Immunity & Sanctions

Last verified on Sunday 24th May 2020

Immunity & Sanctions: Colombia

Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Esguerra Asesores Jurídicos

Immunity or a 100 per cent reduction in sanctions

1. What benefits are available to the first applicant to qualify?

Colombia

The benefit for the first applicant to qualify is full exoneration of the fines that the Colombian competition authority, the Superintendency of Industry and Commerce (SIC) can impose pursuant to Law 1340, 2009 (Law 1340). Full exoneration refers only to the administrative sanctions. It does not protect the leniency applicant from criminal or private judicial actions aiming to recover the damages caused by the anticompetitive conduct, including class actions.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

2. Do the protections extend to current and former officers, directors and employees?

Colombia

Yes. According to Decree 1074 of 2015, known as the Colombian Unified Decree for Commerce, Industry and Tourism (UDCIT), which was reformed in the Leniency Chapter (Chapter 29) by Decree 1523 of 2015, benefits granted to the leniency applicant automatically extend to any facilitator, unless: 

  • he or she denies its participation in the cartel; 
  • he or she does not provide the assistance requested by the authority to produce evidence (eg, own depositions, hearings, etc); 
  • he or she has destroyed, altered or otherwise modified evidence relevant to prove the anticompetitive practices; or 
  • the leniency applicant (company) loses the benefits.  

The UDCIT defines facilitator as “any person who cooperates with, authorises or tolerates antitrust practices' as established in article 26 of Law 1340”.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

3. Is immunity available after an investigation begins?

Colombia

Yes. According to the UDCIT, the investigated parties may apply to the Leniency Programme up until the term to respond to the Opening Resolution has expired (ie, 20 business days after this Resolution has been notified to the investigated party). It should be noted that: 

  • eligibility for full or partial immunity will be assessed on a first come, first serve basis, subject to compliance with the requirements described in the following section; and 
  • the filing for leniency must contain solid factual and legal arguments that represent a significant contribution to the investigation. The Deputy Superintendent for Competition Protection, who is the officer that conducts the investigation, will assess the merits of the filing presented by the investigated party. The more advanced the proceedings are, the more difficult to successfully clear the evaluation on the merits made by the Deputy Superintendent.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

4. What are the eligibility requirements before an investigation begins?

Colombia

Pursuant to the UDCIT, when the applicant makes its first approach to the SIC to secure a marker, it must:

  • acknowledge its participation in the cartel – without being its promoter or instigator (ie, ringleader), and
  • provide information about the existence, modus operandi, affected market and members of the cartel.

If this is complied with, the SIC will accept the application and sign a Leniency Agreement with the applicant. In this document, the applicant is requited to:

  • accept its participation in the anticompetitive conduct. However, if it’s proved that the applicant was the promoter or instigator of the cartel, it cannot be eligible to apply;
  • provide complete and useful information or evidence concerning: 
    • the goals of the cartel;
    • the circumstances of place, time and manner surrounding the conduct;
    • the parties to the cartel and their degree of participation (eg, as principals, accomplices or accessories before and after the fact); and 
    • the affected markets (ie, relevant product and geographic market);
    • the period in which the cartel was in effect.
  • cooperate with the SIC during the administrative investigation. This encompasses providing useful information, timely response to information requests from the SIC, and refraining from obstructing the investigation by hiding, destroying or manipulating evidence related to the case; and
  • cease its participation in the cartel or conspiracy.

Additionally, to obtain full exoneration, the applicant must be the first to file for leniency (the proceeding wants to incentivise a “race to the Authority”). 

