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.
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.