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Trends and climate
How would you describe the current merger control climate, including any trends in particular industry sectors?
The current merger control climate in Colombia is favourable, as the Superintendence of Industry and Commerce (SIC) is quite lenient with the substantive analysis of the possible effects that a transaction may have on competition. The SIC clears most transactions without major obstacles and few transactions are submitted to a conditioned or limited authorisation. For instance, in one of the major transactions of recent years (AB inBev/SABMiller), the SIC cleared it without imposing major conditions or obligations, even though the market share of the resulting entity would concentrate the market even more than previously.
Are there are any proposals to reform or amend the existing merger control regime?
No. However, in August 2015 the Ministry of Industry and Trade filed Bill 38 before the Senate, introducing certain modifications to the competition regime, including the merger control regime. On April 7 2016 the minister of industry and trade withdrew the bill, apparently for political reasons.
Legislation, triggers and thresholds
Legislation and authority
What legislation applies to the control of mergers?
The relevant legislation is set out primarily in Law 1340 (July 24 2009), which establishes the general rules governing antitrust matters. This law provides general guidelines for merger control, covering aspects such as the procedure and the sanctioning regime. Law 1340 also empowers the Superintendence of Industry and Commerce (SIC) to act as the national antitrust authority. SIC Resolution 12193/2013 further develops antitrust clearance proceedings and establishes certain guidelines.
The following laws also deal with merger control directly or indirectly:
- Law 155/59 – establishes certain antitrust norms (modified by Law 1340);
- Decree 2153/92 – establishes the structure and functions of the SIC (modified by Decree 4886/11);
- Article 333 of the Constitution – establishes the constitutional grounds for free competition;
- Article 1 of Law 680/2001 – establishes a limit of 40% foreign investment in national television concessionaries;
- Article 15 of Law 1122/2007 – establishes a maximum of 30% vertical integration between health management organisations and health services providers; and
- Articles 55 to 71 of Decree 663/1993 – establishes the merger regime for financial entities under the control of the Superintendence of Finance.
What is the relevant authority?
Law 1340/2009 designates the SIC as the national antitrust authority. Accordingly, it has exclusive competence over administrative investigations, sanctioning proceedings and the review and antitrust clearance of mergers, acquisitions and all other types of business integration, regardless of their legal form.
The Civil Aviation Authority authorises all commercial operations between aircraft operators that involve codeshare contracts, joint operation, use of aircraft in chartering and aircraft space block and exchange agreements.
According to Article 9 of Law 1340, the Superintendence of Finance is the competent authority to authorise the merger of entities under its surveillance.
Transactions caught and thresholds
Under what circumstances is a transaction caught by the legislation?
According to Article 9 of Law 1340, all companies engaged in the same economic activity or participating in the same value chain must notify the SIC of any transaction which they plan to carry out if either of the following circumstances occurs:
- The companies, individually or jointly, had an operational turnover during the previous fiscal year which exceeds a threshold periodically established by the SIC. For 2017 the monetary threshold is set at 60,000 minimum legal monthly wages (around $15.5 million). This amount was established by SIC Resolution 90556 of December 29 2016.
- During the fiscal year preceding the transaction, the parties had, individually or jointly, assets amounting to or exceeding the same amount established for the first standard. Accordingly, for 2017 the monetary threshold is set at 60,000 minimum legal monthly wages.
If any party to the transaction meets at least one of the above conditions, but would still hold less than 20% of the relevant market – even together with the other interested parties – the transaction will be considered as authorised. In this case, notification of the transaction to the SIC will suffice.
Transactions of companies belonging to the same business group are not subject to the merger control regime.
Do thresholds apply to determine when a transaction is caught by the legislation?
Yes, as set out above.
Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?
No, but the formal procedure does involve a preliminary evaluation. By means of Annex 1 of Resolution 12193, the SIC established a pre-evaluation guide comprising a checklist of the documents required to submit a pre-evaluation request, which is the first step of merger clearance. According to Article 2.2 of the same resolution, if companies require further assistance, they may request a hearing with the SIC in which it reviews all Annex 1 documents and provides guidance on the subsequent submission.
Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?
Yes, a local impact test is applicable in accordance with Article 2 of Law 1340. Accordingly, as explained in the Guide for Merger Analysis published by the SIC, foreign-to-foreign transactions may be subject to this regime if the participating foreign corporations:
- are legally established in Colombia;
- engage in economic activities by contract in the Colombian territory;
- have property or real rights in Colombia; and/or
- participate in Colombian companies and act on them within the legal prerequisites of control or a business group.
What types of joint venture are caught by the legislation?
The legislation applies to all joint ventures that may culminate in merger and parties which coordinate their market conduct as if they were merged. Although there is no statutory provision establishing which joint ventures fall within the scope of Law 1340, according to case law – particularly Resolution 4851/2013 – joint ventures caught by the legislation are those constituting a genuine business integration, leaving aside joint ventures formed through collaboration agreements among competitors.
