The role of judicial cooperation in the fight against tax evasion and tax avoidance in the CEMAC zone

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THE ROLE OF JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE

A dissertation submitted in partial fulfilment of the requirements for a Master's Degree in International Relations

Specialty: International Disputes

By:

MEUTCHEDJI FONGANG Frank Patrick

Bachelor's Degree in Law

University of Buea

Under the direction of: Under the supervision of:

Dr MEYONG ABATH Roger Pr. OLINGA Alain Didier

Lecturer at the International Relations Professor

Institutes of Cameroon (I.R.I.C) Head of Department of International

Disputes at the International Relations Institute

of Cameroon (I.R.I.C)

Academic Year 2017-2018

DISCLAIMER

DEDICATIONDISCLAIMER

The views and opinions contained in this dissertation are those of the author. They should not be attributed to the University of Yaoundé II or to the International Relation Institute of Cameroon.

DEDICATION

ACKNOWLEDGEMENTSDEDICATION

To

My lovely parents FONGANG David & WEGANG Micheline

for their patience and unconditional support.

Hope I made you proud.

ACKNOWLEDGEMENTS

LIST OF ABREVIATIONACKNOWLEDGEMENTS

My special thanks goes first and foremost to the almighty God for, without him, nothing is possible.

Furthermore, the realization of this work could not have been possible without the combined efforts and continues counselling of some persons to whom I am deeply indebted.

I would like to extol my sincere regards and gratitude unto my thesis supervisor Professor Alain Didier OLINGA and director Doctor MEYONG ABATH Roger for their scientific and technical counselling.

Similarly, I equally want to extent my gratitude to the entire Staff of I.R.I.C particularly to my various lecturers for the pertinence of their critics, which encouraged further academic reflections and for putting in place a suitable framework for our training within and out of the school campus.

A special thanks to Mr. FORCHAP BEBONGNCHU, chargé d'études at the Division of studies, planning and tax reforms at the General Tax Directorate, for valuable advices and support despite his multiple professional occupations.

My gratitude also goes to my batch mates of the International dispute section, whose intellectual debates and presentations fostered reflections on the on this work.

I shall forever remain indebted to my loving family members especially to my uncle FANMOE METCHEDJI Hervé and my kid brother TCHELIBOU FOGUE Barezi for their relentless efforts and support throughout my academic career.

Finally, I salute the efforts of all those whom from far and wide participated to the realization of this modest academic work without leaving out my friends for their moral encouragements as well as to all those who have contributed to my education and helped me achieve this stage of my live, but whose names have not been mentioned in this work. Please accept the testimonies of my heartfelt gratitude.

LIST OF ABREVIATION

ABSTRACTLIST OF ABREVIATION

ANIF: National Financial Investigation Agency

BEPS: Base Erosion and Profit Shifting

CEMAC: Economic and Monetary Community of Central African States

ECCAS: Economic Community of Central Africa States

ECJ: European Court of Justice

ECOWAS: Economic Community of West African States

EEC: European Economic Community

EU: European Union

EUROJUST: European Union Agency for Criminal Justice Cooperation

EUROPOL: European Union Agency for Law Enforcement Cooperation

IMF: International Monetary Fund

OECD: Organisation for Economic Co-operation and Development

OECD-MTC: Model Tax convention on income and on capital

OHADA: Organisation for the Harmonisation of Business Law in Africa

PNF: National Financial Prosecutors Office

UDEAC: Customs and Economic Union of Central Africa

UEAC: Central African Economic Union

UMAC: Central Africa Monetary Union

VAT: Value Added Tax

ABSTRACT

RESUMEABSTRACT

The fight against tax evasion and tax avoidance is a major issue of State sovereignty, the adjustment of public accounts and an essential condition to ensure respect for the principle of equality before the tax. Indeed, tax evasion and tax avoidance undermines national solidarity by making the tax burden fall on the taxpayers who comply with their tax obligations as well as the conditions for fair competition between companies.The effectiveness of this fight has been hampered inter alia by the protection of banking secrecy, corruption, conditional extradition in tax.

In a bid to solve the aforementioned problems, CEMAC member States opted to cooperate in the administrative and judicial domain. However, it has been realised that these States having been opting more for administrative rather than judicial cooperation thus leading us to the title of our work «The role of judicial cooperation in the fight against tax evasion and tax avoidance in the CEMAC zone». This topic raised the question on what role does judicial cooperation plays in the fight against tax evasion and tax avoidance in the CEMAC zone? In answering this question, it was realised that, judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone supplements administrative cooperation.

In trying to confirm or rebut the aforementioned principal hypothesis, three methods where used. That is, the hypothetic-deductive method, the legal method, the analytical method and the comparative method. From the above-cited methods, it was eventually realised that judicial cooperation is the soft spot of the cooperation when it comes to the fight against tax evasion and tax avoidance not only in the CEMAC zone but also in other sub regional and regional groupings. This is added to the fact that, the major texts governing cooperation tax matters within the sub region dates from 1966 thus making it difficult to meet meetup with the exigencies of the modern fight against tax evasion and avoidance.CEMAC would benefit from copying the examples of the OECD and the EU, who are constantly innovating in the domain of the fight against tax evasion and tax avoidance through laws, model tax conventions and recommendations.

Key words: Judicial cooperation, administrative cooperation, tax, tax evasion, tax avoidance, CEMAC zone.

RESUME

SOMMARYRESUME

La lutte contre la fraude et l'évasion fiscales est un enjeu majeur de souveraineté, de redressement des comptes publics ainsi qu'une condition essentielle pour assurer le respect du principe d'égalité devant l'impôt. En effet, ces pratiques portent atteinte à la solidarité nationale en faisant peser la charge fiscale sur les contribuables qui respectent leurs obligations fiscales, ainsi qu'aux conditions d'une concurrence loyale entre les entreprises. Malheureusement, l'efficacité de cette lutte est entravée notamment par la protection du secret bancaire, la corruption, l'extradition conditionnelle en matière fiscale etc.

Néanmoins, dans l'optique de résoudre les problèmes susmentionnés, les États membres de la CEMAC ont choisi de coopérer. Cette coopération pouvant être administrative et/ou judiciaire selon le cas d'espèce. Toutefois, il s'avère que ces Etats comme beaucoup d'autres dans le monde se sont plus orientés vers la coopération administrative. La coopération judiciaire en matière fiscale étant mise à l'écart pour ne pas dire inopérante. Ceci nous a conduit à nous interroger sur "Le rôle de la coopération judiciaire dans la lutte contre la fraude et l'évasion fiscale en zone CEMAC". Ce thème a soulevé la question de savoir quel rôle joue la coopération judiciaire dans la lutte contre la fraude et l'évasion fiscales dans la zone CEMAC ? Pourtant, nous pensons que la coopération judiciaire dans le cadre de la lutte contre la fraude et l'évasion fiscales dans la zone CEMAC complète la coopération administrative.

Pour tenter de confirmer ou d'infirmer l'hypothèse susmentionnée, quatre méthodes ont été utilisées. A savoir, la méthode hypothético-déductive, la méthode juridique, la méthode analytique et la méthode comparative. De ces méthodes, il ressort que la coopération judiciaire est le ventre mou de la coopération en matière de lutte contre la fraude et l'évasion fiscales non seulement dans la zone CEMAC, mais aussi dans d'autres groupements sous régionaux et régionaux. A cela s'ajoute le fait que les textes majeurs régissant la coopération en matière fiscale en zone CEMAC datent de 1966, ce qui les rend difficilement efficaces contre les nouvelles formes de fraude et d'évasion fiscales. La CEMAC gagnerait donc à emboiter le pas à l'OCDE et l'UE qui ne cessent d'innover dans ce domaine à travers des conventions et des recommandations.

Mots clés : Coopération judiciaire, coopération administrative, impôt, fraude fiscale, évasion fiscale, zone CEMAC.

SUMMARY

GENERAL INTRODUCTIONSOMMARY

GENERAL INTRODUCTION 1

PART I: AN ANALYSIS OF THE ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 20

CHAPTER I: AN OVERVIEW OF TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 22

CONCLUSION OF CHAPTER I 38

CHAPTER II: THE OPERATIONAL ASPECTS OF THE COOPERATION IN PREVENTING TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 39

CONCLUSION OF CHAPTER II 58

CONCLUSION OF PART I 59

PART II: THE PROBLEMATIC INHERENT IN PREVENTING TAX EVASION AND TAX AVOIDANCE AND THE NECESSITY OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE 60

CHAPTER III: CHALLENGES FACING JUDICIAL COOPERATION IN PREVENTING TAX EVASION AND AVOIDANCE IN THE CEMAC ZONE 62

CONCLUSION OF CHAPTER III 71

CHAPTER IV: THE NEED OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE 72

CONCLUSION OF CHAPTER IV 86

CONCLUSION OF PART II 87

GENERAL CONCLUSION 87

BIBLIOGRAPHY 87

ANNEXURES 87

TABLE OF CONTENT 87

GENERAL INTRODUCTION

I- Background and justification of the study

Tax evasion and tax avoidance are challenges faced by most if not all tax administrations in the world. These practices entails the payment of less due taxes either through fraudulous means or by using the loopholes of the tax system. The international impact of tax evasion and tax avoidance is as a result of globalisation and digitalisation which have facilitated the movement of capital from one part of the world to another, the relocation of multinational companies as well as high net worth individuals^1(*) in most attractive States.While this brought great benefits, it also provided the opportunity for these potential taxpayers to look for means to hide their financial affairs from tax authorities in order to evade and/or avoid taxes. Though estimates vary, due to the inherent difficulties in calculating them, the amount of hidden wealth across the world is thought to be highly significant. This does not only reduces the revenues available to provide necessary public services, but also risks undermining the people's confidence in the tax system as it damages the reputation of international financial centers.^2(*)

As a result of the aforementioned challenges, State cooperation therefore emerged as an adequate solution in the eyes of almost all actors, whether professional, political, administrative and judicial in other to ensure that all taxpayers pay the tax that is due. It is to enhance the need for integration and the demand for justice and financial security that the Member States of the Economic and Monetary Community of Central Africa (CEMAC) had to set up mechanisms of judicial cooperation^3(*) in other to efficiently fight against tax evasion and tax avoidance.

It is worthwhile noticing that, the idea of cooperation in Africa in general and particularly in the CEMAC zone is not a new one. Indeed, before independence, colonial administrations had already set up mechanisms for collaboration between its various colonies. Subsequently, this cooperation was extended to different fields, such as the judiciary. In Central Africa for example, the first standard for judicial cooperation was bilateral. As from 1960, France had extended cooperation agreements with some of her former colonies of both French Occidental Africa and French Equatorial Africa from judicial to other domains such as tax.^4(*) The aim here was to efficiently prevent double taxing, tax evasion and tax avoidance.

The first conventions dealing with judicial cooperation between African States dates back to the twentieth century with the very first one being the «Convention Généralede Coopération en matière de justice 1966.^5(*) Furthermore, the years following independence were characterised by the multiplication of regional and sub-regional groupings and as such, more agreements were concluded within the framework of judicial cooperation. They included inter alia theagreement on judicial cooperation between the CEMAC Member States, the Convention on cooperation and mutual legal assistance between the Economic Community of Central African States (ECCAS) member States. The texts governing judicial cooperation in Central Africa relates principally to the criminal matters and accessorily to the civil, commercial, administrative and family domains. For some, judicial cooperation is limited to the criminal matters only.^6(*)

The year 2009 was a milestone in the fight against tax evasion, tax avoidance, as well as money laundering when the G20 declared that «the time of banking secrecy and tax evasion was over».^7(*) One of the major decisions taken at the summit that year was to set up of the World Forum on Transparency and Exchange of Information for Tax Purposes^8(*), in order to force countries to cooperate on issues of international taxation. The measures taken during this forum aimed at preventing taxpayers from hiding behind banking secrecy to deceive tax authorities.^9(*) Faced with the above mentioned phenomena, the Organisation for Economic Cooperation and Development (OECD) recommended through the world forum on transparency the enactment of a series of measures such as the exchange of information for tax purposes in other to prevent countries from using fraudulent manoeuvres aimed at attracting capital and investors.^10(*)

In practice, the cooperation in the fight against tax evasion and tax avoidance is characterised by the predominance of administrative cooperation over judicial cooperation. That notwithstanding, we shall try in the course of our work to bring out the role of sub regional judicial institutions in the curbing tax evasion and tax avoidance first, before delving into the role of administrative institutions in preventing the above mentioned fiscal malpractices. Our study will therefore follow this pattern by demonstrating the administrative aspects of the cooperation accessorily and principally judicial aspects thus justifying our theme: «The role of judicial cooperation in the fight against tax evasion and tax avoidance in the CEMAC zone».However, before outlining the role of the said judicial cooperation, it is worthwhile precising the methodological and theoretical framework of the study (VIII), the hypothesis (VII) which largely depends on the problem statement (VI), the literature review (V), the interest (IV), definition of terms (III) and the delimitation of the study (II).

II- Delimitation of the study

Our theme will be analysed based on a triple demarcation. Firstly, we shall begin with the geographical delimitation (A), before delving into the temporal (B) and lastly the material delimitation(C).

A- Geographical delimitation

A scientific work cannot really be done without a prior identification of the area subject to its study. The legal phenomenon at hand therefore needs to be localised in a determined space.^11(*)In circumscribing our topic, we decided to choose central Africa. This region of Africa is characterised by a plethora of regional and sub-regional organisations amongst which we have decided to select the CEMAC zone as the focus point of our study. However, for an in-depth understating of our topic, our reflexion will be extended to the role of the judicial cooperation plays in regional and sub-regional groupings out of the CEMAC zone such as ECCAS, ECOWAS and even the EU. All this being done within a specific temporal demarcation.

B- Temporal delimitation

The reality of time cannot be ignored by the law.^12(*) Our study shall cover the period 2004 till date. 2004 being the year when the CEMAC member states signed the judicial cooperation agreement.The presentation of the spatial and temporal delimitation being done, it will now be necessary to present material demarcation of our topic.

C- Material delimitation

Our work will be based on the recommendations of the OECD on the fight against tax evasion and tax avoidance and on CEMAC community laws which could be defined as all legal rules governing the relations between States engaged on the basis of one or more treaties in a process of integration.^13(*) These community laws being principally made up the institution treaties and partly derived from rules established by community institutions on one hand and on the other hand from the internal laws of CEMAC member States. It is therefore based on the above mentioned norms and recommendations that we shall bring out the role played by the various forms of cooperation (administrative and judicial) used by CEMAC States to effectively fight against tax evasion and tax avoidance. After determining the scope of our study, understanding the key terms involved therein becomes necessary. 

II- Definition of key terms

Key terms are important words found in any research work whose definition helps to get a better understanding of the topic. The key terms contained in our topic are: CEMAC zone, tax avoidance, tax evasion and judicial cooperation.

A- Judicial cooperation

The term cooperation comes from the Latin word «cooperare». It's meaning depending on the context of usage. It can be used by jurists, economists and political scientists etc.^14(*) The literal definition of cooperation is contained in a series of dictionaries. According to the Oxford Advanced Learner's dictionary 6^th edition for example, cooperation is defined as the act of doing something together or of working together towards a shared aim.The Encarta 2009 dictionary on its part refers to cooperation as mutual support for a common goal. The legal definition is more technical.

The legal definition of cooperation is contained in a series of legal dictionaries and texts. As dictionaries of legal sciences, there is the «Vocabulaire juridique» written under the supervision of Dean Gérard Cornu and the «dictionnaire de Droit international public» written under the supervision of Professor Jean Salmon.

The «Vocabulaire juridique» conceives cooperation at the international level as the joint and coordinated action by two or more States or States and private persons in a specific domain (military, scientific, technical, cultural, national or financial, fiscal, monetary, commercial, maritime, international, space and judicial), with the aim of reaching common results in one or more fields of international life.^15(*) The «dictionnaire de droit international public» cited above defines cooperation as an action to work jointly with others or coordinated action of two or more subjects with a view of achieving common objectives in a specific domain.^16(*) Manon Duthoit on his part conceives cooperation as the capacity to collaborate towards a common goal as well as the links created to achieve it.^17(*)

As per international norms amongst which we can cite the United Nations Charter, international cooperation is the resolution of international problems of an economic, social, intellectual or humanitarian nature. According to the Treaty establishing the ECCAS, cooperation indicates the elaboration of a common policy by the member States in any domain. We can therefore say that cooperation is a multifaceted support between two or more natural or corporate persons (private and or public) with the aim of achieving fixed common objectives.^18(*) The qualifying adjective judicial is often associated with cooperation.

The term judicial etymologically, comes from the Latin word judiciarius (relating to justice), derived from judicium (action of judging, court judgment). The oxford advanced learner's dictionary 6^th edition goes in the same line by qualifying judicial as something connected with a court of law, a judge or a legal judgement. For the «Petit Larousse dictionary», judicial concerns the administration of justice or what is done by judicial authorities. Furthermore, the aforementioned «Vocabulaire juridique» refers to judicial as what belongs to justice, justice rendered by the judicial courts or what is within the judicial order. The «dictionnaire de Droit international» previously mentioned designates judicial as what comes under the judicial power, relates to the power to dispense justice, relates to a pre-constituted judicial body, relates to a mission consisting in deciding in law, or which emanates from a judge.^19(*)

Judicial cooperation can therefore be understood as bringing together different jurisdictions for a common goal. It aims at harmonising different laws and procedures of the countries in other to improve access to justice and its exercise.^20(*) For Professor Mireille Delmas-Marty judicial cooperation is an inter-state device which relates to a very old process of mutual assistance between a requesting state and a requested state.^21(*)

According to the CEMAC agreement on judicial cooperation, judicial cooperation is an agreement whereby member states mutually agree to aid themselves judicially in all the procedures relating to criminal, civil, commercial, administrative, persons and the family.^22(*) In addition, the Convention on judicial cooperation and mutual assistance of ECCAS member states outlines judicial cooperation as the strengthening of cooperation in the fight against crime and delinquency in all their forms, in the prosecution of suspected offenders or people convicted in order to reduce impunity». This definition circumscribes judicial to the criminal domain.

In a nutshell, we can say that judicial cooperation is an inter-state collaboration through national jurisdictions, community and international legal orders with the common aim of combating crime in all its forms. To this end, it enables States grouped together under sub-regional organizations, in the form of Regional Economic Communities, to better combat the new threats which are increasingly invading international society.

B-Tax Evasion

A tax is a compulsory financial charge or some other type of levy imposed on a taxpayer (physical or corporate entity) by a governmental organization in order to fund government spending and various public expenditures.^23(*) Furthermore, it can also be defined as a pecuniary levy, having an obligatory character by virtue of the prerogative of public powers, on definite basis in other to ensure the funding public charges of the central State, regional and local authorities as well as public establishments.

Legally, tax was defined by the French Cour de Cassation as a levy practiced by way of authority by the State, provinces and municipalities on the incomes of persons who live in their territory or have interests therein to be assigned for public interest utility.^24(*) Some other definitions have been proposed by some of the best authors of French doctrine such as Gaston Jèze who refers to tax as a pecuniary benefit required from individuals by way of authority on final basis without any retribution in other to cover public charges.^25(*) Recovery of taxes is not an easy ball game reason being that, it is an exercise subject to a lot of resistance by taxpayers who do not hesitate to device means aimed at avoiding and evading the said taxes.

Evasion is defined by the Cambridge dictionary as the act of intentionally avoiding doing something that you have a duty or responsibility to do.^26(*)

Tax evasion is an illegal attempt to defeat the imposition of taxes by individuals, corporations, trusts, and others. Tax evasion often entails the deliberate misrepresentation of the taxpayer's affairs to the tax authorities to reduce the taxpayer's tax liability, and it includes dishonest tax reporting, such as declaring less income, profits or gains than the amounts actually earned, or overstating deductions.^27(*) The, OECD goes in the same line by referring to tax evasion as any action of the taxpayer aimed at deliberately reducing his liability tax through the intentional production of false statements, fake documents etc. which is generally punishable under criminal law.^28(*) To this effect, section M107 of the Cameroon's general tax code provides that:

«Without prejudice to the tax penalties in force, a prison term of from 1 (one) to 5 (five) years or a fine of from five hundred thousand (500,000) francs to five million (5,000,000) francs or both such fine and imprisonment shall be inflicted upon whoever...evades fraudulently or attempts to evade fraudulently the issue, payment, total or partial repayment of the taxes and duties referred to in the General Tax Code;...Conceals a part of the taxable amount;...Obtains repayment of VAT credits through fraudulent means.»^29(*)

The aforementioned fraudulent maneuvers of evading taxes are also punishable by section P-1024 and P-1025 of the Gabon's «livre des procédures fiscales du Code Général des Impôts»^30(*) respectively. It is worthwhile noticing that, the term fraude fiscale is used in French-Speaking countries to refer to the concept of tax evasion, while évasion fiscale is used to refer to the concept of tax avoidance.^31(*)

C-Tax Avoidance

Tax avoidance is the legal means used by a taxpayer to pay less tax by using the loopholes of the tax system.^32(*) In other words, it is the legal usage of the tax regime in a single territory to one's own advantage to reduce the amount of tax that is payable by means that are within the law. It is therefore technically defined as all the legal actions of the taxpayer aimed at reducing the amount of the levies which he must normally pay.^33(*) The OECD describes tax avoidance as arrangement of a taxpayer's affairs that are intended to reduce his tax liability and that although the arrangement could be strictly legal it is usually in contradiction with the intent of the law it purports to follow.It involves operating within the letter, but not the spirit, of the tax law.

Tax evasion is as old as tax, and as earlier mentioned, it has been facilitated by globalization, the increasing complexity of international finance, bank secrecy and digital advances affecting all the regions of the world without leaving out the CEMAC zone.

D-The CEMAC Zone

Having replaced the Customs and Economic Union of Central Africa (UDEAC), CEMAC is a sub-regional entity made up of six (6) countries: Cameroon, Central African Republic, Congo-Brazzaville, Chad, Gabon, and Equatorial Guinea.In reality, the constitution of this sub-regional grouping has its roots from the colonial period, a period during which the Central African Republic, Congo, Gabon and Chad constituted an integrated geo-economic entity, under the appellation of «Afrique Equatorial Française»^34(*) (AEF), created in 1910. On 29^th June 1959, these countries created the l'Union Douanière Équatoriale^35(*) (UDE).Having become autonomous and then independent by 1960, they opted for the consolidation of the links tied under the colonial regime and for the strengthening of their customs union.^36(*) In 1962, Cameroon joined the UDE. In confirmation of this regrouping process, on the 8^th of December 1964, the Heads of State of these five countries signed in Brazzaville the Treaty establishing UDEAC. This Treaty entered into force on 1^st January 1966.^37(*)

Following a disagreement concerning the distribution of the Union's receipts, in 1968, Chad withdrew from it, before reintegrating in 1984, the year in which Equatorial Guinea joined the union. After a mixed assessment of UDEAC, and according to the guideline of the Lagos Action Plan of 1988 reaffirmed in 1991, a new treaty was signed on the 16^th of March 1994 in N'djamena establishing CEMAC. It entered into force in June 1999 (Conference of Heads of State of CEMAC in Malabo).^38(*)

Taking over from UDEAC and being made up of two Unions that is, the Economic Union of Central Africa (UEAC) and the Monetary Union of Central Africa (UMAC), CEMAC's main missions and objectives are: the establishment of close ties between the peoples of the Member States so as to strengthen their geographical and human solidarity, the promotion of national markets by eliminating barriers to inter-community trade, the coordination of development programs, the harmonization of industrial projects, the development of solidarity among member countries for the benefit of disadvantaged countries and regions and the creation of a real African common market.^39(*)

From the above definition of key terms, it transpires that tax evasion and tax avoidance are important causes of illicit financial flow within the sub region thereby preventing member state from resources, which could have been used for their development as well as the realisation of the objectives and missions of CEMAC zone. The definition of the key terms being done, it will be necessary at this point to outline the interest of our work.

