Doing Business In... 2023 Comparisons

Moroccan law is based on civil law and on Muslim traditions as regards certain aspects, such as personal status issues, family law, inheritance, rights in rem, etc. Some aspects of land law (land ownership registration) are also inspired by Australian law. The general law is governed by the Dahir of obligations and contracts, which is a legacy of the French protectorate and is largely inspired by Roman (civil) law.

The Moroccan judicial system is made up of courts of first instance and courts of appeal, with the Court of Cassation at the top of the hierarchy. Administrative law is judged by specific administrative courts.

Jurisdictions of the First Degree

First instance courts

The scope of this type of court is very broad: they try all cases that have not been specifically assigned to another court. These courts may comprise several chambers (family chamber, civil chamber, etc). The court of first instance rules as a collegiate court (three judges), but it may also rule by a single judge in certain cases.

Commercial courts

These are competent to judge all commercial disputes (actions relating to commercial contracts, commercial bills, etc).

Local courts

These are divided into two types: those installed within the courts of first instance (urban communes), and those installed within the jurisdiction of the resident judge's centre (rural communes). The procedure before these courts is oral and free of charge. They hear personal and movable actions for amounts not exceeding MAD5,000 (roughly USD500). However, they have no jurisdiction over disputes relating to personal status, real estate and social affairs.

Jurisdictions of the Second Degree: Courts of Appeal

The role of these courts is to consider appeals from decisions rendered by the courts of first instance (first instance courts, trade courts, administrative courts, etc).

The Supreme Court (Cour de Cassation)

This has jurisdiction over the entire territory and is divided into chambers (civil, criminal, commercial, etc), each composed of a president and advisers.

In principle, any decision rendered at last instance by the courts of first instance or by the courts of appeal may be appealed to the Supreme Court. The Supreme Court does not constitute a third level of jurisdiction; it controls conformity with the law without re-examining the facts and fixes the direction in which the rule of law must be applied.

Administrative Courts: Administrative Tribunals and Administrative Courts of Appeal

These are competent to judge disputes relating to administrative contracts and electoral disputes, and actions for compensation for damages caused by the acts or activities of public persons.

The Moroccan government actively encourages foreign investment, and foreigners may generally invest in the country in the majority of sectors. However, some exemptions apply for specific sectors, as discussed below.

• The investment regime in terms of foreign exchange is very open, since investors do not even need to obtain prior approval. Since the reform of the general instruction of the foreign exchange office in January 2022, foreign investors are no longer required to declare their investments in Morocco, but foreign investment may still need to proceed with such declaration in order to avoid some difficulties in the repatriation of the investment process.
• Foreign investments must be financed in foreign currency and declared to the foreign exchange office in order to benefit from a convertibility regime that guarantees freedom to the foreign investors regarding:
1. the transfer abroad of income produced by these investments; and
2. the transfer abroad of the proceeds of liquidation or disposal of their investments.
• The operation of the country's main mining resource (ie, phosphates, of which Morocco is the world's leading exporter and third largest producer) is under a state monopoly, exercised by the Office Chérifien des Phosphates (OCP). Several sectors also remain under public monopoly, managed either directly by public institutions (rail transport, certain postal services and airport services) or by municipalities (eg, slaughterhouses).

• Since the entry into force of Law 62-19 in July 2021, the acquisition of agricultural land is now open/free to joint stock companies whose shareholders are foreigners, without the need to obtain a certificate of non-agricultural vocation, which was previously requested. Nevertheless, such joint stock companies may use the agricultural land under certain conditions (keeping the agricultural purpose, obtaining an authorisation from the regional investment commission, etc). Foreign investors may now be shareholders of Moroccan joint stock companies that purchase agricultural land for the purpose of carrying out an agricultural project, which is a major innovation.
• The Moroccan National Agency for Hydrocarbons and Mines (ONHYM) shall retain a mandatory 25% share of any exploration or development permit in the oil and gas sector.

To invest in Morocco, there is no general approval procedure for foreigners that differs from that provided for Moroccans. For example, in terms of foreign exchange, the investment regime in Morocco is very open since investors do not even need to obtain prior approval. Foreigners may in principle hold 100% of any Moroccan asset (including companies).

As explained in 2.1 Approval of Foreign Investments, foreign investors do not need to obtain specific prior approval before their investment. The same rules that are applicable to Moroccans are applicable to foreigners.

See 2.2 Procedure and Sanctions in the Event of Non-compliance and 2.3 Commitments Required From Foreign Investors.

Limited Liability Company (Société à Responsabilité Limitée – SARL)

A limited liability company has the following features.

• The applicable law is Law No 5-96 as amended and completed.
• Nature:
1. commercial company;
2. the liability of the partners is limited to their contributions to the capital;
3. the limited liability company cannot be a bank, loan, investment, insurance, capitalisation or listed company.
• Shareholders:
1. one to 50 shareholders;
2. a limited liability company could be held by a sole shareholder, but this sole shareholder cannot be a limited liability company with a sole shareholder.
• The minimum legal capital shall be freely set by the shareholders in the articles of association (or by-laws) – usually, a minimum of MAD10,000 is provided for.

