Contributed By Houda Law Firm (Dakar - HQ)
Senegal has a civil law system with codes made of law that were voted by the National Assembly and applicable in different subjects.
The legal system is basically constituted of three levels of jurisdiction:
Article 9 of the Investment Code lays down the principle of 'equal treatment'.
In this regard, foreign individuals or legal persons shall receive the same treatment as Senegalese natural or legal persons, subject to reciprocity and without prejudice to measures that may concern all foreign nationals or result from the provisions of the treaties or agreements to which the Republic of Senegal is a party.
As an exception, some sectors provide administrative approval measures for certain direct investments and operations, as in the mining sector and in the field of hydrocarbons.
Banking, financial and similar activities are subject to special regulations within the West African Economic and Monetary Union's (WAEMU’s) community framework and under the leadership of the Central Bank of West African States (BCEAO).
Due to the sensitivity of the sector to the economy, several restrictions are implemented for foreign investment.
In other respects, the Public Procurement Code and the Public-Private Partnership Act ensure the free participation of foreign investors in international calls for tenders in accordance with the principle of equal treatment and non-discrimination.
The Investment Code provides incentives for private investment that benefit both foreign and domestic investors, particularly in tax and customs matters in various sectors of the economy.
In addition to this general framework, Senegal has signed numerous bilateral agreements on investment promotion and protection, which offer broader advantages to investors who are nationals of the States Parties than the Investment Code does.
Apart from the sectors listed above, there is no general regime to authorise foreign investment. In sectors where approval is expected, a minimum of control over the country's natural resources or over sensitive sectors of the national economy is sought.
Investments are governed by precise regulations, which are laid down in laws and decrees adopted in the various sectors, particularly when an approval or authorisation system is provided for.
In practice, these regulations are completed by terms of reference containing obligations to respect for investments in the concerned sectors.
These documents generally contain all the legal, financial and technical requirements to be met prior to investment measures.
In Senegal, all decisions taken by administrative authorities must be in accordance with the law. The verification of their legality may be submitted to the courts by all foreign and domestic persons. Cancellation measures may be taken by the courts in the event of an appeal against administrative decisions that would be contrary to law.
This challenge procedure must be initiated within two months following the negative reply of a request for review addressed to the administrative authority that issued the refusal of approval, or to its hierarchical superior.
Commercial companies are governed by the Uniform Act on the Law of Commercial Companies and Economic Interest Grouping published on 30 January 2014.
The most commonly used commercial forms in Senegal are, in order, the société à responsabilité limitée (SARL), the société anonyme (SA) and the société par actions simplifiée (SAS).
The Société à Responsabilité Limitée
This company is the simplest of commercial companies, in which the liability of the shareholders is limited to contributions.
The SARL may be established by one natural or legal person, or between two or more natural or legal persons.
It does not require any minimum share capital for its creation and its capital is divided into shares.
It is often characterised by a fairly strong intuitu personae, which is why transfers of shares are often governed by specific authorisation rules given by the non-transferring shareholder.
The SARL is managed by one or more natural persons, associated or not.
In addition, the SARL is not required to appoint an auditor unless it meets two of the following conditions at the end of the financial year:
The partners of the SARL meet in a general assembly, ordinary (each year for the approval of the accounts of the closed financial year) or extraordinary (for any modification of the articles of association).
The SARL is a corporate form adapted to greenfield projects, commercial activities and services. It is also suitable for young entrepreneurs with few resources due to its low formation cost.
The Société Anonyme
The société anonyme under OHADA (Organisation pour l'harmonisation en Afrique du droit des affaires, or the Organisation for the Harmonisation of Corporate Law in Africa) law may be held by a single shareholder.
The founder(s) must choose between two modes of management and administration unequivocally in the articles of association: (i) a société anonyme with a board of directors (from one shareholder) or a société anonyme with a managing airector (up to three shareholders).
The minimum share capital of an SA is XOF10,000,000. It must be fully subscribed by the shareholders and may be paid up at least one quarter upon incorporation.
The founders of an SA must appoint a statutory auditor and an alternative, chosen from among experts who are members of the National Order of Chartered Accountants and Chartered Accountants of Senegal.
The Société Anonyme with a Board of Directors
The board of directors is composed of a minimum of three persons and a maximum of 12 members, shareholders or not.
The articles of association may require each director to own a number of shares of the company that they preside over.
It is possible to appoint corporate directors who appoint a permanent representative to the board.
The board appoints the chairman of the board of directors from among the natural persons who are members of the board as well as the chief executive officer of the company, who may be one third of the board.
It may also be decided to appoint a chairman and chief executive officer who will combine both functions.