III- Interest of the study

The interest of our study is both practical (B) and Academic (A)

A- Academic interest

Our study on the academic domain will help to enlighten researchers and students interested in carrying on studies on judicial cooperation generally and specifically the contribution of such a cooperation to the fight against tax evasion and tax avoidance. This will help to throw more light on the effectiveness of the cooperation in the CEMAC zone before bringing out its limitations as well as possible recommendations that could be brought forth in order to address such limitations. Our work will therefore contribute to enrich doctrine in the aforementioned domain notwithstanding the fact that it has to be blended with practice for a better understanding.This didactic approach fits perfectly with the thought of Immanuel KANT according to which "Experience without theory is blind, but theory without experience is mere intellectual play".^40(*) Kwame NKRUMAH followed this line of though in his political Consciencism (1964) by holding that «theory without practice is empty, practice without theory is blind.»

B- Practical interest

This study will enable the leaders and administrations of the CEMAC sub-region to be aware of the limited role of judicial cooperation plays within the framework of the fight against tax evasion and tax avoidance. Through the recommendations and suggestions made therein, they will be able to improve and update the various texts governing the said cooperation as well as create if need be institutions in charge of supplementing judicial authorities within the framework of the fight against tax evasion and tax avoidance. The above interest could be outlined thanks to the literature review.

IV- Literature Review

Literature review can be defined as a synthesis of the research and readings that help to highlight the relevant elements of a hypothesis in the writings of one or more authors. It is use to support a theory. Therefore, we shall retain the ideas reflecting the progress of research on our theme, for a more in-depth study.

Professors Guy Isaac and Marc Blanquet in their book titled Droit général de l'Union Européenne, are of the opinion that, judicial cooperation within the European Union is principally based on dialogue between the community jurisdiction (European court of justice) and the jurisdictions of member states. That is why, «preliminary ruling provided for by Section 267 of the Treaty on the Functioning of the European Union (TFEU) is the first and principal mechanism of judicial cooperation in the Union».^41(*) These authors further present judicial aid between national jurisdictions as the second mode of judicial cooperation within the European Union.^42(*) However, it is worthwhile noticing that, these authors present the various modes of cooperation within the union without really making an appraisal.

Furthermore, Juliette HUVET, Joelle PAMART, Tania RACHO and Hélène VERBRUGGHE in their work on EUROJUST titled « La pertinence de la coopération judiciaire au sein de l'Union européenne » are of the opinion that, Judicial cooperation under EUROJUST ranges from its metamorphosis, through its relationship with other crime-fighting bodies, to the expectations since the Lisbon Treaty^43(*). However, all four authors seem to limit the notion of judicial cooperation to mutual legal assistance between courts within the European Union leaving out other aspects such as extradition, investigation of corruption, economic and financial crime as well as money laundering etc.They further argue that judicial cooperation is limited to criminal matters. This is an erroneous conception of judicial cooperation reason being that it extends to other domains such as civil, commercial, administrative and tax etc. This is evidenced by the various international agreements and treaties signed both at the bilateral and multilateral levels governing judicial cooperation in the above-mentioned domains.

Théophile NGAPA in his Masters' thesis titled La coopération judiciaire pénale dans la zone CEMAC brings out the political and judicial scope of judicial cooperation. For the author, judicial cooperation in the CEMAC zone is a problem of norms and practice. However, he limited his analysis of judicial cooperation only to criminal matters leaving out the other aspects of the cooperation. Furthermore, Martial Fabrice ETEME ONGONO, in his master thesis titledLa coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO extends the analysis of judicial cooperation at the African level notably within regional economic communities such as ECCAS and ECOWAS. But contrary to Théopile Ngapa he looks at judicial cooperation within the above mentioned regional economic communities from the judicial and institutional aspects, then proceeds to examine their similarities and differences. However, he does not propose solutions to the negative aspect that impedes judicial cooperation within ECCAS and ECOWAS.

According to Pierre BELTRAME, a tax is a "pecuniary benefit, required from natural or corporate persons, according to their contributory faculties, by way authority on a definitive basis without any specific consideration, with the view of covering public charges or for the purposes of intervention by the public authorities»^44(*) . This definition implies that taxes and other levies have as their main purpose the development of the countries in which they are levied and consequently the regional and sub-regional communities as well as international organisations to which these countries belong. To this end, the OECD has duel a lot on the need to protect these taxes through the fight against tax evasion and tax avoidance.

The OECD constitutes a pool of statistical information of primary importance. This organization drafts reports and formulates recommendations on tax matters, which are sometimes used as models for administrative assistance. These information exchange agreements are generally based on the OECD Model Tax Convention on Income and Capital (OECD-MTC). It has also be very instrumental in the fight against illegal tax heaven thus, its expertise is evident in the field of assistance. The OECD, through its Committee on Fiscal Affairs, is a veritable laboratory in the fight against international tax delinquency.Edoardo TRAVERSA and Matthieu POSSOZ have further highlighted the work of the OECD in publication titled «l'action de l'OCDE en matière de lutte contre l'évasion fiscale internationale et d'échange de renseignements: développements récents.»^45(*)These authors throw more light on the specific role of the OECD in fighting against international tax avoidance through exchange of information using its projects such as the Base Erosion and Profit Shifting projects (BEPS) and other project which complete its actions in fighting against tax avoidance such as the standard for automatic exchange of information relating to financial accounts. However, the loadable works of the OECD and that of the authors mentioned supra does take into consideration the judicial aspects of the fight against tax evasion and tax avoidance.

Bernard Castagnède in his book titled Précis de fiscalité international presents the various ways by which tax administrations can cooperate in other to recover due taxes. This cooperation can be bilateral or multilateral and it is conditioned by the presence of a tax treaty between the respective parties. Furthermore, the author also highlights some measures that could be used to fight against international tax evasion and avoidance. In so doing, the author divides them into general measures and specific measures.^46(*) Alexandre MAITROT DE LA MOTTE in his book Droit Fiscal also highlights the pertinence of tax treaties in the fighting against tax evasion and tax avoidance through the mechanism of exchange of information and assistance in the recovery of taxes.^47(*) The above mentioned authors seems to limit their analysis of the fight against tax evasion and tax avoidance to the administrative dimension of the cooperation leaving out the judicial aspect.

Félix ATECK A DJAM in his book Droit du Contentieux Fiscal Camerounais talks about the criminal repression of tax evasion. In doing that, the author brings out the material and intentional elements of the tax evasion before delving into the procedure of the fight against the said evasion^48(*). The author has not analysed tax avoidance when we know how related it is to tax avoidance. He has further not looked at how Cameroonian jurisdictions can cooperate with jurisdictions of CEMAC member's states to fight against tax evasion when we know that Cameroon economy alone constitutes more than 40% of CEMAC's GDP.

Most research works on the fight against tax evasion and tax avoidance are essentially based on administrative cooperation, which principally entails the exchange of information from one tax administration to the other. Furthermore, judicial cooperation on its part is more active in criminal matters notably via the mechanisms of rogatory commissions and extradition. The important weight of sovereignty claims, systemic corruption, banking secrecy, the timid harmonisation of sanctions among CEMAC member States as well as the rule of conditional extradition in tax matters are amongst other things factors limiting the role of judicial cooperation in preventing tax evasion and tax avoidance. This research work is therefore motivated by the necessity to throw more light on the contribution that judicial cooperation within the framework of the fight against tax evasion and avoidance could bring if it was enhanced.

V- Problem statement

The problem statement can be defined as the theoretical approach or perspective that one decides to adopt in other to deal with the problem posed by the initial or central question. It is a way of questioning the phenomena studied. It constitutes a pivotal stage of the research^49(*)or all what is built around central question and the research hypothesis. All this making it possible to treat the chosen topic.

The difficulties inherent in the fight against tax evasion, tax avoidance as well as illicit financial flow in the CEMAC sub-region warranted member States to join their efforts in other to curtail the effects of the above mentioned challenges on their economies. In so doing, judicial cooperation come up amongst other forms of cooperation used by States. This studies therefore aims at assessing the role and effectiveness of the said cooperation within a context were the fight against tax evasion and avoidance is more tilted towards administrative rather than judicial cooperation. Coupled with the fact, the literature on the judicial cooperation within the fight against tax evasion and avoidance is practically absent. The above developments therefore give rise to the following central question: Whatrole does judicial cooperation plays in the fight against tax evasion and tax avoidance in the CEMAC zone?

To the above mentioned principal question, we can add secondary questions such as:

- What are the factors limiting the role of judicial cooperation in preventing tax evasion and tax avoidance in the CEMAC sub region?

- How can judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone be enhanced?

VI- Hypothesis

Hypothesis generally designates a provisional answer to a question that has been asked, provisional because it needs to be confirmed or infirmed from research and subsequent developments.^50(*) In other words, the hypothesis is a temporal answer to the central question. After an intensive reading on the topic, it comes out that there is little or no research on judicial cooperation in fight against tax evasion and tax avoidance in the African continent as a whole and more specifically in the CEMAC sub region, most of the writings and research being centered on judicial cooperation in criminal matters. Furthermore, it is worthwhile noticing that in practice, the fight against international tax evasion and tax avoidance is oriented towards administrative rather than judicial cooperation.

This leads us to the following central hypothesis:

- Judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone supplements administrative cooperation.

The aforementioned principal hypothesis, gives rise to the following first secondary hypothesis:

- The current form of judicial cooperation in the CEMAC zone does not permits an effective fight against tax evasion and tax avoidance. This is principally due to institutional and structural deficiencies. This leads us to the following second secondary hypothesis:

- The adoption of a new approach on judicial cooperation will help to enhance its role in the fight against tax evasion and avoidance. These hypotheses will be demonstrated by a defined methodological approach.

VII- The theoretical and methodological framework of the study

The hypothesis above will be verified using specific methods (B) and theory (A).

A- The theoretical framework

The term theory comes from the Greek «theorein» which means to observe with wonder what happens in other to describe, identify and to understand it. Theory makes it possible to account for social facts from a predefined model.^51(*) For Marcel Merle, theory is a means of better apprehending reality.^52(*) Thus, it is theory that gives an explanation or an understanding to a phenomenon. Within the framework of our study, our choice will be focus on analysing liberalism and neoliberalism which is a revised version of the latter.

Liberals believe that international institutions play a key role in cooperation among states. With the correct international institutions, and increasing interdependence (including economic and cultural exchanges) States have the opportunity to reduce conflict.States interact in various ways, through economic, financial, judicial and cultural means; security tends to not be the primary goal in State-to-State interactions; and military forces are not typically used.^53(*) Liberals also argue that international diplomacy can be a very effective way to get States to interact with each other honestly and support nonviolent solutions to problems.With the proper institutions and diplomacy, Liberals believe that States can work together to maximize prosperity and minimize conflict.^54(*)

Liberalism as an international relation theory will help us to understand the how CEMAC member states can cooperate (on the judicial and administrative domains) in other to fight against tax evasion and tax avoidance in the sub region.

Neoliberalism share many assumptions as neorealism (namely, that the international system is anarchic, States are the main actors, and states rationally pursue their self-interest), but draws different conclusions from those assumptions. In contrast to neorealist scholarship which is skeptical of prospects for sustainable cooperation, neoliberalism argues that cooperation is feasible and sustainable. Neoliberals highlight the role of international institutions and regimes in facilitating cooperation between States. The main reason why international organizations facilitate cooperation is that they provide information, which reduces collective action problems among States in providing public goods and enforcing compliance.^55(*) Robert Keohane (1984) book After Hegemony used insights from the new institutional economics to argue that the international system could remain stable in the absence of a hegemon, thus rebutting hegemonic stability theory. Keohane showed that international cooperation could be sustained through repeated interactions, transparency, and monitoring.^56(*)

B- The methodological framework

Method is defined by Professor Madeleine Grawitz, as all intellectual operations by which a discipline seeks to reach the pursued and demonstrated truth.^57(*)The method can further be defined as an approach consisting in following with application a path which leads to a fixed goal while respecting the intermediate stages.^58(*) Using method is good, but using the correct one is better. Below are few selected method to be used in our study.

Ø The hypothetic and deductive method

The hypothetic and deductive method is a scientific method that consists of formulating a hypothesis in order to deduce and observable future consequences (prediction) as well as past ones, making it possible to determine its validity. In other words, it entails the formulation of a hypothesis, data collecting and testing of results obtained to refute or support the hypotheses. Within the framework of this method, a principal hypothesis alongside secondary ones shall be formulated and their validity tested in the course of our progress in this research work.

Ø The legal method

The legal method consist in searching for legal texts and confronting them with facts and law. It further entails a study and exposure of legal texts as well as different documents relating to the subject matter while looking for the applicable law.^59(*)

Within the framework of our study, this method will help us to analyse the various legal texts governing judicial cooperation in general and the fight against tax evasion and tax avoidance in particular. Here, we are referring to are both national and international legal instruments of which the interpretation will be of great help during this study.

Ø The analytical method

This method beyond the analysis of legal texts relating to judicial cooperation relating to the fight against tax fraud and evasion in the CEMAC sub-region, will enable us to identify the different challenges facing the above mentioned cooperation and eventually propose solutions aimed at solving the said challenges.

Ø The comparative approach

This approach takes into account the comparative law notably, the legislations of some communities spaces such as ECOWAS and the European Union as well as some bilateral tax conventions which could serve as model to improve community mechanisms in fighting against tax evasion and tax avoidance.

Ø The technic of date collection

The technique used at this juncture shall be documentary. Meaning that, we shall proceed to scrupulously exploit the books, notes, scientific articles and other digital files relating to our topic. After the methods, we will continue with the announcement of the plan.

Based on the above developments, the first part of our work shall be devoted to the analysis of the role of judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone. The objective here shall be to present the generalities of tax evasion and tax avoidance and the various mode of cooperation devised by CEMAC member States to solve the problem of tax evasion and tax avoidance (Part I). The second part shall be based on the problems inherent in preventing tax evasion and tax avoidance in the CEMAC zone and the necessity of adopting a new approach to enhance judicial cooperation. The aim here being the adoption of mechanisms that could help in revitalising sub regional judicial cooperation instruments within the framework of the fight against tax evasion and tax avoidance (Part II).

PART I

AN ANALYSIS OF THE ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE

The aftermath of the treaty creating the CEMAC on the 16^th of March 1994 did not only strengthen the geographical and political links that have been existing between member States but it went further to increase interaction and integration among people, companies and communities within the sub-region. This was materialised by the creation of sub regional institutions, a custom union, common market, economic and monetary union as well as the free movement of persons and their properties within the CEMAC zone. However, the aforementioned integration and interaction also created a suitable ground for financial practices detrimental to the economy such tax evasion and tax avoidance caused inter alia by systemic corruption, weak tax legislation etc. These fiscal malpractices can take different forms and have varied causes and consequences. Providing adequate solutions to the above problems therefore required the CEMAC member States to join their efforts through cooperation mechanisms, which could be analysed from the judicial and administrative perspectives.

Tax evasion and tax avoidance have specific characteristics and a define mode of operation. To better understand these challenges faced by all modern governments in general and those of the CEMEC zone in particular, a presentation of the generalities of tax evasion and tax avoidance in the sub-region (Chapter I) will be necessary. Furthermore as years went by, it is worthwhile noticing that an effective mode of cooperation was devised by CEMAC member States to solve the problem of tax evasion and tax avoidance (Chapter II)

CHAPTER I: AN OVERVIEW OF TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE

Apprehending a problem always requires a good mastery about its generalities. The aim at this point, is to gather maximum ideas on the problem posed by tax evasion and tax avoidance on the development and the economies of CEMAC member States. Following this line of thought, emphasis in this chapter shall be laid on the mechanisms of tax evasion and tax avoidance (Section II) as well as their political and legal dimensions (Section I)

SECTION I: THE POLITICAL AND LEGAL DIMENSION OF JUDICIAL COOPERATION

The framework of judicial cooperation is not to exclude or set aside the political dimension of the cooperation. This is because it turns out to be one of the most important, reason being that, it is often subject to clashes resulting from the differences in the political convictions of member states.^60(*) Furthermore, another very important consideration is the availability of a legal framework. Indeed, to fight effectively against tax evasion and tax avoidance, it is necessary to modernize the existing legal framework in order to improve cooperation. In that light, legal differences were most often singled out as one of the main reasons for blocking the implementation of judicial cooperation^61(*). Therefore,an efficient fight against tax evasion and tax avoidance will require the putting in place of adequate institutions and reforms at the political level (Paragraph I). In this light, politicians and all those in charge of drafting Community laws must provide judges, tax and police officers with a legal framework (Paragraph II) conducive for the exercise of their missions.

PARAGRAPH I: THE POLITICAL DIMENSION OF JUDICIAL COOPERATION

Tax law and tax procedures are two domains refractory to any external interference because they are marked by the seal of sovereignty. By uniting themselves under a community, States had intended to keep the essential attribute of this sovereignty. In this light, within the framework of the cooperation that characterises the relationship between CEMAC members, their political bodies have arrogated to themselves the privilege of determining the community policy. This has been done through the representative of the executive within CEMAC on one hand (A), by the council of ministers of OHADA (B) on the other hand without leaving out the considerable influence of GABAC and FATF (C).

A: The active role of the representatives of the executive within the CEMAC zone

The distribution of competences between the various institutions and bodies of CEMAC was done by the addendum to the CEMAC treaty relating to the institutional and legal system of the community. Pursuant to section 20 of this treaty,the Conference of Heads of State adopts additional acts to the Treaty (1) and the Council of Ministers as well as the Ministerial Committee adopts regulations, directives, take decisions and formulate recommendations or opinions (2).

1: The conference of Heads of State

The Conference of Heads of State of CEMAC is the supreme decision-making body of the community. According to section 3 of the addendum to the CEMAC treaty, it determines the policy of the community and directs the action of the council of ministers of UEAC and the ministerial committee of UMAC.^62(*)It is based on this prerogative that the conference of the Heads of State can legislate by way of additional acts^63(*). These acts are annexed to the treaty of the CEMAC and supplement this one without modifying it. These additional acts are binding on the institutions of the community as well as on the authorities of the Member States.

Over the past few years, it has adopted several texts aimed at strengthening and facilitating judicial cooperation between member States. For example the agreement of judicial cooperation and the agreement of extradition between the members States of CEMAC. The purpose of these two texts is to facilitate cooperation between the member States so as to deal with the growing rise in the phenomena of organized and transborder crime.In in defining the policy of judicial cooperation, some prerogatives were also attributed the Council of Ministers of UEAC and the Ministerial Committee of UMAC.

2: The Council of Ministers of UEAC and the Ministerial Committee of UMAC

The Council of Ministers of the UEAC and the Ministerial Committee of the UMAC are political bodies of CEMAC made up of the representatives of the executive power of Member States^64(*). In the exercise of their mission, these two bodies can legislate by means of regulations. These regulations are binding in their entirety and directly applicable in all States except framework regulations, which are directly applicable, only on some elements. The Council of Ministers of UEAC and the Ministerial Committee of UEAC also adopts directives, take decisions which can also have in certain circumstances a legislative value.^65(*)

Furthermore, the regulations of the Council of Ministers of the UEAC and of the Ministerial Committee of the UMAC have as object the facilitation of the mutual legal assistance between the Member States in order to fight effectively against criminality. These regulations generally aim to create or strengthen institutions involved in judicial cooperation, or even to enact certain offenses, which will then have to be integrated into the internal criminal law of Member States. This is also the case for the penal provisions enacted by the OHADA legislator.^66(*)

B: The council of ministers of OHADA

With regard to the provisions of section 6 of the OHADA treaty, the Permanent Secretariat (1) and the Council of Ministers (2) of OHADA play an important role in the definition of the Community policy thereby affecting the process of judicial cooperation between the CEMAC member states, all parties to the OHADA treaty.

1: The Permanent Secretariat: role in preparing the Uniform Acts

Uniform acts are prepared by the permanent secretariat in consultation with the governments of the States parties^67(*). It is therefore the organ in charge of preparing Uniform Acts and submitting them for adoption to the Council of Ministers. By harmonising business rules in Africa through Uniform Acts, the permanent secretariat has also created a framework for judicial cooperation in fighting against tax evasion and tax avoidance.

2: The Council of Ministers: role of deliberation and adoption

The Council of Ministers of OHADA is an institution made up of ministers in charge of justice and ministers in charge of finances of the Member States. It is this institution that has decision-making power and most of the normative power. The council of ministers adopts Uniform Acts after the deliberations of member States and the opinion of the common court of justice and arbitration.After adoption of the uniform acts by the Council of Ministers, it will enter into force in accordance with the terms of section 9 of the OHADA Treaty thereby being applicable and binding in the States parties notwithstanding any contrary provision of domestic law, prior or subsequent to it. In this light a uniform Act containing provisions aimed at fighting against tax evasion and avoidance can enter into force and be binding on individuals thanks to sole initiative of the executive power. What of the influence GABAC and FATF?

C: The influence GABAC and FATF

The Task Force on Money Laundering in Central Africa (GABAC)^68(*) and the Financial Action Task Force (FATF)^69(*) are two institutions in charge of fighting against illicit financial flow, the financing of terrorism as well as other transborder criminal activities at the international and sub-regional levels.

1: GABAC

The Task Force on Money Laundering in Central Africa (GABAC) is an organ of CEMAC. It was created in the year 2000 with the mandate to coordinate, stimulate and evaluate the actions undertaken within the member States in the context of the fight against money laundering and the financing of terrorism. GABAC also organizes technical assistance for its member states and facilitates international cooperation.^70(*)

GABAC has a permanent secretariat whose attributions are determined by a CEMAC regulation.^71(*)Among other things, the permanent secretariat of GABAC promotes cooperation between the National Financial Investigation Agencies (ANIF) and is responsible for coordinating their actions aimed at preventing money laundering and the financing of terrorism. To this end, it brings them together in plenary session at least once a year,^72(*)conducts mutual evaluations and ensures the implementation of the recommendations contained in the mutual evaluation reports as part of a monitoring and evaluation process in accordance with the FATF methodology and Regulation No. 03. /CEMAC/UMAC/CM of 2^nd October 2012, establishing a manual of procedures for mutual evaluations at GABAC.^73(*)

2: FATF

The Financial Action Task Force (FATF) is the global money laundering and terrorist financing watchdog. The inter-governmental body sets international standards that aim to prevent these illegal activities and the harm they cause to society. As a policy-making body, the FATF works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.^74(*)

With more than 200 countries and jurisdictions committed to implementing them.  The FATF has developed Recommendations, or Standards which ensure a co-ordinated global response to prevent organised crime, corruption and terrorism. They help authorities go after the money of criminals dealing in illegal drugs, human trafficking and other crimes.  The FATF also works to stop funding for weapons of mass destruction.^75(*) Furthermore, it is worthwhile noticing that, despite being political, judicial cooperation also has a legal dimension.

PARAGRAPH II: THE LEGAL DIMENSION OF JUDICIAL COOPERATION

As mentioned supra, the exigencies of globalisation have required CEMAC members States to adapt their disparate national rules, which were gradually replaced via adjustments, a growing institutionalization and by supranational rules aimed at reinforcing community governance. These legal differences between the laws of member States have always been identified as one of the main obstacles to the practice of judicial cooperation in fighting and tax evasion and tax avoidance in the CEMAC zone. The harmonisation of tax legislation in the CEMAC sub region will prevent one member state to become a tax heaven for others.^76(*) Though not expressly mentioned in the CEMAC treaty, it is worthwhile noticing that, the legal dimension of judicial cooperation is characterised by community (A) and OHADA rules (B). Added to these rules it will be worthwhile looking at the constitutive elements of tax evasion and avoidance(C).