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

5. What are the eligibility requirements after an investigation begins?

Colombia

Formally, the eligibility requirements are the same. Nevertheless, as previously mentioned, a leniency application can be presented once the formal investigation has been launched and up until the deadline to respond to the Opening Resolution has expired (ie, 20 business days after the investigated party has been notified to the parties). However, it must be noticed that the SIC will evaluate the usefulness of the information contained in the applicant's filing. Thus, applying before the formal investigation has been launched creates a better opportunity to get full immunity, since the standard of usefulness of the information would be lower. As the investigation advances and evidence is gathered and the likelihood that the information will be considered valuable by the SIC decreases. When it comes to leniency applications, time is of the essence.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

6. Will the applicant have to admit to a violation of law?

Colombia

Yes, both for obtaining total immunity or reduction of the fines.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

7. Is immunity available to an applicant that admits exchanging commercially sensitive information with a competitor but does not admit entering into an agreement to fix prices or allocate markets?

Colombia

In Colombia “exchanging commercially sensitive information” is not conduct expressly established in the regulation. It is not expressly prohibited. However, information exchanges are usually seen as indicia to prove anticompetitive agreements such as price-fixing, market allocation, etc, or even the breach of the general clause. In that sense, if the applicant does not accept entering into an agreement, the scope of protection will not cover such cases.

Accordingly, if the applicant does not admit entering into any agreement, and the SIC later finds out agreements that were not accepted by the applicant, the SIC could impose the full fine to all the companies.

Accordingly, if the applicant does not admit entering into any agreement, and the SIC later finds out agreements that were not accepted by the applicant, the SIC could impose the full fine to all the companies.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

8. Is immunity available to an applicant that admits entering into a vertical price-fixing agreement if that agreement does not also include horizontal collusion?

Colombia

In Colombia price fixing is stated in article 47(1) of Decree 2153/92. The rule does not distinguish between vertical and horizontal price fixing. Also, the lenience law does not limit the possibility of entering into leniency agreements to report horizontal cartels. In that sense, it is perfectly valid a case whereby the applicant reports a vertical anticompetitive agreement.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

9. Is immunity available to an applicant that admits entering into an agreement not to solicit or hire another company's employees ("no-poach" agreements)?

Colombia

Yes. In Colombia there is not a specific conduct that prohibits a no-poach agreement. However, such conduct can be investigated under the general prohibition rule (which allows for both unilateral conduct and anticompetitive agreements). In that sense, an applicant could report a no poaching agreement and be granted immunity.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

10. Are ringleaders or initiators of the conduct eligible?

Colombia

Pursuant to the UDCIT, the leniency benefits, whether they consist in total immunity or in reduction of the fines the SIC can impose, are not available for the instigator or the promoter of the conduct. The instigator or promoter of the conduct is the person that forces or induces other person or persons to participate in anticompetitive agreement as long as such coercion remains during the execution of the cartel and is deemed relevant to determine the conduct of the other companies involved in the scheme. 

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

11. When must the applicant terminate its involvement in the conduct?

Colombia

There is no precise time for this in the regulation. However, under the UDCIT, in order to be eligible to receive the leniency benefits, the applicant must put an end to its participation in the unlawful conduct. This means that the company must take corrective actions before or immediately after it files its application to be able to sign a leniency agreement with the SIC and receive the benefits.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

12. What constitutes termination of the conduct?

Colombia

The Law does not define what constitutes "termination of the conduct". Also, the Law does not imply that the applicant must cause the termination of the cartel; however, the applicant must guarantee that his own participation has stopped.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

13. Will the applicant be required to make restitution to victims?

Colombia

The SIC is the national competition authority appointed by Law 1340 as the guardian of the constitutional principle of free competition. In this capacity, the SIC conducts administrative investigations aimed to the repression of anticompetitive conducts, in protection of the public interest in general. The SIC has no judicial capacity in this regard, and will not award damages to individual persons or companies that may be affected by the anticompetitive conducts. Since the outcome of the administrative investigation does not refer by nature to indemnification of damages, pursuant to this procedure the leniency applicant is not required to make any restitution to the potential victims of the anticompetitive conduct. Individual persons affected by the anticompetitive conducts may seek indemnification of their damages through the civil jurisdiction, regardless of the fact that there has been a successful leniency application that grants the applicant total immunity from the fines that the SIC can impose. For that purpose individual persons can use private or class action, and in some cases even unfair trade litigation.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

14. Can more than one applicant qualify for immunity?

Colombia

No. In accordance with the UDCIT, the SIC only grants total immunity to the first applicant conditional on compliance and fulfilment of the requirements described above. If the first applicant fails to fulfil those conditions, the next applicant can be granted the first position Nevertheless, other applicants continue to be eligible for a significant reduction of the fines.