The board of directors determines the orientations of the company's activity and ensures their implementation. It may take up any question concerning the proper functioning of the company and settles through its deliberations the matters that concern it.
The board of directors carries out such controls and verifications as it deems appropriate.
The chairman of the board of directors presides over board meetings and general meetings. He must ensure that the board assumes control of the management of the company entrusted to the chief executive officer.
The chief executive officer is responsible for the general management of the company. He represents it in its relations with third parties.
On the proposal of the chief executive officer or the chairman and chief executive officer, the board of directors may appoint one or more individuals to assist the chief executive officer or the chairman and chief executive officer as deputy chief executive officer.
The Société Anonyme with a Managing Director (Administrateur Général)
The managing director assumes, under his responsibility, the administration and general management of the company. He represents it in its relations with third parties.
He convenes and chairs the general meetings of shareholders.
He is vested with the broadest powers to act in all circumstances on behalf of the company and exercises them within the limits of the corporate purpose and subject to those expressly attributed to shareholders' meetings by the Uniform Act and, where applicable, the articles of association.
On the proposal of the managing director, the general assembly may mandate one or more natural persons to assist the director as deputy managing director.
In agreement with the managing director, the general assembly shall determine the powers delegated to the deputy managing director.
Shareholders meet in an ordinary general assembly for the approval of the annual accounts, after their approval by the board of directors or by the managing director; or an extraordinary general assembly for statutory amendments.
The SA is a suitable form of company for the establishment of joint ventures, for companies with significant investments to make and for companies engaged in regulated banking or financial activities.
The société par actions simplifiée
Recently introduced in the OHADA Uniform Act on Commercial Companies and EIG (Economic Interest Group) Law (in 2014), the SAS is defined as a company set up by one or more shareholders whose articles of association freely provide for the organisation and operation of the company subject to certain mandatory rules (competence of the shareholders' general meeting to approve the accounts or amend the articles of association, for example).
The liability of the partners is limited to the contributions and there is no minimum share capital to create a SAS. It can be created by a single shareholder: in this case, it is specifically called a single-person simplified joint stock company (SASU).
The company is represented by a chairman, appointed under the conditions provided for in the articles of association. The president is vested with the broadest powers to act in all circumstances on behalf of the company within the limits of the corporate purpose.
The articles of association freely determine the decisions that must be taken collectively by the shareholders in the forms and conditions they stipulate. Decisions taken in violation of the statutory clauses are null and void.
The partners may appoint one or more auditors.
However, simplified joint stock companies (SAS) that meet two of the following conditions at the end of the financial year are required to appoint at least one auditor:
A SAS that controls or is controlled by one or more companies is also required to appoint at least one auditor.
This form of commercial company is appropriate for companies whose shareholders have different profiles: investors and project leaders, equity companies and companies operating in the field of services and new technologies.
In Senegal, it is mandatory to go through a notary for the incorporation of the company. The steps of incorporation of the company will therefore be followed by the notary.
The incorporation is carried out on an electronic platform and the withdrawal of signed documents is done at the Business Creation Assistance Office located within APIX, the Agency for the Promotion of Investments in Senegal.
The duration is approximately eight to ten days from the signing of the articles of association, of the declaration of subscription and payment, and minutes of the deliberations of the first board of directors.
It will be necessary to have gathered all the required documents and to have paid the share capital with a banking institution or the notary.
When the formalities are completed, the following documents are issued at the same time, on behalf of the new company:
The general provisions of the Uniform Act relating to the law of commercial companies and the EIG, applicable whatever the form of the company, provide for the obligation to make a declaration of regularity and conformity or a notarial declaration of subscription and payment of capital. It is required under penalty of rejection of the company's application for registration in the Trade Register.
It shall be accompanied by the so-called M0 form, which shall bear the company's registration number in the Trade and Personal Property Credit Register. It is replaced by the declaration of subscription and payment received by the notary when the company is incorporated.
These same conditions apply in the event of an amendment to the company's articles of association.
Any amendment to the articles of association must be published in the Trade and Personal Property Credit Register in order to be enforceable against third parties. These amending formalities shall also be published in a legal gazette authorised by the authorities.
In the event of a change in one of the points listed above following a change in the articles of association, in addition to the amending declaration to be registered with the Registry, the change shall be published by a notice inserted in a newspaper of legal notices.
Companies are also subject to disclosure formalities at the Registry in charge of the RCCM of the summary financial statements. They are required to submit to the RCCM, within one month of their approval by the competent body, the summary financial statements, namely the balance sheet, the income statement, the financial table of resources and uses, and the attached statement for the past financial year;
There is not yet a register of ultimate beneficiary in Senegal. However, the legal environment is conducive to this and commitments have been made to this effect by the Senegalese government in view of its membership of the Extractive Industries Transparency Initiative (EITI).
