Gabon -- Securities Classification Regulatory Overview

Gabon, as a member of the Economic and Monetary Community of Central Africa (CEMAC), adheres to regional financial regulations issued by institutions such as the Central African Financial Market Supervisory Commission (COSUMAF) and the Bank of Central African States (BEAC). These regional bodies are the primary regulators for financial markets and monetary policy across the CEMAC zone, which includes Gabon.

The classification of cryptocurrency tokens as securities in Gabon is primarily governed by COSUMAF Regulation No. 01/22-COSUMAF-CM relating to the regulation of crypto-assets and digital asset service providers in the CEMAC Zone, adopted on July 14, 2022. This regulation distinguishes between different types of crypto-assets and assigns regulatory oversight accordingly.

1. Legal Test for Securities Classification

Gabon, through COSUMAF, does not employ a direct "Howey test" equivalent (which is common in common law jurisdictions). Instead, it uses a classification system based on the nature of the rights and characteristics represented by the crypto-asset, linking it to existing definitions of "financial instruments" within CEMAC law.

The key legal test is whether a crypto-asset represents or confers rights akin to a financial instrument as defined by CEMAC Regulation No. 01/00-CM-UMAC of December 21, 2000, relating to the harmonization of financial instruments in the CEMAC zone.

COSUMAF Regulation No. 01/22-COSUMAF-CM (Article 4) defines different categories:

• Investment Tokens (Jetons d'Investissement): These are crypto-assets that "represent financial instruments within the meaning of Article 3 of Regulation No. 01/00-CM-UMAC of December 21, 2000, relating to the harmonization of financial instruments in the CEMAC zone." These are explicitly considered securities. The classification hinges on whether the token confers rights associated with traditional financial assets.
• Utility Tokens (Jetons d'Usage): These are crypto-assets whose primary purpose is to provide access to a good or service, and which are not acquired with the primary intention of investment. The regulation explicitly states that these are generally not considered financial instruments (securities), unless they subsequently acquire characteristics that make them fall under the definition of financial instruments.
• Payment Tokens (Jetons de Paiement): These are crypto-assets generally accepted by the community as a means of payment. These fall primarily under the jurisdiction of the BEAC, particularly if they function as electronic money (e.g., certain stablecoins). These are not considered securities but are subject to electronic money and payment services regulations.

In essence, the legal test is: Does the crypto-asset embody or grant rights analogous to shares, bonds, units in collective investment schemes, derivatives, or other instruments explicitly defined as "financial instruments" under CEMAC financial market law? If yes, it's an "investment token" and a security.

2. Which Tokens Are Considered Securities

Based on the above, the following types of tokens are generally classified as securities ("Investment Tokens"):

• Tokenized Shares: Tokens representing ownership in a company, conferring voting rights, dividend rights, etc.
• Tokenized Bonds: Tokens representing debt instruments, offering interest payments and repayment of principal.
• Tokenized Units of Collective Investment Schemes: Tokens representing units or shares in investment funds.
• Tokenized Derivatives: Tokens linked to underlying assets, whose value is derived from those assets (e.g., tokenized futures, options, swaps).
• Any crypto-asset designed or marketed with an expectation of profit from the efforts of others and conferring rights typical of traditional financial instruments.

3. Registration/Exemption Requirements for Token Issuers

For the issuance of Investment Tokens (i.e., crypto-securities), issuers in Gabon (and the CEMAC zone) are subject to stringent requirements under COSUMAF Regulation No. 01/22-COSUMAF-CM:

• Authorization Requirement: Any public offering of investment tokens requires prior authorization from COSUMAF (Article 5).
• Information Document (Prospectus): Issuers must prepare and publish an information document (prospectus) approved by COSUMAF. This document must contain comprehensive information about the issuer, the project, the rights attached to the tokens, risks, etc. (Article 5).
• Legal Structure: The issuer must be a legal entity (e.g., a company) established in a CEMAC member state.
• Fit and Proper Requirements: Directors and managers of the issuer must meet "fit and proper" criteria.
• Minimum Capital: Issuers must meet minimum capital requirements specified by COSUMAF.
• Custody: Arrangements for the custody of the underlying assets or the tokens themselves must be robust and secure, often requiring a licensed custodian.
• Anti-Money Laundering (AML) / Counter-Financing of Terrorism (CFT) Compliance: Issuers must implement robust KYC/AML/CFT procedures.

