By Dr. Samir Abdelly
The Tunisian Parliament adopted on 12 July 2021 the Law of Economic Recovery. Among the different financial and economic measures designed to counter the harmful impacts of the Covid-19 crisis on the Tunisian economy, it is necessary to highlight some provisions particularly crucial for Tunisian and foreign investors, i.e. the measures related to exchange control policy and regulations: some measures relates to the regularization of exchange control infringements (I) while other provisionsauthorize the opening by Tunisian residents of foreign currency accounts in Tunisia (II) and other provisions extendthe status of non-resident (III).
I. Regularization of exchange control infringements
For once, it is possible for resident persons (physical persons) in Tunisia to regularize their exchange control infringements committed before the entry into force of the Law of Economic Recovery, excepted when such infringements relate to terrorism or money laundering in the meaning of the Law No.2015-26 of 7 August 2015 related to the fight against terrorism and money laundering.
The infringements referred to in the Law of Economic Recovery are:
– Default of declaration of assets hold abroad when required, default of repatriation of the proceeds and revenues arising from such assets and default of lodging such proceeds and revenues before an agreed intermediate and its cession in TND counterpart;
– Holding in Tunisia of foreign currencies in the form of foreign bank notes, default of lodging such foreign currencies before an agreed intermediateand its cession in TND counterpart;
The beneficiaries of such regularization can open bank accounts in foreign currency or convertible TND before an agreed intermediate to lodge the foreign currencies subject to regularization.
To benefit from such regularization, the concerned persons shall, prior to September 2022, repatriate the revenues, proceeds, and assets in foreign currency, lodge it in bank accounts opened in accordance of the above Law or assign it in TND counterpart (with sworn statement). They must also pay a contribution of full discharge of liabilities equal to:
– 15% of the counter value in TND of the purchase price for real estates located abroad and the value of underwriting or purchase of securities and deposits on condition to repatriate 25% of such deposits;
– 7% of the counter value in TND of foreign currency assets lodged in dedicated bank account, or 4% in case of cession against TND;
Such contributionof full discharge of liabilities is reduced of a half if paid before the end of November 2021, and releases its beneficiaries from the payment of the income tax and late penalties due over the foreign currency amounts subject to regularization, and from any administrative or legal suits for exchange control infringement subject to regularization.
The beneficiaries of the regularization are allowed to use their amounts lodged in dedicated bank accounts to invest in Tunisia and to cover their expenses in Tunisia or abroad, but they cannot make transfers from such bank accounts to fund foreign bank accounts.
II. Opening by Tunisian residents of foreign currency accounts in Tunisia
Any physical person residing in Tunisia will be entitled to hold or to open a bank account in foreign currency. Such bank account will be funded by foreign currencies of legal origin without any imputation on Central Bank of Tunisia (“CBT”) reserves.
To benefit from such right, a contribution of full discharge of liabilities equal to 10% of TND counter value of the lodged amounts must be paid. However, such foreign currency amounts will be capped annually – the cap to be determined by CBT – and can be used to fund other foreign currency or TND accounts in Tunisia or to cover expenses made abroad, with interdiction to fund foreign currency accounts abroad.
III. Extension of the benefits of non-resident status
Foreign persons residing in Tunisia and persons who lost their status of non-resident (i.e. Tunisians who definitely came back to Tunisia) can continue to benefit from the advantages of the non-resident status, especially the right to keep their assets abroad and the right to hold foreign currency bank accounts in Tunisia and abroad with a free right to use their assets in Tunisia and outside Tunisia.
Tunisian economy is actually facing a critical situation with the Covid 19 crisis and an economic crisis since the 2011 Revolution characterized with economic indicators sent to red. In such a context, Tunisia is in a great need to relaunch public investment (environment, water, energy, transport, health, education and culture …). That is why we think it is useful to present some legal tips to potential investors interested in developing projects in connection with any public service.
Beside the traditional system of concessions where the private party (the concession holder) is tasked with managing a public service and is remunerated by the user, Tunisia recently updated its legal framework to enable a new form of investment called public private partnership (“PPP”) in accordance with the best recommended practices from international institutions such as IMF, EBRD and OECD.
The current legal framework of PPP is essentially based on the following texts:
- Law n. 2015-49 dated 27 November 2015 related to contracts between the public and the private sector (PPP), as amended by Law No.2019-47 dated 29/05/2019 related to the improvement of the investment climate;
- Decree No. 2016-771 of 20 June 2016, about the composition and prerogatives of the Strategic Council for Public Private Partnership;
- Decree No. 2016-772 of 20 June 2016, about the conditions and procedures for the award of public-private partnership contracts;
- Decree No. 2016-1104 of 4 July 2016 fixing the conditions and procedures for determining the consideration paid by the public party to the project company and determining the terms and conditions for the assignment or Pledging of receivables under public-private partnership contracts;
- Decree No. 2016-1185 of 14 October 2016, laying down the organization and powers of the general authority of public-private partnership;
How a PPP project is awarded ?
The basic principle which already governs the award of public contracts is the obligation for the Granting Authority to comply with competitive bidding process.
Exceptionally, PPP projects can be awarded through one the following means:
- Competitive dialogue in case of a specific project or in case where the public entity has not been able to define its needs, especially for projects based on new technologies which improve quickly;
- Direct negotiation in limited cases:
- National defense or public safety;
- Situation of emergency to ensure the continuity of a public service;
- The PPP project relates to an activity subject of a patent hold by the applicant.
Does investors have the possibility, in the absence of any public call for tenders, to make a spontaneous offer for a PPP project ?
While the PPP process is mostly based on a predetermined need set by the public entity, it remains possible for a private to make a spontaneous offer with a comprehensive study to the public entity to realize any project through PPP.
Such spontaneous application does not automatically entitles the applicant to benefit from the direct negotiation procedure. An assessment phase will be made by the competent authorities:
- Acceptance of the spontaneous application;
- Impact study;
- Approval of the project by the IGPPP (public authority in charge of PPP projects);
- Opinion of the Ministry in charge;
Once the project approved by the Ministry in charge, the granting authority will follow the competitive bidding procedure. In the context of a spontaneous application, a preferential regime is granted to the applicant who is automatically accepted within the short list resulting from the prequalification phase and gains up to 20% margin bonus on his score during the bid evaluation phase.
Just bring your project ideas,
Abdelly & Associates law firm would be glad to assist you during the whole PPP process.
Attorney at Law before the Cassation Court
Senior Associate of Abdelly & Associates Law Firm
Our Firm’s Arbitration and Dispute Resolution practice is fast becoming a strategic practice within our Firm’s full service offering, particularly in the context of cross-border transactions and projects.
Our practice is built not only around the experience of recognized and seasoned practitioners, but also on our Firm’s broad experience and expertise across various fields of law and industries, such as energy, infrastructure, natural resources and telecommunications, among others.
The Tunisian commercial law is specifically tailored to attract prominent and promising foreign investments whilst obviously securing local concerns. Undoubtedly, the approach taken by the regulatory divisions and legislators forms a fertile ground for these investments to flourish. For assistance throughout the transaction of a cross-border merger or further information, contact our lawyers at ABDELLY & ASSOCIATES for bespoke legal advice.