Similar provisions govern the rules pertaining to the liability of corporate officers and directors in the different types of companies that have been mentioned: SARL, SA and SAS.
A distinction must be made between civil and criminal liability.
Civil liability of the manager of a SARL
The managers are liable, individually or jointly and severally, as the case may be, to the company or to third parties, either for breaches of the laws or regulations applicable to companies, or for breaches of the articles of association, or for misconduct in their management. If several managers have co-operated in the same acts, the competent court shall determine the contribution of each to the compensation for the damage.
In addition to the action for compensation for the damage suffered personally, the partners representing one quarter of the partners and one quarter of the shares may, either individually or by grouping together, intern the social action for liability against the manager. No clause in the articles of association may make the exercise of the corporate action subject to the prior notice or authorisation of the meeting or entail a waiver in advance of the exercise of this action.
No decision of the meeting may have the effect of extinguishing an action for liability against the managers for misconduct committed in the performance of their duties. Any decision to the contrary is null and void.
Civil liability of the chief executive officer of an SA
The same rules of individual and social responsibility apply to the chief executive officer.
Civil liability of the directors (SA)
Directors are individually or jointly and severally liable to the company or to third parties, either for breaches of the laws or regulations applicable to an SA, or for breaches of the provisions of the articles of association, or for misconduct in their management.
If several directors have co-operated in the same acts, the competent court shall determine the contribution of each of them to the compensation for the damage.
In addition to the action for compensation for the damage suffered personally, shareholders may, either individually or as a group, bring a social action for liability against the directors.
No decision of the general meeting may have the effect of extinguishing an action for liability against the directors or against the managing director, as the case may be, for misconduct committed in the performance of their duties.
Civil liability of the president/chairman of a SAS
The same rules of individual and social responsibility as those mentioned for the manager and the chief executive officer apply to the president.
The Uniform Act on the law of commercial companies and the EIG contains criminal provisions in the event of offences committed by corporate officers: these offences relate to the incorporation of companies; the management, administration and direction of the company; general meetings; changes in the capital of an SA, capital reductions; company control; dissolution of companies; liquidation of companies; and in the event of a public offering for savings.
Law No 2018-13 of 27 April 2018 mentions the penalties incurred for the offences referred to in the Uniform Act.
Senegalese social law’s sources are both national and international.
Moreover, there are other conventions and collective agreements that are used with the Labour Code.
The precedent is extremely important as a national source for labour law. It completes the legislation, as does the doctrine.
An employment contract can be an open-ended contract or a fixed-term contract.
For an open-ended contract, the principle of consensualism is used, which means that a written contract is not needed. Nevertheless, even though a written document is optional, it is very often used in practice because of its probative force.
Contrariwise, a written contract is obligatory for a fixed-term contract according to Article L44 of the Labour Code. A fixed-term contract cannot exceed two years.
The Senegalese Labour Code fixed the maximum working time to 40 hours a week for all non-agricultural settlement.
The repartition of the 40 hours during the week is at the discretion of the employee.
There are three ways to adapt these 40 hours:
For one day, the employer has a certain freedom in organising the schedules. Nevertheless, even if the employee uses it, they have to respect the right of the employees to have a break. Thus, the number of hours between the beginning and the end of the day (including breaks) must not exceed 12 hours.
The Labour Code also requires the respect of the principle of weekly rest, which is at least 24 consecutive hours a week. This day is usually Sunday.
Some exemptions exist for companies providing a service to the community that cannot be stopped on a Sunday.
Legal provisions allow 500 hours' overtime per year and per employee after it has been accepted by the labour inspector.
Hours exceeding the 40 legal hours per week generate a pay raise defined as:
Moreover, Article 2 of the National Interprofessional Collective Convention states that in compensation for the compulsory legal weekly rest period, a worker who has exceptionally worked at least seven consecutive working days during the week shall receive additional remuneration equal to 60% of his salary.
The termination of the employment contract is initiated by the employer (dismissal) or by the worker (resignation). But there is another form of termination of the employment contract, named the amicable termination of the employment contract.
The termination of the employment contract at the employer's initiative implies the written notification of the termination to the employee. The Labour Code states: "The termination of the open-ended contract implies a notice in writing by the party who takes the initiative of the termination." Paragraph 3 adds: "The reason for termination of the contract must be noted in this notification."
Dismissal may be retained for misconduct or gross negligence.