A: The rules adopted by the CEMAC legislator

In order to secure the sub region economically and politically, member states have resolutely committed themselves to the fight against the most serious forms of organized crime such as terrorism and money laundry. They thus adopted several conventions containing both preventive and repressive measures. These conventions contained for some of them real penal incriminations. The erection of these behaviours into crimes by Community law lead us to the communitarisation legal rules whose implementation has been facilitated by the Judicial Cooperation Agreement between CEMAC member States. Some of these community rules inter alia include; Regulation N° 08/05-UEAC-057-CM-13 of 7^th February 2005 adopting the convention relating to the fight against terrorism in Central Africa, Regulation N°01/03-CEMAC-UMAC of 4^th April 2003 on the prevention and repression of money laundering and the financing of terrorist in Central Africa, Regulation N° 02/02/CEMAC/UMAC/CM of 14^th April 2002 on the organization and functioning of the action group against money laundering in Central Africa, Regulation N° 4/CEMAC-069-CM-04 of 21th July 2000 adopting the cooperation agreement in matters of criminal police between the member States of Central Africa.^77(*)

The harmonization of the above-mentioned incriminations have enhanced of judicial cooperation. First of all, because of the seriousness of some of these offences and secondly because it has simplified the cooperation mechanisms between the various authorities responsible for its implementation thereby making it effective.

B: The harmonisation of sanctions provided by OHADA

As we have already had the opportunity to underline, States have always been reluctant to transfer the right to punish to an external authority reason being that it is an essential attribute of their sovereignty. However, in other to ensure a good business climate and attract foreign investors to Africa, section 5 of the OHADA Treaty has made it possible for Uniform Acts to provide, alongside civil and economic sanctions, criminal charges even if it leaves it up to the Member States to determine the appropriate sanctions. It is on the basis of this aforementioned section 5 that several incriminations can be detected in the eight Uniform Acts already in force in OHADA. The abundance of material does not allow us to make an overall study of these incriminations contained in the Uniform Acts. What must be retained at this juncture is that the harmonization of incriminations by the OHADA legislator has proven to be of considerable importance in the implementation of judicial cooperation between Member States.^78(*) As these incriminations are imposed on the member states including those of CEMAC which are all parties to the OHADA treaty. Added to the CEMAC and OHADA rules are the constitutive elements of tax evasion and avoidance.

C: The constitutive elements of tax evasion and tax avoidance

These constitutive elements can be legal, intentional and material as far as tax evasion is concerned (1) and it they can further include the manipulation of tax law in other to exploit its loopholes concerning tax avoidance (2).

1: tax evasion

Tax evasion has a legal, material and intentional element.

a- the legal element

The definition of the tax base and the collection of the various taxes being an aspect of sovereignty, each Member State of CEMAC has its own tax legislation. Though this legislation is not harmonised, it however remains that, tax evasion is punished and denounced by all of them. This is true when looking at section M107 of the Cameroon's general tax code andsection P-1024 and P-1025 of the Gabon's «livre des procédures fiscales du Code Général des Impôts». The same logic prevails even out of the sub region as seen in article 1741 of the French general tax code and article 186 of the Swiss direct federal tax book (LIFD).

b- the material element

The material element consists in increasing the costs and/or reducing the company's income. This element must however be demonstrated by the tax authorities in the event of a control.^79(*)On the Material level, tax evasion can generally be divided into two categories. Firstly, the omission or express refusal to make the declarations within the prescribed time limits. This form of evasion results from simple abstention. Secondly, the concealment of part or all of the sums subject to the tax referred; this concealment can be done through the production fake documents or simply the refusal to pay due taxes.^80(*)

c- the intentional element

This is the most important element because it is the most difficult to prove. The offense is constituted when the taxpayer who is accused of fraud has done so deliberately. At this level, it is necessary to make the difference between the voluntary act, therefore fraudulent, and the involuntary act. It is then a question of distinguishing, in the application of the tax law, the good or the bad faith of the taxpayer, the good faith being the involuntary error (we can also talk about simple error) and the bad faith being the fraudulent act.^81(*) This situation is different from what obtains in tax avoidance.

2: tax avoidance

Tax avoidance is the obvious manifestation of the "manipulation" of the tax law by the taxpayer. The taxpayer manages to avoid the tax, that is to say, he voluntarily reduces the taxable base (either by increasing expenditure or by decreasing revenue) without violating the tax law. For this, he will carefully read the tax legislation then take advantage of certain of its loopholes or by using, the many possibilities offered to him at the sub-regional or international level. We can simply say that in tax avoidance, there no violation of the tax law by the taxpayer.^82(*)

Even though these tax evasion and tax avoidance appear to be different, it leads to the same results. This is the reason why some refuse to make the distinction between the two and believe that it is better to correct the legal vacuum by revising the existing tax law, though this is easier said than done, especially when the we are faced with their mechanisms of operation.

SECTION II: THE MECHANISMS OF TAX EVASION AND TAX AVOIDANCE

Pandora Papers, Panama Papers, Paradise Papers, Mauritius Leaks, Swiss Leaks, GAFA tax... Very often, the subjects of tax evasion and tax avoidance make news headlines. Scandal after scandal, billions are hidden from tax authorities to the greatest disadvantage of public treasury^83(*). However, it is possible to stop this downward spiral. This can be done by first understanding the different forms of tax evasion and tax avoidance (paragraph I) before delving into their cause and consequences (paragraph II).

PARAGRAPH I: FORMS OF TAX EVASION AND AVOIDANCE

Tax evasion (A) and avoidance (B) can take different forms depending on the circumstances as well as the socioeconomic and political context.

A: Forms of tax evasion

These forms could be analysed at the national (1) and at the international (2) levels.

1: at the national level

Tax evasion at the national level is characterised by voluntary omission to declare, voluntary amount of the amount subject to tax, making fictitious or inaccurate entries in the accounting books, opposition to the action of the tax administration.

a- voluntary omission to declare

When the failure to report is voluntary, this will necessarily imply bad faith on the part of the taxpayer. This bad faith must take place within the period prescribed by law for the declaration for it to be considered as a voluntary omission.^84(*)Among the taxpayer's obligations, there is that of declaring taxes to the competent tax authorities while respecting the legal deadlines. The method and time of declaration will depend on the regime^85(*) under which the taxpayer is placed. The taxpayer further has the obligation to pay the declared taxes whether he has made a gain or a loss.

b- Voluntary concealment of amounts subject to tax

This is when the taxpayer does not declare all income or declares nothing at all. This form of tax evasion is not only common to CEMAC member States but to the majority of the French-speaking countries whose taxation system is declarative. This concealment is favoured by the insufficient means put at the disposal of tax agents to carry out their control.^86(*)

c- Making fictitious or inaccurate entries in the accounting books

The taxpayer has the obligation to keep the accounting books according to the prescriptions of the tax law, mainly the journal, the balance, the balance sheet, the result formation table, the economic, fiscal and financial table, as well as the supporting documents in support of this accounting. The material element of this offense is constituted by the action of making or causing to be made inaccurate or fictitious entries in the journal and the inventory book provided for in the tax Code or in the documents which take their place. The voluntary nature of the breach is expressly required by section 227 of the French tax procedure book. The deliberate making of fictitious or inaccurate entries in the accounting books is done with the aim of understating receipts or income^87(*).

d- Issuance of false invoices

Anyone who intentionally provides false data or who provides erroneous information and who attaches falsified documents commits an offense of tax evasion. At this juncture, the taxpayer organises his insolvency with the aim of showing the tax authorities that the taxable matter no longer exists following bad business or the bankruptcy of his company or enterprise.

e- Opposition to the action of the Tax Administration

In some countries, it is an offense to oppose the action of the tax administration to collect due taxes; this constitutes fraudulent intent. The action of the Tax Administration can be either the control or the request for documents from the taxpayer.

2: at the international level

At the international level, tax evasion can take different forms as soon below.

a- The overstatement of the prices of goods purchase abroad

The fraud here is takes place when goods are imported through an intermediary company established in a tax haven at overstated prices.^88(*)

b- understatement of export selling prices

There are several manoeuvres to reduce the price from an international point of view. The following example may well illustrate this: an exporter from country A sells goods to an importer from country B, then following a devaluation (indexation clause) he issues a debit note representing an additional price (of the initial selling price). The latter is not accounted but paid in the accounts of the importers' bank found in a tax haven. The importer's bank in the tax haven will then loan part of this amount to the managers of the company found country A. The balance is used for placement or investment in favour of the managers of the company found country A.^89(*)

c- The transfer of profits by overstating or understating the turnover or expenses

This makes it possible to reduce the taxable profit of an international group by artificially increasing or reducing expenses or turnover, that is to say, by direct relations between varieties of the same group. Indeed, in a large group, the subsidiaries have ties of dependence and movements of goods and merchandise are numerous. Profit shifting may occur through the sale of assets by an entity located in a high-tax country to a subsidiary located in a tax haven at a low price, followed by a sale by the subsidiary at a high price. A significant profit will thus be localized in the tax haven. Profit shifting is also achieved by artificially reducing or increasing a company's expenses such as service fees, interest and royalties.^90(*)

d- The Remuneration for fictitious services

Fraud can be detected on the occasion of the payment of a fee resulting from a study carried out for the benefit of a natural or corporate person. It can also take place when a royalty is paid for the use of a trademark.

In the first hypothesis, we can cite as example a company that pays at a high price for a study or an expertise to be conducted by a research company located in a tax haven (the more you have charges, the less you pay taxes).

In the second hypothesis, we can cite the fictitious concession of commercial mark. In other words, company A transfers ownership of a mark to a foreign company under irregular considerations.^91(*) Haven examined the different forms of tax evasion at the national and international level, it will now be proper to look at the forms of tax avoidance.

B: forms of tax avoidance

Examining the forms of tax avoidance will warrant us to look at tax heavens as the principal method of avoiding tax, before delving into the other forms.

1- Tax heavens

A tax heaven is a jurisdiction with a very low rate of taxation for foreign investors. In other words, it is a country that offers foreign businesses and individuals minimal or no tax liability for their bank deposits in a politically and economically stable environment^92(*). Tax havens have are primordial in the process of tax avoidance. Without them, big companies and wealthy individuals would not be able to avoid taxes. This is because of their role and impacts.

a- The role of tax heavens in tax avoidance

As earlier mentioned, a tax haven is a country or territory that has deliberately adopted tax laws and policies allowing individuals or companies to minimize their taxes in the countries where they are actually active. Tax havens have the following characteristics:

- They provide tax benefits to individuals or companies, without requiring a real activity on site.

- A very low or even zero tax rate.

- Lack of transparency: these countries have adopted laws or administrative practices that prevent the automatic exchange of information, particularly in the context of tax procedures with other States.

- Legal, administrative or judicial provisions that ensure the secrecy of the identity of the real holders of companies, trusts, etc. or that of the owners of assets or rights.^93(*)

b-The impacts of tax heavens

By depriving States of essential financial resources to finance the fight against poverty and inequality, tax avoidance has a considerable human cost. By definition, tax avoidance is an opaque practice, quantifying its amount is a complex exercise and there are therefore several estimates. In November 2020, researchers from the international Tax Justice network calculated that countries globally lose a total of more than $427 billion in taxes each year due to corporate and personal tax avoidance.^94(*)

If tax avoidance is rampant all over the planet, it is developing countries that are proportionally the most impacted by it. With globalization, developing countries concluded bilateral tax treaties with rich countries in order to attract foreign direct investment. But due to the lack of international rules that gave room to unfair negotiations and the fact that multinational companies have enough means to recruit experts that will examine the tax systems of developing countries in which they carry out their activities in other to device legit mechanisms of avoiding taxes. This made it difficult for these countries to collect taxes from these companies or in taxing their activities. This further creates difficulties given that, most of the developing countries hosting these multinationals are heavily indebted and have very significant needs in terms of financing their public health or education services for, every franc avoided as tax could be invested to improve the quality of life of thousands of people.^95(*)

2-Other forms of tax avoidance

The list below presents known examples of tax evasion:

- Keeping money out of the banking circuit, in cash.

- Gold bullion, leaving no trace of transaction.

- Life insurance, bank accounts and investments held in the name of the insurance company, which frees the contracting party from the obligation to declare the account, while allowing him to control the assets and investments.

- The bank account in Switzerland, now less attractive since this country aligned itself with OECD standards, with banks in Switzerland applying the rule of knowing the ultimate beneficial owner.

- The bank account in Guatemala, where the obligation for a bank to know the final beneficial owner does not exist, thus allowing a lawyer to act as nominee for a client via an offshore company.

- The trust (trust) works according to the principle of the screen, via a donation from a constituent (settlor) who gets rid of his fortune for the benefit of an agent (trustee) who manages it for the beneficiaries, for example charities. All the work of the advisers who make this arrangement consists in complicating and opacifying the scheme so that in the end the agent is no more than a nominee and constituting him the real beneficiary.^96(*)

- Cryptocurrency: digital and decentralized currency of the banking system that operates through a peer-to-peer network^97(*)(an interconnected network)

PARAGRAPH II: CAUSES AND CONSEQUENCES OF TAX EVASION AND AVOIDANCE

The causes (A) and consequences (B) of tax evasion and tax avoidance are many and extremely varied. It would be risky to venture to cite them or to determine which of them is the most practiced or the most determining. However, we can cite a plethora of them being exhaustive.

A: causes of tax evasion and tax avoidance

As mentioned supra, tax evasion and tax avoidance have diverse cause.

1- Causes of tax evasion

Tax evasion is caused by a plethora of factors as seen below.

a- The inadequacy of the tax system

It is often that recognized the tax system of CEMAC members like that of France remains very unequal. It should also be noted that to the inequalities established by the tax law are added the inequalities resulting from the conditions of application of this tax law. Some taxes can be more easily defrauded than others and the means of prevention and control are deliberately not put in place.^98(*)

b- The economic hardship

Majority of taxpayers in developing countries live in poverty. The scarcity of revenues makes it difficult for the inhabitants of the CEMAC zone to pay taxes. Reason why they chose tax evasion.

c- Mentalities

Taxpayers do not have what is called "tax culture". Rare are those who actually pay the tax except certain professional categories such as employees, commercial companies, etc. This is reflected by the absence of the exemplary political and administrative authorities in tax matters by granting themselves undue exonerations and exemptions.

d- Tax pressure

It is often said that «too much taxes kills tax»^99(*). Potential tax evaders would cheat even more if the weight of their taxes is unbearable for them. As a result of this, excessive tax pressure encourages fraudulent behaviours. Some of the fraudsters even consider this form of incivility to be legitimate when they calculate what they taxes imposed on them by the State each year. This position was comforted by ADAM SMITH when he said that "there is no doubt that an exorbitant tax on the order of one-half or even one-fifth of the wealth of the nation would justify, like any flagrant abuse of power, resistance from the people».^100(*) 

e- The quest for easy gain

Some traders (physical or corporate persons) venture in tax evasion so that part of their profits should not be taxed (by increasing fees, hiding receipts, etc.) coupled to the fact that necessary measures for their control are deliberately not put in place. This is also true foro many liberal professions which have numerous possibilities of exempting part of their activities from taxation.

f- Denial of constraints

It is in the sense of the obligatory or binding character of the tax. For Nozick, who refers explicitly to KANT, it is wrong to force an individual to pay a tax to finance goods or services to which he has not consented. It is therefore legitimate to resist taxation through tax evasion, tax avoidance or tax revolt. For him, tax evasion, tax competition, tax avoidance, tax revolts are good because they force governments to choose means that respect individual rights to achieve their ends. Added to the causes of tax evasion, they are also factors responsible for tax avoidance.

2- Causes of tax avoidance

The principal cause of tax avoidance high tax pressure or high tax rate. In France, income tax is calculated according to a progressive scale. Thus, a taxpayer's income can be taxed up to 45% when it exceeds 156,244 euros.On the contrary, income tax is not taxed in Dubai, in Bulgaria income tax rate is 10% and 15% on average in Mauritius.^101(*)

Secondly, weak tax system can be also considered as a cause of tax avoidance given that by its practice tax avoidance entail using the loopholes of the tax system to pay less tax. A weak tax system will therefore favour or create a suitable ground for people and business to avoid taxes thereby negatively impacting the revenues collected by the tax administration.

B: consequences of tax evasion and tax avoidance

The consequences of tax evasion (1) and tax avoidance (2) are numerous and are felt by countries in the short, medium and long run.

1- Consequences of tax evasion

The consequences of tax evasion can be national and international

a- On the national plan

- Decrease in government revenue

Indeed, the government suffers huge revenue losses due to tax evasion. These losses directly affect its level of indebtedness and influence it's ability to provide services and fund programs that meet the needs of our ever-changing society. In addition, the State to satisfy its regalian missions which is that of providing of satisfying general interest needs financial resources and tax evasion therefore acts like a barrier to the realisation of this mission. It compromises the budgetary balance of many States by reducing collective expenditure.^102(*)

- Threat of social justice

There are citizens who pay for others. Indeed, law-abiding individuals see their tax burden unfairly increased because they have to compensate for those who engage in fraud. This has the consequence of the breach of the respect of the principle of equality of all before the tax.^103(*)

- Undermines free competition

In a market economy, tax evasion undermines free competition. Indeed, there are companies that face unfair competition because they are law-abiding and aware of their social responsibilities. In addition, tax evasion distorts the structures of certain cooperate or physical persons just as it contributes to the survival of marginal businesses.^104(*)

b- On the international plan

In this case, tax evasion can:

- Increase animosity between, the States benefiting from the fraud on one hand and, on the other hand, those which bear the brunt of this phenomenon.

- Tax evasion can be at the origin of socio-political conflicts between several States.

- Allows the expansion of international economic structures.

2- Consequences of tax avoidance

By depriving States of essential financial resources to finance the fight against poverty and inequality, tax avoidance has a considerable human cost. By definition and because tax avoidance is an opaque practice, quantifying its amount is a complex exercise and there are therefore several estimates. In November 2020, researchers from the international Tax Justice network calculated that countries globally lose a total of more than $427 billion in taxes each year due to corporate and personal tax avoidance.^105(*)

a- Impact on financial resources

Concretely, taxes on corporate profits generate revenue for national budgets which, when invested in public services such as education, health, social protection, reduce inequalities. When large corporations and large fortunes do not pay their fair share of taxes, they deprive states of considerable financial resources.

b- Impacts on developing countries

Iftax voidance is rampant all over the world, it is developing countries that are proportionally the most impacted by it. With globalization, developing countries are concluding bilateral tax treaties with rich countries in order to attract foreign investment and multinational companies to their country. But due to the lack of international rules and due to unfair negotiations, developing countries are often forced to give up their rights to tax the activity of companies operating on their soil and to collect the revenue from these taxes. However, these countries, most of which are already heavily indebted, have very significant needs in terms of financing their public health or education services. Every penny diverted could be invested to improve the quality of life of thousands of people.

CONCLUSION OF CHAPTER I

Analysing how judicial cooperation can contribute to fight against tax evasion and tax avoidance in the CEMAC zone warranted a study of its political and legal dimension. The aim here was to better understand the forms, causes and consequences of the above mention tax malpractices. This state of things actually justify why the community legislator as well as the political actors of the sub region had to put in place strategies aimed at boosting administrative collaboration between the tax authorities of members states on one hand and on the other hand adopting an community norms defining the framework of judicial cooperation among member states.

CHAPTER II: THE OPERATIONAL ASPECTS OF THE COOPERATION IN PREVENTING TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE

The member states of the CEMAC zone opted to cooperate in other to efficiently fight against tax evasion and tax avoidance. This cooperation was facilitated by the adoption of an institutional and legal framework whose aim is to facilitate the work of the tax administrations and tax agents as well as the competent judicial authorities. In this light, cooperation among member states could depending on the circumstances be administrative (Section II) characterised by the exchange of information or judicial via the implementation of a series of mechanisms provided for by the community legislator (Section I).

SECTION I: THE JUDICIAL ASPECTS OF THE COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE

The community legislator has been very instrumental in setting pace of judicial cooperation within the CEMAC sub region, the foundation of this cooperation being the CEMAC agreement on judicial cooperation that was adopted by member States on the 28^th January 2004 as well as other related community legal instruments^106(*). The aim at this juncture, was for member states to have a common vision in fighting unorthodox practices amongst which we can site terrorism, tax evasion and money laundry. Added to this, was the desire to strengthen their tax systems so as to prevent tax avoidance. It is therefore within the framework of realising this common objective that the community legislator instituted community tax norms (Paragraph I) thereby rendering judicial cooperation practical (Paragraph II).

PARAGRAPH I: THE INSTITUTION OF COMMUNITY TAX NORMS AND THE MATERIALISATION OF THE COOPERATION

The institution of community tax norms in the CEMAC zone (A) is based on a very simple idea: as formulated by Hans KELSEN who opined that, the legal order is not a made up of legal norms all placed at the same level, but it comprises of norms superimposed as a pyramid^107(*). Once this hierarchy is respected, judicial cooperation can be easily materialised (B).

A: The foundation of community tax norms

By deciding to be parties to the treaty creating CEMAC and UEAC the Member States also consented to surrender their sovereignty on matters that have been considered as Community maters including tax matters. In particular, they undertook to respect the requirements of the various texts relating thereto. The idea behind the elevation of community rules over national rules was to create a suitable framework for a concerted and harmonised fight against tax evasion, tax avoidance as well as other illicit activities. This desired supremacy of Community tax law is often materialised by the immediacy of its directives (1) and by its primacy (2).

1: The immediacy of community directives

The immediate applicability of Community law implies that the Community norms automatically integrates into the legal order of the Member States, and produces legal effects on their domestic legal order without resorting to a national standard of introduction, that is to say without being previously being transposed through legislative mechanisms. The direct applicability or the direct effect of Community law further implies that, they creates rights and obligations to the benefit of individuals who may under certain conditions invoke them in support of an appeal before the national judge.^108(*)

Furthermore, the immediacy of Community law concerns both original and derived acts. Original acts implies the prohibition made to the national judge to invoke the absence of fulfilment of reception formalities of international treaties provided for in his constitution to reject the application of the said treaties.^109(*) The same rule applies for derived acts. Though derived acts, just like directives require transposition into the internal legal order before they can become applicable. It is however important to note that, the emphasize on transposition is not a reception measure, but the simple "internal implementation of standards whose content have been fundamentally defined by the Community institutions".^110(*) In addition, directives have the vocation of being of immediate application and integration into the legal order of CEMAC Member States by their sole publication into the Official Journal of the Community.^111(*)

2: The principle of the primacy of the community tax norm

According to European Community law, the principle of primacy of community norm was first enunciated by the European Court of Justice. The objective pursued was to allow the uniform application of Community law in the different countries of the EU. For Jean Michel COMMUNIER, this primacy is a concrete necessity reason being that, "for the European Union to fulfill its function defined in the Treaty instituting the European Economic Community, Community laws must be integrated into the legal order without being defeated by national laws".^112(*)In one of its judgments, the ECJ held that "derived from an autonomous source, the law arising from the treaty could not...because of its specific original nature, be judicially opposed by a text, whatever it is, without losing its Community character and without the base of the Community itself being called into question».^113(*) In the Simmenthal judgment of 1978, the Court was more precise. It stated that, by virtue of the primacy of Community law, the provisions of the Treaty as well as those of Community acts of direct applicability have the effect in their relationship with the internal laws of the Member States, to automatically render inapplicable, any provision contrary to existing community legislation. It further highlighted the fact that, these provisions are intended to prevent the valid formation of new national legislative acts incompatible with Community standards.^114(*)This supremacy of community norms has contributed enormously to the materialisation of the cooperation at the community level.

B: The material dimension of the judicial cooperation

In its current form, judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone can be considered without fear of contradiction as the «soft spot» of the different modes of cooperation used by member states to solve the problem. This position also applies to other regional and sub-regional organisation within and outside the African Continent all of them having a preference for administrative rather than judicial cooperation. However, though nearly inexistent, the enhancement of judicial cooperation could act as a supplement to administrative cooperation thereby by rendering it more efficient. This enhancement could be materialised by the harmonisation of taxes (1), effective tax treaties (2) and the community monitoring of transfer pricing(3).

