The New Law on Domestic Trade in the Union of the Comoros: Between Economic Sovereignty and Legal Certainty

I. A RESTRUCTURING OF DOMESTIC TRADE IN SEARCH OF ITS ARTICULATION WITH THE EXISTING LEGAL ORDER

A. The Affirmation of a New National Framework for Commercial Activity

One of the first distinguishing features of law n°26-002/AU lies in the breadth of the scope it now seeks to bring within the regulation of domestic trade.

The legislature's choice in this regard is particularly significant. It did not confine itself to determining the conditions for carrying on retail trade or to regulating a few activities traditionally associated with the administrative regulation of commerce. It sought to lay the foundations of a general framework capable of encompassing, within a single normative instrument, a particularly extensive share of the economic activity conducted on national territory.

Article 2 thus defines domestic trade as any activity habitually carried on within national territory with a view to the production, transformation, distribution, or supply of goods or services for profit, to the exclusion of operations falling within the scope of foreign trade. Article 3 extends this definition through an expressly indicative and non-exhaustive enumeration comprising, in particular, wholesale and semi-wholesale trade, retail trade, certain artisanal and industrial activities of a commercial nature, commercial services, distribution and logistics activities, as well as online commerce platforms dedicated to local transactions.

This extensive approach is not without coherence.

It reflects, first and foremost, a determination to no longer apprehend domestic trade solely through the traditional figure of the trader operating a shop or physical point of sale. Distribution, logistics, services, and — notably — certain forms of digital commerce are now expressly brought within the scope of the law.

This last inclusion deserves to be highlighted. By bringing local online commerce platforms within the scope of domestic trade, the legislature acknowledges a transformation already underway in economic practice. Commerce is no longer necessarily tied to a place where seller and buyer meet in person; it can be concluded at a distance, organised through a digital interface, and executed by means of a delivery service.

The law therefore rightly attempts to capture an economy in transition rather than freezing the law around older commercial forms.

It remains to be seen, however, whether this modernity in definition finds its continuation in the rules governing the conduct of activities.

In this respect, the relationship with article 20 deserves attention. That article establishes the principle that every commercial or professional activity must be carried on in an identifiable and defined location, and governs the conduct of commerce outside shops, boutiques, stalls, kiosks, or specially arranged spaces.

These requirements plainly serve a purpose of economic regulatory control: identifying operators, preventing the disorderly occupation of space, and enabling the effective exercise of administrative supervision.

They will nonetheless need to be interpreted in light of the diversity of activities that the law itself has chosen to bring within its scope.

A digital platform must unquestionably be traceable to an identifiable operator and a legally determined establishment. It would, however, be more difficult to maintain that the physical existence of a point of sale constitutes, in every case, an intrinsic condition for engaging in trade.

The distinction between the administrative identification of the operator and the physical location of the act of commerce must therefore be carefully preserved.

More broadly, this difficulty illustrates one of the challenges inherent in the text: constructing a regime sufficiently general to govern domestic trade without indiscriminately imposing on different business models obligations designed for a single form of activity.

This ambition towards systematisation is even more apparent in the substantial definitional work undertaken by the legislature.

The law specifies, in particular, what is to be understood by acts of commerce by nature, trader, entreprenant, enterprise, principal or secondary establishment, small-scale commerce, fixed or mobile point of sale, local online commerce platform, and the saturation of a sector of activity.

The practical value of such definitions cannot be disputed.

A text intended to be applied by both public authorities and traders themselves necessarily benefits from making accessible the legal categories on which its provisions rest.

But this concern with definition also reveals the deeper ambition of the reform.

The law does not merely regulate certain conduct. It seeks to legally organise the domestic market by determining who its actors are, which categories they fall into, and on what conditions they may conduct their activities within it.

It is in this perspective that the creation — or, more precisely, the generalisation — of a genuine administrative status for the exercise of commercial activity is to be understood.

Article 16 thus provides for the issuance of a trader's card by the Directorate of Domestic Trade. This card is personal and non-transferable. It must, above all, be renewed annually. For the entreprenant and certain assimilated occupations, the legislature provides in parallel for a professional card. The conditions for issuance and withdrawal are to be determined by order of the Minister responsible for Trade.

The significance of this innovation must be properly appreciated. The trader no longer finds himself solely in a relationship with the register responsible for publicising his activity. He now enters into a continuous administrative relationship with the authority responsible for domestic trade. The distinction is important.

Registration in the Registre du commerce et du crédit mobilier (RCCM) serves primarily a purpose of legal publication. It makes it possible to identify the trader, to render certain information enforceable against third parties, and to secure commercial relationships. The trader's card serves a different purpose. Because it is issued by the administration, is liable to withdrawal, and must be periodically renewed, it also constitutes an instrument of regulatory control over commercial activity.

The question is no longer simply one of knowing who is engaged in trade. It is one of verifying, on an ongoing basis, that the person engaging in trade remains authorised to do so.

This development may find solid justification in the determination to formalise the economy.

In a market characterised by the coexistence of formal and informal operators, the administration must be able to maintain sufficiently precise knowledge of the persons actually carrying on commercial activity. An easily verifiable professional card can thus help to distinguish the duly established operator from one conducting activities outside any legal framework.

It can also facilitate economic census-taking, the enforcement of rules relating to reserved activities, and, more generally, the effectiveness of the supervision mechanisms established by the law.

That said, the very nature of this mechanism calls for caution.

Article 19 provides that the Directorate of Domestic Trade may refuse to issue the card where the required formal and substantive conditions are not met. Yet the law does not itself exhaustively determine those conditions; it delegates in essential part to a ministerial order.

This question is not merely regulatory. It bears directly on the legal nature of the mechanism. If the issuance of the card rests on objective conditions, determined in advance, which the administration is limited to verifying as fulfilled, the card will remain essentially an instrument of formalisation and supervision. If, on the other hand, the implementing texts were to grant the administration excessive latitude in assessing whether to issue or renew the card, the mechanism would come closer to constituting a genuine system of prior authorisation for commercial activity.

The difference is fundamental. In the first case, freedom remains the principle and the administration verifies the conditions of its exercise. In the second, the exercise of that freedom would depend, year after year, on a positive decision by the administration.

This distinction must, moreover, be considered alongside articles 23 to 25 of the law, which expressly enshrine the freedom of enterprise and prohibit unjustified obstacles to its exercise.

The coherence of the system will therefore require that the forthcoming regulatory texts organise the trader's card around sufficiently precise, transparent, and foreseeable criteria, and that they govern in the same manner its withdrawal or non-renewal.

This requirement is all the more important because an administrative decision concerning the card does not amount, for the operator, to a mere documentary formality.

It may determine the very continuation of his activity.

Behind what appears to be an administrative measure lies a far more fundamental question: that of access to the market and of the operator's continued participation in economic life.

In this respect, the reform effects a change that deserves to be fully acknowledged in its application. Domestic trade is henceforth no longer merely a private activity subject to compliance with certain statutory requirements; it becomes an economic space that is organised, identified, and supervised by the administration.

This process of formalisation may represent a significant step forward for the Comorian economy. The reduction of informality, the identification of operators, and the improvement of supervision over commercial activities are unquestionably part of the modernisation of the market.

But this modernisation will produce its full effects only if it remains intelligible to those to whom it is addressed.

For formalisation has genuine economic value only when it draws operators towards the law; it would lose much of its purpose if the multiplication of formalities were, on the contrary, to make access to legal compliance more difficult.

It is here, moreover, that another and more fundamental question arises.

In undertaking to build such a comprehensive national framework, the law inevitably encounters subject matters that no longer fall exclusively within the competence of the Comorian legislature. Some of the notions it defines, some of the legal statuses it attributes, and some of the formalities to which it refers already belong to the domain of OHADA uniform law.

The ambition to restructure domestic trade thus encounters a first constraint that is neither economic nor administrative in nature, but normative. It is to the determination of this boundary between the necessary national competence and the primacy of uniform law that attention must now be directed.

B. A Normative Autonomy Necessarily Limited by OHADA Law and Other Economic Legislation

The Comorian legislature's ambition to organise domestic trade runs up against, almost inevitably, an institutional reality that governs an essential part of the business law applicable in the Union of the Comoros: the State's membership of the Organisation for the Harmonisation of Business Law in Africa.

The difficulty does not, of course, lie in the very existence of national legislation relating to domestic trade.

Membership of OHADA has neither divested the States parties of all their competences in economic matters, nor is it intended to make the Uniform Acts an exhaustive body of law governing commercial activity. Many matters remain naturally within the competence of the national legislature: administrative regulation of commerce, organisation of markets, regulation of certain professions, price controls where legally established, protection of certain national activities, and the designation of authorities responsible for economic supervision.

The issue lies elsewhere.