In the event of dismissal for simple misconduct, the worker receives a notice and severance pay in addition to his monthly attendance pay and leave. The severance pay in lieu of notice is three months' salary for an executive worker and one month's salary for a non-executive worker. The severance pay is calculated, for each year of service in the company, according to a percentage of the average total monthly salary for the last twelve months of employment preceding the dismissal, as follows:
In the case of dismissal for gross negligence, the worker will not profit from any compensation, only his monthly attendance pay and leave.
If the dismissed worker brings the matter before the court, the judge relies on the facts and documents (alleged faults, dates, documents produced, possibly investigations) to judge at his entire discretion the legitimacy of the dismissal.
If the judge considers that a dismissal is unfair, the employer has to pay damages to the worker. Damages are, as a rule, fixed by the judge taking into account the worker's salary, his seniority and the judge's supreme discretion over damage suffered by the worker.
In addition to dismissal for personal reasons, an employee's dismissal may be based on economic reasons.
This form of dismissal is subject to a specific procedure. For this dismissal, a social judge shall have sovereign discretion to assess the economic difficulties alleged by the employer.
For fixed-term contracts, early termination is only permitted in the event of gross negligence or agreement of the parties in writing, or in the event of force majeure.
The lack of awareness from the employer entitles the worker to compensation.
At the end of an employment contract, the employer must issue a certificate of employment to the employee, under penalty of damages.
The worker’s resignation is never assumed. It must be in writing, and express clearly and unequivocally the will to terminate the employment contract.
Amicable Termination of Employment Contract or Negotiated Departure
At the initiative of the employer or the worker, the termination of the employment contract may result in an agreement between the parties.
In the event of a negotiated departure, the parties agree to pay an amount as a severance bonus in addition to severance pay, notice and leave.
Employees are represented by elected employee representatives following elections held within the company.
Employee representatives must be elected in establishments subject to the Senegalese Labour Code with more than ten workers. This concerns all establishments, whatever their nature (industrial, commercial or agricultural) and regardless of whether the employer is a natural or legal person, public or private.
It is the employer's responsibility to organise the election of employee representatives. Article 11 of the above-mentioned decree stipulates that the general manager or his representative must announce by letter to the trade union organisations concerned his intention to organise elections. The copy of this letter must be sent to the labour inspector of the jurisdiction.
The date, place and hours of opening and closing of the ballot shall be fixed by the general manager or his representative, after agreement with the trade union organisations.
Any worker of the establishment, male or female, aged 18 or over, who has worked for at least six months in the company and who has not been subject of a private conviction for civil rights is eligible to vote.
Voters are divided into two electoral colleges: (i) college of workers and employees, and (ii) college of engineers, heads of departments, technicians, supervisors and similar.
To be eligible, the employee should be a voter over 21 years of age, a Senegalese national or a national of a member state of a treaty granting reciprocity, be able to read and write, and have completed twelve months of service in the company, without interruption.
Ascendants, descendants, brothers or allies to the same degree as the company manager are not eligible.
Employee representatives may submit both collective and individual complaints. The complaints of the employee representatives concern mainly all the regulations applicable to the company, working conditions, remuneration, social protection of workers, the application of collective agreements, and health and safety measures.
Staff representatives may also refer any complaint or claim relating to the application of legal or regulatory provisions to the labour inspector.
Participation in the Management of the Company
Employee representatives contribute to the good functioning of the company by communicating to the employer all useful suggestions for the improvement, organisation and performance of the company.
Taxes Payable by the Employee and the Employer, Respectively, in the Context of an Employment Relationship
Some taxes, namely income tax and the tax representing the minimum tax rate, are borne by the employee but must be withheld and paid to the public treasury by the employer, whereas the flat-rate contribution borne by the employer is borne solely by the employer.
Social Security Contributions paid by the Employee and the Employer
The employer and employee must also pay charges to social security institutions. Thus, a distinction must be made between contributions to the Senegalese Pension Fund (IPRES) and those paid to the Social Security Fund (CSS).
Contributions are based on the gross compensation of the employees, up to a ceiling set each year by the board of directors.
Criteria for Employees to be Subject to Taxation within the Senegalese Jurisdiction
The criteria for personal income tax subjection depend upon the existence of a fiscal treaty between the country of the source of the income and the employee's country of residence.
In the absence of such a tax treaty, foreign workers operating in Senegal are subject to the provisions of Articles 48 et seq of the General Tax Code. Under these articles, income tax is due from any individual residing in Senegal, holding income from Senegalese sources or whose income is allocated to Senegal by an international agreement, in particular a tax treaty.
Companies with share capital, such as public limited companies and limited liability companies, are subject to corporate income tax.
