Energy: Oil and Gas 2019 Comparisons

Last Updated August 09, 2019

Contributed By GENI & KEBE

Law and Practice

Authors



GENI & KEBE is a member of DLA Piper Africa and is a full-service commercial law firm advising in sub-Saharan Africa. It provides quality legal services across the energy spectrum in sustainable energy, oil and gas, petrochemicals and power. The oil and gas team is experienced in assisting foreign and local investors, as well as government agencies, in maximising project outcomes and facilitating good business relationships. In addition, the firm advises its energy clients on related corporate issues, such as corporate governance, project finance, tax, land acquisition and litigation. In 2014, Senegal’s first offshore oil discovery was made, with GENI & KEBE advising the exploration company. The practice continues to advise Cairn Energy and Woodside Energy, as well as their project partners, as they begin the exploitation stage of the SNE Deepwater Oil Field project. This landmark oilfield discovery is the world’s largest since 2014 and the firm's engagement entails advising on regulatory compliance, private-public partnerships and environmental matters.

According to the provisions of Article 3 of Law 2019-03 of 1 February 2019 (the Petroleum Code), all petroleum in Senegal is the property of the Senegalese people.

These provisions are in line with those of Article 25(1) of the constitution of the Republic of Senegal which recognises the people, and not the state, as the owners of these resources.

The state may grant authorisations to private companies to undertake petroleum operations, by way of:

  • prospecting authorisation;
  • exploration authorisation; and
  • operating authorisation.

Ownership, however, remains with the people.

Under the provisions of the new Petroleum Code, the Ministry of Hydrocarbons and the National Petroleum Company are the government bodies responsible for implementation of the hydrocarbons policy, and for promoting the national sedimentary basin and otherwise representing the interests of the state in the hydrocarbon sector.

All activities relating to the financing, customs and tax structures of petroleum projects are regulated by the Ministry of Finance and Budget. There are no local regulators; all regulation is done through the national government.

The Petroleum Code sets forth that the state will undertake petroleum operations on its own account either directly, through the national oil company, or through several persons or companies of its choice.

For this purpose, Senegal has established a national oil company, PETROSEN.

While the old code refers to the evaluation of the state’s participation in the production-sharing contract, the new scheme establishes a legal regime for the participation of PETROSEN, structured as follows:

  • at least 10% in the exploration and development phase carried by the other co-holders of the hydrocarbon mining title; and
  • an option to increase the shares up to 20% in the development and production phase; the 10% is not carried by the other co-holders of the mining title of hydrocarbons.

PETROSEN will participate in all, or part of all, petroleum operations within the country, by entering into partnerships with the holders of a petroleum contract or a prospecting authorisation.

The terms of its participation in each project are to be specified in the applicable petroleum contract or prospecting authorisation.

PETROSEN does not have a functioning website.

The new Senegalese Petroleum Code is Law 2019-03 of 1 February 2019. The implementing decree is not available yet.

Each individual petroleum project carried out in Senegal is governed by a petroleum contract, which is enacted by way of presidential decree. The applicable petroleum contract specifies the details pertaining to a particular project, including the economic and tax provisions to be applied and details as to the exploration and exploitation phases of the project.

Downstream activities are governed by the Petroleum Code. The law sets forth the licensing requirements and other specifications in relation to these activities.

Certain other areas related to the petroleum sector are governed by regulations applicable to other industries. These include environmental, labour, safety, health and hygiene regulations.

The forms of allowed private investment in upstream interests in Senegal are addressed through the granting of hydrocarbon mining titles such authorisations, leases, production-sharing contracts and service contracts.

The provisions of the Petroleum Code prescribe the different procedures by which private investors may obtain the right to prospect, explore and produce petroleum in Senegal. The implementing decree has not as yet been promulgated.

In light of Article 7 of the Petroleum Code, the state may authorise companies to undertake petroleum operations through:

  • a prospecting authorisation;
  • an exploration authorisation;
  • a provisional exploitation authorisation; or
  • an exclusive exploitation (or development) authorisation.

In practice, all petroleum conventions and contracts are negotiated and prepared by the national oil company, PETROSEN (Article 4 of the Petroleum Code).

The different hydrocarbon mining titles are as follows:

A Hydrocarbon Prospecting Authorisation

A hydrocarbon prospecting authorisation is granted by ministerial order (Arrêté) from the Minister for Hydrocarbons in areas not covered by a hydrocarbon mining title, for a term not to exceed two years (Article 15).

The prospecting authorisation confers to its holder the non-exclusive right to carry out preliminary prospecting work through the use of geophysical, geological and geochemical methods, excluding any drilling beyond a depth of 200 m, unless otherwise provided for in the prospecting authorisation. It is not leasable, assignable or transferable (Article 15).

