The major antitrust litigation cases in Tunisia focus on contract disputes concerning refusals to supply or termination of a business relationship. The most typical situations involve a foreign manufacturer or supplier who suddenly refuses or ceases to supply customers or distributors in Tunisia without proper justification.

As a reaction to the termination of a business relationship or the refusal to supply, the claimant usually initiates both:

• a legal proceeding before the Competition Council for abuse of economic dependence aiming to have the foreign supplier or manufacturer convicted for breach of competition law; and
• a civil claim for damages before the judicial court.

A recent antitrust litigation case involved a Tunisian distributor of vehicles who attempted to bring criminal proceedings against a foreign manufacturer of vehicles based on Article 131 of the Tunisian Criminal Code alleging that there was a cartel agreement between the manufacturer and its new distributor in Tunisia.

According to Article 131 of the Criminal Code, any organisation formed, regardless of its duration or members, or any agreement entered into with the aim of committing prejudice to the person or properties, constitute an infringement against public peace and are punishable by six years of imprisonment, pursuant to Article 132 of the Criminal Code.

However, further to investigation carried out by the economic crime unit of the Tunisian police, the public prosecutor at the Tunis Court of First Instance dismissed the case without further proceedings.

Antitrust litigation related to other forms of competition breaches, such as abuse of dominant position, price fixing, or market sharing, is not very well developed in Tunisia. However, considering the recent development of competition law culture in Tunisia, such cases are expected to increase in the coming years.

Tunisia underwent a peer review of its competition law and policies in 2021 by the Organisation for Economic Cooperation and Development (OECD). This peer review is part of a wider project to foster pro-competitive reforms in Tunisia, co-funded by the European Union.

In December 2021, the OECD’s report found that there are areas for improvements, including:

• reforming the institutional framework by strengthening the mandate and resources of the Competition Council and aligning it with sectoral regulations, among other initiatives;
• stepping up enforcement efforts against anti-competitive practices, (eg, by promoting the use of leniency programs and imposing adequate fines);
• reviewing the criteria for merger notification and assessment, also through the introduction of a simplified procedure; and
• strengthening advocacy and co-operation efforts nationally, regionally and internationally.

Legal Basis of a Claim for Damages

Claims for damages resulting from a breach of competition law may be brought, as the case may be, in accordance with the general rules of contract liability and tortious liability. Claimants are required to demonstrate a fault (a breach of competition law) and that they have suffered a loss as a result of that breach.

When the claim for damages is based on tort, claimants may recover damages for financial and moral prejudice pursuant to Article 82 of the Code of Obligations and Contract.

When the claim for damages is based on contract liability, the claimant may recover damages for the loss it has suffered and the profit of which it has been deprived, pursuant to Article 278 of the Code of Obligations and Contract.

The availability of damages for moral prejudice in contract cases is controversial. However, the Tunisian High Court (Cour de Cassation) has set out that moral damages are not awarded for a breach of contract considering the lack of any legal provisions similar to those applicable to tort (decision n°38018 dated 6 April 2017).

Follow-on and Standalone Claims

Both follow-on and standalone claims are available under Tunisian law.

Claimants may bring a civil action under Tunisian law regardless of whether they have initiated legal proceedings before the Competition Council.

In a recent case, the Commercial Chamber of the Tunis Court of First Instance issued a decision in favour of the claimant by awarding damages resulting from a breach of an established business relationship without proper justification while the investigation of the Competition Council was still ongoing (case n°40484 dated 31 March 2022).

There are no specialist competition courts in Tunisia. The civil actions resulting from a breach of competition law must be submitted to the common judicial courts.

If the dispute arises between businesses in relation to their business relationship, within the meaning of Article 40 of the Civil and Commercial Procedures Code, the claim for damages shall be submitted to the Commercial Chamber of the relevant Court of First Instance which has jurisdiction, if applicable.

When the claim is brought against a non-resident defendant, the rules of the Tunisian International Private Code shall apply. According to Article 5 of the International Private Law Code, the Tunisian courts have jurisdiction:

• in matters related to tort, if the act causing the liability or the damage has occurred in Tunisia; or
• if the claim is related to a contract that was performed or that should have been performed in Tunisia, unless the contract contains a jurisdiction clause setting out the parties’ agreement to submit the dispute to a foreign court.

According to Article 10 of the International Private Law Code, the lack of jurisdiction of the Tunisian courts shall be raised before arguing the merits of the case.

There are no provisions dealing with this matter in Law n°2015-36 dated 15 September 2015 on competition and prices. However, if an infringement decision is taken by the Tunisian Competition Council, it may considerably facilitate the burden of proof of the fault since the civil court normally relies on the opinion of the Competition Council and the claimants need only prove that they suffered loss as a result of that infringement.

According to the general principles of Tunisian law, the burden of proof lies with the claimant, who has to show that the defendant breached competition law and that the breach actually caused a loss (ie, direct causation between the fault and the damage suffered). The claimant will also have to prove the type and the amount of the loss suffered.

The judge has full discretion to assess the evidence and is not bound by an expert’s opinion, pursuant to Article 112 of the Civil and Commercial Procedures Code.

