doing business in

country profile international treaties and memberships government  Executive: The president is chief of state and the prime minister is the international  African Continental Free Trade Area Agreement structure head of government. The president is directly elected by popular vote for a and regional  African Development Bank Group five-year term and is eligible for a second term. The prime minister is organisations  African Union appointed by the president with consent of the National Assembly. Cabinet and customs  Community of Sahel-Saharan States is appointed by the president on the recommendation of the prime unions  Economic Community of West African States minister.  Group of 77  Legislative: Burkina Faso has a unicameral National Assembly.  International Fund for Agricultural Development  Judicial: The highest courts are the Supreme Court of Appeals, Council of  International Monetary Fund State and Constitutional Council. The subordinate courts are the Appeals  Islamic Development Bank Court, High Court, first instance tribunals, district courts, specialised courts  Basin Authority relating to issues of labour, children, and juveniles, and village  Organisation of African, Caribbean and Pacific States (customary) courts.  Organization for the Harmonization of Business Law in Africa (“OHADA”)  Next presidential elections: November 2020.  United Nations economic  Nominal GDP (USD billions): 16.27  West African Economic and Monetary Union (“WAEMU”) (Union data  GDP per capita (USD): 791.84 Economique et Monétaire Ouest Africaine, (“UEMOA”))  Inflation rate (% change): 2.00  World Bank Group  Government revenue (% of GDP): 23.00  Burkina Faso receives preferential treatment under the agreements listed  Government gross debt (% of GDP): 42.15 here: http://ptadb.wto.org/Country.aspx?code=854 bilateral  Burkina Faso has bilateral investment treaties in force with the Belgium- *Source: IMF (May 2020) investment Luxembourg Economic Union, , , , Germany, treaties Ghana, , Republic of Korea, Malaysia, Mauritania, Morocco, Switzerland, Taiwan Province of China and Tunisia.  Burkina Faso’s key exports are cotton and gold. Gold has accounted for  Treaties have been signed with , Singapore and Turkey, but these about three-quarters of the country’s total export revenues. About 80% of have not yet entered into force. the population is engaged in subsistence farming and cotton is the main cash crop. investment-  African Growth and Opportunity Act  The country has seen an upswing in gold exploration, production, and related  Cotonou Agreement exports. agreements /  Multilateral Investment Guarantee Agency  Burkina Faso’s main export partners are Switzerland, India, South Africa institutions  World Trade Organization and . The main export commodities include gold, cotton and livestock. dispute  Convention on the Settlement of Investment Disputes (ICSID Convention)  Burkina Faso’s main import partners are China, Ivory Coast, the United resolution  OHADA States, Thailand, France, Ghana, and India. The main import  Permanent Court of Arbitration commodities include capital goods, foodstuffs and petroleum.  United Nations Commission on International Trade Law (UNCITRAL) risk ratings  World Economic Forum Global competitiveness index (2019): 130/141  United Nations Convention on the Recognition and Enforcement of  World Bank ease of doing business (2020): 151/190 Foreign Arbitral Awards (New York Convention)  Corruption perception index (2019): 85/180 intellectual  A comprehensive list of IP-related treaties signed by Burkina Faso is property (“IP”) available at: http://www.wipo.int/wipolex/en/profile.jsp?code=BF treaties  See the trade marks section below for further detail.

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doing business in Burkina Faso

legal regime  Mergers are analysed in light of the provisions applicable to abuses of applicable legal  Burkina Faso’s legal system is based on the French civil law system and dominance. Merger transactions that create or reinforce a dominant regime customary law. position having as a consequence a significant distortion of competition are assimilated to abuses of a dominant position. dispute  There are specialised commercial chambers in the general courts which  There is no provision for filing fees, but parties may be liable for an resolution can deal with dispute resolution, as well as an arbitration and commercial administrative fee for voluntary merger notifications. dispute resolution centre under the control of the Chamber of Commerce  Given that merger notification is voluntary, there is no risk of penalty for and Industry. failure to notify unless the parties are found to have implemented a merger  Burkinabé courts accept international arbitration as a means of settling which amounts to an abuse of dominance. In such a situation, parties may investment disputes between private parties. face a fine ranging from FCFA500 000 to FCFA100-million (which amount  If the dispute is with the government and cannot be resolved amicably, the can be increased to 10% of the annual turnover of each of the parties). Investment Code requires that it is submitted to international arbitration  Burkina Faso is also a member of ECOWAS and OHADA (other regional under the rules outlined by the International Centre for Settlement of regulators in Africa). The ECOWAS competition authority was launched in Investment Disputes. May 2019 but there is uncertainty as to whether it has become operational. OHADA does not yet have an operational merger control land  Foreigners may own land without any restrictions in Burkina Faso. regime in place. acquisition,  Burkina Faso’s Constitution guarantees basic property rights. These planning and cannot be infringed upon except in the case of public necessity, as defined prohibited  In terms of Section 90 of the Competition Act, anti-competitive agreements use by the government, which reserves the right to expropriate land at any practices (i.e. horizontal and vertical agreements) and abuses of dominance (and time for public use. assimilated practices) are sanctioned in terms of the WAEMU regulation  In instances where property is expropriated, the government must with regard to competition. compensate the property holder in advance, except in the event of an  In terms of the WAEMU regulation, horizontal and vertical agreements, emergency. decisions and concerted practices between undertakings, which have as their object or effect the prevention, restriction or distortion of competition,