The prospecting authorisation does not confer on its holder any right or privilege for the acquisition of an oil contract, or for the extraction or disposal of hydrocarbons discovered during the prospecting work (Article 16).

A Hydrocarbon Exploration Authorisation

Prior to granting the exploration authorisation, an oil contract (PSC or Service Contract) is signed between the ministry in charge of hydrocarbons and the applicant(s), following the approval of the Ministry of Finance and Budget. 

As per Article 17, the hydrocarbon exploration authorisation gives its holder, within the designated area, the exclusive right to carry out all work, including drilling, the object of which is to research and reveal hydrocarbon deposits under the terms of the oil contract attached to that authorisation.

It is granted to the holder by way of decree for a period not exceeding four years (Article 18).

The hydrocarbon exploration authorisation may not be renewed more than twice, by decree, for a period not exceeding three years each time.

The holder may have the authorisation renewed only if it has fulfilled all its obligations and a fraction of the size of the exploration area is relinquished each time.

The holder may, at the end of the initial period or of the first renewal, in exceptional circumstances, benefit from an extension of up to one year subject to having started work and having provided the required technical credentials.

The second renewal period may be extended, by decree, for the duration necessary to continue the assessment work of a discovery (Article 19).

The state may decide to conduct hydrocarbon operations through PETROSEN where the applicants directly discuss with PETROSEN the provisions of the PSC, then sign it after receiving the approval of the Ministry of Finance and Budget.

The exploration authorisation associated with the PSC sets the respective rights and obligations of both the state and the holder for the duration of the exploration period.

A Production-sharing Contract (Article 20)

The production-sharing contract, attached to the exploration authorisation, fixes the rights and the respective obligations of the different parties during the various exploration phases and possibly those of exploitation which are attached to it.

It provides, in particular, for:

  • the work obligations for each of the exploration periods with the corresponding guarantees;
  • the conditions under which exploration and exploitation take place;
  • the provisions relating to the cancellation of the exploration authorisation or the withdrawal of an exploitation authorisation;
  • financial, fiscal and customs provisions;
  • the obligations relating to the training and employment of the local workforce;
  • the rules relating to the assignment or transfer of the rights and obligations of the holder;
  • the provisions relating to the participation of the state or the national oil company, to all or part of the oil operations;
  • the provisions relating to communication and transmission of information, documents and samples relating to oil operations to the Minister for Hydrocarbons;
  • where appropriate, the dispute settlement procedure to be followed to resolve disputes that may arise from the application of the production-sharing contract;
  • the rules relating to the transfer of fixed assets and installations at the end of the production-sharing contract; and
  • the obligation to carry out an environmental and social impact study.

The Minister for Hydrocarbons submits the production-sharing contract to the Minister of Finance for opinion on the fiscal, financial and customs provisions. The contract shall be deemed to comply if, at the end of a period of 21 days, from the date of receipt of the request for an opinion, no further action has been taken regarding said request.

A Provisional Exploitation Authorisation

The holder of an exploration authorisation may, during the validity of its exploration licence, provisionally be allowed to operate the productive wells for a maximum period of six months, during which it continues the delimitation and development of the deposit in accordance with Article 23.

An application for an exclusive exploitation authorisation (see below) should be filed before the expiration of the provisional exploration authorisation. The procedures for the application for a provisional exploitation authorisation and withdrawal are fixed by decree, which has not yet been promulgated.

The hydrocarbons resulting from this provisional exploitation authorisation are subject to tax provisions and sharing rules between the state and the contractors, as provided for in this Code (Article 27).

An Exclusive Exploitation Authorisation

If the holder of an authorisation to explore for hydrocarbons makes a commercial hydrocarbon discovery, this holder may submit a request, before the expiry of its authorisation, to be granted an exclusive exploitation authorisation on the commercial discovery area in accordance with the provisions of Article 20. Such a request should be accompanied by a development and commissioning exploitation plan submitted by the operator and to be approved by order of the Minister for Hydrocarbons, the model of which development plan is defined by decree (Article 31). However, such a decree has not yet been promulgated.

The authorisation to explore for hydrocarbons within the designated area is cancelled when an exclusive exploitation authorisation is granted. The latter authorisation survives until it expires outside the exploration and research area, without altering the rights and obligations arising from the hydrocarbon exploration authorisation (Article 29).

The exclusive exploitation authorisation is granted for an initial maximum period of 20 years, at the end of which period, it may be renewed only once, by decree, at the request of the contractor, for an additional ten-year period at most. Renewal is not automatic.

Upon expiry of the exclusive exploitation authorisation, the state reserves the right to recover such an authorisation for the benefit of its national oil company or to grant it in accordance with the modalities set forth under Article 12 of this code (Article 30).

