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In this section you can download the Garrigues Latinamerican Competition Law Regime compilation, and interact with the comparative dashboard.
To see the spanish version (para ver la versión en español) click here.
Section elaborated by Eduardo Frade, Paulo Luciano, Roney Olimpio and Giuliana Mangrich (Mattos Filho)
| CADE | Administrative Council for Economic Defense |
| SRE | Brazilian Ministry of Economy’s Secretariat of Economic Reforms |
| STF | Brazilian Supreme Court |
| STJ | Brazilian Superior Court of Justice |
| Brazilian Competition Law | Law 12,529/2011 |
| CADE’S GS | CADE’S General Superintendence |
| DEE | CADE’S Department of Economic Studies |
| CGAA | Multiple Bodies of General Coordination of Antitrust Analysis |
The Brazilian competition enforcement regime has a broad legal framework based on the following provisions:
As indicated above, the Brazilian System of Competition Defense is composed of CADE and the SRE.[5]
CADE is responsible for investigating and ruling on potentially anticompetitive acts and also reviews merger cases. CADE is composed of three bodies: the General Superintendence (“CADE’s GS”), the Administrative Tribunal (“CADE’s Tribunal”), and the Department of Economic Studies (“DEE”). There are also two supporting bodies: the Office of the Attorney General at CADE and the Federal Prosecutor’s Office at CADE.[6]
1.2.1 CADE’s General Superintendence
CADE’s GS reviews mergers and can either unconditionally clear them or oppose them before the CADE’s Tribunal, arguing why they should either be blocked or approved subject to remedies, as the case may be. CADE’s GS also investigates anticompetitive behavior, and issues non-binding opinions recommending CADE’s Tribunal to dismiss cases or impose sanctions on the companies and/or individuals concerned.
CADE’s GS is led by a General Superintendent, who is appointed by the Brazilian President and confirmed by the Senate. The General Superintendent has a two-year term, which can be renewed for another two years.
CADE’s GS is internally divided into smaller units within two broader segments: (i) Merger Cases and Unilateral Conduct; and (ii) Cartels. Each of these two segments has a Deputy Superintendent responsible for coordinating the workflow, and they are appointed by the General Superintendent. These segments are further divided into smaller units (multiple bodies of General Coordination of Antitrust Analysis, or “CGAAs” in the Portuguese acronym), which are organized as provided below:
1.2.2 Merger cases and unilateral conduct
1.2.3 Cartels
1.2.4 CADE’s Tribunal
CADE’s Tribunal issues final ruling in both merger review cases (if applicable) and antitrust investigations. It is composed of one President and six Commissioners, all appointed by the Brazilian President and confirmed by the Senate. The President and the Commissioners have 4-year terms, and their reappointment is prohibited.
CADE’s Tribunal main responsibility is issuing final decisions on merger cases and antitrust investigations, including imposing or approving remedies on merger cases and imposing sanctions on antitrust investigations.
1.2.5 Department of Economic Studies
The Department of Economic Studies – “DEE”- supports CADE’s GS and CADE’s Tribunal with economic advice whenever requested by these two bodies. The DEE also prepares studies on specific markets, working papers, conducts economic analysis of draft regulations and policy measures from a competition advocacy standpoint, and conducts other scientific initiatives to improve CADE’s expertise on competition matters.
The DEE is led by a Chief Economist, who is jointly nominated by the General Superintendent and the President of CADE’s Tribunal.
1.2.6 Office of the Attorney General at CADE
The Office of the Attorney General at CADE is responsible for providing legal counsel and advisory services to CADE, representing CADE in judicial and extrajudicial matters, enforcing CADE’s decisions, and ensuring the collection of CADE’s credits (derived from the payment of fines) by registering them as active debt for administrative or judicial collection. Additionally, it takes necessary judicial measures to stop antitrust violations or to obtain documents for administrative processes, promotes judicial agreements in cases regarding antitrust matters (subject to Tribunal’s authorization), and issues opinions when expressly requested by a Commissioner or the General Superintendent.
The Attorney General at CADE is appointed by the President of the Republic after Senate approval and has a 2-year term, with the possibility of reappointment for one additional term. The Attorney General at CADE can participate in Tribunal hearings without voting rights, providing assistance and clarifications as needed. The Office of the Attorney General at CADE also ensures compliance with the law and performs other tasks assigned by CADE’s Internal Rules.
The Office of the Attorney General at CADE is divided into three units, set out below:[7]
1.2.7 Federal Prosecutor’s Office at CADE
In general, the Federal Prosecutor’s Office at CADE has the role of supervising the enforcement of Brazilian competition law during antitrust investigations, issuing non-binding opinions on these cases.[8] The person in charge of the Federal Prosecutor’s Office at CADE is appointed by the General Federal Prosecutor.[9]
1.2.8 Secretariat for Economic Reforms
The SRE is a specific entity within Brazil’s Ministry of Economy, responsible for the proposition and monitoring of microeconomic and regulatory reforms with the objective of improving the business environment in Brazil. Within the Brazilian System of Competition Defense, the SRE is responsible for competition advocacy, conducting sectoral studies, participating in public consultations by regulatory authorities, preparing recommendations and proposals for the revision of laws, regulations, and other normative acts of the public administration.[10]
CADE was created by Law No. 4,137/1962, with the mandate of conducting competition enforcement in Brazil. However, CADE had limited role until Brazil moved towards a more market-oriented approach in the end of the 80s and beginning of the 90s with the enactment of the Brazilian Constitution in 1988.
The Brazilian competition enforcement regime started to become more relevant and structured with Law No. 8,884/94, which was enacted within the context of the modernization of the Brazilian regulatory framework. In 2011, the Brazilian Competition Law modernized the Brazilian competition enforcement regime even further. The new law defined with greater clarity the responsibilities of different bodies, eliminated redundancies, reformed several aspects of the old regime, and established new procedural rules. The most significant change was the creation of a pre-merger control regime.[11]–[12]
After the reform, CADE worked to provide guidance and visibility to the private sector via the Resolutions and soft law discussed in section 1.1. above.
1.4 Typology of infringements and material scope
Article 36 of Brazilian Competition Law has a broad provision which states that any anticompetitive act, under any form, by its very object or its potential effects, is subject to scrutiny under the Brazilian competition enforcement regime.[13] The notion of anticompetitive effects involves:
Article 36 also contains examples of specific conduct that may be deemed anticompetitive, and CADE has the authority to investigate other conducts as well. The conducts mentioned in Article 36 may be divided into two general categories of infringements:
1.5 Personal or subjective scope
Brazilian Competition Law is applicable to any person or entity, regardless of its legal form, sector or if it is private- or state-owned, and even applies even to companies operating under a legal monopoly.[17]
In addition, companies are jointly and separately liable for the infringements committed by officers and employees, and companies within the same economic group are jointly and separately liable for the infringements committed by other group companies.[18]
Brazilian Competition Law is applicable to acts with actual or potential effects in Brazil.[19] There is no de minimis exemption in relation to transactions or practices that could not be considered as having effects in Brazil.
The assessment of effects varies in regard to the categories of potentially anticompetitive acts and merger control review, although both follow the same principle. In merger control, for example, CADE may consider that a transaction produces actual or potential effects in Brazil if the parties have any presence in Brazil. Because of the latter, a party to the transaction will be considered as having presence in Brazil if it has either a physical presence or merely exports into Brazil. In general, the transactions that are not subject to CADE’s jurisdictions are those foreigner-to-foreigner transactions where the parties have no Brazilian businesses and no sales into Brazil.[20]
As regards cartels and anticompetitive practices that happen abroad, actual or potential effects are deemed to exist if a conduct said conduct impacts Brazil by way of exports, or by way of a market division that apparently excludes Brazil or allocates Brazil to certain companies. CADE has launched several investigations related to international cartels involving multinational companies that were also under investigation in other jurisdictions, and discussions of effects tend to reinforce the broad language of the Brazilian Competition Law.[21]
[1] Article 170: “The economic order, founded on the appreciation of the value of human work and on free enterprise, is intended to ensure everyone a life with dignity, in accordance with the dictates of social justice, with due regard for the following principles: . . . IV – free competition . . .”
Paragraph 4 of Article 173 of the Constitution states: “The law shall repress the abuse of economic power that aims at the domination of markets, the elimination of competition and the arbitrary increase of profits.”
Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.
[2] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[3] Available at: https://www.gov.br/cade/pt-br/acesso-a-informacao/normas-e-legislacao/resolucoes-1.
[4] Available at: https://www.gov.br/cade/pt-br/centrais-de-conteudo/publicacoes-institucionais/guias-do-cade.
[5] See Article 3 of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[6] See Articles 5, 15, and 20 of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[7] Available at: https://www.gov.br/cade/pt-br/acesso-a-informacao/institucional/competencias/procuradoria-federal-especializada-cade.
[8] For more details on the Federal Prosecution Services at CADE, please refer to Resolution No. 1, jointly issued by CADE and the Federal Public Prosecutor’s Office: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/resolucoes/Resolucao_Conjunta_PGR_CADE_n_1.pdf.
[9] Article 20 of Brazilian Competition Law.
[10] For more information on the SRE and its activities, please see: https://www.gov.br/fazenda/pt-br/composicao/orgaos/secretaria-de-reformas-economicas.
[11] A detailed discussion on the evolution of the Brazilian Competition enforcement regime can be found at the book Defesa da Concorrência no Brasil: 50 anos (50 years of Brazilian competition enforcement): https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/livro-50-anos/livro-defesa-da-concorrencia-no-brasil-50-anos.pdf.
[12] Before Law 12,529/2011, CADE adopted a post-merger control regime whereby the merging parties had up until few days after the closing to notify the transaction with CADE.
[13] Brazilian Competition Law does not require effects have actually materialized.
[14] This provision has very limited application in practice, due to the inherent difficulties in demonstrating the negative effects of “abnormal” profits and/or prices if not resulted from other anticompetitive practices. For a seminal discussion, see Ragazzo, Carlos Emmanuel Joppert. “A EFICÁCIA JURÍDICA DA NORMA DE PREÇO ABUSIVO“. DE CONCORRÊNCIA (2012): 199, available at: https://www.concorrencia.pt/sites/default/files/imported-magazines/Revista_CR07-08.pdf#page=199.
[15] See Article 36, paragraph 3, items I and II, of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[16] See Article 36, paragraph 3, items III to XIX, of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[17] See Article 31 of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[18] See Article 32 of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[19] See Article 2 of Brazilian Competition Law. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[20] For past cases discussing if the relevant transactions were under CADE’s jurisdiction because they meet the “effects test”, see, for example, Merger Cases No. 08700.001008/2019-26 (Chevron / Petrobras Americas), 08700.006742/2022-87 (FCA US / Samsung), and 08700.006890/2022-00 (ExxonMobil / QatarEnergy). For a discussion of cases outside CADE’s jurisdiction due to lack of effects, see, for example, Merger Cases No. 08700.001204/2013-13 (Bosch / ZF) and 08700.007305/2018-02 (Denso / Aisin Seiki).
[21] For a seminal case, see Administrative Proceeding No. 08012.004599/1999-18 (Vitamins cartel).
According to Articles 37 and 38 of Brazilian Competition Law, CADE has the authority to impose fines and other non-monetary sanctions for anticompetitive conduct (said non-monetary sanctions will be specified below).[1]
Article 45 of the Brazilian Competition Law provides that fines may vary in accordance with: (i) the gravity of the infringement; (ii) whether the involved company/individual has acted in good faith; (iii) the economic benefits to the company/individual under investigation aimed to achieve by means of the anticompetitive conduct; (iv) whether or not the company/individual has successfully achieved its goal; (v) the actual or potential harm to competition, the Brazilian economy, consumers, and/or third parties; (vi) the negative impacts of the conduct on the market; (vii) the economic condition of the involved company/individual; and (viii) recidivism. In case of recidivism, the applicable fine is doubled.
Any person or entity is subject to non-monetary sanctions. These include, among others:
[1] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[2] See Article 2-A of CADE’s Resolution. Free translation: “The CADE may, through a reasoned decision, adapt the lines of business to the specificities of the conduct when the relevant lines of business indicated in Article 1 are expressly disproportionate”. Available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/resolucoes/Resolu%C3%A7%C3%A3o%203_2012%20-%20Ramos%20Atividade%20%28modificada%20pela%2018-2016%29.pdf
[3] See CADE’s Guidelines for Cartel Fines. See Administrative Proceeding No. 08012.007043/2010-79; Administrative Proceeding No. 08012.002222/2011-09; Administrative Proceeding No. 08700.005638/2020-11; and Administrative Proceeding No. 08700.001164/2018-14.
[4] Equivalent to approx. USD 8,070.50 and USD 322.9 million. Exchange rate as of December 31, 2024: USD 1 = BRL 6.1923. Source: Central Bank of Brazil.
[5] A spin-off is a specific type of divestment focused on creating a new independent entity, while the divestment regards to the sale of the relevant company’s ownership in an existing entity or asset.
By December 2025, the most significant proposed regulatory measure under discussion is Bill 4,675/2025,[1] which addresses economic and competition regulation of major digital platforms (Big Tech).[2] This proposed legislation was inspired by the European Digital Markets Act and the UK’s Digital Markets, Competition and Consumers Act, and is essentially an enhanced version of Bill No. 2,768/2022.[3]
Bill No. 4,675/2025 aims to amend Brazil’s antitrust rules (specifically, the Brazilian Competition Law) by introducing new instruments focused on the regulation of digital markets and platforms. Thus, it proposes designating certain companies as being “systemically relevant economic agents in digital markets” where they meet certain criteria.
Bill No. 4,675/2025 proposes the creation of a new body within CADE’s structure – the Superintendency for Digital Markets – which will be responsible for proceedings related to the designation of companies as systemically relevant in digital markets, as well as for other matters concerning the regulation of digital markets. In this context, the Bill puts forward the introduction of four new administrative proceedings under the Brazilian Competition Law, each relating to: (i) the designation of platforms as having systemically relevant status; (ii) the imposition of special obligations on those designated platforms; (iii) the imposition of administrative sanctions on platforms that fail to comply with those special obligations; and (iv) the imposition of procedural sanctions (related to the designation proceeding).
Bill No. 4,675/2025 was drafted by the Brazilian Executive Branch, with significant participation from the Ministry of Finance and the Ministry of Justice, and was submitted to the Chamber of Deputies. The Bill is currently under discussion in the Brazilian Parliament and may be amended. If approved, it will be sent to the President of the Republic in order to be passed into law.
[1] Bill No. 4,675/2025. Summary: Amends Law No. 12,529 of November 30, 2011, establishes procedures for the designation of systemically relevant economic agents in digital markets and for the determination of special obligations for such agents, and creates the Digital Markets Superintendency within the Administrative Council for Economic Defense (CADE). Available at: https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2562481.
[2] As can be seen from the press release available at: https://www.gov.br/fazenda/pt-br/assuntos/noticias/2025/setembro/governo-federal-envia-a-camara-dos-deputados-projeto-para-regulacao-concorrencial-das-big-techs.
[3] Bill No. 2,768/2022 grants the National Telecommunications Agency (Anatel) the authority to regulate the functioning and operation of digital platforms operating in Brazil. The text also establishes a fee to be paid by major companies in the sector. The proposal is currently under consideration in the Economic Development Commission (CDE) of the Chamber of Deputies. Bill No. 2,768/2022 faced significant criticism, particularly for proposing that Anatel regulate the digital platforms market. Consequently, Bill No. 4,675/2025 has emerged as a more technical alternative, aiming to correct the course originally set by Bill No. 2,768/2022.
4.1 Relevant Law
The legal framework concerning horizontal agreements in Brazil is established in Article 36 of the Brazilian Competition Law.[1] As mentioned, this provision encompasses not only practices that produce actual anticompetitive effects but also those with the potential to do so.
Although Article 36 does not explicitly distinguish horizontal agreements from other forms of antitrust violations (i.e., unilateral conduct, abuse of dominance, or vertical agreements), it contains examples of horizontal agreements that may be deemed illegal. These include price fixing, market division, customer allocation, output restriction, bid rigging, and other concerted commercial practices.
Regarding the standard of analysis, CADE’s decisional practice has established hardcore cartels as per se violations, that is, as conducts that by their very occurrence are considered illegal, irrespective of their effects. Other conducts have also been perceived by CADE as per se in some cases, such as soft cartels, or other types of concerted commercial practices, but standards regarding these types of conducts are inexistent. In addition, there is no concrete guidance on the standard applicable to standalone exchanges of competitively sensitive information as a horizontal conduct (that is, it is not clear if a per se rule should apply or not), but such conduct has increasingly been considered by CADE as an antitrust violation as well.
4.2 Statute of limitations
According to Article 46 of Brazilian Competition Law, investigations into anticompetitive conducts have a five-year statute of limitations,[2] except in cases where the investigated fact also constitutes a crime, in which case the statute of limitations is the one established in Brazilian criminal law. For cartels, which are deemed as both criminal and administrative offenses, the stature of limitations is twelve years. There is also a three-year statute of limitations for ongoing investigations with no relevant developments (either on the procedural or substantial matters).
The application of the rules of statutes of limitations can be interrupted by any investigative act of CADE, including the initiation of an administrative proceeding and the execution of a Leniency Agreement.[3]–[4] These may also be suspended during the force of a settlement agreement or merger control settlement.[5]
4.3 Special powers of the authority
Among CADE’ powers to investigate horizontal agreements are the following:
CADE also has the power to conduct inspections, request oral statements from companies, individuals, and other authorities, to access case files of administrative proceedings of other Brazilian federal agencies, and to ask for access to police investigations, judicial case files and other administrative proceedings conducted by agencies at the city or state level.