It resides in determining the boundary between what still falls within the normative competence of the State and what, having already been the subject of harmonisation, can no longer be governed differently by national legislation.

This boundary is all the more important because the OHADA Treaty does not establish a mere mechanism for coordinating national legislations.

Its article 10 lays down a considerably more demanding principle: Uniform Acts are directly applicable and binding in the States parties, notwithstanding any provision of domestic law, whether prior or subsequent, to the contrary.

The consequence is well known but bears restating: where a national provision conflicts with a rule derived from a Uniform Act, the question is not which of the two is more recent. A subsequent national rule cannot, by the mere fact of its subsequent adoption, derogate from uniform law.

It is precisely in light of this particular hierarchy of norms that several provisions of the new law must be read.

The legislature appears, moreover, to have clearly identified the difficulty.

From article premier onwards, the law specifies that it governs domestic trade "subject to the competences attributed to OHADA law." More significantly, when the text addresses commercial capacity, article 10 recalls the applicability of the corresponding provisions of the OHADA Uniform Act on General Commercial Law and indicates that the national rules serve to "complement" them.

The term warrants a moment's reflection.

To complement is not to compete with. To complement is equally not to modify.

A national rule may intervene where uniform law leaves a normative space. It may organise the practical modalities of that space where those modalities fall within the competence of the State. It may also govern a related matter that the Uniform Act did not intend to harmonise.

It cannot, however, modify the conditions of application of a uniform rule, restrict its scope, or substitute for it a different national conception.

Yet law n°26-002/AU of 15 June 2026 does not confine itself to administratively regulating the conduct of trade. It itself adopts certain categories that form the very foundation of general commercial law.

This is the case with the notion of trader and that of act of commerce by nature. It is equally the case with the entreprenant, whose status falls directly under the Uniform Act, as well as the capacity to engage in trade.

This adoption is not necessarily problematic in itself.

The reproduction or reformulation, in national legislation, of a notion derived from uniform law may respond to a requirement of intelligibility. A text intended to concretely organise domestic trade must be capable of being understood without its reader being obliged, at every article, to consult a separate legal instrument.

The difficulty would arise, however, if the two definitions did not cover exactly the same scope or if their application were to lead to different consequences.

For it would be difficult to conceive of a situation where the same person could be a trader within the meaning of national law without being so within the meaning of the Uniform Act, or vice versa.

The status of trader cannot vary depending on whether one applies the rules relating to the RCCM or those relating to the economic regulatory control of commerce.

The same applies to the act of commerce.

Since uniform law determines which acts, when habitually performed, confer the status of trader, a divergent national definition would create not only a difficulty in the hierarchy of norms, but above all a practical uncertainty: an operator could find himself subject to two different classifications in respect of the same activity.

The OHADA reservation enshrined in article premier must therefore be given concrete effect.

It requires that, whenever a concept in the national law encounters a concept already harmonised by uniform law, the former be interpreted in light of the latter, rather than alongside it.

This method of interpretation would also make it possible to preserve, as far as possible, the overall structure of the reform without artificially setting national law and OHADA law in opposition.

For the object of the two bodies of norms is not necessarily identical.

Uniform law governs principally the legal status of commercial actors and the fundamental rules governing their business relations. The new law pursues, for its part, a largely different purpose: to organise the domestic market and to subject the conduct of certain activities to national economic regulatory control.

There is therefore a genuine space for complementarity.

Boundaries must nonetheless be respected.

This question arises with particular acuity in relation to the entreprenant.

The new law retains this category while expressly referring, for its status and legal regime, to the corresponding articles of the Uniform Act.

The approach is legally more legible here: the national law does not purport to create a new type of entreprenant; it relies on a pre-existing category of uniform law in order to apply to it certain obligations falling within the scope of domestic trade.

It is probably along these lines that the general articulation between the two normative orders should be sought: OHADA law determines the uniform legal status; national law organises, within the limits of its competences, the administrative conditions for carrying on the activity within the territory.

A further question nevertheless arises in connection with the trader's card examined above.

The existence of a national administrative formality is not, in itself, incompatible with OHADA law. It would be excessive to consider that registration with the RCCM deprives States of any possibility of imposing authorisations, cards or licences where the nature of the activity or a legitimate economic regulatory objective so justifies.

But this card cannot have the effect of redefining the status of trader itself.

A distinction must be drawn here between two questions that practice might be tempted to conflate.

Being a trader within the meaning of commercial law constitutes a legal qualification.

Being authorised to regularly carry on certain commercial activities within the territory falls within the scope of administrative regulation.

The card may condition the administrative regularity of carrying on an activity where the law so provides; it should not, however, become the constitutive act conferring trader status where that status is determined by uniform law.

This distinction will be important both for the administration and for the courts.

It allows one to avoid a national mechanism that is perfectly legitimate in principle from producing, through its interpretation, effects in a domain already governed by OHADA law.

But OHADA is not the only normative order with which the new law will have to contend.

Certain of its provisions also appear to touch upon matters governed by other specialised national legislation.

Article 12 provides a particularly instructive illustration.

The provision establishes, in substance, a non-competition restriction binding on an employee who has left their employer, who is prohibited, for a period of three years, from carrying on a similar commercial activity in the same island locality. The law further permits the employer to insert into the employment contract non-competition clauses imposing stricter conditions, subject to the limits it provides.

The provision is striking, first of all, by reason of its location.

Inserted in legislation relating to domestic trade and within a body of provisions devoted to the capacity to carry on trade, it nonetheless produces direct effects on the employment relationship and, above all, on the professional situation of the employee following its termination.

But it is above all its mechanism that commands attention.

Non-competition here is not solely the result of a contractual undertaking accepted by the employee: it flows directly from the law.

In other words, the former employee is subject to a three-year restriction regardless of whether or not their employment contract contained a clause to that effect.

Now, protecting the clientele and legitimate interests of a business is one thing; preventing a former employee from carrying on the activity corresponding to their professional experience is quite another.

Between the two there necessarily lies a requirement of proportionality.

A general three-year prohibition, applicable by operation of law, will therefore need to be articulated with the rules governing the employment relationship and professional freedom. Its precise scope will also need to be clarified: what is to be understood by a "similar" activity? What exactly constitutes the relevant "island locality"? Does the prohibition cover any competing activity, regardless of the function previously performed by the employee and regardless of their effective access to the clientele or sensitive information of the business?

These questions are not peripheral.

They determine the difference between a legitimate measure to protect the business and a general restriction on a worker's ability to practise their profession.

A comparable difficulty arises in connection with article 31.

That provision prohibits any trader from imposing or seeking, directly or indirectly, exclusivity over a product or service where it has the effect of creating a monopoly situation or of substantially restricting public access.

The objective pursued admits of little debate.

The prevention of practices liable to artificially foreclose a market or to prevent consumers from accessing certain goods is a natural component of sound economic regulation.

But the very characterisation of the conduct targeted reveals its immediate proximity to competition law.

Yet article premier of the new law takes express care to reserve the application of competition legislation.

There is therefore, here again, a risk of normative overlap.

The question will take on its full significance at the stage of sanctions. Article 32 attaches to the breach of certain of these rules consequences that may be particularly severe, extending to the withdrawal of an authorisation or licence and, depending on the circumstances, to measures directly affecting the operator's presence on the market.

If the same conduct falls simultaneously within the scope of the law on domestic trade and that of competition legislation, it will be necessary to determine the competent authority, the applicable procedure, and the conditions under which the sanctions provided for by the various instruments may be articulated.

The multiplication of legal bases must not result in the uncontrolled multiplication of sanctions for the same conduct.

These various examples ultimately reveal an essential characteristic of the new law.

By the breadth of its ambition, it stands at the crossroads of several legal disciplines.

It engages OHADA law when it defines the actors of trade; labour law when it organises the non-competition obligation of the former employee; competition law when it prohibits certain exclusive arrangements; administrative law when it confers economic regulatory powers on the administration; and, as we shall see, criminal law when it attaches sanctions to certain obligations.

This cross-cutting nature constitutes at once its strength and its fragility.

Its strength, because a modern policy on domestic trade cannot be conceived within the artificial boundaries of a single branch of law.

Its fragility, because any intervention at the boundary of several regimes demands heightened attention to their articulation.

The law of 15 June 2026 must therefore not be read as an autonomous economic legal order coming to replace pre-existing norms. It must be understood as legislation on the regulation and organisation of domestic trade, designed to be inserted within a normative framework that precedes it and, in respect of certain matters, is superior or special to it.

This reading appears to us all the more necessary given that the legislature itself provides the method when it affirms, from article premier onwards, the reservation of OHADA law.

The question is therefore not one of contesting the State's competence to organise its domestic market. That competence is beyond dispute.

The true difficulty lies in determining how far that organisation may go when the subject matter that the national legislature seeks to regulate has already been addressed by uniform law or by special legislation.