The holder will have the exclusive right, within the limits of its zone, to carry out all oil operations, following the stipulations of the production-sharing contract attached to it.

This is subject to payment of a production bonus, which is not recoverable on petroleum costs and tax on companies, the terms and conditions of which are laid down in the production-sharing contract (Article 28).

Upstream authorisations are issued through a process of public bid or direct consultation, as provided for under Article 12.

The blocks are allocated by means of a call for tenders or direct consultation. The implementing procedures are laid down by decree, which has not yet been issued for the new code. The oil contract is negotiated by the Minister for Hydrocarbons, who relies on a committee for the examination and negotiation of petroleum contracts, the rules of organisation and operation of which are laid down by order of the Minister for Hydrocarbons (Article 12).

The hydrocarbons mining title is issued exclusively to legal persons justifying the technical and financial capacities required. If several legal persons are co-holders of an oil contract, they are jointly and severally liable towards the state and third parties. They must submit to the Minister for Hydrocarbons, within 21 days, a copy of any agreement concluded between them for the realisation of oil operations in the area concerned (Article 10).

The holder of a hydrocarbon exploration authorisation must undertake to carry out during the initial period and, where appropriate, during each renewal period, a minimum exploration work programme planned in the production-sharing contract. The holder shall submit, on the effective date of the exploration authorisation, a guarantee from a bank of international repute, covering the minimum commitments of work related to the exploration period. This bank guarantee is mandatory for the extensions referred to in paragraph 2 of Article 19 of this code, up to the work remaining to be done.

The state may reserve the right to undertake oil operations through one or more legal persons incorporated under Senegalese or foreign law, authorised in accordance with the provisions of this code and the terms of an oil contract (Article 8).

Provisional or exclusive exploitation authorisations are issued only to one or more legal persons incorporated under Senegalese law (Article 7).

The typical fiscal terms under upstream authorisations are mainly:

A Signing Bonus and an Export Tax

The holder of an oil contract is subject to the payment of a non-recoverable signing bonus, the terms of which are set out in the oil contract. It is also subject to a 1% export tax on production for export.

Corporate and Capital Gains Taxes

Holders of petroleum rights remain subject to other applicable taxes, such as corporate and capital gains taxes on the sale of hydrocarbon mining rights, in accordance with the General Tax Code. Corporate and capital gains tax is fixed at a rate of 30%.

The ad valorem royalty rates applicable to crude oil or natural gas production are fixed as follows:

  • liquid hydrocarbons exploited onshore – 10%;
  • liquid hydrocarbons exploited shallow offshore – 9%;
  • deep offshore exploited liquid hydrocarbons – 8%;
  • ultra-deep offshore hydrocarbon liquids – 7%; and
  • gaseous hydrocarbons exploited onshore, shallow offshore, deep offshore, ultra-deep offshore – 6%.

Superficial rent payments - the new scheme has established a legal regime set as follows:

  • initial period of exploration – USD30 per square km per year;
  • first exploration period – USD50 per square km per year; and
  • second exploration period – USD75 per square km per year.

The oil contract holder as well as the companies associated with it in the framework of protocols or agreements are subject to corporate tax as provided for in the General Tax Code. This tax is not recoverable on petroleum costs. The oil contract holders are required, under a protocol or an agreement, to calculate their net profit separately for each contracted area in their upstream activities (Article 43).

Other taxes and duties owed by holders of hydrocarbon mining titles and their associated companies in the framework of protocols or agreements, are payable under the conditions of ordinary law (Article 45).

The special rights given to the state in connection with upstream authorisations are mainly:

  • the right the state may reserve for itself so as to undertake oil operations through one or more legal persons incorporated under Senegalese or foreign law, authorised in accordance with the provisions of this code and the terms of an oil contract (Article 8);
  • the right to a bonus which subjects the holder of an exclusive exploitation authorisation to payment of a production bonus, which is not recoverable on petroleum costs and tax on companies, and the terms and conditions of which are laid down in the production-sharing contract (Article 28);
  • the right to at least 10% free carried interest in the case of an oil contract, where the shares of the national oil company are borne by the other co-holders of the mining hydrocarbon titles, in the exploration and development phases, including redevelopments; and
  • an option to increase this participation up to an additional 20% in the development and exploitation phases not carried by the other co-holders of the hydrocarbons mining titles (Article 9).

The local content requirements applicable to upstream operations by private investors are more stringent under the new code.

The new code contains new provisions making local content mandatory and subject to specific conditions, inter alia, the participation of the national private sector in oil operations, as well as all contracts for the construction and supply of services relating to petroleum operations. The new text also includes an obligation for technology transfer to Senegalese companies and imposes an obligation on holders of exclusive exploitation authorisations to allocate, as a matter of priority, their exploitation products to cover the needs of the country's domestic consumption.

