An acquisition of a Tunisian company, a merger between competitors or a joint venture with a local partner can raise a competition-law question before closing: does the deal fall within merger control in Tunisia? The current framework remains Law No. 2015-36 of 15 September 2015 on the Reorganisation of Competition and Prices.
The competition review sits alongside the wider corporate M&A process in Tunisia and should be kept distinct from sector-specific approvals and general due diligence.
Which Transactions May Trigger Merger Control in Tunisia?
Article 7 defines an economic concentration by its effect rather than its label. A transaction may qualify where ownership, use of assets, rights or obligations is transferred in a way that allows one undertaking or a group to exercise direct or indirect decisive influence over another business.
For merger control in Tunisia, the key question is whether the transaction changes control. A share acquisition, statutory merger, takeover or acquisition of strategic rights may therefore require review. Minority investments also need scrutiny where governance rights or vetoes may confer decisive influence.
That test is narrower than the broader competition law framework in Tunisia, which also covers restrictive agreements, abuse of dominance and commercial conduct.
How Do Merger Control Thresholds in Tunisia Apply?
Article 7 requires approval where a concentration is likely to create or strengthen a dominant position on the Tunisian market, or a substantial part of it, and one of the statutory threshold conditions is met. The two alternative thresholds are a combined average market share above 30% during the previous three years, or aggregate turnover in the Tunisian market above the amount set by decree. The current turnover threshold is TND 100 million.
Merger control in Tunisia cannot therefore be assessed from the purchase price alone. The parties need to identify their Tunisian activities, calculate domestic turnover and consider the relevant market where the market-share test may apply.
A buyer conducting corporate due diligence before an acquisition should obtain the ownership, financial and market information needed for this review early.
When Can a Joint Venture Fall Within Merger Control in Tunisia?
Tunisian legislation does not expressly state that every newly created joint venture is a concentration. The OECD notes that Tunisian competition authorities have indicated that a joint venture may be treated as a merger where it performs, on a lasting basis, the functions of an autonomous economic entity. Draft Tunisian merger guidelines reflect that approach, but they are not binding legislation.
For merger control in Tunisia, the duration of the arrangement, economic autonomy of the vehicle and degree of control exercised by its shareholders should therefore be examined.
Where the venture is part of a wider investment, investment project structuring in Tunisia may raise separate regulatory requirements.
How Should a Merger Control Filing in Tunisia Be Prepared?
Article 9 requires the parties concerned to inform the Minister responsible for trade within 15 days of the relevant trigger, including conclusion of the agreement, merger, publication of a purchase or exchange offer, or acquisition of a controlling interest. Merger control in Tunisia should therefore be mapped against the transaction timetable before irreversible implementation steps are taken.
The filing must include the transaction document or draft, a note on expected effects, information on managers and principal shareholders, financial statements for the previous three years, market shares, subsidiaries and economically linked undertakings, auditors’ reports and a report on the economic advantages of the concentration.
The Minister’s silence for three months from a complete notification amounts to tacit approval. Additional information requests suspend that period. During the review, the parties may not make the concentration irreversible or permanently alter market conditions. The Competition Council has up to 60 days to give its opinion after referral by the Minister.
How Can Merger Control in Tunisia Affect Signing and Closing?
Merger control in Tunisia can affect transaction mechanics. Transaction documents may need to coordinate clearance with conditions precedent, long-stop dates and implementation restrictions. These issues can be addressed alongside closing conditions in a Tunisian share purchase agreement.
After receiving the Competition Council’s opinion, the Minister may approve the concentration, approve it subject to conditions, or refuse it. Article 43 provides that breaches of Articles 7 to 10, related decisions or commitments may attract a fine of up to 10% of the turnover achieved in Tunisia during the previous financial year.
Foreign investors should also determine whether investment authorizations in Tunisia apply separately. Merger clearance does not replace sector-specific approvals.
Frequently Asked Questions
Is merger notification mandatory in Tunisia?
Where the conditions in Article 7 are met, the concentration must be submitted for approval and the Article 9 notification process applies.
What are the merger control thresholds in Tunisia?
The two alternative thresholds are a combined average market share above 30% during the previous three years, or aggregate domestic turnover above TND 100 million, together with the statutory dominance test.
Are joint ventures subject to merger control in Tunisia?
Not automatically. Their structure, economic autonomy, duration and degree of control need to be examined.
How long does merger control review take in Tunisia?
Three months of silence from a complete filing amounts to tacit approval. Additional information requests suspend that period. The Competition Council has up to 60 days to issue its opinion after referral.
Can an acquisition close before merger clearance?
During the review period, the parties may not make the concentration irreversible or permanently change market conditions. Closing should therefore be aligned with merger control in Tunisia.
A transaction involving a Tunisian business should be screened early enough to determine whether merger control in Tunisia affects its structure, timetable or closing conditions. Parties can contact Kemicha Law Firm to review the control test, thresholds and filing timetable before implementation.
