Tunisia

This web site aims to provide some useful legal information for those people who are willing to enter into any kind of relationship with the Republic of Tunisia – by focusing on some aspects related to international law and to domestic commercial law.
Therefore, this web site is not intended to exhaustively describe international law or domestic commercial law, but simply to focus the attention on the most interesting and practical aspects for those people who are willing to enter into business relationships with the Country.
This web site has no political content: it is free and open to all people who intend to give a contribution in the field of civil, commercial and administrative law. For every information, clarification or advice, please contact us at: mail@decapoa.com

tunisia

About Tunisia

Tunisia is one of the central countries of North Africa, a member of the main African Unions and for a long time headquarters of the Arab League.
Tunisia, with its thriving business, has always had ideal characteristics for foreign investments, due to its strategic location, to a very favorable legislation on incentives and to the low cost of production factors. The last decade has thus seen a significant and articulated process of relocation of an increasing number of foreign companies in the North African country.
An aspect of great importance is the increasing presence on this market of potential foreign investors, companies and corporations interested in the sector of renewable energy and in that of high added value mechanics, which currently are the priority sectors on which the Tunisian authorities rely.
Regarding the political situation, a French protectorate, Tunisia has been a presidential republic since 1956 that is a form of government that surely approaches it to the main European countries. In addition, the new Constitution, approved on January 26, 2014, undoubtedly marks a positive turning point with regard to the protection of civil rights and the separation of powers, so as to ensure maximum political stability in a country which is so rich in opportunities.
On the basis of the assumptions described above, this site aims to provide some suggestions to foreign companies wishing to seize the opportunities offered by Tunisia, so that the latter can better calibrate its business strategies.
In this sense, the companies interested in the country will be able to find not only a summary of the most widespread existing commercial contracts in Tunisia, but at the same time, also a few helpful tips that should necessarily be kept in mind before entering into any contract to be performed in the country.

Agency

Foreign investors who want to fully seize the many opportunities offered by the Tunisian market can conclude agency agreements with natural persons of Tunisian nationality or with companies incorporated in accordance with Tunisian law.
Once the deed is concluded in writing, a declaration regarding the investment project must be filed at the central administration of the Ministry of Commerce and signed by the agent or the representative of trade.
Save in rare cases, the conclusion of exclusive agreements is prohibited in order not to undermine the competition rules. As for the choice of applicable law, it is freely chosen by the parties.
Therefore, if the foreign investor intends to conclude contracts of this kind, they should keep in mind that the Tunisian Commercial Code does not provide for any severance pay for the agent in case of termination, unless otherwise agreed, while there is a compensatory allowance only in the event of early termination of the contract for causes that are not attributable to them.

Distribution

Although the distribution contract is not a strong point of the Tunisian economy - primarily focused on retail - for several years the Tunisian Government has been supporting the creation of distribution networks on a national scale to meet the opening of the market and the competition of foreign products.
In view of that, in Tunisia there are no specific required permissions, except for matters relating to alcoholic beverages, elevators, realtors, advertising. Also in this area, exclusive agreements are prohibited and a license from the competent authorities must be obtained.
It should be kept in mind that, if the foreign investor wants to conclude distribution agreements on the Tunisian territory, they must inform the Ministry of Commerce of the beginning of the activity within one month. Moreover, if the distribution takes place electronically, the foreign investor will have to attach the contract for the use of the website to the notice.
Besides, in particular, the 99-41 law states that the commercial operator is obliged to provide a warranty on the product or the after-sales service and governs the transparency of competition by regulating the direct producer-consumer sale in order to prevent that the producer competes with its distributors. Practically the producer has the right to also act as a distributor provided that they respect the rules of fair competition.
However, there is a list of sectors in which the retail sale must necessarily be distinct from the wholesale. Among them we cite: fruit and vegetables, fish and food products, beverages for consumption, textile, footwear, electrical equipment, books, hardware, and computer equipment.
Given the fact that in some countries - including the European Union member states -, the law requires that the principal pays to the distributor – as if they were commercial agents - an allowance for the creation of goodwill in case of dissolution of the relationship, if the foreign contractor signs a distribution agreement with a person of Tunisian nationality, it should be carefully assessed whether to choose the Tunisian law as the one applicable to the relationship.