CADE has been developing technology to detect the adoption of collusive practices by competitors. An example is the creation of an artificial intelligence tool, known as Projeto Cérebro, which analyzes patterns of collusive behavior in public bids to identify potential horizontal agreements between competitors.[7]
4.4 Leniency and Settlement Program
Companies and individuals may receive immunity against administrative and criminal sanctions related to horizontal agreements by signing a leniency agreement with CADE.
Immunity is limited to individuals who admit their role and sign the leniency agreement, meaning a company’s leniency does not automatically protect its employees unless they also participate in the agreement. Similarly, if an individual applies for leniency, their company does not automatically receive immunity.
CADE’s Guidelines for Submitting Evidence in Leniency Applications provide a series of recommendations regarding the types of evidence that has been accepted by CADE’s Tribunal as proof of cartel participation, as well as the precautions applicants should take when submitting evidence in their leniency request.
4.4.1 Leniency Plus Program
CADE’s Leniency Program also includes a “leniency plus” option, where a participant in one cartel can receive a one-third reduction in penalties by disclosing a second, previously unknown violation. In such cases, the applicant is granted full immunity in relation to the newly reported conduct if it is the first to come forward.
4.4.2 Settlement
Brazilian Competition Law also allows defendants to enter into Settlement Agreements with CADE in the context of investigations related to horizontal agreements. A Settlement Agreement can be proposed either by the defendants or by CADE, and its requirements are: (i) payment of a fine, (ii) admission of involvement in the conduct under investigation, and (iii) cooperation with CADE’s investigation. The fine’s ranges are the same as the ones that apply to defendants in case of conviction. However, settling parties are eligible to a discount on the fine depending on their position in proposing the settlement and the degree of its cooperation with CADE. CADE’s Guidelines for Settlement Agreements for Cartel Cases provides that the first settling party is eligible to a discount from 30% to 50% in the applicable fine, while the second 25% to 40%, and the third up to 25%. Defendants that propose settlements once their cases have reached the Tribunal are only eligible to a discount of up to 15%, as they are not required to cooperate with the investigation of the facts.
Once approved by CADE’s Tribunal, the settlement agreement suspends the investigation against the settling party until the final ruling, where CADE’s Tribunal (if applicable) confirms full compliance with the settlement agreement. Once full compliance is confirmed, the investigation is dismissed in regard to the settling party.
For more details about the negotiation of Settlement Agreements with CADE (including for other conducts other than horizontal agreements), please refer to section 9, item viii.
4.5 Particular sanctions
For the more general aspects of sanctions in Brazilian Competition Law, see Section 2 (applicable sanctions) above.
In regard to more specific characteristics of cartel fines, although there are no specific sanctions for horizontal agreements, CADE’s Guidelines for Cartel Fines provide more specific guidance:
CADE’s Guidelines for Cartel Fines recommend imposing a base fine percentage of 17% (minimum of 14% and maximum of 20%) for bid-rigging cartels, 15% (minimum of 12% and maximum of 20%) for classic hardcore cartels, and 8% (minimum of 5% and may reach a percentage fine greater than 8% depending on the characteristics of the conduct) for soft cartels and other collusive conduct.
4.6 Criminal sanctions
According to Article 4 of Law No. 8,137/1990, criminal penalties for individuals may include imprisonment up to five years and fines. Criminal offenses are directed at cartel violations.
[1] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[2] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[3] See, for instance, Administrative Proceeding No. 08700.004532/2016-14. Defendants: Arteche do Brasil Ltda., Ailton Fabiano Vendramini, Albano de Abreu Lima Junior, Alexandre Kiste Malveiro, et al. Commissioner Luiz Hoffmann.
[4] See, for instance, Administrative Proceeding No. 08700.003735/2015-02. Defendants: JTEKT Corporation, JTEKT Automotiva Brasil Ltda., NSK Brasil Ltda., NSK Europe Ltd., NSK Ltd., Showa Corporation, Showa do Brasil Ltda., TRW Automotive Ltda. e Yamada Manufacturing Co., Ltd., et al. Reporting Commissioner João Paulo de Resende.
[5] Under Brazilian Law, if the limitations period is interrupted, it will start running again from day zero. If a limitations period is suspended, it will start running again considering the relevant elapsed period.
[6] Please note that individuals and companies are protected by the constitutional right against self-incrimination, which imposes certain limits on CADE’s ability to compel individuals to produce evidence.
[7] See https://agenciagov.ebc.com.br/noticias/202410/conheca-a-importancia-do-dia-nacional-de-combate-a-carteis.
[8]. Brazilian Competition Law, Article 86. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[9]. A detailed information on how to secure a marker and the procedure that should be followed is provided in CADE’s Leniency Guidelines available at: http://en.cade.gov.br/topics/publications/guidelines/guidelines-cades-antitrust-leniency-program-final.pdf
[10]. A leniency applicant may secure a marker by calling, scheduling a meeting or filing a submission addressed to the Chief of Staff at the GS or to the Deputy General Superintendent.
[11] The marker certificate may also be used to secure a place in line for a settlement negotiation. In this event, upon the execution of a leniency agreement, CADE’s General Superintendence may invite the others in line to negotiate a settlement.
5.1 Abuse of dominance
According to Article 36, item IV of the Brazilian Competition Law, an abuse of dominance may be deemed as an antitrust infringement.
Paragraph 2 of Article 36 defines a dominant position as the ability of a company or a group of companies to alter market conditions unilaterally or coordinately or to have a share of 20% or more of a relevant market. This is a rebuttable presumption and may vary based on market structure and specific economic analyses conducted by CADE, considering factors such as rivalry, barriers to entry, and the countervailing bargaining power of customers.
In practice, CADE focuses its enforcement against instances of abuse of dominance that have exclusionary effects, that is, cases in which actual or potential competitors would have their ability and incentives to compete with the dominant company reduced as a result of the investigated conduct. Over the years, CADE has analyzed several practices that may amount to abuse of dominance practices, such as exclusive dealing, resale price maintenance, tying and bundling, price discrimination, and refusal to deal, among others.
In Brazil, abuse of dominance practices are analyzed under the rule of reason standard, where CADE evaluates the existence of a dominant position, the conduct, its net effects on competition (considering both positive and negative competitive effects), as well as possible justifications and rationale.
5.2 Vertical restraints
Vertical restraints occur when a company imposes restrictions on other entities within the supply chain, such as suppliers, distributors, or retailers, potentially harming competition. These practices may be investigated under Article 36 of Law No. 12,529, which prohibits acts that limit, distort, or harm competition. In practice, CADE focuses its enforcement actions against vertical restraints in connection with abuse of dominance cases.
5.3 Others [e.g., Unfair competition, Interlocking, Infringements by the State]
In general, unfair competition practices are enforced under the Brazilian Intellectual Property Law (Lei nº 9.279/1996), which is outside the scope of the Brazilian System of Competition Defense.
Regarding interlocking directorates, these have not been investigated by CADE as a standalone anticompetitive conduct. However, CADE can assess if interlocking directorates may facilitate other anticompetitive conducts, such as cartels or the exchange of competitively sensitive information.
Finally, as discussed, the Brazilian Competition Law may be enforced against state-owned companies. Yet, this doesn’t mean CADE has the authority to prevent other agencies, authorities or governmental bodies from adopting rules that may produce anticompetitive effects. In this respect, as discussed in section 1.2., CADE (via DEE) and SRE can conduct advocacy actions, providing comments on existing rules or rules yet to be enacted.
6.1 Relevant Law
The legal framework concerning merger control in Brazil is established in:
6.2 Agencies
CADE is the agency responsible for antitrust merger control within the Brazilian competition enforcement regime. Mergers within certain economic sectors might be subject to control by sectorial regulatory agencies, such as the National Communications Agency (Anatel), the National Water Transports Agency (ANTAQ), among others.
6.3 Notifiable transactions
Any economic concentration is subject to merger control, regardless of its form, provided that the notification thresholds are met, as discussed below, including:[7]
6.3.1 Exemptions from the duty to notify
Brazilian Competition Law contemplates some exemptions from the duty to notify:
6.3.2 Special rules
Brazilian pre-merger control regime provides special rules for some situations where the standstill obligation should not apply by its very nature or due to emergencies.
6.4 Notification thresholds
Notification thresholds under Brazilian Competition Law are cumulative, meaning that a transaction is only notifiable in Brazil if all the three thresholds are met:
6.5 Filing procedure and timeframes
Transactions must be submitted to CADE before their implementation and preferably after the execution of the definitive agreement. All parties, including the seller, are responsible for filing, and any of them can be sanctioned for gun jumping.[21]
CADE has up to 240 days to issue a decision to be counted from the date of filing, which may be extended by 60 days, at request of the parties, or by 90 days, as per CADE’s discretion.[22]
Brazilian merger control has two proceedings: the so-called “fast-track” proceeding and the regular proceeding. Regardless of the proceeding, cases are initially investigated by CADE’s GS, which can unconditionally clear them or oppose them before CADE’s Tribunal, recommending remedies or prohibiting it. In case of a recommendation of remedies or prohibition, CADE’s Tribunal will be responsible for the final ruling. In addition, if a transaction is cleared unconditionally by CADE’s GS, third parties may challenge CADE’s GS decision before CADE’s Tribunal, or CADE’s Tribunal may request to further review the case within 15 calendar days after clearance decision is published.[23]
6.5.1 Fast-track proceeding
Most transactions are reviewed under the so-called fast-track proceeding, which applies to simple transactions. CADE’s Resolution No. 33/2022 provides that the following transactions are eligible to the fast-track proceeding: (i) joint ventures in which the parties will operate in new markets; (ii) transactions that do not result in any horizontal overlap or vertical relationship; (iii) transactions that result in horizontal overlap, but the combined market share is 20% or less, or the ΔHHI is below 200 points (as long as the combined market share resulting from the transaction is below 50%); (iv) transactions that result in vertical relationships, but none of the parties has 30% or more of any vertically related market.[24]
In fast-track cases, the parties are required to present the relevant transaction documents, and present the information required by Annex II of CADE’s Resolution No. 33/2022, which involves mostly the corporate information of the parties and their economic groups, the relevant markets concerned and market shares for the year prior to the transaction.
Cases under the fast-track proceeding must be cleared in up to 30 calendar days from formal notification or turned into the regular proceeding.[25] According to CADE, the average review period of fast-track cases was 15 days in 2025.[26]
6.5.2 Regular proceeding
Cases not eligible for the fast-track proceeding are analyzed under the regular proceeding. Under the regular proceeding, the parties are required to present the information required by Annex I of CADE’s Resolution No. 33/2022. A greater amount of information and documents is required, including market data for the past five years, market studies, internal documents, and more detailed information on entry and rivalry, among others.
Although the timeframe for cases under the regular proceeding is up to 330 days, it may vary depending on the complexity of the case. According to CADE, the average review period for cases under the regular proceeding was 120 days in 2025.[27]
6.6 Voluntary notification and ex-officio investigations
There is no voluntary notification under Brazilian merger control regime. If a transaction does not meet the notification thresholds, CADE has the authority to demand its notification for up to a year after its conclusion.[28] These post-closing investigations may be initiated ex-officio by CADE or after complaints by third parties.
In general, post-closing investigations are rare and considered exceptional, focused only on cases that may give rise to competition concerns. As of now and based on public information, CADE has only initiated post-closing investigations in eight cases, and only applied (behavioral) remedies in two cases.[29]–[30]
6.7 Pre-notification
CADE’s Internal Rules provide that only cases to be submitted under the regular proceeding can have a pre-notification phase.[31] There is no specific proceeding. In general, parties are encouraged to have pre-notification discussions with CADE’s case team before making the formal filing. In practice, parties should send a draft of the filing form to the case team and schedule a meeting with them, so as to gather their initial feedback. After that, the case team usually sends a request for additional information to be provided in the filing form. The parties usually are instructed to proceed with the formal filing once the requests are addressed. There is no specific timing in relation to the pre-notification phase, and it may vary depending on the workflow from the case team at CADE and also on the timing for parties to address the additional requests made. However, the pre-notification phase usually last between 1 to 3 months.
6.8 Non-compliance with the obligation to notify (gun jumping)
Transactions subject to notification with CADE cannot be closed or implemented before getting final merger control clearance.[32] Parties must remain independent until the final Brazilian merger control clearance is obtained, and shall refrain from:[33]
Failure to comply with these rules exposes all parties to the following sanctions:
The use of antitrust protocols and clean teams is encouraged.
CADE has up to five years to bring an enforcement action against parties involved in a violation to the Brazilian Competition Law.
The law provides that the statute of limitations is applicable to enforcement actions, which, in the case of gun jumping violations, are: fines, the opening of an antitrust investigation, and the declaration that the closing and posterior acts are null and void. However, the merger control analysis of cases subject to mandatory filing is not subject to statute of limitations, so CADE has the prerogative to analyze the merits of the case at any time.[35]
In terms of procedure:[36]
If CADE’s GS decides to close the investigation, CADE’s Tribunal can request a further review within 15 calendar days from the publication of the closing decision on the Brazilian Official Gazette.
The parties are required to make a formal filing within up to 30 calendar days after the decision ordering the parties to file the notification becomes final. The decision becomes final – and, consequently, the deadline for notification begins to run – when (i) CADE’s Tribunal denies the parties’ appeal seeking to exempt the transaction from mandatory filing; or (ii) the appeal period expires without the parties filing an appeal against the CADE’s GS decision ordering the notification.
[1] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[2] Available at (in both Portuguese and English): https://www.gov.br/cade/pt-br/centrais-de-conteudo/regimento-interno.
[3] Available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[4] See https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/guias-do-cade/Guide-for-Horizontal-Merger-Review.pdf.
[5] See https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/Guia%20V+/Guia-V+2024.pdf.
[6] See https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/guias-do-cade/Guide-Antitrust-Remedies.pdf.
[7] See Articles 90 of Brazilian Competition Law (concerning general types of concentration), available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm; Articles 9, 10 and 11 of CADE’s Resolution No. 33/2022 (concerning shareholding acquisitions), available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL; and CADE’s Resolution No. 17/2016 (concerning collaborative agreements), which is available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/resolucoes/Resolu%C3%A7%C3%A3o%20n%C2%BA%2017_18-10-2016.pdf.
[8] The criterion regarding the sharing of risks and results is cumulative and both must materialize in a given collaborative agreement.
[9] See, for example, Merger Cases No. 08700.003964/2024-18 (Decolar / TAM), and 08700.002276/2018-84 (Tim / Oi).
[10] See, for example, Merger Cases No. 08700.004121/2019-63 (Astrazeneca / Bayer / others) and 08700.002276/2018-84 (Tim / Oi).
[11] Article 90, sole paragraph 4, of Brazilian Competition Law, available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[12] Article 9, sole paragraph, of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[13] Articles 108 and 109 of CADE’s Internal Rules, available at (in both Portuguese and English): https://www.gov.br/cade/pt-br/centrais-de-conteudo/regimento-interno.
[14] Articles 115 to 117 of CADE’s Internal Rules, available at (in both Portuguese and English): https://www.gov.br/cade/pt-br/centrais-de-conteudo/regimento-interno.
[15] Article 11 of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[16] For the purpose of calculating the revenues of the economic groups, CADE adopts the following definition of economic group as regards companies: (a) the entity directly involved in the transaction; (b) the companies controlled by the same controlling shareholder as the entity directly involved in the transaction; and (c) all entities in which the entities listed under ‘a’ and ‘b’ hold, directly or indirectly, at least 20% of the voting or share capital. See Article 4 of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[17] There is an ongoing discussion on whether the definition in item (b) of the previous footnote, regarding the definition of economic groups, refers to “any shareholder holding at least 20% of voting or share capital of the party directly involved in the transaction” instead of the companies under common control. This debate is not settled yet, and the definition above reflects the original text of CADE’s Resolution No. 33/2022. See Gun Jumping Cases No. 08700.000641/2023-83 (Digesto / Jusbrasil) and 08700.006369/2018-88 (Naspers / Delivery Hero).
[18] In the case of investment funds, the economic group encompasses the following entities: (i) the fund involved in the transaction; (ii) all portfolio companies in which the fund involved in the transaction holds, directly or indirectly, control or at least 20% of either the total share capital or the voting shares; and (iii) if applicable, the economic group of any investor holding at least 50% of either the total share capital or the voting shares of the fund involved in the transaction, directly or indirectly (either alone or via a quota-holders agreement). See Article 4 of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL
[19] Approx. USD121 million. Exchange rate as of December 31, 2024: USD 1 = BRL 6.1923. Source: Central Bank of Brazil.
[20] Article 88 of Brazilian Competition Law, available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm; and Interministerial Resolution No. 994/2012, available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/portarias/Portaria%20994.pdf.
[21] Articles 107, caput, and paragraphs 1, 2; and Article 110 of CADE’s Internal Rules, available at (in both Portuguese and English): https://www.gov.br/cade/pt-br/centrais-de-conteudo/regimento-interno.
