The Ivorian legal system is based on French civil law and customary law.

The Ivorian business environment is also regulated by the International Treaty of the Organisation for the Harmonisation of Business Law in Africa (OHADA), which was revised on 30 January 2014. OHADA’s objective is the facilitation of trade and investment, as well as to guarantee the legal and judicial security of business activities.

Legal Structure Under OHADA Law

The different business law areas are governed by several Uniform Acts common to the 17 member states of OHADA.

Investors in Côte d’Ivoire may choose between setting up a branch office or creating a company. OHADA law provides for several legal forms for commercial companies, the most common of which are:

• the limited liability company (LLC, or société à responsabilité limitée (SARL));
• the joint stock company (société anonyme (SA)); and
• the simplified joint stock company (société par actions simplifiée, or SAS).

Companies are created through the investment promotion centre (Centre de Promotion des Investissements en Côte d'Ivoire, or CEPICI) and are required to register with the Trade and Personal Property Credit Register (Registre de Commerce et du Crédit Mobilier, or RCCM) at the court where the head office is located.

Ivorian Judicial Structure

The Ivorian judicial system is governed by Law No 99-435 of 6 July 1999, amending Law No 61-155 of 18 May 1961, on the organisation of the judiciary at the different levels (courts of first instance, courts of appeal, special courts). Foreign investors therefore have recourse either to national state courts or to national or international arbitral tribunals (or other ADR methods).

Ivorian Regulatory Structure

Investments made in Côte d’Ivoire are governed by a specific text, the Investment Code, and its applicable decrees. They are also governed by the regulations on foreign financial relations at the West African Economic and Monetary Union (WAEMU) level, in relation to foreign investments, direct investments, imports, exports, etc.

General Rules

Generally speaking, FDI in Côte d’Ivoire does not require specific review or approval. The constitution of foreign investments in a WAEMU member state is free under the WAEMU treaty. However, all FDI is subject to a declaration for statistical purposes to the Directorate of External Finances and to the Central Bank of West African States (La Banque Centrale des États de l’Afrique de l’Ouest, or BCEAO), where it concerns direct investments (pursuant to Regulation No 09/2020/CM on external financial relations).

In addition, the Ivorian Investment Code provides for a certain number of guarantees in favour of any foreign investor, subject to bilateral, regional and multilateral agreements signed by the State. These are guarantees of fair and equitable treatment, freedom to invest in each sector provided for in the Code, absence of restrictions on obtaining the foreign currency necessary for the exercise of the investor’s activities, and freedom to appoint members of the board of directors, general manager or manager, etc.

Exceptions

There are certain specific sectors in which foreign investors will be subject to administrative approval/declarations depending on the activity. This is notably the case in the mining sector (Ministry of Mines and Geology), hydrocarbons (Ministry of Oil, Energy and Renewable Energies), banking (Ministry of Finance and the BCEAO), telecommunications (Ministry of Digital Economy, Telecommunications and Innovation) (the Telecommunications Regulatory Authority (Autorité de Régulation des Télécommunications/TIC de Cote d'Ivoire, or ARTCI)), and pharmaceuticals (Ivorian Pharmaceutical Regulatory Authority (Autorité Ivoirienne de Régulation Pharmaceutique, or AIRP)). In addition, to benefit from the advantages provided by the Ivorian Investment Code (particularly in terms of taxation and customs), any foreign investor must submit an application for approval to the investment promotion agency.

Current Economic and Political Climate in Côte d’Ivoire

Côte d’Ivoire has enjoyed dynamic, strong and stable economic growth with average annual growth of between 6% and 7% for the past two years. The country is the main economic powerhouse of French-speaking West Africa and has real influence in the region, attracting foreign investors.

This is mainly due to the government’s strategy around national development plans in recent years (especially the 2021–2025 plan), focusing on a policy of attracting domestic and foreign private investment and making private investment a motor of the country’s economic growth. Several measures have been implemented, which have enabled Côte d’Ivoire to reach 110th position in the Doing Business ranking in 2020 (177th in 2012). According to UNCTAD’s 2022 World Investment Report, the country attracted USD1.38 billion in FDI inflows in 2021 – a strong rebound from the low USD713 million achieved in 2020 in the context of the global health and economic crisis.

Economic forecasts for the coming years are optimistic. Growth impulses are increasingly coming from public and private investments in infrastructure, energy, mining and agro-processing, as well as industrial expansion.

The political climate has also improved significantly since the 2011 crisis. Côte d’Ivoire is now ranking fairly well in terms of overall governance (index based on the criteria of security and rule of law, participation and human rights, economic and sustainable development, and human development).

Recent Developments in the FDI Regulation

New Investment Code

In 2018, a new Investment Code was enacted (Ordinance No 2018-646 of 1 August 2018, amended by Ordinance No 2019-1088), containing a set of incentives applicable to direct, domestic and foreign investments in Côte d’Ivoire. Its main objectives are sustainable development, regional development, local content, and business competitiveness (in terms of sustainable job creation, development of local skills and professional training, subcontracting, and capital opening). This new code has established two tax incentive regimes with different advantages, which are defined according to the investment zone and a categorisation of investments by sector of activities.

Launch of a single investment services portal

The new single investment services portal can be found at www.225invest.ci. This reform falls under the dynamics of dematerialisation of the administrative services in Côte d’Ivoire. Finally, the promotion of FDI remains a major challenge of the 2021–2025 national development plan, mainly consisting of improving the tools and indicators in place. The IMF estimates that Côte d’Ivoire will continue to benefit from government reforms and will see its FDI volume reach EUR1.1 billion by 2023.

Most Common Structures for Transactions

These are the structures in which the shareholders’ liability is limited to their contributions: the limited liability company, the joint stock company, and the simplified joint stock company. They can be held by a single person.

There are two types of public companies:

• state-owned companies (sociétés d’état), with capital entirely made up of holdings of the state and of one or more Ivorian legal persons under public law; and
• companies with public financial participation, which must be created as joint stock companies with a board of directors (sociétés à participation financières publiques), namely:
1. companies with capital partially and directly held by the State, a legal person under public law or a state company; or
2. companies in which the majority of the capital is held by a company with majority public financial participation.

Key Considerations for a Foreign Investor Selecting a Structure

The choice of company will take into consideration tax implications, which depend on the nature of the activity carried out, as well as:

• any local ownership/directorship requirements applicable to the sector of activities or the type of company;
• structure/control of the management;
• type of investment (merger or acquisition of shares in an existing company, or company to be created); and
• any approval required from regulators in order to operate.

Transaction Structures Commonly Used for Acquisitions of Companies/Businesses Compared With  Minority Investments

Whether it is for the acquisition of companies or businesses or for minority shareholdings, the foreign investor may incorporate a company. In the case of minority stakes, the company may be wholly owned by the investor. In the case of acquisition of a company or business, the investors may want to group together and buy the company through their holding company.

Finally, carrying out activities in Côte d’Ivoire without creating a structure may entail the risk of requalification of the foreign investor as a permanent establishment. This will lead to a tax adjustment and the investor being subject to penalties for lack of tax declarations.