In addition to the above provisions, a law dealing exclusively with local content in the oil and gas sector regulates, in detail, the obligations incumbent on oil contract holders as well as companies working on their behalf. This new law establishes the national committee monitoring local content to co-ordinate the elaboration of the local content strategy document, which defines the implementation modalities of the state guidelines in this area.

The authorisation holder must satisfy certain requirements to proceed to development and production, once it has achieved commercial discovery.

The holder of an authorisation to explore for hydrocarbons which has made a commercial hydrocarbon discovery may submit a request, before the expiry of its exploration authorisation, to be granted an exclusive exploitation authorisation on the commercial discovery area in accordance with the provisions of Article 20. Such a request must be accompanied by a development and commissioning exploitation plan, the model of which plan is defined by decree, to be submitted by the operator and to be approved by order of the Minister for Hydrocarbons (Article 31).

Before it can proceed to development and production, an authorisation holder must undertake to carry out with diligence the development and exploitation work of the relevant commercial discovery according to international standards and practices used in the industry, and in accordance with the petroleum operations regulations in force in Senegal (Article 32).

The other key terms of each type of upstream authorisation are:

  • information on the authorisation holder, grounds for granting the authorisation, the issuing authority, validity period of the authorisations, delimitation of the blocks;
  • minimum work obligations, limitations on commencement dates, payments, reporting obligations of the title holder, obligations to comply with applicable legislations, rules and regulations (52) and environmental, health and safety obligations (53), decommissioning;
  • fiscal and customs terms;
  • royalties, surface rent payment;
  • local content obligations (Article 58);
  • obligations to local market supply (Article 59);
  • unitisation principles (Article 60);
  • withdrawal, termination and abandonment rights and obligations;
  • abandonment and transfer of assets upon expiration (Article 61);
  • foreign exchange controls (Article 63);
  • dispute resolution (Article 71); and
  • miscellaneous provisions.

The requirements for transfers of interest in upstream authorisations are:

  • upstream interest authorisations between private investors may be assigned and transferred to legal entities with the technical and financial capabilities to carry out the oil operations;
  • the assignment and transfer deeds are submitted to the Minister for Hydrocarbons for approval;
  • taxation of assignment rights relating to hydrocarbon mining titles, in the exploitation phase, is governed by the provisions of the General Tax Code. In the case of transfer of participatory interest of one of the members of the contracting group to an affiliate of that member, all that is required is a prior declaration to the Minister for Hydrocarbons. Any assignment concluded in violation of the provisions of this article shall be null and void (Article 61);
  • a transfer of shares or units of a member of the contracting group or a company controlling, directly or indirectly, a member of the contracting group, is assimilated into an assignment of interests for the purposes of this code if it results in a change of control, unless the change of control is the direct result of a change in control transaction on an official stock exchange; and
  • any change of control is notified to the Minister for Hydrocarbons in the ten days after the effective date (Article 62).

The production derived from the exploitation of hydrocarbon deposits is intended either for local consumption or export.

Under the conditions set out in the oil contract, the holders of exclusive exploitation authorisations must, as a matter of priority, allocate the products of their exploitation to cover the country’s domestic consumption needs. In this case, the transfer price reflects the international market price.

Once the country's domestic needs have been met, the share of production accruing to the holders of exclusive exploitation authorisations can be exported freely accompanied by payment of customs duty, on exit, fixed at 1% of the value of said share of production, deductible for the determination of the profit subject to the tax on companies (Article 59).

Currently, Senegal has a refinery to ensure the regular supply of petroleum products to the domestic market.

In 1998, a reform of the oil sector resulted in the abolition of all the then-existing national monopolies in the supply chain (import, refining, transport and distribution) segments.

Authorisations are granted by the ministry in charge of hydrocarbons on the basis of the following criteria:

  • the capacity of the applicant company to respect all its obligations, in particular:
    1. the capacity to carry out the activities for which authorisation is required, including the propriety of the shareholders and managers of the applicant company; and
    2. the capacity to make sure that the rules are adhered to regarding the safety of staff and the public, environmental protection and planning regulations;
  • the capacity to assume liability arising from the activity for which the authorisation is requested; and
  • the capacity of the applicant to comply with safety requirements to respect adequate protection of the environment.

An application for an authorisation may be rejected for any of the following reasons:

  • violation of the laws and regulations governing the oil and gas sector, in particular, importing, refining, storing, transporting and distributing activities without holding proper authorisation;
  • any falsification or false statement made in an attempt to obtain an authorisation;
  • refusal to provide information required by the Minister for Hydrocarbons or any other competent authority of the state; and/or
  • providing misinformation for the purpose of increasing profits or reducing duties, taxes and fees due.

