Abstract
This paper critically assesses the legality of Decision No. 001/ARECOMS/2025, which imposed a temporary suspension on cobalt exports from the Democratic Republic of Congo (DRC). Adopted in a context of declining cobalt prices, this measure raises concerns about its compliance with the current legal framework, particularly in light of the provisions of the Mining Code. Through a cross-analysis of the relevant legislative and regulatory texts, the article highlights the potential legal risks of such a decision and its institutional implications for mining sector governance.
Introduction
Cobalt is now a globally strategic resource, particularly due to its role in energy transition technologies. As the world's leading producer, the Democratic Republic of Congo (DRC) is particularly vulnerable to market volatility. In this context, the Strategic Mineral Substances Market Regulation and Control Authority (ARECOMS) decided, on 22 February 2025, to temporarily suspend cobalt exports. While the measure was aimed at stabilizing prices, it raises serious questions regarding its legality. The central issue is whether such action falls within the scope of authority of an institution that, although specialized, is not explicitly designated by the Congolese Mining Code as competent to enact binding export restrictions.
I. Legal Framework Governing Cobalt Regulation
The regulation of the mining sector in the DRC is structured around the Mining Code and its implementing regulations. Article 16 of the Mining Code stipulates that only specific authorities are empowered to enforce its provisions. ARECOMS, established by Decree No. 19/16 of 5 November 2019, is not explicitly mentioned therein. Its responsibilities focus on market regulation and administrative and technical oversight, but not on limiting exports.
This absence of express delegation raises questions about the legal competence to suspend the export of a mineral product, even one deemed strategic.
II. Assessment of the Decision in Light of the Principle of Legality
Under Congolese administrative law, an authority may only act within the strict limits of the powers conferred upon it by law. An abuse of authority arises when an entity exceeds its legal mandate. By suspending exports, ARECOMS issued a binding decision that affects the economic rights of mining operators. This measure may be deemed unlawful, as such competence falls exclusively within the remit of the Ministry of Mines. Consequently, the decision is subject to annulment by administrative courts, with all resulting legal implications.
III. Legal and Institutional Implications
The issuance of an unlawful decision by a public authority is not without consequences. It exposes the State to liability claims, undermines legal predictability for investors, and fosters institutional uncertainty. The coexistence of multiple entities in the mining sector without clear delineation of powers promotes jurisdictional conflicts and erodes transparency. It is therefore essential to consider reforming the legal framework applicable to ARECOMS or updating the Mining Code to harmonize the roles of the various institutions involved.
Conclusion
The suspension of cobalt exports by ARECOMS serves as a paradigmatic example of tensions between economic objectives and legal imperatives. While the State must be able to intervene to stabilize its strategic markets, it must do so in compliance with legally established competences. Failing to do so could undermine the attractiveness of its mining sector and expose the State to avoidable litigation. Clarification of both the ARECOMS Decree and the Mining Code is now imperative.
Bibliographic References
I. Doctrinal Sources
- Muepu Muamba, B. (2018). * Droit administratif congolais*. Éditions de l'Université de Kinshasa.
- Mpiana Kabongo, J. (2021). * Principes de droit administratif en République Démocratique du Congo*. Presses Universitaires du Congo.
- Kasongo Kalonda, D. (2017). * Régime juridique des ressources naturelles en RDC*. L'Harmattan.
- Makengo Massamba, C. (2020). The Reforms of the Congolese Mining Code: Continuities and Breaks. * Revue congolaise de droit et d'économie*, No. 12.
- Mutombo Beya, S. (2022). * Governance of Natural Resources in Central Africa*. Éditions Universitaires Africaines.
II. Case Law
- Council of State (DRC), Judgment No. 053/CA/2017, BCDC v. Ministry of Finance.
- Council of State (DRC), Judgment No. 0102/CA/2021, SOCIMEX v. General Directorate of Customs.
- CCJA, Judgment No. 026/2015, Bolloré Africa Logistics v. Republic of Benin.
III. Other Relevant Sources
- Mining Code of the DRC, as amended by Law No. 18/001 of 9 March 2018.
- Decree No. 19/16 of 5 November 2019 establishing ARECOMS.
- EITI-DRC Reports (2021–2024), available at https://itie-rdc.org.
- World Bank (2023). * Mineral Sector Governance in the DRC: Gaps and Reforms*. Policy Note
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