Joint Stock Company (Société Anonyme – SA)

A joint stock company has the following features.

• The applicable law is Law No 17-95 regarding joint stock companies as amended and completed.
• Nature:
1. commercial company;
2. the liability of the partners is limited to their contributions to the capital;
3. best suited as a holding company or a public company, and for big projects requiring an important share capital;
4. the joint stock company may make a public offering.
• There must be a minimum of five shareholders.
• The minimum legal capital is MAD300,000 (MAD3 million for listed companies).

Simplified Joint Stock Company (Société Par Actions Simplifiée – SAS)

A simplified joint stock company has the following features.

• The applicable law is Law No 17-95 regarding joint stock companies as amended and completed, and Law No 5-96 as amended and completed.
• Nature:
1. commercial company;
2. the liability of the partners is limited to their contributions to the capital;
3. same type as joint stock company but with simpler operation;
4. the simplified joint stock company may not make a public offering.
• May be held by one or several shareholders.
• Minimum legal capital shall be freely set by the shareholders in the articles of association.

The main steps and timing regarding incorporation are as follows:

• registration of the company name with the Moroccan Office of Industrial and Commercial Property (Office Marocain de la Propriété Intellectuelle et Commerciale – OMPIC), either online with the Regional Centre of Investment, or directly with the OMPIC – this takes one to two days;
• the minimum time required to open a bank account and for the shareholders to pay up their contributions in cash is one to two weeks (the time period for the bank to receive the contributions from abroad);
• document preparation, signing and legalisation (by-laws, minutes of the general assembly, etc) – this takes one to two weeks;
• formalities and actual registration of the company within the trade registry, the tax administration and the national social security fund – this takes one to two weeks;
• on average, the total time required to register or obtain a VAT tax number/tax identification number/trade registration number should be two weeks from registration.

Decisions of the partners, such as the appointment and dismissal of directors, amendments to the articles of association, approval of the annual accounts, appointment of an auditor, increase or reduction of capital, transfers of shares (except for joint stock companies), etc, are subject to filing with a clerk of the trade registry.

Any act, deliberation or decision that has the effect of amending the by-laws must be published in a journal of legal notices and in the official bulletin, with the exception of a change in directors, members of the supervisory board and statutory auditors initially designated in the by-laws. For example, the following decisions, among others, must be published:

• the decision not to dissolve the company despite the fact that the net situation has become inferior to the quarter of the share capital;
• change of the corporate name;
• the transfer of the registered office;
• the extension of the company's duration;
• operations relating to the share capital (increase or decrease);
• change of legal form; and
• modification of the corporate purpose.

The management structures in the most common legal entities are as follows.

Limited Liability Companies

These have one or more managers (gérants) (natural persons), each of whom is, in principle, a full legal representative of the company.

Joint Stock Companies

Joint stock company with a board of directors (conseil d'administration)

These have a board of directors with between three and 12 board members (15 for listed companies), who may be legal or natural persons. One or several general managers may also be appointed.

When the president of the board of directors is also the general manager of the company, such individual is called the président directeur général. The président directeur général (if present) or the general manager (directeur général) is the legal representative of the joint stock company.

Joint stock company with a management board (directoire) and a supervisory board (conseil de surveillance)

These have a management board of up to five members (natural persons) (seven members for listed companies), and a supervisory board with between three and 12 members (15 members for listed companies), who may be legal or natural persons.

The management board may be composed of one sole person if the share capital is lower than MAD1.5 million.

The president of the management board (président du directoire) is the legal representative of the joint stock company.

Simplified Joint Stock Companies

A president must be appointed by the by-laws and may be a legal or a natural person. The president is the legal representative of the company. One or several general managers may (or may not) also be appointed to support the president in the management of the company.

The liability of the directors may arise in the case of mismanagement (if the director does something that is contrary to the interest of the company), violation of the by-laws of the company or non-compliance with legal and regulatory provisions. If the director commits a fault that is separable from their functions, that director may incur civil liability – ie, they will have to repair/compensate for the damage suffered. In practice, the injured party will initiate a liability action against the director. If the liability action is successful, the director may be ordered to pay damages.

In certain cases limited by law, the director of a commercial company may incur criminal liability. This is the case, for instance, when the director commits an abuse of corporate assets, distributes fictitious dividends, does not draw up the company accounts or presents untrue accounts, or does not file the company's annual accounts with the trade registry.

Moroccan employment law is based on several legal sources, listed here in order of priority:

• Moroccan constitutional law;
• international treaties;
• the Moroccan Labour Code;
• decrees and regulations;
• companies’ common practices and unilateral decisions (usages et engagements unilatéraux);
• companies’ internal regulations; and
• individual employment contracts.