competition are prohibited, unless they are exempt. merger control  At national level, the Competition Act, 2017 regulates competition law in  WAEMU regulation prohibits cartel conduct (such as price fixing and Burkina Faso. market division).  Burkina Faso is a member of WAEMU and is therefore also subject to the  Abuses of dominance are prohibited. competition rules and regulations of WAEMU.  A firm who engages in an anti-competitive horizontal or vertical agreement  According to Directive 02/2002/CM/UEMOA, the WAEMU Commission or who abuses its dominant position commits an offence and may face and the national authority are responsible for monitoring different aspects sanctions, the amount of which is between FCFA500 000 and FCFA100- of competition law in Burkina Faso. Merger control in Burkina Faso is dealt million and can be increased to the equivalent of 10% of the annual with at WAEMU regional level, according to WAEMU rules. turnover or assets of the infringing companies.  In terms of the WAEMU rules, a merger is defined as (i) a merger between  The Competition Commission of Burkina Faso remains competent to two or more previously independent undertakings; or (ii) the acquisition by sanction the following unilateral conduct: refusal to sell, discriminatory one or more persons already controlling at least one undertaking, or by practices, resale price maintenance and tying. one or more undertakings, whether by purchase of securities or assets, by  Refusal to sell, tying, discriminatory practices and resale price contracts or by any other means of direct or indirect control of the whole or maintenance are subject to a fine ranging from FCFA5 000 to FCFA10- parts of one or more undertakings, or (iii) the creation of a joint venture million and/or to 11 days to two years imprisonment. performing on a lasting basis all the functions of an autonomous economic  ECOWAS does regulate anti-competitive practices but there is uncertainty undertaking. as to whether it is operational. OHADA does not regulate prohibited  The WAEMU merger control regime is a voluntary merger notification practices. regime. Merging parties can implement a proposed transaction without employment prior competition approval (at own risk). requirements  Parties may seek advance clearance for a transaction and may file to obtain a “negative clearance” or an individual exemption. immigration  Expatriates working in Burkina Faso must hold a valid work permit (visa de contrat de travail) and a residence permit (visa de séjour).

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doing business in Burkina Faso

 There is no restriction on the number of foreigners that an investor may industry-  Industry-specific licenses may also be required. employ. The investor is, however, required to motivate that the required specific skill cannot be sourced from within Burkina Faso and the application for licences the visa de contrat de travail requires a favorable opinion of the National Agency of Employment Promotion (“ANPE”). incentives  Incentives include:  a reduction in corporate income tax, minimum lump-sum tax and local  In terms of Burkina Faso’s employment legislation, employees seconded payroll tax due by small enterprises; employment vs to Burkina Faso must be employed by a local company if an employee will  benefits available under four separate regimes (A-D) in terms of the secondment be paid locally during the secondment. Otherwise, the secondment should Investment Code, including reduced customs duties, exemption from result from a service agreement executed between the local company and VAT on specific transactions, exemption from business license duty the foreign company. and payroll tax, an extended loss-carry forward period and a tax deduction on the acquisition of new assets; fixed-term  Fixed-term contracts are allowed in Burkina Faso. There is no limit on the  benefits available to companies carrying on the exploration and contracts and duration of fixed term contracts, provided that the renewal of the fixed term exploitation of mining products; temporary contracts is justified and is not abusive.  benefits available to economic growth hubs (pôles de croissance); employment  The use of labour brokers is permitted in Burkina Faso but, except among and services mining companies, it is not common practice.  enhanced depreciation allowances.  Labour brokers must be duly registered and authorised to provide labour brokering services. exchange  Burkina Faso is a member of WAEMU and subject to the WAEMU Unified control Foreign Exchange Regulations. payment in local  Remuneration must be paid in local currency. regulation  In terms of the WAEMU Regulations, investment from outside the currency monetary union can be made without approval from the local Minister of foreign investment regime Finance. However, direct investment must be reported by the relevant investment  Law No. 038-2018/AN of 30 October 2018 adopting the Investment Code local commercial bank to the office of the Central Bank (Banque Centrale regime of Burkina Faso governs foreign investment in Burkina Faso. des Etats d’Afrique de l’Ouest; “BCEAO”) for statistical purposes.  The Centre for Business Formalities (Centre des Formalités des Entreprises (“CEFORE”)) is the official agency acting as a one-stop shop types of  The forms of doing business available in Burkina Faso are mainly the where all the formalities for company registration are carried out. entities following provided for by the OHADA Uniform Act on Commercial available for Companies and Economic Interest Groupings: registration /  Companies must register with the CEFORE in order to: foreign  public limited company (société anonyme, (“SA”)); licensing  complete company registration with the Trade Register and Personal investment  simplified limited lability company (société par actions simplifiée, requirements Credit (“RCCM”); (“SAS”));  obtain a fiscal identification (identifiant financier unique; “IFU”) from  private limited liability company (société à responsabilité limitée, the Tax Authority (Direction Générale des Impots; “DGI”); (“SARL”));  obtain a professional license (carte professionnelle de commerçant)  general partnership (société à nom collectif, SNC); from the Ministry of Commerce; and  limited partnership (société en commandite simple, SCSs);  file declarations before the CEFORE, which are transferred to the  joint venture (société en participation); National Social Security Fund (Caisse Nationale de Sécurité Sociale;  de facto partnership (société de fait); “CNSS”) which, in turn, is mandated to disseminate that information  economic interest grouping (groupement d’intérêt économique, GIE); to the ANPE and the Labour Inspectorate.  registered branch of a foreign company; and  The company will be assigned a unique company identification number for  representation or liaison offices. company registration, fiscal identification, and social security affiliation.

