1) Is a merger control regulation in force?

Yes, merger control regulation was first introduced in Colombia in Law 155, 1959 and Decree 1302, 1964. More recently, article 4 was modified by Decree 2153, 1992 and Law 1340, 2009. Also, the Superintendence of Industry and Commerce (hereinafter SIC) has regulated article 4 by virtue of Resolution 2751, 2021.

2) Which authorities enforce the merger control regulation?

Pursuant to article 9 of Law 1340, 2009, the SIC was given the power to enforce merger control in all sectors of the economy, except for mergers: (i) exclusively among financial entities (i.e. entities supervised by the Colombian Superintendence of Finance) and (ii) among aeronautic operators. In the former case, the Superintendence of Finance is in charge of the merger control and in the latter, the Civil Aviation Authority.

3) Relevant regulations and guidelines with links:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Mergers are analyzed under the merger control regulations. Violation of those regulations may be investigated under the general rules applied to the investigation of anticompetitive practices.  Ancillary restrictions such as a non-compete obligations on the seller cannot be automatically reviewed and approved as part of an approval of a merger. In fact, there is no specific process defined within the law to process such ancillary restrictions in Colombia. Therefore, ancillary restrictions will be reviewed under the provisions of the general prohibition clause (article 1 of the law 155, 1959), within the general investigation procedure.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Financial sector

As mentioned in topic 2, merger transactions exclusively among financial entities under the supervision of the Colombian Superintendence of Finance will be approved by said authority. The Superintendence of Finance will request an opinion from the SIC and in case conditions are required, they will be structured by the SIC.

Aeronautic sector

As mentioned in topic 2, merger transactions exclusively among aeronautic operators  will be reviewed by the Civil Aviation Authority (Aeronáutica Civil).

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory in Colombia.

Pursuant to article 9 of Law 1340, 2009, companies that participate in the same activity (horizontal) or belong to the same value chain (vertical), and meet the economic thresholds set by the SIC, have the obligation of reporting the transactions that have an effect in the Colombian market, if the transaction submits permanently to the same control, companies that before the transaction participated independently in the market.

9) Is there a general definition of transactions subject to merger control?

Article 9 of Law 1340, 2009, establishes the transactions that are subject to merger control in Colombia. According to it, companies dedicated to the same economic activities (i.e. horizontal) or that belong to the same value chain (i.e. vertical) will have to inform the SIC of any projected transaction that involves merging, consolidating, acquiring control or integrating businesses, regardless of the legal form, provided the thresholds explained in topic 14 are met.

Any economic transaction is deemed a merger that needs authorization from the Competition Authority when the parties involved permanently cease to participate independently in the market and there is a change of control. In that sense, the key for defining which transactions are subject to merger control is to understand the concepts of (i) control (see section see topic 10-13), (ii) subjective requirements and (iii) objective requirements (see topic 14).

10) Is "change of control" of a business required?

Change of control on a permanent basis is one of the basic requirements to determine whether or not to inform or notify (depending on the thresholds) the SIC before carrying out the projected transaction.

Additionally, whenever a company switches from one type of control to another one (for example, from negative to positive control), a new procedure before the SIC may have to be addressed if the requirements for doing so (subjective and/or objective requirements) are met by the transaction.

11) How is “control” defined?

There are two different standards of control that need to be addressed: corporate control and control of the business or undertaking.

The first kind of control, the corporate control refers to the presumptions of control of a corporation contained in article 261 of the Colombian Commerce Code, which include: (i) the acquisition, directly or through other subsidiaries, of more than 50% of the capital stock of another company, (ii) the acquisition of enough voting stock to appoint the majority of its directors, (iii) the agreement or alliance of enough minority shareholders that, together have the possibility to veto decisions of the controlled company, thus influencing its competitive performance.

On the other hand, the control of a business or undertaking is defined in article 45 of Decree 2153/1992 (the Competition Law), according to which control is defined as the possibility of influencing, directly or indirectly:  

• The business policy of an undertaking, the initiation or winding up of the activities of the company.
• The scope of the company.
• The use or disposal of the essential assets needed for the activities of the company, especially when these decisions are related to the way in which the controlled agent competes in the market.