Moroccan employment law has not really evolved since the 2004 promulgation of Law 65-99 on the Labour Code, despite the demands of several professional federations and bills (which have not been adopted).

Numerous principles and practices have been defined by case law, which is an important source in this area.

Proof of the existence of an employment contract can be provided by any means. Jurisprudence considers the subordination link as the element proving the employment relationship. Thus, a Moroccan judge would consider that “the employment relationship is proven by the direction, control and supervision that the employer exercises over the employee”.

According to the Labour Code, the employment agreement can be verbal or written, except for temporary employment contracts, which must include mandatory clauses. However, it is common practice and preferable to establish a written agreement. The standard clauses include:

• the employee’s position;
• duties;
• remuneration;
• working time;
• place of work and mobility provision;
• notice period and trial period; and
• restrictive covenants (non-compete and non-solicitation provisions).

The two most common types of employment contracts are indefinite-term and fixed-term contracts. Both can be entered into on either a full-time or part-time basis.

Fixed-term contracts cannot be used to fill permanent positions, and the Labour Code provides a limited list of specific circumstances in which an employer may enter into a fixed-term contract – ie, replacement of an employee, increased activity, or if the work is seasonal.

According to Moroccan law, the employer cannot unilaterally amend the essential terms of the employment contract, but minor changes can be made without the employee’s prior consent.

Foreign Employees

Moroccan labour law provides specific obligations for foreign employees, who must enter into a Contrat de Travail Etranger (CTE) with the local company. However, employees usually enter into a more detailed contract (the CTE is only a form to complete and submit). The CTE is applicable even if the employee is seconded from abroad (normally entailing the absence of a local contract).

Foreign employees must be paid locally to a local bank account, the opening of which is subject to the provision of legal documents (visa/permit card delivered by Moroccan authorities). They are subject to specific foreign exchange regulations regarding the transfer of money abroad.

According to Moroccan labour law, the normal working hours for non-agricultural activities are fixed at 2,288 hours per year, or 44 hours per week. The employer may adopt a weekly repartition system or an annual repartition system of working hours.

The employer is free to determine the distribution of working hours, and may choose to distribute the 44 hours equally or unequally over the days of the week, provided that they do not exceed ten hours per day (unless these are considered overtime).

According to the Labour Code, the employees of companies that must face national interest work or exceptional extra work may be employed beyond the normal working hours, provided that they receive overtime compensation, in addition to their salaries.

According to the Labour Code, regardless of the remuneration method, overtime gives rise to a salary increase of 25% if it is performed between 6am and 9pm for non-agricultural activities, and 50% if it is performed between 9pm and 6am. This increase reaches 50% and 100% respectively if the overtime hours are worked during the employee’s weekly rest day, even if compensatory leave is granted. Overtime is paid at the same time as the wages due and mentioned on payslips.

An employment contract can be terminated in the following ways:

• by dismissal (for personal or economic reasons);
• by the resignation of the employee;
• due to the legal retirement age;
• by the intervention of a force majeure; and
• by virtue of the expiry of the contractual term (for fixed-term contracts).

The dismissal must be based on a valid reason and comply with a specific procedure set by labour law. It entitles the employee to a termination indemnity unless the employee has resigned or committed a serious fault, or unless a force majeure has occurred.

There are two categories of dismissal: for personal reasons and for economic reasons. A dismissal for personal reasons may result from the commission of serious misconduct by the employee, or from behaviour that is not a fault but justifies the termination of the contract.

The dismissal procedure is strictly regulated by the Labour Code, which provides for:

• a restrictive list of cases considered to be serious misconduct;
• a system of graduation of sanctions within a given time; and
• a prior hearing procedure.

Jurisprudence considers that failure to respect the dismissal procedure leads de facto to its qualification as an abusive dismissal. Damages for abusive dismissal granted by a court to a dismissed employee vary depending on the length of service of the employee. However, they are capped at 36 months' salary.

Dismissals for technological, structural or economic reasons affecting ten or more employees are also subject to specific procedural rules, requiring, in particular, consultation with employee representatives and a prior authorisation from administrative authorities. In practice, aside from special cases, such a procedure is rarely successful because of the lack of authorisation from the authorities.

Under Moroccan labour law, the following four institutions represent employees to the employer.

• Staff delegates: these delegates must be elected in all companies usually employing at least ten permanent employees. Duties include presenting to the employer all the individual claims that would not have been directly satisfied and that relate to the working conditions resulting from the application of the labour legislation, the employment agreement, the collective labour agreement or the internal rules.
• Union representatives: the most representative trade union that obtained the highest number of votes in the most recent professional elections within the company has the right to appoint one or more union representatives from among the union office members in the company. Union representatives' duties include submitting the claims file to the employer (or its representative), defending collective claims and initiating negotiations for this purpose, and participating in the conclusion of collective labour agreements.
• Work's council: this council must be created within each company usually employing at least 50 employees, and has an advisory role.
• The health and safety committee: this committee must be created within each company usually employing at least 50 employees. It also has an advisory role and aims to involve employees in prevention actions and improve working conditions.

