Given the limited response to Decree 2896 of 2010, reflected in the low number of cases in which the participants of a cartel attended to the Colombian Competition Authority to apply for benefits for reporting agreements restricting free competition, the Ministry of Commerce, Industry and Tourism issued on July 16, 2015, the Decree 1523, which establishes new rules for the Leniency Program.
This new regulation took into consideration the recommendations given by a Committee of Experts integrated by antitrust lawyers and professors, high-ranking officials from the Superintendence of Industry and Commerce (hereinafter “SIC”), and the recommendations of the Organisation for Economic Cooperation and Development (hereinafter “OECD”).
I. BENEFITS FOR THE SECOND WHISTLEBLOWER
The reduction for the second whistleblower will be between 30% and 50% of the fine to be imposed, as long as it provides information and evidence not already in possession of the SIC or given by the first whistleblower. The reduction for the third whistleblower and other applicants could be up to 25% of the sanction to impose, subject to the quality of the information provided.
II. DEFINITION OF “INSTIGATOR”
To be considered as the Instigator, the coercion or serious threat that induce others to begin or enter the agreement restrictive of competition must remain during the term of execution of the agreement and be determining on the developing of it. The instigator cannot apply to the leniency program, however, if the coercion or serious threats ceased at some point, then the instigator may apply to the benefits of the Leniency Program.
III. CLEAR RULES
The application to the Leniency Program may be submitted through e-mail, by a filled written statement or personally before the Deputy Superintendent for the Protection of Competition. From this moment the whistleblower would have priority over the other informers.
The whistleblower must recognize its participation in the anticompetitive agreement and submit useful information and evidence regarding the existence of the anticompetitive agreement, based on which the SIC will decide if an agreement with the applicant proceeds or not. The SIC will also take into account the fulfillment of the applicant of the instructions imparted by the SIC, and the ending of its participation in the cartel.
If the SIC and the applicant do not subscribe the agreement, the applicant will have 10 business days to withdraw the evidence. If the applicant does not withdraws the evidence, it is understood that the applicant authorizes the SIC to incorporate the evidence to the file of the investigation. In any case, failure to withdraw the evidence it is understood as a request of reduction of the applicable fine.
IV. ADDITIONAL BENEFITS FOR THE SECOND WHISTLEBLOWER THAT REPORTS ITS PARTICIPATION IN A DIFFERENT CARTEL
In case the second whistleblower informs the SIC about the existence of a different cartel, it would receive an additional 15% of reduction under the fine imposed for its participation in the first cartel, and a total exoneration of the fine imposed for its participation in the second cartel.
V. REDUCTION IN THE OPPORTUNITY FOR REQUESTING ADMISSION IN TO THE LENIENCY PROGRAM
The opportunity to apply to the Leniency Program is limited to the term of presentation of discharges within the administrative investigation (i.e. at the end of the 20 working days that the investigated parties have to present legal disclaimers and request for evidence).
The text of decree is available at http://www.sic.gov.co/recursos_user/documentos/DECRETO_1523_DEL_16_DE_JULIO_DE_2015.pdf