Competition guidelines are common instruments adopted by competition authorities worldwide to articulate their enforcement policy and approach with respect to various provisions of their competition laws, including both substantive and procedural elements. This section discusses competition guidelines, including their definition, potential benefits and the regulatory process to create guidelines. It also stresses how competition guidelines can be developed in Tunisia.
The Role of Guidelines in Fostering Competition Policy in Tunisia
Competition Law and Policy Reviews
3. Competition guidelines
Abstract
3.1. Definition of competition guidelines
The publication of competition guidelines by competition authorities is a common practice around the world. The term “guidelines” does not necessarily refer to their legal nature, but rather to their content. Indeed, guidelines comprise documents issued by a competition authority to spell out (often in advance and) in a transparent manner the agency’s enforcement practice and approach with respect to various provisions of its competition law, including both substantive and procedural aspects, typically based on past experience. Although competition guidelines are considered rules of practice (instead of rules of law), they can have legal effect in certain circumstances, despite not being binding on the courts, as further discussed in section 3.3. As such, they provide guidance criteria on the application of competition rules to the authority’ officials, market players and other stakeholders (such as other government agencies, academia and the legal community).
Competition guidelines commonly seek to explain the law; indicate how a competition authority is intending to interpret the legislative provisions; refer to any relevant case law or prior decisions, which assist the competition authority with its interpretation; and provide case or hypothetical examples.
3.2. The potential benefits of guidelines
Guidelines can serve a number of purposes for competition authorities. First, the preparation, consultation and subsequent publication of guidelines assist substantially in attaining the advocacy objectives of the competition authority to raise awareness and promote a competition culture. Second, published guidelines provide greater transparency of both the proposed substantive approach to the interpretation of the competition law and policy, as well as the competition authority’s procedural requirements, which helps ensure legal certainty and predictability for businesses seeking to comply with competition law.
3.2.1. Advocacy and education
Published guidelines help guide businesses and the public on the application of competition law and are therefore a useful advocacy instrument. In addition, the consultation process on draft guidelines itself also creates an opportunity for advocacy and education. Likewise, in its Guidelines for Implementing Competition Advocacy, the United Nations Conference on Trade and Development (UNCTAD) notes that drafting guidelines on aspects of anti-competitive conduct or the competition process provides a useful way to engage with stakeholders (Bulgarian Commission on Protection of Competition/UNCTAD, p. 9[2]).
While guidelines are important to all competition authorities, they can play an especially critical role for countries where the competition culture is still emerging and where competition agencies are often young, inexperienced and are faced with limited resources.
3.2.2. Transparency and legal certainty for the business community
Good regulatory practice requires, amongst other things, transparency. Guidelines provide a good opportunity for competition authorities to be transparent about their approach to the interpretation of substantive competition law as well as the procedural aspects of competition enforcement.
A transparent and fair competition enforcement process ensures the impartial and reasonable treatment of subjects of competition investigations. It also improves the accuracy and comprehensiveness of competition enforcement decisions, by making sure that all arguments are heard. Observing due process reinforces the legitimacy of competition enforcement and its credibility vis-à-vis interested parties as well as all citizens.
Over the years, the OECD Competition Committee has developed extensive work on transparency and procedural fairness (OECD, 2012[3]). In 2021, the OECD Council has adopted the Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[4]). The Recommendation states that competition law enforcement should be predictable and transparent, and perceived as such by affected and interested parties, as well as citizens, ensuring public confidence in law enforcement. To this end, the Recommendation calls Adherents to develop guidelines for procedural steps in competition law enforcement.
More broadly, the OECD has identified “accountability and transparency” as one of seven principles of good governance (OECD, 2012, p. 16[5]). To ensure accountability and transparency to the public, it identifies a need for a regulator to make publicly available “key operational policies and other guidance material, covering matters such as compliance, enforcement and decision review” (OECD, 2012, p. 80[5]). By disclosing these policies and guidance material, the public should have greater confidence and understanding of what is expected of them in terms of compliance. In addition to compliance-based guidance, regulators should publish procedural guidance which discloses the “rules, data and informational inputs that will be used to make decisions” (OECD, 2012, p. 83[5]).
