- Prioritisation and resource allocation of enforcement authorities
The main antitrust enforcement authority in Colombia is the Superintendence of Industry and Trade (SIC), under the supervision of the Ministry of Commerce, Industry and Tourism. Since the enactment of Law 1,340 of 2009, the SIC has been the sole antitrust enforcement authority for all industries, except for authorisation of the following operations, which remains in the hands of Aerocivil, the Colombian aeronautical authority: code-sharing agreements, joint operations, use of charter aircraft, and exchange and blocking of aircraft slots. In addition, authority for antitrust enforcement in relation to business integration or reorganisation processes of companies subject to the exclusive supervision of the Financial Superintendence of Colombia (SFC) also lies exclusively within the jurisdiction of the SFC.
SIC is responsible for enforcing competition law, as well as other regulations. To this end, it is organised into six divisions:3 Personal Data Protection, Competition Protection, Consumer Protection, Metrology, Industrial Property and Jurisdictional Matters. Within the Competition Protection Division, there are four working groups and an administrative directorate: protection of competition, an interdisciplinary group tasked with preventing collusion in public or private bids (created in 2012 owing to the increase in cases regarding this matter), merger review, the industries and economic studies group, and the newly created compliance directorate.
- Enforcement agenda
The main priority in the government’s agenda with regard to competition law enforcement over the past four years has been strengthening competition in the Colombian markets. According to the WEF Global Competitiveness Report 2017–2018, the effectiveness of Colombia’s antitrust policy was ranked 71st out of 137 countries, down two places compared with the 2016–2017 rankings. Despite this, it is important to note that Global Competition Review previously considered the SIC to be one of the best competition authorities in the Americas.
Between 2012 and 2018 SIC’s budget tripled, which allowed for:
- an improvement in the organisation’s human capital and the creation of a new task force to prosecute bid rigging exclusively;
- a substantial increase in investigations into bid rigging in public procurement processes (investigations regarding such cases increased from an average of 1.8 investigations per year during 2000–2010 to 26 investigations per year since 2011);
- the creation of an application process for public entities to identify potential bid-rigging risks in public procurement processes;
- publication of its decisions, thus providing legal certainty for agents in the market by allowing them to verify whether their conduct is in line with the competition regime, and improving the debate on competition;
- with the assistance of the Latin American Programme for the Protection of Competition and Consumers, provision of training for administrative judges regarding, inter alia, antitrust law and economics, judicial evidence standards in other jurisdictions and appropriate economic tests for evaluating antitrust practices;
- the establishment of a method for calculating fines for competition law infractions, based on standards set out in Law 1,340 of 2009 and European Commission best practice; and
- the organisation of several workshops and seminars attended by the business community.
Competition advocacy programmes are instruments used worldwide to protect and promote market competition. They involve carrying out series of activities to review, revise and provide recommendations on regulatory projects, the main purpose of which is to examine the market’s impact on those activities and identify legal provisions that may impose unnecessary or excessive costs.
The SIC has the option of reviewing general-scope regulatory projects of national-level public entities in order to examine the market’s impact on activities, identify legal provisions that may impose unnecessary or excessive costs, and to provide its non-mandatory opinion. However, the SIC cannot review:
- a regulatory projects of public entities at regional and municipal level;
- regulations already in force that may restrict competition;
- bills of laws; or d contracts to be entered into by government entities.
The SIC is also discouraged from challenging in the administrative courts current government-entity issued regulations that may conflict with competition laws, because this would require the SIC to challenge the government of which it itself is part.
According to the Private Competitiveness Council, both public policy and the institutional competition enforcement framework should be modernised to improve market competition and reduce regulatory restrictions on free competition.