In this sense, the success of the reform will depend less on an opposition between norms than on their correct articulation.

This first requirement of normative coherence does not, however, exhaust the questions raised by the law. Once the State's competence to organise its domestic market is accepted, a considerably more sensitive question remains: how far may it reserve access to that market?

It is precisely on this ground that the reform most forcefully asserts its political orientation. By enshrining economic sovereignty as the justification for certain restrictions and by reserving a significant portion of small-scale trade to nationals, the legislature no longer merely organises the market: it also seeks to direct its distribution.

It is this second dimension that must now be examined.

II. AN AVOWED ECONOMIC SOVEREIGNTY PUT TO THE TEST OF THE FREEDOM OF ENTERPRISE

A. The protection of small-scale trade as a new instrument of national economic preference

If there is one orientation of the law of 15 June 2026 that leaves little room for ambiguity, it is assuredly that which consists in reserving a part of the local economy for nationals.

Until now, the organisation of domestic trade could be understood primarily through the lens of the conditions for carrying on an activity, the regulation of practices, or administrative oversight. With articles 26 to 30, the legislature takes a further step: it no longer merely determines how trade may be carried on; it also seeks to determine, for certain activities, by whom it must be carried on.

This choice constitutes probably the most politically significant innovation of the reform. It deserves, however, to be placed within the general economy of the text. For the legislature takes care, before introducing this preference, to affirm with particular clarity the principle from which it departs.

Articles 23 to 25 thus enshrine the freedom of enterprise and industrial freedom. Every natural or legal person is recognised as having the right to create, organise and operate an economic or industrial activity of their choosing, as well as to transfer or transmit it. The law simultaneously prohibits any measure, practice or decision having as its object or effect the obstruction of the legitimate exercise of those freedoms, except where a restriction is grounded in the law and responds to a ground of general interest recognised by it.

The architecture thus adopted is significant.

Freedom remains the principle; a restriction must find its justification. Now, among the grounds capable of legitimising such a restriction, the legislature expressly introduces a consideration that in fact runs throughout the entire reform: economic sovereignty.

This concept provides the key to understanding the provisions relating to small-scale trade.

Article 26 reserves certain commercial or industrial activities falling within this category to Comorian nationals of origin, notably on grounds relating to public order, food security and economic sovereignty.

This is therefore by no means an incidental consequence of regulation.

National economic preference is deliberate, expressed, and legally assumed.

The question is then to understand what the legislature seeks to protect.

In this regard, the very notion of "small-scale trade" is revealing. Article 27 does not define it exclusively by reference to the nature of the activity carried on. It retains several criteria making it possible to identify a particular economic category: turnover below a specified threshold, absence of heavy investment, a limited number of employees, operation of a local point of sale or a limited floor area, and the supply of goods or services intended essentially for the everyday consumption of households.

The legislature is therefore less concerned with protecting a specific sector than a particular level of economic activity. This point is essential.

The activities targeted share the common characteristic of being, in principle, accessible with relatively limited capital, of responding to everyday needs, and of constituting one of the first rungs of entrepreneurial initiative.

This is the logic that article 28 confirms when it enumerates the activities concerned.

The reservation covers in particular local retail trade, shops and grocery stores, certain markets and forms of itinerant selling, various personal services, certain repair activities, small-scale courier and local delivery services, local food retail, several craft activities, as well as certain forms of small-scale processing or activity carried on with limited capital.

Taken individually, each of these sectors might appear economically modest. Taken together, however, they represent a not insignificant share of the daily economy. It is precisely therein that the true significance of the reform lies.

The legislature appears to consider that activities requiring neither particular technology, nor significant capital, nor complex industrial organisation ought to constitute a privileged space of access for nationals to entrepreneurship.

In other words, the objective is not merely to protect already established traders. It is also to preserve entry points into economic activity.

This orientation can readily be understood in a small-scale economy.

Economic openness produces undeniably beneficial effects when it allows the arrival of capital, technologies, skills or new organisational models. It becomes more difficult to justify, from the standpoint of a national development policy, when it leads operators with a financial or organisational advantage to permanently occupy activities that by definition require no particular contribution that the domestic market would not be capable of providing.

The legislature's reasoning thus appears to rest on an implicit distinction between two forms of foreign economic presence.

On one side, investment capable of bringing the country capital, technology, jobs or new skills.

On the other, the carrying on of a local activity that does not necessarily present that particular added value and that could be carried on by national entrepreneurs.

The former remains welcome.

The latter is henceforth regulated.

This distinction appears with particular clarity upon reading article 30.

The provision does not, in fact, establish an absolute closure of reserved activities to foreign persons. It organises a derogation mechanism allowing a foreign natural or legal person to access them where their project presents certain characteristics: the contribution of technical or technological know-how unavailable locally, the realisation of a significant investment, the creation of a substantial number of direct jobs for the benefit of nationals, or a contribution to the modernisation of the sector and to the transfer of skills. Authorisation falls within the remit of the Minister responsible for Trade, after consultation with the Chamber of Commerce.

The philosophy of the mechanism then comes into sharper focus.

It is not foreign investment as such that the law seeks to exclude; it is foreign investment that lacks, in the protected sectors, sufficient added value to justify its occupying an economic space reserved in principle for nationals.

The nuance is important.

It allows the reform to be understood not as a general mechanism of economic closure, but as an attempt to establish a hierarchy among forms of investment according to their expected contribution to national development.

From this angle, article 30 constitutes less a marginal exception to the principle of reservation than an essential element of its balance.

It expresses a relatively simple idea: the protection of small-scale trade must not prevent access by a foreign project where that project brings to the national economy what the local market is not in a position to produce under the same conditions.

This logic also echoes a classic concern of investment policy: ensuring that market openness is measured not only by the volume of incoming capital, but also by the externalities it generates in terms of employment, training, technology, and the structuring of the local economy.

The mechanism must nonetheless be sufficiently precise to fulfil this function. Several questions arise upon reading article 30.

The first concerns the criteria themselves. The provision successively enumerates know-how unavailable locally, significant investment, substantial job creation, and a contribution to modernisation or skills transfer, without the drafting making it possible to establish with sufficient certainty whether these conditions are cumulative or alternative.

The difference is, however, considerable.

If all conditions must be satisfied, the derogation will, in practice, be reserved for projects of relatively significant scale.

If each condition can, on its own, justify the authorisation, the mechanism will be considerably more open.

A company bringing technology genuinely unavailable in the Comoros but requiring few employees could, for example, fully satisfy the objective pursued by the law without meeting the criterion relating to the creation of a "substantial number" of jobs.

Conversely, a project that generates significant employment could present genuine national interest without relying on technology unavailable locally.

Economic logic would therefore seem to favour a sufficiently flexible assessment of the various criteria.

But what may be inferred from the logic of the text would benefit from being clearly established by law.

The second difficulty lies precisely in the wording of certain of these criteria.

What constitutes a "significant" investment? From how many jobs does their number become "substantial"? How can it be established that know-how is effectively "unavailable locally"? At what level can a project be considered to contribute sufficiently to the modernisation of a sector?

These concepts serve an obvious purpose: they allow the administrative assessment to be adapted to the diversity of projects. But they also confer a substantial margin of discretion on the authority responsible for making the determination. The law further provides that the minimum threshold for a significant investment must be determined by regulatory instrument. The implementing text will therefore be of major importance. An excessively low threshold would deprive the reservation of part of its effectiveness.

A disproportionate threshold could, conversely, transform a derogation designed to accommodate useful projects into a practically inaccessible exception. Between the two lies the true work of economic policy.

Another particular feature of the mechanism deserves attention: the reservation does not apply exclusively to natural persons.

Article 28 also permits the activities in question to be carried on in the form of a legal entity, provided that its share capital is held to the extent of at least 75% by nationals.

The legislature thereby elects a national preference that extends to the structure of share capital. This solution has an obvious advantage. Without it, the reservation of activities to nationals could easily be circumvented by incorporating a local company whose capital and, in practice, economic control would remain entirely in foreign hands. The 75% threshold therefore seeks to guarantee that the company benefiting from the reservation remains predominantly — and indeed very predominantly — anchored in the national economy.

However, the mechanism will also need to be assessed in its practical reality. Ownership of share capital does not always coincide with effective control of a company. Shareholder agreements, financing arrangements, and certain statutory or contractual provisions may sometimes confer on a minority shareholder an influence wholly disproportionate to the percentage of capital held.

The implementation of national preference could therefore, in time, lead the administration and the courts to consider not only the apparent nationality of the capital, but also the economic reality of certain structures where those structures are used to circumvent the law.

This question must not, however, lead to the automatic suspicion of companies that include a foreign shareholding.

The legislature expressly permits them within the prescribed limit.

