Measures Directly Affecting Exports

Measures Affecting Production and Trade

1. Incentives

   1. 
      Senegal grants a number of different subsidies, whose full notification to the WTO dates back to 1997 and is no longer up to date, mainly because of the amendments made to the investment regime (Chapter II(4)). Tax and customs concessions are given to enterprises approved under the Investment Code or the EFE regime, as well as to those approved under the previous regimes (Chapter II(4)) and the ZESI, and for agricultural investment under the Grande offensive agricole pour la nourriture et l'abondance - GOANA (Major Agricultural Offensive for Food Security) (Chapter IV(2)), mining (Chapter IV(3)(i)) and petroleum (Chapter IV(3)(ii)) investment, and under the special regime for SMEs (Chapter IV(4)). Some public utility goods and services such as electricity (Chapter IV(3)(iii), social water connections (Chapter IV(3)(iv)), air transport services (Chapter IV(5)(i)), and postal services (Chapter IV(5)(iii)) also receive State support (Chapter IV(3)(ii)). The same applies to agriculture in general and to its various subsectors (Chapter IV(2)(ii)). According to the latest information sent to the IMF by the authorities¹²⁶, rice and edible oil were subsidized between March and October 2008 and certain imported agricultural goods also benefited from suspension of duties and taxes between July 2007 and September 2008. In all, the Government estimates that its subsidies for butane gas (abolished as of June 2009)¹²⁷, electricity (through the relatively low rates for electricity supplied by SENELEC), and foodstuffs (suspension of duties and taxes) amounted to around 7 per cent of GDP over the period 2006‑2008. In principle, State aid has been governed by WAEMU regulations since 2003, but these are not implemented.¹²⁸
      
   2. 
      The emergency measures taken to revive the activities of the SAR include taking over its trading losses. The Fonds de sécurisation des importations de produits pétroliers (Fund for guaranteeing imports of petroleum products)¹²⁹ gives a margin of support to refining (CFAF 25/kg. for black oils and CFAF 35/kg. for white products); this was tantamount to a large subsidy for the production of butane gas, but was abolished in June 2009 (Chapter IV(3)(ii)).
      

2. Competition and price control¹³⁰

   1. 
      The regulatory framework for competition and price control in the domestic market dates back to 1994¹³¹, and has not been amended since Senegal's previous TPR in 2003. It is still being implemented and involves price control under the responsibility of the Ministry of Trade's Internal Trade Department. The Department deals with complaints lodged on competition‑related issues on behalf of the Regional Commission.
      
   2. 
      Where there is a monopoly or a dominant position in a particular market (public transport in 2001, flour and bread in November 2007)¹³², the Government may control the price of the goods and services concerned. According to the regulations in force, the principle of free pricing is followed. Nevertheless, 13 products and services "of a social nature" may be subject to direct control, i.e. mandatory fixing, of their prices through a decree or order in the case of rice, coal, hydrocarbons, water, electricity, (fixed) telephony, hospitalization rates, and the fees of approved physicians; or to approval in the case of the price of wheat flour, butane gas, bread, pharmaceuticals, and the rates charged by transport ancillaries.¹³³ Price approval means prior endorsement by the Minister of Trade. Consequently, any increase in such prices is also subject to authorization by the Minister; if no reply is received within one month of the application being filed, the increase is deemed to have been approved. As at June 2009, hydrocarbons, butane gas, water, electricity, (fixed) telephony, hospitalization rates, the fees of approved physicians, and public passenger transport rates were subject to mandatory price fixing; bread, sugar, pharmaceuticals, the rates of public transport ancillaries, and taxi rates were subject to approval.¹³⁴ In addition, to restrict price increases by intermediaries, regulatory decisions have been taken to set a maximum margin per tonne of rice (CFAF 4,000, 5,000 and 15,000, respectively, for importers, semi‑wholesalers and retailers) and per tonne of cement (CFAF 3,000). For all the subsectors that are the subject of agreements among the professional associations, notably peanuts and cotton, a minimum price is determined annually for each season (Chapter IV(2)(iii)).
      