A foreign investor considering FDI in Côte d’Ivoire must take into consideration the provisions of the OHADA Uniform Act on the Law of Commercial Companies and Economic Interest Grouping (l'Acte Uniforme relatif au droit des Sociétés Commerciales et du Groupement d'Intérêt Économique, or AUSCGIE) and the Regional Regulation No 09/2010/CM/UEMOA governing foreign investments in the WAEMU (or UEMOA, as it is known in French).

In addition to the restrictions related to the transferability of shares in limited liability companies, which require the prior authorisation of the majority of shareholders holding three-quarters of the share capital, the AUSCGIE also provides for the possibility of the by-laws of the SA containing pre-emption rights clauses. In this respect, the by-laws of the company may include provisions stating that the transfer of shares to third parties may be approved in advance by the board of directors or an ordinary shareholders’ meeting, as well as deadlock, put-option clauses. Also, the by-laws can prohibit the transfer of the company’s shares, but only for a period not exceeding ten years.

According to Article 10 of Regulation No 09/2010/CM/UEMOA, FDI operations are subject to a foreign investment declaration for statistical purposes to the Directorate of External Finance and to the BCEAO.

Other Restrictions

The professions of medicine, pharmacy, law, notary, accountancy and architecture are reserved for nationals, while legal and accounting services require a partnership with an Ivorian entity. Also, the Mining Code excludes foreigners from semi-industrial and artisanal mining activities. In practice, additional restrictions may be applied – notably, when applying for business permits or licences, which are authorisations issued by sectoral ministries prior to the establishment of an enterprise.

Corporate governance rules are mainly provided in the AUSCGIE, which includes good governance principles such as:

• providing for the appointment of statutory auditors;
• prohibiting directors from participating in any vote on their own remuneration; and
• considering the failure by directors to submit a company’s financial statements within a month of their approval by the shareholders as an offence.

Shareholders may also choose to determine the governance matters in a shareholders’ agreement in which they may specify the roles, functions and duties of each body in the company.

Investors may opt for one of the following:

• a representative office with only preliminary or auxiliary activities, but not a commercial activity of its own;
• a subsidiary, which is the most common structure used for a private company (eg, a SARL, SA or SAS); or
• a branch office with certain autonomy of management, which implies the appointment of a local manager, where:
1. no autonomous legal personality, distinct from the mother company and the rights and obligations arising from its activity or resulting from its existence, are included in the assets and liabilities of the mother company; and
2. the branch ‒ when belonging to a foreign company ‒ must be transferred to an existing company or one to be created within two years (at the latest), unless it is exempt from this obligation following a decision of the Ministry of Commerce that extends its life to a maximum of four years.

Choosing the appropriate type of company involves taking the elements mentioned in 3.1 Transaction Structures into consideration.

The AUSCGIE contains several provisions ensuring the rights of minority shareholders. Every shareholder has the right to attend and vote at general meetings and a right to information, with no distinction between majority and minority shareholders in the process of communicating information.

Minority shareholders may also obtain information by questioning the management bodies. Minority partners may also have recourse to the management expertise procedure. In fact, the members may ask the president of the Commercial Court to appoint one or more experts to submit a report on one or more management operation(s). Minority shareholders can also exercise actions against the company directors to repair a prejudice committed, through individual or social action.

The quorum and majority required for voting provided under the AUSCGIE cannot be changed for an SA, as they are public policy. Also, some decisions must also be taken unanimously. Finally, the AUSCGIE penalises the abuse of majority voting.

The Ivorian Investment Code provides for freedom of investment and equality of treatment between natural or legal persons of foreign nationality and those of Ivorian nationality.

Nevertheless, the WAEMU Regulation No 09/2010/CM of 1 October 2010 provides that the constitution of foreign investments in a WAEMU member state must be declared for statistical purposes to the Directorate of External Finance and – in the case of FDI – to the BCEAO .

Commercial companies in Côte d’Ivoire must also abide by the following reporting obligations.

• Financial reporting ‒ annual financial statements and a management report must be submitted to the annual general meeting.
• Disclosure of corporate governance arrangements ‒ the management report and agreements entered into directly or through an intermediary between the company and one of its managers, directors or shareholders are subject to a special report by an auditor at the general meeting.
• Company registry filings – companies are required to file the following with the companies’ registry:
1. any change in the company executives;
2. approval of the company’s accounts;
3. transferable securities;
4. transfer of shares;
5. any draft merger or demerger;
6. the dissolution and liquidation of the company;
7. the striking-off of a court decision.

Finally, Circular No 04-2017/CB/C on risk management in the WAEMU outlines a reporting obligation for credit institutions, banks and financial institutions to the governing body and to the Banking Commission, relating respectively to the nature and level of exposure to each type of risk and to the overall risk management system of the institution.

The WAEMU capital market is composed of:

• the money market, supervised by the BCEAO, with the interbank market and the market for negotiable debt open to all economic agents; and
• the financial market, with the Primary Market (based on the issuance of new shares and bonds) and the Secondary Market (organised by the Regional Stock Exchange (Bourse Régionale des Valeurs Mobilières, or BRVM) and where securities already issued are traded).

The highest financial market authority is the Regional Council for Public Savings and Financial Markets (Conseil Regional de l'Epargne Publique et des Marches Financiers, or CREPMF), which is responsible for organising and controlling public offerings and for supervising operators.

SAs with representation in the WAEMU and with share capital of XOF10 million can only access the markets through a public offering.

Regulations concerning capital markets in WAEMU jurisdictions, including Côte d’Ivoire, require issuers to publish all information enabling the public to form a judgement on the assets and liabilities, activity, financial situation and prospects of the issuer, as well as on the characteristics and purpose of the operation and the related rights.  This is achieved through the preparation of a prospectus, which is subject to the approval of the CREPMF before being distributed to the public.

The prospectus must be renewed at the beginning of each calendar year and resubmitted to the CREPMF. It must be widely published in the WAEMU territory by the issuer as soon as the “visa” (certificate) is granted by the CREPMF and must be made available to the public.

In all cases, foreign investments and transfers of investments between non-residents must be declared to the Directorate of External Finance and – in the case of direct investments – to the BCEAO.

Foreign investors structured as organisme de placement collectif en valeur mobilière (OPCVM) (investment funds, SICAVs, etc) must file for approval with the WAEMU Regional Council for Public Savings and Financial Markets before starting their activity. This includes a letter of application, the financial situation of each promoter over the previous three years, the draft prospectus, the custodian agreement, the certified financial statements of the management company and the custodian for the previous three years, a five-year projection of the evolution of the number of securities and assets of the OPCVM, and letters of commitment in conformity with Articles 76 and 77 of the General Regulations. Depending on the legal form, other documents may be requested.

The transformation of an OPCVM or a change of legal form requires a new authorisation. Depending on the legal form of the OPCVM, the amount of registered capital varies between XOF50 million and XOF250 million.