The taxes applicable to companies doing business in Senegal may vary depending on whether the company is established in the country or a foreign company with no permanent establishment in the country.
For Companies Established in Senegal
Companies established in Senegal shall, in particular, pay, unless exempted, the following taxes.
Corporate income tax
Under Article 3 of the General Tax Code (GTC), corporate income tax is due on the profits made in Senegal. Profits from companies operating in Senegal are deemed to have been made in Senegal.
The corporate tax rate is set at 30% of taxable income.
Flat-rate minimum tax (IMF)
There is a minimum tax known as the Impôt Minimum Forfaitaire (IMF). It is owed by all companies or legal entities that are in deficit or whose taxable income does not allow them to generate a corporation tax higher than the amount determined by a tariff set by the Code. The IMF is due on the turnover, excluding tax, achieved in the year preceding the year of taxation, at a rate of 0.5%, and its amount may in no circumstances be less than XOF500,000 or more than XOF5,000,000.
The local economic contribution (CEL/VL and CEL/VA)
This is a tax imposed for the benefit of the local municipalities.
It is due from any individual who carries on a trade, industry or profession in Senegal and is subject, in addition, to a system of taxation of real profits. Employees are excluded from the scope of the CEL. Exemptions are provided for in the General Tax Code.
The local economic contribution includes a contribution based on the rental value of the premises used for the exercise of taxable professions (CEL/VL) and a contribution on the value added generated during the year preceding the year of taxation (CEL/VA).
The CEL/VL rate is 15% for premises rented or occupied free of charge and 20% for premises, land and installations recorded as assets in the taxpayer's financial statements.
Tax on income from securities (TIS)
The TIS withholding tax applies to income distributed by legal entities paying corporate income tax according to the General Tax Code.
Legal entities subject to corporate income tax and distributing this income must withhold withholding tax at a rate of 10% and pay it to the Treasury.
Nevertheless, when the tax regime of the parent company/subsidiary is applicable, dividends distributed by the parent company are not subject to withholding tax up to the net amount of the shares or interest received from the subsidiary.
Income from shares, company shares and interest shares are subject to the 10% rate, while other income from movable capital is taxed at 16%.
Tax on income from receivables, deposits, guarantees and current accounts
Senegalese tax law provides a withholding tax that must be paid by the party paying interest. However, the GTC provides a number of exemptions.
The IRC withholding tax rate is 16%. A reduced rate of 8% is applied to interest and other current account income of banks, and holding companies fulfilling the conditions of Article 23 of the GTC and other similar bodies.
Royalty tax or NCB withholding tax
The withholding tax on royalties, also known as the 'NCB withholding tax' (non-commercial profits), must be levied by debtors established in Senegal on sums paid to natural or legal persons subject to income tax or corporation tax who have no permanent professional establishment in Senegal.
The withholding tax rate above is 25% of the net amount of taxable amounts paid to natural and legal persons, knowing that this net amount is determined by applying a 20% deduction to the gross collection.
Value-added tax (VAT)
VAT is due in Senegal on supplies of goods and services made for consideration by a taxable person per se, as well as imports, provided they are located in Senegal.
Where applicable, VAT is due from the company at a rate of 18%.
Deduction from wages
This is the withholding tax on income from employment and the Representative Tax on Minimum Tax detailed above. The company must make this withholding and pay it to the public treasury monthly or quarterly.
Withholding tax on amounts paid to third parties
This is a deduction that the company must make from the amounts it pays to persons living in Senegal, in compensation for services of any kind provided or used in Senegal. Its rate is 5%.
Tax on the removal of household refuse
The tax on the removal of household refuse (TOM) applies to all properties subject to the land contribution of properties built or temporarily exempted from this contribution, with the exception of factories and built properties located in municipalities or parts of municipalities where the household waste collection service does not operate.
The TOM rate currently applied in Dakar by the Tax Administration is 3.6%.
Property land contributions
Land contributions are of two kinds: the land contribution of built properties and the land contribution of undeveloped properties.
Current year's municipal tax on advertising
The municipal tax on advertising applies to companies' advertising devices.
The rate can vary from flat rates of XOF20,000 per square metre to fixed amounts of XOF500,000 per year. It is recovered by the municipalities and must be paid before March 31st of each year.
Registration duty and stamps
It should also be noted that a certain number of deeds concerning the company must be submitted to the registration formality.
The applicable fees vary according to the nature of the act (proportional fees).
Foreign Company without a Permanent Establishment in Senegal
Foreign companies that do not have a permanent establishment in Senegal may also have to pay a certain number of taxes in the country.