[22] See Articles 88, paragraphs 2 and 9, of Brazilian Competition Law, available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[23] See Article 9, item X, of Brazilian Competition Law (concerning Tribunal’s role in merger control proceedings); Article 13, item XII (concerning General Superintendence’s role in merger control proceedings) of Brazilian Competition Law; and Article 65 of Brazilian Competition Law (concerning appeal and requests for further review). Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[24] See Articles 6 and 8 of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[25] Article 7, paragraph 2, of CADE’s Resolution No. 33/2022, available at: https://sei.cade.gov.br/sei/modulos/pesquisa/md_pesq_documento_consulta_externa.php?11fcbFkN81DNKUdhz4iilnqI5_uKxXOK06JWeBzhMdu1o7VqyXeq9tKSSC3I_YlnBX8Qjt099g7spbtEu5Ayy1J7fZ6z5AK-E7JynVgVAYniczU5wqJ6a4at3XodqUOL.
[26] See CADE’s 2025 annual report, available at: https://indd.adobe.com/view/a2fa1c3d-6873-450f-be4e-3c12d468c4b8.
[27] See CADE’s 2025 annual report, available at: https://indd.adobe.com/view/a2fa1c3d-6873-450f-be4e-3c12d468c4b8.
[28] See Article 88, paragraph 7, of Brazilian Competition Law.
[29] See Merger Cases No. 08700.006497/2014-06 (Greca / Betunel / Centro Oeste), 08700.009828/2015-32 (Guerbert / Mallinkcrodt), 08700.006355/2017-83 (SM / All Chemistry), 08700.005079/2019-06 (Sacel / Prosegur), 08700.003903/2020-19 (Fleury / Sabin / Wang & Andra), 08700.006454/2023-11 (Schwabe / Herbarium), 08700.004240/2023-01 (123 Milhas / Maxmilhas), and 08700.007319/2024-66 (Sintokogio / Elastikos).
[30] See Merger Cases 08700.006355/2017-83 (SM / All Chemistry) and 08700.005079/2019-06 (Sacel / Prosegur).
[31] Article 114 of CADE’s Internal Rules, available at (in both Portuguese and English): https://www.gov.br/cade/pt-br/centrais-de-conteudo/regimento-interno.
[32] Article 88, paragraph 3, of Brazilian Competition Law, available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm.
[33] See Guidelines for the Analysis of Previous Consummation of Merger Transactions, available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/guias-do-cade/guideline-gun-jumping-september.pdf.
[34] CADE’s Resolution No. 24/2019 establishes a detailed methodology for calculating fines, which begins with a base penalty of R$60,000 and includes increases based on factors such as the duration of the delay (0.01% of the transaction value per day of delay) to notify the transaction, the gravity of the conduct (up to 4% of the transaction value), and intent (up to 0.4% of the average revenue of the economic groups involved). Additionally, reductions in fines are available depending on the timing of the notification: (i) 50% reduction for voluntary notifications before the launching of any investigative proceedings or third party complaint; (ii) 30% for voluntary notifications after a third party complaint but before any investigative proceedings; and (iii) 20% for voluntary notifications after the launching of an investigative proceeding but before CADE’s Tribunal decision ordering notification. CADE is authorized to consider other criteria in exceptional cases, where fines following the methodology provided in Resolution would be disproportionate and unreasonable Available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/resolucoes/Resolu%C3%A7%C3%A3o%2024_2019.pdf.
[35] See Article 46 of Brazilian Competition Law, available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm. Regarding the CADE’s case law discussion on the statute of limitations applicable to merger control analysis, see Administrative Proceeding for the Analysis of Previous Consummation of Merger Transactions No. 08700.002184/2021-08. Parties: Grand Brasil and Bis Distribuição de Veículos.
[36] See Articles 7 to 13 of CADE’s Resolution No. 24, available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/normas-e-legislacao/resolucoes/Resolu%C3%A7%C3%A3o%2024_2019.pdf.
The defendants have the right to request additional evidence to be produced over the course of the fact-finding phase. After this, CADE’s GS will issue a decision granting (or denying) the request for the production of evidence made by the defendants.
The fact-finding phase is concluded with the issuance of a Final Note by CADE’s GS and the referral of the case to CADE’s Tribunal for final ruling.
Once approved, settlements suspend the investigation against the applicant. At the final ruling stage, CADE’s Tribunal will confirm if the defendant has fully complied with the terms of the settlement and, if so, the investigation will be dismissed in relation to that defendant.
In any case, the approval of the settlement proposal depends on its convenience and opportunity (e.g., whether the evidence presented by the defendant is robust, whether CADE has not yet collected sufficient evidence against the defendant, etc.). Depending on the type of investigation, settlements will have different requirements, as detailed below:
[1] Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12529.htm
[2] Available at: https://cdn.cade.gov.br/Portal/centrais-de-conteudo/regimento-interno/Regimento-interno-Cade-versao-14-04-2023.pdf
[3] Although CADE’s Internal Rules set specific timeframes for the duration of the Preliminary Proceeding and the Administrative Inquiry, there are no consequences for CADE’s failure to comply with them.
CADE is the agency responsible for Brazilian competition enforcement at the executive branch level. However, CADE’s decisions are subject to judicial review. Brazilian law allows parties affected by CADE’s decisions to appeal on both procedural and substantive grounds.
Broadly speaking, judicial review of CADE’s decisions typically begins in Brazilian Federal Courts (Tribunais Regionais Federais), both in trial court (primeira instância) and appellate court (segunda instância). Decisions may be ruled by the Brazilian Superior Court of Justice if said decisions are related to the interpretations of federal law (as is the case of Brazilian Competition Law). If the decisions involve constitutional issues, the matter may ultimately be appealed before the STF,[1] Brazil’s highest court.
In 2020, the Brazilian Federal Supreme Court issued an important decision affirming that the Brazilian Judiciary must show deference to CADE’s substantive decisions and refrain from reexamining competition-related discussions, as CADE is the authority with the technical expertise and institutional capacity to assess competition-related matters. With this, the Brazilian Federal Supreme Court established that judicial review should be limited to examining the legality of decisions issued by CADE. Nonetheless, the practical implications of this STF’s decision are still evolving and it remains to be seen how the lower courts will consider this decision, particularly as companies are increasingly challenging CADE’s decisions before courts on substantive grounds.[2]–[3]
[1] The primary functions of the Brazilian Federal Supreme Court pertain to the protection of the Constitution and the interpretation of constitutional provisions, while the jurisdiction of the Brazilian Superior Court of Justice is limited to disputes involving conflicts between provisions of federal legislation.
[2] See Extraordinary Appeal No. 1.083.995/DF. Reporting Justice: Luiz Fux.
[3] For academic debate on this topic, see Marntis, Paulo; Vieira, Lucas. Deferência judicial às decisões do conselho administrativo de defesa econômica (Cade): direito adquirido ou conquista diária?. Revista Eletrônica de Direito Processual – UERJ. Ano 19. Volume 26. Número 1. Jan./abr. 2025. Available at: https://www.e-publicacoes.uerj.br/redp/article/download/74057/52813/333738. Access on January 8, 2025.
9.1 Competition Advocacy Reports
As discussed in section 1.2 above, the SRE is responsible for competition advocacy within the Brazilian System of Competition Defense. It mostly participates in public consultations carried out by Brazilian regulatory agencies, but also publishes other advocacy documents discussing the economic effects of legislations.[1]–[2]
In parallel, CADE also exercises advocacy roles. For instance, CADE’s DEE has released several reports covering competitive aspects of proposed and already existing legislation, and other regulatory initiatives. CADE’s DEE has also participated in trade matters, discussing anti-dumping measures.[3]
9.2 Market Studies
CADE’s DEE constantly releases market studies consolidating CADE’s decisional practice on specific sectors, which may include specific analyses on mergers and conducts. To date, the DEE has released around 20 market studies on several sectors, including healthcare, education, port services and maritime transportation, payments, agricultural inputs, and digital platforms.[4]
9.3 Guidelines
See section 1.1 above.
9.4 Opinions to draft regulations
See section 11.1 above.
9.5 Consultation
According to CADE’s Resolution No. 12/2015, companies, trade associations and individuals can initiate a Consultation proceeding in order to obtain CADE’s view on: (i) how to interpret the Brazilian Competition Law in relation specific mergers or conducts; (ii) if certain proposed or already in place conducts or contracts represent an anticompetitive infringement.
Consultation proceedings can only be initiated by those companies and individuals directly involved in the conduct or merger which will be discussed during the consultation, or trade associations that act on behalf of more than one company that is affected by certain conduct or merger. Consultation proceedings can only discuss specific and well-defined situations, and not hypothetical situations.
Consultations are submitted directly to the CADE’s Tribunal, and one of CADE’s Commissioners is responsible for being the Reporting Commissioner and bringing the case before the rest of the panel. The decision binds CADE’s Tribunal and the applicant for five years from its issuance and can only be revised by CADE’s Tribunal during this period if new information becomes available.
If CADE’s Tribunal finds that the conduct may be illegal, it can decide to open an investigation against the applicant.
[1] See https://www.gov.br/cade/pt-br/centrais-de-conteudo/publicacoes-institucionais/estudos-economicos/advocacy.
[2] See https://www.gov.br/fazenda/pt-br/composicao/orgaos/secretaria-de-reformas-economicas/publicacoes/notas-informativas.
[3] CADE DEE’s contributions and activities are available at: https://www.gov.br/cade/pt-br/centrais-de-conteudo/publicacoes-institucionais/estudos-economicos/notas-tecnicas and https://www.gov.br/cade/pt-br/centrais-de-conteudo/publicacoes-institucionais/estudos-economicos/advocacy.
[4] See https://www.gov.br/cade/pt-br/centrais-de-conteudo/publicacoes-institucionais/estudos-economicos/cadernos-do-cade.
Article 47 of the Brazilian Competition Law allows any person or company to file lawsuits before Brazilian courts to recover damages caused by antitrust infringements and to seek a cease-and-desist order. Filing a lawsuit does not affect the administrative proceedings carried out by CADE.
Private lawsuits are not yet widespread, but there are precedents.
In 2022, Brazilian Congress introduced new provisions in Brazilian Competition Law, via Law No. 14,470/2022, in order to encourage damages claims. The main changes include: (i) plaintiffs now can obtain double damages in case of cartel infringements (in case of other anticompetitive practices, single damages still apply); (ii) leniency and settlement applicants are not subject to double damages (only single damages), and are not jointly and separately liable for the infringement of other persons/entities involved in the cartel; (iii) CADE’s decisions convicting cartels allow courts to grant preliminary injunctions against involved companies in the context of private lawsuits; (iv) however, plaintiffs still have to shoulder the burden of proof in relation to the existence supracompetitive price and other harms caused by the cartel; (v) the limitations period for private lawsuits has been increased from three to five years from the day CADE’s ruling is published in Brazilian Official Gazette.
Section written by Mario Ybar
| FNE | National Prosecutor’s Office for Economic Affairs (Fiscalía Nacional Económica) |
| TDLC | Tribunal for the Defense of Free Competition (Tribunal de Defensa de la Libre Competencia) |
| DL 211 | Decree Law No. 211 |
| ICG | General Instruction |
| LDE | Law 21,595 of 2023 on Economic Crime (Ley 21.595 de 2023 sobre Delitos Económicos) |
| CLP | Chilean peso (currency) |
| UTA | Annual Tax Unit (Unidad Tributaria Anual) |
The Chilean antitrust regime is contained in the following legal texts:
In addition, the TDLC also has the power to issue “General Instructions” (ICG) that private parties must take into account. This regulatory power has been exercised by the TDLC on a limited number of occasions, of particularly note being the following: (i) ICG No. 5 on the Conditions of Competition in the Market for Means of Payment with Credit Cards, Debit Cards and Payment Cards with Provision of Funds;[2] (ii) ICG No. 1 on the Market for Collection, Transportation and Disposal of Household Solid Waste Services;[3] and (iii) ICG No. 2 on the Provision of Mobile Telephony Services and the Joint Offering of Telecommunications Services[4] (as amended by ICG No. 4[5]).
In the current system, an administrative agency – the FNE – investigates and presents cases before a tribunal – the TDLC – which for these purposes performs the functions of a court (resolving conflicts with the effect of res judicata). Its decisions can be appealed to the Supreme Court.
In addition, the TDLC is vested with the extra-jurisdictional powers of an administrative body (Article 18, Nos. 2 to 4 of DL 211). These powers consist of: (i) the issuance of General Instructions that must be complied with by those operating in a given industry or market; (ii) the recommendation to the President of the Republic of regulatory amendments to statutory or regulatory provisions that it deems contrary to free competition, as well as the need for legislation when necessary to promote competition; and (iii) the resolution of consultations related to facts, acts or agreements that could affect free competition.[14]
The FNE, however, also has different powers from those traditionally delegated to supervisory bodies or administrative investigators (article 39 of DL 211), such as: (i) preparing market studies; (ii) proposing to the President of the Republic regulatory amendments to statutory or regulatory provisions that it considers contrary to free competition, or the issuance of these when necessary; and, (iii) processing and resolving requests for merger operations subject to preventive control.
The first statute related to free competition in Chile was Law 13,305. Enacted in 1959, it reproduced ideas and concepts contained in the Sherman Act and created a Commission to hear claims for anti-competitive conduct.
However, the current antitrust system was established in 1973, through DL 211. This law has been amended on several occasions, for example: (i) Law No. 19,911 of 2003, which created the TDLC, ensuring the independence, specialization and dedication of the authorities; (ii) Law No. 20,361 of 2009, which introduced a series of changes with the purpose of making the FNE’s investigations more effective. Of particular note in this regard are the increase in fines, the introduction of powers for the interception of telephone conversations and searches of premises, the creation of the leniency program and the extension of the statute of limitations period for anticompetitive conduct; and (iii) Law No. 20,945 of 2016, in relation to which the following reforms are worthy of note:
The most recent reform to DL 211 was made in 2023 by Law 21,595 on Economic Crimes (the LDE). The changes made by the LDE to the competition rules are minor, and can be summarized as follows: (i) the third and fourth paragraphs of article 62 of DL 211, which established a “special” system for grading sanctions, are repealed, reference being made instead to the framework established in the LDE, with the special circumstances contemplated for mitigating circumstances due to the rules on cooperation (article 63 of the LDE); and (ii) the disqualification sanctions were removed from the second subsection of article 62 of DL 211 and included in the general provisions of the LDE.
1.4 Definition of antitrust acts and scope of action
The general offense established by DL 211 is defined in the first paragraph of article 3, which prohibits the implementation or performance, individually or collectively, of any fact, act or agreement that prevents, restricts or hinders free competition, or that tends to produce such effects.[15] This means that the rule is open and indeterminate, rather than being limited to specific examples of infringements of competition.
Thus, the Supreme Court or the TDLC are the bodies that must give content to DL 211 through their resolution of individual cases, while adopting, however, public policy definitions that are relevant to free competition.
Notwithstanding the foregoing, the second paragraph of article 3 provides specific examples of conduct that are considered facts, acts or agreements that prevent, restrict or hinder free competition, or that tend to produce such effects.[16] These are:
Article 3 bis, on the other hand, defines the different possible infringements of the duty to notify mergers that are subject to the mandatory prior control regime i.e. gun jumping.[19]
1.5 Defendants in antitrust actions
Complaints may be filed against anyone “who executes or enters into, individually or collectively, any fact, act or agreement that prevents, restricts or hinders free competition, or tends to produce such effects”,[20] regardless of whether they are natural or legal persons, or public or private entities.
The settled case law of both the TDLC and the Supreme Court recognizes the so-called “single economic entity doctrine”, according to which the defendant in a case, whether initiated privately or by the FNE, may include all the companies that are part of the same economic group. In this regard, a decisive factor is to distinguish when a parent company can exercise decisive influence over its subsidiary.[21]
The TDLC has declared its jurisdiction over conduct carried out abroad that produces effects in Chile:
“(…) it should be noted that this Tribunal has repeatedly stated that, if the arguments raised by the defendant Whirlpool were to be followed, the alleged unlawful conduct would be reduced only to the place where it is allegedly committed, concluded or agreed, without reaching the place where its actual or potential effects would be produced. The logical conclusion of this argument is that it would be impossible for the Chilean courts to have jurisdiction over any restrictions on competition carried out abroad but that affect any of our markets, or over conduct that occurs in Chile but does not produce competitive effects in this country. This would undermine DL No. 211, the purpose of which is to ensure, within the territory of the Republic of Chile, the competitive development of its markets”.
“A position contrary to the one described above would generate the perverse incentive of leaving unpunished those who, wishing to infringe the competition rules in Chilean markets, were to adopt their anticompetitive decisions or carry out actions aimed at implementing them outside Chile, traveling to another country for that purpose, or using means of communication or intermediaries located outside Chile, since even if the effects of those decisions and actions affected our markets, there would be no way of bringing them to the attention of this Court.”[22]
This position was confirmed by the Supreme Court, which held in the same case as follows:
“(…) taking into account the fact that the purpose of the provisions of Decree Law No. 211 is to protect free competition in Chile, it is clear that our courts do have jurisdiction to hear those infringements against this legal right that have had effects in Chile or were able to do so, regardless of the place where they are implemented or concluded.”[23]
Likewise, Article 6 of the Organic Code of Courts (Código Orgánico de Tribunales, COT) in its numeral 11°, expressly establishes that the criminal offense of collusion (as defined in Article 62 of DL 211) is subject to Chilean jurisdiction when it is perpetrated outside Chile but affects Chilean markets. To date, however, no proceedings have been brought with respect to this type of criminal offense.