Legal certainty therefore requires that operators be free to organise their partnership arrangements within that framework, absent proof of fraud or genuine circumvention of the regulations.

Economic protection cannot become a general presumption of simulation.

More fundamentally, the mechanism adopted by the law calls for reflection on the very purpose of national preference.

Reserving an activity to nationals has economic meaning only if that reservation genuinely enables them to access it, to grow within it and, in time, to build enterprises capable of moving beyond the stage of small-scale trade alone. Protection cannot, by itself, constitute an economic policy. It creates a space. It does not guarantee that this space will be occupied effectively. Access to financing, training, the availability of suitable premises, taxation, administrative simplification, business support and the capacity to progressively transition from the informal sector to a structured activity will remain equally decisive. Failing that, the risk would be to conflate the legal reservation of a market with the economic development of those for whom it is reserved.

The law therefore opens a possibility. Public policy will need to give it substance.

It is precisely for this reason that the protection of small-scale trade must not be analysed solely as a restriction imposed on foreign operators.

It also constitutes, and perhaps above all, an implicit commitment by the State toward national entrepreneurship.

By reserving certain activities to nationals, the legislature affirms that those activities must contribute primarily to their economic integration. This affirmation logically calls for accompanying policies capable of transforming this legal preference into a real economic opportunity.

Understood in this way, the economic sovereignty enshrined in the law does not necessarily imply withdrawal.

On the contrary, it may seek a more demanding balance: opening the economy to investments that bring particular added value while preserving, for national entrepreneurs, those activities whose exercise does not necessarily warrant unlimited external competition.

This orientation constitutes a choice of economic policy. And it is not for legal analysis to substitute a different choice. The role of the lawyer is rather to test its coherence, to identify the conditions for its application and, above all, to identify its limits.

For the legitimacy of the objective pursued does not suffice to resolve all the difficulties raised by the mechanism adopted. In the present case, those difficulties are far from negligible.

The law does not merely draw a distinction between national and foreign operators. It also introduces, in respect of certain activities, a distinction among Comorian citizens themselves, based on the origin of their nationality.

It furthermore affects foreign operators already established in the territory, to whom it grants a particularly short period in which to adapt or cease their activities.

Finally, the application of these restrictions will necessarily need to take account of legal situations previously constituted and, where applicable, of specific commitments entered into by the State.

It is therefore less the principle of a national economic preference than its criteria, its intensity and its effects over time that now call for analysis.

Economic sovereignty here encounters its true legal challenge: the power of the State to choose the sectors it intends to protect does not dispense with the need to determine to whom that protection may legitimately be reserved, nor under what conditions the new rule may affect rights constituted under the previous rule.

It is to this delicate reconciliation between national preference, legal equality and investment certainty that attention must now turn.

B. The legal limits of national preference: equality, acquired rights and investment certainty

The power recognised in the State to orient its economic policy and to reserve certain activities to nationals should not, in itself, come as a surprise. It flows from the exercise of economic sovereignty, which the new law expressly elevates among the considerations capable of justifying a limitation of the freedom of enterprise.

However, once this preference ceases to be a mere orientation of public policy and becomes a rule governing market access, its implementation necessarily encounters other legal requirements.

Two difficulties emerge, in this regard, with particular acuity.

The first concerns the criterion adopted to determine which nationals are eligible to benefit from the protection.

The second concerns the immediate application of the new regime to foreign operators already established, and therefore the fate of legal situations constituted before the law came into force.

These two questions are distinct.

They nonetheless flow from the same requirement: that of determining how far the pursuit of an objective of economic sovereignty may lead to the differentiation of existing situations without compromising the coherence and predictability of the legal order.

A preference that distinguishes between citizens on the basis of the origin of their nationality

Article 26 merits, from this perspective, particularly careful reading.

The legislature did not simply provide that certain activities falling within the scope of small-scale trade would be reserved to "nationals" or to "Comorian nationals."

It chose a considerably more restrictive formulation.

The benefit of this exclusivity is reserved for "Comorian nationals by origin," defined by the text as citizens possessing Comorian nationality by descent. The text further specifies, correlatively, that persons who have acquired that nationality by decision of the public authority do not benefit from this exclusivity.

The distinction is considerable.

It shifts the debate.

The question is no longer solely the classical question in economic law of whether certain activities may be reserved to nationals rather than to foreigners.

It becomes one of whether, among the citizens of a single State, the origin of nationality may determine the extent of the economic rights to which each is entitled.

It is appropriate here to proceed with care.

Not every difference in treatment necessarily constitutes a legally prohibited form of discrimination. The principle of equality does not preclude the legislature from treating different situations differently, provided that the distinction adopted bears a relationship to the object of the law and rests on a sufficiently pertinent justification.

What remains is precisely to identify that justification.

Now, in respect of small-scale trade, the objective pursued by the text is essentially economic: to promote the participation of nationals in certain local activities and to preserve an entrepreneurial space for their benefit.

Accordingly, one question becomes unavoidable.

In what respect does a Comorian citizen who has lawfully acquired nationality find himself, in relation to that economic objective, in a situation sufficiently different from that of a Comorian citizen by descent to justify the exclusion of the former from an activity that the latter may freely carry on?

The question is all the more pressing given that the acquisition of nationality produces precisely the effect of incorporating a person into the national community.

It is true that nationality legislation may, in certain circumstances, attach different consequences to the mode of acquisition of nationality. Certain functions or prerogatives may thus be subject to specific conditions relating to nationality of origin where their nature so justifies.

But the extension of such a distinction to the domain of ordinary economic activity is not without consequence.

What is at issue here is not the exercise of a function directly participating in the sovereignty of the State.

What is at issue is the running of a shop, the carrying on of a craft activity, the provision of certain services or the holding of a participation in the capital of a company operating in a local sector.

The justification for the difference in treatment must therefore be capable of being found in the very economic purpose of the measure.

It is at this point that the drafting of article 26 may give rise to the most serious questions.

National preference may find its foundation in the desire to reserve a portion of the wealth generated by the domestic economy for members of the national community.

But when the law itself recognises a person as a Comorian citizen, it becomes more difficult to regard that same person simultaneously as insufficiently national to access certain reserved economic activities.

The question is therefore not merely semantic.

It touches upon the legal conception of economic citizenship.

Does nationality constitute a common legal status, or may it, for the purposes of carrying on ordinary economic activities, produce different rights depending on the mode of its acquisition?

The new law implicitly provides an affirmative answer.

It remains to be determined whether that answer can be reconciled with the superior principles governing equality among citizens.

In this regard, the analysis cannot be conducted solely on the basis of the law on domestic trade. It will necessarily call for a confrontation with the constitutional provisions and with the legislation governing nationality.

It would therefore be excessive, at this stage, to assert without further examination that the distinction would necessarily be unlawful.

It would be equally excessive to consider that it raises no difficulty whatsoever.

It constitutes, in our view, one of the most legally sensitive points of the reform.

A further uncertainty additionally compounds this difficulty.

As previously noted, article 28 provides that certain activities may be carried on by a legal entity where its capital is held to the extent of at least 75% by "nationals."

The text therefore no longer uses exactly the same terminology as article 26.

Should this be understood to mean that the "nationals" referred to in article 28 are exclusively the Comorian nationals by origin defined in article 26?

Or may any person who legally possesses Comorian nationality be counted toward the 75% threshold?

The two readings obviously do not produce the same effects.

Under the first interpretation, a naturalised citizen could be a shareholder in a company carrying on a reserved activity, but his or her participation would not be taken into account in determining whether the national ownership threshold has been reached.

Under the second, the law would produce an even more singular outcome: a person to whom the activity would be prohibited when carried on individually could nonetheless participate, as a national, in the capital of a company authorised to carry on that same activity.

This terminological divergence therefore calls for clarification.

It demonstrates above all that when a law makes nationality a criterion of market access, the precision of words ceases to be a mere drafting requirement and becomes a condition of legal certainty.

The situation of foreign operators already established: between the application of the new law and the protection of constituted situations

The second difficulty arises from article 54.

The legislature does not merely reserve certain activities for the future. It also intends to apply the new economic orientation to pre-existing situations.

Foreign nationals who, prior to the entry into force of the law, were carrying on an activity now classified as falling within the scope of small-scale trade thus have a period of three months in which to comply with the new provisions or to cease the activities that have become incompatible with them.

The rationale is understandable.

A reservation policy that applied only to new entrants might long remain devoid of real effect if a significant portion of the sectors concerned was already occupied by foreign operators.

The legislature therefore chose not to enshrine a general right to the maintenance of prior situations.

This option is not, as a matter of principle, legally inconceivable.

The carrying on of an economic activity takes place within a regulatory environment liable to evolve. No operator can reasonably claim a perpetual right to the immutability of the rules governing its sector.