Franchising

Franchising is a relatively recent contract in Tunisia, for which the Tunisian government provides incentive measures, as evidenced by the increasing spread of franchising for food and textile products.
In 2009 the Tunisian government enacted the law n. 69 which regulates the franchising agreement, and which was amended in June 2010 by the definition of a series of provisions governing the disclosure obligations.
In particular, Article. 14 of Law no. 69/2009 defines franchising as "a contract by which the owner of the trademark grants the right to use the brand to a natural or legal person called franchisee in order to distribute the products or provide services in exchange for remuneration ". The concession also includes the transfer of knowledge and of experience by the franchisor, in addition to intellectual property rights.
First, the franchisor is obliged to inform the franchisee at least 20 days before the agreement is concluded.
In particular, such information includes:

  • The franchisor's business network and its nature, as well as the opportunities in the sector on the Tunisian territory;
  • The identity of the legal representatives of the franchisor, headquarters and internal organization;
  • The proof that the franchisor is the owner of the brand;
  • The list of franchisees and information about the franchise network in the Tunisian territory;
  • The nature and the burden of the costs required for starting and managing the activity;
  • The balance sheet of the franchisor.
The deriving rights and obligations for the franchisor are:
  • The supply of services, including the transfer of know-how, technical expertise and intellectual property rights;
  • The ability to have access to the premises of the franchisee under certain conditions, also for their representatives;
On the other hand, the franchisee has the following obligations and is entitled:
  • To sign an exclusive agreement on supplies;
  • To define an investment plan;
  • To constantly inform the franchisor about sales and the financial situation;
  • To conclude sub-franchising agreements with third parties in the geographical area for which they are responsible, when the franchising agreement covers the entire Tunisian territory;
  • To receive the required payments.
In addition, the agreement must regulate the exclusive use of the trademark in the specific geographic, the non-competition obligations, the duration of the contract and any conditions for its renewal, the indication of confidential information and the division of advertising expenses.

Sale

Article 564 of the Tunisian civil code defines the sale as "a contract under which one party transfers the ownership of a thing or a right to the other Contracting Party, upon a payment of a price by the latter".
Tunisia has not ratified the 1980 Vienna Convention on the International Sale of Goods (CISG). Consequently, identifying the applicable law to the relationship might not be an easy task when the buyer has defaulted.
For example, the Moroccan Civil Code does not expressly provide for the opportunity for the seller to reserve the property of the goods sold until the price is fully payed.
This means, therefore, that any clause containing such provision may not be fully accepted by the Moroccan judicial authorities if the agreement is found to be governed by Moroccan law.
However, the seller only provides warranty for the defects that are present at the time of the conclusion of the contract or of the delivery.
Conversely, the Tunisian law fully recognizes the Incoterms, which, therefore, can legitimately be invoked when a sale agreement is concluded with a Tunisian partner. Apart from that, the rules governing the sale do not differ from the internationally recognized customs and practices.

Import & Export

Tunisia has always shown a strong interest in the simplification of laws relating to trade and investments. It has made them an essential element of its economic policy, through the implementation of a Program of Export Development.
This program has seen the strengthening of technical control procedures and risk management, the simplification and modernization of customs procedures, the simplification of the administrative procedure, as well as the development of facilities in the transport and logistics sector.
This program was implemented by the Tunisian Government in collaboration with the World Bank and makes Tunisia a highly fertile ground for investment. Today, Tunisia is bilaterally, regionally and multilaterally linked to more than 50 countries of the African free trade area by trade agreements. So, once a good is imported into the Tunisian territory, it can be re-imported within several African countries, without paying duties. In addition, in 1995 Tunisia has signed an agreement with the European Union, followed by a series of subsequent agreements, which have led to the creation of a vast free trade area even with the old continent. A precondition is the certificate attesting the origin of the product in one of the EU countries.
On January 1st 2008, Tunisia has in fact entered the free trade area of industrial products, while there are ongoing negotiations for the deregulation of the agriculture and services sectors. This agreement has certainly had a positive impact on the economy of the country and has stimulated the increase of competitiveness and acceleration of trade.
However, there is a list of products that are not exempt from customs duties: yogurt, pasta, biscuits, mineral water, carpets, and hand-woven fabrics. Finally, it is necessary to obtain an import license for all products of which Tunisia can boast its own production.

Protection of Trademarks

The foreign entrepreneur who wants to invest in Tunisia will first have to register their trademark or their patent, so they can fully enjoy the instruments recognized by the legal system which protect intellectual property.
That said, Tunisia is part of the Madrid Agreement and its Protocol concerning the international registration of trademarks and, consequently, the registration (or the extension of a trademark) on the Tunisian territory will take place according to the usual internationally codified rules.
The period of validity of a trademark is 10 years from the date of the application, and it is renewable for equal periods. A precaution to be kept in mind is to - once the trademark to be registered is identified - verify its newness, by searching for identical or too similar trademarks which have already been registered in Tunisia, and by transliterating it into Arabic. In fact, some words that seem to have their own appeal in one language may, on the contrary, be cacophonous or have totally different meanings when translated into Arabic.
However, it is recommended to protect a trademark by registering the specific domain name with the extension ".tn".

Studio Legale de Capoa & Partners - Via Massimo D'Arzeglio, 58 40123 Bologna - P.IVA 03339051207

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