Corporate income tax
Legal entities domiciled abroad that receive property income in Senegal or capital gains from the sale of real estate located in Senegal or related rights, or realise capital gains from the sale of securities or social rights held in Senegalese companies, are subject to corporate income tax, the rate of which is set at 30%.
Royalty withholding or NCB withholding
Services provided by a foreign company to a person established in Senegal are, in principle, subject to withholding tax on royalties, also known as non-commercial profits, unless otherwise provided in tax treaties.
The tax is deemed to be borne by the foreign company, although the obligation to declare and pay is borne by the person receiving the services in Senegal.
VAT on account
In the case of services provided by a foreign person to a person established in Senegal or when the service is used in Senegal, VAT on behalf of the foreign company is paid by the Senegalese debtor when the foreign company does not have a tax representative in Senegal.
Taxes on private vehicles of legal entities
The GTC also provides for a "special tax on legal persons' private cars", which applies to vehicles classified in the category of private cars by the Highway Code and those not subject to a patent.
Various tax credits exist in Senegal. The main tax credits are the following.
Dividend Tax Credit
A tax credit corresponding to the withholding tax on income from investments received by legal entities and effectively included in taxable profits is deducted from the amount of corporation tax.
It is worth noting that this credit can be carried forward over three years. If at the end of the third year it has not been absorbed, the remainder is returned by way of a claim.
In principle, the VAT paid to suppliers is recovered by charging it against the VAT collected on the sale of goods or services. However, any taxable person, with the exception of resellers in the condition of goods, may request the refund of VAT credit that could not be absorbed by charging.
Investment Tax Credits
Companies making investments of at least XOF100 million may benefit, under certain conditions, from a reduction in the amount of tax due.
For a new company, the amount of deductions allowed is set at 40% of the amount of investments. However, it is capped at 50% of taxable profit.
The deduction limit is raised to 70% of taxable profit, if the new or expanding company is located in a region other than Dakar.
Reduction Granted for Export
Industrial, agricultural and teleservice companies that export at least 80% of their production are allowed to deduct 50% of their taxable profit for income tax purposes.
To benefit from the reduction, eligible companies must provide proof of actual export and repatriation of foreign currency. It should be noted that indirect exports are excluded in the determination of turnover. In addition, mining and petroleum companies are excluded from the benefit of the provisions of this article.
Tax Reduction for the Promotion of Renewable Energies
Companies manufacturing locally and exclusively goods intended for the production of renewable energies as well as companies producing such energies are authorised to deduct 30% of their taxable profits for the calculation of the corporate income tax for which they are liable.
For these purposes, 'tax consolidation' means a tax regime that allows the income of a subsidiary, held at least 95% or in similar proportions, to be taxed at the level of the parent company. This tax regime allows losses of a subsidiary to be offset against the parent company's income.
Given this, tax consolidation does not exist under Senegalese tax law.
The Senegalese tax system includes a number of rules designed to avoid undercapitalisation.
As such, the deduction of interest is subject to a double limitation of rate and amount.
In addition, the deduction of interest paid to persons is limited to the remuneration of sums made available to them by such persons that do not exceed the amount of the share capital.
This limitation does not apply to interest paid by companies not subject to corporation tax to their shareholders who are subject to income tax in Senegal because of this interest.
Senegal has transfer pricing rules in its General Tax Code that are regularly updated.
For example, for the assessment of corporation tax payable by companies that are dependent on or control companies located outside Senegal, profits indirectly transferred to them by increasing or decreasing their purchase or selling prices, or by undercapitalisation or by any other means, will be included in the results recorded in the accounts.
With regard to the deduction of expenses for the determination of corporation tax, interest, arrears and other income from bonds, receivables, deposits and sureties; royalties on the transfer or grant of operating licences, patents, trade marks, manufacturing processes or formulas; and other similar rights or remuneration for services that have been paid by or are due from a natural or legal person domiciled or established in Senegal to natural or legal persons who are domiciled or established in a foreign state or territory outside Senegal and are subject to a privileged tax regime, or a non-cooperative country, shall be allowed as deductible expenses for tax purposes only if the debtor provides proof that the expenses correspond to actual transactions and that they are not of an abnormal or exaggerated nature.
The legal person established in Senegal must keep at the disposal of the Tax Administration documentation to justify the pricing policy applied in the context of transactions of any kind with associated companies established abroad. This obligation applies to the legal person if:
In addition to the rules to combat transfer pricing, the GTC provides the Administration with a broad power of re-qualification of legal acts and contracts made or concluded by taxpayers. Any transaction concluded in the form of a contract or any legal act and concealing or covering up a realisation or transfer of profits or income, made directly or through intermediaries, is not opposable to the Administration.