It should be noted that in the case known as the “Notebook Cartel” two companies received full immunity due to the fact that the SIC considered that both of them were the “first applicant”. This, since the notebook business of one of the companies was later acquired by the other, and given the length of the cartel both companies were involved in it in different periods of time. As can be seen, at an early stage in the development of its Leniency Programme, Colombia has already applied the “Predecessor – Successor Doctrine”.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

15. Can an applicant qualify if one of its employees reports the conduct to the authority first?

Colombia

It is important to note that there is a distinction between the application presented by an employee acting on behalf of the company and an employee presenting his or her own personal leniency application. Hence, if the employee presents his or her own personal application first, he or she could be granted full immunity. However, the UDCIT expressly states that the benefit granted to the employee presenting his or her own personal application will not extend to the company.

Accordingly, if the company follows the application of its employee, it can obtain the second place in the leniency process and the reduction of the applicable fines. As can be seen, if a person applies for leniency as an individual, his position as leniency applicant (even if the applicant did not obtain the first place) will not be extended to the company.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

16. Does the afforded protection extend to any non-antitrust infringements?

Colombia

No. The immunity or reduction of fines awarded pursuant to the leniency programme only apply to antitrust infringements. The leniency application will not impede private or class actions aimed at the indemnification of damages. Also, it must be considered that bid rigging in public contracts is the only antitrust conduct in Colombia that has criminal implications. A successful leniency application will not bar criminal prosecution and will only obtain a reduction in the criminal sanctions for the applicant.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Immunity application and marker process

17. What confidentiality assurances are given to the first applicant to report?

Colombia

Confidentiality assurances vary depending on the stage of the proceedings and other factors. During the preliminary investigation, the applicant has complete confidentiality regarding his or her identity, the application and the information contained within. Once the formal investigation begins, the confidentiality of the identity of the applicant can be maintained if it is requested to avoid commercial retaliation (article 15 of Law 1340). In any event, the identity of the leniency applicant will be revealed at the time of the motivated report that the Superintendent Delegate for Competition Protection will present to the SIC evaluating the evidence and recommending sanctions or acquittal. Within the formal investigation all investigated parties have full access to the investigation file, which is different from the leniency file. Within the formal investigation, third parties are granted access to the investigation file with the exception of those documents that are labelled as confidential by the SIC.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

18. Does the authority publish guidance regarding the application of the programme?

Colombia

Yes. The programme is briefly mentioned in the SIC’s web page but please note that it is not up to date with the most recent information. In addition, the SIC periodically launches media campaigns announcing the risks of antitrust investigations for persons and companies and promoting the benefits of applying to the leniency programme. Finally, the SIC organises conferences and forums throughout the year, in which it interacts with the academic and business communities and usually includes topics related to the leniency programme.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

19. Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

Colombia

The Colombian leniency programme is, in general terms, similar to other programmes in the region. However, there are some differences with other jurisdictions. For instance, in Colombia, when the SIC opens an investigation, it may reveal the identity of the leniency applicant to the investigated parties and even to the public. In other jurisdictions, however, confidentiality must be maintained during the proceedings. In that sense, leniency applicants may face difficulties in complying with the requirements in different jurisdictions.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

20. What is the initial process for making an application?

Colombia

There are different ways to contact the SIC to make an effective marker and apply for leniency. The applicant can contact the SIC in writing or by email. In the latter case, the moment of access to the programme will be the one stated in the minutes prepared by the SIC.

The applicant must express its intention obtain a marker and secure a position to apply for leniency, and the SIC will establish the period to comply with the initial conditions to secure the marker, if they are not complied with at that time.