Cartels have been considered an antitrust offence since Law 159 of 1959 came into force; however, this regulation did not explicitly mention cartels, but ‘agreements with the purpose of, directly or indirectly, restricting the supply, distribution or consumption of raw materials, products, goods or services’. This legislation was updated in 1992 and anticompetitive agreements were legally defined. Subsequently, Law 1,340 (the Competition Law) was enacted in 2009, increasing fines on companies and individuals who participate in the commission of anticompetitive conduct. The Competition Law also introduced a leniency programme, which allows members of a cartel to blow the whistle in exchange for benefits during the subsequent investigation. The following agreements between competitors are considered anticompetitive per se, when they have the purpose or effect of:
- directly or indirectly fixing prices;
- fixing discriminatory commercialisation conditions for third parties;
- allocating markets among producers or distributors;
- allocating production or supplying quotas;
- allocating or limiting the supply of production inputs;
- limiting technical developments;
- bundling sales mandatorily;
- refraining from producing goods or services, or affecting their production levels;
- bid rigging or effectively distributing the awards of contracts in competitions, or setting terms for requests for proposals (RFPs) for both public and private processes; and
- preventing third parties from accessing markets or marketing channels.
Furthermore, Article 410a of the Colombian Criminal Code8 created a criminal offence of bid rigging in public institution RFP processes, with sanctions of six to 12 years’ imprisonment, a fine of approximately US$52,000 to US$263,000, and disqualification from entering into contracts with state entities for eight years. These provisions correspond to Article 101 of the Treaty on the Functioning of the European Union (TFEU), which also enumerates agreements that are prohibited because they restrict free competition; however, Colombian law regulates not only restrictive agreements but also unilateral conduct, as discussed in the next section.
- Significant cases
Since 2016, the SIC has issued several major decisions against cartels in the toilet paper, baby nappies and sugar markets. The decisions involving toilet paper and baby nappy producers are significant, as the investigations were initiated through the leniency programme and marked the first instance in which fines were waived in exchange for collaboration during the investigation proceedings.
In the Toilet Paper case, in which the SIC found evidence of a price-fixing scheme, the agency levied fines totalling 185 billion Colombian pesos against four companies and 21 individuals, with fines of 260 billion pesos imposed on 12 sugar mills and 12 individuals found to have engaged in a scheme to allocate production quotas.
- Trends, developments and strategies
Since 1991, the SIC has evolved significantly. During its early years, it developed its doctrine on cartels through its initial investigations, using EU and US jurisprudence as its main points of reference. Until recently, both vertical and horizontal agreements were deemed to be illegal per se. However, recent decisions have clarified that vertical agreements should be judged using the rule-of-reason approach, to evaluate any efficiencies and benefits to consumers of such agreements. The Competition Law provides for early termination of an investigation if the offender offers sufficient guarantees (structural or behavioural) to desist from harming its competitors or consumers.9 This alternative has proven to be very effective for the early termination of anticompetitive conduct investigations, and the SIC has developed specific provisions to be included in the guarantees to allow close follow-up scrutiny of the offender’s conduct. However, the use of guarantees has been decreasing to the extent that they are now an exceptional mechanism.10 In recent cases, the SIC has stated that, as a matter of public policy, guarantees will be admitted only in cases involving unilateral conduct. Under the powers granted to the SIC by the Competition Law, the SIC may also initiate investigations and impose sanctions on companies that do not follow its instructions, or that obstruct investigations by refusing inspections or not furnishing required information.
After using the leniency programme effectively to prosecute cartels, the SIC determined that it was necessary to refine the leniency rules, therefore, in July 2015, new rules were duly enacted. Although some issues limiting application of the leniency programme were addressed, others would require the amendment of Law 1,340 (such as immunity from criminal prosecution when collaborating with the SIC). Furthermore, a decision by the Andean Community Tribunal, imposing fines on companies that had been granted immunity in Colombia for conduct allegedly carried out in Colombia but with effects in Ecuador, has again raised questions about the protection of whistle-blowers and the future effectiveness of the leniency programme itself.
III. ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE
Colombian law regulates not only restrictive agreements (as mentioned in Section II) but also the following unilateral conduct, deemed contrary to free competition per se, even in the absence of dominance:
- violating advertising rules contained in the Consumer Protection Statute;
- influencing a company to raise the prices of its products or services, or to desist from its intention to reduce prices; and
- refusing to sell or provide services to a company or discriminating against it when it may be understood as retaliation for its pricing policy.
