The State or any entity acting in its name and on its behalf can exercise a pre-emptive right on raw or processed mineral substances produced by the holders of a Mining Title or Authorisation when the transactions are carried out in a non-competitive market or between affiliates.
The State, or any entity acting in its own name and on its behalf, which exercises this pre-emptive right, must purchase such mineral substances for a price equal to one hundred and five per cent (105%) of the current FOB price.
The pre-emptive right shall not apply to more than fifty per cent (50%) of the production by the holder of the Mining Title or Authorisation.
The pre-emptive right may be exercised only if the State considers, on the basis of reliable and accurate figures, that the holders of a Mining Title or Authorisation have sold their production at a price that is lower than the arm’s length price over a continuous period of three (3) months or more.
The conditions pertaining to the exercise of this right are determined by regulation.
The holders of a Mining Title or Authorisation are invited to submit to the Minister in charge of Mines and the Minister in charge of Finance, for approval, the prices included in the terms of any Long Term Purchase Agreement (LTPA) or any similar long term pricing Agreement, negotiated between the titleholder and any potential buyer. If, at the end of one month from the date of the submission to the State of the proposed prices or pricing formulas, the Minister in charge of Mines and the Minister in charge of Finance do not object to the titleholder, the approval will be deemed granted. Once approval is granted, the State will not be able to exercise its pre-emptive right as defined in this Article for the duration of the LTPA or any similar Agreement.