1: the harmonisation of taxes

The legal base of the harmonization of tax rules in the CEMAC zone is found in the UEAC convention letter adopted on the 5th July 1996. This text thus poses the milestones of the economic development in the sub region through the harmonization of the national laws of Member States, with the objective creating a common market, with emphasis on some priority sectors. The harmonisation of tax legislations traditionally takes place by means of community directives, which are considered as the best in terms of tax harmonisation. The effective harmonization of internal taxation rules in the CEMAC zone has been possible thanks to the adoption of several directives thereby reducing tax disparities and even to establishing common tax systems. The harmonisation is in relation to both direct and indirect taxes.

a: the harmonisation of indirect taxes

Indirect taxes are general imposed on suppliers or manufacturers who pass it on to the final consumer. Some examples of then include Value added Tax (VAT), Excise duties and registration fees.

i: la directive Value Added Tax and excise duties

VAT and excise duties are governed at the community level by Directive n° 07/11-UEAC-028-CM-22 of 19^th December 2011.

- the harmonisation of VAT rate

Value-added tax (VAT) is a type of indirect tax levied on goods and services for value added at every stage of production or distribution cycle, starting from raw materials and going all the way to the final retail purchase. In other words, it is an indirect tax levied on final consumers of goods and services. The tax rate on its part is the fraction or percentage of levy that the public authorities intend to operate on the taxpayer's income.

With regard to the general VAT rate, Community text leaves it up to the States to determine it. However, this determination takes place within a range of between 15 to 19%. As a result, the minimum VAT rate applicable in CEMAC is 15% and the maximum rate is 19%. National tax legislation of member states seems to have complied to it. This rate is 19% in Central Africa Republic, 18% in Congo, Gabon and Chad and 17.5% in Cameroon. However, the application of this rate in Cameroon is increased by the application of the Council additional tax representing 10% of the general rate. This leads to an effective levy of 19.25% on the added value of the company, a levy above the maximum rate of 19% authorized by the CEMAC directive. The application of the overall rate of 19.25% in force in Cameroon clearly seems to represent a violation of this the CEMAC directive given that, 19.25% is numerically above 19%. Eliminating these distortions susceptible to cause tax evasion and tax avoidance with regard to VAT and excise duties, is essential and this can only be done through harmonization of the aforementioned.

- the harmonisation of excise duties

Excise duty is a tax levied on the consumption of goods that are either luxurious or harmful to human health. Contrary to what has been observed in the case of VAT, the violation of Community law in the field of excise duty does not consist of a transgression of the range of rates provided for by the Community legislator. In application of the directive, the rate applicable to excise duty is set freely by each Member State within a range ranging from 0 to 25%. The problem arises however from the introduction in the legislation, since the Cameroonian finance law for the financial year 2006, of a reduced rate of excise duty standing at 12.5%. It should be noted that this new rate is applicable only to tourist vehicles having a combustion engine with a cylinder capacity greater than or equal to 2000 cm3, all other goods remaining taxed at the normal rate of 25%.

A priori, the adoption of a reduced rate of 12.5% appears to be in conformity with the directive insofar as it falls within the range set by the latter. In reality, the directive does not give States the possibility of setting a plurality of rates within the range set by it. The rate applicable to the excise duty provided for by of section 57 of the directive clearly indicates that, le community legislator intended to make excise duty a levy having a single rate. From the above analysis, it is crystal clear that the Cameroonian legislator no longer had to create an additional rate, even if it was reduced. It follows that he went beyond the directive, thus marking a positive violation of the latter.

Alongside the question of the VAT rate and the excise duties, it seems appropriate to address to take a look at registration fees.

ii: the harmonisation of registration fees

The word "registration" refers to both a formality and a tax.The formality may apply either to deeds or to transfers not resulting from a deed. The formalities are usually carried out by a public officer on the an act or legal fact, notably during the transfer of real or personal property, death, legal proceeding, etc. Registration fees are therefore taxes or charges levied on the occasion of this formality.The registration formality is compulsory for certain acts, but can also be voluntary, in order to authenticate an act. Registration duty is the fixed or proportional duty levied by the State when a deed or fact is registered.^115(*)

At the community level, the harmonisation of registration fees is governed by Act n°10/88-UDEAC-257 of 7 December 1988 on the Harmonisation of Registration, Stamp and Guardianship Fees in UDEAC. The aim here was to avoid too much competition between States in the field of registration, this harmonised legislation sets the general framework for the taxation of registration in the States by prescribing the scope of application, the methods of collection and the penalties incurred.^116(*)

It follows that the most important legal acts or transactions must be registered by the mere fact of their establishment or completion. A distinction is made between acts to be registered on the basis of their form and acts to be registered on the basis of their content. The first category includes the deeds of court registrars, bailiffs, notaries and auctioneers. Instruments to be registered by virtue of their content include synallagmatic agreements, wills and authentic or private deeds. It should be noted that the harmonised legislation also provides for the possibility of voluntarily submitting deeds that do not fall into either of these two different categories to the registration formality. These include, in particular, deeds of transfer of company shares, the acquisition and transfer of securities. Registration fees are classified according to their quota (amount of a share). Community law provides for fixed, proportional, progressive or regressive registration duties depending on the nature of the acts.^117(*)

The harmonisation of the various indirect taxes mentioned supra have contributed in eliminating tax barriers between members states thereby facilitation the fight against tax evasion and tax avoidance. This harmonisation has also be extended to direct taxes.

b: the harmonisation of direct taxes

Direct tax can be understood as all taxes directly affecting the income and wealth of natural and corporate persons. In the CEMAC zone, they have been subject to harmonisation notably corporate and personal income tax.

i: the directive on corporate tax

Corporate income tax was established after personal income tax. It was first introduced in France in 1948 before being extended to all European countries. In Central Africa, corporate tax was introduced by Act n°3/72-153-UDEAC of 22 December 1972, subsequently revised by Directive n°02/01/UDEAC/O50-CM-06 of 3 August 2001, which defines the scope of application, taxable profits and taxation methods.^118(*)

For the application of corporate tax, the said directive sets out criteria relating to the form, the activity, or the option subscribed by the company. Thus, it appears from Article 1 that capital companies, public limited companies and limited liability companies, cooperative societies, limited partnerships and joint ventures are subject to corporation tax by virtue of their form. Paragraph 1 of the same provision specifies that corporate persons engaged in profit-making activities or transactions or who have opted for this system and de facto companies are taxable by virtue of their activities. Furthermore, Article 1(3) provides for the taxation of partnerships (general partnerships and limited partnerships), joint ventures, financial syndicates and civil partnerships on an optional basis. It should be noted that, an exemption is provided for the profits of investment companies, economic interest groupings and professional non-trading companies and that professional non-trading companies are subject to the tax regime for partnerships.^119(*)

It is important to note that the corporate tax directive defines taxable profit as the net profit determined after the results of all operations carried out during the period serving as a basis for the calculation of tax. In other words, the net taxable profit is the difference between the income received and the expenses incurred by the company. Deductible expenses include overheads , financial charges , losses as such, depreciation and provisions , the definitions and regimes of which are specified in the Directive. With regard to taxation, it can be noted that corporation tax is based on the profits obtained during the financial year defined by the finance law of each Member State. However, companies are allowed to present consolidated balance sheets for eighteen (18) months when they have started their activities six (06) months after the compulsory closing date of the balance sheets.^120(*)

The rate of cooperate tax varies from one country to another. Any fraction of the taxable profit lower than one thousand francs is neglected. The tax rate is set within a range of between 25 and 40% by the finance law of each Member State of the Community.^121(*) The CEMAC conception of transparency through the harmonization of tax rules therefore seems interesting for it doesn't only facilitates the recovery of corporate taxes but it also renders the business climate in the sub region more attractive.

ii: the directive on personal income tax

Income tax has an eminently political dimension because it weighs mainly on the middle and upper classes while yielding relatively few resources for the State. Moreover, it directly affects household income by affecting their purchasing power and standard of living. Thus, although it represents a small fraction of public revenue in the CEMAC zone, income tax is the most psychologically important tax insofar as the taxpayer feels the tax levy directly on his or her income, without it being reflected in the price of products or appearing to be borne fictitiously by companies. In order to harmonise legislation in this area, Act No. 3/77-UDEAC-177 of 21^st December 1977 on the institution of personal income tax was adopted and replaced by Directive No. 01/04-UEAC-177 of 30^st July 2004 (known as the Income tax Directive), according to which income tax applies to the overall net income of individuals, which corresponds to the sum of all income in all categories. It also has the characteristic of being annual and declarative.^122(*)

It should be noted that in order to guide savings, the taxation of income from movable capital has also been harmonised through this same directive, which groups them into two categories: fixed income investment products and variable income investment products. Fixed-income investment products" are defined as loans with a remuneration which in principle takes the form of interest^123(*). The income tax directive distinguishes between income from bonds, income from debt-claims, deposits, guarantees and current accounts, and interest from savings bonds. When received by individuals, this income is included in the taxable base41. It should be noted that income on income from movable capital benefits in each State from a flat-rate tax levied at source at a rate generally fixed at 15% after an allowance which greatly reduces the tax base. Article 50 of the Directive provides for exemptions for interest on savings accounts and interest on savings bonds within the limits of the thresholds set by each State.

Finally, as with fixed income investment products, this Directive defines the regime applicable to variable income investment products as distributions from companies to their shareholders or members. This category includes share dividends, directors' fees paid to directors of public limited companies and distributions following the dissolution of companies. The income tax directive reserves to this income a tax regime identical to that applicable to fixed income investment products.^124(*) The harmonisation of the above direct and indirect taxes has facilitated the implementation of tax treaties.

2: tax treaties

International tax treaties are international treaties between two states concerning all or part of their tax relations. As they are binding on public finances, their ratification or approval must be authorised by parliament. According to section 45 of the Cameroonian constitution, "duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implement the said treaty or agreement". International tax treaties are an integral part of the legislation of the signatory states and prevail in case of conflict of tax sovereignty. This is the principle of subsidiarity. This principle derives from the fact that Cameroon and the other member states of the CEMAC zone are signatories to the Vienna Agreement on the Law of Treaties 1969, which stipulates that the provisions contained in international agreements are superior to those contained in domestic law. International tax treaties play three main roles, namely: to guarantee non-discrimination between foreigners and nationals, to eliminate double taxation between the state of the source of income and the state of residence of the beneficiary of this income and finally to fight against international tax evasion and avoidance through the exchange of information and assistance in the collection of taxes.

a: multilateral tax convention on the elimination of double taxation

Double taxation is when income is taxed twice. This double taxation of income can be avoided through international tax treaties. The first tax treaty was concluded between France and Belgium 170 years ago. International double taxation is caused by the conflict of liability and the conflict of qualification. Its constitutive elements are repeated taxation^125(*), tax overcharge^126(*) and the identification of the tax period^127(*).

This phenomenon can occur both national and international level. At the national level, double taxation occurs when two or more tax authorities (state, decentralised authority) imposes taxes on the same taxpayer and on the same taxable matter and for the same period. At the international level, the taxpayer is subject to several tax systems.^128(*) The measures to combat international double taxation are based on international tax treaties, which, it should be noted, are not intended to replace national provisions governing tax with a supranational system. The role is to correct in certain situations the provisions of national tax laws. This applies when the implementation of domestic laws would result in double taxation. As a solution, it is necessary to :

- Determine the State of residence of the taxpayer

- Qualify the profits or income in question in the different categories distinguished by the convention (the rules laid down by the conventions vary according to the nature of the income or profits in question)

- Location of the source of the taxpayer's income (identified as the State in which the taxpayer's profits originate. The rules for determining the source vary from one category to another).^129(*)

In the CEMAC zone, the fight against double taxation was established in 1966 with the adoption of Act No. 5/66 UDEAC-49 of 13^th December 1966 on the tax convention, which was amended in 2019 by Regulation No. 07/19-UEAC-010 A-CM33 of 08^th April 2019 revising Act No. 5/66-UDEAC-49 of 13 December 1966 on the Convention on the avoidance of double taxation. With this regulation, CEMAC amends the tax convention aimed at avoiding double taxation and tax evasion in respect of income taxes between countries in the CEMAC zone. In this respect, the convention amends in particular the rules for the sharing of income taxation (dividends, interest, royalties, etc.) between CEMAC Member States. A decision by the President of the CEMAC Commission is expected to set out the modalities of application of this regulation.^130(*) What about mutual information exchange agreements?

b: tax convention on mutual exchange of information

The convention on mutual administrative assistance in tax matters is a multilateral agreement. This type of convention is usually developed under the auspices of the OECD. It provides a legal framework to facilitate international cooperation through the exchange of tax information and assistance between several countries. Its objective is to enable each party to the Convention to combat international tax evasion and to better enforce its domestic tax laws, while at the same time respecting taxpayers' rights.^131(*) The Mutual Administrative Assistance Convention in Tax Matters is currently being amended to reflect new commitments to combat international tax evasion, as requested by the G20 at its 2009 London Summit. The scope of the Convention is broad in that it covers a wide range of taxes and goes beyond exchange of information on request. It also provides for other forms of assistance, including spontaneous exchange of information, simultaneous audits, execution of tax audits abroad, provision of documents, assistance in the recovery of tax claims and precautionary measures. The Convention also provides for automatic exchanges of information, but this form of assistance requires a preliminary agreement between the competent authorities of the parties willing to exchange information automatically.^132(*)

At the level of the CEMAC sub-region, the mutual exchange of information is governed by Act n°17/65-UDEAC-38 of 14^th December 1965. This act stipulates that "States undertake to communicate reciprocally to each other any information of a fiscal nature which they possess and which could be useful for the assessment or collection of taxes of all kinds and for the repression of tax evasion.»^133(*)Furthermore, the exchange of information takes place either automatically or on request in specific cases. The competent authorities of the Contracting States shall agree on the list of information to be provided automatically.^134(*) It should also be noted that, the Contracting States undertake to render each other aid and assistance in the recovery of tax debts of any kind. This assistance shall extend to penalties, surcharges, fines and costs of any kind, including those arising from delays in payment and the resulting proceedings. This assistance also extends to para-tax claims.^135(*)

3: community monitoring of transfer pricing

Transfer pricing is the price for goods and services sold between controlled (or related) legal entities within an enterprise. For example, if a subsidiary company sells goods to a parent company, the cost of those goods paid by the parent to the subsidiary is the transfer price. Legal entities considered under the control of a single corporation include branches and companies that are wholly or majority owned ultimately by the parent corporation.^136(*)

Within CEMAC, community tax provisions on transfer pricing are expressly provided for by Chapter III of Act 3/72-UDEAC-153 of 22^nd December 1972 instituting corporate tax amended by Directive No. 02 /O1/UEAC050-CM06 of 3^rd August 2001 (Annex 3). According to Article 51 of this Directive, For companies which are dependent, de jure or de facto, on companies or groups of companies located outside the Community or for those which control companies located outside the Community, payments made by any means whatsoever, constitute transfers of profits subject to corporate tax and distribution tax. These include payments in the form of increases or reductions in purchases or sales, excessive or unrequited royalty payments, interest-free loans or loans at unjustified rates, debt forgiveness, and benefits disproportionate to the service rendered. Furthermore, Sums paid as remuneration for the use of patents, trademarks, designs and models currently valid, interest payments as well as remuneration for services provided by a company located in a CEMAC member state to a company established in a country with low taxation or zero taxation, are reintegrated into the taxable results of the local company if the latter does not provide proof that the payments correspond to real transactions and that they are not exaggerated.^137(*) The effective control exercised on transfer prices by the community legislator via the various directive turns to be very effective in controlling tax evasion and tax avoidance thereby rendering judicial cooperation practical.

PARAGRAPH II: THE PRACTICAL ASPECTS OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE

Judicial cooperation in the CEMAC zone is governed by CEMAC agreement on judicial cooperation between member states of the 28^th January 2004. Pursuant to section 2 of this agreement, the States Parties undertake to mutually grant each other the widest possible legal aid in all proceedings relating to criminal, civil, commercial, administrative, personal and family matters. We can therefore infer from the above legal provision that, CEMAC member states concede to mutually assist themselves in proceedings relation to the fight against tax evasion and tax avoidance which can be materialised through mutual legal assistance (A) as well as through denunciation and the execution of judgments(B)

A: mutual legal assistance

Mutual legal assistance is a method of cooperation between two or more states for the purpose of obtaining assistance in the investigation or prosecution of criminal offences. Its application is guided by a treaty defining the various domains of cooperation. The aim here is to prevent the perpetrators of crimes from seeking refuge from prosecution outside the national borders of the territory in which they have committed an offence. Requests are made by a formal international Letter of Request. In civil law jurisdictions, this is referred to as «Commission Rogatoire internationale»'^138(*) with the end goal being at times extradition.

1: international rotatory commission

In simple terms, an international Rotatory commission is defined as an act usually in the form of a letter by which a court or a judge^139(*) requires a judge or court in a foreign country to perform specified acts on its behalf. It other words it is letter of request issued by one court to a foreign court, requesting the foreign court to take evidence from a specific person within its jurisdiction, transmit documents or files deem important for the procedure or simply serve process on an individual or corporation within that foreign jurisdiction and then return the testimony or proof of service to the requesting court.^140(*)

Under CEMAC rules, the requested party will execute rotatory commission relating to a criminal matter addressed by the requesting party within the forms and procedures provided for by its national legislation and whose object is to carryout investigation or to communicate evidence.^141(*) It therefore transpires from the above analysis that, rotatory commission request are implemented according to the national laws of the requested state. This practice might limit the flow of information in certain circumstances but the presumption at this point is that, the community legislator had in mind the protection of the sovereignty of requested states. This procedure does differ much from that entailing the transfer of judicial acts.

2: the transfer of judicial acts

Within the framework of judicial cooperation, the judicial authorities of the requesting party transfer judicial acts to the judicial authorities of the requested party. These acts will be then be delivered by the latter to the person concerned by it.^142(*) Thanks to this cooperation mechanism, persons (corporate of physical) who have committed who have violated the tax legislation of a foreign country via tax evasion will be notified of these acts by the competent judicial authorities so as to prepare their defence. What about extradition as a cooperation tool?

3: extradition

Pursuant to section, 1 paragraph 7 of the extradition agreement between CEMAC member States extradition is an act by which a requested state makes available to a requesting State an accused, wanted or sentenced person for a common law offense in accordance with the provisions of this agreement. Generally speaking, extradition is the act by which a State hands over to another State, at the request of the latter, a person who is on its territory and in respect of whom the requesting State intends to exercise its jurisdiction. This collaboration takes place on a case-by-case basis within the framework of bilateral or multilateral extradition treaties.

In the CEMAC Zone this practice is regulated by the judicial cooperation agreement between CEMAC member States, agreement on judicial cooperation the extradition agreement between CEMAC member States both dated 28^th January 2004 as well as other community legal instrument relating to the subject matter. However the practice of extradition in tax matters is not absolute given that, it is limited to certain conditions. For example section 4 of the extradition agreement mention supra stipulates that «in terms of taxes and duties, customs, foreign exchange, extradition will only be granted under the conditions provided for in this agreement only if it has been so agreed by the state parties for each offense or for each category of offenses»cused of tax evasion could extrasied to the requesting state. Therefore, extradition may thus only be granted in tax matters «if it has been so agreed between the States Parties for each offense or category of offenses»^143(*) Certain authors^144(*) castigate this situation and propose that the fiscal offenses are integrated into the field of the extradition without possibility of exclusion. Several reasons are given to support this position. The most common is that tax offenses most often have a very close link with several offenses that remain within the scope of extradition, in particular with money laundering. The execution of these offenses is frequently accompanied by tax and customs violations. Moreover, the investigations carried out in tax matters most often make it possible to detect the existence of other economic offenses of greater scope^145(*)

B: denunciation for prosecution and execution of judgments

The CEMAC agreement on judicial further makes mention of denunciation for prosecution(1) and the exequatur (2) as furthermore mode of judicial cooperation between member States.

1: denunciation for prosecution

The fight against corruption, tax evasion, money laundering as well as the effective treatment by justice of economic and financial cases is essential for a democracy, especially in in times of crisis.^146(*) It is a mandatory rule that denunciations made by a State with the aim of prosecuting in another State party mush before any action is taken be communicated between the ministries in charge of justice of both States. This is because, this ministry is in charge of the implementation and monitory of the judicial policy.

According to section 35(1) of the judicial cooperation agreement between CEMAC member States, any denunciation made by a State party in other to prosecute before the courts of another State party shall be subject to prior communication between the ministries of justice of the respective states. This communication between the various ministries of justice is done in other for them to coordinate their collaboration in fighting against the offences committed. This act turns to depict a perfect illustration of judicial cooperation in the CEMAC zone which extents even to the fight against illicit financial activities.

2: exequatur

Exequatur is a procedure aim at executing a judgement or arbitral award delivered in a foreign country. This procedure is provided for by title V of the CEMAC agreement on judicial cooperation section 14 of the said agreement provides that, in civil and commercial matters, contentious and non-contentious decisions delivered by the courts of one of the high contracting parties are automatically applicable^147(*) on the territory of the other States parties under defined conditions. From the upshot, it sequels that by limiting the procedure of exequatur in the CEMAC zone to administrative and commercial matters, the community legislator criminal matters relating to illicit financial activities. This rather unfortunate reason being that the procedure of exequatur is an important tool of judicial cooperation. We can still infer that the idea was to preserve the sovereignty of Member States in that particular domain knowing how states are determined to preserve the specify of their criminal legislation.

However an inclusion of the above procedure by the community legislator will hence enhance judicial cooperation in other to be supplement administrative cooperation in the fight against tax evasion and tax avoidance.

SECTION II: THE ADMINISTRATIVE ASPECT OF THE COOPERATION

The administrative pace of cooperation in the fight against tax evasion and avoidance was set by the Global Forum on Transparency and Exchange of Information^148(*) for Tax Purposes by the year 2000. The Global Forum represents the multilateral approach for implementing internationally agreed standards of transparency and exchange of information in tax matters. Mutual administrative assistance in tax matters in the CEMAC zone is based on convention n°17/65-UDEAC-38 of 14^th December 1965 inherited from UDEAC. This convention constitutes the basic instrument of cooperation between the Community authorities in the context of the fight against tax evasion, tax avoidance and money laundering.

In this section of our work, an overview of administrative assistance in tax matters by means of the exchange of information for tax purposes in the CEMAC zone will be done. This can be summed in two aspects relating to the procedures for exchanging information (paragraph I) and the nature and characteristics of this information (paragraph II).

PARAGRAPH I: THE MODALITIES OF EXCHANGE OF INFORMATION

Section 3 of the CEMAC convention mutual assistance in tax matters provides that, The exchange of information takes place, either automatically^149(*)(A) or on request (B) relating to concrete cases. The competent authorities of the Contracting States agree to establish the list of information which must be provided automatically.

A: the automatic exchange of information

Conceptually, automatic exchange of information involves the systematic transmission of information between tax administrations. In concrete terms, the country of the source of the income sends the information to the country of residence of the taxpayer on a regular and continuous basis. In this respect, automatic exchange differs from exchange on request. For the rest, the competent authority of the State of residence remains bound by official secrecy and undertakes in principle to use the information received only for the purposes of the tax procedures that in fighting against tax evasion and tax avoidance.^150(*)

B: administrative assistance on request

Exchange of information on request corresponds to a situation in which a competent authority requests specific information from a tax authority found in a different country. Normally, the information requested relates to a control, inquiry or investigation into the tax payable by a taxpayer for specific financial years.

1: preliminary considerations

Before sending a request, the requesting tax administration shall use all means available in its territory to obtain the information except where obtaining it would give rise to difficulties. The efforts of the requesting tax administration should also include attempts to obtain the information from the foreign tax administration before making a request. For example by using the Internet and where possible, by using commercial databases or by instructing diplomatic personnel stationed in that country to obtain publicly available information. The OECD has developed a reference guide to sources of information abroad to help competent tax authorities identify the types of information available in other countries.^151(*)

2: Form of the request

The request of information by a competent tax administration must be made in writing. However, in case of urgency, an oral request may be accepted, if permitted by applicable laws and procedures in force provided that, such request is followed by written confirmation. At the request of member countries wishing to have a fast and secure method of exchanging information electronically, the OECD has developed a procedure for the transmission of confidential information using encrypted documents attached to e-mails.^152(*) The information exchanged have a specified nature and characteristics.

