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

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.

* 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