L'influence du droit français sur le droit tunisien des concentrations économiques

This paper on the influence of French competition law on Tunisian law of merger control provides an introduction to and survey of the rules of antitrust law governing business mergers affecting the Tunisian market. These rules have been introduced into the 1991 Act on Competition and Prices by Act 95-42 of April 24, 1995. They largely follow the model of merger control established by the French Ordonnance No. 86 ? 1243 of December 1, 1986, and have not been changed since even though the French legislator has modified merger control considerably by the Act on the New Economic Regulation of May 15, 2001. In some instances, Tunisian law also follows the example of the European Community?s Regulation 4064/89 on merger control rather than that of French law, in particular as regards the very concept of a merger. Whereas most of the rules adopt general principles of merger control, such as the setting of thresholds for control (defined cumulatively in terms of market share and turnover), the requirement of prior notification of a merger and of prompt reaction by the competition authority (the Council for Competition) within short and definite delays, the application of merger control to horizontal as well as to vertical and conglomerate mergers, and the limitation of substantive control to the creation or the reinforcement of a position of market dominance, there are two distinct features of Tunisian merger control which bring it within the French model : First, the ultimate decision on the admission or non-admission of a merger, which results in or reinforces market dominance, rests with the Minister of the Economy and with the Minister of the industrial sector concerned, the Council for competition having only an advisory and investigative role to play. Second, as a matter of a substantive law, a merger may not be enjoined simply because it creates or reinforces a position of market dominance, but only if, in addition and on balance, its negative effects on the market outweigh its potential for economic benefits, i.e. only if the ?bilan économique? of the merger is negative.