Again, the SIC will create a minute stating the date and time of the contact with the prospective applicant in order to secure the precedence of his application in case that the conditions are met to grant a marker. In that case, the date and time of the initial contact will be the effective date and time of the marker.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

21. What information is required to secure a marker?

Colombia

As mentioned in question 4, pursuant to THE UDCIT, when the applicant makes its first approach to the SIC to secure a marker, it must:

  • acknowledge its participation in the cartel – without being its instigator; and
  • provide information about the existence, modus operandi, affected market and members of the cartel. 

Current regulations do not establish a clear threshold regarding the amount of information required to secure a marker.

In accordance with the UDCIT, during the five business days after reception of the application, a SIC official will evaluate the document and inform the applicant whether such application complies with the legal requirements stated in the Law.

If the officer determines that the application does not comply with the requirements, the application will be regarded as not filed. On the contrary, if the officer determines that the application complies with the requirements, he will proceed to issue a certification (ie, marker) informing the applicant about its position within the leniency programme.

If the SIC does not respond during the five-day term, it will be understood that the application complies with the legal requirements.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

22. How much time will an applicant have to perfect its marker?

Colombia

Regulations do not specify the time that the SIC should grant the applicant to secure its marker. That term is agreed in each case between the applicant and the SIC and should provide a reasonable time to acquire the required information. Most probably the SIC will consider that 30 days is in principle a reasonable initial time to perfect the marker.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

23. Can the deadline for perfecting the marker be extended?

Colombia

Yes. There is no statute or regulation concerning the deadline to perfect the marker. Accordingly, the SIC at its discretion can decide to grant an extension to the applicant. The SIC will be inclined to extend the time if the applicant can show progress in its internal investigation.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

24. What is required to perfect the marker?

Colombia

As mentioned in question 4, in the leniency agreement, the applicant is required to:

  • accept its participation in the anticompetitive practice. However, if it is proved that the applicant was the promoter or instigator (ie, ringleader) of the cartel, it cannot be eligible to apply;
  • provide complete and useful information or evidence concerning: 
    • the goals of the cartel;
    • the circumstances of place, time and manner surrounding the conduct;
    • the parties to the cartel and their degree of participation (eg, as principals, accomplices or accessories before and after the fact); and 
    • the affected markets (ie, relevant product and geographic market); and
    • the duration of the cartel.
  • cooperate with the SIC during the administrative investigation. This encompasses providing useful information, timely response to information requests from the SIC, and refraining from obstructing the investigation by hiding, destroying or manipulating evidence related to the case; and
  • cease its participation in the cartel or conspiracy.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

25. Can the scope of the marker be expanded if additional information is discovered by the applicant?

Colombia

Yes. Experience has shown that this is a very probable scenario. Usually companies coming forward have only discovered the tip of the iceberg. During the ensuing internal investigation they can be confronted with more evidence of the anticompetitive conduct contained in the reported market as well as in other markets not included in the initial filing.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Immunity cooperation obligations

26. Can an applicant lose its marker if a second applicant comes forward with better information?

Colombia

No. The applicant may only lose its marker if the information provided does not comply with the requirements stated in the UDCIT, if the applicant is in primary position aiming for full immunity. If a company or person applies first and complies with the aforementioned rule, it can be granted full immunity even if the second applicant brings better information. The aim of the law is to reward the first company that comes forward.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

27. What if the applicant’s investigation reveals that no violation exists?

Colombia

Pursuant to the UDCIT, the applicant can withdraw its application and even withdraw the evidence presented to the SIC – if the applicant does not withdraw the information in the next 10 business days after the withdrawal of the programme, it is understood that it authorises the SIC to use the information to perform the investigation. The fact that an initial application was presented will not be used as evidence of the violation of the law by the SIC. The fact that the applicant considers that there has been no antitrust violation does not bar the SIC from starting a formal investigation.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

28. What if the authority decides not to investigate?

Colombia

The SIC has the discretionary power to decide whether or not to investigate potential anti-competitive conducts. If, after the preliminary investigation, the SIC decides to abstain from opening a formal investigation, the SIC will inform the applicant of this decision. By definition there will be no fines in a case like this. The leniency application in such a case will be kept confidential by the SIC.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

29. What is the applicant required to produce?

Colombia

The applicant is required to cooperate fully with the SIC and provide any useful information it has access to. Specifically it is required to provide evidence regarding the following items: 

  • the agreement’s objectives; 
  • the agreement’s main activities (circumstances of place, time and manner); 
  • the identity of the parties involved in the conspiracy; 
  • the degree of participation of each of them; 
  • the affected products or services; 
  • the affected geographic area; and
  • the estimated time in which the agreement took place.