The Constitution upholds free competition on principle, and mandates the government to prevent the abuse of market power in the Colombian market. On the basis of this principle, the law defines the following as abusive conduct per se if the offender has market power:
- the reduction of prices below costs to eliminate competitors or prevent their entry or expansion;
- the application of discriminatory conditions to equivalent transactions, which put a consumer or supplier at a disadvantage compared with another consumer or provider under similar conditions;
- conduct with the purpose or effect of subordinating the supply of a product to bundled sales;
- the sale to a consumer under conditions different from those offered to another consumer when it is intended to reduce or eliminate competition in the market;
- selling or servicing in any part of the country at a price different from that in another part of the country, when the purpose or effect of the practice is to reduce or eliminate competition in that part of the country (in which case it will be considered abusive conduct only when the prices do not correspond to the cost structure of the transaction); and
- obstructing or preventing third-party access to markets or marketing channels.
The above list corresponds with Articles 101 and 102 TFEU. The scope of the limitations is very similar, as dominance is not prohibited by competition law in Colombia.
- Significant cases
In 2013, SIC sanctioned Empresa de Energía de Boyacá (EBSA) in Resolution 3,694 of 2013, confirmed by Resolution 12,237 of 2013. EBSA is a public utilities company, with private and public capital, engaged in energy distribution and commercialisation. The SIC found that EBSA had market power in the commercialisation of energy services in several municipalities of Boyacá and Santander (99.9 per cent of the market share) but did not have such a dominant position in the market for calibration of energy meters. EBSA abused its dominant position in the commercialisation of the energy services market by making supply of its services conditional upon additional obligations independent of its business object, such as charging for the homologation of energy meters sold by third parties. This charge had two effects:
- excluding, or reducing the market for, competing third-party calibrating laboratories, as meters calibrated by such laboratories would cost more than those calibrated directly by EBSA; and
- exploiting the market, as a higher price would have to be paid by either the third-party competitor meter sellers or their users. The SIC imposed the highest monetary sanction possible at the time on EBSA (4.7 billion pesos) and fined its legal representative approximately 47 million pesos.
- Trends, developments and strategies
The SIC has considerably increased investigations, sanctions and fines of restrictive acts and abuse of dominance, as well as reducing the time frame of the investigations and decisions.14 Notably, the SIC does not have a general and objective rule to determine market power (i.e., there are no specific market-share percentages stipulated to establish the existence of a dominant position) and market share is not considered to be the sole criterion of dominance. In addition, the SIC is of the opinion that if abusive conduct is evident, there is no need for a thorough economic examination to assess whether the conduct produced any anticompetitive effects in the market or on its competitors. Unlike the policy adopted in cartel investigations, the SIC continues to accept guarantees in unilateral conduct cases.
It is likely that the recent trends in enforcement will continue, meaning an increase in the number of investigations and imposition of larger sanctions.
IV. SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES
Article 4 of Law 1,340 of 2009 establishes that Law 155 of 1959, Decree 2,153 of 1992 and Law 1,340 constitute the general competition framework for all industries. However, where an industry is subject to specific legislation, that legislation will prevail over the general rules of the competition framework. In Colombia, industry-specific regulations place major constraints on the general competition rules in the following sectors:
- a public utilities;
- the energy sector;
- communications (including telecommunications and postal services);
- finance and insurance; and
- air transport.
Article 8 of Law 1,340 provides that the SIC shall notify the relevant industry-specific regulators of any antitrust investigation and, after consideration, the industry regulator may deliver its technical opinion on the matter, without prejudice to the possibility of intervening, ex officio, at any time in the proceeding. The opinions expressed by those regulators are not binding on the SIC; however, if the SIC decides not to follow a regulator’s opinion, it must explain the grounds for the decision.
In the communications industry, the Communications Regulation Commission (CRC) has been granted powers, first by Decree 2,870 of 2007 and later by Law 1,341 of 2009, to ex ante define relevant markets and regulate competition and dominance in the industry. Despite this, SIC remains the authority for the ex post enforcement of anticompetitive conduct to the general regime with respect to the telecommunications industry.
