Unilateral conductUnilateral conduct by non-dominant firms
Are there any rules applying to the unilateral conduct of non-dominant firms?
Regarding unilateral conducts by non-dominant firms, the Colombian competition regime stipulates three main prohibitions that might be unilateral and considered as anticompetitive in article 48 of Decree 2152 of 1992; (i) infringement of advertising regulation; (ii) acts of influence; and (iii) sale denial or discrimination. The first conduct refers to the violation of the advertising rules established in the Consumer Protection Statute. Every person who regularly offers, supplies, distributes or commercialises products (notwithstanding if there is a profit motive) is obliged to provide consumers clear, truthful, sufficient, timely, verifiable, understandable, accurate and suitable information about the offered products. Misleading advertising, which is ‘one whose message does not correspond to reality or is insufficient, in a way that induces or may lead to error, deception or confusion’, will be sanctioned.
The second conduct sanctions the influence of one company to another with one of the following purposes: (i) to increase their prices or (ii) desist from their intention to lower them. To constitute an act of influence, there must be some degree of constraint or pressure by the infringer in order to achieve the desired result. Also, the infringer is required to have the ability to influence the other company due to factors such as the participation of the company in the market, its size or its relationship with distribution the channels, which enables the firm to whom the influence is directed to orient its conduct in accordance with the act of influence. Even if the firm does not follow the act of influence, it may be sanctioned, as the action of influence may be completed with a mere suggestion.
Lastly, article 48.3 of D. 2153 includes two different behaviours: first, the refusal to sell to another company when this is a retaliation to its price policy, and second, to discriminate against a company, with identical retaliatory mobiles. It should be noted that both conducts must be executed as retaliation to the pricing policy of the agent, either because it does not agree with the price charged by the latter (because it is too high or too low), or because it disagrees with the discounts applied, and in general, any component of the pricing policy. To constitute the illicit conduct, the retaliation must not obey valid and justifiable reasons in the light of the business and cost structure of the firm, since only in this case would there be undue barriers to free and fair competition.