Côte d’Ivoire has a merger control regime, with legislation on both national and community levels. Applicable legislation includes:

• Ivorian Law No 2013-662 of 20 September 2013 relating to competition;
• the WAEMU Treaty of 10 January 1994, revised on 29 January 2003;
• Regulation No 02/2002/CM/UEMOA of 23 May 2002 on anti-competitive commercial practices; and
• Regulation No 03/2002/CM/UEMOA of 23 May 2002 relating to the procedures applicable to the cartels and abuses of dominant position inside the WAEMU.

Relevant authorities include:

• The Competition and Anti-High Cost of Living Commission (Commission de la Concurrence et de la Lutte Contre la Vie Chère, or “the Commission”); and
• the WAEMU Commission responsible, under the supervision of the Court of Justice, for applying the competition rules.

National competition structures have a general task to investigate and assist the Commission, which has the power to take decisions and may oblige enterprises or associations of enterprises to put an end to antitrust agreements. However, the Commission may also find – of its own motion or upon request – that there are no grounds for it to intervene in respect of a concerted or anti-competitive agreement, decision or practice.

Exemptions and Notification Process

Individual exemptions

Agreements, decisions and concerted practices, through which enterprises or associations of enterprises wish to avail themselves of the benefit of “negative certification”, must be notified to the Commission.

Persons entitled to submit requests and notifications:

• any enterprise and any association of enterprises participating in agreements or concerted practices; or
• any enterprise and any association of enterprises engaging in concerted practices with the aim/effect of restricting or distorting competition; and
• the parties concerned and/or the member states to which they belong.

Filing and content of requests and notifications

These should be submitted to the Commission, using Form N, against receipt.

Following a notification, the decision-making procedure is as follows:

• the Commission issues a short communication;
• within six months of the notification, the Commission may decide to grant a “negative certification” or an individual exemption;
• if it has doubts about the compatibility of agreements, decisions or concerted practices with the common market, the Commission may decide to initiate a contradictory procedure.

The individual exemption decision is granted for a fixed period and may be subject to conditions and obligations. It may relate to the act ab initio, even if this means that the exemption applies to a period prior to the date of notification. The decision may be renewed ex officio or on request if the conditions for granting an individual exemption are still met. The Commission may also revoke or amend its decision or prohibit specific acts.

Block exemptions

The Commission may adopt block exemptions by means of an implementing regulation. Specialisation agreements, research and development agreements, and technology transfer agreements may be covered by an implementing regulation for the purposes of the block exemption.

Ivorian competition law is applicable to mergers. However, it does not involve a substantive overlap or competitive assessment of the investment.

Fines

The Commission may, by decision, impose fines on (associations of) enterprises of between XOF500,000 and XOF100 million, or up to 10% of the turnover in the preceding business year of each of the enterprises participating in the infringement, or 10% of the assets of those enterprises. The fine is without prejudice to remedies before the national courts relating to compensation for damage suffered.

Penalties

The Commission may impose penalty payments on (associations of) enterprises of between XOF50,000 and XOF1 million per day of delay from the date it reaches its decision. The Commission may also adopt interim measures such as:

• an injunction to return to the previous state;
• suspension of the practice; and
• the imposition of conditions necessary to prevent anti-competitive effects.

Ability to End the FDI

If the Commission observes – on request from a member state or a natural/legal person, or on its own – an infringement of competition rules, it has the power to compel the (association of) enterprises concerned to put an end to it. This is the case for the following practices prohibited by Article 88 (a) and (b) of the WAEMU Treaty:

• agreements, associations and concerted practices between undertakings, the object or effect of which is to restrict or distort competition within the union; and
• practices by one or more undertakings which amount to an abuse of a dominant position in the common market or in a significant part of it.

In the case of a practice amounting to an abuse of a dominant position, the Commission may require the enterprises:

• not to proceed with the proposed concentration;
• to restore the legal situation as it existed previously;
• to modify or supplement the operation; or
• to take any measure likely to ensure or restore sufficient competition.

Complaint Procedure Against an Agreement, Decision or Practice

A complaint may be brought before the Commission by any natural or legal person. It may be verbal or written, and in the latter case, it must contain the name and address of the complainant, the subject of the complaint, a copy of any useful document, a product description, a description of the nature and structure of the relevant market, and the decision requested by the complainant.

When corporate agreements constituting investments are made without any negative clearance, they may give rise to complaints and suspension (or even termination) if the infringement is found and proved.

Adversarial Procedure

This will be initiated by the Commission to follow up on a complaint. The Commission must give its opinion within 12 months of opening the adversarial procedure – failing which, its silence will be deemed to constitute a “negative clearance” or “individual exemption” decision.

Sanctions

Refer to 6.3 Remedies and Commitments.

Appeal Process

The Commission publishes decisions, taking into account business confidentiality. A judicial appeal is possible before the WAEMU Court of Justice which evaluates the legality of decisions. Action for the evaluation of the legality of a decision is open to member states and the Council. It is also open to any natural or legal person against any act adversely affecting them.

Ivorian legislation does not provide for a specific national security review regime applicable to FDI.

WAEMU Declaration Regime

However, such regime is provided by the WAEMU regulations – especially Regulation No 09/2010/CM relating to the external financial relations of the WAEMU member states – in the form of a declaration for statistical purposes, addressed to the Directorate of Finance (Ministry of Economy and Finance) and – notably, in the context of the constitution of foreign investments in a WAEMU state – to the BCEAO. This obligation applies to direct investments, defined in this regulation as the sole participation, when it exceeds 10% of the capital of a company.

Form of the declaration

This declaration consists of a simple letter sent to the Directorate of Finance and to the BCEAO against receipt, supplying the following information:

• the designation of the enterprise or company abroad (or in the WAEMU member state in which the investment is to take place);
• the nature of the investment;
• the amount of the investment;
• the financing methods;
• the deadlines for its realisation; and
• the reasons for and effects of the planned investment.

In practice, this declaration may be filed after the financing documents have been signed, or after the transaction has been completed, or after the funds have been disbursed.

The Directorate of Finance and the BCEAO are free to request additional information from applicants.

Foreign direct investments are defined under the WAEMU regulation as:

• the purchase, creation or extension of business, branches or any other personal enterprise; and
• all other operations that, individually or in multiples, concurrently or successively, have the effect of enabling one or more persons to:
1. take or increase control of a company carrying out an industrial, agricultural, commercial, financial or real estate activity (whatever its forms); or
2. ensure the expansion of such a company already under their control.

It must be specified that, if the sole participation in the capital of a company does not exceed 10%, it is not considered a direct investment. In other words, a participation of less than 10% would not be subject to the reporting requirement for statistical purposes as described in 7.1 Applicable Regulator and Process Overview.

As mentioned in 7.1 Applicable Regulator and Process Overview, the constitution of FDI in Côte d’Ivoire is subject to mandatory reporting for statistical purposes to the Directorate of Finance (Ministry of Economy and Finance) and to the BCEAO. These authorities may request additional documents or information from the applicants.

In the case of infringement of the regulation of external financial relations and non-compliance with this mandatory formality, Decision No CM/UMOA/020/12/2012 of 14 December 2012 adopting the draft uniform law on litigation of infringements of the regulation of external financial relations of the member states of the WAEMU provides sanctions.

