Yes, Law 1340 of 2009 sets a mandatory merger control procedure.

• Superintendence of Industry and Commerce ("SIC"); 
• Superintendence of Finance: for transactions among companies under the surveillance by this authority (Banking and Insurance); and
• National Civil Aeronautic Authority ("AEROCIVIL"): only for transactions among airlines.

No. 

Yes, requirements are found in SIC Resolution 2751 of 2021.

Any transaction, regardless of its legal nature, is subject to merger control if the following criteria are met:

1. The transaction is an "economic integration"; this is, the transaction entails a change of control over the target, in the sense that a previously independent entity comes under the buyer's control, or there is a change in the structure of control over said entity (e.g. changes from joint to sole control or from sole to joint control, including acquiring minority or negative control) "Control" is defined broadly for antitrust purposes in Decree 2153 of 1992 as the ability to directly or indirectly influence a company's corporate policy, business strategy, or the disposal of key assets.

2. The parties must be active locally and they must participate either (i) in the same economic activity, or (ii) in different levels of one same value chain: A company will be deemed to be active locally if it is incorporated in Colombia, if it has any local subsidiaries or branches, or if its products are sold in Colombia by a distributor or reseller.

3. The parties meet the economic thresholds: The parties must have had, jointly or individually, operating income or total assets, for the fiscal year immediately preceding the transaction, in excess of the amount set yearly by the SIC (for 2022, 1,641,044.99 tax value units (UVT)- i.e. COP $69,000,000,000, USD $16.2 million, EUR $15.58 million at average exchange rates for 2022). The relevant income/assets are (i) in case the parties are incorporated in Colombia or have a local entity, those of all group entities in Colombia active in the relevant market/value chain; or (ii) in case the parties have no local entities, those of all group entities on a worldwide basis active in the relevant market/value chain.

If the first three criteria are met, a filing is mandatory. However, the type of filing depends on the parties' market shares: (i) if their combined market shares in all relevant markets are below 20%, a short-form notification is available, or (ii) if any combined market share exceeds 20%, a full filing is required.

Possibly. Since the definition of "control" in Colombian antitrust laws is broad (the ability to directly or indirectly influence a company's corporate policy, business strategy, or the disposal of key assets) any minority investment that grants such capacity by granting minority or negative control (e.g. by granting veto rights over decisions that affect the competitive behavior of the company), will be caught.

Yes; foreign-to-foreign transactions that fulfill the criteria set forth in our response to "What kinds of transactions are "caught" by the national rules?" are caught under merger control in Colombia. The local effects test exists by the application of prong (ii) of the merger control test (i.e., both parties must be directly or indirectly present in Colombia and their activities must overlap in Colombia either horizontally or vertically).

The relevant thresholds for notification are those set out in "What kinds of transactions are "caught" by the national rules?"

Filing is mandatory.

The filing must be made at any time prior to closing.

In cases of full filings (i.e. when the parties' combined market share exceeds 20 percent), the parties cannot close until the SIC grants clearance.

In cases of short-form notifications (i.e. when the parties' combined market share is below 20 percent), the transaction is deemed authorized on the date of filing. However, the SIC has a 10-working day term to acknowledge that the notification was duly submitted.

As per SIC's Resolution 2751 of 2021, initial filings must be accompanied by the information included in Annex 9.1 of the General Regulations of the SIC, which covers the structure of the transaction, information on the parties' business and structure, product market (i.e. description, trademarks, sales), geographic market, competitors and market shares, and distributors.

Annex 9.2 includes information for Phase II of the SIC's review. It can either be filed along with the initial filing or at the moment it is requested by the SIC. This information covers market structure, barriers to entry, capacity and production, and raw materials and inputs.

Short-form notifications require substantially less information (i.e. on the structure of the transaction, the parties' activities, a description of the relevant market, and the parties' and their competitors' market shares).

Yes, for 2023 the filing fees are:

• Short-form notifications (for 2023 COP $3,129,500 / USD $735 / EUR 700)
• Long-form filings:
  • Phase I (for 2023 COP $16.962.750 / USD $3,940 / EUR $3,796)
  • Phase II (for 2023 COP $31,249,550-44,651,900 / USD $7,340-$10,492 / EUR 6,994-9,993)

Phase I: This stage begins with the filing. The SIC has 3 days to determine if the filing is complete. If so, it will proceed to publish a notice on its website informing third parties and granting them a 10-day term to provide any information they deem relevant for the review.

The SIC has up to 30 business days to reach a decision: grant clearance or move to Phase II.

Phase II: This stage begins on the date that the parties file the information requested by the SIC. The SIC has 3 months to reach a final decision. However, the 3-month term restarts in the event that the SIC issues an RFI to the parties. Only the first RFI restarts the term, any subsequent RFIs have no effect on timing.

In cases of short-form notifications, the SIC has a 10-day term to acknowledge that the notification was duly submitted.

The transaction must not create an undue restriction to competition. The SIC's analysis is based on market share and concentration analysis, mainly HHI, and barriers to entry to determine the potential for unilateral or non-coordinated effects that may cause an undue restriction.

Approval, approval subject to remedies, or prohibition.

Yes. When moving to Phase II, the SIC allows the parties to offer any remedies. Remedies are generally discussed and negotiated with the authority.

Failure to file, or closing before clearance is secured, is considered an antitrust violation and as per Law 1340 of 2009 the SIC will impose the following fines:

For companies, fines are capped as follows:

• Up to 100,000 monthly minimum wages (COP$116 Billion, c. USD $27 million)
• Up to 150% of the profit resulting from the conduct

For individuals, fines are capped at 2,000 monthly minimum wages (COP$2,320 million, c. USD $545,000)

Although these are the theoretical caps, fines for failing to file have been substantially lower, typically staying below USD $1 Million.

Additionally, the SIC may order the reversal of the transaction, including the divestment of any acquired assets, if the transaction would have been blocked, had it been duly notified.

Please reference the previous section on sanctions. 

No; non-notifiable mergers are not subject to review.

The process begins through a preliminary inquiry. The SIC collects all information on the transaction to determine if there is merit to open a formal investigation. The SIC may conduct dawn raids, call employees or officers to be interviewed, and request any corporate documents via RFIs. The preliminary inquiry is a confidential stage.

If the evidence collected by the SIC points towards the existence of an unnotified merger, it will open a formal investigation. The investigation is conducted by the Deputy Superintendent for Competition Protection. The decision to open a formal investigation is communicated to the parties, who have the opportunity to contradict and submit/request any evidence to support their claims. This includes documents, testimonies, expert reports, etc.

Once all evidence has been duly collected, the parties are summoned to a hearing to present their final allegations. Afterward, the Deputy Superintendent prepares a report where it presents the findings of the investigation to the Superintendent of Industry and Commerce along with a recommendation to either impose a fine or terminate the procedure.

The parties receive a copy of the report and may submit their comments, observations and arguments.

The Superintendent, on the basis of the report and of the parties' response, decides whether to adopt the recommendation or not and may either sanction the parties or close the investigation.

The SIC has become more stringent when analyzing the prospective effects on competition of notified transactions. This means that it has lately approved more transactions subject to structural and behavioral remedies, and it has even been more active objecting or prohibiting transactions.

In January 2022, a new sanctions regime was established for the Superintendency of Industry and Commerce.

However, Ruling C-080 of 2023 declared the Articles of Law 2159/2022 that modified the fines as unconstitutional, and therefore the original fines originally included in Law 1340/2009 still apply.