Gabon's legal framework amended to incentivise PPPs

In accordance with its liberal economic principles, the country is open to foreign investors, and the rights of free enterprise are guaranteed.

1. General Legal Environment

A. Constitution & other sources of rules: Gabon has a civil law structure with a hierarchy of legislation – lower laws need to comply with upper laws.

The highest rule is the constitution, ratified in 1991, which provides for a multi-party system and a parliamentary republic with two voting chambers: the National Assembly and the Senate. Below the constitution are acts of parliament on certain reserved areas listed within the constitution that are voted on by elected members of the National Assembly and the Senate, or upon specific authorisation from the Parliament, which is then decided by the head of state through presidential ordinances.

Below these two upper authorities are regulations that include decrees (usually presidential decrees), as well as ministerial orders and decisions.

The Constitution of the Republic of Gabon has been the subject of a reform embodied by Law No. 47/2010 dated January 12, 2011 (published in Official Paper No. 34 on February 1, 2011), which has amended 39 articles, among them Article 47. This henceforth gives the right to authorities to issue regulations within their competence for establishing public services including state-owned companies – a right that was previously held by the Parliament. This reform eases the modernisation of the public sector, which is illustrated in particular by the establishment of several public scientific organisations and administrative bodies, including in the areas of environment, scholarships and internships, and control agencies. Furthermore, while Gabon’s legal environment is stable, its compliance with international treaties and membership in international organisations has resulted in a number of international laws being directly applicable within its borders or being duplicated in the domestic legal code. Groups to which Gabon belongs include the Organisation for the Harmonisation of Business Law in Africa (Organisation pour l’ Harmonisation en Afrique du Droit des Affaires, OHADA), CEMAC, African Intellectual Property Organisation, Inter-African Conference on Insurance Markets ( Conférence Interafricaine des Marchés d’Assurances, CIMA), the International Centre for Settlement of Investment Disputes, the World Trade Organisation and the Multilateral Investment Guarantee Agency.

B. Judicial & arbitration system: Apart from the constitutional and accounting courts, the main courts that deal with business matters are civil and administrative. Each of these courts implements the system of upper recourse from the lower court to the appeals court and finally to the Supreme Court, in compliance with conditions laid out in the law. Thanks to its membership in OHADA, Gabon is able to make use of its International Court of Justice and Arbitration to resolve conflicts related to the implementation of business law. Regarding the judicial and arbitration system, two reforms were introduced during 2013 and 2014. To begin with, Law No. 03/2013 of June 25, 2013 relating to the enforcement of OHADA’s arbitration rules, provides the conditions under which a Gabonese national judge intervenes during the arbitration process. Then, the publication of Regulation No. 001/2014 of January 30, 2014 amended the Conference of Constitutional Jurisdictions of Africa’s (shared justice and arbitration court) rules of procedure by reorganising chambers, powers, nominations and procedures. Moreover, Gabon has acceded to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958.

C. Ownership of property: Laws for private and commercial property do not provide for any restrictions on nationality for the possession and ownership of property in Gabon. Any foreigner desiring to lease or acquire property may do so according to the law.

D. Free choice of business & freedom of competition: All types of businesses are free to operate legally, even though nationals or CEMAC citizens can be granted certain priorities and incentives when carrying out a specific activity. Gabon is a member of the World Trade Organisation. Although prices and conditions of sales and services have to be declared at the official body in charge of price control, prices and margins remain free. Domestic and CEMAC antitrust and anti-competition laws prohibiting some commercial practices, such as refusal of sale or abuse of dominant position, restrict free competition between traders.

E. Free choice of management structure: Regardless of the size of a business, domestic and OHADA laws (common to 16 other African countries) for commercial companies offer a large choice of structures. The main structures used are as follows:

• Self-employed (entreprise individuelle) is the simplest form of business, which sets up commercial and tax registration of a person wanting to run a business in his/her own name;
• Private partnership (société civile), usually dedicated to civil and non-commercial purposes of at least two partners;
• Commercial partnership (société en nom collectif), dedicated to commercial purposes of at least two partners with unlimited liability without any minimum share capital;
• Limited liability company (LLC, société anonyme à responsabilité limitée), with a single or several shareholders. The minimum share capital has been reduced from CFA1m (€1500) to CFA100,000 (€150) by Law No. 13/2016 of September 5, 2016 simplifying the creation of Limited Liability Companies;
• Public limited company (PLC, société anonyme), with a single or several shareholders and a minimum share capital of CFA10m (€15,000);
• Simplified Joint Stock company (société par action simplifiée), with a single or several shareholders and no minimum share capital required, and
• Branch of foreign companies registered at the commercial court and tax administrations.

