Angolan Public Appropriation Law
On May 25th, 2022, Law n.º 13/22 of May 25th was published, which aims to regulate the Legal Regime applicable to Public Appropriation, thus revoking Law n.º 3/76 of March 3rd on Economic and Resistance Policy and Law n.º 1/82 of February 2nd, on the Powers attributed to the Council of the Revolution, regarding nationalizations and confiscations.
This Diploma introduces several novelties, duly adapted according to the current Angolan reality and in accordance with the Constitution of the Republic of Angola.
In this way, with the entry into effect of the Law of Public Appropriation, the State was given the power to transfer goods from the private legal sphere to the public legal sphere, by means of the following ways:
- By way of nationalization;
- By voluntary delivery of goods; and
- By judicial decision.
Regarding Public Appropriation via Nationalization, it is necessary to emphasize that this is the exclusive competence of the President of the Republic, as the Holder of Executive Power, and as a result, legal entities can be transformed into public companies.
By way of Nationalization, the assets are considered to be transferred to the State regardless of any formalities, being enforceable against third parties after registration, however, the holders of lawful appropriated assets, as well as the possible holders of liens and encumbrances placed on them, enjoy the right to compensation.
Under the terms of the present diploma, even in the event of the nationalization of a legal person, or of shareholdings and other assets held by it, the legal personality of the legal person is not automatically extinguished, nor does the legal nature of the legal person change. The legal person will continue to hold the universality of assets, rights and obligations, legal or contractual, that it holds on the date of the nationalization, in particular those arising from employment contracts.
However, it is forbidden for the corporate bodies or members of the legal person to perform acts that are not of mere current management, to perform acts of execution of deliberations or decisions taken before the nationalization, or to enter into contracts that may alter the patrimonial situation of the legal person, unless expressly authorized, under penalty of nullity of the acts and contracts and of the liability of the body or members for the resulting damag
The Public Appropriation by way of Voluntary Delivery, occurs when the practice of illicit acts harmful to the public patrimony is at stake, where those involved have the faculty to proceed with the voluntary delivery of the goods object of the process, with a certified and notarized declaration being drawn up, subject to judicial homologation.
Note that the voluntary delivery of goods does not extinguish criminal proceedings or proceedings of another nature related to the delivered goods, but it is a mitigating circumstance under the terms of the Penal Law.
Finally, Public Appropriation by Judicial Decision, occurs with the voluntary delivery Judicial declaration of transfer of assets to the State, issued by the competent Judicial Magistrate, to be decreed in the very criminal process in which there is evidence of illicit appropriation of public assets.
Along with the above, the grounds for appropriation include (i) safeguarding the national interest and (ii) the fraudulent use of public assets or resources, with high losses to the State.
For this purpose, movable, immovable and social participation assets, even if they have been the object of legal or voluntary succession, of private individual and corporate persons, when for specially justified reasons, constitute the object of public appropriation.
Finally, assets, stakes or rights nationalized under this law may be subject to reprivatization under the terms of the law.