The hydrocarbons transport authorisation gives the investor (holder of authorisation) the right to develop infrastructures for the transport of hydrocarbons.

With the enactment of the Petroleum Code, some amendments may be provided for, however, the implementing decree has not yet been promulgated.

Since the liberalisation of the hydrocarbons sector, the SAR (Société Africaine de Raffinage or the African Refining Company) has lost its monopoly and now shares the market with the following operators: petroleum products (SPP/Senstock), the Addax group, Oryx and others.

The storage of petroleum products is carried out almost exclusively by way of agreement with the Senegalese storage company (Senstock), a company bound to the SAR (46% of which is owned by the national oil company Petrosen, 34% by the Saudi Binladen Group and 20% by Total Group). The monthly storage costs are XOF6 per litre or kilogram of product. Senstock has a storage capacity of 167,000 cubic metres (38% of the total storage capacity of the country). The stored products are sold to 24 certified distributors who ensure retail distribution through a network of service stations operated either directly by them or by independent operators (remunerated at XOF14.5 per litre of oil sold).

In accordance with the Petroleum Code, downstream activities include refining, distribution activities and commercialisation of hydrocarbons. Consequently, the following authorisations are required for these activities.

Storage Authorisation

Any company planning to carry out storage activities for oil and/or derived products must undertake to build a minimum storage capacity of 5,000 cubic metres of tank products, with the exception of LPG, with a required capacity of 150 tonnes. The company must also have the required infrastructure for the loading and unloading of tankers.

An applicant must submit, in support of its application, the following documents:

  • a site plan and a storage area master plan;
  • a copy of the land-use authorisation or the land ownership of the intended location, duly issued by the administrative authority or the local authority of the location; and
  • a detailed plan of the installations, which must comply with the regulations on establishments classified as dangerous, unhealthy and uncomfortable, in particular the provisions relating to:
    1. respecting safety distances;
    2. the choice of materials used;
    3. the means of fighting against fire; and
    4. the measures to protect the environment.

The midstream transport, storage and liquefaction operations are now subject to specific authorisations issued by the Minister for Hydrocarbons and, where appropriate, by joint order with the Minister of Maritime Affairs.

Transport authorisation can be granted to any legal entity incorporated under Senegalese law having the necessary technical and financial capacities. It confers to its holder(s) the exclusive right to transport the product resulting from the activities of production for a duration fixed by ministerial decree.

The construction of a transport pipeline is subject to prior authorisation from the Minister for Hydrocarbons. The transport authorisation scheme applies mutatis mutandis to storage and liquefaction operations.

Transport Authorisation

Any company planning to carry out refined hydrocarbon transport activity is required to have a fleet of tankers with a minimum capacity of 100 cubic metres. In order to obtain authorisation, the applicant must provide precise information on the state of its fleet, in particular, the capacity of each vehicle and its technical characteristics. The tanker trucks used by the carrier must meet the technical standards in force.

The vehicles in circulation are subject to a special technical inspection each year certifying their ability to transport refined hydrocarbons. The aptitude certificate is issued by an approved inspection body.

Before putting any vehicle in circulation, the carrier must purchase insurance to cover the risks inherent to the transport activity, including liability insurance and fire insurance.

To ensure compliance with the provisions, the carrier must annually submit to the Minister for Hydrocarbons:

  • an attestation of the technical visit; and
  • a copy of the insurance policy specifying the risks covered and the insured capital.

Distribution Authorisation

Any company planning to carry out a refined hydrocarbons distribution activity must undertake to build a network of at least five outlets, in compliance with the regulations in force and with generally accepted standards, within a maximum period of five years from the date of issue of the authorisation.

To this end, it will have to attach to its request a schedule for the realisation of said points of sale. The point of sale is a service station, a filling station or a fishing station.

Any company applying for a distribution authorisation is required to have storage facilities compliant with the regulations in force or, failing that, an executed contract with an enterprise holding storage authorisation.

Common Requirements for Refining, Transport, Storage and Distribution Activities

In order to carry out import, storage, transportation and/or distribution activities, applications for authorisations must contain the following information:

  • the name or corporate name, nationality, domicile and office address of the applicant;
  • the surname, first name(s), title and nationality of all persons having responsibility for the management of the company, including the president, director, managing directors and members of the board of directors;
  • the articles of association, the operating accounts and the balance sheet of the entity's previous financial year;
  • any document justifying the technical and financial capacity of the applicant;
  • elements on safety systems and programmes to deal with accidents in accordance with the rules in force;
  • insurance as collateral to cover the risks related to the activity;
  • an environmental impact assessment study; and
  • a receipt of payment of the application fees.

Authorisations are granted, free of charge, for a five-year period for import or transport activities, for a ten-year period for distribution activities, and for a 15-year period for storage activities.