All of the above is consistent with certain free trade agreements signed by Chile, which oblige the signatory States to apply their competition rules to all commercial activities carried out in their territory, while also recognizing the possibility (and possible mechanisms) of having jurisdiction over conduct engaged in outside their territory that produces effects within it.[24]
[1] See the TDLC’s rulings at the following link: https://www.tdlc.cl/auto-acordados/.
[2] Available at: https://www.tdlc.cl/wp-content/uploads/2022/08/ICG_5-2022.pdf.
[3] See consolidated text at: https://www.tdlc.cl/wp-content/uploads/instrucciones_generales/Instruccion_General_03_2013.pdf
[4] See original text at: https://www.tdlc.cl/wp-content/uploads/instrucciones_generales/Instruccion_General_02_2012.pdf.
[5] See modification at: https://www.tdlc.cl/wp-content/uploads/instrucciones_generales/Instruccion_General_04_2015.pdf.
[6] See August 2019 document at: https://www.fne.gob.cl/wp-content/uploads/2019/08/Gu%C3%ADa-de-multas.pdf.
[7] See June 2018 document at: https://www.fne.gob.cl/wp-content/uploads/2018/06/Gu%C3%ADa-de-Querellas-final-definitiva.pdf.
[8] See May 2017 document at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Guia_Estudios_Mercado_Final_oct2017.pdf.
[9] See May 2022 document at: https://www.fne.gob.cl/wp-content/uploads/2022/05/20220531.-Guia-para-el-Analisis-de-Operaciones-de-Concentracion-Horizontales-version-final-en-castellano.pdf.
[10] See 2019 document at: https://www.fne.gob.cl/wp-content/uploads/2019/08/Guia_Umbrales-08.2019.pdf.
[11] See 2014 document at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Gu%C3%ADa-Restricciones-Verticales-1.pdf.
[12] See 2017 document at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Guia-de-competencia.pdf.
[13] See 2017 document at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Guia-de-remedios-.pdf.
[14] The original purpose of this power was to provide legal certainty for market operators, who may have doubts as to whether a certain fact or act carried out, or to be carried out, may infringe the competition rules, without there being a “conflict” of legal significance. However, in practice, this procedure has been used to resolve matters that are more suited to contentious proceedings. See Mario Ybar, “Hoja de ruta para la libre competencia en Chile: Una propuesta“, Diálogos CeCo (March 2022), pp. 33-36, https://centrocompetencia.com/dialogo-hoja-de-ruta-para-la-libre-competencia-en-chile-una-propuesta/.
[15] DL 211, art. 3.
[16] The second paragraph of article 3 provides as follows:
“The following shall be considered, inter alia, as facts, acts or agreements that prevent, restrict or hinder free competition or that tend to produce such effects:
[17] On this point, see: TDLC, Ruling 187/2023, C17. Available at: https://centrocompetencia.com/jurisprudencia/fne-calquin-pegasus-faasa-colusion/
[18] 100,000 Unidades de Fomento (equivalent to approximately USD 4,593,000).
[19] Article 3, Bis: “The measures set forth in Article 26, as well as such preventive, corrective or prohibitive measures as may be necessary, may also be applied to those who: (a) violate the duty of notification established in Article 48; (b) violate the duty not to conclude a concentration operation notified to the National Prosecutor’s Office for Economic Affairs and which is suspended in accordance with the provisions of article 49; (c) Fail to comply with the measures with which a concentration operation has been approved, in accordance with the provisions of articles 31 bis, 54 or 57, as the case may be; d) conclude a concentration operation contrary to the provisions of the decision or judgment that has prohibited such operation, pursuant to the provisions of articles 31 bis or 57, as the case may be; and, e) notify a concentration operation, pursuant to Title IV, by submitting false information.”
[20] DL 211, art. 3.
[21] See Nicolás Palma, “Doctrina de la Única Unidad Económica en el Derecho de la Competencia: Aplicación y Límites”, Investigaciones CeCo (August 2022), https://centrocompetencia.com/doctrina-unidad-economica-derecho-competencia/.
[22] TDLC Decision No. 122 (2012) “FNE v. Tecumseh Do Brasil Ltda. and another“, c. 6 and 7, https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_122_2012.pdf.
[23] Supreme Court (2013), Case No. 5308-2012, “FNE v. Tecumseh Do Brasil Ltda. and another“, c. 2, https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_122_Corte_Suprema.pdf.
[24] See, for example: Comprehensive and Progressive Agreement for Trans-Pacific Partnership, Chapter 16 “Competition Policy”, available at https://www.subrei.gob.cl/docs/default-source/tratado-tpp11/16–politica-de-competencia.pdf?sfvrsn=51c0d4da_2; and Chile-Peru Free Trade Agreement, Chapter 8 “Competition Policy”, available at https://www.subrei.gob.cl/docs/default-source/acuerdos/peru/capitulos-peru/9-capitulo-8-pol%C3%ADtica-de-competencia.pdf?sfvrsn=1321fe64_2.
Article 26 of DL 211 allows the TDLC to impose different types of administrative sanctions, including the following:
Fines may be imposed on the legal entity concerned, its directors, executives and any person involved in carrying out the act in question.[2]
The FNE has also produced Internal Guideline on Fine Requests, which establishes the methodology according to which the FNE will determine the fines that it will request from the TDLC in each case,[3] although it has no binding force with respect to the fines actually imposed by the TDLC and, ultimately, the Supreme Court.
[1] Conversion made on the date of writing this document.
[2] For example, decisions in which fines have been applied to individuals include Decisions nos. 145 (2015), “FNE v. Asociación Gremial de Ginecólogos Obstetras de la Provincia de Ñuble y otros” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_145_2015.pdf); 133 (2014) “FNE v. Pullman Bus Costa Central y otros” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_133_2014.pdf); 128 (2013), “FNE v. ACHAP A.G. and others” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_128_2013.pdf); 74 (2008), “FNE v. AM Patagonia S.A. and others” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_74_2008.pdf¨); and 185 (2023) “FNE v. Pegasus South America Servicios Integrales de Aviación SpA and Inaer Helicopter Chile S.A.” (https://centrocompetencia.com/wp-content/uploads/2023/09/Sentencia_N_185_2023-3-1.pdf).
[3] FNE, “Internal Guidelines for Fine Requests from the National Prosecutor’s Office for Economic Affairs” (August 2019), available at: https://www.fne.gob.cl/wp-content/uploads/2019/08/Gu%C3%ADa-de-multas.pdf.
In March 2020, the Government submitted to Congress a bill introducing several reforms to DL 211 (Bulletin No. 13925-03). This Bill has not made any legislative progress since April 2020. The main proposed reforms are:
Notwithstanding the above, it seems unlikely that these amendments will be approved by Congress.
4.1 National Prosecutor’s Office for Economic Affairs (articles 33 to 45 of DL 211)
These last two grounds must be ordered by the President of the Republic, on the basis of a favorable report issued by the Supreme Court, at the request of the Minister of Economy, Development and Reconstruction.
4.2 Tribunal for the Defense of Free Competition (DL 211, articles 5 to 32):
The measures contained in options (a), (b) and (c) above shall be enforced by the Supreme Court, at the request of the President of the Tribunal or two of its members, without prejudice to the disciplinary powers of the Supreme Court.
[1] See information available at: Transparency Portal [official website], Active Transparency, National Prosecutor’s Office for Economic Affairs https://www.portaltransparencia.cl/PortalPdT/directorio-de-organismos-regulados/?org=AH005.
[2] This information was obtained using as a reference the fiscal contribution of the budget corresponding to the FNE, available at: Transparency Portal [official website], Active Transparency, National Prosecutor’s Office for Economic Affairs https://www.dipres.gob.cl/597/articles-363446_doc_pdf.pdf.
[3] Art. 39 g) of DL 211.
[4] Art. 39 k) of DL 211.
[5] Article 39 g) of DL 211. According to the fourth paragraph of this provision, “those who, with the purpose of hindering, diverting or evading the exercise of the functions of the National Prosecutor’s Office for Economic Affairs, conceal information that has been requested by the Prosecutor’s Office or provide false information, shall be sentenced to a minimum to medium term of imprisonment”.
Moreover, according to the fifth paragraph, “those who are required to respond to requests for information made by the National Prosecutor for Economic Affairs and unjustifiably fail to do so or do so only partially, shall be fined up to two annual tax units for each day of delay.”
[6] Article 39 j) of DL 211.
[7] Article 39 n) of DL 211.
[8] Regarding the detailed nature of its legal analysis, the lawyers surveyed evaluated the FNE with an average rating of 4,94 (on a scale of 1 to 7), while the average rating obtained in its economic analysis was 5,21 (on a scale of 1 to 7). See: CeCo and GWU: “Estudio de Percepción de la Institucionalidad de Libre Competencia 2024 en Argentina, Brasil, Chile, Colombia, Ecuador, México y Perú“. (April 2024), available at https://centrocompetencia.com/wp-content/uploads/2025/04/Informe-Encuesta-Final-2025.pdf.
[9] Average rating of 5,38 (on a scale of 1 to 7). See: Idem, p. 48.
[10] Average rating of 6,19 (on a scale of 1 to 7). See: Idem, p. 54.
[11] All obtained an average rating higher than 4,88 (on a scale of 1 to 7). See: Idem, p. 67.
[12] Average rating of 5,40 (on a scale of 1 to 7). See: Idem, p. 60.
[13] Average rating of 5,66 (on a scale of 1 to 7). See: Idem, p. 80.
[14] See information available at: Tribunal for the Defense of Free Competition [official website], the Tribunal, Personnel Team, https://www.tdlc.cl/dotacion-de-personal/.
[15] See information available at: Tribunal for the Defense of Free Competition [official website], the Tribunal https://www.tdlc.cl/organigrama/.
[16] Regarding the detailed nature of its legal analysis, the lawyers surveyed gave the TDLC an average rating of 5,53 (on a scale of 1 to 7). On the other hand, the average rating obtained regarding their economic analysis was 5,57 (on a scale of 1 to 7). See: CeCo and GWU: “ Estudio de Percepción de la Institucionalidad de Libre Competencia 2024 en Argentina, Brasil, Chile, Colombia, Ecuador, México y Perú.” (April 2025), available at https://centrocompetencia.com/wp-content/uploads/2025/04/Informe-Encuesta-Final-2025.pdf
[17] Average rating of 6.38 (on a scale of 1 to 7). See: Idem, p. 13.
[18] Average rating of 5.85 (on a scale of 1 to 7). See: Idem, p. 17.
[19] Average rating of 5.56 (on a scale of 1 to 7). See: Idem, p. 19.
“”Anyone who executes or enters into, individually or collectively, any fact, act or agreement that prevents, restricts or hinders free competition, or tends to produce such effects, shall be sanctioned with the measures indicated in Article 26 of this Law, without prejudice to the preventive, corrective or prohibitive measures that may be taken in each case with respect to such facts, acts or agreements”.[1]
The article is then supplemented by four sub-paragraphs that provide examples of anticompetitive conduct. Thus, the first paragraph lays down the general rule as regards conduct, capable of covering various examples of collusive agreements, while letter a) of the second paragraph of article 3 goes on to give specific examples of anticompetitive facts, acts or agreements:
“Agreements or concerted practices involving competitors that consist of fixing sales or purchase prices, limiting production, allocating geographical areas or market shares or affecting the result of tender processes, as well as agreements or concerted practices that, conferring market power on competitors, consist of determining marketing conditions or excluding current or potential competitors.“[2]
Given the amendment introduced by Law No. 20,945 (2016), the new Article 3 (a) considers two types of collusive conduct: (i) those that, in order to be sanctioned, require proof that market power has been conferred on those implementing the conduct (determining marketing conditions or excluding current or potential competitors); and those in which (ii) it is not necessary to prove that those implementing the conduct thereby acquired market power (fixing sales or purchase prices, limiting production, allocating geographical areas or market shares or affecting the outcome of tender processes). As indicated above, the per se rule would be applicable to this second type of conduct.
However, actions against agreements between competitors described in letter a) of article 3 have a special limitation period of five years that does not begin to run until the effects attributable to the conduct in question are felt in the market.
These measures (colloquially referred to as “intrusive”) may only be adopted in “serious and qualified cases of investigations aimed at proving conduct described in letter a) of Article 3″, i.e., solely and exclusively for cases of collusion for the conduct defined in letter a) described above.
According to article 39 bis of DL 211, in order to obtain the benefit of leniency, the whistleblower must:
On the other hand, the benefit of the leniency may be revoked if it is proven that the applicant: (1) was the organizer of the unlawful conduct; and (2) coerced others to participate in it.
Chilean legislation also contemplates the benefit of leniency for the second applicant, who may obtain a 50% reduction of the fine and a one degree reduction of the sentence in relation to the criminal offense of collusion. To be successful, in addition to complying with the requirements applicable to the first to apply, the second leniency applicant must provide additional background information that is “accurate, truthful and verifiable, and represents an effective contribution to the compilation of sufficient evidence in support of a public complaint.” In March 2017 the FNE published the “Internal Guide on Leniency in Cases of Collusion”,[4] which replaced the “Internal Guide on Benefits of Exemption and Reduction of Fines in Cases of Collusion” of October 2009.
“The prohibition on contracting in any capacity with centralized or decentralized State administration bodies, with autonomous agencies or with institutions, agencies, companies or services in which the State makes contributions, with the National Congress and the Judiciary, as well as the prohibition on being awarded any concession granted by the State, for up to five years from the date on which the final judgment is enforceable”.[5]
“[…] who enter into or order others to enter into, executes or organizes an agreement involving two or more competitors among themselves, to fix prices for the sale or purchase of goods or services in one or more markets; to limit their production or supply; to divide, allocate or distribute market areas or shares; or to affect the outcome of tenders carried out by public companies, private providers of public services, or public bodies“.[7]
The sentence for this offense can range from a minimum of three to a maximum of ten years in prison.
Criminal investigations for the crime of collusion are initiated by a complaint filed by the FNE, which can only be filed after the existence of the agreement has been previously established by an enforceable final judgment of the TDLC (or the Supreme Court, as the case may be).
The decision to file a criminal complaint against individuals convicted of the offense of collusion is taken by the National Prosecutor for Economic Affairs, who must issue a reasoned decision explaining why he or she decided not to file the criminal complaint, where that is the decision he or she takes.[8]
However, the National Prosecutor for Economic Affairs is obliged to initiate criminal proceedings when the case concerns facts that seriously compromise free competition in the markets.[9]
The criteria applied and the assessment carried out by the FNE to determine which cases correspond to each scenario are described in the Internal Guidelines for the Filing of Complaints for the Crime of Collusion.[10]
In addition to imprisonment, the EDL establishes a series of ancillary sanctions, consisting of being disqualified from: (i) holding public office; (ii) contracting with the State; (iii) holding managerial, directorship or chief executive positions in any company subject to the supervision of the Financial Market Commission. Such disqualifications may last between three and ten years, depending on the aggravating and mitigating circumstances (see articles 30-39 of DL 211).
However, it should be noted that, as of the date of writing, no criminal proceedings have been initiated in relation to the offense of collusion. This would be explained by the fact that, since the legal reform that introduced the criminalization of this conduct (Law 20,945 of 2016), only one case has reached a procedural stage in which it could be criminally prosecuted (and in this case, the National Prosecutor for Economic Affairs decided not to file a criminal complaint).[12]
Another relevant trend is that the National Prosecutor for Economic Affairs, during the celebration of Competition Day 2024, announced the creation of the Intelligence Unit, a multidisciplinary team which currently comprises a chief lawyer, a data scientist and a software developer. This team’s purpose is to develop digital investigative tools to strengthen the prosecution of cartels. This, together with the announcement of a new market study on e-commerce, shows that the analysis of digital markets has become a priority for the FNE.
[1] DL 211, art. 3.
[2] DL 211, art. 3.
[3] See arts. 39 bis and 63 of DL 211, and: FNE, “Internal Guidelines on Leniency in Cases of Collusion,” dated March 2017, available at: https://www.fne.gob.cl/wp-content/uploads/2017/03/Guia_Delacion_Compensada.pdf.
[4] https://www.fne.gob.cl/wp-content/uploads/2017/03/Guia_Delacion_Compensada.pdf
[5] DL 211, art. 3 d).
[6] The differences are that (i) Article 62 specifies that the type of bids that come within the rule are those carried out by public companies, private companies providing public services and by public bodies, and (ii) Article 62 does not refer to concerted practices.
[7] DL 211, art. 62.
[8] As of the date of writing, there is one case in which the National Prosecutor for Economic Affairs decided not to prosecute due to the existence of a number of elements that made the case less serious (the agreement was not secret, there was no awareness of the unlawfulness, etc.). See: FNE, Exemption Decision No. 683, “Issuing a Reasoned Decision based on paragraph 3 of Article 64 of Decree Law No. 211 of 1973”, available at: https://www.fne.gob.cl/wp-content/uploads/2023/12/Resolucion-Exenta-N.-683.pdf.
[9] Article No. 64(2) of DL 211.
[10] Available at: https://www.fne.gob.cl/wp-content/uploads/2018/06/Gu%C3%ADa-de-Querellas-final-definitiva.pdf
[11] This is notwithstanding the fact that in 2024 proceedings were initiated by the current administration in two cases concerning collusion in the gaming casinos and industrial gases industries based on applications for leniency, and in 2025 in the market for the purchase of Magallenic king crab.
[12] See Exemption Decision No. 683 of 2023, already referred to in a previous footnote.