Exemption Requirements: The regulation (Article 5) allows for potential exemptions from the obligation to publish a prospectus under certain conditions, which COSUMAF may specify. These typically relate to:

• The total value of the offer.
• The number of investors.
• The nature of investors (e.g., offers exclusively to qualified investors). Specific thresholds for these exemptions would be detailed in COSUMAF instructions or decisions.

4. Secondary Trading Rules

Secondary trading of Investment Tokens is also regulated by COSUMAF (COSUMAF Regulation No. 01/22-COSUMAF-CM):

• Authorized Platforms: Trading of investment tokens must occur on digital asset trading platforms licensed and supervised by COSUMAF (Article 10). These platforms are considered Digital Asset Service Providers (DASPs).
• DASP Authorization: Entities operating such platforms must obtain prior authorization from COSUMAF, meeting criteria related to capital, governance, cybersecurity, risk management, and investor protection.
• Market Integrity: Platforms must implement rules to ensure fair and orderly trading, prevent market manipulation, and manage conflicts of interest.
• Transparency: Trading data may be subject to reporting requirements to COSUMAF.
• Investor Protection: Platforms are responsible for implementing KYC/AML/CFT measures, safeguarding client assets, and providing clear information to investors.

5. Enforcement Examples

As COSUMAF Regulation No. 01/22-COSUMAF-CM is relatively recent (2022), public enforcement actions specifically targeting crypto-securities violations in Gabon or the broader CEMAC zone might not yet be widely publicized or numerous. However, the framework provides COSUMAF with significant enforcement powers:

• Warnings and Orders: COSUMAF can issue warnings, injunctions, and orders to cease activities to unauthorized entities or those in non-compliance (Article 21).
• Fines: Monetary penalties can be imposed for violations of the regulation (Article 21).
• Withdrawal of Authorization: For licensed entities, COSUMAF can suspend or withdraw their authorization in cases of serious or repeated non-compliance (Article 21).
• Criminal Sanctions: The regulation also stipulates that violations are subject to criminal penalties as provided by national law of CEMAC member states, in addition to administrative sanctions (Article 21).

While specific Gabonese enforcement examples related to crypto-securities are not readily available in public records, the regional bodies like COSUMAF have been actively monitoring the crypto space. The overall trend in CEMAC is towards tightening supervision and ensuring that all financial activities, including those involving crypto-assets, fall within a regulated framework. Any entity in Gabon issuing or facilitating the trading of investment tokens without COSUMAF authorization would be in clear violation of these regional regulations and subject to the outlined enforcement measures.

Specific Legislation and Regulatory Guidance URLs

It can be challenging to find direct, publicly accessible English translations of all CEMAC/COSUMAF/BEAC regulations online. The official versions are typically in French. However, here are links to official sources where these documents can usually be found (often under "textes réglementaires," "réglementations," or "décisions"):

1. COSUMAF Regulation No. 01/22-COSUMAF-CM (Crypto-Assets):

   • This is the primary regulation. You would typically find it on the official COSUMAF website:
     • COSUMAF Official Website (French)
     • Navigate to "Textes réglementaires" or "Réglementations." Search for documents issued in 2022. The exact URL for the PDF may change.

2. CEMAC Regulation No. 01/00-CM-UMAC (Financial Instruments):

   • This is the foundational definition of financial instruments. It should also be available on the COSUMAF or CEMAC commission websites.
     • CEMAC Commission Official Website (French)
     • Look under legal texts or regulations.

3. BEAC Regulation No. 02/2022/CMAC/UMAC/CM (Electronic Money & Payment Services - relevant for payment tokens):

   • This regulation covers electronic money and payment services, which might overlap with certain crypto-assets (e.g., stablecoins).
     • BEAC Official Website (French)
     • Navigate to "Textes réglementaires," "Réglementations," or "Publications." Search for documents issued in 2022.

Given the dynamic nature of websites and potential for direct PDF links to change, it's best to navigate these official sites to ensure you access the most current and authoritative versions of the regulations.