The Role of Guidelines in Fostering Competition Policy in Tunisia

2. General context and scope

Abstract

Tunisia submitted its competition law and policy to an OECD Peer Review in 2022 taking an important step and demonstrating its dedication to implementing a modern and effective competition law and policy framework. This report builds on the recommendations made in the Peer Review, in order to support the Tunisian Competition Authorities to improve the Tunisian competition regime. To that purpose, the report provides Tunisia with suggestions and guidance on how to address specific shortcomings, in particular through the development of competition guidelines. This section provides an introduction to the report and describes its scope and context.

2.1. Project Background

This report is part of the “Fostering competition in Tunisia” project, jointly implemented by the OECD and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). This joint undertaking was launched in November 2022 and builds on the findings of the 2022 OECD Peer Review with a view to supporting the country in its efforts to enhance its competition enforcement and advocacy framework, including its merger control regime and judicial review process.

In addition to this report, the project included other components aiming at providing Tunisian officials with training and capacity-building activities, in order to promote the role of the competition authorities in merger review and other enforcement and advocacy areas and enhance the role of the Administrative Court in the judicial review process. In particular, the OECD organised the following seminars, with OECD staff and international experts, to Tunisian officials: (i) merger guidelines (November 2022); (ii) economics of merger control (November 2022); (iii) introduction to competition enforcement to new staff (February 2023) and (iv) cartel detection and investigation (April 2023). The OECD co-organised, together with GIZ and the EU, the first edition of Tunisia’s Competition Day (Journée de la Concurrence) in June 2023. A high-level seminar for judges of the Administrative Court was organised in February 2024, where a set of primers for judges on key principles for competition law was presented.

2.2. Context and interplay of competition entities

Tunisia was among the first countries in Africa and the Middle East to adopt a competition law. An initial bill was produced in 1985, but it was not until July 1991 that Act No. 91-64 was finally adopted. The Act has been revised several times and was finally repealed by Act No. 2015-36 of 15 September 2015 on the reorganisation of prices and competition. Tunisia has opted for a two-pronged system comprising an independent authority – the Competition Council – and a competition department (DGCEE) within the Ministry of Trade. The Administrative Court, which rules on appeals against the decisions of the competition bodies, completes this intuitional set-up.

The Competition Council has legal personality and financial autonomy and performs two main functions since 1995: a jurisdictional function and an advisory function. The Ministry of Trade’s DGCEE is responsible for the development, implementation and enforcement of competition rules.

Although the Peer Review did not make overarching recommendations on the institutional design, it highlighted the need for a reallocation of tasks in specific areas and for a better co-ordination between both competition entities in the country.

Merger control is a concrete example. The work on the merger control guidelines pilot undertaken within this project highlighted the pressing need for the revision of tasks between the DGCEE and the Competition Council to improve the efficiency of the process. In fact, the Ministry of Trade has jurisdiction over the review and control of mergers that fulfil the conditions in Article 7 of the Competition Act No. 2015-36. However, the actual assessment of the notified operation is mainly done by the Competition Council who (only) issues a non-binding opinion. The assessment aims to determine whether the merger is likely to create or strengthen a dominant position in the domestic market or a substantial part of it. The analysis is mostly legal rather than focussed on assessing the economic impact of the concentration, and the economic analysis usually limits itself to defining market shares and the effects of the merger on the structure of the market. The opinions of the Council are usually followed by the Minister, although there have been cases in which the Minister of Trade deviated from them (OECD, 2022[1]).

Both the DGCEE and the Competition Council may conduct investigations into anti-competitive practices. To avoid the duplication of investigative efforts, Tunisian law stipulates that the Ministry of Trade must inform the Competition Council of ongoing investigations, and vice versa. An investigation into an anti-competitive practice can be triggered in one of three ways: i) a complaint from a third party, ii) a leniency application or iii) self-referral (ex officio) by the investigating authority. A leniency programme has been in place since 2003. In this respect, the competition act provides that “the Council may, after hearing the government Commissioner, exempt from penalty or reduce the penalty for anyone who provides relevant information not accessible to the administration and likely to expose anticompetitive agreements or practices in which they took part”. Here again, both entities can be involved in the process since the application may be submitted to the DGCEE or to the general rapporteur of the Competition Council.