non-industry  See above. specific registrations / licences

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doing business in Burkina Faso

private limited liability company tax minimum  SARL | SA | SAS: A minimum of one shareholder is required. tax system  Burkina Faso has a residence-based tax system in terms of which number of  Local shareholders are not required, except in certain specified sectors residents are subject to tax on their world-wide income, whereas non- shareholders such as mining, oil and gas. residents are subject to tax only on their Burkina Faso-sourced income.

minimum share  SARL: at least FCFA1-million, which shall be divided into equal shares corporate  A company is resident in Burkina Faso if it has its registered office or its capital whose face value may not be less than FCFA5 000. residence place of effective management in the country.  SA: FCFA10-million, divided into shares with a face value of not less than corporate tax  Resident companies and permanent establishments of foreign companies FCFA10 000. rate are subject to corporate income tax at the rate of 27.5%.  SAS: no minimum required share capital, but in practice FCFA10-million.  A minimum lump-sum tax applies at the higher of 0.5% of turnover or: directors  SARL: must have at least one managing director (gérant). It is  FCFA1-million for companies under the standard regime; and recommended that someone who is either based in or regularly travels to  FCFA300 000 for companies under the simplified regime. Burkina Faso be appointed as managing director, as it is required for such capital gains a person to hold a long term visa.  Capital gains are generally included in ordinary taxable income and tax (“CGT”) subject to corporate income tax at the standard rate of 27.5%.  SA: must appoint a chairman of the board who can also act as general manager of the company (directeur général).  However, gains from the disposal of securities (including shares) are taxed at the rate of 10% and gains from the disposal of mining licenses are  SAS: free to determine its management structure, which could consist of taxed at the rate of 20%. only one chairman. withholding tax WHT rate company  There is no requirement to appoint a company secretary in Burkina Faso. (“WHT”) rates secretary payment to residents non-residents auditor  SARL and SAS: must appoint a statutory auditor when two of the following branch profits N/A 12.5% on 75% of three conditions are met at the end of the financial year: Burkina Faso profits (effective rate of  its total balance sheet exceeds FCFA125-million; 9.375%)  the annual turnover exceeds FCFA250-million; or dividends 12.5% 12.5%  the permanent staff exceeds 50 employees. 6.25% (mining 6.25% (mining  SA: appointment of an auditor is mandatory. companies and newly companies and newly registered  Every company must have a registered office which must be indicated in incorporated incorporated companies address the Articles of Association. companies for the first for the first 3 years)  The address of the company’s accountants or lawyers may be used as 3 years) registered address for an interim period. interest 25% 25% 6% (interest from 6% (interest from shelf  Shelf companies are not available in Burkina Faso. Burkina Faso bonds Burkina Faso bonds and companies and debentures) debentures) 12.5% (income from 12.5% (income from registration  Companies are registered with the CEFORE and it takes approximately accounts with a bank, accounts with a bank or process one week to complete registration once all the required documents have financial financial broker) been submitted. establishment, financial broker or public treasury) royalties 5% 20% management, 5% 20% consulting and technical service fees