In this context, the publication of guidelines can help create legal certainty regarding how competition law is interpreted and applied by the competition authority. Guidelines also allow market players to examine their behaviours considering the same criteria taken into account by the competition authority.
Competition authorities being transparent about priorities, approach and interpretation of the law is crucial to create trust and establish their reputation vis-à-vis the business community. For businesses, guidelines expand the transparency of administrative action and help create legitimate expectations (for instance regarding consistency in the application of the competition rules), therefore increasing legal certainty.
3.2.3. Reflect updated practices of the competition authorities
Another benefit of guidelines is that they can be relatively easily developed and updated to reflect the practices of the agency and the jurisprudence of the courts of the land. Certainly, this is an advantage over the changing of laws and decrees, processes that are often quite difficult and take time to enact.
Accordingly, guidelines can be regularly reviewed to reflect law amendments or the evolution of the enforcement activities. For instance, many of the guidelines assessed in this report (see chapters 4 to 7) were already revised since their introduction.
Nevertheless, as guidelines only reflect a given legal framework, there are several standards that must be defined by law and therefore cannot be changed by guidelines.
3.2.4. Greater clarity to competition authorities and the judiciary
The process of drafting, consultation and issuing competition guidelines is likely to provide greater clarity for the competition authority itself in relation to the meaning and application of its competition law. Indeed, developing guidelines is an opportunity for the competition authority to think holistically about one area of competition law, consolidating its practice. The guidelines are also likely to offer assistance to the judiciary (or other appellate bodies), especially those adjudicators who may be considering competition law and economics issues for the first time.
3.3. Reliance by the regulator and judiciary
Competition guidelines typically do not have legally binding nature on courts. They are rules of practice rather than rules of law. However, the value of guidelines usually goes beyond advice, providing a clear indication of how competition authorities are likely to act.
3.3.1. The position of the competition authority in relation to published guidelines
In some jurisdictions, reference is made to the fact that guidelines as such are not legally binding in a sense that courts are not bound to them.1 However, they may be binding on the issuing authority2 in a sense that they are capable of producing legal effects3 and the issuing authority cannot (lightly) disregard its own guidelines.
Competition guidelines provide guidance criteria and help create a uniform approach in the application of competition law by the authority. Competition authorities usually commit to follow their guidelines unless there are specific circumstances that justify an exemption from them.
In the European Union, for example, general principles of law (such as legitimate expectations and proportionality) apply in relation to competition law. In the context of guidelines published by the European Commission (EC), the European Court of Justice (ECJ) has held that the EC may not be able to depart from its guidelines without breaching equal treatment and legitimate expectation principles (Jones, Sufrin and Dunne, 2019, pp. 34-35[6]).
However, even if legitimate expectation or similar principles do not exist in law, the guidelines will provide a discipline for the competition authority (Commissioners and staff) in how it applies the law.
3.3.2. The reliance by the judiciary and judiciary review bodies on published guidelines
While guidelines published by the competition authority are not legally binding on the courts, they may provide a useful starting point to assist the judiciary, particularly in jurisdictions where competition law is new or substantial changes have been recently introduced.
For example, as described above, in the European Union, the ECJ has confirmed that guidelines, although not binding in the legal sense, do create a legitimate expectation and therefore “the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment”.4
3.4. The regulatory process to create guidelines
Before a competition authority begins the process of creating guidelines, it would be prudent to consider what it is endeavouring to achieve: a document intended to enforce the law (such as implementing rules) or one intended to interpret or explain the law? If the former, there may be administrative rules that need to be followed to ensure the administrative issuance is valid and binding. Where the competition authority intends to issue documents that interpret or explain the law, the procedural requirements may be less formal.
Based on our research, despite there being no prescribed process, competition authorities have developed a process of their own to create and publish guidelines. The processes described by all jurisdictions are similar and can be broadly illustrated as follows:
Figure 3.1. Process to create guidelines
Issuance of a draft document/paper: the competition authority publishes a draft paper outlining its proposed guidelines. Internal staff is responsible for the initial draft, if possible and desirable, with input from Commissioners and/or Board Members. In some cases, where internal knowledge is not sufficient, external consultants are relied upon. For many young authorities, existing guidelines from other regimes serve as useful material to draw from.