Pass-On Defence

There has been no court ruling on this matter. However, according to the general principles governing evidence, the burden of proof in establishing a “pass-on” defence should lie with the defendant.

There are no specific rules on this matter. However, according to general rules, the claimant shall have the standing to bring a civil action against the defendant who breached competition law by demonstrating that the breach caused a personal prejudice.

The duration of time between issuing a claim before the Court of First Instance and the court issuing a judgment usually ranges from one to two years. The duration may be longer if the court appoints an expert for the determination of economic and technical points. 

There are no specific provisions regarding the suspension of proceedings during a parallel investigation by the Competition Council.

However, an interested party may request a stay of proceedings by demonstrating the direct connection between the claim and the ongoing investigation and the seriousness of the request. The court has discretionary power to decide on the request for a stay of proceedings.

Class actions are not available in Tunisia.

The claimant must establish that it has a “personal stake” in the dispute pursuant to Article 19 of the Civil and Commercial Procedures Code. However, several claimants may jointly sue a defendant if the subject matter and the legal basis of the dispute are the same.

The procedure for class actions is not available in Tunisia.

Collective actions are not available in Tunisia

There are no strike-out/summary judgments available under Tunisian law.

Jurisdiction

When civil litigation involves parties domiciled in different countries, the jurisdiction of the Tunisian courts is governed by the Private International Law Code (PILC).

According to Article 3 of the PILC, Tunisian courts have jurisdiction to hear claims when the defendant is domiciled in Tunisia.

When the defendant is not domiciled in Tunisia, the Tunisian courts have jurisdiction if the parties agree on their jurisdiction either through a jurisdiction clause or after the occurrence of the dispute (Article 4 of the PILC).

Tunisian courts also have jurisdiction in matters relating to tort if the harmful act or the damage occurred in Tunisia (Article 5 of the PILC).

If the claim is contractual, Tunisian courts have jurisdiction when the contract was performed or should have been performed in Tunisia, unless the contract contains a jurisdiction clause setting out the parties’ agreement to submit the dispute to a foreign court (Article 5 of the PILC).

There are many judgments issued by Tunisian courts in which they recognise their jurisdiction over defendants not domiciled in Tunisia on the basis of Article 5 of the PILC. The determination of the place of performance of the contract is usually analysed in a broad manner, sometimes leading the courts to exercise their jurisdiction while the defendant has minimum contact with the forum.

Applicable Law

In international cases, the law applicable to contractual obligations is the law designated by the parties. If there is no designated law, the court will apply the law of the state of domicile of the party whose obligation is decisive for the qualification of the contract, or the law of its place of establishment if the contract is concluded in the framework of its business (Article 62 of the PILC).

When the claim is related to tortious behaviour, the applicable law is the law of the state in which the harmful event has occurred. However, the victim can also request the application of the law of the state where the damage has occurred (Article 70 of the PILC).

The limitation period applicable to tortious claims is three years. It begins to run from the date the plaintiff has information of the damage and the person having caused it. In any event, it expires after 15 years from the date of the occurrence of the damage (Article 115 of the Code of Obligations and Contracts).

Although there are no court rulings regarding the trigger of the limitation period when an investigation is carried out by the Competition Council, a claimant may rely on the judgment issued by the Competition Council as evidence of knowledge of the damage and the person having caused it and, therefore, as the trigger point of the prescription.

The limitation period for a claim based on contract law is 15 years from the occurrence of the breach.

Formal Process for Disclosure

The disclosure/discovery procedure is not available under Tunisian law. In particular, pre-action or early disclosure is not available.

Applications for disclosure in the course of civil legal proceedings are generally not used due to the provisions of Article 12 of the Civil and Commercial Procedures Code, which states that the court must not constitute, complete or produce evidence in support of the parties’ allegations. However, it remains possible to request a court order for the production of documents by the defendant when the plaintiff has a contractual or legal right to have access to them. In particular, the judge may grant the plaintiff the right to access “commercial registers” of the defendant in disputes related to companies and inheritance and when the said registers belong to both parties. Access to the registers is granted by the judge only if it is necessary and to a reasonable extent (Article 463 of the Code of Obligations and Contracts).

Disclosure to the Court

The court may order ex officio the production of commercial registers, correspondence or registers held by either party and identify sections that can be communicated to the other party (Article 465 of the Code of Obligations and Contracts).

In addition, the judge may request the communication of documents which may be considered useful from the parties (Article 87 of the Civil and Commercial Procedures Code).

Disclosure of the Competition Council’s Documents

If the claimant is a party to ongoing proceedings before the Competition Council, it may request access to the documents submitted by the other party “in order to exercise its rights before the judicial and official authorities”. However, the president of the Competition Council may refuse to grant the communication of documents involving business secrets. In such a case, the claimant may be given access to a non-confidential version and a summary of the requested documents (Article 24 of Law n°2015-36 dated 15 September 2015 on competition and prices).

The concept of privilege under Tunisian law means that lawyers are under a duty not to disclose confidential communications between themselves and their clients.