Infractions

Decision No CM/UMOA/020/12/2012 of 14 December 2012 provides for four different infractions, including:

• failure to comply with reporting obligations;
• failure to comply with prescribed procedures or required formalities;
• failure to produce the required authorisations; and
• failure to comply with the conditions attached to these authorisations.

Penalties

Natural persons are punished by a prison sentence of one to five years and a fine of a minimum amount corresponding to the sum or value of the offence and a maximum of five times said sum or value.

Legal entities other than credit institutions, on behalf or for the benefit of which an infringement of the regulations on external financial relations has been committed by one of their bodies or representatives, will be punished by a fine of a minimum amount corresponding to the sum or value to which the infringement relates and a maximum of five times the said sum or value.

Please refer to 7.3 Remedies and Commitments. The relevant authorities may have the ability to challenge the FDI, most probably after the investment is made, as the reporting obligation must be fulfilled at this time.

According to the Ivorian Investment Code, and especially Article 25 of Ordinance No 2019-1088 amending Ordinance No 2018-646, natural and legal persons of foreign nationality will receive treatment identical to that granted to national or legal persons of Ivorian nationality, without prejudice to the national policy of promoting national entrepreneurship. Furthermore, access to foreign currency is not restricted, and there are no restrictions on investors obtaining foreign currency for their activities. This law also guarantees any investor free access to raw or semi-finished raw materials produced in the national territory. However, some specific rules do apply to foreign investors.

Foreign Exchange Regulations

Regulation No 09/2010/CM/UEMOA of 1 October 2010, on the external financial relations of the member states of the WAEMU, lists the following obligations.

• Intermediation obligation – foreign exchange transactions, capital movements (issuance of transfers and/or receipt of funds) and settlements of any kind between a WAEMU member state and a foreign country (or within the WAEMU between a resident and a non-resident) may only be carried out through an intermediary of the BCEAO, the administration or the post office or through an authorised intermediary or an authorised manual exchange agent.
• Obligation to transfer currency – foreign currency held in a WAEMU member state must be transferred or deposited with an authorised intermediary or (where applicable) with the BCEAO, regardless of whether these assets belong to a resident or a non-resident.
• The principle of freedom – this is subject to the presentation of supporting documents to the intermediary concerned in the context of current payments abroad.
• Obligation of domiciliation – residents are obliged to have a registered address locally for import and export transactions with an authorised intermediary.
• Foreign exchange authorisation must be submitted to the Directorate of Finance for the repayment of medium- and long-term loans.
• The obligation to inform, for statistical purposes, the Directorate of Finance and the BCEAO in the event of the constitution of foreign investments in a WAEMU member state, the transfer of investments between non-residents, loans abroad, repayment by purchase and transfer of foreign currency or by crediting foreign accounts in francs or euros of any loan abroad, etc.

Real Estate Transactions

General principles of the Investment Code

According to the Investment Code (Article 33), the private property of all goods (movable or immovable, tangible or intangible) is protected in all its aspects, its elements and its dismemberments, its transmission and the contracts of which it is the object. The transfer of land under the rural land tenure system can only be carried out in accordance with the provisions of the laws and regulations of the rural land tenure system. Finally, no investor may be deprived of ownership of their investments except for reasons of public utility and under the condition of fair and prior compensation.

Certain professional activities in the real estate sector in Côte d’Ivoire are reserved for persons of Ivorian nationality. This is the case for real estate brokers, real estate agents and administrators of goods, under the Ivorian Code of Construction and Housing (Law No 2019-576 of 26 June 2019).

Specific national requirements

Ivorian Law No 2019-576 of 26 June 2019, establishing the Construction and Housing Code, provides for:

• an obligation of prior authorisation from the competent authority (in the form of a building permit) for anyone who undertakes, implants, modifies, demolishes – or causes to be undertaken, implanted, modified or demolished – constructions or installations (failing this, there is a penalty of imprisonment from one to six months); and
• in the case of constructions and works exempt from a building permit, the obligation of prior declaration by the project owner to the town hall or the sub-prefecture (except for works regarded as a national defence secret).

Specific Industry/Sector Restrictions

Telecommunications sector

An individual licence can only be obtained by a legal entity under Ivorian law, under the Ordinance 2012-293 of 21 March 2012 on Telecommunications and Information and Communication Technologies. To obtain authorisation, a private commercial television or radio broadcasting company must be a limited company under Ivorian law.

Extractive sector

Mining

According to Law No 2014-138 of 24 March 2014 on the mining code, any natural or legal person of Ivorian or foreign nationality may undertake or conduct an activity governed by this law on Ivorian territory, provided that they first obtain a mining title or authorisation. The granting of a mining permit obliges its holder to create a company under Ivorian law with the exclusive purpose of exploitation of the deposit for which the permit was issued. Similarly, the research permit is granted by decree, subject to prior rights, to any individual or legal entity under Ivorian law.

Oil and gas

In the oil and gas sector, Decree No 2023-441 of 24 May 2023 (the “Local Content Decree”), implementing Law No 2022-408 of 13 June 2022 (the “Local Content Law”) was recently issued to reinforce the obligations of local content in oil and gas activities.

The Local Content Law classifies oil and gas subcontracting activities, service provision and supply are under three main categories, as follows:

• Category A refers to activities that should be exclusively performed by Ivorian companies;
• Category B refers to activities that should be performed primarily by companies incorporated under Ivorian law, but which can also be conducted by foreign companies in partnership with one or more Ivorian company; and
• Category C refers to activities that can be performed by companies incorporated under Ivorian law or foreign companies.

The list of activities for each category is detailed in the Local Content Decree. In this respect, please note that the activities of Category B are divided into two sub-categories, as follows:

• B1 refers to activities that should be conducted by companies incorporated under Ivorian law; and
• B2 refers to activities that should be conducted by Ivorian companies in partnership with foreign companies.

For clarification, Ivorian companies are defined in the Local Content Decree as companies in which at least 51% of the capital is owned by individuals of Ivorian nationality or legal entities controlled by Ivorian individuals. The control of a legal entity means that at least 51% of the capital is directly or indirectly owned by a legal entity or an individual and grants such entity or person voting rights. Ivorian companies have their registered office in Côte d’Ivoire. As for companies incorporated under Ivorian Law, this refers to companies incorporated before the commercial register in Côte d’Ivoire, with no restriction regarding the nationality of their shareholders.

Also, the Local Content Decree provides criteria to evaluate the local content by means of indexes to follow. These indexes will be prescribed annually by the Ministry in charge of hydrocarbons and are defined as follows:

• Local Expenditure Index – total local expenditure over total company expenditure (local expenditure represents the amounts paid for local goods and services and company expenses for the benefit of Ivorian workers);
• Local Goods Index – this is the total amount paid by the company for local goods out of the total amount paid by the company for goods;
• Local Services Index – the amount paid by the company for services available in Côte d’Ivoire and performed by companies based in Côte d’Ivoire out of the total amount paid by the company for all services; and
• Local Staff Index – this is the number of employees of Ivorian nationality in relation to the company’s total number of employees.