The regime for branches of foreign companies has been subject to recent changes. Every branch of a foreign company (companies registered outside the OHADA territory) must be transferred to a company existing or to be created in one of the OHADA member states within two years of its establishment, being noted that this period may be extended by order of the trade minister for another two years period maximum (except for specific sectors of activities such as oil and gas), according to Article 120 of the OHADA Uniform Act on commercial companies law.

F. Amendments to uniform acts: Three uniform acts were published in the OHADA Official Publication of February 15, 2011 and have been applicable since May 16, 2011.

The uniform act relating to general trade law has introduced a simplification of administrative formalities in favour of a new class of economic actors – the “enterprising” – and a change in the Trade and Property Credit Record, which is now supplemented by a securities record specialising in the registration of guarantees, privileges and securities.

The uniform act on the securities law reorganises the securities system by introducing the concept of a security officer (a legal entity, mainly a financial or credit institution, whose main role is to create, manage and implement a security). The security officer focuses on reforming pledges, collateral or mortgages. The new uniform act dealing with securities also makes it possible to make guarantees regarding future goods, mainly raw materials. This provides the opportunity for economic actors (e.g., states) to make pledges or collateral on future production (energy, mainly oil), facilitating the movement of capital from banks and foreign investors. The other improvement noted is the redefining of collateral and pledges. Dispossession is not the criterion for distinguishing between these two concepts. Now, only tangible personal property can be subjected to collateral, while intangible personal property may also be pledged. It is also worth noting the framing of three types of pledges: namely, collateral bank accounts, financial title accounts and intellectual property pledges.

The uniform act relating to the cooperative companies law is an innovation of the OHADA law, and frames the implementation of cooperatives and the rules that are inherent to their operation. For this purpose, “a cooperative company is an independent group of persons voluntarily united to meet their economic, social and cultural needs and aspirations through a company whose ownership and management are collective and where power is democratically practised and according to cooperative principles”, according to the OHADA law. There are two types of cooperative companies: Simplified cooperative companies and companies with boards. It is expected that these classifications will allow for the structuring of agricultural policy by the Gabonese state, by promoting implementation within different areas of cooperative groups. The new OHADA Uniform Act relating to commercial companies and economic associations ( groupement d’intérêt économique, GIE) was published on February 4, 2014 and entered into force on May 5, 2014. It sets out the following changes:

• Use of a notarised deed for the drafting of statutes may be mandatory when a state party to the treaty requires so in its national law;
• Expanding the consideration of industrial contributions to all forms of companies, except for limited companies;
• Introduction of simplified share companies (société anonyme simplifiée, SAS) characterised by operating terms freely defined by the statutes concerning capital amount, nominal shares and designation of bodies;
• Introduction of variable capital companies for all types of companies, namely PLC, SAS, commercial partnership, limited partnership and GIE;
• Recognition of partners’ and shareholders’ agreements;
• Penalising the executives of a foreign branch that has not been brought to an existing or yet-to-be-created company in a OHADA member state, nor been liquidated according to the prevailing conditions after a period of more than two years (or four years in cases of exemption) following its creation; and
• Concerning PLCs: ability to determine in the statutes the nominal amount of shares, the removal of the notarised statement of subscription and payment, the introduction of the preference shares, the possibility of free assigning of shares to employees, terms for convening meetings and boards electronically.

G. Reliable & controlled banking systems: Banking regulations derive from CEMAC regulations, which are updated now and then to reflect new banking authorisations and constraints. No banking activity is authorised if it is not provided by a commercial bank audited by the Banking Commission of Central Africa.

H. New financial market regulations: Libreville has been appointed to accommodate the CEMAC stock exchange. Financial regulations have been enacted by CEMAC and the CEMAC Authority for Regulation of Financial Market of Central Africa to authorise, in particular, listings of companies and bonds (including state-owned enterprises and private companies).

