In Colombia, the National Authority for the Protection of Competition is the Superintendence of Industry and Commerce –SIC- (Article 6 of Law 1340, 2009). In that regards, it privatively knows of administrative investigations for the violation of the competition regime.
The procedure to investigate restrictive trade practices (anticompetitive agreements, abuse of dominance and other unilateral acts) is establish primarily in Article 52 of Decree 2153, 1992 which was amended by Law 1340, 2009 and Decree 19, 2012. This procedure has basically three stages: i) preliminary inquiry, ii) formal investigation and iii) final decision.
- Preliminary inquiry: The SIC may initiate a preliminary inquiry on its own initiative –ex officio-, for a complaint of a third party or based in information submitted by other authority to the Competition Division.
The SIC reviews the information submitted or the complaint filed and determines whether or not to open a preliminary inquiry or to dismiss the complaint.
In this stage there are not investigated parties or a determined infringement. It is a classified stage.
The SIC has legal faculties to request for information (all kind of documents including digital documents), make dawn raids (unannounced visits to the companies), take depositions and order, practice and collect all the information required to verify the accomplish of Competition rules (Article 15 of the Political Constitution of Colombia and Article 1.62, 1.63 and 1.64 of Decree 4886, 2011).
In this stage it is also possible to adopt injunctions if the legal requirements are full filled. (Article 18, Law 1340, 2009).
This stage has place in the Competition Division which is led by the Deputy Superintendent for the Protection of Competition -Deputy Superintendent-.
This stage ends with the decision of the Deputy Superintendent to close the case or to open a formal investigation because there is sufficient information and evidences in the file to continue with the investigation.
- Formal investigation: Starts with the statement of objections (formal resolution that opens the investigation). In this resolution, the SIC must indicate clearly and precisely the facts that originated the investigation, the people who is going to be investigated, the rules allegedly infringed and the cautions or sanctions that can be applied. The statement of objections must be notified to the investigated parties who have twenty (20) days to file their comments or to ask or file evidence.
This is also the lapse to apply for the leniency program or to provide reasonable assurance to the SIC that they will suspend or modify the conduct for which are being investigated.
Once the statement of objections is posted in the web site of the SIC, during the following fifteen (15) days third parties with a direct interest in the investigation may intervene in the same and submit evidence they consider relevant to the case.
Once the investigation finishes the Deputy Superintendent calls, for once, to a hearing the inquired party and third parties recognized within the process, whom shall verbally present arguments they pretend to enforce within the investigation.
Then, the Deputy Superintendent shall submit to the Superintendent of Industry and Commerce an evaluation report (reasoned report) on whether a violation has occurred or not. That report shall be conveyed for twenty (20) business days to the inquired party and third interested parties recognized during the process.
The report issued by the Deputy Superintendent is not binding for the Superintendent of Industry and Commerce
- Final decision: The Superintendent of Industry and Commerce with his team (lawyers and economist that did not have any participation in the previous stages) must evaluate the submissions of the parties in the process, the reasoned report of the Deputy Superintendent and the evidence of the file. The Superintendent of Industry and Commerce may request for more evidence if necessary.
The investigation can be closed or finished with the sanction of the investigated parties.
If the Superintendent of Industry and Commerce considers there is not infringement of Competition Law would issue an administrative act with such decision.
On the contrary, if he considers there was an offense must hear the Advisory Council’s non-binding opinion before imposing any fine. The Advisory Council is constituted by five members appoint by the President of Colombia.
For companies, the maximum fine that can be imposed for the infringement of the Competition regime is up to 150% of the profits derived from the conduct or 100,000 CLMMW, equivalent to USD 25.082.378,00. For individuals, the maximum fines is 2,000 CLMMW, the equivalent of USD 501,647,56.
The decision of Superintendent of Industry and Commerce can be subject of a reconsideration petition within the ten (10) following business days.
The Superintendence of Industry and Commerce has five years since the anticompetitive conduct was realized to investigate it. After this five years, the faculty of the SIC to impose sanctions shall expire.