The competition authority has assumed that when there is corporate control there is also a control over the business.

12) Acquisition of a minority interest

Minority shareholders may exercise material influence in the company’s competitive decisions with the consequence that merger filing, and approval is required. This situation can occur in two ways. First, minority shareholders can gather by means of agreement and/or transaction and constitute a block that would be considered as an exercise of “joint control”. Second, minority shareholders, by themselves, may be able to exercise “negative control” by vetoing decisions that impact the competitive performance of a company.

Regarding the first situation, “joint control” will occur in case of agreements or transactions that result in two or more individuals or companies (i.e., minority shareholders) that have a direct or indirect (through subsidiaries) material influence over the competitive performance of another company constituting joint control.

The following are some examples of joint control:

• If equal political rights exist between the controlling entities.
• When a majority shareholder has agreed to act together with a minority shareholder granting the former majority voting.
• When a group of minority shareholders unite to (i) consolidate a majority, or (ii) the possibility to veto decisions.

Moreover, regarding the second situation, minority shareholders can also exercise “negative control” over the competitive performance of a company. In order to understand this concept, it is key to explain the concept of “exclusive control”, which contrary to joint control, involves a sole individual or company that has the capacity to materially influence the competitive performance of another company, directly or indirectly. Two kind of exclusive control may be found:

1. Positive exclusive control: The controlling entity has the power to make and enforce competitive decisions.
2. Negative exclusive control: The controlling entity has the possibility to veto decisions of the controlled company, thus influencing its competitive performance.

Thus, negative exclusive control in the sense that the controlling entity has the possibility to veto decisions of the controlled company, is sufficient to trigger the requirement to file the transaction.

13) Joint ventures/joint control – which transactions constitute mergers?

Below is a non-exhaustive list of transactions regarding businesses subject to joint control that may be subject to merger control if the joint venture is "full function":

1. Establishment of a joint venture.
2. Change from joint to sole control.
3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party.
4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a permanent basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

Article 9 of Law 1340, 2009 sets the requirements that transactions consisting of acquisitions, mergers, consolidations or integrations must fulfill in order to be reviewed by the SIC:

A) Subjective threshold/requirement: The parties are dedicated to the same activity or belong to the same vertical value chain.

B) Objective requirements (thresholds or de minimis rule):

1. Economic Threshold: The parties, together or separately, had operational income or possessed assets in Colombia, in the fiscal year prior to the transaction, in an amount equivalent to 60,000 Colombian monthly minimum wages (for 2021, the monthly minimum wage in Colombia amounts to COP $ 908,526), around COP $ 60,898,800,000.
2. Market Participation Threshold: The parties have, individually or together, a participation in any of the relevant markets affected by the transaction, of 20% or more.

The market participation threshold only decides the kind of merger notification that is required. Thus, the following scenarios may arise from said requirements:

1. If the parties meet the subjective and both objective requirements (economic threshold and market participation threshold), a long form Pre-evaluation request (waiting period) must be filed to the SIC. (See topic 43)
2. If the parties meet the subjective criteria and the economic threshold, but together or separately, do not have a participation in the affected relevant market(s) of 20%, a short form Notification (no waiting period) procedure must be followed before SIC. (See topic 43)
3. Mergers that do not meet the Subjective Threshold do not have to report the merger before the SIC. In Colombia there is no merger control of conglomerates.
4. Mergers that do not meet the Economic Threshold are considered as generally authorized and the parties only need to leave a note in the minutes of their board of directors stating that the transaction falls within the General Authorization Presumption. This same effect occurs when the transaction is carried out between parent-subsidiary companies or companies that belong to the same corporate group (there is no change in control).

In the first two scenarios, the operation must not enter into effect in Colombia, before the procedure with the SIC has been cleared. This means that the agreements and contracts may be executed, but they must declare that their effects are pending the ending of the procedure before the SIC. In such scenario, both parties are responsible for presenting the filing and assembling all necessary documentation.

b) Market share thresholds

The market participation threshold mentioned above determine the type of notification that shall be filed to the SIC (provided that the subjective requirement and the economic threshold are both met), and not whether or not merger control regulation applies, since even if the parties involved do not meet this threshold, a short form Notification (no waiting period) procedure must be initiated.

c) Value of transaction thresholds

N/A

d) Assets requirements

See the economic threshold under the turnover threshold above.