The State must be able to modify its economic policy.

It must be able to impose new conditions for the carrying on of activities.

It must even be possible, when the general interest so requires and in compliance with the applicable rules, to close certain activities to categories of operators that previously had access to them.

But recognising the power to amend the rule is not the same as treating as irrelevant the conditions under which such amendment affects existing situations.

This is where legal certainty comes into play.

Legal certainty cannot be understood as an acquired right to legislative immobility.

It requires, rather, that the transition from one regime to another takes place under conditions sufficiently foreseeable for those who have legitimately organised themselves under the old rule to be able to adapt their situation to the new one.

Yet the three-month period provided for in article 54 appears particularly demanding.

A commercial activity is not a simple administrative act that can be brought to an end by the return of an authorisation.

It consists of legal relationships.

The operator may hold stock.

They may be bound by a commercial lease.

They may have entered into supply or distribution contracts.

They may have extended or obtained credit facilities.

They may employ staff.

They may hold receivables that will not fall due until several months later.

They may, finally, have made investments specifically intended for the activity that the law now requires them to cease or restructure.

Three months may thus represent a very different timeframe depending on the nature and scale of the activity concerned.

For a small sole-trader business, the transition may conceivably be organised quickly.

For a larger structure that nonetheless falls within the scope of the measure by virtue of the criteria to be set by regulatory instrument, the consequences may be considerably more complex.

This observation takes on particular importance given that the definition of small-scale trade itself depends on thresholds that have yet to be specified.

The true extent of the operators subject to the transitional obligation cannot therefore be fully assessed until the regulatory framework has been completed.

But a deeper difficulty remains.

Not all foreign operators currently established in the Union of the Comoros necessarily hold the same legal basis for carrying on their activity.

Some may have established themselves solely on the basis of the ordinary formalities applicable to any trader.

Others may have obtained a specific administrative authorisation.

Others still may benefit from rights arising from an investment approval, an establishment agreement, or a specific undertaking entered into with the State.

This diversity precludes, in our view, an excessively uniform approach.

A new general law may naturally amend the regulatory conditions applicable to economic activities.

But where an operator also benefits from a specific title or a contractual undertaking by the State, the question is no longer reducible to the temporal application of two successive regulatory regimes.

It becomes a question of how the new general rule interacts with the particular rights previously conferred.

It will then be necessary to examine, on a case-by-case basis, the nature of the title held, its duration, the guarantees it contains, the conditions under which it may be modified and, where applicable, the dispute resolution mechanisms it provides for.

The same caution must attend the application of the reform to investments that may benefit from treaty protection.

This is not to assert that any modification of the regulatory framework applicable to a foreign investor would constitute an infringement of their rights.

Such a proposition would be legally excessive.

The power to regulate remains inherent in State sovereignty.

Investment protection is not designed to freeze the legal order as it stood at the time the investor established themselves.

But the exercise of that power is not necessarily without limits.

Depending on the applicable instruments and the undertakings actually given, the conditions under which the legal framework may be modified, the treatment accorded to the investor, or the consequences of a compelled cessation of activity may call for particular scrutiny.

Caution is all the more necessary here because the law itself simultaneously pursues two objectives that must not be artificially set against each other.

It seeks to strengthen the participation of nationals in the economy.

But the Union of the Comoros also remains a State that requires capital, expertise and external investment to support its development.

The protection of the domestic market and the attractiveness of investment therefore do not constitute two independent policies.

They belong to the same economic policy and must, as such, be rendered compatible.

This requires, in particular, that the foreign operator be able to identify with sufficient clarity the sectors that remain open to them, those that are now closed to them, the conditions under which an exemption may be sought, and the regime applicable to investments made prior to the reform.

The attractiveness of a market does not depend solely on the breadth of the rights it recognises for investors.

It also depends on the foreseeability with which those rights may evolve.

An investor can factor a demanding regulatory framework into their economic decision.

It is considerably more difficult for them to factor in a regulatory framework whose effects on an already-constituted situation remain uncertain.

This is precisely why the question of transitional provisions must never be regarded as secondary.

They are the meeting point of two temporal dimensions of the law: the power of the legislature to decide for the future, and the reliance of those who organised themselves in accordance with the law of the past.

The quality of a reform is also measured by the manner in which it manages that encounter.

In conclusion, the economic preference established by the law of 15 June 2026 rests on an objective that is perfectly intelligible: to make small-scale trade a more effective instrument for the economic inclusion of nationals and to reserve foreign participation, in the sectors concerned, to projects capable of bringing particular added value.

But the legitimacy of that objective does not dispense with legal rigour.

The distinction between citizens according to the manner in which they acquired their nationality will need to be assessed against the principles governing equality.

The terminological difference between "Comorian nationals of origin" and "nationals" will need to be clarified.

The situation of foreign operators already established will need to be assessed by taking into account not only the new law, but also the titles, authorisations and undertakings from which they may benefit.

And the transitional period will need to be applied with sufficient attention to the concrete consequences entailed by the cessation of an economic activity.

Economic sovereignty is therefore in no way incompatible with legal certainty.

On the contrary, it requires it.

For an economic policy is all the stronger when it allows each person — national entrepreneur, newly naturalised citizen, or foreign investor — to know with sufficient certainty what place the law accords them in the economy.

The reform now maps out that place.

It remains for it to guarantee its boundaries.

This requirement of legal certainty does not, however, concern only the conditions of access to the market. It arises with at least equal intensity once an operator is already established and faces the supervisory powers of the administration.

On this ground too, the law of 15 June 2026 brings about a profound transformation.

Having redefined those who may engage in trade, the legislature now redefines the means by which the State may monitor, compel and sanction those who do so.

It is this new regulatory framework for domestic trade that must now be examined.

III. THE STRENGTHENING OF TRADE REGULATION TESTED AGAINST THE GUARANTEES OF THE ECONOMIC RULE OF LAW

A. The emergence of a genuine administrative regulatory framework for domestic trade

The reform could not achieve its stated objectives without equipping itself with the means to ensure their effectiveness.

Defining the conditions of access to trade, subjecting operators to new obligations, reserving certain activities to nationals, or prohibiting certain practices would have only limited force if the administration did not simultaneously possess the means necessary to verify compliance with those requirements.

From this perspective, the law of 15 June 2026 does not do things by halves.

It does not merely incrementally reinforce the prerogatives of the Directorate of Domestic Trade. It organises, around that body, a framework of surveillance, detection and enforcement that displays all the characteristics of a genuine specialised economic administrative regulatory apparatus.

Article 35 is, in this regard, particularly revealing.

It confers upon the Directorate of Domestic Trade the powers necessary to detect, investigate, prevent and repress infringements falling within its competence. The provision simultaneously establishes a National Corps of Domestic Trade Inspectors, composed of sworn inspectors and officers, called upon to intervene directly with economic operators. These agents are sworn in before the Court of Appeal and are accorded, in the exercise of their duties, the status of public enforcement officers.

The choice of terms is not without significance.

The legislature no longer conceives of trade oversight as a purely administrative function consisting in verifying the possession of an authorisation or the regularity of a formality.

It entrusts the relevant agents with a mission that draws simultaneously on prevention, inspection and the investigation of infringements.

The reform thus marks a shift in the very conception of the role of the economic administration.

The latter is no longer merely responsible for facilitating or organising commercial activity.

It also becomes the authority charged with effectively monitoring its compliance with the law.

This development cannot, in principle, be criticised.

An economic regulatory framework unaccompanied by any real capacity for oversight would risk rapidly producing a paradoxical effect: it would impose constraints on operators who choose to comply with the rules, while leaving those who disregard them to benefit from a competitive advantage.

The ineffectiveness of oversight is therefore not merely a problem of State authority.

It can become a source of inequality between operators.

The trader who bears the cost of formalisation, renews their authorisations, complies with the conditions imposed on their activity and accepts the resulting obligations is entitled to expect the administration to apply the same requirements to their competitors.

Viewed in this light, oversight itself constitutes a guarantee of market fairness.

The creation of a specialised corps may also respond to a requirement of professionalisation.

Economic oversight has specific characteristics that do not always coincide with those of general administrative regulation. Inspecting a commercial activity requires an understanding of the operator's documentation, supply chains, distribution arrangements, authorisations, and sometimes its corporate structure and, depending on the infringements being investigated, certain accounting or contractual elements.

The specialisation of agents may therefore contribute to more effective enforcement of the law.

But this specialisation is accompanied by particularly far-reaching prerogatives.

Article 38 authorises the agents responsible for oversight to carry out inspections in shops, workshops, factories, warehouses, vehicles and other professional premises. They may access the commercial documents necessary for their verifications, take copies thereof, carry out certain seizures, and gather statements from persons capable of providing information useful to the performance of their duties.

The practical scope of these powers is considerable.