Additionally, the applicant is required to refrain from destroying, altering or concealing relevant information or evidence regarding the alleged anticompetitive agreement. Likewise, the applicant must also cease being part of the agreement.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

30. Will the applicant be required to make a written confession?

Colombia

One of the essential elements of a leniency application is the confession of wrongdoing on the part of the applicant. Pursuant to the UDCIT, an application to the leniency programme can be presented in written format at the SIC's offices or via email, at the choice of the applicant. 

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

31. Can third parties obtain access to the materials provided by the applicant?

Colombia

One of the essential elements of a leniency application is the confession of wrongdoing on the part of the applicant. Pursuant to UDCIT, an application to the leniency programme can be presented in written or verbal format at the choice of the applicant. 

Because the applicant is “blowing the whistle” and denouncing other participants, the evidence presented to demonstrate the involvement of third parties will be shown to them, so they can exert their right to defence and, if applicable and feasible, belie the declarations and documents presented by the applicant as evidence.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Granting immunity

32. Will the applicant lose its protection if one or more of its employees refuses to cooperate?

Colombia

Pursuant to the UDCIT, the company is forced to facilitate the SIC taking the testimony of its employees. If the company is willing to help the SIC to collect the testimonies, the fact that one or more employees refuse to cooperate with the SIC will not in itself damage the company’s application, provided that it has other means to demonstrate the conduct and comply with the requisites for a successful leniency application. As a matter of general principle, the company should make reasonable efforts to ensure that all the relevant employees cooperate with the SIC.

Although the UDCIT states that the leniency benefits awarded to the company are "automatically" extended to the natural persons involved, in question 2 there is a list conducts that may exclude the applicant from the leniency programme, among these, lack of cooperation with the SIC.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

33. Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

Colombia

See question 32. In general terms obstructive behaviour of employees will take them out of the umbrella protection of the company’s leniency application and will not damage the position of the company, unless the obstructive conduct affects the compliance of the company with the requirements for a successful leniency application, as set out in question 4. As a matter of general principle, the company should make reasonable efforts to ensure that all the relevant employees cooperate with the SIC and abstain from any kind of obstructive behaviour.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

34. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Colombia

Attorney–client privilege is a constitutional right. Thus, the candidate is not required to provide materials protected by that privilege. However, the applicant may waive this right if it considers it necessary to ensure success in obtaining leniency benefits. This decision may create a difficult precedent for a multinational company and should be taken only if strictly necessary.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Individual immunity or leniency

35. Does the existence of an effective compliance programme affect whether an applicant meets the eligibility requirements?

Colombia

No. The existence of an effective compliance programme will not have any effect in the formal procedure. However, having a compliance programme will ease the requirements and will allow the company to be better prepared to respond to the inquiries of the authority.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

36. Does the authority consider the existence of an effective compliance programme at the time it becomes aware of an infringement when determining the leniency benefits granted?

Colombia

No. The advantage of having an effective compliance programme consists on the fact that arguably it is more likely that the company with the programme is the first to discover the conduct and thus has more changes to become the first applicant. However, for the formal procedure, it is irrelevant if the applicant has an existing compliance programme.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

37. Will the applicant be required to implement or enhance a compliance programme to obtain leniency benefits?

Colombia

Not exactly. However, please note that termination of the conduct is one of the requirements of the leniency programme. In that sense, the Applicant must make sure that it has adopted proper measures to guarantee that the company will not incur in the reporting conducts in the future. Usually, remedial measures include termination of some employees, training on competition, inclusion of the free competition principle in the corporate governance of the company and usually and the adoption (or strengthening) of a compliance programme.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