The SIC has established the following criteria to determine when cooperation among competitors constitutes business integration:
- where the joint venture is meant to be permanent and might restrain competition;
- where the joint venture involves the union of premises or assets that previously belonged to two separate agents and the union serves a unified purpose; and
- where the joint venture culminates in a unified business.
Mergers that are not the result of a joint venture must still comply with general antitrust legislation which prohibits agreements that restrain competition or are intended to do so.
Process and timing
Is the notification process voluntary or mandatory?
Notification is mandatory whenever the threshold and parameters set out in the law are met. However, notification is not necessary when the parties demonstrate that they belong to the same corporate group according to Law 222/95 or are effectively controlled by a common entity.
What timing requirements apply when filing a notification?
The notification must be filed before the transaction is closed. If the merger has already taken place, the authority may penalise the parties and dissolve the merger.
What form should the notification take? What content is required?
Where clearance is not mandatory but a simple notification is required, the notification brief must contain the following information:
- the parties to the transaction;
- the type of transaction (eg, merger, company consolidation, acquisition or any other type of transaction, regardless of legal form);
- the competitors in the relevant markets;
- the percentage share in the relevant markets – for each relevant market, the parties must indicate their market share and that of their competitors, as well as the methodology used to calculate these percentages;
- whether certain standards regulate the relevant market share or restrict the market share of one of the parties;
- a power of attorney, if applicable; and
- the certificate of incorporation of all intervening companies.
In transactions where clearance is mandatory, the notification – which is actually a request to the SIC to authorise the transaction – entails filing the pre-evaluation documents stipulated in Annex 1 of SIC Resolution 12193. The parties must expressly request the SIC to pre-evaluate the proposed operation.
Is there a pre-notification process before formal notification, and if so, what does this involve?
No, there is no pre-notification process before formal notification. However, the parties may request the SIC to schedule a hearing to review the information contained in the required pre-evaluation documents.
Can a merger be implemented before clearance is obtained?
No. Where the parties plan a transaction which falls within the scope of the merger control legislation, they must await the authority’s clearance in order to close and move forward with the merger.
Guidance from authorities
What guidance is available from the authorities?
Pursuant to Superintendence of Industry and Commerce (SIC) Resolution 12193, the parties may request a hearing with the SIC in which it reviews all documents required for pre-evaluation and provides guidance with the aim of facilitating the subsequent submission of documents. The conclusions of such hearings are not binding on the authority.
What fees are payable to the authority for filing a notification?
There are no filing fees.
Publicity and confidentiality
What provisions apply regarding publicity and confidentiality?
In principle, the case and all documents are public. Nonetheless, According to Article 2.2.3 of SIC Resolution 12193, the parties to the transaction may request the SIC to keep certain documents confidential. However, the SIC may refuse to grant confidential status where the documents are not considered confidential under the Constitution or the law.
On the other hand, pursuant to Article 2.2.4 of Resolution 12193, the parties may petition the SIC – by means of a writ grounded on public order reasons – not to publish the pre-evaluation request. The SIC will evaluate the grounds of the non-publication petition and decide whether to grant it within three working days.
Are there any penalties for failing to notify a merger?
Yes. Article 25 of Law 1340 expressly provides that failing to notify a transaction will allow the SIC to impose on each infringing party and for each infringement a fine of up to 100,000 minimum monthly wages (approximately $24 million) or a fine of 150% of the profits resulting from the infringement. Further, Article 13 of Law 1340 provides that the SIC can commence an investigation where the parties to a notifiable transaction fail to notify or the transaction is closed before the SIC has rendered a clearance decision. This investigation may result in the SIC ordering the dissolution of the transaction if it restrains competition.
The SIC may consider that a transaction that was only notified is also subject to clearance and may commence an investigation in this regard; this normally happens when the market share was calculated incorrectly and the parties met the asset or income threshold.
Procedure and test
Procedure and timetable
What procedures are followed by the authority? What is the timetable for the merger investigation?
The Colombian merger control regime comprises two main phases: the pre-evaluation phase and the substantive test phase.
Pre-evaluation phase The pre-evaluation phase starts with the filing of a request to the Superintendence of Industry and Commerce (SIC) to carry out the pre-evaluation. The documents that need to be filed are those stipulated in the pre-evaluation guide contained in Annex 1 of SIC Resolution 12193 and documents evidencing that the intended transaction is subject to the merger control regime according to Article 2.1 of the same resolution.
The SIC will formally assess the documentation within three working days of receipt. If it finds the documentation to be incomplete, it will require the applicants to complete and submit any missing documents within two months; failure to do so will lead the SIC to consider the application abandoned. If the documentation is found to be complete, the SIC will publish a notice of the start of the clearance procedure on its website.