Stakeholder consultation: the competition authority holds a public consultation period during which stakeholders can provide feedback on the proposed guidelines. This may include written submissions, public hearings, and meetings with interested parties. This may include the organisation of an event to collect oral feedback on the proposed guidelines. It is generally advisable to consult widely, using a large and diverse set of stakeholders, and ensure sufficient time for feedback. This process will increase the understanding of, and buy-in for, the guidelines – and more generally the competition law regime.
Review of submissions: the competition authority reviews the submissions received during the consultation period and makes any necessary revisions to the proposed guidelines, although it is not common for the competition authority to provide feedback on submissions.
Finalisation and publication: once the competition authority is satisfied with the final version of the guidelines, they are published and made available to the public.
Review and updates: guidelines are reviewed and updated periodically to reflect changes in the legal and economic environment, and to ensure that they are still relevant and effective in achieving their intended purposes.
3.5. Competition guidelines in Tunisia
As mentioned above, the Peer Review recommended that Tunisia should develop public guidelines to enhance legal certainty and predictability of action by competition authorities.
According to the Peer Review, the publication of guidelines by administrative authorities is not a common practice under Tunisian law, and statutes or regulations are usually used to set out criteria or principles, for instance to indicate the stages of certain decision-making processes (OECD, 2022, p. 148[1]).
Although currently there are no national competition guidelines, the adoption of guidelines is not unprecedented in Tunisia. Indeed, the National Telecommunications Authority (INT) has adopted guidelines in 2012, 2015 and 2019 regarding the operation of public telecommunications networks (OECD, 2022, pp. 149-150[1]). Additionally, COMESA has published merger guidelines on supranational level (COMESA, 2014[7]).
Moreover, guidelines do exist even in jurisdictions where independent authorities do not have the power to issue such documents. In those cases, they are adopted by ministerial order (OECD, 2022, p. 149[1]).
It should also be noted that Article 14, paragraph 4, of Act 2015-36 establishes that the relevant departments of the Ministry of Trade must co-operate with the Competition Council in the “implementation of programmes and plans to raise awareness and promote a culture of competition”, which could include the publication of guidelines.
To help Tunisian authorities to implement this recommendation, Chapters 4 to 7 provide more details on competition guidelines on merger control, fining methodology, leniency programme and compliance programme. In particular, these sections present a comparative analysis of guidelines in these areas in selected jurisdictions, including some features that Tunisian authorities may take into account when developing their own guidelines.
Notes
← 1. See for instance a comment from the US FTC on the recently published 2023 Merger Guidelines: “The 2023 Merger Guidelines are a non-binding statement that provides transparency on aspects of the deliberations the Agencies undertake in individual cases under the antitrust laws. The Agencies will continue to make decisions in particular matters based on the law and the facts applicable to each case.” See also for instance the Consolidated Guidelines on Restrictive Trade Practices under the Competition Act by the Competition Authority of Kenya: “These guidelines do not constitute legal advice, do not have the force of law, and is not binding on the Competition Tribunal or any court of law.”
← 2. See for instance (Ştefan, 2014[48]): “The ongoing research on which the present paper is based explores how the European Courts “take into account” non binding legally instruments such as the notices and the guidelines issued by the European Commission in the competition law sector. […] During the last years the European Courts recognized legal effects and accepted article 241 objections of illegality of notices and guidelines, judged on matters such as their non-retroactivity and stated that under certain circumstances, soft law instruments are binding on the Commission.”
← 3. See for instance (Banet, 2020[49]): “If the guidelines are not de jure legally binding upon actors other than the Commission, the question remains of ascertaining whether they could be considered as de facto binding on the Member States due to their legal effects. Although case law makes clear that the Commission's guidelines are not legally binding upon Member States, the Court has also recognised that the guidelines could, under certain conditions and depending on their content, produce legal effects.”
← 4. Case C-397/03 P, Archer Daniels Midland Co v. Commission [2006] ECR I-4429 at [91].