where the application is complete and, where the application is not complete, request electronically any remaining information to be submitted within 5 working days of the request for missing information;
(h) clarify that an EIA report need not be signed but only certified by the proponent and all principal consultants who prepared or assisted in the preparation of the EIA;
(i) provide for a reduced time frame of 3 days, instead of 14 days from the submission of an application for an EIA licence, for the Director of Environment to give notice for public inspection of an EIA report submitted;
(j) remove the requirement for publication of the notice for public inspection in the Government Gazette while maintaining publication in 2 consecutive issues of 2 daily newspapers;
(k) reduce the time frame for the EIA Committee to examine an application within 28 days instead of 42 days of the date of expiry of the time limit set for public comments;
(l) make provision for the Director of Environment to request public departments, enforcing agency, non-governmental organisation or any other person to submit their observation on the EIA report electronically;
(m) eliminate the requirement for a transferor in the case of a transfer of undertaking to send notification by registered post;
(n) provide that the EIA Committee will have to submit its recommendations to the Minister responsible for the subject of the environment, within a reduced time frame of 7 days instead of 14 days of the date the application for an EIA licence was referred to it by the Director of Environment;
(o) reduce the time frame from 14 days to 7 days for the technical advisory committee to advise the Minister of Environment regarding an EIA application. The Minister shall, within 7 instead of 14 days of receiving the advice of the technical advisory committee, approve or reject an EIA application;
(p) provide that the Director of Environment makes arrangements to publish within 3 days instead of 7 working days of the date of the Minister’s decision, a summary of decision in respect of the approval or rejection of an EIA with relevant details, in the same newspapers, in which the notice of application was initially provided;
(q) eliminate the requirement for a PER regarding the parcelling out of land above 5 hectares for agricultural purposes, where the parcelling involves infrastructure work;
(r) repeal part IX relating to the National Environment Fund; and
(s) provide that, as regards parcelling of land, an EIA licence will be required where – (i) land clearing, road infrastructure and utility services are involved in environmentally sensitive areas referred to in the Development Management Maps of the Outline Schemes or as determined by the Ministry of Environment; and
(ii) the parcelling is other than by way of division in kind among heirs.