If the SIC considers that the transaction might unduly restrain competition, it will order the parties to publish a notice in a newspaper. Within 10 working days of this publication, interested third parties may submit evidence and any information that may be pertinent to the analysis of the transaction. After expiry of this term, the SIC may request third parties to submit more information.
Within 30 days of receiving the pre-evaluation request and after expiry of the term for interested third parties to intervene, the SIC will issue an administrative decision either continuing the clearance procedure or authorising the transaction.
Substantive examination The substantive examination phase follows the pre-evaluation phase if the SIC decides to continue the clearance proceedings. This decision must be notified to the parties and other authorities relevant to the transaction (the relevant authorities depend on the affected market). The notified authorities will have 10 working days to submit a technical opinion. Despite this timeframe, the relevant authorities may intervene at any stage of the procedure.
Within 15 days of notification of the SIC’s decision to continue with the proceedings, the parties to the transaction:
- must submit the information stipulated in Annex 2 of Resolution 12193;
- may rebut the information submitted by interested third parties; and/or
- may propose actions to overcome potential anti-competitive effects of the transaction.
The parties may request the SIC to schedule a hearing to review the information contained in the documents required under Annex 2.
The SIC must decide the case within three months of first receiving the required information. If the SIC does not issue a final decision within this timeframe, the transaction will be tacitly authorised.
What obligations are imposed on the parties during the process?
The parties must file clear and complete documentation and cooperate with the SIC. They must also publish a notice of the transaction if ordered to do so by the SIC. The SIC may impose conditions on clearance of the merger where it deems appropriate, in which case the parties will have to adapt accordingly.
What role can third parties play in the process?
Within 10 working days of publication of the transaction notice, interested third parties may intervene by submitting evidence or other information pertinent to the analysis of the transaction. On expiry of this term, the SIC may request interested third parties to provide further information on the relevant market sector. Interested third parties recognised as such may also file a reconsideration request with the SIC.
What is the substantive test applied by the authority?
The substantive test applied by the SIC is essentially to determine whether the transaction unduly limits free competition in the market. In doing so, the SIC analyses unilateral, vertical and coordinated effects. Market concentration and the potential restraint of competition are usually analysed using the Herfindahl-Hirschman Index, elasticity of demand, external barriers and specific market regulation.
Does the legislation allow carve-out agreements in order to avoid delaying the global closing?
The SIC usually requests the parties to carve out a business unit as a condition of transaction clearance. However, the parties may also suggest a carve-out agreement as a remedy. The carved-out business unit must be fully and currently functional and profitable in order for competitors to have a true interest in buying it. For example, when acquiring a competitor’s business unit, one of the biggest Colombian private companies in the gas station and lubricant industry offered to sell the acquired gas stations after the merger.
Test for joint ventures
Is a special substantive test applied for joint ventures?
Both joint ventures and mergers are subject to the same tests if they result in business integration.
What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
According to Article 2.6 of Superintendence of Industry and Commerce (SIC) Resolution 12193, in accordance with Articles 11 and 12 of Law 1340, the potential outcomes of a merger investigation are:
- authorisation of the transaction;
- authorisation of the transaction subject to certain conditions or obligations; or
- rejection of the transaction.
If the integration is authorised under certain conditions or obligations, the SIC will periodically monitor the parties’ compliance with the imposed conditions. Failure to comply with the conditions may trigger the imposition of fines or the dissolution of the transaction.
According to Article 12 of Law 1340, the SIC may refrain from rejecting a transaction if the parties can demonstrate, with technically grounded studies, that the benefits of the transaction for consumers are greater than its potential negative impact on competition, and that such benefits cannot be achieved by any other means (the efficiency exception). Further, the parties must ensure that the alleged benefits will in fact benefit consumers.
If a transaction is authorised based on the efficiency exception, clearance is understood to be conditioned on the parties’ behaviour, which must accord with the arguments, studies and commitments submitted when requesting application of the efficiency exception.
Right of appeal
Is there a right of appeal?
As the head of the Superintendence of Industry and Commerce (SIC) signs off on the decision to clear or prohibit a merger, there is no administrative appeal. However, it is possible to submit a reconsideration request.
Further, if the parties to the transaction do not agree with the outcome of the procedure, they may challenge the decision by means of an annulment action before the courts. However, court action is seldom taken, as an annulment action may take at least three years to be decided (although usually much longer).
Do third parties have a right of appeal?
Yes. Any person recognised as an interested third party in the procedure has the right to file a reconsideration request with the SIC. Interested third parties may also file an annulment action before the administrative jurisdiction.
What is the time limit for any appeal?
According to Article 76 of Law 1437/11, a reconsideration request must be filed within 10 working days of notification of the administrative decision. The SIC must issue a decision within two months of the date on which the reconsideration request was received.