I. Controlled insurance system: Insurance regulations derive from CIMA regulations, under which no insurance can be offered in a CIMA country if it is not provided by an agreed insurance firm. No risk in a CIMA country can be insured if it is not subscribed with an agreed insurance company. Derogations may be granted by the minister in charge of insurance.

The CIMA Code was modified to integrate new rules relating to micro-insurance, by the adoption of Regulation No. 0003/CIMA/PCMA/PCE/2012 dated April 5, 2012 organising micro insurance operations in the CIMA member states, published in the CIMA Official Report 14th edition of June 27, 2012. This micro-insurance regime helps protect people with low incomes from specific risks in return for the payment of coverage contributions.

J. Foreign exchange regulations: regulations derive from CEMAC and are based on the principle of free payment and movement of capital supported by relevant documentation and made through agreed banks.

There is, however, a specific control process for, in particular, foreign direct inward and outward investment in companies and businesses, the repatriation of export proceeds, and loans and borrowing by residents of non-CEMAC countries. The currency agreement with France guarantees the availability of foreign exchange and the unlimited convertibility of the CFA franc to the euro at a fixed rate, which provides considerable monetary stability and simplifies multinational transactions.

K. Labour & social law: Under the existing Labour Code, there are different types of labour contracts that may be offered by a Gabonese employer to an employee, each of which has its own regime:

• Limited-term contracts;
• Unlimited-term contracts;
• Contracts concluded for completion of a task; and
• Daily or weekly contracts.

Depending on the type of contract signed and the reason for the termination of the contract, a more or less strict administrative procedure must be respected by the terminating party. Working hours and annual leave are also covered under the code. The minimum paid annual leave entitlement is equal to two business days per month worked. Leave time is increased according to the age of the employee, his/her seniority and the employee’s family situation.

Except in economic zones with a special regime, foreigners cannot be employed in Gabon for more than three months without holding an individual work permit and having their contracts approved by the labour authorities. The individual work permit for a foreign employee must be requested by submitting an application accompanied by supporting documentation (permit application form, information questionnaire, statutes of the company, corporate documents, curriculum vitae, copy of diploma, work certificates, labour contract, etc).

Social security registration and contributions to the National social security funds (Caisse Nationale de Sécurité Sociale, CNSS) and the National health insurance and social guarantee fund (Caisse National d’Assurance Maladie et de Garantie Sociale, CNAMGS are mandatory for all employees, regardless of whether they are Gabonese nationals or expatriates. Social contributions are consist of two types of contributions (CNSS contributions and CNAMGS contributions). The CNSS contributions are assessed on the total compensation received by the employee, with an annual upper limit of CFA18m (€27,000), including allowances, benefits in kind and in cash evaluated according to the General Code, and excluding reimbursements of professional expenses. The total percentage of social security contributions is 18.5%, corresponding to family allowances, occupational injury and retirement. The contribution is shared between employer (16%) and employee (2.5%).

The CNAMGS contributions amount to 4.1% for the employer, 1% for the employee, corresponding to sanitary evacuation, medicine distribution and hospital costs. These contributions are assessed on the employee’s salary plus all allowances and benefits in kind and in cash, and excluding reimbursements of professional expense, within a monthly upper limit of CFA2.5m (€3750).

2. Legal Framework For Investments

A. Investment Charter: The Investment Charter is intended to encourage and stimulate productive investments in Gabon. It serves as a reminder of Gabon’s compliance with international treaties relating to foreign investments, as well as providing for additional general rights for investors.

These rights include freedom of enterprise and property ownership, transparency of business law under OHADA authorisation, transparency of social laws, independence of justice, non-discrimination between nationals and foreigners, free conversion of local currency and free transfer of profits in accordance with CEMAC foreign exchange regulations, and taxation at international standard rates. Decree No. 637/PR/MECIT dated May 16, 2011, implementing the Investment Charter, has been adopted and published in order to facilitate, for certain activities, the realisation of foreign investments in Gabon on obtaining the prior authorisation of the minister of economy. This decree applies in particular to the following:

• Investments made by foreign individuals or foreign legal entities and non-resident Gabonese;
• Operations aiming to take control of a company by obtaining the majority of the voting rights or operations of acquisition or transfer of companies; and
• Certain operations that are not principally regarded as direct investments within the meaning of the decree but may be subject to prior authorisation.