The incorporation of a PLC can be carried out within seven days, once all necessary documents have been submitted.

With the enactment of the new Petroleum Code, some amendments may be provided for in the new law implementing decrees.

Fiscal terms under downstream authorisation include corporate and capital gains taxes at a rate of 30%, among other taxes to be determined under the conditions of ordinary law.

Refer also to 3.5 Income or Profits Tax Regime Applicable to Midstream/Downstream Operations, below.

Branches and companies are liable for corporate income tax due on profits at a rate of 30%; VAT is due at a rate of 18%.

In the supply chain of petroleum products, any natural person or legal entity with the status of importer must be in compliance with the tax authorities and the customs administration.

The other significant taxes provided for in downstream operations are:

  • droits de porte (ie, entry fees) at a rate of 11%;
  • COSEC levy (Senegalese Shippers' Council) at a rate of 0.4%; and
  • cyclical tax on importation at a rate of 10%.

For all facilities and storage depots of petroleum products, a rate of passage will be applied, with the following exemptions:

  • community solidarity levy at a rate of 1%; and
  • community solidarity ECOWAS (Economic Community of West African States) at a rate of 0.5%.

Since the reform of the oil sector in 1998, the government of Senegal has liberalised all segments of the hydrocarbon sector in favour of the private sector. No special rights are given to the national oil or gas company in connection with downstream licences.

Senegal has adopted a new law related to local content in the oil and gas industry.

Contractors, subcontractors, service providers and suppliers have to develop a local content plan. They have obligations to:

  • give the opportunity to private national investors, with the technical and financial capacity, to participate in oil risks and operations;
  • give preference to Senegalese companies for all contracts of construction, supply or service provision, with equivalent conditions in terms of quality, quantity, price, delivery time and payment;
  • employ, with equal qualifications, as a priority, Senegalese personnel to carry out oil operations in the territory of the Republic of Senegal;
  • contribute as much as possible to technology transfer to Senegalese companies; and
  • pay a leading financial institution the amount of the security for the rehabilitation and restoration of the sites, under the conditions set out in the oil contract.

They also contribute to the professional training of Senegalese managers and technicians through an annual training programme defined in the applicable oil contract.

Any company participating in oil and gas activities must purchase insurance contracts with approved insurance companies in Senegal. However, where the coverage required exceeds the financial capacity of approved insurance companies in Senegal, these contracts may, for their surplus, be subscribed with foreign companies.

There are no other key terms for each type of downstream authorisation. Generally, the holder of the downstream authorisation is only subject to the specific requirements of the oil and gas supply concerned.

In the case where a state project leads to the expropriation of a private investor for reasons of public interest, this procedure must be in accordance with the regulations governing expropriation in the public interest and include consideration of a just and prior indemnity. If this procedure is not respected, a private investor constructing infrastructure has condemnation/eminent domain rights as part of a judicial proceeding.

In accordance with Article 38 of the Petroleum Code, the use by third parties of the transport infrastructure held by an entity with transport authorisation gives rise to the payment of a tariff fixed by order of the Minister for Hydrocarbons.

In case more than one oil discovery is made in the same geographical area, the operators combine their resources for the construction and/or the common use of the installations and pipelines for the evacuation of all or part of the production resulting from these discoveries.

In the absence of an agreement, the Minister for Hydrocarbons asks the operators to associate with each other for the execution of these activities.

Supply of petroleum products to the local market is provided by the SAR. The National Hydrocarbons Committee assumes the role of regulator and determines the price of all petroleum products for consumption.

The Minister for Hydrocarbons can intervene in all or part of the supply chain to prevent or supervise interruptions in exploitation and/or distribution of oil and its derivatives, in order to correct disruptions in the supply to the market which can prejudice the national economy. For this purpose, it may take safeguard measures it believes are required, including (but not limited to) the temporary restriction of operations and other activities related to the oil operation licence.

In accordance with the law governing import, refining, transport and distribution segments, the export of crude oil or petroleum products consists of bringing products out of the national territory (Article 1).

Any company considering importing petroleum and/or derived products for re-export must first obtain a licence from the Minister for Hydrocarbons (Article 5).

Any company planning to perform storage activities for petroleum and/or derived products for export must first obtain a licence from the Minister for Hydrocarbons (Article 7).

Any company planning to perform refining activities for export must first obtain a licence from the Minister for Hydrocarbons (Article 10).

In accordance with Article 36 of the Petroleum Code, hydrocarbon transport rights may be transferred to third parties, individually or jointly, by any exclusive exploitation rights holder under the conditions defined by the oil contract.

This sale is made in compliance with the conditions relating to the construction and operation of facilities and pipelines as well as the terms of the oil contract.