This also applies to acts giving rise to lower registration fees or making it possible to avoid all or part of the payment of turnover taxes.
Regulation No 03/2002/CM/WAEMU of 23 May 2002 on antitrust procedures within UEMOA provides a 'Negative Certificate' application procedure.
The Commission may, ex officio or at the request of the companies concerned, declare that, on the basis of the information available to it, there is no need for it to act with regard to an agreement, decision or practice under the provisions of Article 88 a) and b) of the WAEMU Treaty.
Thus, Article 4.3 of the Regulation provides that when the Commission becomes aware of a concentration operation constituting an abuse of a dominant position, it may order the companies not to proceed with the proposed concentration or to restore the previous legal situation, or to modify or supplement the operation, or to take any measure necessary to ensure or restore sufficient competition.
In the event of the discovery of a concentration incompatible with competition law, an adversarial procedure is initiated by the Commission following a complaint, notification or on its own initiative.
The Commission shall communicate in writing to each of the undertakings and associations the objections raised against them and shall set a deadline for sending it their views.
They shall express their views on the complaints against them in writing and within the time limit set. They may set out all the pleas in law and facts relevant to their defence in their written submissions, as well as attach documents considered relevant.
The Commission shall refer the matter to the Advisory Committee on Competition if it decides to adopt an express measure on the basis of Articles 3, 4 or 7 of the Regulation.
If the Committee has not adopted any decision within twelve months of the opening of the contradictory procedure, this silence shall constitute an implicit decision of negative clearance or individual exemption on the basis of Articles 3 or 7 of these Rules of Procedure.
The national structures responsible for enforcing competition law concerning antitrust legislation are somewhat out of step with cartel agreements concluded from outside and operating in two or more countries.
Similarly, there is also no practical legislation at Community level that is capable of uncovering all subsequent violations in order to sanction them.
Practices of abuse of dominant position committed in the WAEMU zone are easily apprehended and dealt with according to the procedure previously described. However, those started outside there are a real control and sanction problem.
According to Article 1 of Annex I of the Revised Bangui Agreement of 1999, a patent is the title granted to protect an invention. An invention is an idea that allows in practice the solution of a particular problem in the technical field. It should be noted that the Bangui Agreement was revised in 2015 but has not yet been implemented to the best of this firm's knowledge.
The patent shall expire at the end of the 20th calendar year from the filing date of the application, subject to the grounds for revocation provided for in Article 40 of the Agreement.
The Registration Process
The patent application can be made directly to the African Intellectual Property Organisation (OAPI) headquarters but also through the Senegalese Agency for Industrial Property and Technological Innovation (ASPIT, which is the OAPI liaison structure at the Senegal level).
Applicants domiciled outside the territories of the Member States make the deposit through a chosen representative in one of the Member States.
A number of parts are required for the patent application.
Patents granted in respect of international applications filed in accordance with the provisions of the Patent Cooperation Treaty shall have effect in Member States that are also parties to the above-mentioned treaty.
Issuance, publication and maintenance of patents
The Organisation proceeds with the examination of patent applications. It issues patents and publishes them.
Thus, patents granted under international applications filed in accordance with the provisions of the Patent Cooperation Treaty are effective in those Member States that are also parties to the above-mentioned treaty.
The grant of the patent shall take place following the decision of the Director General of the Organisation or on the decision of an official of the Organisation duly authorised to do so by the Director General.
Enforcement and Remedies
Settlement of some difficulties of application
Sanctions and other means of patent protection
The owner of a patent has a number of means to defend the property of his invention.
Final judicial decisions on the validity of patents in one of the Member States are authoritative in all other Member States except those based on public order and morality.
Decisions on cases of rejection or opposition taken by the Organisation may be appealed to the High Commission of Appeal sitting with the said Organisation.
Definition and Duration of the Protection
A trade mark is any visible sign used or proposed to be used that is capable of distinguishing the goods or services of any enterprise, including patronymic names taken in themselves or in a distinctive form; particular, characteristic shape of the product or its packaging; stamps; borders; combinations or arrangements of colours; drawings; reliefs; letters; numbers; currencies; and pseudonyms.
The registration process may be carried out by the body representing OAPI in each Member State or by referring it directly to OAPI, in Cameroon.
A report drawn up by the organisation or ministry responsible for industrial property shall record each filing by stating the date and time of submission of the documents.
The Ministry responsible for industrial property shall transmit the documents to the Organisation within five working days from the date of filing.
When the Organisation finds that the conditions are met, it registers the trade mark and publishes the registration. The legal date of registration is the filing date.
A certificate shall be issued to the holder of the registration.