Activities subject to prior authorisation are:

• Activities linked to gambling;
• Activities of research, development and production regarding the illegal use, as part of terrorist activities, of pathogens or toxic agents or preventing the health consequences of such use;
• Activities concerning equipment designed to intercept correspondence and detect from a distance conversations, without prejudice to the penalties provided by the penal code;
• Services relating to the assessment and certification provided by new ICT products and systems;
• Activities relating to the means of encryption and encryption services;
• Activities carried out by companies depositary of national defence secrets;
• Activities of research, production or trade of ammunition, powder and explosives meant for military purposes, or war equipment and its equivalent;
• Activities carried out by companies under contract to study or supply equipment related to national defence or public safety, either directly or by subcontracting for the production of a good or service;
• Activities related to sustainable use of forest products; and
• Activities related to mining and hydrocarbons exploration and exploitation.

B. Small & medium-sized enterprises (SMEs): According to the law on SMEs, commercial companies with headquarters in Gabon owned or controlled by Gabonese nationals with an investment of less than CFA1bn (€1.5m) and a turnover of less than CFA2bn (€3m), employing at least 50% Gabonese people, and carrying out goods production, processing, distribution and provision of services, may benefit from:

• Privileged access to public procurement;
• Exemption from corporate income tax for five years;
• Preferential tariffs on refined petroleum products and transportation;
• Reduction by the state of the effective interest rate of loans;
• State payment of feasibility studies; and
• State grants for agriculture, wood and fishing investment in non-urban zones.

A certified centre of management is set to be created by the Chamber of Commerce of Gabon to help self-employed citizens and SMEs in the management and the development of their businesses.

C. Framework of capital equity operations: equity operations are governed by Decree No. 955/ PR/MECIT of August 1, 2011. This set the conditions for activities exercised in relation to equity.

These activities consist of making investments in companies listed and not listed on the stock exchange performed as usual by specialised companies on their own or on behalf of third parties. These companies of capital equity are subject to authorisation from the minister of economy and a yearly audit.

D. Tourism investments: According to the 2000 Presidential Ordinance on Tourism, eligible enterprises operating in the tourism sector may, in addition to tax incentives, benefit notably from:

• Entrance facilitation for tourists;
• State safety for protection of tourism sites;
• State assistance to train tour guides; and
• Temporary free communication facilities on national radio and television for the promotion of their activities.

E. Agriculture investments: According to the Agriculture Code, certain agriculture companies may be eligible to benefit from the following:

• Credit facilities;
• State grants; and
• Free import on certain agricultural products.

F. Mining investments: Mining remains one of the key sectors for the development of Gabon’s economy. A new Mining Code was introduced by Law No. 017/2014 dated January 30, 2014.

The main innovations introduced by the law are the following:

• Applicants to a mining title shall set up a Gabonese company;
• The Gabonese state has an automatic and free 10% participation right in the capital of exploitation mining companies (not dilutable). Moreover, the state has the option to take additional participation in the capital of exploitation mining companies of up to 25%, subject to a negotiated payment;
• The holding of research titles is limited to three titles (two for diamonds) and the research area is limited to 1500 sq km (5000 sq km for diamond);
• The exploitation area is limited to 1500 sq km;
• The Gabonese state has a pre-emptive right in case of transfer of mining titles, except concerning transfers between affiliated companies;
• Subcontractors performing activities in Gabon for a period (aggregated or not) of at least six months shall set up a Gabonese company; and
• Subcontractors benefit from the rights and incentives granted to mining title holders.

G. Industrial activities: An ordinance issued in February 2016 introduced a legal framework applicable to industrial activities (i.e., the physical or chemical processing of products, substances or components, as well as the substantial modification, renovation or reconstruction of products), including

• Conditions of setting-up, performance and winding up of industrial activities;
• Monitoring and control of such activities;
• Management of industrial zones; and
• Applicable sanctions in cases of non-compliance.

The commencement of industrial activities is subject to the obtaining of a licence delivered by the ministry in charge of industry and valid for five years.

The provisions of this ordinance do not apply to industrial activities that are regulated by sector-specific regulations.