On another note, the following requirements apply.

Hiring of Ivorian personnel

The Decree prescribes the way Ivorian personnel will be hired upstream and downstream. It provides the percentages for each stage both for upstream and downstream. By way of example, with regard to oil companies, the Decree requires 50% Ivorian employees at the start of upstream activities and 90% Ivorian employees ten years after the start of commercial production. As regards downstream activities, the Decree imposes a percentage of 75% Ivorian employees at the start of activities and 95% ten years after the start of activities (ie, the date of signature of the first oil contract, the first approval to carry out downstream oil activities, and the first oil subcontracting contract, service provision contract, or contract for the supply of goods or services).

All hiring of non-Ivorian workers will be done by exemption following certain conditions and procedures (Articles 9-18 of the said Decree).

Partnership agreements, local content plans and annual reports, controls and audits

With the aim of transferring knowledge, oil companies, subcontractors, service providers and suppliers involved in oil and gas activities in the Republic of Côte d’Ivoire – with the exception of Ivorian companies – must conclude and finance partnership agreements with at least one Ivorian university or training institute within two years at the latest of starting their activities. The aim of this requirement is to encourage a real transfer of skills and know-how to Ivorian companies.

Non-compliance with local content obligations exposes the perpetrator to administrative sanctions, including suspension or withdrawal of approval, prohibition from contracting, termination of production sharing contracts – as well as administrative fines ranging from XOF500,000 to XOF200 million, which may be doubled.

Maritime sector

Only legal entities governed by the law of the WAEMU member state in which they intend to set up operations may become licensed customs brokers. In addition, the level of participation of WAEMU nationals in the capital of approved legal persons must be at least 25%.

The taxation of companies doing business in Côte d’Ivoire depends on the nature of the structure (capital company or a company of persons) and on whether the person is established in Côte d’Ivoire as a resident or a non-resident (branch). Taxes are also applicable, in the form of withholding, in the absence of a physical presence in the country when business is conducted there (see 9.2 Withholding Taxes on Dividends, Interest, Etc).

Taxation of Limited Liability Companies

An SA or SARL resident in Côte d’Ivoire is, in principle, subject to the following tax regime.

Tax on industrial and commercial profits

Natural and legal persons operating in Côte d’Ivoire are subject to different tax regimes depending on the size of their turnover.

Normal real profit regime

Per Article 34 of the General Tax Code (Code Général des Impots, or CGI), the normal real profit (Réel Normal d'Imposition, or RNI) regime concerns individuals or legal entities whose annual turnover, including all taxes, exceeds XOF500 million. It should be noted in this respect that, subject to the deduction of income from movable property, the taxable profit is the net profit determined on the overall results of operations of any kind carried out by the companies (including the sale of any assets, either during or at the end of the operation).

Simplified real profit regime

Per Article 45 of the CGI, the simplified real profit regime (Regime Simplifié d'Imposition, or RSI) applies to individuals or legal entities whose annual turnover (including all taxes) is between XOF200,000,001 and XOF500 million. Subject to some adjustments relating to depreciation, the results are determined in the same way as for RNI.

For both RNI and RSI, the principal rate is 25%. On the other hand, companies in the telecommunications, information technology and communication sector are subject to the 30% rate.

Microenterprise regime

Per Article 72 of the CGI, the microenterprise regime (Régime des Microentreprises, or RME) applies to natural or legal persons whose annual turnover (including all taxes) is between XOF50,000,001 and XOF200 million. For these companies, the tax rate is 6% of the turnover (including all taxes). A reduced rate of 4% is provided for members of the Centre de Gestion Agrée (CGA) and taxpayers whose accounting is monitored by the Order of Chartered Accountants of Côte d’Ivoire (with whom the Directorate General of Taxes has signed an agreement).

Entrepreneur’s regime

The system makes a distinction between the entrepreneur’s communal tax and the entrepreneur’s state tax.

Entrepreneur’s communal tax

Per Article 33, Law No 2020-972 of 23 December 2020 the entrepreneur's communal tax (Taxe Communale de l'Entreprenant, or TCE) replaces the flat-rate tax on small traders and artisans and applies to taxpayers with an annual turnover of less than XOF5 million, inclusive of tax.

The rate applied to the annual turnover or forecast turnover is:

• 2% for trade or commerce activities;
• 2.5% for other types of activities, including the provision of services.

This contribution is calculated annually and paid monthly in a fraction equal to one-twelfth of the annual tax.

State tax on entrepreneurs

Per Article 72 of the CGI, the State tax on entrepreneurs (Taxe d'Etat de l'Entreprenant, or TEE) concerns natural or legal persons whose annual turnover (including all taxes) is between XOF5,000,001 and XOF50 million. The rate of the tax is 4% on the turnover (including all taxes) for trade and commerce activities and 5% for other activities (industry, crafts and services). The rate is reduced by half for members of the CGA (ie, 2% or 2.5%). Reductions of this rate are also foreseen. This tax, which is calculated annually, is paid monthly by payment by the tenth day of each month of a fraction equal to one-twelfth of the annual tax.

The CGI also provides for a flat-rate minimum tax in situations of low profits or losses. The basic rate is 0.5% of turnover including VAT. Derogatory rates exist for certain types of companies.

The 2021 Finance Law introduced a new condition for minimum tax payments. Consequently, the minimum tax is now due in one of the following cases:

• the amount of corporate income tax is lower than minimum tax; or
• the cumulative amount of taxes and duties due for a fiscal year, excluding third-party taxes, is lower than the maximum amount of microenterprise tax determined on the basis of the turnover realised under the microenterprise tax regime.

In the latter case, the minimum tax due by taxpayer is increased by the difference between the cumulative amount of taxes due for the fiscal year and the maximum amount of tax under the microenterprise tax regime, with a coefficient of 1.2. 

VAT

VAT is a consumption tax based on turnover, the basic rate of which is 18%. Services are taxable in Côte d’Ivoire when they are performed in the country. However, when a service is performed in another country but is used in Côte d’Ivoire, taxation takes place in Côte d’Ivoire. Regarding the supply of goods, the location of the supplying of goods is deemed to be in Côte d’Ivoire if the goods are there at the time of delivery or, in the case of transport of goods, at the time of departure of the shipment or transport to the purchaser. Exports are in principle exempt from VAT.

This VAT borne by the taxable person receiving the goods or services is in principle deductible if the conditions are met. There are also legal or conventional exemptions in Ivorian regulations, as well as the possibility of being reimbursed for VAT that cannot be deducted, under certain conditions.

