Competition law in Tunisia governs economic relations within the marketplace — particularly where they concern pricing policies, distribution agreements, terms of sale, exclusivity arrangements, supplier-distributor relationships, and economic concentration transactions. Law No. 36 of 2015 on the reorganisation of competition and prices rests on three core principles: freedom of pricing, transparency of transactions, and the prohibition of practices liable to distort the normal functioning of competition on the Tunisian market.
Competition Law and the Regulation of Commercial Conduct
Competition law establishes a legal framework that applies to all businesses operating in the commercial, industrial, or service sectors — whether Tunisian companies or foreign investors active in Tunisia. This framework does not merely prohibit explicit agreements between competitors; it also encompasses tacit practices that may lead to price coordination, market-sharing, or output restriction. Its significance is felt most acutely when drafting distribution contracts, supply agreements, exclusivity arrangements, and general terms of sale applicable to customers or suppliers. A company may therefore be required to review its commercial policy in light of a legal consultation on competition law before adopting clauses that could affect market freedom.
Article 5 of Law No. 36 of 2015 targets anticompetitive practices, including agreements or coalitions whose object or effect is to prevent, restrict, or distort competition. Specifically covered are: price-fixing, obstructing market entry, sharing customers or territories, and the abuse of a dominant position or a state of economic dependence. These rules do not stand in the way of fair competition; rather, they set legal boundaries when commercial policy becomes an instrument for excluding competitors or disrupting the mechanisms of supply and demand.
Price Agreements and Exclusivity Under Competition Law
Price agreements rank among the most sensitive issues in competition law, particularly when direct or indirect coordination occurs between companies that are, in principle, independent market actors. Such coordination may take the form of an exchange of pricing information, the fixing of a uniform profit margin, or a tacit agreement not to fall below a certain price level. Similarly, commercial exclusivity can give rise to legal risks when its duration, geographical scope, or economic effects result in closing the market to other operators. This does not mean that all exclusivity clauses are prohibited: their assessment depends on the nature of the market, the balance of power between the parties, the length of the commitment, and its actual impact on competition.
In distribution or commercial agency contracts, it is essential to distinguish between a suggested price and an imposed price. Recommending a resale price may, depending on the circumstances, be permissible; imposing a minimum resale price or a fixed margin, however, may constitute a practice warranting thorough legal scrutiny. These matters can give rise to a dispute if one party considers that the conditions imposed upon it have harmed its commercial position or restricted its economic autonomy. In such cases, the file may also touch on issues of commercial litigation and dispute resolution when a disagreement arises over the performance of a contract or the termination of a commercial relationship.
Commercial Practices Subject to Prior Review
Among the practices to be approached with caution are: unjustified refusal to sell, tying arrangements, discriminatory conditions applied to comparable customers, below-cost selling, and demands for commercial benefits without genuine consideration. Law No. 36 of 2015 sets out rules on price disclosure, invoicing between businesses, general terms of sale, the prohibition of imposed resale prices, and certain practices between economic operators. These provisions are of particular importance in sectors built around distribution networks, multiple suppliers, or long-term commercial relationships.
| Practice | Potential Risk |
| Imposition of a minimum resale price | Restriction of the distributor’s freedom |
| Refusal to sell | Potentially restrictive practice |
| Discriminatory conditions | Market imbalance |
| Below-cost selling | Negative effect on competition |
| Broad exclusivity | Potential market foreclosure |
Certain at-risk situations arise when formulating a discount policy, amending distribution terms, or terminating a commercial relationship with a distributor heavily dependent on its supplier. They may also emerge when a company enters the Tunisian market through a partnership or acquisition, in which case the competitive impact analysis forms part of the broader legal review of the transaction. This type of review may be incorporated into the legal due diligence conducted prior to an acquisition when the transaction involves the takeover of a company or an equity stake — matters that fall under corporate mergers and acquisitions.
Economic Concentration and Penalties Under Competition Law
Competition law does not stop at regulating the day-to-day conduct of businesses; it extends to economic concentration transactions that may create or reinforce a dominant position on the market. Such transactions include certain mergers, acquisitions, or takeovers of a company that are liable to alter market structure. Any such operation must therefore be examined from a competition standpoint, in addition to its contractual, tax, and financial dimensions — an approach that is all the more essential when the companies concerned operate on the same market or on adjacent markets.
Failure to comply with competition law rules may result in financial penalties and corrective measures, with the Competition Council able to intervene in matters falling within its jurisdiction. The law provides for fines that may, in certain cases, amount to a percentage of turnover generated in Tunisia — making preventive risk assessment a concrete and practical exercise rather than a mere formality. Where a transaction takes place in the context of a merger or acquisition, it is advisable to examine the corporate, mergers and acquisitions aspects alongside the competition issues, so that contractual analysis and regulatory risk are not treated in isolation.
Common Mistakes to Avoid
• Assuming that a verbal agreement between competitors carries no legal risk.
• Imposing a final resale price on distributors rather than limiting oneself to a recommended price.
• Applying different conditions to comparable customers without objective justification.
• Using commercial exclusivity without precisely defining its duration and geographical scope.
• Terminating a significant commercial relationship without documenting the professional or legal grounds for doing so.
• Confusing fair competition with practices liable to distort the market.
Anti-Speculation Regulations and Compliance Documentation
Certain commercial practices intersect with other regulatory frameworks, particularly those involving the hoarding of goods, stockpiling with intent to create a shortage, or the dissemination of information affecting prices or supply. Decree No. 14 of 2022 on combating illicit speculation targets practices that undermine the regularity of markets and distribution channels. Any decision that could affect the availability of goods or price levels should therefore be approached with the utmost caution, especially in sensitive sectors.
From a practical standpoint, retaining contracts, invoices, general terms of sale, discount policies, commercial correspondence, evidence of refusals to sell, and minutes of meetings helps clarify the economic rationale behind a commercial decision. Sound legal drafting alone is insufficient if its practical application produces an effect contrary to market rules. In situations involving unclear invoicing, concealed goods, or practices that may go beyond the scope of a straightforward commercial dispute, the analysis may also extend to the field of economic offences and anti-money laundering (AML) in Tunisia.
For companies, investors, and economic operators active in Tunisia, engaging a lawyer makes it possible to read the rules of competition law in their real-world context — whether the matter concerns a pricing policy, a distribution agreement, an acquisition, or a commercial dispute. Furthermore, AML issues in Tunisia may intersect with competition law concerns in certain situations involving atypical financial flows or opaque structures. Each situation ultimately depends on its own specific facts, the nature of the market in question, and the effects that may flow from the commercial decision under review.
Useful Documents in the Event of an Inspection or Dispute
The documentation of commercial decisions can prove a decisive factor when the practices in question are scrutinised. Among the documents likely to shed light on the situation are: contracts, invoices, general terms of sale, commercial correspondence, discount policies, minutes of meetings, price offers, evidence of refusals to sell, and any document attesting to the economic or legal basis of the decision taken.
Businesses facing a commercial dispute or seeking preventive legal advice on their commercial practices are encouraged to seek qualified legal counsel well versed in Tunisian competition law.