For the calculation of this assets’ requirement, the authority will consider the operational assets of the companies that directly participate in the transaction and those related to them by a control relationship, as long as are dedicated to the same activity or belong to the same vertical value chain.

When a company involved in the transaction participates in the Colombian market without a local business entity (Colombian Subsidiary), the requirement will be measured taking into account the Company’s global assets.

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

Calculations are based on national revenues if the companies have a local business entity. However, in case any or both companies, do not have a local entity, the SIC will take into account the global revenues for analysing the requirements for the turnover (economic) threshold.

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

All transactions that meet the requirements must be reported separately.

19) Temporary change of control

A merger filing is only required if there is a change of control on a permanent basis.

20) Special industries, owners or types of transactions

As mentioned in topic 6, transactions involving exclusively financial businesses under the supervision of the Colombian Superintendence of Finance are subject to merger control by the Superintendence of Finance, whereas the transactions among aeronautic operators are subject to merger control by the Colombian Civil Aviation Authority.

21) Transactions involving only foreign businesses (foreign-to-foreign)

Merger control regulations apply to all transactions with effects in Colombia. The SIC applies the “effects theory”, according to which, whenever a transaction produce its effects in the Colombian market, the parties are subject to merger control regulations in Colombia.

22) No overlap of activities of the parties

N/A

23) Other exemptions from notification duty even if thresholds ARE met?

N/A

24) May a merging party file voluntarily even if the thresholds are not exceeded?

This is not necessary. The consequence will be that the SIC will decide not to pursue with the analysis.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No. The Competition authority will not prompt the companies to file or investigate transactions that do not require merger control.

26) Referral within the jurisdiction

If the SIC considers that the competent authority is the Colombian Superintendence of Finance or the Civil Aeronautic Authority it will not continue with the analyisis. It will be the responsibility of the parties to preceed with the filing before the competent authority.

When the SIC is analyzing a transaction under applicable merger control regulations, it is legally empowered requests information from other authorities within the jurisdiction. This, pursuant to article 209 of the Colombian Political Constitution, which enshrines the principle of collaboration between State entities.

27) Referral from another jurisdiction

There is no system of referrals of merger cases to or from other jurisdictions.

The SIC cooperates within the International Competition Network (hereinafter, ICN), where it can dialogue or exchange non-confidential information among its peer authorities. The ICN is one of the main international cooperation forums. It is widely known that the SIC is very active in using these type of cooperation channels in order to exchange non confidential information with authorities outside its jurisdiction.

28) Referral to another jurisdiction

See topic 27.

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

The merger filing must be ex ante without having a particular deadline. 

31) Pre-notification consultations

The merger team at the SIC accepts pre-notification meetings to discuss aspects of the merger transaction.

It is normal and recommended for the parties to request a pre-notification consultation. The parties can request a preliminary meeting (which will have to take place within 5 working days from the date of the meeting’s request) with the authority in order to review the conditions of the transaction and the required documentation, with the objective of clearing doubts and facilitating the formal presentation of the filing before the authority.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules for timing on public takeovers. Clearance from the SIC must be obtained before closing the transaction.

33) Forms available for completing a notification

The filing may be presented in digital form using the questionnaire included in Resolution 2751, 2021.

34) Languages that may be applied in notifications and communication

The filing and its annexes must be presented in Spanish.

35) Documents that must be supplied with notification

All the documents required for the notifications are listed by Annex 9.1. of the SIC’s Circular Letter. Documents shall include the following content:

Information regarding the transaction:

• Structure and parties involved
• Schedule for the transaction
• List of all the Colombian regulations that may impact the transaction
• List of all the competition authorities (if any) where the parties have made filings regarding the same transaction

Information about the parties involved in the proposed transaction:

• Description of economic activities
• Name and Tax ID
• Certificate of existence and legal representation issued by the Chamber of Commerce and the Power of Attorney
• Audited or certified balance sheet and income statement of the previous fiscal year, with annexes and notes
• Annual Report of the previous fiscal year (if the company was established more than one year ago)
• List of partners or shareholders for each participating entity.
• List of group companies
• List of controlling companies
• List of permanent investments