- Significant cases
In Resolution 53,403 of 2013 (confirmed by Resolution 66,934 of 2013), the SIC found that Claro had abused its market power by obstructing or preventing third-party access to markets or marketing channels, and limited free competition in the mobile services market. Claro’s dominance in the market had previously been established in CRC Resolution 2,058 of 2009. The CRC had also subsequently issued a regulation providing for mobile number portability to increase competition. On the basis of complaints from Claro’s users, accusations by competitors, and information provided by the CRC and SIC internal investigation processes, Claro was found to have breached the telecommunications regulations in the following ways:
- it impeded its users from changing to another operator, by refusing to provide them with a personal identification number necessary for number portability;
- it sold locked mobile phones, usable only with Claro’s network and not other carriers; and
- it manipulated the number of new users migrating to Claro by providing a monetary incentive to its distributors (over which Claro had contractual influence) if transfers to Claro increased, as a result of which Claro’s distributors made fictitious transfers of users from other operators by falsifying customers to increase these numbers.
The SIC sanctioned Claro with a fine of 87.7 billion pesos, which at the time was the largest monetary sanction imposed in Colombian history for a breach of competition law.
- Trends, developments and strategies
Although, in 2021, the CRC issued an ex ante ruling declaring Claro to be dominant in the mobile services market (voice and data), it did not impose any specific remedies. However, it could, by law, choose to issue ex ante resolutions in future, to correct the alleged market failure.
The law has evolved from the position where there were multiple competition authorities, with each industry-specific authority regulating its own sector to there being one sole ex post competition authority. This is a significant change, since formerly the regulators’ decisions on competition issues could be influenced by political concerns. Nevertheless, as the SIC is a governmental agency, political concerns may still influence the enforcement agenda.
In the case of the telecommunications industry, the CRC (which is a specialised collegiate industry body) has legal powers to define relevant markets ex ante and impose measures to protect competition in the industry. Following Organisation for Economic Co-operation and Development (OECD) recommendations, the television market, previously within the jurisdiction of a separate regulatory agency, now falls within the CRC’s jurisdiction.
V. STATE AID
Article 333 of the Constitution empowers the state to do whatever is necessary to prevent and avoid all kinds of interference with or restrictions on free competition. Hence, the state has an obligation to comply with this provision. However, this provision cannot be understood as an absolute prohibition on state aid. There are certain scenarios where state aid is considered to be necessary and lawful, such as:
- price stabilisation funds;
- funds for agricultural development;
- the establishment of minimum guaranteed prices;
- regulation of internal markets for agricultural products;
- chain agreements in the agricultural industry;
- the safeguards regime;
- special public utilities tariffs for the agricultural industry;
- subsidised loans for the agricultural industry; and
- state aid for commercialisation of agricultural products because of supply shortages.
In addition, whenever an external situation may affect or distort competition in the domestic markets, state intervention will be conducted by the government through the implementation of measures to compensate or regulate the market conditions to ensure fairness and competitiveness for domestic production.
Likewise, Article 1 of Law 155 of 1959 states that the government shall approve agreements that, although contrary to free competition, ensure the stability of an economic sector of general interest.
Colombia, as a Member State of the Andean Community of Nations (CAN), is also subject to state-aid regulation to prevent unfair interstate market trading, such as CAN Decision 283 of 1991.
- Significant cases
In 2013, the SIC opened an investigation17 into the several utility companies owned by the district of Bogotá – UAESP, EAAB and Aguas Bogotá – and the companies’ most important directors, including the then Mayor of Bogotá, for alleged breaches of the general prohibition against agreements, practices, procedures and systems affecting free competition, and for preventing third parties from accessing markets or marketing channels, pursuant to Law 155 of 1959 and Decree 2,153 of 1992. The investigation began as an inquiry into the newly adopted waste management system in Bogotá and concluded with a decision in which the SIC found that free competition had been impaired. The SIC’s initial decision, rendered in April 2014, imposed total fines in excess of 80 billion pesos on both companies and individuals, and was confirmed on review in September 2014. The then mayor of Bogotá was personally fined 400 million pesos, while EAAB received a fine of 61 billion pesos for its role in restricting competition by foreclosing entry into the market.
