These are the new fines for the anticompetitive practices of organizations

Thursday, January 27, 2022

Companies will face sanctions on their operational income and assets, which are imposed by the superindustry

On January 18, 2022, the Presidency of the Republic sanctioned Law 2195, or transparency, which seeks to strengthen the fight against corruption and “reinforce the articulation and coordination of the State entities and recover the damages causedfor these acts in order to ensure promote the culture of legality and integrity and recover citizen trust and respect for the public ”.

The new regulations, however, has raised controversy in the legal sector, since several lawyers question the modifications included in the sanctioning regime of competence.Punctually, it has been criticized that fines were introduced through "disproportionate" anti -competitive behaviors, and also the methodology to assess them is not clear.

Dionisio de la Cruz Camargo, partner of Archila Lawyers, explained that, before the issuance of the law, there was a sanction scheme in which the maximum amount determined for anti -competitive practices was 100.000 minimum wages, in addition to 150% of the profits that were achieved by virtue of the violation of the law.However, he said, with the new sanctions they are directly punishing companies: "It is almost a confiscation," he said.

The sanctions

The rule stipulates that the Superintendence of Industry and Commerce may impose pecuniary sanctions in its favor on market agents, legal or natural, for violating the provisions on the protection of competition.

In this way, the superindustry will apply the greatest sanction, among the four criteria that will be explained below.One of the possibilities is that the fine is up to 20% of the operational income of the company of the fiscal year immediately prior to when the sanction was committed.

"We are talking about that there are companies that have many businesses.An organization that has, for example, sale of shirts and shoes, and committed an act of competition for the topic of footwear, will also see its shirt business affected.This is a fine of the operational income received in all businesses, ”said De la Cruz.

The second possibility of sanction that determines the standard is to set as a fine 20% of the heritage of the offender that has been achieved a year immediately prior to the anti -competitive behavior.When talking about the business assets, all the goods of the organization are taken into account: buildings, investments, machinery, equipment etc..

“It seeks to take away what the company has gained by its economic activity that, for the most part, has been of lawful origin.Up to 20% of the assets can be a lot of money, if you think about large companies, such as Nutresa, Unilever or Bavaria, ”said the lawyer.

Additionally, there is another sanction related to state contracts, since the Superintendence of Industry and Commerce can charge as a fine of up to 30% of the value of said contracts, when they were subject to anti -competitive behavior and were in the middle of a tender.

"It is also important to note that, if the perceived profits derived from the conduct of the sanction can be quantified, up to 300% of that amount will be charged," said De la Cruz on the fourth modality of sanction.However, he explained that it is difficult to establish the profits perceived by competitive behavior in particular, so, most likely, the authority establishes fines on operational income or equity, because they are declared.

Also, we must remember that the norm establishes aggravating circumstances and, for each of them, the total fine will increase by 10%.In other words, if an anticompetitive infraction is committed, and it is understood that 20% of the company's income is equivalent to $ 1.000 million, the amount will rise as the aggravating ones are determined, at a rate of $ 100 million for each additional conduct.

On these, Pablo Márquez, a partner of Ecija Colombia, said that the stipulated aggravating.“The most usual is the recurrence of the offender in relation to the investigated behavior.In that scenario, the superindustry could use that criterion to aggravate the sanction, ”he said.

Having explained Norma, it is worth mentioning that one of the criticisms that have arisen among the experts is that the law does not clarify how fines on equity or income will be established."The law establishes criteria, but does not say how to apply them," said De la Cruz, questioning the lack of methodology to apply the sanctions.

Additionally, the lack of promotion of good competitive practices is also questioned, delegating all the weight in sanctions."You have to think about prevention policies and not punish companies with fines with such high amounts," concluded De la Cruz.