Information about the product market:

• Description
• Available presentation or service modalities
• Brands
• Main uses and applications
• Target consumers, describing their characteristics
• Market research studies if available. For the studies parties must also provide technical market data
• List of 10 top clients in terms on volume bought providing contact details as well as the acquired volume for the previous fiscal year
• List of substitute products.
• Detailed description of the manufacturing and/or service process
• List of monthly sales (in terms of Colombian pesos and in terms of volume, indicating the measurement unit) in the country during the last 3 fiscal years prior to the filing date

Information about the geographic market:

• Area of influence
• location of production plants and storage facilities in the national territory
• For services list of the offices throughout the national territory and their coverage in the territory.
• Freight cost percentage of the ex works final cost for the affected products.
• Expansion projects on new factories, warehouses and/or offices for the next 3 years.

Information about competitors:

For each of the competitor companies of affected products, indicate:

• Name and contact information.
• List of products offered and the brands that identify them.
• Estimated market share (state the methodology and sources used to obtain the results)
• Tariff subheading of each product

Information about distributors and retailers:

• Distribution and retail channels for each affected product. Indicate commercial conditions, price policies and minimum requirements for distribution and retail.
• List of distributors and retailers.
• For each distributor and retailer: (i) Company name and contact data and (ii) geographic area served.

It is important to note that the SIC can abstain from considering the transaction unless the parties provide the complete information requested in the regulation.

36) Filing fees

For notifications (short filing), the filing fee is COP 2,620,000.

For Phase I (full filing), the filing fee is COP 14,200,000.

If the SIC deems that a Phase II investigation is required, the filing fee is as set out in the table below:

37) Is implementation of the merger before approval prohibited?

Yes. Mergers that meet the thresholds must be notified and get clearance before the transaction occurs. In fact, the SIC has the power to investigate and sanction mergers that, needing it, were closed and produced effects in the market without clearance by the SIC.

38) May the parties get permission to implement before approval?

No. (See topic 41 regarding “carve out” and hold separate options).

39) Due diligence and other preparatory steps

The merger and competition regulations do not contain specific provisions for due diligence. However, the parties may enforce a clean team methodology in order to perform a due diligence.

40) Veto rights before closing and "Ordinary course of business" clauses

Veto rights before closing may constitute negative control and thus result in a gun jumping violation. Companies should be very cautious when drafting and enforcing these provisions.

41) Implementation outside the jurisdiction before approval – "Carve out"

The SIC may, before it issues its decision, accept a mechanism that allows the parties to close the transaction in other jurisdictions in which the transaction has been cleared, while the businesses are maintained separate in Colombia, until the SIC clears the transaction. Any such hold-separate mechanisms must be previously accepted by the SIC.

42) Consequences of implementing without approval/permission

Gun jumping violations are subject to fines of up to 100,000 minimum monthly wages, about COP 101,498,000,000 for the companies and 2,000 minimum monthly wages, about COP 2,029,960,000 for the natural persons involved as facilitators. The SIC must decide to sanction the undertakings or natural persons accused, within 5 years from the moment when the transaction took place.

Furthermore, the transaction may be declared null and void by a judge, which would affect every contract signed that bears any relation with the outcome of the merger. This particular consequence is decided by a civil judge and not by the SIC.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

The relevant market is determined considering the geographic market and the product market.

Regarding the geographic market, the Competition Authority tends to define it as the minimum necessary area in which the two undertakings, acting together, will find profitable to increase their prices, while the relevant products in other areas remain the same.

As to the product market, the SIC analyses, mainly, the economic sector in which the merger will take place and the characteristics of the participating undertakings, as well as the characteristics, price and end-uses of the products involved in the transaction. The product market definition is based on the hypothetic monopolist test (SSNIP test) which determines the elasticity of residual demand. Other relevant factors are (i) indirect competition; (ii) the existence of two-sided markets; and (iii) asymmetric conditions.

Secondly, an evaluation of the competitors’ characteristics is performed. Once the market shares are determined, the SIC applies concentration indexes like HHI and CR4 in order to evaluate the effects of the merger transaction.