- Trends, developments and strategies
Several funds to stabilise prices of agricultural products remain operational, and are funded by the government, with no plans to terminate them or reduce their funding. Although policies to improve the competitiveness of agricultural producers have been implemented, their success has been limited.
In light of the recent extraordinary circumstances arising from the global pandemic, state aid for certain key industries, such as food production, has raised the issue of regulating subsidies and establishing a specific legal framework to ensure availability of goods and services.
VI. MERGER REVIEW
Law 1,340 of 2009 states that a business integration occurs whenever there is an acquisition of shares or assets, a merger, spin-off, a joint creation of a company or a joint venture agreement between competitors, or any other type of legal agreement, in which, before the closing of the transaction, competition existed in at least one relevant market; and after the transaction, the parties involved act as a single unit in the relevant market and cease to compete.
Business integrations can take one of the following forms:
- horizontal integration: when an integration takes place between companies that perform the same or similar economic activities (such as whenever integration occurs between competitors); or
- vertical integration: when an integration takes place between companies that participate in the same economic process but at different stages of the value chain (such as when integration occurs between a manufacturer and its suppliers of raw materials or its distributors).
The relevant market is composed of the product market and the geographic market. The product market is composed of the products that directly compete and the substitute products that are considered by consumers as close-competing products. The geographic market is the smallest geographic area in which the parties involved, if acting as a single unit, may influence in a profitable manner the price, quality, variety, service, publicity, innovation and other conditions of competition of the market. The geographic market can be local, regional or national, and shall include national and imported products.
Transactions that constitute a business integration must be notified ex ante to the SIC if they meet at least one of the following subjective thresholds and one of the following objective thresholds:
- subjective threshold: the companies involved in the transaction are engaged in the same economic activity (horizontal transactions) or are part of the same value chain (vertical transactions); and
- objective threshold: the combined annual operating income of the companies involved or their total combined assets exceed an amount equivalent to 1,641,044.99 tax value units.
After consideration of the above criteria, the following may occur:
- If none of the above-mentioned subjective and objective thresholds is met, the business integration does not need to be reported to the SIC.
- If the business combination meets any of the above subjective and objective thresholds, and the combined market share of the companies involved is less than 20 per cent of the relevant market, the transaction shall be deemed authorised by simply giving prior notice to the SIC regarding the transaction. In this case, the information to be furnished to the SIC is basically the parties involved, the legal form of the transaction (merger, acquisition of control, acquisition of shares or assets, etc.), the relevant market (product market and geographic market), the share participation in the relevant market and the methodology to calculate them.
- If the business combination meets any of the above subjective and objective thresholds, and the combined market share of the companies involved equals or exceeds 20 per cent of the relevant market, prior authorisation must be requested from the SIC, subject to the following rules:
- pre-evaluation filing: the parties interested in obtaining antitrust clearance must file a summary of the business integration and a pre-evaluation request with the SIC;
- review of the pre-evaluation filing: the SIC has 30 business days to determine whether the business combination is approved, without further information requirements, or whether a full review must be carried out; and
- full evaluation filing (in-depth review): if the SIC decides that a full review must be carried out, the parties concerned must file all the information required for a complete study. After the complete filing is made, the SIC has three months to decide whether it approves or rejects the combination, or imposes conditions for its clearance. If the SIC does not issue an antitrust clearance within three months, the transaction is deemed to be unconditionally authorised.
