Equatorial Guinea

Financial Sector

Equatorial Guinea does not have a national stock market, but the Central African Economic and Monetary Community (CEMAC, which includes Gabon, Cameroon, the Central African Republic, Chad, the Republic of the Congo, and Equatorial Guinea) operates a community stock market accessible to all member States, the Central African Stock Exchange (BVMAC). In 2021, the supervisory and control authority for the CEMAC financial market authorised the National Bank of Equatorial Guinea (“BANGE”, which is 51%-owned by the Equatorial Guinea State) to open a new brokerage division, the BANGE Securities Company, which offers brokerage, portfolio management and bond issuance services.

CEMAC's Bank of Central African States (BEAC) regulates interest rates in member countries. However, due to high loan repayment defaults in Equatorial Guinea, local banks usually set higher interest rates for private borrowers and business loans generally require significant collateral, restraining opportunities for local entrepreneurs, and is also one of the reasons why foreign investors do not finance themselves in the local market.

Regulatory body or bodies

COSUMAF (Commission de Surveillance du Marché Financier de L’afrique Centrale) is the supervisory and control authority for the CEMAC financial market. 

Exchange

CEMAC's Bank of Central African States (BEAC)

Key legislation (covering, inter alia, takeovers, mergers, public offers, corporate governance)

Uniform Act on Commercial Companies and Economic Interests Groups originally adopted on the 17 April 1997 by the Council of Ministers for the Organisation for the Harmonisation of Business Law in Africa (OHADA Uniform Act) as amended on the 30 January 2014.

Regulation No.02/18/CEMAC/UMAC/CM, of 21 December 2018, on exchange control in the CEMAC and related BEAC instructions.

Foreign exchange and remittances

As a CEMAC member, Equatorial Guinea uses the Central African Franc (XAF), which is pegged to the Euro at a fixed rate of 655.957 XAF/EUR. Foreign currency is not widely used in the CEMAC but can be purchased in small quantities in Equatorial Guinea.

In December 2018, CEMAC adopted Regulation No. 02/18/CEMAC/UMAC/CM, which introduced new rules for foreign currency exchange for all companies and individuals located in the subregion. In a nutshell, some of the rules under the new regulations are:

• Companies and individuals located in CEMAC must obtain approval from the BEAC to hold offshore and onshore accounts in foreign currency, forcing most companies to hold their bank accounts in XAF rather than in a foreign currency. If BEAC does not respond to the application within 30 days, it is deemed approved.
• Export proceeds over XAF 5 million must be repatriated to a commercial bank in the CEMAC region within 150 days.
• Businesses must declare the importation of services to BEAC and export proceeds over XAF 5 million must be deposited with a CEMAC bank.

These regulations have led to an increase in delays in remittances or the exchange of local currency for foreign currency. In September 2020, BEAC launched an online tool that automates the entire remittance application process to ensure that credit institutions comply with the new regulations. The new regulations came into effect in March 2019 but following opposition from the extractive industries and the outbreak of the COVID-19 pandemic, CEMAC granted several extensions for hydrocarbon and mining companies to comply. During this time, the extractive industry negotiated with CEMAC to adapt the regulations to their specific foreign exchange needs and in the beginning of 2022 CEMAC issued updated instructions for extractive companies, which provide that:

• Certain transactions can be settled through an onshore or offshore foreign currency account, including the payment of foreign transactions or the repayment of loans;
• Only 35% of the proceeds need to be repatriated; and
• Contractors can be paid in foreign currency provided that transactions are settled through onshore foreign currency accounts.

Although they have generally been able to adapt to the new requirements, oil and gas companies operating in Equatorial Guinea still struggle to find a local bank that can handle their transactions in an expeditious manner and following the new rules. In addition, CEMAC has not yet determined how to handle funds from abandonment and decommissioning, which is a problem for foreign hydrocarbon companies.

Remittances and transfers of funds in general are also regulated by CEMAC's Foreign Exchange Regulation No. 02/18/CEMAC/UMAC/CM. Remittances are limited to the equivalent of XAF 1 million per person/month and XAF 400 million per financial institution/month.