In Morocco, salaries paid by an employer fall into the category of net categorical income known as “salaried and similar income” and are subject to income tax withholding, which is paid by the employer on behalf of the employee. In this context, gross salaries are taxed at the marginal rate of 38% under Article 73-I of the Moroccan Tax Code (Code Général des Impôts – CGI).

Morocco has the same taxes as most countries/jurisdictions that regularly trade with Morocco.

Corporation Tax

Corporation tax is mainly intended to apply to profits made by Moroccan companies and by branches of foreign companies in Morocco. However, tax law makes a distinction between companies that are automatically subject to corporation tax and those that are subject to it by choice, depending on the status of the partners of certain taxable companies. In addition, because of the activity of certain taxable entities, or simply to encourage investment in Morocco, tax law has provided for total or partial exemptions from corporation tax, either temporarily or permanently.

Corporate income tax (CIT) will apply at the rate of 20% to companies whose taxable income is less than MAD100 million, or at the rate of 35% to companies whose taxable income is above MAD100 million. CIT will reach these rates by 2026.

While CIT is generally applied to the taxable income of an accounting period, it may be levied by way of withholding tax in the case of payment by a Moroccan company of certain income, such as dividends or interest.

In addition, the scope of application of CIT extends to the following:

• certain Moroccan-source income paid to resident or non-resident companies;
• foreign companies in respect of the activity they carry out in Morocco through a permanent establishment or as part of a complete business cycle;
• the profit-making operations they carry out in Morocco; and
• income for which taxation is attributed to Morocco by an international tax convention on double taxation.

Withholding Tax on Companies

In parallel with the ordinary CIT regime, Moroccan tax law has provided for special CIT taxation regimes for certain products and for companies carrying out certain activities in Morocco. The system of withholding tax, provided for in Article 4 of the CGI, is applicable to certain products paid by Moroccan companies (products from shares and corporate units, fixed income investment products, income from Sukuk certificates and gross products paid to non-resident companies in return for work or services), and the optional flat-rate taxation system is available for foreign companies awarded construction or assembly contracts in Morocco that have opted for flat-rate taxation. It should be noted that regional or international headquarters with the status of “Casablanca Finance City” are subject to a special tax regime.

VAT

VAT is an indirect tax on consumption that applies to taxable operations considered to be carried out, operated or used in Morocco. Its scope is very broad insofar as VAT applies to operations of an industrial, commercial or artisanal nature or to the exercise of a liberal profession. The scope of VAT is also analysed at the level of taxable persons and taxable operations, in order to determine, firstly, whether these operations and persons are placed within the scope of VAT (operations and persons known as “taxable persons”), and secondly, whether these operations and taxable persons are taxed or exempted.

The rules relating to the chargeable event and the determination of the taxable amount of VAT constitute the rules governing the VAT base. The chargeable event is the event that gives rise to the VAT debt of the taxpayer towards the Treasury. In principle, the chargeable event for VAT is the total or partial collection of the amount of the taxable transaction. However, it is possible to opt for the “debit” system under certain conditions.

The taxable amount, or taxable base, of VAT consists of everything that the taxable person collects or receives in return for the taxable transaction. It thus includes the price of goods, works or services and the ancillary revenue relating thereto, as well as the costs, duties and taxes relating thereto, with the exception of the VAT itself. The VAT rate comprises a standard rate of 20%, with reduced rates of 7%, 10% and 14%.

Business Tax

The basis of assessment for the business tax is the rental value of the elements used for the exercise of the company's activity (establishments taken as a whole and equipped with all their means of production, including goods rented or acquired through leasing). The business tax is levied at the rate of 10%, 20% or 30%, depending on the activity carried out.

Any newly created professional activity benefits from a five-year exemption from business tax from the date of commencement of the activity (ie, the first acquisition of goods or services). However, branches awarded works, supply or service contracts do not benefit from this exemption.

Morocco has a number of tax credits and tax incentives. Firstly, there are tax benefits granted to certain sectors of activity, aimed at companies located in industrial acceleration zones and industrial companies carrying out activities set by regulation (the transport, mining, handicraft, private education and vocational training, sports, tourism, real estate, agriculture and hydrocarbons sectors). There are also advantages granted regardless of the sector of activity, or advantages granted to certain areas and companies or particular organisations. Finally, there are also incentives for the stock market and savings.

Tax consolidation is not available in Morocco.

In application of Article 10-II-A-1° of the CGI, when a Moroccan or non-Moroccan shareholder of a Moroccan company grants a loan to the company, the tax deductibility of interest paid by the Moroccan company is granted with the following limits (thin capitalisation rules):

• the share capital of the borrower must be entirely paid up;
• the amount of the shareholder's loan must not exceed the amount of the share capital of the borrower (debt to equity ratio of 1:1); and
• the interest rate must not exceed the rate fixed annually by the Ministry of Finance for a tax year (1.89% for the 2023 financial year).