The deed of transfer is notified to the Minister for Hydrocarbons for approval.

Transfer of interest in downstream licences is a common practice and is carried out in accordance with OHADA law.

More details will be given by the decree implementing the new code, which has not yet been signed.

The Petroleum Code and the PSC provide for a range of advantages and guarantees for the holders of a petroleum contract and their subcontractors, which may benefit from the following guarantees:

  • the right to open and operate accounts in local and foreign currencies in Senegal and abroad subject:
    1. to complying with the requirements of the WAEMU Foreign Exchange Regulations; and
    2. to obtaining authorisation from the Ministry of Finance and Budget after receiving the assent of the West African Reserve Bank (BCEAO);
  • the right to borrow abroad the necessary funds for the execution of their activities in Senegal;
  • the availability of stabilisation provisions in the PSC;
  • the right to transfer the funds necessary for the contractual amortisation of debts relating to their operations in Senegal;
  • the right to transfer abroad the revenues, interests and dividends of the invested funds subject to the authorisation of the Ministry of Hydrocarbons and the Ministry of Finance and Budget, except for the transfer of funds between affiliates of the same company; and
  • free movement of funds relating to payments for current transactions.

The environmental legislative framework in Senegal comprises:

  • Law No 2001-01 of 15 January 2001 (the Environment Code);
  • Decree No 2001-282 of 12 April 2001, implementing the Environment Code; and
  • Orders No 009468/MJEHP/DEEC, regulating public participation in Environment Impact Assessment (EIA); No 9469/MJEHP/DEEC on the operation of the technical committee; No 9470/MJEHP/DEEC laying down conditions for the issuance of authorisation to carry out EIA-related activities; No 009471/MJEHP/DEEC on the contents of terms of reference of the EIA; and No 009472/MJEHP/DEEC on the content of the EIA report.

The environmental regulators are the following:

  • the Ministry of Environment and Sustainable Development (MEDD) has the task of drawing up and applying environmental policy, the management of which involves several other participants, notably local authorities. These tasks are handled by several technical offices; and
  • the Environment and Classified Installations Office (DEEC) – in the field of environmental impact studies, this office, through the pollution and nuisance prevention and control division and the office for environmental impact studies, has the task of ensuring application of the provisions relating to environmental and social impact studies. It prepares, for the Minister of Environment, opinions and decisions relating to environmental and social impact studies. The DEEC has an environmental impact studies division which includes specialists competent to ensure scientific and technical supervision, as well as checks on compliance and legality.

The Environment and Classified Installations Office is represented at regional level by the Regional Environment and Classified Installations Offices (DREEC).

An environmental impact assessment (EIA) is the environmental obligation for a major petroleum project.

The project promoter is responsible for bearing the costs of the impact assessment procedure. The purpose of this procedure is to obtain a certificate of environmental compliance (a ministerial decree) issued by the Minister of Environment after the technical committee (a unit involving several ministries that administers and manages EIAs) has delivered its opinion. The EIA is carried out by an engineering and consulting firm approved by the Ministry of the Environment. The consultant carries out the EIA in accordance with the terms of reference validated by the technical committee and in accordance with applicable regulations.

After receipt of the provisional EIA report, the Direction de l’Environnement et des Etablissements Classés examines the admissibility of this report and, if necessary, convenes the technical committee that pre-validates the EIA report, within a maximum of 30 days from the date of receipt.

If the EIA report requires additional information, the project promoter (through its consulting firm) is required to provide this information from the date of receipt of notification of the comments of the technical committee.

If the EIA report complies with the terms of reference, the Direction de l’Environnement et des Etablissements Classés organises a public hearing in collaboration with the project promoter and the administrative authority of the relevant locality. The public hearing is chaired by the relevant local authority and the Direction de l’Environnement et des Etablissements Classés provides the secretariat.

Following this public consultation, a report on the public hearing is prepared by the secretariat. The project promoter considers the public concerns and submits a final report to the technical committee, integrating the environmental and social management plan.

Finally, the environmental compliance certificate is issued to the project promoter.

In accordance with the Environment Code, plants, factories, stores, warehouses depots, work sites and industrial, artisanal and commercial installations are subject to the regime on the declaration and authorisation of Classified Installation for Protection of the Environment (ICPE). An offshore exploration project is also subject to the regime of authorisation of ICPE (Class 1 or A 1100 of nomenclature of these kind of facilities).

Class 1 installations are defined as presenting the risk of “serious hazards or disturbance” with regard to “health, safety, public sanitation, agriculture, nature and the environment in general.” They are subject to the authorisation regime. A study evaluating impact on the environment is used to integrate environmental considerations into the economic and financial analysis of the project. This category requires an in-depth environmental evaluation.