[13] See: Juan Pablo Iglesias, “Acuerdos de I+D, Derecho de la Competencia y Propiedad Intelectual: Una Propuesta de Puerto Seguro para Chile,” Diálogos CeCo (May 2023), pp. 48-49, available at: https://centrocompetencia.com/wp-content/uploads/2023/05/Acuerdos-ID-Derecho-competencia-y-PI-Juan-Pablo-Iglesias-1.pdf.
[14] Mario Ybar, “Hoja de ruta para la libre competencia en Chile: Una propuesta“, Diálogos CeCo (March 2022), p. 27, available at: https://centrocompetencia.com/dialogo-hoja-de-ruta-para-la-libre-competencia-en-chile-una-propuesta/.
[15] According to previous CeCo research, the average number of days it takes the TDLC to adopt a decision in a non-contentious matter is 432: CentroCompetencia, “¿Cuánto tarda el Tribunal de Defensa de la Libre Competencia y la Corte Suprema en resolver asuntos de Libre Competencia? (2022)“, Investigaciones CeCo (July 2022), p. 6, available at: https://centrocompetencia.com/cuanto-tarda-el-tribunal-de-defensa-de-la-libre-competencia-y-la-corte-suprema-en-resolver-asuntos-de-libre-competencia-2022/.
[16] It is worth mentioning, however, that with the enactment of Law 20,920 on Extended Producer Liability, the possibility was included that waste producers who must comply with the recycling obligations and goals established in the same law may do so through a collective management system. This system must necessarily be managed by a different legal entity, which does not distribute profits and to which the producers must be associated (it is not independent). In addition, both its bylaws and the bids for the management of its waste must be previously reviewed by the TDLC, through a non-contentious procedure (identical in its regulation to that of the Consultation). In this sense, the experience of the TDLC and the FNE in the compliance and processing of Law 20,920, could be useful for the design of an eventual reform that gives market players certainty before entering into this kind of agreements.
6.1 Abuse of a dominant position
In addition, the article is complemented by four paragraphs that provide examples of anticompetitive conduct, two of which – letters b) and c) – refer to unilateral conduct: abuse of dominant position, on the one hand, and predatory practices and unfair competition, on the other.[2]
“An economic operator that has substantial market power and can act independently of other competitors, customers and suppliers, because there is no effective competitive pressure that can be exercised against it – that is, the power of actual or potential competitors or a countervailing power – so that it is in a position to set conditions that would not have been obtained in the absence of such high market power.“[3]
Supplementing this definition, given that DL 211 neither defines “dominant position” nor provides further guidelines for its assessment, different rulings have established some matters that may indicate its existence, such as:
Regarding the party holding a dominant position, article 3 of DL 211 considers both the existence of individual and collective dominant positions.
With respect to “predatory practices” and “unfair competition”, article 3(c) only requires that they be carried out “with the aim of achieving, maintaining or increasing a dominant position”, so it is not a sine qua non requirement that they be carried out by companies holding a dominant position prior to the conduct taking place.
The exploitative abuse test has been developed for excessive pricing, and is divided into two stages: (a) determining that the defendant has a dominant position that is not the result of past investments or innovations, and that there are high and non-transitory barriers to entry; and (b) determining that the prices charged are extremely high compared to certain benchmarks (or “thresholds”).[14] (-) .[15]
Recent TDLC decisional practice has also clarified that the barriers to entry must be higher than those commonly required for cases of exclusive abuses of dominant position, so that in cases of exploitative abuses a position of “supra dominance” should be held.[16] Likewise, other decisions of the TDLC would open the door to the sanction of discriminatory conduct with exploitative effects by operators with a dominant position.[17]
6.2 Vertical restraints
In addition, the FNE issued the Vertical Restraints Guidelines which, although not binding on the TDLC or the Supreme Court, are of relevance in the assessment.[19]
The FNE establishes a de minimis rule, according to which, in principle, if both parties involved in a vertical restraint have a market share of less than 35%, it will not open an investigation. [20]
6.3 Unfair competition
In Chile, unfair competition cases are generally heard by the ordinary civil courts but when the act of unfair competition is capable of allowing the party in question to achieve or maintain a dominant position, it can be sanctioned by the TDLC under DL 211.[22]
In this regard, letter c) of Article 3 of DL 211 provides that “predatory or unfair competition practices carried out with the purpose of achieving, maintaining or increasing a dominant position” will be considered as facts, acts or agreements that prevent, restrict or hinder free competition or that tend to produce such effects.
These criteria have been applied by the TDLC in cases in which defendants have been accused of abuse of rights, resulting in both convictions and acquittals.[25]
6.4 Interlocking
“The simultaneous participation of a person in senior executive or management positions in two or more competing firms, provided that the business group to which each of these firms belongs has annual revenues from sales, services and other business activities of more than one hundred thousand “Unidades de Fomento” in the last calendar year”.
It is clear from the FNE’s statement that it considers there to be an infringement per se, which does not require proof of any effects, which merits a serious response, as can be seen from the significant fine requested. This not only covers the case of direct interlocking, in which the same executive performs relevant functions in two competing firms, but also indirect interlocking (of the “parent-subsidiary” type) in which functions are performed in the parent company of the company that competes with another where executive functions are also performed.
In judgments issued in June 2025, the TDLC upheld the claims filed, ordering the respondents to pay fines and, in essence, treating interlocking directorates as a per se infringement. The TDLC held that the active subject of the infringement may be either a natural person or a legal entity, and that it covers both direct and indirect interlocking scenarios. As of the date of drafting of this document, both cases remain pending before the Supreme Court, where appeals for review (recursos de reclamación) have been filed by the respondents.
6.5 Acts of authority
Both the FNE and private companies have regularly brought actions against the State for antitrust infringements and there have even been convictions. Moreover, the FNE has developed two sets of guidelines aimed at the public sector: “The Public Sector and Free Competition[30] and “Guidelines on the Preparation of Public Tenders for Interurban Land Terminals”.[31]
In addition, article 4 of DL 211 establishes that “No concessions, authorizations or acts that imply the granting of monopolies for the exercise of economic activities may be granted, unless authorized by law.” It is worth examining the exception mentioned at the end of Article 4, as a state entity may engage in prima facie anticompetitive behavior when expressly authorized by law.
[1] DL 211, art. 3.
[2] DL 211, art. 3 b) and c):
“b) Abusive exploitation by an economic operator, or a group of them, of a dominant position in the market, by fixing purchase or sale prices, imposing in a sale that of another product, allocating geographical areas or market shares or imposing similar abuses on others.
[3] Decision 174 (2020), “Banco BICE v. Banco Estado” c. 88, (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_174_2020.pdf) and, in the same sense, Decision No. 176 (2021), “Sindicato de Trabajadores Independientes Chile Taxi v. Maxi Mobility Chile II SpA. y otros“, c. 76 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_176_2021.pdf).
[4] Decisions Nos. 7 (2004), “FNE v. Lechera del Sur, et al.”, c. 46; and 9 (2004), “Consulta AGIP sobre conducta de Supermercados Líder” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_09_2004.pdf), C. 16; “Voissnet S.A. v. Compañía de Telecomunicaciones de Chile S.A.”, c. 43.
[5] Decision Nos. 31 (2005) “FNE v. Rendic Hnos. S.A.” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_31_2005.pdf), C12; and 26 (2005), “Philip Morris v. Chiletabacos“, C10 and 11 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_26_2005.pdf).
[6] Decisions Nos. 26 (2005), TDLC, C15; 39 (2006), “Quimel S.A. v. James Hardie Fibrocementos Ltda“, C6; 55 (2007), “FNE v. LAN“, C33; and 176 (2021), “Sindicato de Trabajadores Independientes Chile Taxi v. Maxi Mobility Chile II SpA“, C98.
[7] Decisions Nos. 103 (2010), “Comercial Arauco Ltda. v. D&S y otro“, C24; 110 (2011), “Sociedad Will S.A. v. Claro Chile S.A“, C18.
[8] Decisions Nos. 97 (2010), “Voissnet S.A. v. Compañía de Telecomunicaciones de Chile S.A.“, C33-35; and 100 (2010), “Nutripro S.A. v. PTLA and the Treasury“, C29.
[9] Decisions Nos. 78 (2008), “GPS Chile S.A. v. Entel PCS S.A.”, C16; 99 (2010), “Comasa v. Capel, C23. Entel PCS S.A.”, C16; 99 (2010).
[10] Decision No. 161 (2018), “TVI v. VTR“, C37.
[11] Decisions Nos. 80 (2009), “Reebok Chile S.A. v. Reebok International Limited y otro“, C45-48; 154 (2016), “Conadecus v. Telefónica Móviles Chile S.A. y otros“, C47.
[12] Decisions Nos. 29 (2005), “FNE v. Transbank“, C°30-32; 55 (2007) “FNE v. Lan Airlines S.A. and Lan Chile Cargo S.A.”, C33; 97 (2010), “Voissnet S.A. v. Compañía de Telecomunicaciones de Chile S.A.”, C44; 78 (2008), “GPS Chile S.A. v. Entel PCS S.A.”, C25; 78 (2008), “GPS Chile S.A. v. Entel PCS S.A.”, C25; 103 (2010), “Comercial Arauco Ltda. Entel PCS S.A.”, C25; 103 (2010), “Comercial Arauco Ltda. v. D&S y otro“, C34; and 161 (2018), “TVI v. VTR“, C37.
[13] Decisions Nos. 47 (2006), “FNE v. Sociedad Punta de Lobos S.A.”, C60; 104 (2010), “FNE v. Telefónica Móviles de Chile S.A. and others“, C19; 124 (2012) “FNE v. Cámara de Comercio de Santiago A.G.”, C30; and 129 (2013), “AFEX and another v. Banco de Chile“, C9-11.
[14] Decision No. 140 (2014), “Condominio Campomar v. Inmobiliaria Santa Rosa de Tunquén Ltda.”, C16-18 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_140_2014.pdf). The decision was adopted on a 3-2 majority in which the minority position rejected the possibility that the competition rules should be used for sanctioning excessive prices.
[15] On benchmarks, see: Eduardo Saavedra and Javier Tapia, “El control de los precios excesivos en el derecho de la libre competencia: análisis y propuesta“, Revista Estudios Públicos, Vol. 153 (Summer 2019), pp. 95-140, available at https://www.estudiospublicos.cl/index.php/cep/article/view/34/39; and Sebastián Cañas, “Explotación de datos personales como precio excesivo: Una revisión del caso Bundeskartellamt vs. Facebook,” CeCo Research (October 2023), available at https:// https://centrocompetencia.com/explotacion-de-datos-personales-como-precio-excesivo-una-revision-del-caso-bundeskartellamt-c-facebook/.
[16] Decision No. 181 (2022), “Redtec v. Walmart“, C60 (https://centrocompetencia.com/wp-content/uploads/2022/06/Sentencia_181_2022.pdf).
[17] Decision No. 186 (2023), “FNE v. BCI“, C189 (https://centrocompetencia.com/wp-content/uploads/2023/11/Sentencia-TDLC-FNE-v.-BCI.pdf); and Decision No. 78 (2023), “Socofar consultation on marketing conditions of pharmaceutical laboratories“, para. 72 (https://centrocompetencia.com/wp-content/uploads/2023/07/Resolucion_N%C2%B078_2023.pdf).
[18] Decision Nos. 76 (2008), “GTD Teleductos S.A. v. EFE” (. EFE” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_76_2008.pdf); 85 (2009), “Constructora e Inmobiliaria Independencia Ltda. v. Aguas Nuevo Sur Maule S.A.” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_85_2009.pdf); Decision No. 100 (2010) Nutripro S.A. v Puerto Terrestre Los Andes; and Supreme Court (2019), Case No. 24.828-2018, “Consultation of Cruz Verde on Transbank’s tariff system” (https://centrocompetencia.com/wp-content/uploads/2022/03/Resolucion_53_2018.pdf).
[19] See 2014 document at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Gu%C3%ADa-Restricciones-Verticales-1.pdf
[20] Vertical Restraints Guidelines p. 7-8. This threshold does not constitute an absolute safe harbor, since it will not apply if the vertical restraints agreed by parties whose market share does not exceed 35% produce a cumulative effect in the market, or in other cases determined by the FNE (such as resale price fixing). Ibid.
[21] Decisions Nos. 26 (2005), “Philip Morris v. Chiletabacos“, Co. 23; 90 (2009), “FNE v. Cía. Chilena de Fósforos S.A.”, Co. 99 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_90_2009.pdf).
[22] See: Decision No. 176 (2021), “Sindicato de Trabajadores Independientes Chile Taxi v. Maxi Mobility Chile II SpA. y otros“, Co. 32.
[23] According to the TDLC, the legal definition of the concept of unfair competition, contained in Law 20,169, makes it possible to interpret article 3 c) of DL 211, the only difference being that it is also required to prove an affected public interest (free competition). In this regard see judgment No. 164 (2018), “Morales v. Trefimet“, Co. 6 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_164_2018.pdf).
In this regard, article 4 of the Unfair Competition Law provides examples of acts constituting such conduct:
“a) Any conduct that takes undue advantage of another’s reputation, inducing confusion of one’s own goods, services, activities, distinctive signs or establishments with those of a third party.
[24] Decision No. 125 (2012), “Laboratorio Recalcine S.A. v. Roche Chile Ltda.”, Co. 22 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_125_2012.pdf). For its part, the FNE has closed investigations into the matter based on the infringement of such requirements. See recitals 28-30 of the FNE’s file report of 2014, in relation to “complaint of trade association against Colbún for potential anticompetitive behavior”.
[25] See, for example, Decisions Nos. 46 (2006), “Recalcine S.A. v. Novartis S.A.” and 47 (2006), “FNE v. Sociedad Punta de Lobos S.A.” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_47_2006.pdf).
[26] Decision No. 24-2005, “Laboratorio Knop Ltda., against Farmacias Ahumanda S.A. and others.”, co. 9 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_24_2005.pdf).
[27] Decision No. 58-2007, “Ricardo Rodríguez y Cía Ltda. v. Epson Chile S.A.”, Co. 21 (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_58_2007.pdf), and Decision No. 103 (2010), “Comercial Arauco Ltda. v. D&S” (https://centrocompetencia.com/wp-content/uploads/2022/03/Sentencia_103_2010.pdf).
[28] Decision No. 176 (2021), “Sindicato de Trabajadores Independientes Chile Taxi v. Maxi Mobility Chile II SpA. y otros“, Co. 32.
[29] See the following cases: C-437-2021 FNE proceeding against Juan José Hurtado Vicuña and others and C-436-2021 D FNE proceeding against Hernán A. Büchi Buc and others.
[30] Available at: https://www.fne.gob.cl/wp-content/uploads/2012/06/Guia-final-sector-publico.pdf
[31] Available at: https://www.fne.gob.cl/wp-content/uploads/2022/06/Guia-para-la-elaboracion-de-bases-Terminales-Consulta-Publica.pdf
7.1 Applicable regulations and soft law
Law No. 20,945 established, in the new section IV of DL 211, the system of prior control of concentrations, which came into force in June 2017.
This Law has been complemented by various decisions and guidelines issued by the FNE and other authorities, including the following:
7.2 Authorities
The authority in charge of the concentration control system is the FNE. It receives the notifications, investigates and finally decides whether to approve them outright, make them subject to the conditions offered by the parties to mitigate their effect, or reject them. The TDLC may intervene only if the parties to the transaction file a special review (recurso de revisión especial) appeal against the FNE’s decision when it prohibits the transaction. Additionally, the Supreme Court has exceptionally intervened in this procedure. This occurred when one of the parties in a prohibited transaction filed a complaint appeal, resulting in the Supreme Court approving a merger that had been rejected by both the FNE and the TDLC.[9]
7.3 Notifiable transactions
A transaction that can be notified to the FNE is any fact, act or agreement, or series of them, that has effects in Chile, by virtue of which “two or more economic operators that are not part of the same business group and that are previously independent of each other, cease to be independent in any area of their activities by any of the following means” (Article 47):
Table No. 1
Types of transactions covered by DL 211
| Type of transaction | Comment |
| a) Merger, whatever the form of corporate organization of the merging entities or of the entity resulting from the merger. | |
| b) Acquisition, by one or more parties, directly or indirectly, of rights that allow them, individually or jointly, to decisively influence the management of another. | Decisive influence is a concept specific to competition law, with a different meaning from that used in securities law. It refers not only to active control, but also to examples of passive control, by means of relevant veto rights.
In this regard, changes from individual to joint control and vice versa, as well as the change of passive joint controller, are also notifiable. |
| c) Association in any manner to form an independent economic operator that performs its functions on a permanent basis. | The independence referred to here does not only refer to legal independence (a legal entity distinct from the parties that set it up), but also to economic independence, i.e. the entity in question is capable of performing, independently of its founders, the functions normally performed by entities present in the market. |
| d) Acquisition, by one or more parties, of control over the assets of another party in any capacity whatsoever.”[10] |
Transactions that do not imply a cessation of independence between two previously independent economic operators (for example, restructurings within the same business group), that do not have any effect in Chile, or that do not materialize through any of the four ways described above must not and cannot be notified to the FNE, nor can they be known by it within the framework of the system of preventive merger control.