Legislation

Decree No. 16/2001, of 26 February, on Non-Competitive Commercial Practices, deems as non-competitive practices, and prohibits, those which tend to prevent, hinder and monopolise the following activities:

• production of goods and services within the country;
• commercialisation of goods and services in the country;
• hiring within the country;
• imports and exports of goods and services in the country;
• investment in any sector within the national economy;
• imposition of buying quotas and imposition of retail prices of wholesalers to retailers; and
• adulteration of weights, measurements, invoices and brands.

Law No. 5/2000, of 2 May, on Industrial Property, also provides a few examples of acts of unfair competition.

CEMAC’s Regulation No. 06/ 19-UEAC-639-CM-33, of 7 April 2019, on Competition and which replaced previous regulations from 1999 and 2005 and is supposed to be enforced by the CEMAC Commission, on recommendations by the Community Competition Commission (CCC), has never been enforced in Equatorial Guinea.

Impact of regulation regime on business

There is no specific agency in Equatorial Guinea that enforces competition laws and we are not aware of any case or proceedings in Equatorial Guinea in which the above competition laws have been applied or enforced.

The key statutes addressing corruption matters in Equatorial Guinea are:

• The new Penal Code, approved by Law No. 4/2022, of 17 August, which superseded Decree No. 691/1963, of 28 March, which was the Spanish Penal Code that pre-dates independence;
• The Law on the Prevention and Fight Against Corruption, approved by Law No. 1/2021, of 10 May; and
• The Law on Civil Servants, approved by Law No. 2/2014, of 28 July, which contains specific rules on, inter alia, incompatibilities, impediments, prohibitions and sanctions applicable to civil servants.

At an international level, Equatorial Guinea signed (ii) the United Nations Convention Against Corruption (on 30 May 2018); and ratified (ii) the African Union Convention on Preventing and Combating Corruption (on 26 June 2019). Finally, as a member of the CEMAC (The Economic and Monetary Community of Central Africa), Equatorial Guinea is also subject to Regulation No. 01/CEMAC/UMAC/CM on the prevention and suppression of money laundering, terrorist financing and proliferation in Central Africa, of 16 April 2016.

CORRUPTION PERCEPTION INDEX SCORE FOR 2022

17/100

CORRUPTION PERCEPTION INDEX RANK WORLDWIDE FOR 2022

171/180

SIGNATORIES TO UNITED NATIONS CONVENTION AGAINST CORRUPTION (UNAC)?

Yes, since 30 May 2018

UNAC RATIFIED?

No

SIGNATORIES TO THE OECD CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS?

No

SIGNATORIES TO THE AFRICAN UNION CONVENTION ON PREVENTING AND COMBATING CORRUPTION?

Yes. Signed on 30 January 2005

RATIFIED?

Yes. Ratified on 26 June 2019

Court system

The court system in Equatorial Guinea is structured in the following manner:

Supreme Court

The Supreme Court, located in the country’s capital, Malabo, is comprised of 13 judges appointed by the President of the Republic for a period of five years. The Supreme Court has the following chambers:

• First Chamber for Civil and Social matters;
• Third Chamber for Administrative proceedings.
• Second Chamber for Criminal matters; and

Provincial Courts

Provincial Courts are located in the capital of each Province that has jurisdiction over that region. Each of these courts consists of a president and eight judges appointed by the President of the Republic on the recommendation of the Supreme Council of the Judiciary. The courts hear appeals against first instance decisions, and each has the following chambers:

• First Chamber for Civil, Social and Administrative matters; and
• Second Chamber for Criminal matters.

First Instance Courts

First instance courts are in the capital of each municipality, and deal with Civil proceedings not assigned by law to other courts; the celebration of civil marriages; and appeals against decisions issued by Peace Courts.

Specialized First Instance Courts

Labour Courts - located in the capital of each District and deal, in first instance, with labour and social security matters.

Penitentiary Surveillance Courts – located in the capital of each Province, deal with custodial or restrictive judgements and security measures; the jurisdictional control of the disciplinary powers of Prison Authorities; and the protection of the rights of inmates.