In accordance with Article 53 of the Petroleum Code, companies must carry out their work using the proven techniques of the oil industry and take the necessary measures with regard to:

  • prevention and fighting against environmental pollution;
  • waste treatment;
  • the preservation of the heritage of flora and fauna;
  • the preservation of soil and subsoil water; and
  • compliance with applicable health and hygiene regulations.

The cost of the work necessary for the protection of the environment is borne by the holder of the oil contract in accordance with the regulations in force.

In accordance with Articles 33 and 65 of the Petroleum Code, in the event of a partial or total waiver, the holder of a production-sharing contract shall carry out the abandonment work. It takes all the necessary measures to safeguard the environment in accordance with the environmental and social impact study.

In the case of expiry or termination of an oil contract, if the state does not take over the facilities and equipment, the holder must perform, at its own expense, the dismantling and removal as well as any other abandonment work and rehabilitation of the sites. In the absence of execution of these duties, the Minister for Hydrocarbons orders the necessary diligence at the expense of the holder of the recorded funds.

The following climate change laws (ie, laws which contribute to the fight against climate change) are in effect:

  • Law No 2018-25 of 12 November 2018 on the Forestry Code;
  • Law No 2001-01 of 15 January 2001 on the Environment Code and decree No 2000-73 regulating the consumption of substances destroying the ozone layer; and
  • Agri-Sylvo-Pastoral Orientation Law of 4 June 2004.

However, these laws do not contain specific provisions relating to the oil and gas industry.

This section is not applicable in Senegal.

There is no special scheme relating to unconventional upstream interests. There are no special laws or regulations or authorisations relating to upstream development of unconventional upstream interests, including shale, heavy oil and coal-bed methane.

There are also no regulatory limitations on hydraulic fracturing.

There is no special scheme relating to liquefied natural gas (LNG) projects.

The scheme for the transport of hydrocarbons is applied to LNG.

The provisions of the petroleum code relating to the transport of hydrocarbons apply mutatis mutandis to LNG operations and to hydrocarbon storage (Article 39).

There is no other unique or interesting aspect of the petroleum industry in Senegal worthy of mention. 

Material changes in oil and gas law or regulation over the past year can be summed up as follows:

Hydrocarbon mining titles and authorisations are subject to a new allocation procedure. These are now allocated through a tender procedure open exclusively to legal persons. Priority is given to the best-selling offer on the basis of technical, financial and socioeconomic criteria. Only an unsuccessful tender procedure leaves the possibility of an award on the basis of direct consultation between the ministry in charge of hydrocarbons and the company involved.

When the transfer of a participatory interest is envisaged within a contracting group, it is now subject to a simple prior declaration to the Minister for Hydrocarbons.

Unitisation principle: When the boundaries of a commercial field overlap with several exploration authorisations, the holders of these authorisations shall endeavour to sign a unitisation agreement for a joint development project approved by the state.

Some New Developments on the Tax Exemption Regime

The customs duties and the levy of the Senegalese Shippers' Council applied, initially, inter alia to materials, supplies, machinery, equipment, spare parts, consumable products and materials neither produced nor manufactured in Senegal. The exemption granted to the holder of an oil contract applied to exploration operations and the importation of items essential for the completion of the exploration programme. It now extends to fuel-supplying installations and equipment related to oil operations. However, this exemption does not apply to statistical fees and community levies.

New Developments on the External Financial Relations Regime

Oil operations are still subject to the regulations on external financial relations, without taking up the possibility of obtaining derogations from the Minister of Finance. Under this new regime, petroleum contract holders and their subcontractors benefit from guarantees relating, inter alia, to the right to borrow the funds necessary for their petroleum activities and to the free movement of funds relating to payments on current operations.

GENI & KEBE

47, Bd de la République
BP. 14392
Dakar
Sénégal

+221 338 211 916

+221 338 426 275

i.itoua@gsklaw.sn www.gsklaw.sn
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Law and Practice in Senegal

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GENI & KEBE is a member of DLA Piper Africa and is a full-service commercial law firm advising in sub-Saharan Africa. It provides quality legal services across the energy spectrum in sustainable energy, oil and gas, petrochemicals and power. The oil and gas team is experienced in assisting foreign and local investors, as well as government agencies, in maximising project outcomes and facilitating good business relationships. In addition, the firm advises its energy clients on related corporate issues, such as corporate governance, project finance, tax, land acquisition and litigation. In 2014, Senegal’s first offshore oil discovery was made, with GENI & KEBE advising the exploration company. The practice continues to advise Cairn Energy and Woodside Energy, as well as their project partners, as they begin the exploitation stage of the SNE Deepwater Oil Field project. This landmark oilfield discovery is the world’s largest since 2014 and the firm's engagement entails advising on regulatory compliance, private-public partnerships and environmental matters.