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doing business in Burkina Faso

double tax  DTAs are in force with France, Tunisia and WAEMU (member countries  The employee contribution rate is 5.5% per month with a salary cap set at agreements include Benin, Guinea-Bissau, Ivory Coast, , Niger, and FCFA600 000 per month. (“DTAs”) Togo). payroll taxes  A payroll tax (taxe patronale et d’apprentissage) is payable by employers losses  Losses may be carried forward for a period of five years. at a rate of 3% of the gross amount of wages, salaries, allowances, emoluments and fringe benefits. transfer pricing  In terms of Burkina Faso’s transfer pricing rules, transactions entered into between related persons must be entered into on an arm’s length basis. stamp duty  Stamp duty (droits de timbre) is levied under the General Tax Code on a  Two companies are deemed to be related when: number of specified instruments.  an enterprise holds directly or indirectly the majority of the share  Stamp duty (registration duty) is not generally payable on the sale of capital of another one, or exercises directly or indirectly the decision- shares. However, a fixed amount of FCFA6 000 is payable when the deed making power; or of sale is voluntarily submitted for formal registration.  both companies are placed, under the conditions defined above,  The transfer of immovable property is subject to registration duty at the under the control of the same undertaking. rate of 8% on the transfer price value. value added tax limitations on  Interest paid on shareholder loans is deductible, provided the interest rate (“VAT”) interest charged does not exceed the legal interest rate (taux d’intérêt légal) plus deductibility two percentage points as provided by the BCEAO. taxable supplies  VAT is levied on the supply of goods and services in Burkina Faso and on  Interest paid on third party loans is deductible provided that the loan the importation of goods and services. transaction is commercially justifiable and the interest rate charged does not exceed the legal interest rate as provided by the BCEAO. VAT rate  18%  The overall deductible amount of interest paid to the shareholder or on registration  Any person who habitually or occasionally carries out taxable transactions loans to third parties may not exceed 15% of the EBITDA. threshold in Burkina Faso and has an annual turnover of at least FCFA50-million  The above limitations do not apply to banks or financial institutions. must register for VAT purposes.

employee taxes The income tax rates applicable to resident individuals are: reverse VAT on  If non-residents have not appointed a tax representative domiciled in monthly chargeable income tax rate imported Burkina Faso, resident companies are required to account for output VAT (FCFA) services in respect of imported services rendered by non-resident companies. Up to 30 000 0% 30 001 – 50 000 12.10% 50 001 – 80 000 13.90% 80 001 – 120 000 15.70% 120 001 – 170 000 18.40% 170 001 – 250 000 21.70% Over 250 000 25%

social security  Both employees and employers must make monthly social security contributions contributions to the CNSS.  The employer contribution rates are as follows with a salary cap set at FCFA600 000:  family welfare: 7%  retirement pension: 5.5%  professional injuries: 3.5%

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doing business in Burkina Faso

trade marks For more information or assistance please contact:

international  Madrid Protocol Celia Becker conventions,  Nice Agreement Executive | Africa regulatory and business intelligence treaties and  Paris Convention [email protected] arrangements  Trade Mark Law Treaty cell: +27 82 886 8744  World Intellectual Property Organization  World Trade Organization This document contains general information and no information provided herein may in any way be construed as legal advice from ENSafrica, any of its personnel and/or its correspondent firms. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein. *Note This document is the property of ENSafrica and consent must be obtained from ENSafrica before the information provided herein is reproduced and/or distributed in any way. Burkina Faso is a member of Organisation Africaine de la Propriété LAST UPDATED SEPTEMBER 2020 Intellectuelle (“OAPI”). An OAPI application automatically covers all member countries, as the member states had to renounce their national IP laws in order to become members. It is therefore not possible to file individual national applications in any of the OAPI member states.

classification  The international classification of goods and services applies. A single application may cover any number of class, however, goods and services may not be included in the same application.

categories of  Provision is made for: trade marks  collective marks;  geographical indications; and  service marks.

filing  Certified copy of the priority document (if applicable); requirements  electronic copy of the trade mark;  full particulars of the applicant; and  Power of attorney, in French or English, simply signed.

procedure  An application is filed at the OAPI office in Burkina Faso. An application is examined to determine if it complies with formal requirements and in respect of prior conflicting trade marks. If accepted, the registration certificate will be issued and the trade mark registration published for opposition purposes.

oppositions  Opposition may be lodged within six months following the date of advertisement of the registration. No extensions are allowed.

duration and  A trade mark registration is effective for an initial period of 10 years and, renewal thereafter, renewable for further periods of 10 years.

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