Oversight may thus extend not only to what is physically visible on the premises, but also to the information from which the economic activity can be reconstructed.

This faculty is understandable.

It would be illusory to seek to oversee a commercial activity effectively by limiting the administration to observing the products displayed in a shop. The reality of the activity is often to be found in invoices, registers, contracts, supply documents, stock-related records and other documents held by the operator.

The law therefore equips inspectors with the means to look beyond the outward appearance of an activity and examine its underlying reality.

It further reinforces the effectiveness of the framework by imposing on the operator a duty of cooperation.

Documents requested in the course of an inspection must be produced, and refusal, concealment or obstruction of verification operations may themselves expose the person concerned to the sanctions provided for under the law.

The overall architecture of the mechanism is clear: oversight is not conceived as a process to which the trader may choose to submit, but as a prerogative of public authority with which they are legally required to cooperate.

The effectiveness sought is also apparent in the relationship between administrative oversight and the detection of infringements.

The swearing-in of agents and the evidential weight attached to their findings give their interventions a dimension that goes beyond a simple administrative inspection.

The agent who enters an establishment is not merely the person who verifies the conformity of a situation.

They may also become the person whose findings will enable enforcement proceedings to be initiated.

This duality is essential to understanding the architecture of the law.

The legislature seeks to avoid the gap that sometimes exists between an administration capable of identifying an irregularity and a sanctioning procedure that depends entirely on other authorities with different means or information.

The framework is thus built around a form of continuity: inspect, detect, sanction or refer to the competent authorities.

This continuity probably finds its most notable expression in the transaction mechanism established by articles 41 to 43.

The person under investigation may propose a settlement to the Directorate of Domestic Trade. The Directorate determines its amount and conditions by a reasoned decision and, once the settlement obligations have been fully performed, the mechanism may produce an effect that extends well beyond the purely administrative sphere, since it entails, subject to the reservations provided for in the text, the extinguishment of the public prosecution.

The settlement mechanism constitutes a particularly pragmatic innovation.

Economic enforcement proceedings do not necessarily benefit from every irregularity, however minor, leading to a lengthy and costly criminal procedure.

For certain infringements, the ability to obtain rapid regularisation of the situation and payment of a specified sum may serve the interests of both the State and the operator.

For the administration, it enables a swift response to the infringement and avoids overburdening the courts.

For the trader, it offers the possibility of bringing the dispute to an end without bearing the uncertainty and consequences of criminal proceedings.

The legislature takes this transactional logic quite far.

Article 46 permits, under certain conditions, a case already brought before the criminal court to be referred back to the Directorate of Domestic Trade so that a settlement may still be sought, provided no decision on the merits has yet been rendered. The mechanism remains available even during the period for lodging an appeal, subject to the conditions set out in the text.

This flexibility reflects an interesting conception of economic enforcement.

Sanction is not necessarily pursued as an end in itself.

The legislature appears to favour, wherever possible, the restoration of economic legality over the systematic prosecution of the offender.

Such an approach may contribute to the effectiveness of the framework.

It presupposes, however — as we shall return to — that the conditions under which a settlement is proposed and its amount determined are sufficiently foreseeable to guarantee equal treatment between operators placed in comparable situations.

But the most immediately constraining prerogative vested in the administration probably lies in the power of closure.

Article 44 empowers the Directorate of Domestic Trade to order, independently of any judicial proceedings, the temporary, partial or total closure of the establishments of the person under investigation. This closure may continue until a final decision is reached in the proceedings, while the operator remains required, throughout that period, to fulfil the salary obligations imposed on it by the legislation.

The measure reflects the full intensity of the new domestic trade regulatory regime.

The administration does not need to wait for the court to issue a final ruling before putting an end to a situation it considers incompatible with the legislation.

The usefulness of such a power can hardly be denied in certain circumstances.

Where an activity presents an immediate danger to consumers, where an establishment is manifestly carrying on a prohibited activity without legal authority, or where the continuation of operations would allow a serious offence to persist, waiting several months for judicial proceedings to run their course could deprive administrative intervention of any effectiveness.

The power to order provisional closure may therefore be the very condition of the rule's effectiveness.

Yet administrative closure has a distinctive feature that other control measures do not necessarily share.

It does not merely affect the legal position of the operator.

It acts immediately on its economic existence.

A company can contest a fine and continue its operations while the court examines the dispute.

The position is entirely different when its doors are closed.

Overheads may continue to accrue.

Employees remain to be paid.

Rents and financial commitments do not disappear.

Stock may depreciate.

Contracts may cease to be performed.

And, above all, customers may turn away from the establishment.

For certain businesses, the provisional measure may thus produce economic consequences that a subsequent favourable decision will no longer be sufficient to undo.

This reality does not diminish the necessity of the power.

It simply requires that its intensity be carefully assessed.

For there is a fundamental difference between the power to bring an immediate halt to a situation that presents a manifest risk or clear illegality and the power to interrupt an activity for an extended period while awaiting the final outcome of proceedings that may be protracted.

It is precisely in this space that one of the principal difficulties of implementing the reform will arise.

The same observation applies, more broadly, to the full range of powers entrusted to inspectors.

A professional inspection visit is not a search of a private residence.

A request for the production of documents is not necessarily an illegitimate interference with business confidentiality.

An administrative seizure is not, by its nature, incompatible with the rights of the operator.

A provisional closure is no more a definitive sanction.

But the more intrusive or economically burdensome these measures become, the more essential the procedural framework surrounding them.

The legislature appears to have been partially aware of this, as it refers to a ministerial order to specify the role, duties and limits of competence of the agents responsible for enforcement.

This referral should not be viewed as a mere matter of administrative organisation.

It will constitute one of the most important instruments for the overall balance of the reform.

The law has defined the powers.

The regulatory framework must, in an essential respect, define their modalities and their boundaries.

In this regard, the quality of the framework will not be measured solely by the number of inspections carried out or infringements recorded.

It will also be measured by its capacity to establish a culture of enforcement in which the operator knows what may be required of it, by whom, under what procedure and with what consequences.

This predictability is equally in the interest of the administration.

A power that is poorly defined exposes those who exercise it more readily to challenge.

Conversely, a power whose basis, procedure and limits are clearly established gains in legitimacy and, consequently, in effectiveness.

One must therefore be wary of too readily setting administrative effectiveness in opposition to procedural guarantees.

Guarantees are not necessarily the enemy of enforcement; they are often the condition of its legitimacy.

It is precisely this that makes the reform a more profound change than a mere strengthening of sanctions.

By organising a specialist corps, by conferring investigative powers on agents, by permitting seizures, by establishing a settlement mechanism capable of extinguishing public prosecution and by recognising the administration's power to close an establishment independently of a final judicial decision, the law of 15 June 2026 brings into being a genuine domestic trade regulatory enforcement system.

This system was probably necessary to give effect to the ambition underlying the reform.

But it creates, by its very reach, a new requirement.

The greater the powers the administration receives to penetrate the internal life of a business, interrupt its operations or influence the outcome of enforcement proceedings, the more precisely the law must determine the conditions under which those powers may be used.

The question is therefore no longer whether the administration should have enforcement powers.

It must.

The real question is how those powers must be exercised so that the effectiveness sought does not become a source of uncertainty for the economic operator.

It is to this indispensable framework for enforcement, settlement and sanctioning powers that attention must now be directed.

B. The Indispensable Framework Governing Powers of Enforcement, Settlement and Sanction

Recognising that the administration must have the means to ensure the effectiveness of the law is one thing. Determining the conditions under which those means may be exercised is another.

The distinction is essential.

Administrative enforcement cannot be regarded as an anomaly in economic life. Any operator that chooses to carry on a regulated activity must accept that the public authority may verify that it satisfies the obligations imposed upon it. A business is not, by the mere fact that it falls within the sphere of private initiative, exempt from oversight by public authority.

But this self-evident proposition immediately calls for another: the power to enforce is not an unlimited power.

The greater the potential of an administrative prerogative to affect the functioning of a business, its assets, its information or the very continuation of its operations, the more precisely the conditions for its exercise must be defined.

It is from this perspective that several provisions of the law of 15 June 2026 deserve examination.

1. Extensive Investigative Powers Calling for Proportionate Procedural Guarantees

The powers conferred on domestic trade enforcement agents are, as we have seen, substantial.

Article 38 notably authorises them to inspect shops, workshops, factories, warehouses, vehicles and other professional premises, to access commercial documents useful to their investigations, to take copies thereof, to carry out certain seizures and to gather statements.

Taken individually, none of these powers appears foreign to the functions of an administration charged with economic enforcement.

Taken together, however, they allow the administration to access a considerable portion of a business's internal affairs.

Yet a commercial document is not always a simple administrative record.