PARAGRAPH II: THE NATURE AND CHARACTERISTICS OF INFORMATION EXCHANGED

It is important to note that, the information thus exchanged between tax administrations are of a secret nature and are communicated only to the persons responsible for the assessment or collection of the taxes. The Contracting States undertake to lend mutual aid and assistance to recover due taxes of any kind. This competition extends to penalties, additional fees, fines and costs of any kind, including those inherent in delays in payment and resulting prosecution. This assistance also extends to parafiscal claims. In a nutshell we are concerned here with the characteristics of the requests made (A) as well as their nature(B).

A: the character of information contained in the request

Upon analysis of the OECD model conventions relating to administrative assistance, requests are confidential (1) and obey the principle of reciprocity (2).

1: the confidentiality of the information

All the information exchanged are kept secret and they must only be made accessible to the persons or authorities concerned by the taxation or the recovery,^153(*) the execution or criminal prosecution, as well as by the decisions on the appeals relating to such taxes or persons. The commentary to the model OECD convention specifies that the rules of confidentiality apply to the information contained in the request for administrative assistance as well as to the information transmitted to the requesting State.^154(*)

2: Reciprocity

The idea behind the concept of reciprocity is that a contracting party should not be able to avail itself of the other contracting party's information system if that system is more extensive than its own^155(*). The requested Party may refuse to provide the information where the requesting Party cannot obtain or provide such information on the basis of its law or where its administrative practices (e.g. lack of sufficient administrative resources) result in a lack of reciprocity. However, it is admitted that, a rigorous an application of the principle of reciprocity might limit the effectiveness of the exchange of information and that this notion should be interpreted in a broad and pragmatic way taking into consideration the nature of the information exchanged.

B: the nature of information

The CEMAC convention has not expressly given the indications about what should be contained in a request for administrative assistance. Reference is therefore made on the OECD model convention. Section 26 OECD Model Convention does not define what information the requesting State is required to provide in a request for administrative assistance. If an agreement does not provide any information on the necessary content of a request for information and that no other regulations defined the information that must be contained in the request, the request must contain the information listed in section 26 of the OECD model agreement:

- the identity of the person(corporate or physical) concerned;

- indication of the information sought;

- the tax purpose for which the information is requested;

- the reasons which lead to believe that the information requested are found in the requested State;

- the name and address of the alleged holder of the information

- a statement confirming that the requesting authority could not obtain the information under its domestic law and that it has used all means available under its national tax procedure.

CONCLUSION OF CHAPTER II

As mentioned supra, the cooperation in the fight against tax evasion and avoidance as well as illicit financial flow is administrative on one hand and judicial on the other. The harmonization of tax fund rules in the CEMAC zone therefore appears as a prerequisite to render the above forms of cooperation effective. Cooperation which has to be carried out in compliance with OECD and CEMAC directive and regulations without however despoiling members states from their tax sovereignty.

CONCLUSION OF PART I

Analysing the role of judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone in this part of our work was characterised by an overview of tax evasion and tax avoidance in the sub region on one hand and on the other hand by the operational aspects of the said cooperation. A cooperation having a political and legal dimension wherein we could examine the active role of institutions such as conference of Heads of State, the Council of Ministers of UEAC, the Ministerial Committee of UMAC, the council of ministers of OHADA,the influence of GABAC and FATF in the fight against tax evasion and tax avoidance. The role of these institutions being supplemented by a series of legal rules governing the said cooperation though their harmonisation at the sub regional level is still facing some difficulties. These difficulties turn to limit the fight against the various causes and consequences of tax evasion and tax avoidance.

However, the cooperation in the course of fighting against above mentioned tax malpractices is administrative and judicial. Administrative cooperation being more developed and structured than judicial cooperation which is as we have been seeing in the course of this work the soft spot of the cooperation. Administrative cooperation is characterised inter alia by exchange of information between the tax administrations such an exchange having many forms as seen in the chapter II. Judicial cooperation on its part rest on mutual legal assistance and the denunciation for prosecution as well as the execution of judgments

The above analysis of the role of judicial cooperation in the fight against tax evasion and tax avoidance contributed in bringing out the challenges facing the cooperation. These challenges gave rise to the proposal of relevant solutions aimed at reinventing the various mode of cooperation used in fighting against tax evasion and tax avoidance with an accent on the need to enhance judicial cooperation.

PART II: THE PROBLEMATIC INHERENT IN PREVENTING TAX EVASION AND TAX AVOIDANCE AND THE NECESSITY OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE

Regional integration, which is a process by which neighbouring countries enter into an agreement in order to upgrade cooperation through common institutions and rules, is generally based on many objectives ranging from political, economic, social and even environmental once. Since its creation in 1994, CEMAC as a sub-regional grouping has had as principal objectives; to develop capacities to maintain peace, security and stability as essential prerequisites for economic and social development; to develop physical, economic and monetary integration; to develop a culture of human integration and to establish an autonomous financing mechanism for ECCAS.

In realising the aforementioned objectives cooperation between member states become mandatory especially to fight against some of the challenges faced by the sub region amongst which we can cite financial challenges such; money laundry, tax evasion and tax avoidance as well as other forms of illicit flow of cash. Practices detrimental to the development of the economies of member states.

As demonstrated in the first part of our work, CEMAC member states in fighting against tax evasion and tax avoidance via judicial cooperation had to set up a series of mechanisms ranging from the harmonisation of some community tax rules to the enhancement of mutual legal assistance. This judicial cooperation is practice alongside administrative cooperation, which is the principal mode of collaboration in fighting against tax evasion and tax avoidance within and outside the sub region. But unfortunately both types of cooperation mentioned supra are characterised by challenges (Chapter I) which warrant urgent and efficient solutions (Chapter II) to be implemented at the short, medium and long run.

CHAPTER III: CHALLENGES FACING JUDICIAL COOPERATION IN PREVENTING TAX EVASION AND AVOIDANCE IN THE CEMAC ZONE

A challenge is a new or difficult task that test somebody's abilities and skills.^156(*) By challenges facing judicial cooperation in prevention tax evasion and tax avoidance in the CEMAC zone, we are referring to those elements slowing down, hindering or at times blocking the active role of judicial cooperation in fighting against fiscal malpractices in the CEMAC sub region. These problems further extends to administrative cooperation. In this chapter, an attempt will be made to analyse the factors limiting role of judicial cooperation within the framework of the fight against tax evasion and tax avoidance (Section I) before delving into the lacunas of the current form of judicial and administrative cooperation instruments (Section II).

SECTION I: FACTORS ACCOUNTING FOR THE LIMITED ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE

The factors limiting the role of judicial cooperation in preventing tax evasion and avoidance in the CEMAC zone can be divided into structural (paragraph I) and institutional factors (paragraph II).

PARAGRAPH I: INSTITUTIONAL FACTORS

The institutional factors limiting judicial cooperation are essentially political in nature. They are does factors arising from the limited will of the political institutions of CEMAC^157(*) to enhance the cooperation. These factors ranges from the laxity of the process of adoption and ratification of community texts (A) to the scarcity of institutions in charge of judicial cooperation (B).

A: laxity of the process of adoption and ratification of community texts

With the advent of CEMAC, some actors were almost delighted that decisions were no longer taken exclusively by unanimity as was the case under the aegis of UDEAC. "The CEMAC texts have instituted the rule of consensus as a rule of principle for the adoption of acts of the conference of heads of state although this rule remains suppletive for the adoption of other community policies by the other organs of the community^158(*). Despite this progress, it appears that the unanimity rule resurfaces when it comes to regulating certain sensitive areas of Community policy such as judicial cooperation (1). Moreover, even when these Community bodies manage to reach an agreement despite everything, this unanimity is only a façade in view of the time gap between adoption and ratification (2).

1: The impact of the unanimity rule in matters of judicial cooperation

The requirement of unanimity of states parties for the adoption of texts on judicial cooperation has always been criticised by most authors. Because of the unanimity rule, the harmonisation of tax rules in other to effectively fight against tax evasion and tax avoidance remains largely utopian. This is all the more justifiable as national governments are more reluctant to let a Community entity usurp their regalian functions. This unanimity requirement amounts to giving a veto right to each Member State. This could result either to the paralysis or to the adoption of texts that lack ambition and therefore do not meet with objective. This situation is even more deplorable within the European Union where all decisions are taken by unanimity.^159(*)

The adoption of the unanimity rule in the field of judicial cooperation is also indicative of the opposition that animates the minds of the leaders of the sub region who, while being jealous of their sovereignty, nevertheless seek efficiency in the fight against tax evasion and tax avoidance, which in turn leads to cooperation. It is this opposition between the claim to sovereignty and the desire for efficiency that justifies the slowness of the procedure for ratifying texts on judicial cooperation.

2: The gap between adoption and ratification

The adoption of an international convention is not usually sufficient. In almost all cases, it needs to be ratified by the States Parties to become binding. Through the ratification procedure, States find a way to block a text that they have been somehow forced to accept. When we look at the time that elapses between the signing of a convention and its subsequent ratification by the various national parliaments we are sometimes perplexed. One often wonders where the political will to fight organised crime and illicit financial flow of cash lies? When it takes an average of nearly five years, and sometimes more, to ratify a convention, we understand that there is a real problem. This is a responsibility that falls on politicians for, they are the once having the last say as far as the ratification and adoption of community texts are concerned.^160(*)

In the CEMAC zone, the problem of ratifying conventions on judicial cooperation is acute. This is due to fact that judicial cooperation agreement between the CEMAC member states and the extradition agreement between these states adopted during the fifth Conference of CEMAC Heads of State on 28^th January 2004 in Brazzaville have not yet entered into force due to the lack of ratification by all of the state's parties as required by these texts.^161(*) The above problem is further aggravated by the scarcity of institutions in charge of promoting judicial cooperation.

B: the scarcity of Community institutions in charge of judicial cooperation

The need to create Community cooperation bodies for the fight against tax evasion and tax avoidance as well as organised crime has always been felt. Bernard BERTOSSA already recalled this in the European context when he affirmed that: "if we want to have any chance of combating organised crime, it is imperative that the European (Community) institutions provide themselves with judicial authorities competent to prosecute, throughout the continent (the Community), perpetrators of offences of which these institutions may also be victims.^162(*)

With the view to strengthening judicial cooperation in Europe in order to effectively combat organised crime, several specialised bodies have been created. For example, we have EUROJUST which is a European body whose aim is to strengthen the fight against serious crime. It is composed of representatives of the Member States who are prosecutors, judges or judicial police officers. We also have the example of Europol, whose mission is to ensure the efficiency of the competent services of the Member States and their cooperation in the most numerous fields of international crime.^163(*)

In the CEMAC, things are not so advanced. Because of the struggle to preserve their sovereignty, states are reluctant to accept the creation of supranational bodies responsible for coordinating the fight against the most serious forms of illicit activities.^164(*) This state of things is further justified by structural factors limiting cooperation in the sub-region.

PARAGRAPH II: STRUCTURAL FACTORS

The structural factors limiting judicial cooperation can be divided into: the conditional application of extradition in tax matters(A), the protection of banking secrecy(B) and systemic corruption(C).

A: Conditional extradition in tax matters

The principle is generally that tax offences are excluded from the scope of extradition. Obeying the claims of the sovereignty of the States parties, international conventions allow for the refusal of extradition in taxes matters, duties, customs and exchange. This is also the case of the extradition agreement between the CEMAC Member States. According to this agreement, extradition can only be granted in tax matters "if so agreed between States Parties for each offence or category of offences "^165(*). Some authors^166(*)criticise this situation and propose that tax offences should be included in the field of extradition without the possibility of exclusion. Several reasons are given to support this position. The most common one is that tax offences are usually very closely linked to several offences that remain within the scope of extradition, in particular money laundering. The commission of these offences is frequently accompanied by tax and customs violations. Moreover, tax investigations often reveal the existence of other, more far-reaching economic offences^167(*).The condition attached to extradition in tax matters appear at the end of this analysis as real sources of blockage for judicial cooperation. These conditions added to that others such as the protection of banking secrecy can thus paralyse and render ineffective the fight against tax evasion and tax avoidance.

B: the protection banking secrecy

The Cameroonian law n°2003/04 of 21^st April 2003 on banking secrecy in its Section 3 defines banking secrecy as "the obligation of confidentiality to which credit institutions are bound in relation to acts, facts and information concerning their clients of which they have knowledge in the exercise of their profession ". The purpose of this law is to ensure the confidentiality of financial transactions. It places an obligation of secrecy on the banker, the violation of which is likely to engage his civil liability. In some countries, banking secrecy is so rigidly regulated that it cannot be lifted. This has long been the case in Switzerland^168(*) and in many other tax havens. However, it appears that the link is often quickly made between a tax evasion, tax avoidance and money laundering operations and the protection of banking secrecy.^169(*)In order to inject the proceeds of their illicit financial activities into legal channels, criminals most often use financial institutions, especially in countries that are resistant to any lifting of banking secrecy. The banker will be all the more credible if he can remain as silent as possible^170(*).

Despite the above illustrated practice, it is worthwhile noticing that this challenge has however been overcomed at the level of the CEMAC sub region thanks to the help of community and national legislation adopted in that domain. For example, section 57 of the CEMAC regulation on the prevention and suppression of money laundering and terrorist financing in Central Africa states that, mutual assistance may include inter alia relevant documents, including bank statements, accounting documents, and records showing the operation of a company or its commercial and financial activities. This solution was corroborated at the domestic level by the Cameroonian legislator thanks to section 8(1) of the Banking Secrecy law provides that "banking secrecy may not be opposed to the judicial authority acting in the context of criminal proceedings and to judicial police officers acting on a rogatory commission from the State Counsel". This approach does not however solve the problem of corruption that continues to rage.

C: systemic corruption

Corruption according to Transparency international is the abuse of entrusted power for private gain. National wise, corruption is referred to by section 134(1) of the Cameroon penal code corruption is considered as «the act by which all or any civil servant or public agent for himself or a third party solicits, accepts or receives offers, promises, donations, gifts to do or abstain from doing or adjourn an act of his function».^171(*) Paragraph 3 of the above section reaffirms the definition of corruption by holding that «it is the act by which a civil servant or public agent solicits or accepts retribution in cash or in nature for himself or for a third party in remuneration for an act already accomplished or an abstention».^172(*)

Within the framework of tax evasion corruption, take place through indulgence. This form of corruption is provided for by section 137 of the Cameroonian penal code. This section deals with public servants who act to the detriment of government department, co-operative or any State authority. The corrupt act envisaged here is when public servant's grants exemptions from any fee, due, duty, tax, contribution or he delivers at a lesser price than that prescribed by the law.

The Gabonese legislation did not derogate from that rule. Indeed, the 2003 law instituting a regime of prevention and repression of illicit enrichment provides that: «Any official of the State in charge of a public service, any collector of duties, taxes, contributions or other public funds who fraudulently collects or orders the collection of undue remuneration for the collection of such duties, taxes, contributions or other public funds shall be punished by imprisonment for a term of two to ten years and a fine of 2,000,000 to 20,000,000 CFA francs. Convictions under this article shall automatically entitle the convicted person to exercise the rights provided for in Article 18 of the Criminal Code.»^173(*) Section 9 of law n°5-2009 of 22^nd September 2009 on corruption, bribery and fraud and related offences in the Republic of Congo provides same.

Furthermore, section 10 of the aforementioned code stipulates that: «Any person who, in order to obtain an undue material or moral advantage, shall be found guilty of fraud and punished by imprisonment for a period of one to five years and a fine equal to at least twice the value in cash of the advantage obtained or the duties evaded...either by any ruse, evades the payment of duties imposed on a product, merchandise or commodity with a view to evading the law or regulations on taxation.»

From the foregoing, it sequels that corruption is a practice very common within the sub region where tax inspectors are tempted on daily basis to fall prey to the propositions (retribution sin cash and kind) made to them by taxpayers in exchange of reduction of due taxes. However, notice should be taken about the fact that in some instances, the tax administrator are the once soliciting reductions from taxpayers in exchange of tax reduction. This is a practice very detrimental to the administrations of member states who loss billions of CFA as a result of corruption and other lacunas facing the administration.

SECTION II: THE LACUNAS OF THE CURRENT JUDICIAL AND ADMINISTRATIVE COOPERATION INSTRUMENTS

The lacunas of the current judicial and administrative cooperation instruments used are characterised by the disuse of sub-regional administrative assistance in the CEMAC zone (Paragraph II) on one hand and on the other hand by theabsence of a harmonised sub-regional approach on the modalities of judicial cooperation (Paragraph I).

PARAGRAPH I: THE ABSENCE OF A HARMONISED SUB-REGIONAL APPROACH ON THE MODALITIES OF JUDICIAL COOPERATION

Member states of the CEMAC sub-region have not have not been able to agree on unique approach in fighting against tax evasion and tax avoidance. This limitation is concerns both administration and judicial cooperation and is materialised by the significant weight of sovereignty claims by CEMAC member States (B) as well as the timid harmonisation of tax rules (A).

A: The timid harmonisation of tax legislation

The harmonisation of tax rules will enable member states of the sub-region to fight against tax evasion and tax avoidance in a more effective and efficient manner. This will further have the advantage of strengthening the integration process as well as the business climate is CEMAC zone. But unfortunately, it appears that some member states have been reluctant to the prescriptions made by the community legislator in that domain. For the community legislator has determined the VAT rate to range between 15 to 19%. As a result, the minimum VAT rate applicable in CEMAC is 15% and the maximum rate is 19%. National tax legislation of member states seems to have complied to it except Cameroon wherein, added to the initial 17.5%, there is an additional 10% representing the Council additional tax.^174(*) Thus making a total levy of 19.25% on the added value of the company, a levy above the maximum rate of 19% authorized by the CEMAC directive. This is a total violation of this the CEMAC directive n° 07/11-UEAC-028-CM-22 of 19th December 2011, relating to VAT and excise duties given that, 19.25% is numerically above 19%. Added to this challenge, there is there is the a strong desire by member states to preserve their sovereignty.

B: The significant weight of sovereignty claims by CEMAC member States

Politically, judicial cooperation in tax matters is a field of confrontation between supporters of state sovereignty and those who advocate for the lowering of sovereignty barriers of for more effective cooperation. The reason, as already mentioned, is that States have always protected the monopoly of dispensing justice and collecting taxes on their territory. The right to impose and collect taxes as well as the right to punish in case of any violation of the laws in force are amongst other thing one of the main State prerogative as highlighted by Jean Jacque Rousseau in the social contract.^175(*) However, faced with the increasing rise of tax evasion, tax avoidance and other forms of illicit financial flow of cash such money laundering coupled to the inadequacy of national responses, states had no other option that to cooperate. A Cooperation, which entailed, relinquishing part of their sovereignty in the affected domains. Though easier said than done, reason being that, they continue to cling on their internal rules and polies at for selfish or egoistic purposes. This has the effect of slowing down cooperation be it administrative or judicial.

PARAGRAPH II: THE DISUSE OF SUB-REGIONAL ADMINISTRATIVE ASSISTANCE IN THE CEMAC ZONE

The convention on mutual administrative assistance in force in our community space is more than fifty years old and it is therefore necessary to rethink and adapt it to the new forms of tax evasion and avoidance. The UDEAC of 14^th December 1965 convention inherited by CEMAC is limited to the exchange of information and a classic framework of cooperation.^176(*) Hence, there is a need to update the aforementioned convention in line with Community realities, thereby putting an end to its anachronistic nature (A) and creating a community approach based on the new modalities of administrative assistance(B)

A: The anachronistic nature of community administrative assistance instruments

Tax treaties constitute the legal framework for administrative assistance. Thus, the convention inherited from the defunct UDEAC sets out the three modalities of administrative assistance mentioned above, i.e. spontaneous, on request and ex officio exchange of information for tax purposes. These three modalities are subject to the same community legal regime. The difference is that most international tax treaties merely establish the principle of an exchange of information between tax administrations without specifying the modalities.^177(*)

The wording of the UDEAC convention relating to exchange of information has followed the recommendations of the OECD model convention to the letter. This convention is showing signs of obsolescence in that, it does not follow the spirit of the community construction but rather that of international conventions since it uses the term "mutual" instead of "community". Beyond that, the said convention does not explain the third modality of administrative assistance, which is the automatic exchange, although it is more efficient. It is therefore necessary for CEMAC to adapt its convention on administrative assistance in tax matters not only to OECD methods but also to the requirements of the community construction.^178(*)

B: The failure to adopt a community approach based on the new modalities of administrative assistance

The construction of a Community space guaranteeing transparency must be reflected in the strengthening of administrative cooperation between the tax administrations of the various Member States, the objective being to ensure the effective control of intra-Community tax operations. It is clear that the current state of mutual assistance is only halfway working because of the difficulty of tracing taxpayers within the community, the inability of most States to implement their own internal procedures and the complexity and misunderstanding of mutual assistance agreements^179(*).

The above diagnosis of the dysfunction of Community administrative assistance seems to be well established in principle but poorly justified. However, in order to perfect the methods of exchanging information, the convention should include: the keeping and computerisation of this information, the centralisation of tax information, and the Exchange by electronic means. Thanks to this type of assistance, it will be possible to detect the flow of exchanges and the identities of the companies concerned by means of servers. VAT assistance is an innovation in this field in the European context. It is therefore necessary to revolutionise assistance in the CEMAC.^180(*) In any case, the fight against tax evasion and tax avoidance cannot be perfect if judicial and administrative cooperation processes does not integrate and adopt a new approach.

CONCLUSION OF CHAPTER III

The fight against tax evasion and tax avoidance is characterised by some problems. These problems ranges from the absence of a harmonised sub-regional approach on the modalities of judicial cooperation, to the disuse of sub regional administrative assistance instruments as well as institutional and structural shortcomings. These challenges thus justify the imperative need for effective and efficient solutions to be adopted within the CEMAC sub region and even beyond.

CHAPTER IV: THE NEED OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE

In order to render the fight against tax evasion and tax avoidance more efficient, a new approach of cooperation is required. This is because, as time goes on, tax evaders and avoiders device new strategies to escape the payment of due taxes and to exploit the loopholes of the tax legislation. Thus, this new method of cooperation could be implemented by the need to revitalise sub-regional judicial cooperation (Section II) and by the necessity of a new approach in matters of administrative assistance so as to enhance judicial cooperation (Section I).

SECTION I: THE NECESSITY OF A NEW APPROACH IN MATTERS OF ADMINISTRATIVE ASSISTANCE IN OTHER TO ENHANCE JUDICIAL COOPERATION

To render the international taxation framework more transparent, greater cooperation between tax administrations will be essential. A platform for automatic information exchange and the reinforcement of other measures to prevent tax evaders from hiding behind borders will need to be integrated into the existing system. This could be done by adoption a multidimensional common policy on tax assistance (paragraph I) and the extension of the cooperation out of the CEMAC boundaries (paragraph II)

PARAGRAPH I: THE IMPERATIVE OF ADOPTING A MULTIFACETED COMMON POLICY ON TAX ASSISTANCE

In April 2013, G20 finance ministers adopted automatic exchange of information for tax purposes as a new standard. This was followed in June of the same year by the G8, which committed to work with the OECD to rapidly develop a multilateral model that will make it easier for governments to find and punish tax evaders and avoiders. The G8 also recommended that multinationals provide tax authorities with data on income and taxes by country and that tax authorities were to have access to information on company ownership^181(*). Thus following the aforementioned multilateral policy, it will be recommended for member states of the CEMAC zone to adopt policies aimed at facilitating automatic exchange of information (A), establishing the legal framework governing automatic exchange of information(B) and reinforcing the means of the various institutions in charge of administrative assistance (C).

A: the adoption of automatic exchange of information

Automatic exchange of information within the CEMAC sub region will entail the systematic transmission of information between tax authorities of member states. The information exchanged within this context are to be used only for the purposes of the tax procedure. The conception of automatic exchange of information in the CEMAC zone within the framework of the fight against tax evasion and tax avoidance will imply the processing of a considerable amount of information and its organisation as the information exchanged are sometimes diffuse. Therefore, significant logistical resources must be deployed. The support of computer scientists working on the design of intelligent and increasingly efficient software should enable the tax authorities of CEMAC countries to carry out these tasks with efficiency.^182(*)This automatic exchange of information will be facilitated by the adopted of the legal framework governing the said exchange.

