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Colombia: The Superintendence of Industry and Commerce set the thresholds regarding total assets or operational income for determining the obligation to undertake a merger control during 2022

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In brief

The Superintendence of Industry and Commerce (SIC) established the thresholds that will be taken into account to determine whether there is an obligation to undertake a merger control procedure during the year 20221. For this purpose, through Resolution No. 83304 of 22 December 2021, the SIC determined that those economic integrations whose participants, individually or jointly, have total assets or operating income equal to or greater than COP 57,322,387,083.44 (USD 14,398,413.292) must be subject of merger control.

Key takeaways

In Colombia, economic integrations between parties engaged in the same economic activity (horizontal integrations or concentrations) or that are part of the same value chain (vertical integrations), must be subject of merger control procedures, provided that said parties exceed, jointly or individually, the thresholds set by the SIC3.

Therefore, by means of Resolution 83304 of 22 December 2021, the SIC set such thresholds of total assets and operating income at ONE MILLION FIVE HUNDRED SEVENTY-EIGHT THOUSAND SEVEN HUNDRED EIGHTY-ONE AND EIGHTEEN TAX VALUE UNITS (1,578,781.18 UVT4), that is, COP 57,322,387,083.44 (USD 14,398,413.295).

These new thresholds do not represent a significant change compared to those set for the year 2021, which corresponded to 60,000 monthly legal minimum wages (SMMLV), that is, COP 52,668,180,000 (USD 15,343,970.866).

It is noteworthy that the SIC has set these thresholds using Tax Value Units (UVT) considering that as of 1 January 20207, all charges, penalties, fines, fees, rates, tariffs and stamps, currently determined and calculated based on the SMMLV, shall now be calculated based on their equivalence in terms of the UVT. Henceforth, the updates of these values will also be made based on the value of the current UVT.

Please note that violations to the duty to undertake merger control procedures are sanctioned with fines to the intervening parties for up to 100,000 SMMLV (equal in 2021 to COP 100,000,000,000 or USD 26,707,689.67 approximately8) or 150% of the profit reported with the violation, whichever is greater. Moreover, fines might be imposed to any individual who facilitates, collaborate, authorize, execute or tolerate said breach, which might be up to a value equivalent to 2,000 SMMLV. (COP 2,000,000,000 or USD 534,153.79 approximately9). The law also authorizes the SIC to order the reversal of unreported integrations when it finds that their performance entails an undue restriction to free competition.

Through the following link you can visualize resolution No. 83304 of 2021: https://www.sic.gov.co/sites/default/files/normatividad/122021/Resoluci%C3%B3n%2083304%20%281%29.pdf

1 In compliance with the first paragraph of Article 9 of Law 1340 of 2009.

2 Calculation made considering the market representative rate (known as TRM) for 31 December 2021, where USD 1 = COP 3,981.16.

3 In accordance with article 4 of Law 155 of 1959, as modified by article 9 of Law 1340 of 2009.

4 UVT Value for 2021 is COP 36,308.

5 Calculation made considering the market representative rate (known as TRM) for 31 December 2021, where USD 1 = COP 3,981.16.

6 Calculation made considering the market representative rate (known as TRM) for December 31st, 2020, where USD 1 = COP 3.432,50.

7 In accordance with Article 49 of Law 155 of 2019.

8 Calculation made considering the average market representative rate for 2021, equal to USD 1 = COP 3.744,24. Nonetheless, the final fine amount must be calculated considering the applicable rate.

9 Calculation made considering the average market representative rate for 2021, equal to USD 1 = COP 3.744,24. Nonetheless, the final fine amount must be calculated considering the applicable rate.

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Author

Carolina Pardo joined Baker McKenzie in 1994 and is a Partner of the Firm since 2008. She is currently a member of the Global Steering Committee for the Firm’s TMT industry group and of the Global Steering Committee for the Firm’s Compliance & Investigations Group. She was a member of the Global Steering Committee for the Firm’s Global Antitrust and Competition from 2016 and until 2020 and is currently a member of the Latam's Antitrust Steering Committee. She graduated as a lawyer and a specialist in International Contracts Law from Universidad de los Andes in Bogotá. She obtained a LL.M. with emphasis in International Private Law and Competition Law from the London School of Economics and Political Science. Over 25 years, she has advised major national and international clients on matters related to compliance with data protection, competition and consumer law rules. She has represented clients in investigations and submissions related to data protection and competition matters in Colombia and has successfully coordinated and prepared white paper proposals to national authorities on behalf of major industrial groups in Colombia. In 2016 Global Competition Review selected her as one of the 100 most influential women in antitrust. The last two Superintendents of Industry and Commerce have selected Carolina as a Non-Governmental Advisor to the Colombian Antitrust Regulator.

Author

Angelica Navarro is a partner in Baker McKenzie's Bogota office. She served as an advisor to the superintendent of Industry and Commerce on antitrust and merger control. Prior to that, she was an adviser to the director of the National Protection Unit, where she was in charge of the formulation and execution on protection and human rights programs. Previously, she worked as an associate at a legal services firm and an in-house attorney from the Mexichem Colombia company. She was selected by Global Competition Review, along with clients and colleagues to be included in the 2017, 2018, 2019, 2020, 2021 and 2022 Who's Who Legal: Competition – Future Leaders publication as one of the most outstanding lawyers in the right of free competition under 45 years of age. Angelica was also recognized by Legal 500 in 2017, 2018, 2019, 2020 and in 2021 as a "Next Generation lawyer" in competition law.

Author

Luis Alberto Castell is a Lawyer from the Pontificia Universidad Javeriana in Bogotá, with a specialization in Competition and Free Trade Law from the same university and a Master of Laws (LLM) in International Business from Queen Mary University of London.
Luis has more than 10 years of experience. He began his professional practice in the financial sector and has been specializing in the fields of competition law and corporate compliance. He was an advisor to the Superintendent of Industry and Commerce on matters related to antitrust and mergers and was part of the specialized group for the protection of competition in public procurement processes (Bid Rigging) of said entity. He was also part of Shop IV on Mergers of the Federal Trade Commission (FTC) of the United States of America as an International Fellow.
For more than three years he has been part of the Corporate Compliance team at Baker McKenzie, handling matters related to personal data protection, corporate compliance (prevention of corruption and prevention of money laundering and terrorist financing) and competition.

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