Foreign investment above 50% of the share capital in companies carrying various commercial activities, including mining, manufacturing, distribution, transport, banking and some other financial services, advertising, publishing and mass media and telecommunications services, are subject to a discriminatory administrative authorisation associated with the obtention of a 'foreign merchant card' whenever the relevant sector-specific legislation imposes no minority foreign shareholding condition for carrying out the related commercial acvitity.
"First article
This code applies to traders and acts of commerce.
Section 2
A trader is anyone who, in a professional capacity, carries out acts of production, circulation, speculation, mediation, subject to the exceptions provided for by law.
In particular, is a merchant, anyone who, in a professional capacity, proceeds:
- the extraction of raw materials;
- the manufacture and processing of manufactured products;
- the purchase and sale or rental of goods of any kind;
- warehouse operations or management of general stores;
- land, sea and air transport of goods and people;
- land, sea and air insurance operations, whatever the terms and conditions;
- to foreign exchange, banking or stock market transactions;
- commission and brokerage operations;
- the operation of business agencies;
- the operation of public entertainment enterprises;
- the operation of advertising, publishing, communication or transmission of news and information.
However, anyone who exercises an agricultural profession is not a trader insofar as the interested party only transforms and sells the products of his fund.
Section 3
Anyone who habitually carries out the operations referred to in article 2 with a view to making a profit is subject to the laws and usages of commerce.
Section 4
Are subject to the provisions of this code, the facts and legal acts incidental to commercial activity.
Are presumed accessory, unless proven otherwise, all facts and acts performed by a trader, as defined in Article 2.[...]" (Law No. 59-129 of October 5, 1959, promulgating of the Commercial Code, as amended [google translation])
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"Article 2: Within the meaning of this government decree, the following terms mean:
Authorizations: the prior approval granted by the administrative authority to the applicant fulfilling the legal conditions required for the exercise of the economic activity or for the realization of a project. The concessions granted by the competent authorities, the licenses subject to a call for tenders or the authorizations granted by the assembly of the representatives of the people within the meaning of the article 13 of the constitution.
[...]
Article 3: The exercise of economic activities related to the following sectors and provided for in Annex 1 of this Governmental Decree requires the prior approval of the competent administrative authority:
- natural resources and useful substances,
- land, sea and air transport,
- banks, finance, insurance and the financial market,
- dangerous or polluting industries,
- health,
- teaching,
- telecommunications,
- some commercial activities and some service activities.
Annex 1 of this Governmental Decree exclusively sets the detailed list of economic activities in the aforementioned sectors requiring an authorization as well as the deadlines, procedures and conditions for granting them.
Economic activities not included in appendix 1 of this government decree are considered not subject to authorization.
[...]
Article 5: Annex 3 of this Governmental Decree establishes the list of administrative authorizations for the realization of a project, the deadlines, the procedures and the conditions for their granting provided for by the legislative and regulatory texts in force on the date of publication. of this government decree.
[...]
Appendix 3: List of administrative authorizations [...]
6. List of administrative authorizations linked to the Ministry of Commerce [...]
38- Foreign merchant card
Terms :
Have foreign nationality (except Algerian and Moroccan nationalities in application of bilateral agreements)
Documents required : [...]
For legal persons
1- Application form for the foreign trader card to be withdrawn from the Department of Internal Trade
2- Copy of the draft statutes of the company
3- Bulletin n°3 or criminal record of the legal representative of the company (original).
4- Certificate of non-bankruptcy in the name of the legal representative of the company (original) or a sworn statement notarized signature.
5- Minutes of appointment of the legal representative of the company [...]
To obtain the trader's card for commercial entities created within the framework of totally exporting foreign industrial companies in Tunisia for the sale of 30% of their productions on the local market during the previous year, the documents are required:
1. Application on behalf of the Minister of Commerce, indicating, where applicable, the proportion of the additional range
2. Form relating to the request for a merchant card to be collected from the Department of Internal Trade
3. Copy of the statutes of the industrial company
4. Copy of the API declaration of industrial companies established in Tunisia
5. Prospectus of the product to be marketed on the local market.[...]" (Government Decree No. 2018-417 of May 11, 2018 relating to the publication of the exclusive list of economic activities subject to authorization and the list of authorizations administrative requirements for carrying out projects, the related provisions and their simplification [google translation])
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"Art. 2. - Natural and legal persons, who do not have Tunisian nationality, may directly or indirectly exercise a commercial activity only under the conditions defined by the texts in force and the provisions of this decree-law.
Art. 3. - Legal persons have Tunisian nationality when they meet all of the following conditions:
1. be constituted in accordance with the laws in force and have their registered office in Tunisia;
2. have their capital represented at least 50% by registered securities held by Tunisian natural or legal persons;
3. have their board of directors, management or supervision, made up in majority by natural persons of Tunisian nationality;
4. have their presidency, their general direction or their management ensured by natural persons of Tunisian nationality.
For public limited companies, and in the event of dissociation between the functions of chairman of the board of directors and those of managing director, the managing director must have the status of resident within the meaning of the foreign exchange regulations in force.
In addition, Tunisian companies having their head office in Tunisia and in which the State or local public authorities directly or indirectly hold a capital participation.
[...]
Art. 8. - The exercise of the following activities, in any form whatsoever, and whatever the mode of their taxation [...] is, except exemption granted by the Secretary of State for Planning and Finance, prohibited to natural or legal persons, not possessing Tunisian nationality:
1- building manager;
2- commission agent, broker, commercial agent;
3- general or special agent of insurance companies;
4- concessionaire, consignee, general representative, general or sales agent, whatever the name under which this activity is carried out;
5- traveler, usher, sales representative. [...]" (Decree-Law on the conditions for exercising certain commercial activities (n° 61-14 of 30 August 1961), as amended by Law n° 85-84 of 11 August 1985, Articles 2, 3 and 8 [google translation])
Law No. 59-129 of October 5, 1959, promulgating of the Commercial Code, as amended, Articles 2-4  [google translation]
Government Decree No. 2018-417 of May 11, 2018 relating to the publication of the exclusive list of economic activities subject to authorization and the list of authorizations administrative requirements for carrying out projects, the related provisions and their simplification [google translation]
Decree-Law on the conditions for exercising certain commercial activities (n° 61-14 of 30 August 1961), as amended by Law n° 85-84 of 11 August 1985, Articles 2, 3 and 8 [google translation]
[<a href="https://www.pist.tn/record/118037?ln=en">Law</a>],[<a href="http://www.droit-afrique.com/upload/doc/tunisie/Tunisie-Code-2010-commerce.pdf">Law_amend</a>],[<a href="https://www.pist.tn/record/76961?ln=en">Decree</a>],[<a href="https://www.pist.tn/record/106431?ln=fr">Decree-Law</a>]