The Moroccan tax administration's legislative arsenal has recently been modernised in the area of transfer pricing, with the introduction of a documentation obligation, codified in Article 214-III of the CGI. Paragraph A, introduced by the 2019 Finance Law and amended by the 2021 Finance Law, provides that companies that have carried out transactions with companies located outside Morocco and with which they have direct or indirect dependency links referred to in Article 210 (fifth paragraph) must communicate to the tax authorities, by electronic means, the documentation to justify their transfer pricing policy, the list and modalities of which are set by regulation, comprising:

• a master file containing information on all the activities of affiliated companies, the overall transfer pricing policy applied and the distribution of profits and activities worldwide; and
• a local file containing information specific to the transactions that the audited enterprise carries out with the above-mentioned non-arm's length enterprises.

This documentation is produced by such enterprises when:

• their declared turnover, excluding VAT, is equal to or greater than MAD50 million; or
• their gross assets as shown in the balance sheet at the end of the financial year concerned are equal to or greater than MAD50 million.

In the absence of communication of all or part of the aforementioned documentation, during the verification of a financial year the taxpayer is invited in the manner provided for in Article 219 to produce the missing documents within 30 days from the date of receipt of the request for communication of said documents.

In addition, the 2021 Finance Act introduced a penalty for failure to produce or for incomplete production of the transfer pricing documentation referred to in Article 214-III-A of the CGI. From now on, failure to provide the required documents will result in the application of a fine equal to 0.5% of the amount of the undocumented intra-group transactions, although the amount of the fine may not be less than MAD200,000 per audited year (Article 185-IV of the CGI).

Morocco is a member of the global forum to combat tax fraud, and has adapted the OECD and BEPS-inspired principles into its system.

Moreover, it should be noted that, even if the automatic exchange of financial information is not yet effective, the Moroccan tax administration has never had so many tools as it does currently to track down tax fraud under the Multilateral Convention on Mutual Administrative Assistance, which was signed by Morocco on 21 May 2013, has been in force in Morocco since 1 September 2019, and was published in the Bulletin Officiel du Royaume du Maroc (BORM) on 5 May 2020.

In terms of competition, a merger is performed when:

• two or more previously independent businesses merge;
• one or more persons already holding control of at least one business acquires – directly or indirectly, and whether by acquiring a stake in the capital, through the purchase of assets, by contract or by any other means – control of the whole or part of another business or of the whole or parts of several other businesses;
• one or more companies acquire – directly or indirectly, whether by way of acquiring capital, through the purchase of assets, by contract or by any other means – control of the whole or parts of another business or of the whole or parts of several other businesses; or
• a joint venture that performs all the functions of an autonomous economic entity is created.

If two or more of the aforementioned transactions take place within a two-year period between the same persons or undertakings, resulting in a change of control, they are deemed to constitute a single concentration/merger on the date of the last transaction.

In accordance with Article 12 of Law 104-12 on competition, any merger must be notified to the Competition Council by the companies and parties concerned, prior to its implementation. This obligation applies when one of the following three thresholds is met:

• the total worldwide turnover of all the companies or groups of natural or legal persons/parties to the concentration, excluding taxes, exceeds MAD1.2 billion and the turnover achieved in Morocco individually by at least one of the companies or groups of natural or legal parties to the merger exceeds MAD50 million;
• the total turnover, before tax, achieved in Morocco by all the undertakings or groups of natural or legal parties to the merger exceeds MAD400 million, and the turnover, before tax, achieved in Morocco individually by at least two of the undertakings or groups of natural or legal parties to the merger exceeds MAD50 million; and
• the companies that are parties to the act, or are the object of it, or are economically linked to it, have together realised, during the previous calendar year, more than 40% of sales, purchases or other transactions on a national market of goods, products or services of the same kind or substitutable, or on a substantial part of it.

The merger shall be notified to the Competition Council as soon as the parties concerned are in a position to present a project that is sufficiently mature to allow the file to be examined, in particular when they have concluded an agreement or signed a letter of intent, or as soon as a public offer has been announced.

The obligation to notify is incumbent on the natural or legal persons acquiring control of all or part of an undertaking or, in the case of a merger or the creation of a joint venture, on all the parties concerned, which must then notify jointly.

The Competition Council shall decide on the merger within 60 days of receiving the complete notification. It may:

• declare, by reasoned decision, that the operation notified to it does not fall within the scope of notifiable mergers;
• authorise the transaction, possibly making such authorisation subject to the effective implementation of the commitments made by the parties, in a reasoned decision; or
• initiate an in-depth review, if it considers that there are serious doubts as to whether the transaction would harm competition, or that competition is being harmed.

When a merger is subject to an in-depth review, the Competition Council shall make a decision within 90 days from the opening of the review.

Fees

The fee for studying the notification file of a merger/concentration operation is set at 0.1% of the amount of the transaction, but cannot be less than MAD20,000 or more than MAD150,000. In the event of non-declaration of the amount of the transaction, the maximum amount of the fee is applied to the parties holding the burden of notification.