B: the institution of a legal framework governing automatic exchange of information

In other to regulate the automatic exchange of information, the establishment of regulations governing this exchange is indispensable. The European Union done a significant step in this direction thanks to the Council Directive of 15^th February 2011 on administrative cooperation in the field of taxation.^183(*) This directive provided that, as of 1^st February 2014, Member States of the EU had to exchange information on professional income, directors' fees, certain life insurance products, pensions, property and certain real estate income. A from 2017, this list was be extended to dividends, capital gains and royalties. This Directive also regulated the conditions under which a spontaneous exchange of information can take place between tax authorities, as well as the time limits within which the transmission could be done.^184(*)

At the international level, there is also a text that provides for the application of an automatic exchange of information procedure. This is the Convention on Mutual Administrative Assistance in Tax Matters of the OECD and the Council of Europe of 1988. This multilateral convention is open to all states since June 2011. It has the particularity of providing not only the three traditional forms^185(*). The fight against tax evasion and avoidance in the CEMAC sub region will be greatly enhance if apart from automatically exchanging information, the institution handling this exchange were reinforced.

C: the reinforcement of the means of institutions in charge of assistance

Cooperation between tax administrations is vital to combat the development of fraudulent arrangements. These occult activities are often based not on territories but on the concept of networks.^186(*) They are characterized by their ability to play on the differences in control rules and the efficiency of tax officials from one member state to another. It is already difficult for the tax administration of one country to provide appropriate responses to these phenomena, but the task is render more difficult when several countries are involved. It is therefore important to consider strengthening the structures for implementing administrative assistance. One way of doing this could be through the creation of a central African tax commission (A) and to establishment tax attachés and liaison offices (B).

1: the creation of a central African tax commission

The tax commission in CEMAC would contribute to investing in tax control precisely from the perspective of administrative assistance. The Conference of Heads of State decided to create CEMAC executive agencies to relieve the burden of the tasks previously assigned to the CEMAC Commission. We then thought of setting up a structure to coordinate community tax control, at least in its fiscal aspect. Very quickly, we were able to revise our ambitions, since not even a compensation unit for VAT was created. Compared to the Monetary Union, COBAC plays the role of harmonizing and monitoring banking, monetary and financial regulations^187(*). It exercises close supervision over credit institutions and has disciplinary powers over them.

It was therefore appropriate to create such a specialized institution in the CEMAC, perhaps not under this name, but a structure inspired on the organization and functioning of COBAC, whose power to impose sanctions should strengthen the control of legal harmonization. It should remedy the shortcomings of community law. Its absence undoubtedly constitutes an institutional deficiency that neither the tax attachés at diplomatic representations nor the central liaison office could make up for.^188(*)

2: the establishment of tax attachés and a central liaison office

Tax attachés are not new in Western countries, especially in Belgium, France, Holland, England and the United States. They are representatives of the tax administration in the embassies. Their role is to implement the administrative assistance procedures concluded in international tax treaties, in the European framework by the Community law. These attachés act as a relay in the practice of investigations and verifications within the framework of tax audits and the exchange of information for tax purposes.^189(*)

a: The role of the tax attaché

The tax attaché is in charge of carrying out comparative studies and informing the tax administration of his country about the evolution of the tax legislation and of the administrative organization of his country of assignment. He is also in charge of implementing administrative assistance procedures provided for by community texts and conventions in tax matters. It provides individuals and companies with information on taxation and on the application of tax treaties signed between France and Belgium. This is a palliative solution to the fight against tax evasion and avoidance. This example can inspire CEMAC countries to perfect administrative assistance mechanisms, because mutual cooperation is essential in the control of community exchanges.^190(*)

The central liaison office was tested in 1993 with a view to the creation of the common market. It can be set up in CEMAC under the European model. It should be able to function with the impetus given to it by the council of ministers and should be responsible for managing administrative assistance mechanisms on request from tax administrations. It should supply the data bank and tax documents, and send periodic reports to the council of ministers to enable them to better prepare community texts.^191(*)

b:The role of the central liaison office

This office in charge of the implementation of the mutual exchange of information between the States in tax matters within the framework of an administrative assistance agreement. In addition, does comparative analyses of administrative organization and tax legislation. The service provides answers to requests for information by the tax legislations of both countries

However, focusing solely on administrative assistance within the sub region cannot as we have seen guarantee the success of the fight against tax evasion and tax avoidance. That is why there is a crucial need to extend the cooperation to countries found out of the CEMAC zone.

PARAGRAPH II: THE EXTENSION OF COOPERATION OUT OF CEMAC BOUNDARIES

The survival of our community space is largely dependent on its relations with the outside world. Tax evasion and tax avoidance function thanks to the porosity of international tax cooperation. To this end, international cooperation is an alternative to the multinationals that rob the States of the financial resources, which there required to meet the needs of their populations. In view of this, it is urgent to reinvent administrative assistance in the CEMAC zone by expanding to other African countries (A) on one hand and to international organisation (B).

A: an assistance between CEMAC and other Africans States

Cooperation agreements within the CEMAC zone falls within the competence of the Conference of Heads of State. Given the volume of trade and the intermingling of populations of CEMAC member states and those from other regions of the continent, two areas deserve to be addressed at juncture. We have ECOWAS and ECCAS (1) and the neighbouring economic giant Nigeria (2).

1: the need for the signature of a cooperation agreement between CEMAC-ECOWAS-ECCAS on tax assistance

The decried phenomenon (tax evasion and avoidance) annihilates the development efforts of the member states of CEMAC, ECCAS and ECOWAS. It is therefore imperative for these States to develop inter-community tax cooperation arrangements.

The cooperation with ECCAS is much more strategic because of its geographical proximity to CEMAC, but especially because some of the CEMAC States are also members of ECCAS. Therefore, CEMAC and ECCAS should integrate into their programs a synergistic approach with a view of achieving a single, harmonious and efficient regional entity, and this necessarily requires the signing of a platform for the exchange of information and tax information in order to make the commercial and migratory flows within the two entities fluid.^192(*)

As far as cooperation with ECOWAS is concerned, the basis could be the OHADA legislation. Though this organization has not standardized tax law, it is undeniable that company law and accounting law implicitly but definitely include tax aspects, it is therefore necessary for the two communities to provide tax assistance.^193(*) CEMAC would therefore benefit greatly from this cooperation and moreover, more than 50% of intra-regional trade is with ECOWAS. However, CEMAC-ECOWAS tax cooperation should not obscure the need for assistance with neighbouring Nigeria.

2: the urgent need of a tax assistance agreement between CEMAC and Nigeria

The economic and demographic weight of Nigeria seems to be one of the reasons to consider administrative assistance cooperation in tax matters between the said country and CEMAC member states. This need is justified by the fact that, most of the CEMAC states are geographically adjacent to Nigeria. As a matter of example, Cameroon alone shares more than 1,500 km of border with Nigeria. Added to that, Nigeria is the leading African economic power and Cameroon's 3^rd largest economic partner worldwide in terms of imports. Cameroon's imports from Nigeria in 1960 represented less than 1%, it rose to 13% in 2003, then by 27% in 2005. From 2008 to 2016, the large neighbour competed with France and China as Cameroon's leading suppliers.^194(*)

Chad and Nigeria share the shores of Lake Chad, and the Equatorial Guinean maritime front is open to the Nigerian coast. It goes without saying that all these States have direct human, financial and commercial exchanges with Nigeria^195(*), which cannot be ignored for long in the CEMAC zone. Unfortunately, such exchanges do not benefit the States (Nigeria and CEMAC countries) because of anti-tax behaviours. For example, Smuggling is the mode of exchange par excellence between Cameroon and its Nigerian neighbour, a practice which is ruining the economies of these two countries. At the end of this picture, Nigeria is a bridge between CEMAC and ECOWAS and therefore, the need to fight against fraud and financial crimes through administrative assistance in tax matters is therefore fully justified.

B: the extension of the cooperation with international organisation

International assistance cooperation holds out the prospect of administrative assistance with the OECD (1), and the IMF (2).

1: The OECD contribution to administrative assistance

Tax law has become more international with the increasing globalization of economies characterised by the integration and interaction of communities and companies worldwide. This has contributed in making cross-border cooperation in tax matters a hot topic with State being reluctant to relinquish their competence on certain taxes. For example, even within a highly integrated entity like the European Union, the area of direct taxes remains a competence of the member states, a reform at this level facing some difficulties. This is why the OECD is a key player in cross-border cooperation between countries in the domain of exchange of tax information.This organisation has been publishing the model tax convention for over half a century and has been leading the fight against illegal tax havens since the 1990s.^196(*) It is therefore well placed to provide CEMAC with its expertise in administrative assistance.

Indeed, the OECD constitutes a pool of statistical information of primary importance. This organization drafts reports and formulates recommendations on tax matters, which are sometimes used as models for administrative assistance. These information exchange agreements are generally based on the OECD Model Tax Convention on Income and Capital (OECD-MTC).^197(*) Thus, its expertise is evident in the field of assistance. The OECD, through its Committee on Fiscal Affairs, is a veritable laboratory in the fight against international tax delinquency. This shows the interest that CEMAC would have in using its expertise to better arm itself against these phenomena.

2: The IMF expertise in matters of administrative assistance

As mentioned in the first part of our work, tax evasion and Illicit tax avoidance have a significant impact on the economic stability of countries and the broader global financial system. For example, they can drain foreign exchange reserves, affect asset prices, lower tax receipts, distort competition and reduce government revenue. They divert resources from public spending and can cut into the capital available for private investment. Illegal flows can also encourage further criminal activities, undermine the rule of law and political stability of a country. These negative impacts on the broader scale can have a spillover effect on other economies, thereby deepening inequalities and weakening social cohesion across and within countries.^198(*)

Concerning the fight against tax evasion, the IMF for more than 50 years, has been providing technical assistance to strengthen member countries' tax systems, including by improving tax compliance and enforcement. It has worked with several countries to help them develop the legal framework and administrative capacity to exchange tax and banking information, both domestically and internationally.^199(*)

Similarly, the IMF has a longstanding technical assistance program to help member countries strengthen their tax systems to guard against both domestic and international tax avoidance, including but not limited to the issues addressed by the OECD/G20 BEPS project. International taxation issues are also increasingly being raised in Fund surveillance, including in G20 countries. While the IMF is not a standard setter in this area, its staff participates in and contribute to global discussions on international taxation through its analytical work and building on its in-country experience, and participates in relevant multilateral forums such as the Inclusive Framework on BEPS and the UN Committee of Experts in Tax Matters. Finally, the IMF collaborates with the OECD, World Bank and UN through the Platform for Collaboration on Tax, for instance by developing toolkits to help developing countries address challenges in international taxation.^200(*)

From the upshot analysis, it sequels that, the IMF can help CEMAC member states to fight against tax evasion and tax avoidance through technical assistance in the domain of exchange of information and via the expertise it has acquired thanks to its collaboration with experts from OECD, the World Bank and the UN. This collaboration will not only help to prevent tax evasion and tax avoidance but it will contribute to monitor capital movements and repatriation as well as gathering useful information for subsequent investigations. Administrative assistance in the fight against tax evasion and tax avoidance will be rendered more efficient if supplemented by a revitalised form of judicial cooperation.

SECTION II: THE URGENT NEED TO REVITALISE SUB-REGIONAL JUDICIAL COOPERATION

It is crystal clear that, judicial cooperation is the soft spot of the fight against tax evasion and tax avoidance. The amorphous nature of the said judicial cooperation is due to absence of a harmonised tax legislation at the community level, the absence of institutions coordinating the said cooperation as well as the reluctance of member states of the sub region to release part of their competence on tax issues due to sovereignty motivations. Therefore, the enhancement of judicial institutions in charge of fight against tax evasion and tax avoidance (paragraph II) as well as the harmonisation of sanctions (paragraph I) will be a giant step in the process of revitalising sub regional judicial cooperation.

PARAGRAPH I: THE HARMONISATION OF SANCTIONS AGAINST TAX OFFENCES

The disparate manner of states to sanction tax related offences has shown its limits. There is now a growing need for states to harmonise these sanctions. This is because, by leaving States to determine the sanctions for Community tax related offences, there is a risk that very disparate sanctions will be adopted. The penalty for the same conduct may be moderate in one State while it is very severe in another. This great heterogeneity of sanctions might lead to injustice. Another reason put forward, which is a corollary of the first, is to avoid certain States from becoming tax havens because of the flexibility of their legislation. The hypothesis is easy to imagine, it is obvious that if a State takes very flexible sanctions compared to others, this could be a source of motivation for fraudsters who will choose to establish themselves in this State. As such, there is an urgent need to harmonise community sanctions (A) via specific technics (B)

A: The harmonisation of sanctions by the community legislator

There has been a significant change in the attitude of the community legislator, particularly with regard to the offence of money laundering and terrorist financing. In these areas, the Community legislator has not only incriminated these behaviours, but also accompanied them with criminal sanctions. This is has been possible thanks to Title V of Regulation N° 01/03-CEMAC-UMAC on the prevention and suppression of money laundering and terrorist financing in Central Africa. According to article 46 of this text, anyone who intentionally commits one or more of the acts relating to the definition of money laundering shall be punished by imprisonment for 5 to 10 years and a fine of up to five times the amount of money laundered, but not less than CFAF 10,000,000. This article also punishes the attempt, complicity, participation in an association or agreement to commit money laundering.

The offence of terrorist financing is punishable by a minimum of 10 years' imprisonment and a fine of up to 10 times the amount of the funds involved, but not less than FCFA 10,000,000. It is not even necessary for the funds to have been actually used to commit a terrorist act for the offence to be committed.^201(*) Accompanying measures to the initial sanctions have also been provided. They include confiscation, fines and permanent or temporary bans.

The CEMAC legislator has made a giant step in incriminating money laundering and terrorist financing as well as the harmonisation of related sanctions. This is an endeavour, which ought to be encouraged. This initiative should be extended to all types of tax related offences reason being that it will render judicial cooperation in the said domain more effective. However, the technic to be adopted for such a harmonisation of sanctions is still to be defined.

B: The techniques of harmonisation of community sanctions

In terms of content, it is generally accepted that harmonisation of sanctions should only concern offences that have been harmonised at Community level and should mainly concern prison sentences and fines. That said, several methods can be adopted for the harmonisation of these penalties. Among these methods, the system of a minimum base for the maximum penalty, the system of a range and the system of standardisation are the most advanced.^202(*)

First of all, with regards to the system of a minimum base for the maximum penalty, the Community legislator must lay down minimum thresholds for the maximum penalty. In other words, it is a question of determining a floor above which the States must set the minimum penalty. Here, Community law criminalises a behaviour and sets a minimum penalty below which the States must not go.^203(*)

Secondly, with regard to the range system, it requires the Community legislator to provide a framework for the States' initiative by setting minimum and maximum limits for the penalty. Community law therefore sets both the minimum and the maximum penalty and leaves the States free to take initiatives which nevertheless respect these limits. The merit of this solution is that it avoids both excessive flexibility in punishment and excessive severity.^204(*)

Finally, the system of uniformity of punishment appears to be the most radical approach. According to this system, Community law incriminates and lays down uniform penalties, which are imposed in all Member States without any intervention by the national legislator. This technique has the merit of imposing a uniform Community sanction in all Member States while also avoiding the injustices that may result from a heterogeneous application of sanctions to violations of the same Community standards. Although the most appropriate, this technique of standardising sanctions is nevertheless the most difficult to accept and to achieve.^205(*) Thus further justifying the need to enhance the institutions in charge of judicial cooperation.

PARAGRAPH II: THE ENHANCEMENT OF JUDICIAL INSTITUTIONS

The enhancement of judicial institutions in charge of fighting against tax evasion and tax avoidance will entail the consecration of the principle of mutual recognition of courts decisions(A) on one hand and on the other hand the proposal of some recommendations(B)

A: The consecration of the principle of mutual recognition of courts decisions by the CEMAC member States

The principle of mutual recognition of court decisions is one of the fundamental principles of judicial cooperation. This principle was easily enshrined in the CEMAC framework. It is the work of the Agreement on Judicial Cooperation between the Member States of CEMAC. In any case, this principle as enshrined by the CEMAC legislator allows the judicial decisions of one State to be not only res judicata in the other States (1) but to be enforceable (2).

1: the application of the principle of res judicata in tax matters

In principle, Res judicata^206(*) in one Member State is binding should be binding on the others. That is, judgments of one State Party may have both positive and negative authority in the other States Parties.

Res judicata is said to be positive when it can be taken into account to produce certain effects. This is the case, for example, with section 15(a) of the Cameroon Criminal Code, which provides that foreign criminal sentences «shall be taken into consideration as previous conviction for the purposes of aggravation of sentence, of preventive confinement, of suspension, of sentence or revocation of such suspension of revocation, of release on license, of rehabilitation and of amnesty». This means that foreign criminal decisions that have become final can be taken into account to qualify recidivism or to decide on rehabilitation or on the amnesty of a person.

Secondly, the negative authority of res judicata is simply an application of the principle of "non bis in idem". This principle prohibits any new prosecution in a State for the same acts if they have already been the subject of a conviction in another Member State. The negative authority of res judicata thus prohibits any new prosecution for the same acts against a person who has already been acquitted or convicted in a decision that has become final. This solution is retained at the domestic level by section 15 para 2 of the Cameroonian penal Code. However, in order to be applied, a threefold identity of object, cause and parties is required.^207(*)

In any case, whether it is a question of positive or negative res judicata, the decision in question must be in order. It must have been given by a competent court following due process and must be final. The extension of this principle to tax related offences will be very beneficial for judicial cooperation within the framework of the fight against tax evasion and avoidance in the CEMAC zone.

2: the consecration of executory force of courts decisions delivered at the community level

The agreement on judicial cooperation between the CEMAC member states recognises the enforceability of the criminal decisions of one state party in the others. Indeed, Article 9 of this text provides that: "the high contracting parties undertake to enforce in their prisons, at the request of the judicial authorities of the requesting State, sentences involving deprivation of liberty, whatever their duration, pronounced by the courts of the requesting State against any person, regardless of nationality, who is found in the territory of the requested State". Any conviction that has become res judicata in accordance with the criminal law provisions in force in the territory of the requesting State may therefore be enforced in any of the other Member States^208(*). The same applies to financial sentences enforced on request by the recovery servicesof thecompetent recovery authorities of the requesting State^209(*).

The solution thus proposed is much broader than that adopted by section 16(1) of the Cameroonian penal Code. Indeed, this text reserved the enforcement in Cameroon of foreign criminal sentences to decisions involving Cameroonian nationals and residents. With the judicial cooperation agreement, an adaptation of the national legislation is necessary to the exigencies of community norms becomes necessary. However, by virtue of the principle of the primacy of the Community criminal law, Community provisions excludes national provisions that are incompatible or contrary to it.

B: Recommendations for an efficient judicial cooperation

Judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone could be enhance through the creation of a financial legal department at the community level (2) and the creation of community institutions in charge of coordinating judicial cooperation (1).

1: the creation of community institutions in charge of coordinating judicial cooperation

It has been realised that, one of the things limiting effectiveness of judicial cooperation in fighting against tax evasion and tax avoidance is the absence of institutions in charge of coordinating the said cooperation. This state of things calls for the creation of such an institution. This can be done based on the European model where we have EUROJUST.

The European Office of Justice (Eurojust) was established by a decision of the Council of Europe on 28^th February 2002 . It is a body with legal personality whose mission is to prevent all forms of organised crime such as:Terrorism, Cybercrime, Trafficking in human beings, Drug trafficking, Crimes against the financial interests of the EU members, Migrant smuggling, Environmental crime, Money laundering, Swindling and other types of fraud . It is composed of prosecutors, magistrates or police officers from the Member States of the European Union, one from each country. Eurojust works with national authorities to combat a wide range of serious and complex cross-border crimes involving two or more countries. The Agency leads the judicial response to growing threats in Europe, enabling the Member States to keep one step ahead of criminals, mainly focusing on organised crime groups. ^210(*).

Eurojust has jurisdiction in the 27 EU Member States. It intervenes when the crimes concern at least two EU Member States, or a Member State and third countries. Its tasks are based on three major objectives which are:

- To promote and improve the coordination of investigations and prosecutions between the competent authorities of the Member States

- To improve cooperation between these authorities, in particular by facilitating the implementation of international mutual legal assistance and the execution of extradition requests

- To support national authorities in order to enhance the effectiveness of their investigations and prosecutions.^211(*)

The creation of a similar body within the CEMAC framework might prove to be very useful in enhancing the effectiveness of judicial cooperation in the fight against the aforementioned crimes. These magistrates and judicial police officers, present within the institution it will make it possible to strengthen teamwork between judicial authorities and to put an end to the sometimes illusory obstacle of the divergence of judicial culture between the different Member States. Moreover, the development of this body could lead to the creation of a genuine Community prosecution service.

2: the creation of a financial prosecutors office at the community level

The financial prosecutor's office^212(*) (PNF) has been effective in France since December 2013. This organ has jurisdiction over the entire national territory and material jurisdiction limited to the most serious economic and financial offences. It takes charge of highly complex cases concerning the fight against tax evasion, corruption and stock exchange cases (stock exchange offences, price manipulation offences), which fall under the exclusive jurisdiction of the new financial prosecutor. Indeed, the establishment of the financial prosecutor's office allows for the specialisation of the public prosecutor's office, enabling it to increase its action against very serious economic and financial crime, including complex tax evasion.^213(*)

The creation of such and institution at the community level will be of great help in the fight against tax evasion and tax avoidance. However, its success will require enormous sacrifices on the part of the member States with regard to their sovereignty, the recognition of all the financial offences falling within the competence of the future Community prosecutor's office and the harmonisation of both substantive and procedural rules.

Pending the implementation of such a solution, which requires a great deal of effort on the part of the Member States, another solution that would be much easier to implement would be the creation of a judicial cooperation department in the prosecutor's offices of the various national jurisdictions, which would deal with requests for mutual legal assistance.

CONCLUSION OF CHAPTER IV

No human activity being perfect, and the construction of our community in all domains (political, economic sociocultural and judicial etc.) being a gradual process. This chapter of our work was dedicated in proposing solution which if adopted will contribute in amelioration the fight against tax evasion and tax avoidance in the administrative and more specifically in the judicial domain. In so doing, the technic used at this juncture, was mostly comparative in nature. Reason being that we inspired ourselves from recommendations of the IMF and the OECD to improve administrative cooperation. For judicial cooperation, we inspired ourselves from the EU notably through one of its organs called EUROJUST and from France precisely by examining the way the PNF functions. Then we went further to propose the creation of such organs at the community level.

CONCLUSION OF PART II

GENERAL CONCLUSIONCONCLUSION OF PART II

This part of our work was based on providing an in-depth analysis of the problems inherent in preventing tax evasion and tax avoidance and the need of adopting a new approach aimed at enhancing cooperation in fighting against evasion and tax avoidance in the CEMAC zone. This analysis revealed the shortcomings of these different mechanisms of cooperation at the institutional and structural levels. Furthermore, judicial and administrative cooperation are limited by the absence of a harmonised sub-regional approach on the modalities of judicial cooperation and on the other hand by the disuse of sub regional available administrative assistance mechanisms.

Face with these difficulties, a new approach of cooperation as earlier mentioned will be necessary to solve the problems highlighted supra. These new approach concerns both administrative and the judicial dimension of the cooperation. In the administrative domain, there is the need to rethink administrative assistance. This entail the adoption of a multifaceted common policy on tax assistance and the extension of administrative cooperation organs and countries situate out of the CEMAC zone. Furthermore, the revitalisation of judicial cooperation will encompass the harmonisation of tax related offences and the enhancement of judicial institutions.The enhancement of judicial institutions through consecration of the principle of mutual recognition of courts decisions on one hand and on the other hand the proposal of some recommendations relating to the justice system of the community.