   3. 
      Since it was set up in 2002¹³⁵, the ARM has been responsible for monitoring and regulating markets for certain products (rice, maize (corn), bananas, potatoes, onions, tomatoes for processing (since 2006), sorghum and souna) in Senegalese customs territory, by setting up an efficient information system for triggering suitable regulatory measures to ensure better market supply. Its tasks are to promote the sale of domestic output, particularly agricultural products, by developing product storage, conservation, processing and distribution channels and identifying a consumption pattern so as to establish a sound trade policy, draw up a list of producers and traders and facilitate the smooth operation of markets through consultation frameworks (Article 2). The ARM monitors 174 permanent markets, 182 weekly markets, and subregional and international markets, and consults professional associations and government bodies involved in agricultural and agro‑industrial policy. It is awaiting the establishment of an intervention and regulation fund, promised when it was set up, in order to expand its field of action.
      

3. State trading, government enterprises and privatization

   1. 
      Senegal has not notified the WTO of any State‑trading enterprises within the meaning of Article XVII of the GATT. The programme for State withdrawal from economic activities began in 1987¹³⁶ in implementation of the structural adjustment programme (1987‑1992). An initial list of State‑owned enterprises to be privatized was expanded in 1995 to include State‑owned enterprises supplying water and electricity, railways, and the SONACOS (peanut subsector).¹³⁷ In all, the State listed 27 companies sold under the privatization programme up to early 2001, including financial services, the national cement works, some hotels, the national airline, fixed telecommunications, a phosphate mine and the public water service (Dakar and 55 urban centres).¹³⁸ Since then, privatization has mainly affected the following: in 2003, the Société de développement des fibres textiles (SODEFITEX)¹³⁹, and the granting of a 25‑year concession to the Société d'exploitation du traffic international (SETI) for the Dakar‑Bamako railway line¹⁴⁰; in 2004, the Société nationale de commercialisation des oléagineux du Sénégal (SONACOS)¹⁴¹, which became SUNEOR in 2007; in 2005, the State sold 47.42 per cent of Industries chimiques du Sénégal to its shareholder Indian Farmers Fertilizer Cooperative Ltd. (IFFCO)¹⁴²; and in 2008, a 25‑year concession was granted for Dakar's container port.¹⁴³
      
   2. 
      Since 2007, the State has been planning to take back control of Air Sénégal International (ASI), in which a majority holding was sold in 2001 to the strategic partner, Royal Air Maroc, which recently announced its definitive withdrawal from management of ASI at the end of March 2009.¹⁴⁴ The major government‑owned enterprises remaining in the privatization programme are: the Société nationale d'électricité (SENELEC), and Dakar International Airport.
      
   3. 
      Privatization is the responsibility of the special commission established to follow up on the State's withdrawal, whose members are appointed for a three‑year term by the President of the Republic. Depending on the enterprise concerned, the State's withdrawal may consist of selling shares to a strategic partner, increasing the capital without a State holding, setting up a holding company to manage the infrastructure, establishing private companies responsible for commercial operations or granting a leasing contract. Privatization operations are initially dealt with by internationally known independent audit firms for a detailed analysis. The method used for privatization is a call for bids, prompt payment of the shares bought and their recording in the Finance Law as fiscal earnings (with the exception, for example, of shares sold to employees, under a presidential decree).
      
   4. 
      The State's minority holdings are managed by the Unit for the management and control of the Government's portfolio, attached to the Ministry of the Economy, Finance and Planning.
      

4. Government procurement

   1. 
      Senegal's government procurement regime has been revised since the previous TPR in 2003. The new Code (2007)¹⁴⁵ has been in effect since January 2008 and incorporates the recommendations of an audit (Country Procurement Assessment Review (CPAR)) conducted under the auspices of the World Bank¹⁴⁶, as well as the revisions needed to implement the relevant WAEMU regulations, adopted in 2005 (joint report, Chapter III(3)(iii)).¹⁴⁷ The Code will soon be revised in order to introduce provisions that will reserve government procurement to Senegalese companies for supplies, services or works of Senegalese origin or manufacture, as is already the case. Senegal is neither a party nor an observer in respect of the WTO Plurilateral Agreement on Government Procurement, but the authorities are interested in obtaining observer status.
      