38. How does the authority announce its promise not to charge or sanction?

Colombia

Pursuant to the UDCIT, once the "first-in" applicant has handed over its information and evidence, the SIC will evaluate it and if it complies with the requirements set out above, the delegated SIC officer will sign a leniency agreement with the applicant. The leniency agreement will contain the following: 

  • a description of the evidence and information provided by the applicant; 
  • the recognition that the applicant was first in time with its application, or the position that the applicant has in the leniency programme for that investigation, and the fact that the applicant complies with the requisites for a successful application as described before; and 
  • an explanation regarding the conditional nature of the immunity, which depends on the confirmation of the Superintendent of Industry and Commerce in the resolution that puts an end to the investigation.

The confirmation of immunity in the leniency agreement granted by the delegated SIC officer is conditional upon complete compliance with the requirements.This evaluation will be made in the final decisions (Resolution) by the head of the SIC when deciding the case. Before this confirmation is issued, there is no certainty of the application of the leniency benefits.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

39. Does the authority put its commitment in writing?

Colombia

Yes. As explained in question 35, the SIC signs a leniency agreement with the applicant in which the leniency benefits are exposed.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

40. Who is given access to the document?

Colombia

See questions 14 and 28. Normally, only the applicant and the SIC have access to the collaboration agreement, which remains in the leniency file and which is a separate file from the investigation dossier (even with a different internal number).

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

41. Does the authority publish a model letter for conferring immunity?

Colombia

So far the SIC has not published guidelines or models regarding leniency, but it is very possible that as the programme develops the SIC will produce such documents.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

42. Is there an individual immunity programme?

Colombia

Yes. See questions 2, 12 and 32. Individuals can apply for leniency, or as collaborating employees of a company that has applied for leniency. According to the UDCIT, when an individual is the first to participate on a leniency programme, the company does not benefit from his or her application. However, the leniency benefits awarded to a company will be "automatically" extended to the natural persons who collaborate with the SIC.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

43. What is the process for applying?

Colombia

The procedure for application to the leniency programme is exactly the same for natural persons and companies.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

44. What are the criteria for qualifying?

Colombia

Natural persons have the same qualifying criteria as companies for participation in the leniency programme and for qualifying or obtaining the leniency benefits.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Revocation of immunity

45. On what basis can corporate immunity be revoked?

Colombia

See question 38. Once the delegated SIC officer has evaluated the information and evidence filed by the applicant and once compliance with the requirements for obtaining the leniency benefits is established, a leniency agreement is signed. The confirmation of immunity granted in the leniency agreement by the Delegate is conditional upon the complete compliance with the requirements stated in the UDCIT. The final evaluation of this will be made by the head of the SIC when deciding the case. Before this confirmation is issued, there is no certainty of the application of the leniency benefits. It could be said then that there is no possibility of revocation of the leniency benefits, because in reality they are not firm until the Superintendent issues the final decision. It is possible that the SIC may decide not to confirm the leniency benefits for one or more of the following reasons:

  • the applicant fails to comply with the obligations accepted in the leniency agreement;
  • the Superintendent is in disagreement with the evaluation regarding the usefulness of the information and evidence made by the Delegate at the time of the signature of the leniency agreement;
  • it is demonstrated that the applicant was the instigator or promoter of the cartel;
  • the applicant fails to stop its participation in the anticompetitive conduct;
  • the applicant fails to cooperate with the SIC or to respond to its new requests for information; or
  • the applicant obstructs the investigation by hiding, destroying or manipulating the evidence.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

46. When can it be revoked?

Colombia

See questions 38 and 45. The company is only certain regarding the firmness of the leniency benefits when the SIC issues its final decision. Before that happens, it only has an expectation based on the evaluation contained in the leniency agreement, but not a granted right. There is no revocation of leniency benefits, because in reality they are not firm until the Superintendent issues the final decision.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