GENERAL CONCLUSION

BIBLIOGRAPHYGENERAL CONCLUSION

Our study was centred on the role of judicial cooperation in the fight against tax evasion and tax avoidance in the CEMAC zone. This study confirmed the pre-eminence of administrative cooperation within the framework of the fight against tax evasion and tax avoidance over judicial cooperation. A dominance not only asserted within CEMAC but in other sub-regional and regional groupings worldwide. This state of things thus let us to our problem Statement which was articulated as:What role does judicial cooperation plays in the fight against tax evasion and tax avoidance in the CEMAC zone? Faced with the above-mentioned problematic, our hypothesis was centered on the fact that, judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone supplements administrative cooperation. The objectives here, being to determine whether the current form of judicial cooperation within the CEMAC sub-region permits an effective fight against tax evasion and tax avoidance and if the adoption of a new approach will contribute in enhancing the role of judicial cooperation in fighting against the above-mentioned fiscal malpractices. Using the hypothetic and deductive method the answer to our central problematic consisted in analysing the role of judicial cooperation within the framework of the fight against tax evasion and tax avoidance in the CEMAC zone. The objective was to present the generalities of tax evasion and tax avoidance and the various mode of cooperation devised by CEMAC member States to solve the problem of tax evasion and tax avoidance. We further looked at the problems inherent in preventing tax evasion and tax avoidance and concluded by proposing solution aimed to enhance judicial cooperation.

As per the method mentioned supra, it was realised that the role of judicial cooperation within the framework of the fight against tax evasion and tax avoidance is limited. This limitation is explained by the fact that, States prefer administrative rather than judicial cooperation to fighting against tax evasion and tax avoidance. To be candid, the practiced of judicial cooperation is well developed in criminal matters notably in the fight against terrorism, human trafficking, drug trafficking, piracy and other forms of transnational organised crimes

The practiced of administrative cooperation in the fight against tax evasion and avoidance is based on the exchange of information from one tax administration or authority to another. This exchange of information could be on request or automatic. Its practice being regulated at the sub regional level byCEMAC convention n°17/65-UDEAC-38 of 14^th December 1965 on mutual assistance in tax matters and a more global scale by the model letter convention of the OECD. Judicial cooperation concerning the combating of tax evasion and tax avoidance is characterised by the exchange of mutual legal assistance wherein, we find practices such as, international rotatory commission, the transfer of judicial acts,denunciation for prosecution, execution of judgments and extradition. Extradition in tax matters being based on terms and offences agreed by the parties.

Furthermore, the abovementioned forms of cooperation are characterised by challenges. In so doing, it was observed that judicial cooperation in the CEMAC zone has loopholes such as conditional extradition in tax matters, the protection of banking secrecy, corruption, laxity of the process of adoption and ratification of community texts as well the scarcity of community institutions in charge of coordinating judicial cooperation. Furthermore, administrative cooperation is faced with challenges such as the disuse of sub-regional administrative assistance instruments characterised by the disuse of sub-regional community administrative assistance instruments and the failure to adopt a community based approach based on the new modalities of administrative assistance.

A panacea for the problems facing judicial and administrative cooperation will include inter alia the necessity of a new approach in matter of administrative assistance involving a multifaceted common policy on tax assistance and the extension of administrative cooperation out of the CEMAC boundaries. Furthermore, the revitalisation off judicial cooperation could be done via the harmonisation of sanctions relating to tax offences, the consecration of the principle mutual recognition of courts decision by CEMAC members States,the creation of community institutions in charge of coordinating judicial cooperationand finally the creation of a financial legal department at the community level.

In fine, it sequel from the above analysis that States have a preference for administrative cooperation in lieu of judicial cooperation because judicial cooperation will entail them to surrender some aspects of their sovereignty in tax matters when we know that the imposition and collection of taxes is the manifestation of states sovereignty. Despite these limits, the truth is that, as time goes on tax evaders and avoiders device more and more ingenious strategy to escape from their fiscal obligations. In doing, an efficient fight against the above enunciated tax malpractices will entail a strong and smooth application of administrative and judicial cooperation, the former supplementing the latter.

This research work is intends to be a reference in a context marked by a lack of documentation as well case law on the role of judicial cooperation in the fight against tax evasion and avoidance in the CEMAC zone. Indeed, this work offers necessary tools to member states of the sub-region to effectively fight against tax evaders and avoiders thereby recovering resources that are rightfully theirs and which they have long been deprived of. In a more practical way, it aims to facilitate cooperation between sub-regional administrations on both the judicial and administrative domain, to help fight against fraud and tax evasion, and to guarantee fair competition between companies established in the CEMAC zone and those established out of the sub region.

BIBLIOGRAPHY

ANNEXURESBIBLIOGRAPHY

I. BOOKS

A- GENERAL

Ø CORNU (G), Vocabulaire juridique (Association Henri Capitant), 9^e éd, PUF, Paris, 2011.

Ø GRAWITZ (M), Méthodes des sciences sociales, 8^e éd., Dalloz, Paris, 1990.

Ø FREYSSINET-DOMINJON (J), Méthodes de recherche en sciences sociales, Montchrestien, Paris, 1997.

Ø ISAAC (G.) et BLANQUET (M.), Droit général de l'Union européenne, 10^e éd., Sirey, 2012.

Ø Robert (K), After Hegemony: Cooperation and Discord in the World Political Economy, Princeton University Press, 1984.

Ø George (R), Les forces créatrices du droit, 2^ème édition, Paris, LGDJ, 1955.

Ø Oxford advanced learner's dictionary, 6^th edition.

Ø KELSEN(H),Théorie pure du droit, traduction Charles EISENMANN, Paris LGDJ, 1999.

B- SPECIFIC

Ø CASTAGNÈDE (B), Précis de fiscalité international, 4éd, PUF, Paris, 2002.

Ø DE LA MOTTE (A,M), Droit Fiscal, PUF, Paris, 2011.

Ø BELTRAME (P) et MEHL(M), Techniques, politique et institutions fiscales comparées, Thémis, PUF, 1997.

Ø ATECK A DJAM(F), Droit du contentieux Fiscal Camerounais, Harmattan, Paris, 2017.

Ø ROGERS-GLABUSH (J), IBFD International tax glossary, IBFD, Amsterdam, 2009.

Ø Roger Athanase (M,A), L'harmonisation fiscale et douanière en zone CEMAC: fiscalité communautaire en Afrique centrale (Cameroun, Centrafrique, Congo, Gabon, Guinée Equatoriale, Tchad), Editions universitaires européennes EUE, Berlin, 2011.

II- REVIEWS

Ø Lemernicier (B), L'évasion fiscale est-elle un devoir moral ? in revue éthique, octobre 2001.

Ø Sagesse (O,A),La communautarisation de la politique budgétaire en zone CEMAC. Revue Cahiers africains de droit international, CADI, 2021.

Ø TRAVERSA(E) et Matthieu(P), l'action de l'OCDE en matière de lutte contre l'évasion fiscale internationale et d'échange de renseignements: développements récents. Revue Générale Du Contentieux Fiscal, 2015.

III- COLLOQUIUMS

Ø L'ESPACE JUDICIAIRE EUROPEEN, acte du colloque d'Avignon, Ministère français de la justice, la documentation française, 1999.

IV- THESIS

A- PHD

Ø BANGO(A), l'élaboration et la mise en oeuvre de la fiscalité dans les pays de la CEMAC, Thèse : Doctorat en Droit,Université Jean Moulin Lyon 3, 2003.

Ø Jean (K), les actes juridiques des communautés et organisations internationales d'intégration en Afrique Centrale et Occidentale, Thèse de Doctorat, Université du Yaoundé II-Soa, 2003.

Ø BAGAGNA(B), L'harmonisation des politiques fiscales en zone CEMAC : esquisse de théorie du droit fiscal communautaire, Thèse de Doctorat Ph.D, Université de Douala, 2012.

B- MASTERS

Ø NZIE (J), « la souveraineté fiscale à l'épreuve des exigences de la transparence fiscale internationale. Cas des États de la zone CEMAC », Mémoire de master, Université de Douala, 2014.

Ø NGAPA (T), « La coopération judiciaire pénale dans la zone CEMAC » Mémoire de DEA en Droit Communautaire et Comparé CEMAC, Université de Dschang 2005.

Ø ETEME (O), « La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO » Mémoire de Master en Droit public international et communautaire, Université de Yaoundé II 2013.

Ø Mwanangana (k), « La problematique de la fraude fiscale sur le développement de la république démocratique du Congo » mémoire de licence en droit, Université de kinshasa 2006.

IV- LEGAL TEXTS

A- Community legislation

Ø CEMAC treaty.

Ø OHADA treaty.

Ø CEMAC Tax Convention n°5/66 UDEAC-49 of 13^th December 1966

Ø CEMAC convention n°17/65-UDEAC-38 of 14^th December 1965 on mutual assistance in tax matters.

Ø Agreement on judicial cooperation between the CEMAC Member States of 28^th January 2004

Ø Extradition agreement between CEMAC member States of 28^th January 2004

Ø Addendum to the CEMAC treaty relating to the institutional and legal system of the community.

Ø Regulation N°4/CEMAC-069-CM-04 of 21^st July 2000 adopting the agreement on cooperation in criminal police matters between the States of Central Africa.

Ø Regulation N°02/02/CEMAC/UMAC/CM of 14^th April 2002 on the organization of the action group against money laundering in Central Africa (GABAC).

Ø Regulation N°03/CEMAC/UMAC/CM of 2^nd October 2012, establishing a manual of procedures for mutual evaluations at GABAC.

Ø Regulation N°02/CEMAC/UMAC/CM of 14th April 2002, as amended by Regulation 01/CEMAC/UMAC/CM of 2^nd October 2010.

Ø Directive N° 07/11-UEAC-028-CM-22 of 19th December 2011, relating to VAT and excise duties.

Ø Directive n°02/O1/UEAC050-CM06 of 3rd August 2001 relating to corporate income tax defining harmonized system of corporate tax and transfer prices.

Ø Directive 2011/16/EU of 25^th April 2011 on administrative assistance in the European Union.

Ø Regulation N° 01/03-CEMAC-UMAC of 4^th April 2003 on the prevention and suppression of money laundering and terrorist financing in Central Africa.

Ø Act n°10/88-UDEAC-257 of 7 December 1988 on the Harmonisation of Registration, Stamp and Guardianship Fees in UDEAC

Ø Act n°3/72-153-UDEAC of 22^nd December 1972, revised by Directive n°02/01/UDEAC/O50-CM-06 of 3^rd August 2001, defining the scope of application, the taxable profit and the taxation procedures.

Ø Regulation n°07/19-UEAC-010 A-CM33 of 08^th April 2019 revising Act N°5 /66-UDEAC-49 of 13^th December 1966 relating to the Double Taxation Convention.

B- National legislation

Ø Cameroons' 1996 Constitution

Ø General tax code Cameroon

Ø Code Général des impôts Gabon

Ø Code Général des impôts France

Ø Law n° 2003/04 of 21^st April 2003 on banking secrecy

Ø Law n° 2016/007 of 12^th July 2016 relating to the Penal Code (Cameroon)

Ø Law n°002/2003 of 7 May 2003 instituting a regime of prevention and repression of illicit enrichment in the Gabonese Republic.

Ø law n°5-2009 of 22nd September 2009 on corruption, bribery and fraud and related offences in the Republic of Congo.

V- Websites

Ø www.mémoreonline.com

Ø www.oecd.org

Ø www.cairn.info

Ø www.investopedia.com

Ø www.dgi.ga

Ø www.cemac.int

Ø www.finances.gouv

Ø www.fatf-gafi.org

Ø http://porgo.unblog.fr

Ø www.oxfamfrance.org

Ø www.capital.fr

Ø www.linkedin.com

Ø https://ec.europa.eu

Ø https://untermportal.un.org

Ø www.imf.org

Ø www.eurojust.europa.eu

Ø https://www.economie.gouv.fr

Ø https://ecomatin.net

Ø https://bofip.impots.gouv.fr

Ø www.legicam.cm

Ø https://cours-de-droit.net

Ø ANNEXURES

TABLE OF CONTENTANNEXURES

Ø CEMAC Tax Convention of 13^th December 1966

Ø Convention on Mutual Administrative Assistance in Tax Matters 14^th December 1966

Ø Agreement on judicial cooperation between the CEMAC Member States of 28th January 2004

TABLE OF CONTENT

TABLE OF CONTENT

DISCLAIMER ii

DEDICATION iii

ACKNOWLEDGEMENTS iv

LIST OF ABREVIATION v

ABSTRACT vi

RESUME vii

SUMMARY viii

GENERAL INTRODUCTION 1

I- Background and justification of the study 1

II- Delimitation of the study 3

A- Geographical delimitation 3

B- Temporal delimitation 4

C- Material delimitation 4

II- Definition of key terms 4

A- Judicial cooperation 4

B-Tax Evasion 6

C-Tax Avoidance 8

D-The CEMAC Zone 9

III- Interest of the study 10

A- Academic interest 10

B- Practical interest 10

IV- Literature Review 11

V- Problem statement 14

VI- Hypothesis 15

VII- The theoretical and methodological framework of the study 16

A- The theoretical framework 16

B- The methodological framework 17

PART I 20

AN ANALYSIS OF THE ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 20

CHAPTER I: AN OVERVIEW OF TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 22

SECTION I: THE POLITICAL AND LEGAL DIMENSION OF JUDICIAL COOPERATION 22

PARAGRAPH I: THE POLITICAL DIMENSION OF JUDICIAL COOPERATION 22

A: The active role of the representatives of the executive within the CEMAC zone 23

1: The conference of Heads of State 23

2: The Council of Ministers of UEAC and the Ministerial Committee of UMAC 23

B: The council of ministers of OHADA 24

1: The Permanent Secretariat: role in preparing the Uniform Acts 24

2: The Council of Ministers: role of deliberation and adoption 24

C: The influence GABAC and FATF 25

1: GABAC 25

2: FATF 25

PARAGRAPH II: THE LEGAL DIMENSION OF JUDICIAL COOPERATION 26

A: The rules adopted by the CEMAC legislator 26

B: The harmonisation of sanctions provided by OHADA 27

C: The constitutive elements of tax evasion and tax avoidance 27

1: tax evasion 28

a- the legal element 28

b- the material element 28

c- the intentional element 28

2: tax avoidance 28

SECTION II: THE MECHANISMS OF TAX EVASION AND TAX AVOIDANCE 29

PARAGRAPH I: FORMS OF TAX EVASION AND AVOIDANCE 29

A: Forms of tax evasion 29

1: at the national level 29

a- voluntary omission to declare 29

b- Voluntary concealment of amounts subject to tax 30

c- Making fictitious or inaccurate entries in the accounting books 30

d- Issuance of false invoices 30

e- Opposition to the action of the Tax Administration 30

2: at the international level 31

a- The overstatement of the prices of goods purchase abroad 31

b- understatement of export selling prices 31

c- The transfer of profits by overstating or understating the turnover or expenses 31

d- The Remuneration for fictitious services 31

B: forms of tax avoidance 32

1- Tax heavens 32

a- The role of tax heavens in tax avoidance 32

b- The impacts of tax heavens 33

2 - Other forms of tax avoidance 33

PARAGRAPH II: CAUSES AND CONSEQUENCES OF TAX EVASION AND AVOIDANCE 34

A: causes of tax evasion and tax avoidance 34

1- Causes of tax evasion 34

a- The inadequacy of the tax system 34

b- The economic hardship 34

c- Mentalities 35

d- Tax pressure 35

e- The quest for easy gain 35

f- Denial of constraints 35

2- Causes of tax avoidance 36

B: consequences of tax evasion and tax avoidance 36

1- Consequences of tax evasion 36

a- On the national plan 36

b- On the international plan 37

2- Consequences of tax avoidance 37

a- Impact on financial resources 37

b- Impacts on developing countries 37

CONCLUSION OF CHAPTER I 38

CHAPTER II: THE OPERATIONAL ASPECTS OF THE COOPERATION IN PREVENTING TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE 39

SECTION I: THE JUDICIAL ASPECTS OF THE COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE 39

PARAGRAPH I: THE INSTITUTION OF COMMUNITY TAX NORMS AND THE MATERIALISATION OF THE COOPERATION 39

A: The foundation of community tax norms 40

1: The immediacy of community directives 40

2: The principle of the primacy of the community tax norm 41

B: The material dimension of the judicial cooperation 41

1: the harmonisation of taxes 42

a: the harmonisation of indirect taxes 42

b: the harmonisation of direct taxes 44

2: tax treaties 47

a: multilateral tax convention on the elimination of double taxation 47

b: tax convention on mutual exchange of information 49

3: community monitoring of transfer pricing 50

PARAGRAPH II: THE PRACTICAL ASPECTS OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE 51

A: mutual legal assistance 51

1: international rotatory commission 51

2: the transfer of judicial acts 52

3: extradition 52

B: denunciation for prosecution and execution of judgments 53

1: denunciation for prosecution 53

2: exequatur 54

SECTION II: THE ADMINISTRATIVE ASPECT OF THE COOPERATION 54

PARAGRAPH I: THE MODALITIES OF EXCHANGE OF INFORMATION 55

A: the automatic exchange of information 55

B: administrative assistance on request 55

1: preliminary considerations 55

2: Form of the request 56

PARAGRAPH II: THE NATURE AND CHARACTERISTICS OF INFORMATION EXCHANGED 56

A: the character of information contained in the request 56

1: the confidentiality of the information 56

2: Reciprocity 56

B: the nature of information 57

CONCLUSION OF CHAPTER II 58

CONCLUSION OF PART I 59

PART II: THE PROBLEMATIC INHERENT IN PREVENTING TAX EVASION AND TAX AVOIDANCE AND THE NECESSITY OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE 60

CHAPTER III: CHALLENGES FACING JUDICIAL COOPERATION IN PREVENTING TAX EVASION AND AVOIDANCE IN THE CEMAC ZONE 62

SECTION I: FACTORS ACCOUNTING FOR THE LIMITED ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE 62

PARAGRAPH I: INSTITUTIONAL FACTORS 62

A: laxity of the process of adoption and ratification of community texts 62

1: The impact of the unanimity rule in matters of judicial cooperation 63

2: The gap between adoption and ratification 63

B: the scarcity of Community institutions in charge of judicial cooperation 64

PARAGRAPH II: STRUCTURAL FACTORS 65

A: Conditional extradition in tax matters 65

B: the protection banking secrecy 65

C: systemic corruption 66

SECTION II: THE LACUNAS OF THE CURRENT JUDICIAL AND ADMINISTRATIVE COOPERATION INSTRUMENTS 68

PARAGRAPH I: THE ABSENCE OF A HARMONISED SUB-REGIONAL APPROACH ON THE MODALITIES OF JUDICIAL COOPERATION 68

A: The timid harmonisation of tax legislation 68

B: The significant weight of sovereignty claims by CEMAC member States 69

PARAGRAPH II: THE DISUSE OF SUB-REGIONAL ADMINISTRATIVE ASSISTANCE IN THE CEMAC ZONE 69

A: The anachronistic nature of community administrative assistance instruments 69

B: The failure to adopt a community approach based on the new modalities of administrative assistance 70

CONCLUSION OF CHAPTER III 71

CHAPTER IV: THE NEED OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC ZONE 72

SECTION I: THE NECESSITY OF A NEW APPROACH IN MATTERS OF ADMINISTRATIVE ASSISTANCE IN OTHER TO ENHANCE JUDICIAL COOPERATION 72

PARAGRAPH I: THE IMPERATIVE OF ADOPTING A MULTIFACETED COMMON POLICY ON TAX ASSISTANCE 72

A: the adoption of automatic exchange of information 73

B: the institution of a legal framework governing automatic exchange of information 73

C: the reinforcement of the means of institutions in charge of assistance 74

1: the creation of a central African tax commission 74

2: the establishment of tax attachés and a central liaison office 74

a: The role of the tax attaché 75

b:The role of the central liaison office 75

PARAGRAPH II: THE EXTENSION OF COOPERATION OUT OF CEMAC BOUNDARIES 76

A: an assistance between CEMAC and other Africans States 76

1: the need for the signature of a cooperation agreement between CEMAC-ECOWAS-ECCAS on tax assistance 76

2: the urgent need of a tax assistance agreement between CEMAC and Nigeria 77

B: the extension of the cooperation with international organisation 77

1: The OECD contribution to administrative assistance 77

2: The IMF expertise in matters of administrative assistance 78

SECTION II: THE URGENT NEED TO REVITALISE SUB-REGIONAL JUDICIAL COOPERATION 79

PARAGRAPH I: THE HARMONISATION OF SANCTIONS AGAINST TAX OFFENCES 80

A: The harmonisation of sanctions by the community legislator 80

B: The techniques of harmonisation of community sanctions 81

PARAGRAPH II: THE ENHANCEMENT OF JUDICIAL INSTITUTIONS 82

A: The consecration of the principle of mutual recognition of courts decisions by the CEMAC member States 82

1: the application of the principle of res judicata in tax matters 82

2: the consecration of executory force of courts decisions delivered at the community level 83

B: Recommendations for an efficient judicial cooperation 84

1: the creation of community institutions in charge of coordinating judicial cooperation 84

2: the creation of a financial prosecutors office at the community level 85

CONCLUSION OF CHAPTER IV 86

CONCLUSION OF PART II 87

GENERAL CONCLUSION 87

BIBLIOGRAPHY 87

ANNEXURES 87

TABLE OF CONTENT 87

* ¹ Sports men, actors, politicians, businessmen etc.

* ² https://www.oecd.org/tax/transparency/who-we-are/about/ Accessed on 20/07/2021.

* ³ Théophile NGAPA,La coopération judiciaire pénale dans la zone CEMAC, (on line) Mémoire : DEAen Droit Communautaire et Comparé CEMAC, Université de Dschang 2005. (accessed on the 09/07/2021) available on https://www.memoireonline.com/03/08/989/cooperation-judiciaire-penale-zone-cemac.htm.  

* ⁴See the tax agreement between France and Burkina Faso signed on the 11^th August 1965, the tax agreement between France and Cote d'Ivoire signed on the 6^th April 1966, the tax agreement between France and Senegal on 29^th March 1974, the tax agreement between Cameroon and France signed on the 21^st of October 1976, the tax agreement between France and Congo signed on the 27^th November 1987, the tax agreement between France and Gabon signed on the 20^th September 1995 etc.

* ⁵The « Convention généralede coopération en matière de justice » was signed in Tananarive presently called Antananarivo (capital of Madagascar), on the 12th September 1961 and entered into force on the 30th January 1962. It has the followings signatories; Cameroon, central Africa republic, Congo, Côte d'Ivoire, Dahomey (Benin), Gabon, Upper-Volta(Burkina Faso), Madagascar, Mauritania, Niger, Chad.

* ⁶HUVET (J.) et al, EUROJUST : La pertinence de la coopération judiciaire au sein de l'Union européenne, Mémoire en contentieux européen ; MEGIE (A.), « Généalogie du champ de la coopération judiciaire européenne » ; cited by Théophile NGAPA, La coopération judiciaire pénale dans la zone CEMAC, Mémoire : DEA en Droit Communautaire et Comparé CEMAC, Université de Dschang 2005.

* ⁷The G20 or Group of Twenty is an intergovernmental forum comprising of 19 countries and the European Union (EU). It works to address major issues related to the global economy, such as international financial stability, climate change mitigation, and sustainable development. The G20 is composed of most of the world's largest economies, including both industrialized and developing nations. The group collectively accounts for around 90% of gross world product (GWP),75-80% of international trade,^[ two-thirds of the world's population, and roughly half the world's land area.

* ⁸With 162 members, the Global Forum on Transparency and Exchange of Information for Tax Purposes is the leading international body working on the implementation of global transparency and exchange of information standards around the world.