It is also important to note that with the 2022 tax schedule, clarifications have been made on the VAT territoriality rules applicable to online sales, digital services and commissions received by digital intermediation platforms for their submission to Ivorian VAT. Operators of online platforms selling goods or services who do not have a business establishment or a legal representative in Côte d’Ivoire, but who carry out taxable operations in the country, are therefore required to file a tax declaration of existence before the start of their activities, using the simplified online procedure set up by the tax administration. This tax declaration results in the allocation of a taxpayer account number to the platform, through which it can pay the taxes that fall due. The operators of online platforms that do not have a business establishment in Côte d’Ivoire are required to calculate and pay into the coffers of the Ivorian Treasury the VAT due on the commissions and other remunerations they receive on taxable transactions in Côte d’Ivoire carried out via their platform. Explication note 3949/MBPE/DGI/DLCD-SDU 10-2023 issued on 9 October 2023 presents the simplified procedure for remote registration and declaration of VAT due.

Patent

Contribution is due by a natural or legal person (Ivorian or foreign) who practises a trade, an industry or a profession in Côte d’Ivoire that is not included in the exemptions determined by the CGI. It consists of a duty on turnover and a duty on value added. The duty on turnover is equal to 0.5% of the turnover or gross receipts and taxes of the previous year. This may vary in some sectors. The rate of duty on the rental value is set at 18.5% of the rental value of the business premises. This rate is reduced to 16% for establishments that do not fall within a municipal perimeter. There are also some exemptions (eg, SMEs are exempted for a period of five years from the year of their creation).

Property taxes

Tax on property income

In principle, property income is included in the company’s profits and taxed as Industrial and Commercial Benefits (Bénéfices Industriels et Commerciaux, or BICs). Otherwise, said income is subject to the tax on land income (L'Impôt sur les Revenus Fonciers, or IRF). This is a schedular tax levied on income from the letting of built or unbuilt property (house, factory, bare land, etc) at a rate of 3% of the rental value of income-producing buildings belonging to companies or legal persons. It is payable by the owner or possessor on January 1st of the tax year. This rate is increased to 4% for buildings belonging to companies or legal entities, with the exception of real estate co-ownership companies.

Tax on the real estate assets of built-up properties

This is an annual tax levied on the rental value of income-producing built and unbuilt properties. It is applied at a rate of 9% of the rental value of built properties producing income. This rate is increased to 11% for companies or legal entities except for co-ownership real estate companies. Other rates and exemptions are also provided for.

In addition, according to Article 158 of the CGI, the rate of tax on real estate assets is raised to 15% of the rental value of buildings belonging to legal persons and companies. It is then assigned to their activities, with the exception of co-ownership real estate companies.

Article 16 of the 2022 Tax Schedule further provides for the reduction of the rate of property tax on unfinished buildings on the balance sheet from 15% to 10% in order to reduce the tax burden on companies and legal persons.

Property tax on undeveloped properties

This tax concerns undeveloped properties and is applicable at a rate of 1.5% of the market value. This rate is reduced to 0.75% for non-built and non-income producing properties belonging to the Autonomous Port of San Pedro.

Registration and stamp duties

Registration fees are fees levied when a deed is submitted to the registration formality, which consists of having a legal document transcribed at the registration office. Some deeds are required to be registered; others are not. The formality may cost a fixed fee of at least XOF18,000 or a proportional or progressive fee.

Taxes and taxes on wages

Announced on 13 September 2023, the ITS reform changes the tax landscape with a progressive tax by salary bracket, a zero rate for monthly salaries below XOF75,000, and a reduction mechanism for family dependents.

Specifically, this reform consists of :

• a merger of the three tax schedules (payroll tax, national contribution, general income tax) into a single tax (Impôt sur les Traitements et Salaires, or ITS);
• progressive taxation by salary bracket;
• the adoption of a single tax scale versus the two current tax scales (national contribution/general income tax);
• the introduction of the Family Tax Reduction (Réduction d'Impôt pour Charges de Famille, or RICF);
• creation of a zero-rate tax bracket;
• raising the amount of the tax-free fraction of retirement pensions and life annuities; and
• reducing tax on pensions for people over the age of 70.

According to a press release by the Directorate-General for Taxation (Direction Générale des Impôts, or DGI), the reform will apply to salaries, pensions and annuities paid from 1 January 2024.

Withholding taxes

Other taxes may be paid in the form of withholding taxes, including withholding tax on distributions and withholding tax on income from receivables. See 9.2 Withholding Taxes on Dividends, Interest, Etc.

Taxation of partnerships

Partnerships are not personally liable to tax because of the tax transparency that characterises them. Each of the members or partners is taxable as if they personally carried out the activity. Thus, for general partnerships and limited partnerships (in the case of general partners), corporate tax is payable by the individual partners for their share of the profits. The taxes thus included in the rolls in the name of the partners are nonetheless corporate debts (Article 63 of the CGI). As regards the patente, this same transparency means that partnerships are not personally subject to it but their partners are personally subject to it.

Non-resident companies

Some companies carry out activities in Côte d’Ivoire in the form of a permanent establishment – in particular, a branch. Meanwhile, others do business there without any physical presence.

Taxation of Partnerships

Partnerships are characterised by tax transparency and are not subject to tax. Each of the members or partners is taxable as if they were personally carrying out the activity. Thus, for general partnerships and limited partnerships (in the case of general partners), corporation tax is borne by the partners individually for their share of the profits. The taxes thus included in the rolls on behalf of the partners are nevertheless social debts. With regard to the licence, this same transparency means that partnerships are not personally subject to it but their partners are.

Existence of a permanent establishment

A foreign company doing business in Côte d’Ivoire is taxable for industrial and commercial profits tax only when it has a permanent establishment in Côte d’Ivoire. This concept can be defined by a tax treaty, if there is one, between Côte d’Ivoire and the state of residence of the company. In the absence of an agreement, the CGI includes similar criteria.

In general, a permanent establishment is defined through a fixed place of business held in Côte d’Ivoire or a dependent agent with certain powers. The permanent establishment is subject to the same taxes and duties as a branch, except for the withholding on dividend distributions.

In the absence of a tax treaty, domestic law provides similar criteria, namely:

• an autonomous establishment;
• a dependent agent with powers to engage the company; and
• complete business cycles.

Certain income is applicable to foreign persons in the form of deductions, when they are beneficiaries of income such as dividends, interest and royalties.

Withholding Tax on Dividends

In Côte d’Ivoire, securities income tax (Impôt sur le Revenu des Valeurs Mobilières, or IRVM) is withheld at source on:

• income from shares, shares, income deemed distributed; and
• income from bonds, etc.

There are common-law rates and special rates for this tax, as follows:

• a special rate of 10% for dividends regularly paid by companies listed on the regional stock exchange.
• another special rate of 2% for products, lots and redemption premiums paid to bondholders, issued in Côte d’Ivoire and redeemable in at least five years; and

• the ordinary duty rate is 15% for:
1. batches of bonds;
2. distributions of profits exempt from tax on BICs or not having borne this tax at the rate provided for in Article 64 of the CGI; and
3. the products and all sums taxable under the IRVM not covered by this article.

Tax treaties may provide for a lower rate and an obligation for the state where the beneficiary is located to avoid double taxation.

Some exemptions exist as provided for by the Investment Code.

Withholding Tax on Debt Interest

In principle, the payment by a debtor established in Côte d’Ivoire of interest, arrears and all other proceeds of receivables, deposits, guarantees, current accounts and non-bond loans must be subject to withholding tax. The rate of this withholding is 18%, in principle, for interest on receivables. In other cases, lower rates are applied.