Execution and Recourses
When the owner uses his trade mark, certain difficulties may arise; in particular, opposition from competitors or legal proceedings before the courts for the cancellation of the trade mark.
The opposition shall take place after the publication of the registration of the trade mark. Its purpose is to allow holders of prior rights to cancel the registration obtained in violation of their rights.
It should be noted that the owner of a trade mark may, by contract, grant a natural person or a legal person a licence to use the mark for all or part of the goods or services for which the trade mark has been registered. If so, the duration of the licence may not exceed the duration of the registration of the trade mark.
An owner of a registered trade mark who has not renewed protection on the anniversary date of the tenth year and has not done so within a grace period of six months following that date may apply for restoration.
It should also be noted that the owner of a trade mark may, by contract, grant a natural or legal person a licence to use the trade mark for all or part of the goods or services for which the trade mark has been registered. In such cases, the duration of the licence may not exceed the duration of the registration of the brand.
With regard to appeals, interested parties may refer the matter to the OAPI Higher Board of Appeal in the event of an unfavourable decision by the Director General. However, there is also the possibility of referring the matter to national courts to hear an action for infringement or unfair competition.
Definition and Duration of the Protection
The industrial design consists of the ornamental or aesthetic aspect of an object. It can consist of three-dimensional elements (for example, the shape or the texture of the object) or two-dimensional (for example, line patterns or colour).
Industrial designs apply to the most diverse products of industry and crafts: watches, jewellery, furniture, electrical appliances, vehicles, etc.
Anyone wishing to obtain the registration of an industrial design shall file or send a registration request (Article 8 annex 4 of the Bangui Agreement) by registered mail with acknowledgement of receipt to the Organisation or the Ministry responsible for industrial property or the body representative of OAPI in its OAPI Member.
Execution and Recourses
The priority claim and restoration mentioned above are also possible with regard to designs.
With regard to appeals, civil actions relating to designs are brought before the civil courts and tried as summary matters.
In the event of an action brought by criminal proceedings, if the defendant raises questions relating to the ownership of the designs in his defence, the competent court shall rule on the exception. The injured party may have an infringement seized. These remedies do not exclude a claim before OAPI.
Definition and Duration of the Protection
The author of an intellectual work enjoys on this work an exclusive intangible property right that is enforceable against all. It is a right that arises solely as a result of creation. OAPI's Member States legislation grants the holder two categories of rights: moral rights and patrimonial rights.
Moral rights include the right of disclosure, the right to authorship of the work, the right to respect the work, and the right to repent and to withdraw.
Economic rights include the right of reproduction, the representation right, and translation, adaptation and distribution rights.
The procedure is very simple and requires the author or his representative (with power of attorney) to bring to SODAV (Société sénégalaise des droits d'auteur et droits voisins) a copy of the work materialised on paper or, failing that, the concept of the work explained in detail on paper and SODAV grants him a deposit number that can be used for evidentiary purposes in the event of infringement or plagiarism.
Execution and Recourses
In the event of violation of the author's rights, the civil or criminal courts can be entered. However, they may also request provisional measures and conservatories.
In criminal law, the penalty is imprisonment from six months to two years and a fine of XOF1 million to XOF5 million for the violation of the right to communication to the public, the right of reproduction, the right of distribution or the rental right.
Other more severe sanctions are also provided for by Articles 142 et seq of Law No 2008-09 of 25 January 2008 on Copyright and related rights in Senegal. In civil matters, the court may order the cessation of the unlawful act but also compensation for the damage suffered.
Where software, databases or trade secrets are original works, they should be eligible for copyright protection. Otherwise, it is common practice to combat infringements of the rights attached to them on the basis of infringement or unfair competition action, depending on the case and the factual circumstances. Piracy is also criminally punishable.
In Senegal, the protection of personal data is provided and protected through Law 2008-12, the purpose of which is to set up a legal framework that will permit a fight against privacy breaches likely to be generated by the collection, processing, transmission, storage and use of personal data.
Besides this essential law, others were voted and blended in the Penal Code in order to sanction the breach of rights protected by the law of 2008.
These laws have an essentially national scope, applicable in the Senegalese territory or any place where the Senegalese law is applicable.
However, these laws may produce their effects and apply to acts that are not committed on the national territory either by using local means of treatment or by having direct effects on it the territory concerned.
There is a Commission for the Protection of Personal Data in Senegal that is an independent administrative authority responsible for ensuring that processing of personal data is implemented in accordance with the provisions of Act 2008-12. It informs the concerned persons and the data controller of their rights and obligations, and makes sure that the information and communication technologies do not pose a threat to public freedoms and privacy.