When the notification concerns the creation of a new company, the fee is set at MAD20,000.

Such fees are paid within one month of the date of receipt by the parties of the Competition Council's decision, regardless of its outcome.

Law 104-12 on competition and its implementing decree provide for certain rules concerning anti-competitive agreements and practices. According to Article 6 of Law 104-12, concerted actions, cartels, understandings or coalitions, express or tacit, in any form and for any reason whatsoever, are prohibited when their purpose or effect is to prevent, restrict or distort competition in a market, particularly when they intend to:

• limit access to the market or the free exercise of competition by other companies;
• obstruct the formation of prices through free market conditions by artificially favouring their rise or fall;
• limit or control production, markets, investments or technical progress; or
• allocate markets, sources of supply or government contracts.

Any commitment, agreement or contractual clause relating to one of these practices is null and void.

Furthermore, any natural person who, fraudulently or knowingly, has taken a personal and determining part in the conception, implementation or control of such practices will be punished by imprisonment of two months to one year and/or a fine of MAD10,000 to MAD500,000.

Law 104-12 on competition and its implementing decree provide for certain rules concerning anti-competitive agreements and practices. Article 7 of Law 104-12 on competition provides that abuse by an enterprise or group of enterprises is prohibited where it has the object or effect of preventing, restricting or distorting competition, where the abuse is:

• of a dominant position in the domestic market or in a substantial part of it; or
• of a situation of economic dependence in which a customer or supplier has no other equivalent alternative.

The abuse may consist in particular of refusal to sell, tied sales or discriminatory sales conditions, as well as the breaking off of established commercial relations, for the sole reason that the partner refuses to submit to unjustified commercial conditions. It may also consist of directly or indirectly imposing a minimum price on the resale price of a product or good, on the price of a service or on a commercial margin.

Any commitment, agreement or contractual clause relating to one of these above-mentioned practices is null and void.

Furthermore, any natural person who, fraudulently or knowingly, has taken a personal and determining part in the conception, implementation or control of such practices will be punished by imprisonment of two months to one year and/or a fine of MAD10,000 to MAD500,000.

In Morocco, two offices are in charge of intellectual property:

• the OMPIC for industrial property titles such as patents, trade marks, designs and models, as well as for the trade register; and
• the Moroccan Copyright Office (BMDA) for aspects relating to copyright and related rights.

Intellectual property is governed by two main legislative texts:

• Law No 17-97 relating to industrial property, as amended and completed by Laws 23-13 and 31-05; and
• Law No 2-00 relating to copyright and related rights, as amended and completed.

The patent is an industrial property title that protects a technical innovation. It can concern a product or a process that provides a technical solution to a given problem. The patent gives its holder an exclusive right of use.

To be patentable, an invention must meet three conditions under Law 17-97 on industrial property:

• novelty;
• inventive activity; and
• industrial application.

Patent applications are filed with the OMPIC.

A preliminary search report accompanied by an opinion on patentability is established, aimed at assessing the novelty, inventive activity and industrial application of the invention.

If the application for a patent has not been withdrawn or rejected within 18 months from the filing date in accordance with the grounds for rejection mentioned in the law, it shall be published. Based on the preliminary search report and the observations of the applicant and/or third parties and any amended claims, a final search report is drawn up. After verifying that there are no grounds for rejection, the patent is granted following payment of the fees due. The granted patent is published with the final search report, and the OMPIC gives the title of the granted patent, upon request, to the owner or their representative.

The patent title protects the invention for 20 years in the territory where the patent is granted.

Regarding the action to claim ownership of a patent, a person other than the inventor (except in certain cases) is prohibited from requesting the registration of the patent title at the OMPIC. If, however, this occurs in exception to the above-mentioned principle, Moroccan law allows the injured party to claim ownership of the title granted either for an invention that has been taken away from the inventor or their successors in title, or in violation of a legal or contractual obligation.

The action for invalidation of a patent is brought by any person or public ministry, requesting the court to declare the title of the patent invalid in whole or in part. The purpose of this action is to sanction the absence of the conditions for the validity of a patent.

The Moroccan legislature enables the inventor owner of a patent who has suffered a prejudice due to an infringement of rights to bring an infringement action before the criminal or commercial courts.

Law 17-97 on industrial property defines a trade mark as “a sign capable of graphic representation used to distinguish the goods or services of a natural or legal person”.

Trade marks are:

• nominal marks (represented by words, assemblies of words, letters, numbers, etc);
• figurative marks (composed of images or graphics);
• mixed marks (combining both verbal signs and figures);
• sound marks (represented in graphic form such as a musical notation);
• olfactory marks (represented by a smell, fragrances, etc); and
• three-dimensional marks.

In order to register a trade mark, it must meet certain eligibility criteria, including being:

• licit;
• distinctive; and
• available.