Tax treaties also provide for limitations on these rates.

Royalty Deduction or Non-commercial Benefit Deduction

Persons established in Côte d’Ivoire and recipients of benefits for persons residing abroad and without permanent establishment in Côte d’Ivoire must make a deduction at source on their payment. The rate of this deduction is 25%, with a reduction of 20% on the gross amounts collected by the beneficiary.

Tax treaties may exclude this withholding with a restrictive definition of the concept of royalty or they may limit the rate provided by domestic law. These deductions are, in principle, discharged from income tax.

Companies doing business in Côte d’Ivoire often use strategies to pay the minimum amount of tax in the country. These strategies include the following.

Unbalanced Breakdown of Public Procurement Prices

It is common for multinational companies that do not hold most of their public contracts in Côte d’Ivoire to use public market price distribution keys, which ultimately leave the Ivorian State with the right to tax only a very small part of the price. Indeed, to do so, they use strategies that pay a high price for the import of supplies and services from their related entities abroad and reserve a supervisory role for their low-paid local branch. With the restrictive definition of the concept of royalty provided in tax treaties, significant tax mitigation emerges.

Use of Intangible Assets for Tax Mitigation Purposes

Intangible assets (trade marks, patents, designs, copyrights, etc) are difficult to value. The appreciation of their value can vary greatly depending on the factors considered. Companies, especially foreign ones, take the opportunity to make these assets available to their local subsidiaries or branches at prices exceeding their real value. The payment of these remunerations entails a transfer of profits from Côte d’Ivoire to the country of the beneficiary of the payments – generally a state with a lower tax burden.

Avoidance of Permanent Establishment Status

The permanent establishment is the threshold of activity above which a foreign person has a taxable presence in Côte d’Ivoire for corporate tax purposes. Where there is an applicable tax convention, the scope of its definition may be considerably narrowed or widened. By way of example, some tax treaties give the source country (Côte d’Ivoire) the power to tax a construction site if the duration of this project exceeds six months, whereas for others it is less than six months (and even less for some others). Foreign companies, through the game of “treaty shopping”, create a residence in a country under agreement with Côte d’Ivoire that meets these criteria sought for tax mitigation purposes.

Other exploitable advantages include the parent-subsidiary regime (with an exemption of 95%), as well as the deferral of the taxation of the capital gains realised on fixed assets during operation, etc.

Capital gains are generally taxed in Côte d’Ivoire. However, there are adjustments to this rule.

In principle, taxable profit is the net profit, determined based on the overall results of operations of all kinds carried out by companies (including the disposal of any element of the asset, either in progress or at the end of the operation). Therefore, capital gains are taxable in Côte d’Ivoire.

The CGI provides derogations from this principle, as do tax treaties.

Exceptions and Adjustments Provided by the CGI

Capital gains arising from the sale, during operation, of fixed assets are not included in the taxable profit of the financial year in which they were realised if – in the declaration of the results of that financial year – the taxpayer undertakes to reinvest in fixed assets in their companies in Côte d’Ivoire a sum equal to the amount of these capital gains added to the cost price of the items transferred. This reinvestment must take place before the expiry of a period of three years from the end of the financial year in which the results were declared.

Capital gains from the sale of equity securities by holding companies are taxable at industrial and commercial profits tax at a rate of 12%, subject to compliance with certain conditions. Transfers of equity securities held for less than two years are taxed under the conditions of ordinary law, unless the securities were acquired following a merger or contribution and were included in the portfolio of a company meeting the conditions required by the CGI.

As for the disposal at the end of the business, it should be noted that the capital gains resulting from the sale of fixed assets at the end of the operation or in the event of a partial transfer of an enterprise, and the compensation received in return for cessation of the exercise of the profession or the transfer of clientele, are counted in the commercial profits and the profits of taxable non-commercial professions as half of their amount. However, where the sale, transfer or cessation occurs more than five years after the creation or purchase of the fund, the office or the clientele, the capital gain is retained in taxable profits for only one-third of its amount.

Moreover, it is important to clarify that these provisions do not seem to cover the gains made by a foreign person through an assignment of social rights. It should be noted that the registration duties of 1% are applicable on the transfer of all or part of the social rights of a company when this does not entail the disappearance of said company or the creation of a new company. There is an exemption if the transfer benefits an Ivorian resident. The transfer of immovable property by a foreign company not liable to corporation tax is subject to a levy on the capital gain on the sale. The capital gain on disposal is fixed at a flat rate of 20% of the sale price. The levy rate is 15% based on the said flat-rate capital gain.

Conventional exceptions

The taxation of capital gains may also be impacted by tax treaties. Indeed, in cases where taxation is provided for by the CGI, the tax treaty could grant tax jurisdiction to the state of residence of the foreign transferor. If so, there will be no taxation in Côte d’Ivoire. Also, there will be no taxation if despite the tax jurisdiction granted by the tax treaty, Ivorian law does not provide for effective taxation.

Ivorian law provides several rules to combat tax evasion. The tax system for international taxation has been strengthened and modernised in recent years.

Payment to People in Low-Tax Countries

According to Ivorian law, interest, arrears and other proceeds from bonds, receivables, deposits and guarantees, royalties for the assignment or granting of operating licences, patents, trade marks, manufacturing processes or formulas, and other similar rights or remuneration for services paid or due by a natural or legal person domiciled or established in Côte d’Ivoire to natural or legal persons who are domiciled or established outside Côte d’Ivoire are admitted as deductible expenses for the assessment of tax only if the debtor provides proof that these expenses correspond to real transactions and that they are not abnormal or exaggerated.

In this case, the sums paid are only allowed as deductible expenses for the preparation of the tax within the double limit of 5% of the turnover excluding taxes and 20% of the general expenses of the debtor company. Where the beneficiary of the sums paid is located in such a country or territory, the deduction of the sums will be capped at 50% of their gross amount, without prejudice to the aforementioned double limit.

In addition, there is a 25% increase in income tax on receivables or income tax on securities on taxable amounts paid in these territories.

Anti-transfer Pricing Arrangements

The CGI also contains an anti-transfer pricing system. According to this system, for the establishment of the tax on industrial and commercial profits due by companies that are dependent on or have control of companies located outside Côte d’Ivoire, the profits indirectly transferred to the latter – by increasing or reducing the purchase or sale prices or by any other means – will be incorporated into the results. The same is true of enterprises that are dependent on an enterprise or group that also controls enterprises located outside Côte d’Ivoire.

In the absence of precise elements to make the adjustments provided for in the preceding paragraph, the taxable income is determined by comparison with those of similar companies normally operated (Article 38 of the CGI).

Similarly, in accordance with Côte d’Ivoire’s commitments under the BEPS (base erosion and profit shifting) project, an obligation to report certain information on the accounting of companies called “country-by-country reporting” has been introduced in the tax system, to be borne by the ultimate parent companies of groups of companies established in Côte d’Ivoire. Failure to file this declaration is punishable by the payment of a fine of XOF5 million for cases of non-filing of these declarations within the required deadlines, and XOF2 million for cases of insufficient declaration – ie, for declarations deemed incomplete owing to omissions or errors found by the Tax Administration on these declarations.