47. What notice is required to revoke?

Colombia

See questions 38, 45 and 46. As said before, there is no revocation of leniency benefits, because in reality they are not firm until the Superintendent issues the final decision. For that reason, there is no term or notice of such decision.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

48. Can the applicant file a judicial challenge to a decision to revoke?

Colombia

Yes. The final resolution by which the Superintendent decides the case is an administrative act against which the interested parties can file a reconsideration plea within 10 days of its notification. The Superintendent should decide the plea for reconsideration within two months. If the decision is unfavourable, within the following four months the interested parties can file a lawsuit before the administrative jurisdiction, aimed to the annulment of the decision and the indemnification of the damages caused.

In addition, the UDCIT states that when the motive for revoking was the applicant’s role as instigator of the cartel, said loss of benefits will be decided by the head of SIC, taking into account the due process and defence rights of the applicant. 

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Reduction in sanctions

49. Does the leniency programme allow for reductions in sanctions?

Colombia

Yes. Pursuant to the UDCIT, whenever an applicant seeking total immunity does not meet the requirements to obtain that benefit, or when an applicant directly requests a reduction in the fine in exchange for cooperation, this fine may be reduced by the SIC. This is the situation where second and further applicants stand.

To obtain a reduction of a fine, the applicant should comply with the following requirements:

  • recognise its participation in the anticompetitive conduct;
  • provide the SIC with evidence related to the anticompetitive conduct that adds significant value to the evidence already in the hands of the SIC;
  • cooperate with the SIC throughout the investigation in the form described in the answer to question 4;
  • assure that it is not the promoter or instigator of the anticompetitive agreements; and
  • put an end to its participation in the anticompetitive conducts.

In addition, the UDCIT concedes a benefit (Amnesty Plus) of an additional 15 per cent reduction of the fine, to a leniency applicant that was not granted full immunity in the investigation, but got first-in position in other leniency application of another cartel.

In order to obtain such benefit, the applicant must inform the SIC about the second cartel before signing the leniency agreement in the first cartel investigation.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

50. What is the process for seeking a reduction in sanctions?

Colombia

The process is exactly the same as the applicant seeking full immunity. However, in accordance with the UDCIT, the second applicant can obtain up to 50 per cent of the fine reduction and the rest of applicants up to 25 per cent of the fine reduction. (Note that Amnesty Plus may increase these caps.)

The SIC will evaluate the extension of the reduction in fines that should be granted to the applicants for such reductions. The result of this evaluation will be known in the final resolution.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

51. Is there a marker process similar to immunity applications?

Colombia

See questions 4 and 20 to 28. The marker system works in a similar way in both applications that are aimed at obtaining full immunity and in applications that are only aimed at or that obtain a reduction in fines.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

52. Are the reductions in sanctions fixed or discretionary?

Colombia

The SIC applies the reductions in sanctions using its own discretion and within the limits established in the UDCIT. The limits are as follows:

  • a first-in applicant that is eligible in terms of the Decree may be awarded total immunity or a 100 per cent reduction of the possible fines; 
  • a second-in eligible applicant may be awarded a maximum of a 50 per cent reduction of the possible fines; and
  • all subsequent eligible applicants may be awarded a maximum of 25 per cent reduction of the possible fines.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

53. How are the reductions in sanctions calculated?

Colombia

The SIC will reduce the sanctions of eligible applicants using its discretion within the limits set out in question 52, taking into account the quality of the information provided and the timing of the application to the programme.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

54. Are there sentencing guidelines?

Colombia

Even though Law 1340 substantially increased the fining capacity of the SIC, so far (2019) the authority has not issued sentencing guidelines. The SIC does, however, appear to use some kind of calculation system to establish the fines it imposes on companies that breach the law.