7.4 Mandatory notification thresholds
A merger must be notified to the FNE before it takes place, when the double threshold provided for in Article 48 of DL 211, and set by the FNE itself, is met:[11]
7.5 Voluntary notification and ex officio investigation
The mergers that, while complying with the requirements set forth in Article 48 a) and b) of DL 211, do not meet the notification thresholds referred to therein, may also be voluntarily notified to the FNE, which must subject its analysis to the same procedure as the mandatory notifications.
On the other hand, the FNE may, within a period of one year from their completion, investigate ex officio those transactions that, while meeting the aforementioned requirements, do not meet the notification thresholds, although in this case such investigation will be subject to the general rules (investigation by the FNE, and decision by the TLDC) rather than the procedure provided for in the new Title IV. The FNE exercised this power in 2024 and 2025.[12]
7.6 Pre-notification
The FNE allows and encourages the parties to contact the Merger Division before notifying a transaction in order to make pre-notification consultations. Through this mechanism, matters such as the following can be discussed:
7.7 Procedure and timing
Depending on whether there are horizontal or vertical overlaps, and the extent of such overlaps, or whether joint control relationships exist prior to the acquiring entity’s acquisition of individual control, the transaction must be notified using the simplified or ordinary notification form.[13]
The ordinary notification procedure requires a greater amount of information than in the case of simplified procedure. As for timing, this will depend mainly on the risks identified by the FNE in its analysis, and the consequent review phases. These phases are as follows:
Once a new notification has been filed, the FNE will again have 10 business days to declare whether the filing is complete. Neither DL 211 nor any guidelines establish a maximum number of times that the FNE may declare the filing incomplete.
Once the investigation has been initiated, Phase 1 begins, which lasts for a maximum of 30 business days. During this phase, the investigation file is confidential, so that neither the parties nor any third parties have access to it.
During the investigation, the FNE may use all the powers conferred on it by article 39 of DL 211 for the investigation of conduct, with the exception of those that are exclusive to cases of collusion. Within thirty days from the date on which the investigation was initiated, the FNE must: (i) approve it purely and simply (without conditions), if it concludes that it is not liable to “substantially lessen competition“; (ii) approve it, subject to compliance with the commitments offered by the notifying party, if it is convinced that such measures will result in it not being likely to substantially lessen competition, or (iii) extend the investigation for up to ninety additional days (“Phase II”), when it considers that, if completed purely and simply or subject to the measures offered by the notifier, if any, it may substantially lessen competition. In Phase I, the procedure may be suspended once, by mutual agreement between the FNE and the parties, for up to thirty business days. It is also suspended for an additional 10 business days each time the notifying parties offer measures to mitigate the effect of the merger. According to FNE statistics, in 2023, the average duration of the procedures which ended in Phase I with unconditional approval was 23 business days, while the procedures completed in this same phase but made subject to conditions took, on average, 35 business days.[14]
Note that these deadlines do not take into account the time that elapses between the filing and the moment the FNE declares it complete, which, according to a CeCo study, takes an average of 32 calendar days.[15]
During Phase II the file is public, notwithstanding the fact that the National Prosecutor for Economic Affairs may order – ex officio or at the request of the interested party – the secrecy or confidentiality of certain parts of the file, in accordance with the terms of article 39 a).
7.8 Appeals
The decision prohibiting a transaction may be challenged by the notifier before the TDLC, within 10 days of its notification. This mechanism is called the Special Review Appeal “Recurso de Revisión Especial“. The decision clearing a transaction cannot be challenged.
7.9 Failure to notify (gun jumping) and other conduct
As already mentioned, article 3 bis contemplates a series of situations of breach of the duty to notify in advance a merger that complies with the thresholds already described (gun jumping). This provision states that the measures of article 26 of DL 211 “as well as those preventive, corrective or prohibitive measures that may be necessary” may be applied to those who: (i) violate the duty to notify a merger; and (ii) contravene the duty not to conclude a merger notified to the FNE.
In addition, the same article penalizes those who (i) fail to comply with the measures with which a merger has been approved; (ii) conclude a merger contrary to the provisions of the decision or judgment that has prohibited such operation; and (iii) notify a merger by providing false information.
Additionally, in the case of non-compliance with the obligation to notify a merger, the TDLC may apply, in addition to the penalties already mentioned, a fine of up to twenty annual tax units for each day of delay counted from the completion of the merger.
7.10 Substantive test in each type of transaction
The standard of merger analysis enshrined in the rule is that of a “substantial lessening of competition”. This may occur as a result of unilateral risks and coordinated risks.
The significance of the former will depend on the conditions of entry, as well as the degree of concentration of the industry and participation of the parties in homogeneous markets, while in heterogeneous markets, the degree of competitive proximity between the parties will also be considered. On the other hand, the FNE, in its Guidelines for the Assessment of Horizontal Mergers, has pointed out that transactions affecting markets whose concentration indexes do not exceed a certain concentration threshold[17] usually have little potential to substantially reduce competition.[18]
7.11 Mitigation measures
Pursuant to article 53 of DL 211, the parties can always offer the FNE the measures they deem appropriate to mitigate the risks that the transaction may have for free competition. The FNE, for its part, must limit itself to accepting them as sufficient or rejecting them, without being authorized to impose commitments unilaterally.
On the other hand, the Guidelines on Remedies establishes that the measures must: (i) be effective (or “suitable”) to prevent the concentration transaction modified through them from being capable of substantially lessening competition; (ii) be feasible to implement, enforce and monitor; and, (iii) be proportionate to the competition problem detected.
Regarding the effectiveness of the measures, the FNE has indicated a preference for structural measures, stating that:
“In general, the FNE will require that in the case of horizontal mergers, the measures proposed by the parties involve the divestiture of assets to a suitable buyer. This does not preclude the adoption of other remedies to supplement the divestiture measures”.[19]
7.12 Minority interests
Law No..20,945 included a new article 4 bis, which establishes the obligation to inform the FNE no later than sixty days after its implementation “the acquisition by a company or any entity of its business group of a direct or indirect participation in more than 10% of the capital of a competing company”.
Such reporting obligation only applies when the acquiring company, or its corporate group (as the case may be), and the company whose interest is acquired have, each separately, annual revenues from sales, services and other business activities that exceed one hundred thousand unidades de fomento in the last calendar year.
So far, there have been very few cases related to this new regulation, all of which have been concerned acquisitions of unreported minority shareholdings or where they have been reported after the deadline.[20]
[1] Available at: https://www.fne.gob.cl/wp-content/uploads/2019/03/Resoluci%C3%B3n-exenta-157.pdf
[2] Available at: https://www.fne.gob.cl/wp-content/uploads/2021/11/Reglamento-N%C2%B041-D.O.-02.11.2021.pdf
[3] Available at: https://www.fne.gob.cl/wp-content/uploads/2021/11/Formulario-de-Notificacion-02.11.2021.pdf
[4] Available at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Guia-de-competencia-.pdf
[5] Available at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Guia-de-remedios-.pdf
[6] Available at: https://www.fne.gob.cl/wp-content/uploads/2019/08/Guia_Umbrales-08.2019.pdf
[7] Available at: https://www.fne.gob.cl/wp-content/uploads/2021/05/20210416.-Instructivo-Pre-Notificacion-rev-CI-30.04.pdf
[8] Available at: https://www.fne.gob.cl/wp-content/uploads/2021/05/Guia-para-el-Analisis-de-Operaciones-de-Concentracion-Horizontales-mayo-VF.pdf
[9] See the CeCo Note: “Approval of the Nueva Masvida and Colmena Merger by the Supreme Court: A Critical Analysis of a Puzzling Ruling.” Available at: https://centrocompetencia.com/aprobacion-fusion-nueva-masvida-y-colmena-por-la-suprema-analisis-critico-fallo-desconcertante/
[10] DL 211, art. 47.
[11] The last thresholds were set by the FNE through Exemption Decision No. 157 of 2019. Available at: https://www.fne.gob.cl/wp-content/uploads/2019/03/Resoluci%C3%B3n-exenta-157.pdf
[12] https://www.df.cl/empresas/industria/la-fne-pone-la-lupa-sobre-dos-operaciones-ya-cerradas-abre
[13] These situations are set forth in article 4 of the Merger Notification Regulation and are described in more detail in the FNE’s “Merger Notification Form”.
[14] See: FNE [official website], Mergers, Statistics, available at: https://www.fne.gob.cl/wp-content/uploads/2024/06/Estadisticas-Division-Fusiones-Ano-2023.pdf
[15] CentroCompetencia, “¿Cuánto tardan las investigaciones de la Fiscalía Nacional Económica en materia de fusiones? (2022),” Investigaciones CeCo (July 2022), available at: https://centrocompetencia.com/cuanto-tarda-fne-fusiones-2022/
[16] See: FNE [official website], Mergers, Statistics, available at: https://www.fne.gob.cl/wp-content/uploads/2024/06/Estadisticas-Division-Fusiones-Ano-2023.pdf
[17] This will occur when the concentration index is: a) lower than HHI 1500; b) higher than HHI 1500 and lower than HHI 2500, with a projected variation of HHI of less than 200; and c) higher than HHI 2500 (index expressive of a highly concentrated market), with a projected variation in the HHI of less than 100.
[18] With the following exceptions:
a) When one of the parties involved in the Transaction is a potential competitor, or a recent newcomer, with a small market share that does not necessarily reflect the share it could reasonably achieve in the near future;
b) When one of the parties involved in the Transaction is an important innovator or a particularly vigorous and independent competitor (a maverick economic operator) in a sense that is not reflected in its market shares;
c) When the merging parties are close competitors;
d) When there are relevant links between the respective market players, either structural (e.g. minority shareholdings) or contractual (e.g. cooperation, collaboration or supply agreements, financing agreements, etc.), which may reduce their independence and/or competitive autonomy;
e) When the market reflects a structure tending towards coordination, or there have been indications of coordination in the recent past;
f) When there are relevant objections from consumers in relation to the effects of the Transaction, or similar concerns about the competitive dynamics of the respective market or industry;
g) When, in similar operations in Chile or at a comparative level, the corresponding authority has concluded that risks to competition exist; and/or
h) When there is evidence or any other indication of possible competitive risks in connection with the Transaction. Idem, paragraph 36.
[19] FNE, Remedies Guidelines, para. 35.
[20] See: Centro Competencia, “Primeros requerimientos de la FNE por no notificar participación en competidores“, Actualidad (February 2020), available at https://centrocompetencia.com/primeros-requerimientos-de-la-fne-por-no-notificar-participacion-en-competidores/; and Decision providing the clearance of the TDLC of the Extrajudicial Settlement No. 15-18, between FNE and International Minstream Renewable Power Limited.
8.1 Applicable legislation
Articles 39 to 42 of DL 211 and Internal Instructions for the carrying on of FNE investigations.[1]
8.2 Commencement
Investigations may be initiated ex officio or following a complaint, either on the FNE’s web page[2] or in writing to the FNE’s offices.
8.3 Admissibility
All complaints are subject to an examination of their admissibility in order to determine whether or not it is appropriate to investigate, in accordance with articles 39, paragraphs 1[3] and 41[4] of DL 211.
8.4 Time limits
According to the Instructions, “the FNE’s investigations must be carried out within a reasonable period of time“.[5]
Thus, the FNE’s investigations are not subject to legal time limits, the only limit being the statute of limitations.
8.5 Discretionality
According to Article 39 of DL 211, the National Prosecutor for Economic Affairs may “defend the interests entrusted to him or her in the manner he or she deems appropriate by law, according to his or her own assessment“.[6]
This rule, together with the need for an agreement between the President of the Republic and the Supreme Court regarding the need to remove the National Prosecutor for Economic Affairs, constitute the essential aspects of rules aimed at guaranteeing his or her independence and autonomy in the performance of his or her duties.
8.6 Results of the FNE’s investigations
Investigations may be terminated in the following ways:
[1] Available at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Instr._investigaciones_2013-1.pdf
[3] “The National Prosecutor for Economic Affairs may conduct such investigations as he or she deems appropriate to verify violations of this law“.
[4] “In order to determine whether to investigate or dismiss the complaints filed, the Prosecutor’s Office may, within 60 days of receiving the complaint, request information from private individuals, as well as summon any person who may have knowledge of the facts alleged to give evidence.”
[5] Internal Instructions for the Carrying Out of Investigations of the National Prosecutor’s Office for Economic Affairs, No. 38.
[6] Emphasis added.
[7] The Prosecutor may order the investigation to be closed by issuing a reasoned decision, in particular in the following cases:
(i) When it has not been possible to prove the existence of facts, acts or agreements that constitute violations of DL 211, or the participation in them of one or more natural or legal persons;
(ii) When there is insufficient background information in the investigation to justify an action before the TDLC or the courts of justice; (iii) When there is insufficient information in the investigation to justify an action before the TDLC or the courts of justice;
(iii) When there is a previous declaration of the TDLC or the courts of justice regarding the matter;
(iv) When there has been a change in circumstances, so that anticompetitive effects have ceased to be observed. The above, without prejudice to the commitments of the relevant economic operators that may be considered as the background and basis for the decision;
(v) When there are reasons of efficiency and efficacy that make it inappropriate to persevere in the investigation, in view of its nature, the persons affected by it and the effects on the market(s);
(vi) When, in accordance with article 39 paragraph 1 of DL 211, according to its own appraisal, it does not seem proportional or justified in the general interest with respect to economic affairs or for the protection of free competition in the markets, to continue the investigation. Internal Instructions for the Carrying Out of Investigations of the FNE. Paragraph 88. Available at: https://www.fne.gob.cl/wp-content/uploads/2017/10/Instr._investigaciones_2013-1.pdf
[8] Among these possibilities are:
9.1 Pre-trial measures
The broad power of the TDLC in terms of interim measures means that applying for such measures is a good alternative in terms of preparing for trial and ensuring the outcome. However, applying for interim measures entails a procedural burden, since a public or private complaint must be filed within twenty business days of the date of notification of filing or any longer period set by the court. Otherwise, it will be null and void.
In this regard, although similar to the Anglo-American legal concept of discovery, the pre-judicial evidentiary measure is limited in that it must comply with two general requirements: (i) the information is known to be in the possession of the party requested to produce it and (ii) it is relied on to support the action to be brought in court. Thus, it is a limited power that cannot be compared to the powers of seizure that the FNE has in the investigative phase; instead, it is related to known background information that may support an action in court.
9.2 Complaint and defense
The contentious procedure begins with the filing of a complaint, which may be filed by a private party (demanda) or public, if it is filed by the FNE (requerimiento), through which a public or private entity is accused of having infringed the competition rules, and the TDLC is asked to: (i) declare the existence of an infringement; (ii) sanction the breach of the competition rules and, (iii) where appropriate, adopt measures aimed at preventing such acts from being committed in the future.
The subsidiaries or agencies of a foreign company that are set up in Chile may be notified of the public or private complaints that are made against them for violations of this law, the statutory limitations generally applicable to any such subsidiary or agency not being valid for these purposes.
Once the public or private complaint has been allowed to proceed, it is served so that those against whom it was filed may answer within fifteen business days or such longer term as the TDLC may indicate, which may not exceed thirty days.
9.3 Settlement
After the period for filing the defense has expired, the TDLC may summon the parties for a hearing in an attempt to reach a settlement. If the parties reach an agreement, the TDLC must approve it, provided that it does not violate the competition rules. The TDLC’s decision may be appealed against by those who have been excluded from the settlement agreement.
9.4 Evidence phase
If the TDLC considers that it is not necessary to call the parties to a settlement hearing, or if this procedure fails, it must “open the taking of evidence phase” which lasts for a period of twenty business days.
Once this period has commenced, the parties have five business days to submit a list of witnesses.
Documentary evidence may be submitted up to 10 days before the date set for the hearing of the case.
9.5 Decision
The final decision must be “reasoned”, i.e., it must “state the factual, legal and economic grounds on which it is based” (article 26). In addition, it must contain the grounds for any minority.
The decision is taken in forty-five days, counted from the time the case is “ready to be ruled on”. However, this is the period that applies to the TDLC, and therefore failure to issue the decision within it does not give rise to any procedural sanction for the parties concerned.
9.6 Appeals
DL 211 establishes two types of appeals for decisions issued in contentious proceedings: (i) the appeal to the same administrative authority (recurso de reposición); and (ii) the appeal (recurso de reclamación). The former is where the party “aggrieved” by an interim decision of the TDLC requests that this same administrative authority amend it in accordance with the law. By contrast, the latter type of appeal is only against the final decision pursuant to which one of the parties is found liable or not liable as regards the application of the measures established in article 26 of DL 211.[1]
This latter type of appeal, in terms of its scope, resembles what is typically referred to in comparative law simply as an appeal, as opposed to an appeal on a point of law or for annulment.[2]
As regards legal standing, the appeal may be filed by the National Prosecutor for Economic Affairs or any of the parties, within 10 business days of notification of the decision appealed against.
Although this appeal is filed with the TDLC, the court in charge of resolving it is the Supreme Court (specifically, the Third Chamber).
The filing of any appeal does not suspend the enforcement of the judgment, except as regards the payment of fines. However, at the request of one of the parties, the Supreme Court may suspend the effects of the judgment, in whole or in part.
9.7 Threshold of evidence
The TDLC must appreciate the evidence in accordance with the rules of sound judgment (sana critica). This requires the judge to be persuaded of the merits of the case not by applying any particular rule, but rather on the basis of a reasoned analysis expressly set forth in the judge’s ruling, taking into account his or her experience, the laws of logic and scientifically established knowledge.
9.8 Burden of proof
The burden of proof of the existence of anticompetitive conduct and its effects is on the party filing the complaint, while the defendant must prove any claimed efficiencies or justifications associated with the conduct in question.