It may contain the terms negotiated with a supplier, pricing structures, margins, the identity of business partners, customer data, financial information or certain elements of the company's commercial strategy.

Enforcement may therefore lead the administration to access information of genuine economic sensitivity.

The conclusion to draw from this is obviously not that the company could systematically invoke the confidentiality of its documents against an authority legally empowered to inspect them.

Such a position would make any meaningful verification impossible.

But the administration's need to access information does not extinguish the need to protect how that information is used.

The question then becomes which documents may be required, for what purpose, for how long they may be retained, which persons may have access to them and what guarantees surround their confidentiality.

This issue becomes all the more important when a seizure takes place.

A seizure is, by its nature, a more constraining measure than simple consultation or copying. The business is temporarily deprived of access to an asset or document that may be necessary for it to continue its operations or to justify its transactions to other authorities.

It would therefore be desirable for the implementing regulations to specify in particular the material conditions under which seizures are carried out, the preparation of a sufficiently detailed inventory, the issuance of a receipt to the operator, the procedures for storing seized items and the conditions for their return.

These guarantees in no way diminish the effectiveness of enforcement.

They protect the agent no less than the operator.

A jointly prepared inventory, for example, enables the trader to know exactly what has been taken away; it also enables the administration to establish without subsequent difficulty the nature of the items of which it has regularly taken possession.

Procedure protects those who are subject to it, but it also provides security for those who carry it out.

The same requirement should apply to inspection visits.

The law broadly defines the premises to which agents may have access, but the detail of the operational modalities will be of considerable importance: prior identification of inspectors, notification to the operator of the purpose of the inspection, hours of intervention, presence of the establishment's manager or their representative, preparation of a formal record and the opportunity to have observations entered therein.

All of these questions might appear secondary in light of the objective pursued.

They are not.

They are precisely what transforms the exercise of a coercive power into a legally disciplined administrative procedure.

Article 39, by referring to a ministerial order the determination of the role, duties and limits of competence of agents, affords the regulatory authority the opportunity to usefully complete the framework.

That order must not be confined to allocating functions between inspectors and controllers.

It should also specify the practical conditions under which their prerogatives may be exercised.

For what is at stake is not only determining what an agent may do, but equally how they must do it.

2. Administrative Closure: When a Provisional Measure May Produce Definitive Effects

The need for a rigorous framework appears with even greater force in relation to the administrative closure provided for in article 44.

The provision empowers the Directorate of Domestic Trade to order, independently of any judicial proceedings, the temporary, partial or total closure of the establishments of the person under investigation. This closure may continue until a final decision is reached in the proceedings.

The preventive or conservatory character of the measure may perfectly well justify it in principle.

Certain situations require immediate intervention.

The administration cannot be required to allow the continuation of an activity that presents a serious danger, is being carried on in manifest breach of a prohibition, or is enabling a serious offence to persist, merely on the ground that a court has not yet issued a final ruling.

But the difficulty lies precisely in the potential duration of the measure.

A closure that is legally characterised as "temporary" may, economically, be anything but provisional.

A business that remains closed for several months may lose its customers, its employees, its suppliers and its working capital. It may find itself unable to perform its contracts or to bear the charges that continue to weigh upon it. The law itself provides for the maintenance of certain salary obligations during the period of closure.

Thus, where the closure continues until a final decision, the question of the length of proceedings itself becomes a question of economic law.

An operator who ultimately prevails may find that the legal victory comes after the economic demise of its business.

A provisional measure should not, through the passage of time, produce the irreversible consequences of a definitive sanction before that sanction has been imposed.

This is why the implementation of article 44 should, in our view, be guided by several requirements.

The closure decision should first be supported by sufficiently detailed reasoning.

It should not be sufficient to state that an infringement is suspected. The nature of the irregularity, its gravity and the reasons why the immediate continuation of the activity justifies closure should be identifiable.

The measure should next be proportionate.

A total closure should not be ordered where the cessation of only part of the activity is sufficient to eliminate the risk or bring the disputed conduct to an end.

Equally, the duration of the measure should be subject to review where the circumstances that justified it have changed.

Finally, rights of appeal must be genuinely effective.

Article 45 does provide for the possibility of challenging administrative acts through the applicable legal remedies.

But, where a business closure is concerned, the abstract existence of a remedy is not always sufficient.

The timeframe of the courts must be capable of meeting the timeframe of the business.

A remedy that succeeds several months after the activity has ceased may juridically vindicate a right without restoring its economic utility.

The effectiveness of protection will therefore also depend on mechanisms that allow, where the necessary conditions are met, for rapid judicial review of the measure and, where appropriate, its suspension.

3. Administrative Settlement: Effectiveness Cannot Dispense with Predictability

The settlement mechanism calls for a different analysis.

At first glance, the settlement appears less prejudicial to the rights of the operator since it presupposes precisely that the operator accepts the proposed resolution.

It presents, as we have noted, an obvious practical advantage.

It avoids the need for every economic infringement to be taken through the full course of criminal proceedings and enables both the administration and the operator to reach a resolution more quickly.

The law confers on it, however, a particularly powerful legal effect: full execution of the settlement may result in the extinction of the public prosecution.

This effectiveness justifies ensuring that the conditions of its use are sufficiently regulated.

The first question concerns the determination of the settlement amount.

Two operators having committed comparable breaches should be able to reasonably expect comparable proposals, subject naturally to circumstances specific to each case, such as the gravity of the facts, their repetition, the benefit derived from the infringement and the cooperation of the party concerned.

Without sufficiently identifiable criteria, the power of settlement could produce differences in treatment that are difficult to explain.

Yet the administrative settlement has a particular feature: because it makes it possible to avoid criminal prosecution, the operator may be strongly incentivised to accept it, even where it believes it has serious arguments to contest the infringement.

Consent exists in law.

But it is exercised in a context where the alternative may be criminal proceedings, closure or other significant economic consequences.

This makes the transparency of the proposed conditions all the more necessary.

The statutory requirement of a statement of reasons constitutes, in this respect, a first safeguard.

It would benefit from being complemented by a consistent administrative practice and, ideally, by criteria capable of ensuring a degree of predictability in the amounts of settlements.

The aim is not to eliminate all margin of discretion.

A settlement must be able to take account of the specific circumstances of the facts.

The aim is to prevent flexibility from becoming unpredictability.

The possibility of reaching a settlement even after proceedings have already reached the judicial stage also calls for a particularly clear delineation between the administration and the court.

Since the public prosecution may be affected by the settlement, the conditions under which the administrative authority intervenes in proceedings already under way will need to be applied with particular rigour, so that the role of each party and the precise effects of the agreement reached are clearly identified.

4. The severity of the punitive regime requires precision in defining prohibited conduct

Finally, the law does not stop at administrative measures.

It establishes a substantial punitive regime.

The refusal or concealment of certain documents, obstruction of inspection operations, and various failures to comply with the requirements of domestic trade may entail criminal penalties. In addition, the court may impose particularly onerous supplementary measures: confiscation, publication of the conviction, closure of the establishment, or a prohibition on trading.

For certain offences, article 51 provides for fines of up to several million Comorian francs and terms of imprisonment of up to six months.

The intention to confer genuine binding force on the text is manifest.

However, in punitive matters, there is a direct relationship between the severity of the sanction and the degree of precision that must be expected of the rule on which it is based.

The more severe the penalty, the more identifiable the prohibited conduct must be.

This requirement is of particular importance in a law which, as we have seen, sits at the intersection of several regulatory frameworks.

Certain practices may simultaneously fall within the scope of domestic trade, competition, price regulation, health standards, intellectual property, or provisions specific to a regulated profession.

The risk is therefore not solely that of imprecision.

It is also that of overlap.

The same conduct could be scrutinised by several authorities and on the basis of several texts.

This situation will need to be managed.

The coexistence of several legal characterisations is not necessarily abnormal. The same act may infringe several protected interests.

However, it should not lead to a mechanical accumulation of sanctions penalising, under different characterisations, the same economic reality without regard to how those sanctions interact.

The requirement of proportionality reasserts itself fully here.

It does not constitute a favour granted to the offender.

It is one of the conditions for the very credibility of the punitive framework.

On reflection, the overall impression that emerges from the chapter devoted to inspection and sanctions is therefore less one of an intrinsic excess of power than one of a need for a framework commensurate with the legislature's ambitions.

The law seeks an administration capable of acting.

This ambition is legitimate.

It seeks officials capable of genuinely verifying economic activity, accessing documents, carrying out seizures where necessary, swiftly bringing certain situations to an end, and proposing, in appropriate cases, a settlement.

This ambition is also coherent.

But precisely because the system thus constructed is a powerful one, it must be surrounded by sufficiently precise procedural rules to enable the operator to know not only what the law requires of him, but also what the administration may require of him.

The economic rule of law does not mean that the administration is deprived of the means to compel compliance.