Family and Juvenile Custody Courts – located in the capital of each District, deals with gender-based violence; crimes and misdemeanours against persons under 18 years of age; enforcement of correctional measures; and the jurisdictional control of the disciplinary power of the authorities responsible for the Juvenile Detention Centres and other similar establishments.

Investigating Courts

Located in the capital of each municipality, deals with misdemeanour for which the penalty does not exceed six months' imprisonment; authorities’ requests for detention, for extension of the period of detention, and for searches of homes and other private premises; and Habeas Corpus proceedings.

Traditional Courts

Located in each municipality, is chaired by the competent First Instance Court’s judge and three members appointed by the Ministry of Justice and deals family law (including traditional marriage).

Peace Courts

Deals with claims below XAF 300,000, conciliation and mediation in civil matters.

Effectiveness of the court system

Although the courts tend to be effective, several factors contribute to some distrust in the judicial system and to legal insecurity: lack of independence of the judiciary, as the President serves as chief justice and has the power to appoint and remove judges; absence of effective disciplinary power over members of the judiciary; lack of publicity of judicial decisions; limited capacity and understaffing; lack of documents management systems and digitalization; all leading to delays and numerous cases of biased and unjustified decisions. Nevertheless, some of the government's efforts to improve the judicial system are commendable, namely in terms of access to the courts, with relatively affordable court fees for the majority of the population and with the operationalization of effective alternative means of justice, such as the mandatory prior conciliation in labour matters, which contributes to faster and more effective Justice.

Arbitration

In July 2022, Equatorial Guinea became a party to both the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention, also known as the Washington Convention) and the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.

As a member State of the OHADA, Equatorial Guinea is also subject to the OHADA’s Uniform Act on Arbitration, under which the parties can bring disputes to the Common Court of Justice and Arbitration (CCJA), which is based in Abidjan and handles disputes within the borders of its member countries.

Foreign investment rules

Foreign investors can establish and own businesses and engage in all types of remunerative activities in Equatorial Guinea. As part of its economic diversification strategy, in 2018 the government abolished the requirement to have a domestic joint venture partner for investments in the non-oil sector. However, according to Equatorial Guinea's Hydrocarbons Law No. 8/2006, of 3 November, 35% of the share capital of foreign-owned oil companies must still be held by at least three EG nationals (individuals or companies).

The main legal instrument regulating foreign investment in Equatorial Guinea is Law No. 7/1992, of 30 April, on the Investment Regime in Equatorial Guinea, last updated in 1994 by Law No. 2/1994, of 6 June. Subsequent amendments to such regime have mostly been implemented through the following statutes:

• Decree No. 127/2004, of 14 September, which established local ownership requirements for foreign investors, providing, inter alia, that foreign investors must partner-up with at least three Equatorial Guinea nationals (individuals or companies), which must hold in aggregate at least 35% of the company’s share capital;
• Decree No. 67/2017, of 12 September, creating a One-Stop-Shop, in Spanish Ventanilla Unica Empresarial. The Ventanilla reduced the time required to incorporate a company or register a branch, although there is not yet an online registration page or website;
• Decree No. 72/2018, of 18 April, which amended Decree No. 127/2004 and adopted complementary rules to promote and guarantee foreign investment, notably by abolishing the requirement to have a domestic joint venture partner for investments in the non-oil sector; and
• Decree No. 45/2020, of 24 April, which reduced the minimum amount of capital required to incorporate a limited liability company from XAF 1 million to XAF 100,000.

In addition, foreign investors in the oil and gas sector must comply with several LOCAL CONTENT REQUIREMENTS when investing in Equatorial Guinea. In a nutshell, besides the above local ownership requirements, local content clauses must be included in local contracts; manpower ratios and training and evaluation obligations must be complied with; social projects must be sponsored; and, inter alia, preferential treatment must be given to local suppliers and contractors.

RESIDENCY CRITERIA

The Equatorial Guinea General Tax Law – Law No. 4/2004, of 28 October - does not contain a definition of permanent establishment but lays down tax residency criteria allowing to qualify an individual/entity as resident in the country for tax purposes, and thus subject to Equatorial Guinea’s tax laws. A company operating in the oil and gas sector qualifies as tax resident if it:

• carries out an activity / provides services in the country for more than 3 months in a calendar year, or more than six months within two consecutive calendar years;
• is incorporated under the laws of Equatorial Guinea;
• has a registered address in the country; or
• has an effective management office in the country.

