Between Article 200 of the Commercial Companies Code, the Banking Law of 2016, and the 2019 thresholds for independent directors, the finding is the same: the obligation exists, but its effectiveness remains to be built.
An ancient legal obligation
Twenty-six years after the promulgation of the Commercial Companies Code, Article 200 remains the cornerstone of the Tunisian framework for preventing conflicts of interest. It requires every director of a joint-stock company to ensure that there is no collision between their personal interest and that of the company, and it requires that the transactions they conclude with it be conducted on fair terms.
This text, augmented by the Reform Law of March 16, 2009 which extended the patrimonial liability of directors in both law and de facto in the event of judicial liquidation, is however nothing of a relic. On the contrary, it has densified under the influence of three converging regulatory waves: Banking Law No. 2016-48 of July 11, 2016, Law No. 2019-47 relating to the improvement of the business climate, and the Financial Market Council’s General Decision No. 23 of March 10, 2020 on independent directors.
The result is a stacking of regulations that every director, administrator, or member of the supervisory board must now master under penalty of civil liability, and even criminal liability.
Three layers of obligations
The framework of Article 200 of the Commercial Companies Code rests on a three-level configuration that structures the entire Tunisian doctrine in this area. The first layer is preventive: the director must refrain from any situation where his or her private, direct or indirect, personal interest or that extended to close associates and business partners could impair their judgment.
The second layer is declarative: any interest in a contract or an operation concluded with the company must be signaled in writing and recorded in the minutes of the board of directors; otherwise the agreement may be voidable for lack of transparency.
Furthermore, the third layer organizes the control of so-called regulated agreements, which, depending on their nature, are subject to prior authorization, approval by the general assembly, or a specific audit by the statutory auditors.
This architecture, far from being purely formal, was strengthened by Law No. 2018-46 relating to the declaration of assets, whose Articles 17, 18 and 20 impose on public officials and similar appointees an autonomous obligation to avoid conflicts of interest, creating a liability regime that now extends beyond corporate law to join the law of public probity.
The safeguard for independent directors