It means that compulsion itself remains governed by law.

It is probably in this area that the implementing regulations of the law of 15 June 2026 will have their most determining role.

They will need to specify the conditions for granting and withdrawing authorisations, but also the practical arrangements for inspections, the safeguards surrounding seizures, the limits of officials' competence, the conditions for retaining information gathered, and, more broadly, the procedures designed to ensure that the new authority conferred upon the administration remains predictable in its exercise.

Failing this, the risk would be paradoxical.

A law designed to secure and formalise domestic trade could itself become a source of uncertainty for those it seeks to bring within the bounds of legality.

Conversely, if these powers are exercised within a clear, consistent, and proportionate framework, their reinforcement will be able to produce the intended effect: making compliance with regulation no longer a constraint borne primarily by the most formalised operators, but a rule that is genuinely common to all.

The authority of the administration is therefore not measured by the absence of limits on its action. It is reinforced, on the contrary, when the operator knows in advance the extent of his obligations, the powers of those who inspect him, and the safeguards available to him to challenge them.

It is in this balance between authority and predictability that the new economic regulatory powers over domestic trade will find, beyond their force, their true legitimacy.

CONCLUSION

Law n°26-002/AU of 15 June 2026 on domestic trade undoubtedly marks an important milestone in the construction of Comorian economic law.

By its scope, it goes well beyond what its title might suggest. It does not merely organise the practical conditions for carrying on trade. It defines the participants in the domestic market, strengthens their administrative identification, affirms the freedom of enterprise, simultaneously organises the protection of certain activities for the benefit of nationals, and equips the administration with substantially enhanced means to inspect and sanction conduct contrary to the regulatory framework.

Across these various provisions, one overarching ambition takes shape: to make domestic trade a genuine instrument of national economic policy.

This ambition deserves to be understood before it is debated.

In a small island economy, where access to entrepreneurship remains difficult for part of the population and where local economic activities often constitute the primary point of entry into economic initiative, the State's desire to preserve certain spaces for the benefit of nationals cannot be regarded as lacking justification.

Similarly, the desire to formalise commercial activity to a greater extent and to equip the administration with genuine means of oversight responds to a well-known difficulty: an economic rule is truly common only when it is effectively applied to all.

Legislation that is demanding but devoid of enforcement ultimately penalises those who comply more than those who do not.

It would therefore be unjust to reduce the reform to an accumulation of new constraints.

It carries a vision.

That of a State which intends to exercise greater control over the organisation of its domestic market, to foster the emergence of national entrepreneurship, and to equip itself with the means to enforce the rules it enacts.

But it is precisely because this ambition is significant that its legal expression must be equal to it.

The analysis of the law reveals, in this regard, three balances that will largely determine the success of its implementation.

The first concerns the articulation between national competence and the OHADA legal order.

The Comorian State naturally retains competence to regulate its domestic market, organise the administrative conditions for the exercise of certain activities, and define the orientations of its economic policy. However, this competence is exercised within a legal order in which several fundamental areas of commercial law have already been harmonised.

The challenge therefore does not consist in artificially opposing national sovereignty and legal integration.

It consists in determining their proper respective domains.

National law must be able to organise domestic trade without recreating, alongside the categories of uniform law, competing characterisations liable to fragment the concept of the trader, the regime of the entreprenant, the rules on capacity, or the function of the RCCM.

On this point, the legislature itself provides the method when it expressly reserves competences attributed to OHADA law.

This reservation must not remain a mere drafting precaution.

It must become a principle for interpreting the law.

The second balance is probably the most delicate. It concerns the reconciliation between economic sovereignty and freedom of enterprise.

The law has made a clear choice: certain local economic activities should primarily benefit nationals, while foreign operators' access to these sectors must be justified by a particular contribution in terms of investment, know-how, employment, or skills transfer.

This orientation reflects a policy choice that it falls to the legislature to assume.

However, the protection of the national market does not dispense with the need for legal precision.

The distinction drawn between Comorian nationals according to the manner in which they acquired their nationality raises a question that goes well beyond commercial law. The situation of foreign operators already established in the country calls, for its part, for particular attention to vested positions, prior authorisations, and, where applicable, specific commitments made by the State.

The challenge here is not to conflate two propositions that are nonetheless profoundly different.

Legal certainty does not mean the immutability of economic policy.

A State must be able to amend its legislation, reorient its priorities, and decide that certain activities must henceforth satisfy new conditions.

But the power to change the rule does not exclude the obligation to organise that change in legal terms.

This is precisely the function of transitional regimes, objective authorisation criteria, and the protection of particular situations that have been regularly established.

The third balance concerns, finally, the effectiveness of the administration and the safeguards available to the economic operator.

On this point, the law unquestionably represents a shift in scale.

The Directorate of Domestic Trade and the officials responsible for inspection now have powers enabling them to intervene far more effectively in economic life: visits, access to documents, seizures, recording of offences, administrative closure, and settlement mechanisms.

These powers may be necessary.

They will indeed probably be indispensable if the ambitions of formalisation and protection of the domestic market are not to remain theoretical.

However, their legitimacy will depend largely on the conditions in which they are exercised.

Procedure is not an obstacle to administrative authority.

It is one of its guarantees.

Identifying the official, knowing the object of the inspection, determining which documents may be required, protecting confidential information, inventorying seized items, stating reasons for decisions, ensuring measures are proportionate, and guaranteeing the existence of effective remedies does not amount to weakening the administration.

It amounts to inscribing its action within a framework sufficiently predictable to ensure that public authority is never confused with arbitrariness.

In this regard, a significant part of the reform's future will probably be determined less by the law itself than by the implementing texts that will give it effect.

The thresholds for characterising small-scale trade, the level at which a foreign investment may be considered significant, the conditions for granting and withdrawing professional cards, the practical arrangements for inspections, the limits of officials' competence, and the criteria guiding certain administrative decisions will give the framework its true shape.

The same legislative text can, depending on the quality of its implementing measures, become an instrument of modernisation or a source of uncertainty.

This is why the forthcoming decrees and ministerial orders should not be conceived as mere implementing texts.

They constitute a second stage of the reform, almost as important as its enactment.

They will need to transform the principles laid down by the law into rules that are sufficiently precise to be understood by the administration, applied uniformly throughout the territory, and anticipated by economic operators.

However, the success of this reform will not depend solely on written law.

It will also depend on the manner in which it is administered.

The best regulation can lose its coherence when it receives varying interpretations depending on the officials, the islands, the operators, or the circumstances.

Conversely, an administration that is consistent in its doctrine, transparent in its procedures, and measured in the use of its powers can considerably reinforce the legal certainty of a framework some of whose provisions remain open to interpretation.

The courts will, finally, play an essential role.

As the first difficulties of implementation emerge, it will necessarily fall to them to clarify the scope of certain concepts, resolve conflicts between norms, assess the proportionality of certain administrative decisions, and progressively trace the boundary between economic freedom and the restrictions that the general interest may legitimately impose upon it.

The law of 15 June 2026 therefore does not close the debate on the organisation of domestic trade in the Union of the Comoros.

It opens it.

It opens, first, a regulatory worksite, because a significant part of its effectiveness still depends on implementing texts.

It opens, next, an administrative worksite, because the new powers will need to be accompanied by sufficiently coherent practices, procedures, and doctrine.

It opens, finally, a judicial worksite, because several of the balances it establishes will probably only find their definitive definition through contact with concrete situations.

This is, perhaps, ultimately, the appropriate way to approach this reform.

Not as a text to be approved or condemned in its entirety, but as the affirmation of a new conception of the role of the State in the Comorian economy, one whose balances it now falls to the law to determine.

The economic sovereignty it asserts cannot be durably opposed to freedom of enterprise.

The protection of national entrepreneurship cannot be durably opposed to investment attractiveness.

The effectiveness of oversight cannot be durably opposed to the guarantees of the rule of law.

These requirements are not contradictory.

They are complementary.

For a domestic market is truly sovereign only when the State is in a position to enforce its choices within it; it is truly attractive only when those who invest in it can anticipate the rules that will be applied to them; and it is truly favourable to national entrepreneurs only when the protection they are afforded is accompanied by the conditions enabling them to translate that protection into growth.

The true challenge of the new law will therefore be less a matter of choosing between openness and protection, between freedom and regulation, or between authority and safeguard, than of succeeding in reconciling them.

It is on this condition that it will be able to achieve what appears to be its ambition: not simply to regulate domestic trade to a greater extent, but to contribute to building a national market that is more structured, more accessible to Comorian entrepreneurs, and sufficiently predictable to continue attracting the investment the country's development requires.

For, in economic matters more than anywhere else, sovereignty is not consolidated in legal uncertainty. It finds, on the contrary, in legal certainty one of the most enduring conditions of its effectiveness.