In terms of fine setting, the Competition Council may impose fines on companies up to 10% of their turnover in a given financial year. For individuals, the penalties include a prison sentence of 16 days to one year, a fine of TND 2 000 to TND 100 000 or both. This applies in particular to persons who have played “a decisive role” (Article 45) in the infringements set out under Article 5 of Act No. 2015-36 on competition and prices. The role of the Competition Council ends with the publishing of the decision. The Minister of Trade is responsible for implementing the decisions of the Council as well as for the recovery of fines.

The DGCEE and the Competition Council share competences in terms of competition advocacy. Article 14, paragraph 4, of Act 2015-36 stipulates that the DGCEE must co-operate with the Competition Council in “the implementation of programmes and plans to raise awareness and promote a culture of competition”. Compliance programmes are among the key tools for developing a competition culture within companies. However, there have not been any concrete steps to promote their adoption by companies in Tunisia and there is no clear indication on which organ should play a leading role in this aspect.

The Peer Review noted that the publication of guidelines by administrative authorities is not a common practice under Tunisian law and recommended developing public guidelines to enhance legal certainty and predictability of action by both competition entities. This report aims at supporting this undertaking across the four areas discussed above.

2.3. Scope of the report

This report builds on the recommendations made in the Peer Review (OECD, 2022[1]), in order to support the Tunisian Competition Authorities to improve the Tunisian competition regime. To that purpose, this report provides Tunisia with suggestions and guidance on how to address specific shortcomings as identified in the Peer Review, in particular through the development of competition guidelines.

Chapter 3 presents general information regarding what competition guidelines are, what their benefits are and how they can be developed.

Chapters 4 to 7 deal with merger control, fining methodology, leniency programme and compliance programmes. These four areas are among the key issues where the Peer Review has suggested further actions to be implemented. These chapters provide an overview on the issues affecting the framework conditions across the four areas. Additionally, they provide an overview of selected jurisdictions’ guidelines, with the view of helping Tunisian authorities when developing their own guidelines.

The seven jurisdictions selected for this study include OECD and non-OECD countries. The selection was done following a set of criteria based on the existence and accessibility of competition guidelines in the four specific areas and the extensive knowledge of the OECD about their specificities. The selected jurisdictions include:

• OECD countries: Belgium, Canada, European Union (European Commission) and France;

• Non-OECD countries: Kenya, Philippines and South Africa.

Belgium, Canada and Kenya were among the reviewers leading the Tunisia peer review process. The selection of Belgium, Canada, the European Union and France was also motivated by language considerations. The availability of their guidelines in French means that their practices are easily accessible and could be further examined by the Tunisian competition authorities, if needed. Kenya and South Africa are two key African jurisdictions with effective competition guidelines in place. The Philippine competition authority was established at the same time when the Tunisian Competition Act was revised. Furthermore, it has been an active competition enforcer and has successfully adopted a set of competition guidelines recently.

Chapter 8 provides Tunisia with recommendations to be taken into account when developing competition guidelines, in line with well-established international best practices. It also reiterates some key recommendations presented in the Peer Review that are related to the four areas covered in this report.

Given that there is a limited experience in Tunisia in terms of guidelines, a draft accompanying note on “Developing merger control guidelines” was first shared with the Tunisian authorities in February 2023 to serve as a reference for the staff tasked with producing merger guidelines as a first pilot. In September and October 2023, the Tunisian competition authorities submitted to the OECD a draft document of the Tunisian Merger Guidelines, which was taken into account in this report.

A first draft of this report was presented to Tunisian authorities in January 2024. The current report reflects all comments and suggestions received.