9.9 Confidentiality
The duty of confidentiality has the status of law. DL 211 regulates this obligation in general terms, establishing, in the first place, that in investigations conducted by the National Prosecutor for Economic Affairs, the latter may order that certain parts of the file be reserved or confidential, provided that: (i) their purpose is to protect the identity of those who have made statements; (ii) they contain formulae, strategies or trade secrets whose disclosure could significantly affect the competitive position of their owner; or (iii) it is necessary to safeguard the effectiveness of the FNE’s investigations.[3]
Likewise, other FNE officers must keep confidential all information, data or background information that may be obtained in the course of their work, especially those obtained by virtue of certain powers, such as: (i) conducting investigations; (ii) requesting background information from authorities; (iii) requesting information from individuals; or (iv) receiving notifications of merger operations. Sanctions for infringement of this prohibition range from suspension of employment and disciplinary measures to fines and even imprisonment.[4]
Likewise, under Title IV of Merger Transactions, there are rules on publicity regarding both the file (in the second phase of investigation) and certain decisions issued by the FNE (in the first phase). In the event of containing confidential information that must be published, public versions of the same will be required in these proceedings, where sensitive information will be redacted.[5] On the other hand, in proceedings before the TDLC, the latter may order confidentiality with respect to third parties that are not parties to the action. In addition, it may even order confidentiality with respect to the other parties to those instruments that contain information whose disclosure could significantly affect the competitive position of their holder.[6]
9.10 Other jurisdictions
In principle, the only judicial authority that intervenes in competition matters, other than the TDLC and the Supreme Court, is the judge of the Court of Appeals of Santiago in charge of authorizing the Carabineros or the Investigative Police, under the direction of the official of the National Prosecutor’s Office for Economic Affairs that indicates the request to proceed with the intrusive measures referred to in section 3 c).
Outside the scope of the TDLC and the Supreme Court, certain antitrust cases have been referred to other courts such as the Constitutional Court. [7]
9.11 Statistics
As of 2023, contentious proceedings lasted on average 763 days (2.09 years) before the TDLC and 428 days (1.17 years) before the Supreme Court. These times have been increasing in recent years in parallel with the growing number of lawsuits and consultations (see next section) in the field of antitrust.[8]
[1] If the TDLC refuses to grant this remedy, the aggrieved party may appeal directly to the Supreme Court on the facts, asking it to amend the erroneous decision issued by the TDLC, consequently allowing the appeal.
[2] For this entire section, see: CentroCompetencia, “Recursos Procesales”, CeCo Glossary, available at https://centrocompetencia.com/recursos-procesales/.
[3] DL 211, art. 39 a).
[4] DL 211, art. 42.
[5] DL 211, arts. 51 et seq.
[6] DL 211, art. 22.
[7] See: CentroCompetencia, “El Tribunal Constitucional reafirma la facultad del TDLC para dictar instrucciones“, Actualidad (May 2023), available at https://centrocompetencia.com/tc-reafirma-la-facultad-del-tdlc-para-dictar-instrucciones/.
[8] See: CentroCompetencia, “¿Cuánto tarda el Tribunal de Defensa de la Libre Competencia y la Corte Suprema en resolver asuntos de libre competencia (2022)”, Investigaciones CeCo (July 2022), available at https://centrocompetencia.com/wp-content/uploads/2022/07/CeCo-UAI-2022-Cuanto-tarda-el-TDLC-y-la-CS-en-Libre-Competencia.pdf
As mentioned above, the TDLC may exercise administrative (also called “non-contentious”) functions through different procedures regulated by DL 211:
10.1 Consultation procedure
Under this procedure the TDLC may:
“Hear, at the request of those who are parties or have a legitimate interest in the facts, acts or contracts existing or to be entered into other than the mergers referred to in Title IV, or of the National Prosecutor for Economic Affairs, matters of a non-contentious nature that may infringe the provisions of this law, for which purpose it may set the conditions to be complied with in relation to such facts, acts or agreements.”[1]
By virtue of this procedure, the consulting party asks the TDLC to rule on whether certain facts, acts or agreements are in accordance with the competition rules and, if not, to establish the necessary conditions so that they can be carried out without harming free competition.
The facts, acts or agreements forming the subject matter of the consultation may concern the consulting party itself or a third party. In the latter case, doubts always arise (and the case law is not settled) regarding the dividing line between the Consultation and Contentious Proceedings.
10.2 General instructions
Under this procedure the TDLC may:
“Issue general instructions in accordance with the law, which must be considered by individuals in the acts or contracts that they execute or enter into and that are related to free competition or that could threaten it”.[2]
It is a regulated, public and participatory procedure, which concludes with a reasoned decision, through which the TDLC issues rules of general application to individuals in acts or contracts (regulatory power), to the extent that they are related to free competition or may threaten it.
This power is limited to the scope reserved by the Constitution to the law and may not contravene rules governing the exercise of the regulatory power of the President of the Republic, as well as technical matters of sectoral competence.
This power has been exercised very restrictively.[3]
10.3 Legislative Recommendations
Through this procedure the TDLC may:
“Propose to the President of the Republic, through the appropriate Minister of State, the modification or repeal of legislative and regulatory provisions that it deems contrary to free competition, as well as the enactment of legislative or regulatory provisions when necessary to promote competition or regulate the performance of certain economic activities that are provided under anti-competitive conditions.”[4]
In this case, the purpose of this non-adversarial procedure is to decide whether it is appropriate to propose to the executive branch of government the repeal, amendment or creation of legislation in order to promote free competition. As its name indicates, this procedure only results in a non-binding recommendation being made to the executive branch.
[1] DL 211, art. 18, No. 2.
[2] DL 211, art. 18, No. 3.
[3] See above: Regulatory framework
[4] DL 211, art. 18(4).
According to article 30 of DL 211:
“The action for damages arising from the issuance by the Tribunal for the Defense of Free Competition of an enforceable final decision will be brought before the same Tribunal and processed in accordance with the summary procedure.
The TDLC must base its decision on the facts established in its judgment that serve as background to the claim, assessing the evidence in accordance with the principle of sound judgment (sana crítica).
This rule establishes in Chile a “follow-on action” type of damage compensation system, i.e., it requires the existence of a prior judgment in which the defendant has been found liable in a competent court (which declares the existence of the unlawful conduct).[1]
Regarding legal standing to bring the action for damages, the following distinctions must be made:
According to Article 51 of Law 19,496 (on consumer rights protection), when, as a result of anticompetitive conduct, the collective or diffuse interest of consumers is affected, the action may be brought by:
In these cases, the action for damages will be subject to the rules of the special procedure for the protection of the collective or diffuse interest of consumers, regulated by Law 19,496, in particular article 51.
The action for damages must be filed by the firms directly affected by the conduct accredited in an infringement proceeding, proving the causal link between the sanctioned conduct and the alleged damage. In these cases, the action will be subject to the rules of the summary procedure, laid down in the Civil Procedure Code (article 30 of DL 211).
[1] The prior decision establishing liability must be “enforceable”, i.e., there must be no appeals pending against it.
Section written by David Toro Ochoa, Adolfo Enrique Gómez Trujillo and Juan Santiago Perez
| EPS | Health Service Entities |
| HHI | Herfindahl and Hirschman Index |
| PBC | Collaboration Benefits Program |
| SIC | Superintendency of Industry and Commerce |
| SMLMV | Statutory Minimum Monthly Wage |
1.1 Legislative framework
Antitrust law in Colombia is governed by the following sources of law:
1.2 Institutional framework
The national competition authority in Colombia is the SIC, headed by the Superintendent of Industry and Commerce. It is an administrative entity and is attached to the Ministry of Commerce, Industry and Tourism, part of the executive branch of government. Within the SIC there are different units; one of these is the Antitrust Unit, which is responsible for handling complaints, conducting preliminary inquiries and, if found to have merit, going ahead with investigations concerning potential restrictions of free competition.
Once the investigation phase has been completed, the Unit produces a Reasoned Report in which it recommends that the Superintendent of Industry and Commerce either to close the investigation or sanction the investigated conduct. Based on the Reasoned Report, the evidence in the file and the opinion of the Advisory Committee, the Superintendent of Industry and Commerce reaches a decision by means of a particular and reasoned administrative act, against which an appeal to the same administrative authority may be filed. Once the administrative stage has been exhausted, the sanctioned parties may file an action for judicial review of administrative acts which imposed sanctions through different means, such as simple annulment or annulment and the reestablishment of rights.
For its part, the SIC’s Judicial Matters Unit exercises judicial functions in cases related to consumer protection, unfair competition and industrial property. Thus, this Unit is in charge of giving judicial rulings on the rights of private individuals or private entities, while the Antitrust Unit adopts decisions applying administrative functions in favor of the protection of the collective rights of free competition. The rulings of the Judicial Matters Unit may be appealed to other national courts.
In addition, pursuant to Law 1,340 of 2009, merger control in specific sectors is entrusted to entities other than the SIC. In this regard, the Special Administrative Unit for Civil Aeronautics may evaluate, approve or reject commercial transactions between aircraft operators. Likewise, the Financial Superintendency of Colombia (the administrative entity that inspects, supervises and controls the financial sector), is responsible for ruling on the viability of corporate mergers or restructurings which exclusively involve entities for which it has responsibility.
1.3 Evolution of the system
Law 155 of 1959 was the first law enacted for the protection of free competition in Colombia and it continues to be partially in force today. Article 1 establishes the “general prohibition” clause of the competition rules. This article includes all practices, procedures or systems that restrict free competition. It is an independent prohibition within the competition rules and is intended to encompass all conduct that potentially restricts competition but which was not expressly prohibited by the rules.
Decree 2,153 of 1992, issued by the Government in implementation of Transitional Article 20 of the Political Constitution of 1991, modified and modernized the administrative structure of the SIC; in addition, it established a series of prohibitions on agreements, acts and abuse of a dominant position. Currently, the structure of the SIC, including the functions related to free competition, is regulated by Decree 4,886 of 2011, as amended by Decree 092 of 2022.
Law 256 of 1996 regulates acts of unfair competition, establishing one (1) general prohibition and twelve (12) specific prohibitions, which include customer poaching, acts causing disorganization, confusion, deception, discrediting other firms, comparison, imitation, exploitation of the reputation of others, violation of secrets, inducement to engage in breach of contract, violation of rules and unfair exclusivity agreements.
A fundamental reform of the free competition regime in Colombia was introduced by Law 1340 of 2009. This statute strengthened the functions of the SIC, especially by establishing this entity as the National Authority for the Protection of Competition and increasing its capacity to impose sanctions. In addition, it regulated issues related to mergers, enshrined the current regime on the collaboration benefit plan and modified the system of offering guarantees.
Subsequent to Law 1,340 of 2009, as a mechanism for providing greater deterrent capacity to the competition regime, Law 1,474 of 2011, known as the “Anti-Corruption Statute”, was enacted, which added Article 410A of the Colombian Criminal Code, which criminalizes collusion in public tenders (“bid rigging”).
1.4 Definition of antitrust acts and scope of action
The general scope of the Colombian competition rules is that “relating to restrictive business practices, i.e. agreements, acts and abuses of a dominant position, and the rules on mergers“.[4] More specifically, the prohibitions are described below:
As mentioned, article 1 of Law 155 of 1959 contains a general prohibition on anti-competitive conduct. This provision prohibits “(…) in general, all kinds of practices, procedures or systems tending to limit free competition and to maintain or determine inequitable prices.” In this regard, this article does not lay down any definitions as such; instead, it covers all conduct that may have this result in the market.
This is defined in Article 50 of Decree 2,153, and comprises six (6) types of prohibited conduct, mainly types of exclusionary conduct.
Article 47 of Decree 2,153 sets forth ten (10) different types of agreements that restrict competition. Article 45 of the same Decree defines agreements as “any contract, agreement, concertation, pact or consciously parallel practice between two or more companies”, pointing out the range of different forms that may come within agreements restricting competition against which legal action may be taken.
Article 13 of Law 1,340 of 2009 regulates the order of reversal of a merger “when this was not notified or was carried out before the expiration of the term that the Superintendency of Industry and Commerce had to declare, if it is determined that the operation thus carried out entailed an undue restriction on free competition, or when the operation had been objected to or when the conditions under which it was authorized are not complied with“. In addition to the above, article 25 establishes fines of up to 100,000 SMLMV (the Statutory Minimum Monthly Wage) for “failure to comply with the obligations to report a concentration or the obligations related to its approval subject to conditions.”
Law 256 of 1996, on unfair competition, establishes that such acts must be carried out in the market and have a competitive purpose in order to come within the scope of the statute. Law 256 defines competitive purposes as the ability of the conduct in question to be objectively capable of maintaining or increasing the market share. Likewise, unfair competition is defined as “any act or fact that is carried out in the market for competitive purposes, when it is contrary to sound commercial customs, to the principle of good commercial faith.“[5]
Notwithstanding the foregoing, Article 6 of Law 1,340 of 2009 also contemplates the possibility of the SIC imposing administrative sanctions for violations of the unfair competition regulations.
This concept is regulated in three different pieces of legislation in Colombia. The first is Law 155 of 1959, which expressly includes it through a per se prohibition, as regards senior executives who sit on the boards of two companies “which have as their purpose the production, supply, distribution or consumption of the same goods or the provision of the same services, provided that such companies, taken individually or jointly, have assets worth twenty million pesos.“[6] The second is Decree 2,153, article 46 of which prohibits all conduct that affects free competition in the markets. Finally, it could also be understood as forming part of the mandatory merger control regime, regarding the concentration of management positions in companies.
1.5 Defendants in antitrust actions
Article 25 of Law 1,340 highlights the fact that sanctions can be imposed “for each infringement and on each infringer (…)“. It is emphasized that the article does not make distinctions between natural or legal persons; thus, the rule does not require a defined subject to be a defendant. Likewise, Article 2 of Law 1,340 indicates that the provision applies with respect to anyone who operates an economic activity, or affects or may affect the operation thereof, and in relation to conduct that has or may have total or partial effects in the national markets. In addition, Article 26 of the same statute empowers the SIC to impose fines of up to 2,000 SMLMV on any person who collaborates, facilitates, authorizes, executes or tolerates conduct that infringe the competition rules.
As regards unfair competition, article 22 of Law 256 of 1996 provides that unfair competition proceedings may be brought “against any person whose conduct has contributed to the performance of the act of unfair competition” where that conduct has been carried out in the market and for competitive purposes. Likewise, the same article clarifies that when the unfair act has been carried out by workers in the exercise of their functions and contractual duties, proceedings must be brought against their employer.
1.6 Extraterritoriality
Article 2 of Law 1,340 of 2009 provides that the scope of the competition rules covers all conduct capable of having an effect on the Colombian market. In addition, with respect to the unfair competition regime, article 4 of Law 256 of 1996 establishes that the law shall apply to all acts of unfair competition whose main effects are felt in the Colombian market. Therefore, this regime also covers conduct engaged in outside Colombia territory, if its effects are felt inside the country.
[1] Article 333 of the Political Constitution of Colombia establishes the following: “Economic activity and private initiative are unrestricted, provided that they come within the limits of the common good. For their exercise, no one may demand prior permits or requirements, unless this is authorized by law.
Free competition is a universal right that entails responsibilities.
The firm, as the basis for development, has a social function that implies obligations. The State will strengthen cooperative organizations and stimulate business development.
The State, by law, will prevent the obstruction or restriction of economic freedom and will prevent or control any abuse by individuals or companies of their dominant position in the national market.
The law will restrict the scope of economic freedom when so required by the social interest, the environment and the nation’s cultural heritage.”
[2] The Single Circular of the SIC is available at https://www.sic.gov.co/circular-unica
[3] See Title VII of the SIC’s Single Circular available at https://www.sic.gov.co/sites/default/files/normatividad/042021/TITULO%20VII%20Res27512021%20%281%29.pdf Annex 9.1 of the Pre-evaluation Guidelines for Mergers available at www.sic.gov.co/sites/default/files/normatividad/022021/Anexo_No_9.1.pdf and Annex 9.2 , Background Study Guidelines for Mergers available at https://www.sic.gov.co/sites/default/files/normatividad/022021/Anexo_No_9.2.pdf
[4] Art. 2 of Law 1340 of 2009, which adds article 46 of Decree 2,153 of 1992.
[5] Article 7 of Law 256 of 1992.
[6] Article 5 of Law 155 of 1959.
Article 2 of Decree 2,153 empowers the SIC to “impose the relevant sanctions for violation of the rules on restrictive trade practices and the fostering of competition”. Regarding the amount of the fines, these are classified according to the nature of the participation in the unlawful behavior. Article 25 of Law 1,340 of 2009 empowers the SIC to fine any economic operator that violates the competition rules up to 100,000 SMLMV or up to 150% of the profit attained through the unlawful conduct, whichever is higher. For the purposes of setting the fine, the following criteria will be taken into account: (i) the impact that the conduct has on the market, (ii) the size of the market affected, (iii) the benefit obtained by the infringer through the conduct, (iv) the degree of participation of the party involved, (v) the procedural conduct of those investigated, (vi) the market share of the infringer, as well as the portion of its assets and/or sales involved in the infringement, and (vii) the net worth of the infringer.