The second step consists of the choice of filing method. The application for registration of the trade mark is filed at the OMPIC headquarters in Casablanca, or at one of the 28 regional offices spread over the national territory. It is also possible to file the trade mark application online via the DirectInfo service website.

It is necessary to carry out a prior art search and a classification of goods and/or services to be performed, and to appoint an agent in certain cases (for non-resident legal entities in Morocco).

The examination of the application is composed of an examination of form and of substance, on the basis of the absolute grounds for rejection defined by the law. If no opposition has arisen after two months of publication in the Official Trademark Catalogue, the trade mark is registered. A “certificate of registration of the mark” is issued or notified to the applicant or their representative.

The trade mark is protected for a period of ten years, and this is renewable indefinitely.

The registration confers an exclusive right of ownership on the trade mark for the designated goods and/or services, and prohibits third parties from exploiting it without authorisation.

The owner of the exclusive right to the trade mark may bring an action for infringement in the case of identical reproduction or in the case of imitation if it is likely to create confusion in the mind of the consumer.

Law 17-97 on industrial property considers any assembly of lines or colours as an industrial design, provided that this assembly gives a special appearance to an industrial or handicraft product and can serve as a type for the manufacture of an industrial or handicraft product. The industrial design must be differentiated from similar designs either by a distinct and recognisable configuration that gives it a character of novelty, or by one or more external effects that give it its own and new physiognomy.

Any natural or legal person who has a domicile or an industrial or commercial establishment in Morocco may file an application for the registration of an industrial design. The application can be filed at the OMPIC headquarters in Casablanca, at one of the regional offices spread over the national territory, or online through the DirectInfo website.

The acquisition of the right to an industrial design is conditional on the registration of the design. The registration must precede any public disclosure or exploitation. The owner will thus be able to protect themselves against counterfeiting and assert their rights before third parties.

The processing of the application for registration includes:

• an admissibility examination;
• a regularity examination; and
• a validity examination.

Regular and valid applications for registration are published in the Official Catalogue of Industrial Designs.

The registration of an industrial design is effective for five years from the date of filing. This can be renewed for four new consecutive periods of five years.

The owner of the protection right of an industrial design may bring an action for infringement in the case of reproduction or exploitation of the industrial design.

Copyright is the exclusive right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work. The creator is usually the owner of the copyright. The protection resulting from the copyright starts from the creation of the work, even if it is not fixed on a material support.

The law applies to literary and artistic works that are original intellectual creations in the literary and artistic field, such as:

• works expressed in writing;
• computer programs;
• musical works, whether or not they include accompanying texts;
• dramatic and dramatico-musical works;
• audiovisual works, including cinematographic works and videograms, etc.

The protection is independent of the mode or form of expression, quality and purpose of the work.

Copyright gives the author two types of rights:

• economic rights on a work are protected during the author's lifetime and for 70 years after their death; and
• moral rights are unlimited in time, imprescriptible, inalienable and transmissible on death to beneficiaries.

Databases

In Moroccan law, databases are protected by Law 2-00 relating to copyright and related rights.

Software

Law 2-00 relating to copyrights and related rights regulates all protections relating to computer programs.

The condition of originality is the only substantive condition necessary for the protection of software by copyright. The protection of software does not extend to ideas, but only to the literal and mathematical expression of the programs that are the basis of the software.

Geographical Indications

Geographical indications are subject to approval by the Ministry of Agriculture before being registered with the OMPIC. According to Moroccan law, a geographical indication is “any indication that serves to identify a product as originating in a territory, region or locality of that territory, in cases where a given quality, reputation or other characteristic of the product can be attributed essentially to that geographical origin”.

Conversely, the law defines an appellation of origin as “the geographical name of a country, region or locality used to designate a product originating therein, the quality, reputation or other specified characteristics of which are due exclusively to the geographical environment, comprising natural and human factors”. Therefore, all producers in that place benefit from the protection reserved for appellations of origin if they meet the standards for production.

Unlike patents, a geographical indication is not an exclusive right: it is limited to prohibiting competitors outside the geographical place (or those within the registered area who do not respect the specifications) from using the name for their products, for example.

The main regulations applicable to data protection are:

• Law 09-08 on the protection of individuals regarding the processing of personal data;
• Decree of 21 May 2009 taken for the application of Law 09-08 relating to the protection of physical persons with regard to the treatment of personal data; and
• regulations of the National Commission for the Protection of Personal Data (Commission Nationale de contrôle de la protection des Données à Caractère Personnel – CNDP).

In 2019, Morocco ratified European Convention No 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data and its additional protocol.

The regulations discussed in 8.1 Applicable Regulations apply to companies that are responsible for processing (controllers) based in Morocco, or to a controller that is not established on Moroccan territory but has recourse, for the purposes of processing personal data, to automated or non-automated means located on Moroccan territory, with the exception of processing that is only used for transit purposes. In this case, the controller must appoint a representative in Morocco to the CNDP.

