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The Influence of French Law on Tunisian Law Governing Economic Concentrations

Par : Type de matériel : TexteTexteLangue : français Détails de publication : 2002. Ressources en ligne : Abrégé : This paper deals with the influence of French competition law on Tunisian law governing the control of mergers. It offers an introduction to the topic followed by a survey of the rules of antitrust law governing business mergers affecting the Tunisian market. These rules were introduced into the 1991 Act on Competition and Prices by Act 95-42 of April 24, 1995. These texts largely follow the model of merger control established by French Decree 86-1243 of December 1, 1986, and they have not been modified since that date even though French legislators modified merger control rules considerably through the Act on New Economic Regulation of May 15, 2001. In some instances, Tunisian law also follows European Community Regulation 4064/89 on merger control rather than French law, in particular as regards the very concept of merger. Whereas most 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 for prior notification of a merger and of prompt reaction by the competition authorities (the Competition Council) within short and clearly stated time limits, the application of merger control to horizontal as well as vertical conglomerate mergers and the restriction of substantive control to the creation or reinforcement of a position of market dominance, there are two distinct features of Tunisian merger control that bring it within the French model. First, the ultimate decision on the approval or non-approval of a merger, which results in or reinforces market dominance, rests with the Minister of the Economy and the minister responsible for the industrial sector concerned, the Competition Council having only an advisory and investigative role to play. Second, as a matter of substantive law, a merger may not be implemented if it creates or reinforces a position of market dominance or if, in addition and on balance, its negative effects on the market outweigh its potential for economic benefits, i.e., if the overall economic effect of the merger is negative.
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This paper deals with the influence of French competition law on Tunisian law governing the control of mergers. It offers an introduction to the topic followed by a survey of the rules of antitrust law governing business mergers affecting the Tunisian market. These rules were introduced into the 1991 Act on Competition and Prices by Act 95-42 of April 24, 1995. These texts largely follow the model of merger control established by French Decree 86-1243 of December 1, 1986, and they have not been modified since that date even though French legislators modified merger control rules considerably through the Act on New Economic Regulation of May 15, 2001. In some instances, Tunisian law also follows European Community Regulation 4064/89 on merger control rather than French law, in particular as regards the very concept of merger. Whereas most 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 for prior notification of a merger and of prompt reaction by the competition authorities (the Competition Council) within short and clearly stated time limits, the application of merger control to horizontal as well as vertical conglomerate mergers and the restriction of substantive control to the creation or reinforcement of a position of market dominance, there are two distinct features of Tunisian merger control that bring it within the French model. First, the ultimate decision on the approval or non-approval of a merger, which results in or reinforces market dominance, rests with the Minister of the Economy and the minister responsible for the industrial sector concerned, the Competition Council having only an advisory and investigative role to play. Second, as a matter of substantive law, a merger may not be implemented if it creates or reinforces a position of market dominance or if, in addition and on balance, its negative effects on the market outweigh its potential for economic benefits, i.e., if the overall economic effect of the merger is negative.

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