According to Decree n°2011-79 dated 20 August 2011 organising the lawyers’ profession, lawyers must keep any secrets communicated to them by their clients or that have been brought to their knowledge in the course of their profession (Article 33 of Decree n°2011-79).

In addition, lawyers cannot testify as witnesses in cases where they have been appointed or have provided advice (Article 34 of Decree n°2011-79).

The statements and documents submitted to the Competition Council are available only to the parties involved in the proceedings, subject to the provisions of Article 24 of Law n°2015-3 dated 15 September 2015 on competition and prices, mentioned in 5.1 Disclosure/Discovery Procedure.

Witness testimony can be submitted in writing or orally. If the court deems it necessary, it can compel the witness to testify before the court orally (Article 92 of the Civil and Commercial Procedures Code).

The judge can, on their own accord or upon the request of the parties, ask questions to the witness.

The parties can rely on expert witnesses to support their claims. However, in practice, claimants usually request the appointment of judicial experts either prior to initiating the trial (motion procedure) or during the trial, considering the greater weight of a report issued by a court-appointed expert.

The court’s decision to appoint an expert will also include the determination of the scope of the assignment and the allocated period for the submission of the report (Article 103 of the Civil and Commercial Procedures Code).

The court-appointed expert is required to submit a written report after the convocation of the parties and receipt of their declarations (Article 110 of the Civil and Commercial Procedures Code).

If the court appoints more than one expert, they can submit separate statements unless they agree to submit a joint statement indicating the opinion of each one of them and the grounds of their opinions.

The court may decide to hear the expert if it deems it necessary. However, the hearing of the expert is not carried out with a public audience.

The parties have the option of discussing the expert’s report in writing.

The rule is that the expert opinion is not binding on the court (Article 112 of the Civil and Commercial Procedures Code). In several cases, the High Court (Cour de Cassation) has confirmed that the merit judges can reject the opinions of the judicial experts provided that they justify their decision with an appropriate reasoning.

Damages are assessed under Tunisian law based on the principle of full compensation. The claimant, under tort law, is entitled to damages covering its economic loss as well as its moral loss (Article 82 of the Code of Obligations and Contracts).

Under contract law, damages include effective economic loss and lost profits (Article 278 of the Code of Obligations and Contracts). The availability of damages for moral prejudice in contract cases is controversial. However, the Tunisian High Court (Cour de Cassation) has set out that moral damages are not awarded for a breach of contract, considering the lack of any legal provisions similar to those applicable to tort (decision n°38018 dated 6 April 2017).

Tunisian law does not provide for punitive damages. According to the case law of the Tunisian High Court (Cour de Cassation), damages are awarded based on the principle of proportionality. The compensation shall not exceed the damage incurred by the claimant.

When the claimant cannot quantify its damages at the outset of the legal action, it may initiate the lawsuit based on available evidence of the fault and the damage, and request from the court the appointment of a judicial expert to determine the amount of the damages.

There are no legal provisions or court rulings on pass-on defences.

However, considering the principles governing compensation under Tunisian law (see 7.1 Assessment of Damages), this defence should be admissible.

There is no legal basis under Tunisian law for awarding interest on damages. Interest is provided by the law as compensation in recovery actions (Article 278 of the Code of Obligations and Contracts).

There are no specific provisions on joint and several liability between businesses involved in a competition law infringement. However, according to the general principles applicable to tort, when the damage is caused by several persons, they are jointly and severally liable to the victim, who can claim full compensation from any of them (Article 108 of the Code of Obligations and Contracts).

There are no specific provisions under Tunisian law on the liability of immunity applicants to their direct purchasers.

Contribution proceedings are possible through the procedure of compulsory joinder, either upon the request of the party to the proceedings or by the court (Articles 224 and 225 of the Civil and Commercial Procedures Code).

Injunctive relief for breach of competition law is available in Tunisia based on Article 15 of Law n°2015-36 dated 15 September 2015 on competition and prices. This provision grants jurisdiction to the Competition Council to issue protective measures through a summary proceeding (référé) aiming to avoid imminent and irreparable prejudice. Typically, the protective measure sought is to resume the business relationship.

The applicant of an interim measure shall justify an action on the merits being brought before the Competition Council.

Interim relief is also available according to the rules of the Civil and Commercial Procedures Code through summary proceedings, provided that there is urgency and that the relief sought does not jeopardise the merits of the dispute.

Arbitration is available under Tunisian law, provided that the parties have entered into a valid arbitration clause.

The litigation funding culture is not developed in Tunisia. There are few international arbitration cases where foreign third-party funders have been involved in financing Tunisian businesses.

Although there is no specific regulation governing litigation funding, a third-party funding contract is legal.

The rule is that the losing party bears the litigation costs (mainly attorney’s fees, bailiff’s fees, expert’s fees, and translation fees). The court may allocate the costs between the parties (Article 128 of the Code of Civil and Commercial Procedure).

In practice, the amount awarded for attorney’s fees covers only a part of the amount paid by the party seeking the award.

First instance judgements on private antitrust litigation can be appealed before the Court of Appeal which has jurisdiction. The decisions of the Court of Appeal can themselves be appealed before the Tunisian High Court (Cour de Cassation), whose control is limited to the proper application of the law.