The General Data Protection Regulation (GDPR) may affect Moroccan companies if they are subcontractors or if they operate personal data processing related to:

• the offering of goods or services to data subjects who are in the territory of the European Union; or
• the monitoring of the conduct of such persons, insofar as such conduct takes place within the European Union.

The Moroccan data protection authority is the CNDP (see 8.1 Applicable Regulations), which has been set up to verify that the processing of personal data complies with the law in force and does not affect privacy, freedoms and fundamental human rights.

The CNDP has several functions:

• giving its opinion and advice to the government, parliament and administrations on data protection issues;
• receiving and processing complaints from individuals;
• receiving notifications of declarations and requests for prior authorisation of processing from data controllers; and
• carrying out legal and technological monitoring.

The CNDP has the power to:

• control and investigate data controllers;
• order a document of any kind, or any support enabling it to examine the facts concerning the complaints referred/communicated to it, within the time limits and according to the procedures or sanctions it may set;
• order or carry out (or have carried out) the necessary modifications to ensure that the data contained in files is kept in good faith; and
• order the blocking, erasure or destruction of data, and temporarily or permanently prohibit the processing of personal data.

Judicial Organisation

On 13 April 2023, Morocco’s Government Council approved Bill No 37.22 concerning the Higher Institute for the Judiciary. Presented by the Minister of Justice, the bill supports the transformations that the judicial system has undergone in recent years, and the challenges inherent in its development, particularly with regard to the development of the training system.

This law also aims to revise the legal framework governing the Higher Institute of Magistrates, to bring it into line with the new reality created by the institutional independence of the judiciary and with the related legislative and regulatory texts.

The same text organises a series of questions and areas for which organic Law No 106.13, relating to the status of magistrates, referred to a special law. The purpose of this law is to provide the Institute with a new legal framework defining its organisation, management and remit. The law also contains provisions dealing with the issue of judicial training, with an integrated approach that incorporates the various legislative and regulatory texts relating to it.

Adoption of a New Investment Charter

Framework Law 03-22 forming the Investment Charter came into force at the beginning of 2023. This new Investment Charter sets out the fundamental objectives of the State's action in terms of investment development and promotion, with a view to establishing Morocco as an attractive continental and international investment hub.

According to Article 2 of the Investment Charter, the State's investment development and promotion policy is based on the following principles:

• freedom of enterprise;
• free competition and transparency;
• equal treatment of investors, whatever their nationality;
• legal certainty; and
• good governance.

To achieve the fundamental objectives set out in this Charter, such as creating stable jobs, improving the business environment, facilitating the act of investing, etc, the State is setting up investment support mechanisms, including:

• a main scheme comprising:
1. common bonuses for investments whose total amount or number of stable jobs to be created are equal to or greater than the thresholds set by the decree implementing this new Investment Charter;
2. an additional investment bonus, known as a “territorial bonus”, granted to investment projects that meet the preceding criterion and are carried out in certain provinces or prefectures determined by the implementing decree; and
3. an additional investment bonus, known as a “sectoral bonus”, granted to investment projects carried out in priority sectors of activity; and
• special schemes for strategic investment projects and for very small, small and medium-sized enterprises.

The decree implementing the Investment Charter specifies that strategic investment projects are those where the total amount invested is equal to or greater than MAD2 billion (Article 15 of the Investment Charter), and where at least one of the following criteria is met:

• make an effective contribution to ensuring Morocco's water, energy, food or health security;
• have a significant impact on the number of direct or indirect jobs to be created;
• have a considerable impact on Morocco's economic influence and strategic positioning on a regional, continental or international scale;
• have a knock-on effect on Morocco's sectoral ecosystems or activities; or
• make a significant contribution to the development and appropriation of cutting-edge technologies.

However, investment projects in the defence industry are automatically considered to be of a strategic nature.

According to the Investment Charter, the Moroccan State will take the necessary measures to improve the business environment and facilitate the act of investing, by adopting reforms designed in particular to:

• facilitate investors' access to readily available land at competitive prices by planning, developing and operating industrial, logistics, commercial, tourism and service zones that meet investors' needs, and by enhancing the value of plots of land earmarked for investment projects that create added value and stable jobs;
• strengthen the competitiveness of the logistics and energy sectors, and promote the use of renewable energies;
• provide initial and continuing training tailored to the needs of businesses;
• promote research and development activities and facilitate access to new information and communication technologies;
• diversify financing methods and facilitate access to capital markets and innovative financing solutions; and
• simplify and dematerialise the administrative procedures involved in making investments.

The Investment Charter also guarantees that foreign nationals (as well as Moroccans established abroad) who make investments in foreign currency will benefit from the convertibility regime, which gives beneficiaries full freedom to:

• transfer tax-free profits abroad, with no limit on the amount or duration; and
• transfer the proceeds of total or partial disposal or liquidation of the investment, including capital gains.

Other guarantees are provided to encourage investment in Morocco, such as the protection of investors' intellectual property and personal data, in accordance with current Moroccan legislation.