In computing the period of residence, absences of thirty 30 days or less shall not be considered.

Taxation of non-residents

Provided that an entity qualifies as a non-resident entity for tax purposes in Equatorial Guinea, only payments received in connection with its in-country’s activity should be subject to taxation. The relevant general rate is currently (in 2023) of 15% applicable on the gross income obtained in the country to entities that work in the oil and gas sector (other rates may be applicable to specific categories of income).

Value added tax (VAT)

VAT is imposed on the supply of goods or services. The standard rate is 15%.

Some products are subject to a reduced rate of 6% (e.g. some basic consumables), others are exempt (e.g. certain medical products, some construction equipment), and others are subject to a special duty tax at a rate of 30%.

Resident VAT payers must be registered. Non-resident VAT payers must appoint a solvent resident representative to be jointly responsible for the payment of VAT and the discharge of other VAT obligations.

Registered VAT vendors are required to file monthly VAT returns within 15 days from the end of the month. The tax due must be paid within 15 days following the filing of the VAT return.

Personal income tax (PIT)

PIT withholding applies on salaries paid to employees (both resident and non-resident individuals). PIT tax rates are progressive and variable, the top rate being 35%.

Failure/delay in paying PIT withheld is subject to a penalty of 25% plus 10% interest per month, capped at 100% of the total tax withheld.

Social security contributions

Salaries are subject to contributions to the Work Protection Fund and National Social Security Institute (INSESO). Employee contributions are 0.5% of the net salary to the Work Protection Fund and 4.5% of the gross salary to INSESO.

The employer contributions are 1% of the gross salary to the Work Protection Fund and 21.5% to INSESO. Both contributions are declared and paid by the employer.

Transfer pricing

There are no specific rules in Equatorial Guinea regarding transfer pricing. The CEMAC regulations confer a general rule on the prohibition of a direct or indirect transfer of income to an affiliated company by means of a decrease or increase in sale or purchase prices or interest on loans. Tax authorities can evaluate such indirect transfers by contrasting them with transactions of similar nature by other companies operating under normal circumstances in Equatorial Guinea.

The new foreign exchange regulations of the CEMAC also provide that inter-group services are required to respect the arm's-length principle.

Corporate income tax (CIT)

Companies incorporated in Equatorial Guinea and branches of foreign companies are subject to CIT on their net profits at the rate of 35%. A minimum CIT payment must be made every year, equivalent to 1.5% of the entity’s turnover in the previous year but cannot be lower than XAF 800,000.

CIT must be paid within the first four months following the closing of the Fiscal Year.

Asset transfer tax (ATT)

ATT is an indirect tax applicable on onerous transfers of assets located in Equatorial Guinea and on the transfer of any rights and obligations to be performed/executed in the country. The transfer of goods between residents and non-residents, and between non-residents, is subject to a 3% tax on the value of the goods. Real estate transfers between residents are taxed at the rate of 5% on the value of the real estate and 25% between residents and non-residents, and between non-residents.

Real property tax

Rural property tax of XAF100 is levied for each hectare or fraction thereof of the surface area of the property.

An urban property tax equal to 1% of 40% of the sum of the value of the land and the buildings constructed on it is imposed.

Stamp duty

Stamp duty is levied on the execution of various documents (private contracts executed in Equatorial Guinea and contracts executed outside Equatorial Guinea with legal and economic effects in the country are subject to stamp duty) at rates ranging from 1% to 10%, but in many cases the tax corresponds to a fixed amount (e.g. XAF 1,000 per page).

Losses

Losses may be carried forward for up to three years (five years for companies in the oil & gas industry) but may not be carried back. Losses of one entity may not be transferred to another entity in the case of a corporate reorganisation. After three consecutive years of losses, companies will be de-registered from the Tax Registry (except new companies).

Technical service fees

Technical service fees are subject to a 10% WHT on the gross amount.