There are some broad rules set out in article 25 of Law 1340. Pursuant to the above-mentioned article, the SIC must consider the following in imposing fines: (i) the conduct’s effect on the market; (ii) the size of the affected market; (iii) the benefits obtained by the offender through its conduct; (iv) the degree of participation of the party involved; (v) the procedural conduct of those under investigation; (vi) the offending business’s market share, as well as the portion of its assets or sales involved with the infringement; and (vii) the infringer’s equity. There are also aggravating and mitigating circumstances that the SIC has to consider.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

Cooperation obligations for sentencing reductions

55. If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

Colombia

Yes. Pursuant to article 25 of Law 1340, cooperation with the SIC that leads to uncovering illegal conduct is a mitigating circumstance in connection with the sanctions.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

56. Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

Colombia

See question 52. The first applicant may receive total immunity; the second eligible applicant may be awarded a maximum of 50 per cent reduction of the possible fines; and the third and beyond will receive up to 25 per cent. The decision regarding to the reduction of the sanction within the said limit is discretionary of the SIC. There is always the possibility of Amnesty Plus described in question 49.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

57. Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

Colombia

Since the SIC cannot impose different kinds of sanctions, fine reductions are the only incentives it can offer to the applicant that is the first non-immunity applicant.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

58. Does the competition authority publish guidance regarding sentencing reductions?

Colombia

See question 54. The competition authority has not published any guidance regarding leniency programmes and there are no sentencing guidelines. The SIC is working on a new regulation that will probably cover those issues.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

59. Does the authority provide for "Leniency Plus" benefits?

Colombia

Yes, see question 44. The UDCIT says that an applicant that is not in the first leniency position in a cartel investigation, but is the first to denounce other cartels, can be awarded a 15 per cent bonus in the leniency application where he or she is not in the first position.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

60. How is the Leniency Plus discount calculated?

Colombia

See questions 40 and 59. Please notice that the 15 per cent hypothetical reduction may be aggregated to the reduction originally obtained (depending on the applicant’s position in the leniency programme), even if that means exceeding the caps stated in UDCIT).

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

61. Are the cooperation obligations similar to those for immunity applicants?

Colombia

See question 29. The cooperation obligations related to sentencing reductions are similar to those required for total immunity. Whenever an applicant who aimed to obtain total immunity does not meet the conditions named above, or when an applicant directly requests a reduction in the fine, the fine may be reduced if the applicant:

  • recognises that it participated or continues to participate in the anticompetitive agreement or agreements;
  • provides useful information and evidence regarding the anticompetitive agreement or agreements that adds a significant value to the existing evidence;
  • assists its employees in testifying to the SIC;
  • answers any requests from the SIC to clarify the facts;
  • abstains from destroying, altering or concealing relevant information or evidence regarding the alleged anticompetitive agreement; and
  • ceases to be part of the agreement.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

62. Will the applicant be required to make a written confession?

Colombia

See question 30. Confession is an essential element of a leniency application. Pursuant to the UDCIT, application to the leniency programme can be presented in oral or written form before the SIC or via email. If the confession is made orally to the SIC there will be a written minute of the reunion.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

63. Can third parties obtain access to the materials provided by the applicant?

Colombia

See questions 17 and 31. The leniency application itself is considered to form part of the preliminary investigation and will be kept confidential. Other investigated persons and companies will have access to the documents that the SIC includes in the investigation file (different from the leniency file) once the formal investigation is launched. In the past, the SIC’s decision to maintain the confidentiality of the leniency dossier has been challenged before the courts in particular cases, but the judges have decided favourably to the authority and the leniency dossier has been maintained confidential so far.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

64. Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

Colombia

It depends on the possibility to demonstrate the conduct by other means. See question 32.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

65. Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

Colombia

In general terms, obstructive conduct of one of the employees, will not damage the position of the company, unless the obstructive conduct affects the compliance of the company with the requirements for a successful leniency application, as set out in question 4. See questions 32, 33 and 64.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

66. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Colombia

Attorney–client privilege is a constitutional right and there is no obligation to provide materials covered by that privilege; but the applicant can waive this right. See question 34.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

67. Can an applicant challenge the amount of the reduction of sanctions?

Colombia

Yes. See question 48.

Answer contributed by Alfonso Miranda Londoño, Andrés Jaramillo Hoyos and Daniel Beltrán Castiblanco

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