Anti-tax Abuse Scheme

The administration also has another legal weapon against tax abuse. Taxpayers cannot be opposed to the Tax Administration acts that conceal the true scope of a contract or convention with the help of clauses that:

• give rise to lower registration fees or land registration tax;
• disguise either an achievement or a transfer of profits or income; or
• make it possible to avoid, in whole or in part, the payment of turnover taxes corresponding to transactions carried out pursuant to a contract or agreement.

The law recognises the power of the administration to restore its true character to the disputed operation, subject to the assessment of the dedicated commission and the judge in the case of disagreement.

The penalty in a case of tax adjustment for the repression or abuse of rights is an increase of 150% of taxes regularly applicable.

Limitation of Interest Deduction

To prevent loans from partners or shareholders for the benefit of Ivorian companies from being a gateway to tax evasion, the Ivorian legislature has placed the following limitations on the deduction of interest paid to persons directly related to the company:

• the total amount of the sums left at the disposal of the company by all these persons may not exceed the amount of the share capital of the latter;
• the total amount of interest paid in respect of the sums referred to above may not exceed 30% of the company’s profit before tax, interest, depreciation and amortisation of fixed assets and provisions;
• the rate of interest paid may not exceed the average rate of advances from the BCEAO practised for the current year, increased by two points;
• the repayment of the sums must take place within five years of their availability and the company must not be the subject of a liquidation during this period (otherwise, the interest deducted in respect of these sums is related to the result of the sixth year or year of liquidation); and
• the interest paid to such persons may be deductible, whatever its amount, only if the share capital of the borrowing company has been paid in full.

Côte d’Ivoire has ratified the eight fundamental conventions of the International Labour Organization. The Ivorian Labour Code provides for the rights and duties of employees and employers.

Article 15 of the 2016 Constitution, which states that every citizen has the right to decent working conditions and fair remuneration, is supplemented by the Labour Code. The latter applies to all contracts intended to be executed in the territory of Côte d’Ivoire, as well as missions of less than three months abroad, except for employees of public administrations and state-owned enterprises. The provisions of the Labour Code are of public order, but do not prevent the adoption of more favourable measures through the collective agreements that it governs.

The Labour Code governs open-ended contracts (CDI) and fixed-term contracts (CDD) limited to two years, including renewals. The number of workers on fixed-term contracts may not exceed one-third of the company’s workforce. It also deals with the conditions of work, suspension and termination of the employment contract, the sale, succession, merger, transformation or incorporation of the company, and the methods of settling labour disputes. It includes non-discrimination and equality between men and women, as well as the protection of women and children against certain forms of labour.

The guaranteed interprofessional minimum wage (Salaire Minimum Interprofessionnel Garanti, or SMIG) is set at XOF75,000 per month. Freedom of association and the right to strike are protected.

The recruitment of foreigners is subject to a procedure prior to hiring and, in principle, requires the absence of national skills.

Collective Bargaining and Unions

A works council is set up in all companies that usually employ at least 300 permanent employees.

A trade union delegate may be appointed within a company or establishment by a regularly constituted trade union organisation that is representative of the workers.

To be representative within a company, a trade union organisation must have a sufficient public in its sector of activity and geographical area. Said public is determined by the results of the professional elections.

Other Employment Regulations for Foreign Investors

The Investment Code introduces a quota for certain categories of employees. The number of foreign managers and supervisors must not exceed 20% of the total workforce of the company to benefit from certain provisions of the Investment Code.

The payment of wages obeys the following rules:

• place of payment – in principle, the place of work;
• hours of payment – during working hours, when they coincide with the normal opening hours of the cash desk;
• currency of payment – West African CFA francs, not foreign currency; and
• regularity of payment – at regular intervals that cannot exceed 15 days for workers hired on a daily or weekly basis and one month for workers hired on a bi-weekly or monthly basis.

Monthly payments must be made no later than eight days after the end of the working month that gives right to the salary.

In the case of change of employer because of a sale, merger, transformation of the business, or incorporation, all employment contracts in effect on the day of the change (ie, change of employer) survive between the new employer and the company’s personnel. The new employer is also obliged to pay the salaries of the workers whose contracts are in progress.

See 10.2 Employee Compensation on the consequences of a change of employer. It should be noted, however, that the new employer retains the right to terminate employment contracts in accordance with the legal procedures for dismissal.

Finally, there are no works council or other collective bargaining requirements to complete an acquisition or investment transaction.

Intellectual property is not an important aspect in screening FDI in Côte d’Ivoire, and no industries are subject to specific rules or increased scrutiny. Nevertheless, foreign investors need to be aware that counterfeiting is strongly present throughout West Africa and affects many areas of activity – mainly agrifood, pharmaceuticals, electrical equipment, and automobile spare parts.

At Regional Level

Côte d’Ivoire is a member of the African Intellectual Property Organisation (Organisation Africaine de la Propriété Intellectuelle, or OAPI) established by the Bangui Agreement, as well as a member of the World Intellectual Property Organization (WIPO) and a signatory to the main treaties on IP law.

The OAPI established a uniform system for a single deposit and the protection of trade marks in all member countries, with protection for ten years from the date of filing of the application.

At Local Level

The Ivorian office for copyrights (Bureau Ivoirien du Droit d'Auteur, or BURIDA) ensures protection of copyright that enjoys, by the sole fact of its creation, an intangible property right – exclusive and enforceable against all – including moral and economic rights. Any infringement is subject to sanctions. Additionally, domain names are managed by the telecommunications authority (ARTCI) in accordance with the WIPO rules.

There are no specific sectors in which it is difficult to obtain IP protection or that are subject to significant limitations on protection or enforcement. Nevertheless, despite the reassuring level of legislation, counterfeiting is strongly present in Côte d’Ivoire, causing numerous cases of personal injury and accidents.

Legal Framework

The relevant legislation includes:

• Law No 2013-450 of 19 June 2013 on the protection of personal data; and
• Law No 2013-451 of 19 June 2013 on the fight against cybercrime.

Extraterritorial Effect

Law No 2013-450 also provides for the territorial application of its provisions to data controllers and processors. Indeed, it applies to any data processing operations carried out in the national territory (Article 3). In other words, if a data controller collects, processes and/or deletes data in Côte d’Ivoire, the controller is automatically subject to Ivorian law. The conditions of application are the same for subcontractors. In addition, only natural persons residing in Côte d’Ivoire or legal entities under Ivorian law may file a declaration or submit an application for authorisation to process data. Therefore, the Ivorian law on data protection bases its application on the criterion of establishment.

Enforcement

These laws are subject to strong enforcement in Côte d’Ivoire. Indeed, the regulatory authority (ARTCI) is very active in issuing opinions on questions raised by public or private entities in relation to the regulations in force, especially with regard to data protection. ARTCI is also active in punishing these same entities in the event of violation of the applicable regulations.