* ⁹ Joël Samuel NZIE, la souveraineté fiscale à l'épreuve des exigences de la transparence fiscale internationale, Cas des états de la zone CEMAC,(on line) Mémoire : Université de Douala, 2014. (accessed on the 09/07/2021) available on https://www.memoireonline.com/02/20/11560/m_La-souverainete-fiscale--l-epreuve-des-exigence-de-la-transparence-fiscale-internationale-Cas-d30.htm.

* ¹⁰Ibid.

* ¹¹ Jean Louis BERGEL, Méthodes du droit et théorie générale du droit,2^e éd, Dalloz, 1989, p.131 cited by Martial Fabrice ETEME ONGONO, La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Mémoire : master en droit publique international et communautaire, université de Yaoundé II, 2013.  

* ¹² Ibid.

* ¹³ Gérard CORNU, Vocabulaire juridique (Association Henri Capitant), 9^e éd., PUF,Paris,2011, p. 269.

* ¹⁴Martial Fabrice ETEME ONGONO,La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Op.cit.

* ¹⁵ Gérard CORNU, Vocabulaire juridique Op.cit.

* ¹⁶ Martial Fabrice ETEME ONGONO, Op,cit.

* ¹⁷ Manon DUTHOIT, La coopération pénale au sein de l'Union européenne, Mémoire de Master de droit pénal et sciences pénales, Université Panthéon-Assas, 2010, p. 10. cited by Martial Fabrice ETEME ONGONO, La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Mémoire : master en droit publique international et communautaire, université de Yaoundé II, 2013.  

* ¹⁸ Martial Fabrice ETEME ONGONO, Op,cit.

* ¹⁹ Ibid.

* ²⁰ Théophile NGAPA, Op,cit.

* ²¹Martial Fabrice ETEME ONGONO, Op,cit.

* ²² Section 2 of the judicial cooperation agreement between CEMAC member states of 28^th January 2004.

* ²³Charles E. McLure, Jr. "Taxation". Britannica. Retrieved 3^th March 2015

* ²⁴ Cass. 30 November 1950 - Pas. 1951 - Tome I - p. 191.

* ²⁵ Gaston Jèze,Cours de finances publiques : 1934-1935 : théories générales sur les phénomènes financiers, Librairie générale de droit & de jurisprudence, Paris, 1935, page 39.

* ²⁶ https://dictionary.cambridge.org/dictionary/english/evasion accesed on 10/11/21

* ²⁷Tax Evasion & Whistleblowers: Curious Policy or Durable Strategy? Tax Law: International & Comparative Tax eJournal. Accessed 10/11/2021.

* ²⁸ https://www.oecd.org/ctp/glossaryoftaxterms.htm accessed on 16/08/2021.

* ²⁹ Section M108 of the same code goes further by précising the penalties referred to in section M107 shall also apply to person who «fails to make or ensure the making of entries, or abets the making of inaccurate or fake entries into the journals and balance sheet books provided for by the Commercial Code, or into documents serving as such, as well as any person convinced of having drawn up or abetted the drawing of false balance sheets;...Produces fake documents or documents recognized to be inaccurate in order to obtain tax relief or reimbursement of any kind.

* ³⁰« l'article P-1024 rend passible d'un emprisonnement de quinze  (15) jours à cinq (5) ans ou d'une amende de cinq cents mille (500 000) F CFA à cinq millions (5 000 000) F CFA ou de l'une de ces peines seulement quiconque : se soustrait frauduleusement ou tente de soustraire frauduleusement à l'établissement, au paiement, aureversement total ou partiel des impôts, droits et taxes visés dans le CGI ; dissimule une partie des sommes sujettes à impôt ; organise son insolvabilité, ou fait obstacle au recouvrement de l'impôt.  L'article P-1025 du CGI quant à lui, punit également des mêmes peines quiconque : Omet de passer ou de faire passer les écritures, ou fait passer des écritures inexactes et fictives dans les  livres , journaux et inventaires  prévus par les actes uniformes OHADA, ou dans les documents qui  en tiennent lieu, ainsi que toute personne qui est convaincue d'avoir établi ou aidé à établir de faux bilans ;...Produit des pièces fausses ou reconnues  inexactes  en vue d'obtenir, en matière d'impôts et taxes, des dégrèvements  ou remboursements  de quelle que  nature que ce soit. »

* ³¹Julie ROGERS-GLABUSH, IBFD International tax glossary,IBFD, Amsterdam, 2009, Page 196.

* ³²  Évasion, fraude, optimisation fiscale : quelles différences ? » [ archive], sur financespubliques.fr, Ministère de l'Économie et des Finances (consulté le 22 décembre 2019)

* ³³Antoine Malgoyre, Montages juridiques et habileté fiscale, Issy-les-Moulineaux, Lextenso, 2017, 240 p. ( ISBN  978-2-297-06043-1, lire en ligne [ archive]), p. 17

* ³⁴Federation of Equatorial French Africa

* ³⁵ Equatorial Customs Union

* ³⁶ Ange BANGO, l'élaboration et la mise en oeuvre de la fiscalité dans les pays de la CEMAC, Thèse : Doctorat en Droit,Université Jean Moulin Lyon 3, 2003, page 4.

* ³⁷ Ibid.

* ³⁸ Ibid.

* ³⁹ Ibid.

* ⁴⁰This is declared to be "an old Kantian maxim" in General Systems Vol. 7-8 (1962)ý, p. 11, by the Society for the Advancement of General Systems Theory, but may simply be a paraphrase or summation of Kantian ideas
Source: https://quotepark.com/quotes/1827072-immanuel-kant-experience-without-theory-is-blind-but-theory-wit/ accessed on 03/08/2021.

* ⁴¹ Guy ISAAC et Marc BLANQUET, Droit général de l'Union européenne, 10^e éd., Sirey, 2012, p. 635.

* ⁴² Ibid.

* ⁴³ http://www.lepetitjuriste.fr/wp-content/uploads/2011/06/Memoire_Eurojust2.pdf accessed on 23/06/2022.

* ⁴⁴Pierre BELTRAME et MEHL, Techniques, politique et institutions fiscales comparées, Thémis, PUF, 1997, P.36

* ⁴⁵TRAVERSA, EDOARDO et POSSOZ, Matthieu. L'action de l'OCDE en matière de lutte contre l'évasion fiscale internationale et d'échange de renseignements: développements récents. Revue Générale Du Contentieux Fiscal, 2015, p. 5-24.

* ⁴⁶ Bernard CASTAGNEDE, Précis de fiscalité international, 4éd, PUF, Paris, 2002, p. 282 & 431.

* ⁴⁷ Alexandre MAITROT DE LA MOTTE, Droit Fiscal, PUF, Paris, 2011, p. 101.

* ⁴⁸ Felix ATECK ADJEM, Droit du Contentieux Fiscal Camerounais, 2éd, Harmattan, Paris, 2017, p.367 & 368.

* ⁴⁹ QUIVY Raymond et VAN CAMPENHOUDT Luc, Manuel de recherche en sciences sociales, 2^e éd., Dunod, Paris, 1995, p. 85 cited by Martial Fabrice ETEME ONGONO, La coopération judiciaire pénale dans les communautés économiques régionales en Afrique : cas de la CEEAC et de la CEDEAO, Mémoire : master en droit publique international et communautaire, université de Yaoundé II, 2013.  

* ⁵⁰ Madeleine GRAWITZ, Méthodes des sciences sociales, 8^e éd., Dalloz, Paris, 1990, p. 34.

* ⁵¹ Dario Batistella, Théories des relations internationales, Paris, Presses des sciences politiques, 2e édition, 2002, p.226. cited by Jean Cottin Gelin KOUMA, Le facteur culturel dans la coopération sino-camerounaise:le cas de l'implantation de l'institut Confucius a l'institut des relations internationales du Cameroun(IRIC), Mémoire : master II en relation international option diplomatie, Universite de Yaounde II-Soa , 2010.

* ⁵²Marcel Merle, Sociologie des relations internationales, Paris, Dalloz, 1974, p.3.

* ⁵³Shiraev, Eric B, International Relations. New York: Oxford University Presses, 2014, p. 78.

* ⁵⁴ Ibid.

* ⁵⁵Keohane Robert, After Hegemony: Cooperation and Discord in the World Political Economy, Princeton University Press, 1984.

* ⁵⁶ Ibid.

* ⁵⁷Madeleine GRAWITZ, op.cit.

* ⁵⁸Jacqueline FREYSSINET-DOMINJON,Méthodes de recherche en sciences sociales, Montchrestien, Paris, 1997 p.11.

* ⁵⁹ Madeleine GRAWITZ, op.cit.

* ⁶⁰Théophile NGAPA, Op,cit.

* ⁶¹Ibid.

* ⁶² Section 20 addendum to the CEMAC Treaty.

* ⁶³Section 21, addendum to the CEMAC Treaty.

* ⁶⁴According tosection 9 of the addendum to the CEMAC Treaty, the UEAC Council of Ministers is made up of representatives of the Member States, including the ministers in charge of finance, and economic affairs.

* ⁶⁵ Théophile NGAPA, Op,Cit.

* ⁶⁶Ibid.

* ⁶⁷ Section 6 of the OHADA Treaty

* ⁶⁸ Refered to in French as « Groupe d'Action contre le blanchiment d'Argent en Afrique Centrale »

* ⁶⁹ Refered to in French as « « Groupe d'action financière »(GAFI)

* ⁷⁰ www.fatf-gafi.org/fr/pages/gabac.htmlaccessed on 28/02/22

* ⁷¹ Regulation N°02/CEMAC/UMAC/CM of 14^thApril 2002, as amended by Regulation 01/CEMAC/UMAC/CM of 2^ndOctober2010.

* ⁷² http://spgabac.org/les-attributions-du-secretariat-permanent/ accessed on 28/02/22

* ⁷³ Ibid.

* ⁷⁴ www.fatf-gafi.org/about/ accessed on 28/02/22.

* ⁷⁵Ibid.

* ⁷⁶ Théophile NGAPA, Op,Cit.

* ⁷⁷ www.cemac.int accessed on 02/03/2022.

* ⁷⁸ Théophile NGAPA, Op,Cit.

* ⁷⁹ http://porgo.unblog.fr/la-fraude-et-levasion-fiscale/ accessed on the 02/03/22

* ⁸⁰Felix Ateck A Djam, Op.cit.

* ⁸¹ Op.cit. note 70.

* ⁸² Ibid.

* ⁸³ www.oxfamfrance.org/inegalites-et-justice-fiscale/evasion-fiscale-definition-consequences-solutions/ accessed on 04/03/2022.

* ⁸⁴Ghislain Kavula Mwanangana, La problematique de la fraude fiscale sur le développement de la république démocratique du Congo (on line) mémoire :licencié en droit, Université de kinshasa 2006 (accessed on 04/03/2022) available on https://www.memoireonline.com/12/06/303/m_problematique-fraude-fiscale-developpement-republique-democratique-congo3.htm  

* ⁸⁵ In the case of Cameroon, we have; The Discharge Tax Regime, The Simplified Regime (RSI) and The Regime of the Real

* ⁸⁶ Ghislain kavula Mwanangana, Op.cit.

* ⁸⁷ Ibid.

* ⁸⁸ Ibid.

* ⁸⁹ Ibid.

* ⁹⁰ Pierre Aubry, La Suisse et l'Europe : la Suisse dans la constellation des paradis fiscaux, Séminaire de science politique, mars 2003, p. 10 ; cited by Ghislain Kavula Mwanangana, La problematique de la fraude fiscale sur le développement de la république démocratique du Congo, mémoire : licencié en droit, Université de kinshasa 2006.

* ⁹¹ Ghislain kavula Mwanangana, Op.cit.

* ⁹² www.investopedia.com/terms/t/taxhaven.asp accessed on 06/03/2020.

* ⁹³Op.cit. note 80.

* ⁹⁴Ibid.

* ⁹⁵Ibid.

* ⁹⁶ Le Matin (Suisse), 14 février 2010, Les sept techniques de base pour devenir un parfait évadé fiscal, par Sonia Arnal, p. 29

* ⁹⁷ Thomas Chenel, « Les cryptomonnaies facilitent des activités criminelles et la fraude fiscale, insiste l'OCDE » [archive], sur Business Insider France, 2 mars 2021 (consulté le 6 juillet 2021)

* ⁹⁸ Ghislain kavula Mwanangana, Op.cit.

* ⁹⁹"Too much tax kills tax" Legend has it that the inspiratorof this formula, the contemporary American economist Arthur Laffer, scribbled on the corner of a table curve that was going to make him famous. This graph showed that raising taxes inevitably leads to falling tax revenues. Arthur Laffer's theory earned him the attentive ear of Ronald Reagan and today of Donald Trump.

* ¹⁰⁰Bertrand Lemernicier, L'évasion fiscale est-elle un devoir moral ? in revue éthique, octobre 2001.

* ¹⁰¹ https://www.capital.fr/votre-argent/evasion-fiscale-1351505 accessed on 06/03/2022.

* ¹⁰² Ghislain kavula Mwanangana, Op.cit.

* ¹⁰³Ibid.

* ¹⁰⁴IBId.

* ¹⁰⁵ https://www.oxfamfrance.org/inegalites-et-justice-fiscale/evasion-fiscale-definition-consequences-solutions/ accessed on 06/03/2022.

* ¹⁰⁶We are referring here to related agreements, directives and regulations.

* ¹⁰⁷Hans KELSEN, Théorie pure du droit, traduction Charles EISENMANN, Paris LGDJ, 1999, p 367.

* ¹⁰⁸Joël Samuel NZIE, Op.cit.

* ¹⁰⁹ Joël Samuel NZIE, Op.cit.

* ¹¹⁰ KENFACK Jean, Les actes juridiques des communautés et organisations internationales d'intégration en Afrique Centrale et Occidentale, Thèse de Doctorat, Université du Yaoundé II-Soa, 2003, p. 296 cited by Joël Samuel NZIE, la souveraineté fiscale à l'épreuve des exigences de la transparence fiscale internationale, Cas des états de la zone CEMAC, Université de Douala, 2014.

* ¹¹¹ Ibid.

* ¹¹²Jean Michel COMMUNIER, Droit fiscal communautaire, Bruylant, Bruxelles 2001, 558 p. cited by by Joël Samuel NZIE, la souveraineté fiscale à l'épreuve des exigences de la transparence fiscale internationale, Cas des états de la zone CEMAC, Université de Douala, 2014.

* ¹¹³ Ibid.

* ¹¹⁴ Ibid.

* ¹¹⁵ https://bofip.impots.gouv.fr/bofip/7555-PGP.html/identifiant%3DBOI-ENR-20120912 accessed on 17/05/2022

* ¹¹⁶Roger (M,A), L'harmonisation fiscale et douanière en zone CEMAC, p. 148. cited by ONDONGO Sagesse Aimé, La communautarisation de la politique budgétaire en zone CEMAC,Revue Cahiers africains de droit international, CADI, 2021, n°016

* ¹¹⁷ Ibid.

* ¹¹⁸ONDONGO Sagesse Aimé, La communautarisation de la politique budgétaire en zone CEMAC, Revue Cahiers africains de droit international, CADI, 2021, no 016, page 12.

* ¹¹⁹ Ibid.

* ¹²⁰ Ibid.

* ¹²¹ Section 55 of CEMAC directive on Coporate tax

* ¹²² Ibid.

* ¹²³ Roger MEYONG ABATH, L'harmonisation fiscale et douanière en zone CEMAC, op.cit., p. 203.

* ¹²⁴See Directive n°01/04-UEAC-177

* ¹²⁵ There may be multiple taxation where the same income is taxed both in the State of its source and in the State of domicile

* ¹²⁶ The only situation worthy of consideration is that of those who, because of borders, have to bear a higher tax burden than persons whose lives are spent entirely in one State. That is why, the injustice that resulting from this has led to the elimination of double taxation.

* ¹²⁷ This period can be a calendar year

* ¹²⁸ https://cours-de-droit.net/double-imposition-internationale/ accessed on 24/05/2022

* ¹²⁹Ibid.

* ¹³⁰ www.legicam.cm accessed on 25/05/2022

* ¹³¹ https://www.oecd.org/fr accessed on 25/05/2022

* ¹³²Ibid.

* ¹³³Section 1 CEMAC Convention on Mutual Administrative Assistance in Tax Matters

* ¹³⁴Section 3 CEMAC Convention on Mutual Administrative Assistance in Tax Matters

* ¹³⁵Section 4 CEMAC Convention on Mutual Administrative Assistance in Tax Matters

* ¹³⁶ www.linkedin.com/pulse/transfer-pricing-meaning-examples-risks-benefits-shivangi-agarwal accessed on 17/03/2022

* ¹³⁷Section 52 of CEMAC directive on corporate tax.

* ¹³⁸ https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/mutual-legal-assistance-and-extradition_fr accessed on 13/03/2022.

* ¹³⁹ an examining magistrate

* ¹⁴⁰ https://untermportal.un.org/unterm/Display/record/UNHQ/commission_rogatory/3960F5B69D9641C6852569FD000297AD accesed on 13/03/2020

* ¹⁴¹ Section 19 of the CEMAC agreement on judicial cooperation

* ¹⁴²Section 8 of the CEMAC agreement on judicial cooperation

* ¹⁴³ Extradition agreement between CEMAC member States of 28 January 2004.

* ¹⁴⁴ Jean ZIEGLER, l'espace judiciaire européen, acte du colloque d'Avignon, P 115.

* ¹⁴⁵ Mireille DELMAS-MARTY, criminalité économique et atteintes à la dignité de la personne, précité, P 64

* ¹⁴⁶ www.cairn.info/revue-revue-internationale-d-intelligence-economique-2014-1-page-27.htm accessed on 15/03/22

* ¹⁴⁷ Res judicata

* ¹⁴⁸This forum was restructured in 2009 and works under the auspices of the OECD and G20. Its mission is to implement the international standard through two phases of peer review process. It addresses tax evasion, tax havens, offshore financial centres, tax information exchange agreements, double taxation and money laundering

* ¹⁴⁹ Since the entry into force of the new commentary to section 26 of the OECD Model Tax Convention in July 2012 requests for a particular case as well as grouped requests are now possible. On the other hand, neither the automatic exchange of information nor spontaneous administrative assistance are still part of the Community standard at the present time

* ¹⁵⁰ Joël Samuel NZIE, Op.cit.

* ¹⁵¹ Ibid.

* ¹⁵² Ibid.

* ¹⁵³Section 2 of Act No. 17/65-UDEAC-38 of 14^th December 1965.

* ¹⁵⁴ section 26(2) Model Convention of the OECD and related commentary

* ¹⁵⁵ Article 26, paragraph 3, sub-paragraphs a) and b) of the Model Convention and article 7, paragraph 1 (first sentence) of the Agreement, article 21, paragraph 2, sub-paragraphs a) and c) of the Council Convention of Europe/OECD

* ¹⁵⁶ Oxford advanced learner's dictionary, Op.cit.

* ¹⁵⁷ The conference of head of states and the council of ministers.

* ¹⁵⁸ Théophile NGAPA, Op.cit.

* ¹⁵⁹Ibid.

* ¹⁶⁰ ZANOTO (Jean-Pierre), l'espace judiciaire européen, Acte du colloque d'Avignon,1999, p138.

* ¹⁶¹Section 26 (2) Extradition Agreement between CEMAC Member States.

* ¹⁶² Bernard BERTOSSA, l'espace judiciaire européen, acte du colloque d'Avignon, p. 123

* ¹⁶³ Théophile NGAPA, Op.cit.

* ¹⁶⁴ Ibid.

* ¹⁶⁵ Section 4(4) of the Extradition agreement between CEMAC member States of 28^th January 2004.

* ¹⁶⁶ Jean ZIEGLER, l'espace judiciaire européen, acte du colloque d'Avignon op.cit., P 115

* ¹⁶⁷Mireille,DELMAS-MARTY, criminalité économique et atteintes à la dignité de la personne, Maison des Sciences de l'Homme, 2001,p.64 cited by Théophile NGAPA, La coopération judiciaire pénale dans la zone CEMAC, Mémoire : DEA en Droit Communautaire et Comparé CEMAC, Université de Dschang 2005.

* ¹⁶⁸ Théophile NGAPA, op.cit.

* ¹⁶⁹ Ibid.

* ¹⁷⁰ Ibid.

* ¹⁷¹ Section 144(amended by ordinances n°12/78 of 23 January 1978 and n°15/80 of 13 September 1980) of the Gabonese penal code goes in the same line.

* ¹⁷²This legal provision of the Cameroonian penal code goes in the same line with section 2 of the Congolese penal code.

* ¹⁷³Section 12 of Law n°002/2003 of 7 May 2003 instituting a regime of prevention and repression of illicit enrichment in the Gabonese Republic.

* ¹⁷⁴Joël Samuel NZIE, op.cit. note 116.

* ¹⁷⁵Théophile NGAPA, op.cit.

* ¹⁷⁶Joël Samuel NZIE, op.cit.

* ¹⁷⁷BEGNI BAGAGNA, L'harmonisation des politiques fiscales en zone CEMAC : esquisse de théorie du droit fiscal communautaire, Thèse de Doctorat Ph.D, Université de Douala, 2012, p 403.

* ¹⁷⁸Joël Samuel NZIE, op.cit.

* ¹⁷⁹MEYONG ABAH Roger Athanase,L'harmonisation fiscale et douanière en zone CEMAC: fiscalité communautaire en Afrique centrale (Cameroun, Centrafrique, Congo, Gabon, Guinée Equatoriale, Tchad), Editions universitaires européennes EUE, Berlin, 2011, p.37

* ¹⁸⁰Joël Samuel NZIE, op.cit.

* ¹⁸¹Joël Samuel NZIE, op.cit.

* ¹⁸² Ibid.

* ¹⁸³ Directive 2011/16/EU of 25 April 2011 on administrative assistance in the European Union.

* ¹⁸⁴Joël Samuel NZIE, op.cit.

* ¹⁸⁵ Ibid.

* ¹⁸⁶MEYONG ABAH Roger, op.cit, p.410

* ¹⁸⁷Section 31 of the Convention governing the Central African Monetary Union.

* ¹⁸⁸ BEGNI BAGAGNA, op.cite. p.412

* ¹⁸⁹Joël Samuel NZIE, op.cit.

* ¹⁹⁰ Ibid.

* ¹⁹¹ Ibid.

* ¹⁹² Ibid.

* ¹⁹³ Ibid.

* ¹⁹⁴ https://ecomatin.net/echanges-commerciaux-le-cameroun-veut-conquerir-le-nigeria/ accessed on 27/04/22

* ¹⁹⁵ The country had an estimated population of 219 million inhabitants in 2021. This represent a giant markets for the economies the CEMAC sub region.

* ¹⁹⁶ OECD.com, op.cit.

* ¹⁹⁷ Ibid.

* ¹⁹⁸ https://www.imf.org/en/About/Factsheets/Sheets/2018/10/07/imf-and-the-fight-against-illicit-financial-flows accessed on 24/04/2022.

* ¹⁹⁹ Ibid.

* ²⁰⁰ Ibid.

* ²⁰¹ Article 52 Regulation No. 01/03-CEMAC-UMAC.

* ²⁰² Théophile NGAPA, Op.cit.

* ²⁰³ Ibid.

* ²⁰⁴ Ibid.

* ²⁰⁵ Ibid.

* ²⁰⁶The principle of res judicata is applied in both civil law and common law legal systems. According to this principle, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.

* ²⁰⁷ Théophile NGAPA, Op.cit.

* ²⁰⁸ Section 10 Agreement on judicial cooperation between the CEMAC Member States.

* ²⁰⁹ Section 13 alinéa 2 ibid.

* ²¹⁰ https://www.eurojust.europa.eu/ accessed on 26/04/22.

* ²¹¹ Ibid.

* ²¹² The parquet National Financier(PNF) has been very successful in the fight against economic and financial crimes in France. CEMAC member states could inspire themselves from such an institution in other to enhance the role of judicial cooperation in the fight against tax evasion and tax avoidance in the sub region.

* ²¹³ https://www.economie.gouv.fr/files/files/PDF/circulaire-lutte-contre-fraude-fiscale.pdf accessed on 26/04/22.