We confirm that there is a review regime for all foreign direct investments in Gabon.

Mergers involving foreign buyers/acquirers are subject to the common law review regime, namely, a prior declaration obligation to the Bank of Central African States (“BEAC”) and the Ministry in charge of the economy in accordance with the provisions of Regulation n°02/18/CEAM/UMAC/CM of 21 December 2018 on foreign exchange regulations in the CEMAC zone (“Foreign Exchange Regulations”).

In accordance with Article 4 of Instruction n°003/GR/2020 specifying the conditions and modalities for carrying out operations relating to direct and portfolio investments with foreign countries, the investor or their agent must complete the declaration formalities at least 30 days before the operation is carried out.

Article 6 of the above-mentioned Instruction states that when examining the declaration, the BEAC analyses the conformity of the elements and information provided, particularly in relation to the Foreign Exchange Regulations and the regulations on the fight against money laundering and the financing of terrorism. At the end of this examination, the BEAC takes note of the declaration, specifically whether it complies with the provisions of the abovementioned legislation. Otherwise, it may request additional information, require the implementation of additional measures to ensure the compliance of the reported transaction, or oppose its implementation.

In addition, Article 122 of the Foreign Exchange Regulations stipulates that foreign direct investments must be declared to the BEAC and the ministry in charge of the economy within 30 days of the transaction.

It should be noted that, apart from transfers between companies belonging to the same group of companies, mergers involving companies operating in the hydrocarbon sector in Gabon are subject to prior authorisation by the State, which, in this context, enjoys a right of pre-emption in accordance with Article 56 of Law No. 002/2019 of 16 July 2019 regulating the hydrocarbon sector in the Gabonese Republic (“Petroleum Code”).

Similarly, with respect to equity investments in insurance companies, note that in accordance with Article 329-7 of the Insurance Code in force in the Gabonese Republic, the following operations are subject to prior authorisation by the Minister in charge of the Economy:

• any transaction that has the effect of conferring, directly or indirectly, on a natural person or legal entity shareholder acting alone, either a holding of up to 20% of the share capital or a majority of the voting rights at the general meeting;
• any operation that has the effect of conferring directly or indirectly, on a shareholder who is a natural person or legal entity acting in concert with other natural persons or legal entities, either a holding of up to 33% of the share capital or a majority of the voting rights at the general meeting; and
• any transaction that has the effect of conferring, directly or indirectly, on several shareholders that are legal entities linked by parent-subsidiary relationships, either a holding of up to 50% of the share capital or a majority of the voting rights at the general meeting.

Based on local counsel’s experience with foreign direct investment operations in CEMAC in general, and Gabon in particular, they have observed that both, foreign direct investment notifications and merger/concentration notifications are quite frequent.

We confirm that there is a foreign direct investment regime in Gabon applicable to all sectors.

In accordance with the provisions of Articles 3 and 17 of Instruction No. 003/GR/2020 specifying the conditions and modalities for carrying out operations relating to direct and portfolio investments with foreign countries, the following transactions are subject to the said investment regime:

• the acquisition of holdings or subscriptions of shares in existing or new companies for amounts representing at least 10% of the capital of the investment company;
• acquisitions of real estate;
• investments in a company under the control or indirect influence of the investment firm, in related companies, as well as debts between related companies, with the exception of those between credit institutions;
• the acquisition of holdings or subscriptions of shares in existing or new companies for amounts of less than 10% of the capital of the investment firm; and
• debt securities other than equity securities in real estate acquisitions.

The foreign direct investment regime is defined in the following main texts:

• Regulation n°17/99/CEMAC-20-CM-03 of 17 December 1999 on the CEMAC Investment Charter;
• Law 15/98 instituting the Investment Charter of Gabon;
• Law n°014/1998 establishing the competition regime in the Gabonese Republic; and
• Decree No. 0673/PR/MECIT of 16 May 2011 applying the investment charter to foreign investments in the Gabonese Republic.

In accordance with the provisions of Law 15/98 instituting the investment charter, Gabonese legislation enshrines the principles of:

• the freedom to undertake any activity of production, provision of services or trade regardless of nationality;
• the property rights attached to land, buildings, operating equipment and those attached to movable property, securities, patents and other elements of industrial and intellectual property; and
• the right of a foreign investor to repatriate the capital invested and the profits made by their operation, as well as the repatriation of savings on salaries made by their expatriate staff, for example.

However, it should be noted that, in accordance with the provisions of Decree n°0673/PR/MECIT of 16 May 2011 on the application of the investment charter to foreign investments in the Gabonese Republic, the Government may, at its discretion, in particular to ensure the defence of national interests, by decree taken on the proposal of the Minister in charge of the Economy:

• subject to prior authorisation:
  • foreign exchange transactions, capital movements and settlements of any kind between Gabon and foreign countries; 
  • the constitution, change of consistency and liquidation of Gabonese assets abroad;
  • the constitution and liquidation of foreign investments in Gabon; and
  • the import and export of all materials and all other material movements of value between Gabon and foreign countries;
    
    
• order the repatriation of foreign debts outside the CEMAC zone arising from the export of goods, the payment of services and, in general, all income or products abroad; and
• appoint intermediaries exclusively to carry out foreign exchange transactions, capital movements, settlements of any kind, import and export of any material and all other material movements of value between Gabon and foreign countries.

In addition, it should be noted that the Gabonese State requires prior authorisation from the Minister in charge of the Economy for foreign investments in any of the following sectors: 

• activities in the gambling sector;
• research, development or production activities relating to means intended to counter the illicit use of pathogenic or toxic agents in the context of terrorist activities and to prevent the health consequences of such use;
• activities relating to equipment designed for the interception of correspondence and the remote detection of conversations, without prejudice to the penalties provided for by the provisions of the Penal Code;
• service activities relating to the evaluation and certification of the security offered by new information and communication technology products and systems;
• activities relating to cryptology means and cryptology services;
• activities carried out by companies holding national defence secrets;
• activities relating to research, production or trade in arms, munitions, powder and explosive substances intended for military purposes or war materials and the like;
• activities carried out by companies that have concluded a contract for the design or supply of equipment related to national defence or public security, either directly or by subcontracting, for the production of a good or service;
• activities related to the sustainable exploitation of forest products; and
• activities related to the exploration and exploitation of mines and hydrocarbons.