In a merger review, SIC may raise objections; raise no objections but impose certain conditions on the merger (either structural or behavioural); or raise no objections and no conditions. The fines that the SIC may impose in the case of a violation of antitrust provisions (cartel conduct, restrictive agreements, abuse of dominance or breach of merger review regulations) are as follows:
- for companies, fines of up to 100,000 current monthly minimum legal wages, or up to 20 per cent of the company’s assets, or its operating income in the fiscal year immediately prior to the imposition of the sanction, whichever is higher; and
- for individuals who facilitate, authorise, execute or tolerate anticompetitive conduct, fines of up to 2,000 current monthly minimum legal wages, in which case, the company is expressly prohibited from paying or guaranteeing the fine imposed on the individual.
Additionally, in the case of merger review, and without prejudice to the imposition of the above-mentioned fines, the SIC may order the reversal of a transaction for failure to properly report it, or for gun jumping, provided that it unduly restricts competition. Reversal of the transaction is also applicable in cases in which the transaction is concluded after being blocked by the SIC or when the conditions under which the operation was approved have not been fulfilled.
- Significant cases
In 2013, the government began an auction process for its 57.5 per cent share in Isagen, an energy generation and retail public utilities company that also participates in the commercialisation of natural gas in the Colombian market. Grupo Argos, a potential bidder, participates in the same markets as Isagen. Empresa de Energía de Bogotá (EEB), another potential bidder, participates indirectly in the same market through its shareholding in Emgesa and Codensa. The energy market is regulated by the Energy and Gas Regulation Commission (CREG), which has established certain restrictions, including a maximum market share of 25 per cent for energy generating and retailing companies, and a maximum power output of 3,402MW for 2012. A merger review process filing was made by both Grupo Argos and EEB. The SIC conditionally approved both acquisitions based on the following:
- Grupo Argos: the merger would represent a total 3,459MW of capacity in the energy-generation market, which exceeded the CREG limit. Thus the SIC imposed on Grupo Argos the obligation to divest energy sector-related assets and to neutralise its market power after the merger;18 and
- EEB: the merger would represent a 31.31 per cent share of the energy generation market, which exceeded the SIC limit. The SIC imposed conditions, inter alia, that EEB must divest its voting rights in the energy companies Emgesa and Codensa, and divest certain assets, especially in the thermal generation plant Transportadora de Gas Internacional.
- Trends, developments and strategies
In 2021, 184 cases were submitted to the SIC for merger review, representing an increase compared with the 166 cases filed in 2019.
In 2021, the SIC issued Resolution 2,751, amending the rules for the conduct of merger review proceedings; however, there were no major changes introduced. Also, in December 2019, Congress authorised the SIC to establish and charge a merger review filing fee and, in January 2021, the SIC published the applicable fees.
Since April 2012, it has been possible for all merger review documents to be submitted online via the SIC’s website20 and this is encouraged by the authority to simplify the merger review process.
In 2018, the SIC updated its merger review guidelines following an OECD recommendation and it subsequently published the revised document. The guidelines provide an insight into the SIC’s review process and allow a better understanding of the competition concerns arising out of specific transactions.
- Pending cases and legislation
As mentioned previously, the SIC is in charge of ex post enforcement of competition regulations. There are several investigations currently open and awaiting a decision by the SIC and, in this context, it is worth noting that the authority has decided to enhance its capability to undertake high-profile cases, to issue decisions that may have exemplary effects on competitors, and to impose exemplary fines pursuant to Law 1,340 of 2009.
The Competition Law statute of limitations has also been increased from three to five years, giving the SIC ample time to conduct investigations and impose sanctions for competition violations.
The most recent amendment to the Competition Law is Law 2,195 of 2022, which increased fines for anticompetitive conduct, along with new grading criteria for fines, and some changes to the procedures of the leniency programme. Before this amendment, the last modification to the regime was Decree 019 of 2012, which made some changes to the investigation procedure for violations of the competition rules and restrictive practices. The modifications included an amendment to the general structure of the administrative procedure introduced by Decree 2,153 of 1992, the notification and publication of certain SIC decisions, introducing an additional reputational sanction for offenders or investigated parties accused of anticompetitive conduct, and the option of third-party interventions. In 2020, an amendment introducing changes to the provisions on unilateral conduct and abuse of dominance was declared unconstitutional by the Constitutional Court on procedural grounds.