Additional aspects that are taken into consideration are (i) the dynamism of market shares; (ii) the degree of differentiation and substitutability of the products; (iii) the existence of barriers to entry and (iv) the market power of buyers. This, in order to determine the contestability of the market, the possible new competitors and their eventual market power.

The Competition Authority may only object a transaction if it creates an undue restriction to competition. According to Article 5 of Decree 1302, 1964, the following cases fall within the scope of an undue restriction to competition:

1. When the transaction is preceded by anticompetitive practices between the merging parties.
2. When the transaction will give the merged entity the power to impose “unfair prices”.

The parties are able to propose conditions to the merger transaction in order to countervail its possible negative effects (see topic 47).

Moreover, if the parties consider that the SIC may object the transaction, an efficiency exemption may be invoked. Its purpose is to demonstrate that the possible anticompetitive outcome is surpassed by the efficiencies created by the transaction, which will be shared with consumers.

In at least two cases, the SIC has accepted the “failing firm” defence to allow mergers whose purpose is to save companies that, otherwise, would go bankrupt and disappear.

45) May any non-competition issues be considered?

No, the SIC will only look at the competition issues. It is noteworthy to state that regular market concentrations in Colombia are higher than in many other jurisdictions.

46) Special tests or criteria applicable for joint ventures

No.

47) Decisions and remedies/commitments available

There are two types of remedies: behavioral and structural. Behavioral remedies imply the assumption of commitments and obligations regarding the future performance of the merged economic agent in the market. Structural remedies, on the other hand, entail the adoption of measures within the architecture of the undertakings to diminish risks. The SIC tends to prefer structural remedies.

Remedies have ranged from elimination of exclusivity for distributors to the obligation of producing for a competitor at variable cost, allowing a competitor to use a percentage of installed capacity, and even the obligation to divest part of the business including trademarks.

The SIC can take various measures to assure compliance with said remedies. First, it forces the parties to accomplish their commitments within a certain period or time or before a set date. Additionally, the Authority has the power to request information from the parties. Moreover, the SIC frequently requests that an external auditor is appointed with the purpose of checking the degree of the parties’ compliance with the conditions.

Finally, to have a complete guarantee, the parties are requested to put in place an insurance bond. If the parties do not follow their commitments and breach the remedies, the SIC will present a claim to the insurance company and it can always start an investigation procedure and impose fines for the non-compliance.

SIC Resolution 2751, 2021, provides a special procedure for requesting the modification or termination of the remedies.

48) How and when will details about the merger be published?

In the case of a long form Pre-evaluation request with waiting period, the SIC will publish on its website, the beginning of a merger study. The press release will contain very general information, and the parties must file a non-confidential version of their filing for this purpose.

If the SIC deems that the merger filing has a deep impact in the market, it may order the parties to publish an ad in a national newspaper.

Also, if the parties can argue public order problems if the merger procedure is publicly known, the SIC may keep the transaction confidential.

49) Access to the file for the merging parties and third parties

The merging parties:

Parties may request the SIC to maintain the confidentiality of information and documents presented with the filing. This request must be explicit and motivated, and the parties must present a non-confidential summary of the confidential information that will be accessible for third parties.

The SIC may object the confidential character of any information or document presented by the parties because it does not meet the criteria to be considered as confidential pursuant to the Constitution and the law. The SIC will motivate its decision.

In that sense, only the merging parties and the SIC will have access to confidential information.

Third parties:

Third parties may access non-confidential versions or summaries of documents in the file.

The SIC will not share with foreign competition authorities the confidential information filed in a merger control procedure, unless the owner of the confidential information expressly grants its authorization to share it.

50) Who can appeal and what may be appealed?

Decisions issued by the SIC are not subject to appeal, but only to a reconsideration plea before the SIC. The reconsideration plea has to be filed within 10 working days after notification of the decision, and the Superintendent has to decide it within the following 2 months, but this period can be extended because of the need to gather additional evidence.

The final decision issued by the SIC, can be challenged by means of a judicial action for annulment before the Administrative Tribunal (collective judicial body within the Administrative Jurisdiction). This action must be filed within the next 4 months following the decision to object or prohibit the merger. However, this alternative is usually not very attractive to the parties, because of the length of the procedure.