H. Passing of a new Public Works Contract Code: The year 2012 saw the introduction of a new Public Works Contract Code, namely Decree No. 254/ PR/MEEDD of June 19, 2012, which abrogates Decree No. 1140/ PR/MEFPB of December 18, 2002. The major points include lowering the procurement threshold for public institutions and state-owned firms contracts to:

• CFA35m (€52,500) for works contracts;
• CFA20m (€30,000) for supply contracts; and
• CFA15m (€22,500) for the services and intellectual services contracts.

For local authorities and their public institutions contracts, the major developments include:

• CFA20m (€30,000) for works contracts;
• CFA10m (€15,000) for supply contracts;
• Creation of a regulatory agency for public works contracts designed to provide support to the General Direction of public works contracts;
• Framing of the procurement process for all public service delegations;
• CFA5m (€7500) for the services and intellectual services contracts; and
• Introduction of public partnership contracts in this project.

It is to be noted that the Public Procurement Code of 2012 is currently under revision.

I. Change of the land ownership system: The system of land ownership is now regulated by Order No. 005/2012 of February 13, 2012 abrogating Law No. 15/63 on land ownership. This new legal framework introduces the possibility of computerisation or dematerialisation of the land record, decentralising the administration of conservation, and reducing the procedures regarding registration and title deeds or mortgage transfer. The revision to the land ownership system will help speed up the process of carrying out real estate transactions for all investors.

J. Upstream hydrocarbons investments: The domestic oil and gas environment has been modified by the New Hydrocarbons Code, which was introduced by Law No. 11/2014 of August 1, 2014 and published in the Official Journal on September 8, 2014. This code enforces the following points in particular, but its scope is not limited to the list below:

• The regulation of downstream, mid-stream and upstream hydrocarbons activities;
• New forms of petroleum contracts (technical services contracts, technical evaluation contracts, exploration contracts, production contracts, exploration and production-sharing contracts);
• Provisions regarding the state participation in oil and gas interests granted to oil and gas companies and in the share capital of these companies;
• Prior approval process for oil subcontractors;
• Duration of exploration and exploitation phases;
• New obligations put to the charge of the contractors/operators, in particular with regards to social responsibility of enterprises and national content;
• New control and sanctions regime, which is projected to be very heavy on petroleum companies;
• Reinforcement of the application of the exchange regulation; and
• Important tax modifications in addition to new ceilings for petroleum costs recovery.

K. Free economic zones: In an effort to attract private investors, Gabon has set up special economic zones (SEZs) in which tenants benefit from particular legal, fiscal and social regimes.

The Nkok SEZ was launched in partnership with Olam International Group, which aims to promote new investments, mainly in the area of timber processing. The objective of this zone is to provide a flexible framework in terms of administrative procedures and to provide relevant information to entrepreneurs, implementing an actual interface between companies and the administration.

This legal framework includes tax incentives and exemptions from corporate income tax, value-added tax, Customs duties on imports, taxes on funds transfers, flexible conditions for employment of foreign workers and measures to reduce electricity costs. These provisions have been implemented by Decree 461/PR/MPITPHTAT of October 10, 2012.

With regards to the Port-Gentil SEZ, the presidential Decree No. 126 of January 22, 2013 has been published. It grants companies set up in this zone the same advantages and incentives set for the Nkok SEZ.

L. Public-Private Partnership (PPP): Order No. 009/ PR/2015 of February 11, 2016 (ratified by Law No. 20/2016 of September 5, 2016, published in the Official Newspaper of October 16, 2016) sets the framework of preparation, signing and execution of contracts and agreements concluded in implementing PPPs.

This order excludes PPPs from the scope of application of the Public Procurement Code (provided by Decree No. 0254/PR/MEEDD of June 19th, 2012) that is currently under revision in order notably to remove provisions relating to PPPs. This order introduces a specific frame for PPPs in Gabon, and notably:

• • A specific institutional framework that should be supervised by the National Investment Promotion Agency, pursuant to Decree No. 311/PR/MPIIHAT dated September 25, 2014, creating the agency as the relevant entity for designing, implementing and following PPPs.  

i) The contractual partnership that may be implemented under the partnership contract only; the Order specifies mandatory clauses; and

ii) The partnership that may be implemented under the form of an economic interest or the acquisition of stakes in an existing public company.