   2. 
      One special feature of the new Code is to make bidding procedures the principal method of awarding government procurement contracts, so contracts awarded as a result of a direct negotiation will become the exception and will only concern those deemed to involve "secrets or whose fulfilment must be accompanied by special security measures when the protection of the higher interests of the State so requires", those that involve an exclusive right (for example, a patent), or an addition to a main contract awarded through a bidding procedure. Since 2007, Senegal has undertaken not to use direct negotiation for more than 20 per cent of the total annual value of government procurement, an objective that was achieved for the year ending September 2008, when 19 per cent of procurement was through direct negotiation.¹⁴⁸
      
   3. 
      The bidding procedure may either be open (with or without pre‑qualification), or restricted. The latter method is for intellectual services, as well as contracts for services, supplies and works that have been the subject of an unsuccessful call for bids. In principle, the lowest bid is chosen, but a price preference up to a maximum of 10 per cent may be given "to bidders under Senegalese law or from WAEMU member countries and to bidders whose bids include only products of Senegalese origin or from WAEMU member countries, in comparison with bidders that are not under Community law" (Article 50).¹⁴⁹
      
   4. 
      The Direction centrale des marchés publics ‑ DCMP (Central Government Procurement Department)¹⁵⁰, set up within the Ministry of the Economy and Finance in 2008, is responsible for monitoring procedures prior to the award of government procurement contracts and grants the authorizations determined in the Code. The DCMP also has responsibilities relating to training, advice, statistics and information for those involved in government procurement. The Autorité de régulation des marchés publics ‑ ARMP (Regulatory Authority for Government Procurement)¹⁵¹, operating since 2008, is responsible for a posteriori controls, punishing fraud or corruption, evaluating the system for awarding contracts, audits, and for proposing reform of the regulations.¹⁵² The ARMP has drawn up model forms for bidding procedures according to each method. There is a website on government procurement, which shows each contracting authority's plans for awarding contracts through a bidding procedure, its calls for tender, as well as decisions by the ARMP.¹⁵³ Any person involved in awarding or fulfilling a government procurement contract is bound by the Code of Transparency and Ethics, drawn up in 2005.¹⁵⁴
      
   5. 
      The scope of the Code includes all contracts awarded by the central government, local authorities, public establishments, agencies or bodies, State‑owned companies and public limited companies in which the State has a majority holding (Article 2). The thresholds for its application are laid down in the Code (Table III.3). Procurement financed from external resources is also subject to the Code unless the clauses in the related financing agreements specify otherwise. As under the previous Code (2002), the person responsible for approving the contract varies depending on its amount. Each contracting authority has a procurement commission (whose members are appointed by the contracting authority) and a procurement unit, which is responsible for controlling the documentation.
      

1. Protection of intellectual property rights

   1. 
      Senegal ratified the revised Bangui Agreement (1999) on 9 March 2000 (joint report, Chapter III(3)(iv)); this Agreement applies as a domestic law in Senegal and is automatically enforceable. In the case of a Senegalese applicant, the procedure for obtaining a title starts with filing an application with the Structure nationale de liaison ‑ SNL (National Liaison Body), which is the industrial property service in the Ministry in charge of industry, together with the supporting documents. In 2008, Senegal adopted new domestic legislation on copyright and related rights in order to harmonize the coverage of the protection of artistic property, as well as the relevant terms, with the provisions of the TRIPS Agreement.¹⁵⁵ The term of copyright protection has thus been raised from 50 to 70 years after the death of the author. The Bureau sénégalais des droits d'auteur ‑ BSDA (Senegalese Copyright Office) is responsible for collective administration in Senegal.¹⁵⁶ Since 26 April 1970, Senegal has also been a member of the Convention establishing the World Intellectual Property Organization (WIPO), signed in Stockholm (1967).
      
   2. 
      The authorities have indicated that the SNL's activities focus on making economic operators aware of the importance of protecting intellectual property, especially as a tool for development of SMEs and SMIs (for example, the importance of protecting trade names), and include providing applicants with support. In 2009, its activities also included implementing Annex X to the revised Bangui Agreement concerning new varieties of plants. The authorities have drawn attention to the efforts made by the OAPI to promote the protection of intellectual property arising from scientific research in the member States. The special squad set up to combat counterfeiting and piracy, which has been operating since 2007¹⁵⁷, carries out inspections in markets. According to recent information from this squad, a large number of persons have been arrested and an estimated 7.8 tonnes of material have been seized, including 20,762 DVDs, 56,950 VCD media, etc. This denotes considerable progress as, in 2005, according to the BSDA, three out of five products sold in Senegal had been pirated.¹⁵⁸
      
   3. 
      The constraints faced by the authorities in implementing the Bangui Agreement (1999) include the lack of any domestic legal instrument for its implementation. In addition, it would appear that there is a lack of consistency between this Agreement and Senegal's legal instruments (Civil Code, Penal Code, Customs Code).¹⁵⁹ Efforts are being made to incorporate the various offences and sanctions recognized in the revised Bangui Agreement into Senegal's national provisions.
      
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