As indicated above, the competition rules also empower the SIC to impose fines of up to 2,000 SMLMV on any person who collaborates, facilitates, authorizes, executes or tolerates conduct in violation of such rules. For the purposes of the fine, the SIC will take into account the following criteria: (i) the persistence in the infringing conduct, (ii) the impact that the conduct has on the market, (iii) the repetition of the prohibited conduct, (iv) the procedural conduct of the person under investigation, and (v) the degree of participation of the person involved.
In cases of unfair competition concerning the acts of public administrations, which come within the responsibility of the Antitrust Unit, the SIC is empowered to impose the same sanctions described above for economic operators and facilitators.
For some types of conduct, such as bid rigging, special sanctions apply. These will be examined in relation to each specific concept.
There are currently no relevant draft bills being discussed.
The main characteristics of the SIC’s organizational structure, which can be found in Decree 4886 of 2011, are as follows:
The Deputy Superintendent for the Protection of Competition is in charge of the Competition Unit and is the person in charge of the investigations related to antitrust practices.
The Antitrust Unit is made up of different working groups, including the following: the Mergers Group, the Group for the Protection and Promotion of Free Competition, the Restrictive Practices Group, the Advocacy Group, the Elite Anti-Collusion Group and the Compliance Department. Each working group has a different focus, as its name indicates.
[1] Section on the General Budget of Revenues, Expenditures, and Investment of the SIC https://www.sic.gov.co/presupuestos-para-la-vigencia
5.1 Applicable Law
Article 47 of Decree 2,153 of 1992 refers to agreements restricting competition in general, without differentiating between vertical or horizontal agreements.
Thus, under Article 47 of Decree 2,153 of 1992 the following agreements are considered to be anti-competitive:
5.2 Statute of limitations
Under Article 27 of Law 1,340 of 2009, the limitation period as regards the SIC’s ability to sanction anti-competitive practices is 5 years from the last event constituting the infringement in question.
5.3 Specific powers of the SIC
The collection of the necessary items of evidence to prove a breach of the competition rules is subject to the principle of freedom of evidence. The SIC is empowered to gather all kinds of evidence that may help prove the commission of the anticompetitive conduct in question. Among the authorized evidentiary means are the following:
5.4 Leniency Program
The Leniency Program was introduced in Colombia through Article 14 of Law 1,340 of 2009, which stated as follows:
“The Superintendency of Industry and Commerce may grant benefits to natural or legal persons that have participated in conduct that violates the competition rules, if they inform the competition authority about the existence of such conduct and/or collaborate with the delivery of information and evidence, including the identification of the other participants.”
This rule was implemented by Decree 2,896 of 2010 and subsequently amended by Decree 1,523 of 2015, which lays down two different types of requirements for leniency applicants to comply with:
At any time before signing the Agreement, the applicant may withdraw its application. Likewise, if the application does not meet the requirements to be admitted to the Leniency Program, the evidence produced may be withdrawn within ten (10) business days.
5.5 Particular sanctions
Article 27 of Law 1,474 of 2011, known as the Anti-Corruption Statute, established the following sanction only applicable to the illicit act of bid rigging in public tenders: “Whoever in a public tender process, public auction, abbreviated selection or contest agrees with another in order to unlawfully alter the contractual procedure” shall be disqualified from contracting with state entities for eight years.
5.6 Criminal sanctions
As mentioned, Law 1,474 of 2011 made collusion in public tenders a criminal offense. This Law added Article 410A to the Colombian Criminal Code and provided that “anyone who, in a public tender, abbreviated selection procedure or official competition (“concurso”) reaches an agreement with another in order to unlawfully alter the contractual procedure, shall be imprisoned for a period of between six (6) and twelve (12) years”. So far, only one judgment regarding this offense has been handed down.
5.7 Trends
In recent years, the Competition Authority has stood out for initiating inquiries and investigations into alleged anti-competitive practices, targeting both private and public entities across various sectors of the economy. In this context, the Authority has frequently relied on the general prohibition of anti-competitive practices established in Article 1 of Law 1.959 as the basis for its actions.
6.1 Abuse of a dominant position
6.1.1 Applicable regulations
The Colombian Constitution provides in general terms that the State’s functions include “preventing or controlling any abuse by persons or companies of their dominant position in the national market.”
This mandate was later developed by Decree 2,153 of 1992, article 50 of which lists, in an exhaustive manner, six (6) types of conduct that may be considered to be abuses of a dominant position.
It should be noted that if a given type of conduct does not come within the assumptions listed in Article 50 of Decree 2,153, the SIC may still sanction this practice by applying the general prohibition contained in Article 1 of Law 155 of 1959.
6.1.2 Dominant position
Article 50 of Decree 2,153 defines a dominant position as “the possibility of determining, directly or indirectly, the conditions of a market.”
In this regard, the SIC has stated that an economic operator will have a dominant position in a market:
“When it has the capacity to significantly and unilaterally modify any relevant variable of the market, that is, if it has sufficient market power to manipulate the competition variables and to behave independently in relation to its competitors and where such decision is intended to be permanent and the market conditions are modified during a significant period, in which both the reaction of its current or future competitors, as well as the decisions of consumers, are insufficient to dissuade the operator from engaging in the conduct in question.”[1]
6.1.3 Abusive behavior
Article 50 of Decree 2,153 lists the following six (6) types of conduct as constituting abuse of a dominant position:
It is emphasized that the different types of abuse of a dominant position set forth in article 50 of Decree 2,153 of 1993 must strictly comply with the factual assumptions indicated in the provision in order for the abuse to exist and the competition rules to have been infringed. However, according to the provisions of article 1 of Law 155 of 1959, “all kinds of practices, procedures or systems tending to limit free competition and to maintain or determine inequitable prices” are prohibited. Given this, those abuses of a dominant position that do not come within the factual assumptions of article 50 of Decree 2,153 of 1993 may come within article 1 of Law 155 of 1959, independently of whether the conduct is exclusionary or exploitative.
6.1.4 Trends
The SIC has followed the same enforcement trend as the European Commission and U.S. competition authorities, which consists of investigating large technology companies for potential abuses of a dominant position arising from practices that prevent third parties from accessing the market or digital distribution channels. In these jurisdictions, competition authorities have recognized that digital platforms, due to their scale, data-collection capabilities, and ability to set access rules, pose structural risks that facilitate the exclusion of other market participants.
In this context, in August 2025, through Decision No. 60099 of 2025, the SIC opened an investigation against Apple for alleged restrictions on the entry of new participants into the digital application distribution market, as well as for potential obstacles to application developers’ access to distribution channels for native applications on iOS and iPadOS. In practice, this would mean that developers would be unable to offer users alternative payment methods for the purchase of digital services and subscriptions within their applications, a situation that Apple is alleged to have used to increase its profits. In addition, the SIC considered that this limitation could adversely affect the user’s experience by restricting service functionalities, payment options, and access to relevant information.
6.2 Vertical restraints
6.2.1 Applicable law
As mentioned above, article 47 of Decree 2,153 of 1992 sets forth the conduct constituting anticompetitive agreements. This provision also cover vertical agreements.
The SIC has specified that vertical restraints can generate “anticompetitive, neutral, or even procompetitive effects, so that the net effect on competition and efficiency is not obvious in principle“.[2] Moreover, as vertical agreements are not anticompetitive per se, their investigation is more complex.
6.2.2 Trends
As already mentioned, the SIC recognized that vertical agreements are not anti-competitive per se. However, a significant number of sanctions are imposed by the SIC, particularly with regard to price fixing in cases where the supplier has sufficient leverage to demand specific prices from the seller. In these scenarios, where the prices set by the seller do not respond to market dynamics but to the demands of the supplier, the SIC has imposed sanctions.
6.3 Other Infringements
6.3.1 Anticompetitive acts
Article 45(2) of Decree 2,153 defines “act” as “any behavior of those who perform an economic activity”. However, it is important to emphasize that this provision makes it clear that the only thing that must be shown is that the party engaging in the anticompetitive acts performs an economic activity. Thus, it is not relevant whether the person performing the economic activity has the form of a commercial enterprise as such; it could also be a business or professional association, a trade association, a natural person or even a public sector entity.
In this regard, according to article 46 of Decree 2,153 of 1992, introduced by article 2 of Law 1,340 of 2009, all “acts” that affect free competition in the market are prohibited. In particular, Article 48 lists some of the acts considered restrictive, such as: (i) infringement of the rules on advertising contained in the consumer protection statute; (ii) influencing a company to increase or maintain its prices; and (iii) refusal to sell or discrimination against a company as “retaliation” for its pricing policy.
6.3.2 Unfair competition
The rules relating to unfair competition are contained in Law 256 of 1996. The purpose of this law is to “guarantee free and fair economic competition, by prohibiting acts and conducts amounting to unfair competition, for the benefit of all those who participate in the market”.
Acts that do not come within the above list may be challenged through the general prohibition contained in article 7 of Law 256. This is the case as long as an act that is contrary to good faith and good customs in the commercial field is detected.
Article 23 of Law 256 of 1996 establishes that unfair competition actions are statute barred after two (2) years have elapsed from when the affected party became aware of the commission of the conduct in question and, in any case, three (3) years after the moment when the conduct took place.
Although in 2018 a distinction was proposed between instantaneous acts of unfair competition (acts carried out at a single point in time) and continuous acts (acts which persist over time) for the purpose of calculating the statute of limitations, that approach is no longer applicable. The Supreme Court, the highest judicial authority in civil matters, ruled that acts of unfair competition, regardless of whether they are continuing or instantaneous, are time-barred two years from the date on which the injured party identifies the infringing party or, in any event, three years from the date on which the conduct was carried out.[4]
This Supreme Court ruling establishes how, in practice, the rules governing the calculation of the statute of limitations set forth in Law 256 of 1996 on unfair competition must be interpreted.
6.3.3 Interlocking
“Interlocking”, also known as “Board Interlocking”, occurs when the same person is a member of the board of directors of two or more firms trading in the same market. Law 155 of 1959, despite being the oldest Colombian antitrust statute in existence, refers to the prohibition of this conduct. However, whether this legislation is valid is in dispute since the article to which it referred was repealed.
There are other regulations that refer to interlocking, such as Article 75 of Law 663 of 1993, or in relation to commercial law, Article 23 of Law 222 of 1995. Even the general prohibition contemplated in Article 1 of Law 155 of 1959 can be used to sanction this conduct.
No cases have been recorded in relation to such conduct under the Colombian competition rules.
The competition rules apply with respect to “anyone who engages in an economic activity or affects such development, regardless of its legal form or nature and in relation to conduct that has or may have total or partial effects on the national markets, whatever the activity or economic sector“, as provided in Article 2 of Law 1,340 of 2009. In this regard, the competition rules apply to any entity that carries on an economic activity, regardless of its nature and the sector in which it operates.
Thus, under Colombian law both the public and private sector must comply with the competition rules, and sanctions may also be imposed on State entities.
[1] Colombia. Superintendency of Industry and Commerce. Reasoned report submitted in Case No. 13-54936 “Pursuant to which it is recommended to close the investigation”. Case Angelcom.
[2] Colombia. Superintendency of Industry and Commerce. Decision 16562 (April 14, 2014). “Pursuant to which sanctions are imposed for violations of the competition rules and orders and instructions are issued”.
[3] Conduct defined in articles 7-19 of Law 256 of 1996.
[4] Supreme Court of Justice Civil Chamber. Judgment SC-370-2023. Reporting Judge (M.P.): Aroldo Wilson Quiroz Monsalvo
7.1 Applicable law
The first regulation in the Colombian legal system regarding concentration control was article 4 of Law 155 of 1959. This regulation established a series of conditions to determine which firms would be obliged to inform the SIC in the event of “merging, consolidating, acquiring control or integrating, whatever the legal form of the proposed transaction”. Today, the series of rules that regulate prior merger control includes Law 1,340 of 2009 and Decision 2,751 of 2021.
7.2 Authorities
The authority in charge of authorizing concentrations is the SIC, specifically the Antitrust Unit. However, Law 1,340 of 2009 provides two major exceptions to the above: (i) in the case of concentrations in the aeronautical sector, the competent authority to authorize such operations is the Special Administrative Unit for Civil Aeronautics,[1] and (ii) in concentrations which only involve entities supervised by the Colombian Superintendency of Finance, the latter is the authority that will decide whether to clear a merger.[2]
7.3 Notifiable transactions
The SIC has defined mergers as “any mechanism used to acquire control of one or more firms, for one firm to acquire control in another existing firm, or to create a new firm in order to engage in certain activities jointly“.[3] Therefore, the way to determine whether there has been a merger is to establish whether control was acquired in a firm, which means “the possibility of directly or indirectly influencing its policy, the commencement or termination of its activity, the change in its activity or the disposal of assets or rights that are essential to the conduct of its business.”[4]
In this regard, the vehicle chosen as a means of implementing the merger is irrelevant. Therefore, whenever control is acquired in a firm, the merger is deemed to have been completed. The merger can take any legal form that facilitates the change of control from one corporate group to another, whether merger by absorption, acquisition of shares, spin-off, purchase of assets, a business alliance or even a franchise agreement.
7.4 Mandatory notification thresholds
A merger must be notified to the SIC in advance if the following two criteria are met.
Firms that meet the subjective and objective criteria must refrain from implementing the merger until: (i) they are authorized by the SIC in the event that they have more than a 20% share of the relevant market; or (ii) they have not received acknowledgement of receipt from the SIC of the notification of the operation where they have less than a 20% share of the relevant market.
7.5 Filing procedure and deadline
The prior control of mergers can be divided into two phases: notification and prior assessment. As mentioned above, prior assessment takes place when the firms involved jointly or individually have a market share of more than 20% in each of the markets involved. By contrast, the parties to a merger with less than a 20% share of the relevant market are only required to notify (i.e. no prior assessment of the merger takes place).
As regards the notification, a document will be sent to the SIC setting out the information required by Decision 2,751 of 2021. The information will either be confirmed as received by the SIC or the need to carry out a prior assessment procedure will be stated within ten days of receipt of the communication.
If the competition authority requires the prior assessment procedure to take place, this will be divided into two phases:[6]
7.6 Appeals
An appeal to the same administrative authority may be filed against a decision adopted by the Superintendent of Industry and Commerce which refuses to authorize, authorizes subject to conditions or approves a merger.
7.7 Breach of the obligation to notify and ex-officio investigations
The merger control process must be carried out before the merger takes place. Article 13 of Law 1,340 provides that firms that are obliged to obtain prior clearance from the SIC for a merger but fail to do so will be subject to an investigation for anti-competitive practices. Additionally, the SIC may order the reversal of a merger if it was not notified or if it was implemented before the SIC could adopt a decision. Reversal will take place if the SIC determines that the transaction in question had anti-competitive effects.
7.8 Substantive test of each type of transaction
In order to establish the concentration and market power of the parties seeking to merge, the SIC uses the following economic indexes to verify the degrees of concentration of the participants in the market:
When deciding whether to approve, approve subject to conditions or refuse to approve the merger, the SIC takes into account the above three indexes when assessing the degrees of concentration existing in the relevant markets analyzed.
[1] Article 8 of Law 1,340 of 2009.
[2] Article 9 of Law 1,340 of 2009.
[3] Colombia. Superintendency of Industry and Commerce. Guidelines for the assessment of mergers.
[4] Article 45(4) of Decree 2,153 of 1992.
[5] Exchange rate conversion date: March 12, 2025.
[6] Law 1,340 of 2009, Decision 2,751 of 2021
[7] Colombia. Superintendency of Industry and Commerce. Decision 23645 of April 27, 2022 “Pursuant to which a merger operation is approved subject to conditions.”
[8] Ibid.
8.1 Applicable law
Article 52 of Decree 2,153 of 1992 contains the essential elements of the administrative procedure to determine the existence of a restrictive business practice. The article has been subject to a series of amendments, particularly by Law 1,340 of 2009. Additionally, the Code of Administrative Procedure and Judicial Review Matters (Law 1,437 of 2011) is also applicable in matters not regulated by the aforementioned rules.
8.2 Commencement of an investigation
The SIC may initiate the preliminary phase of a proceeding ex officio or at the request of a third party, in order to determine the need to open an administrative investigation. Regarding the admissibility of complaints from third parties (citizens), this stage has the purpose of determining whether or not the facts that form the subject matter of the complaint merit a preliminary investigation. Once the facts that are the subject matter of the investigation have been clarified, the preliminary investigation is formally initiated. At this stage, the authority will analyze whether the facts of which it is aware may infringe the competition rules.
It should be noted that the actions taken and the information gathered during the preliminary investigation period are confidential.
8.3 Time limits
The procedure and the time periods of the investigation phases are regulated in Article 52 of Decree 2,153 of 1992, which has been amended and supplemented by Law 1,340 of 2009 and Decree 19 of 2012 (known as the anti-bureaucracy decree). Based on the provisions of this regulation, once the SIC orders the opening of an investigation, it must notify the investigated parties of its decision so that within a period of twenty (20) business days they may submit their arguments and request and adduce the evidence they consider relevant for their defense.
After the investigation has been carried out and the evidence requested and provided by the investigated parties analyzed, as well as the evidence that the SIC decides to gather ex officio, the Deputy Superintendent for the Protection of Competition will summon the parties so that they may give their concluding arguments orally. After this hearing, the Deputy Superintendent shall submit to the Superintendent a reasoned report stating whether an infringement exists. The investigated parties and interested third parties joined to the investigation then have twenty (20) days to submit their observations on the report’s findings. The subsequent stage regarding the Superintendent’s decision to declare or exonerate the investigated parties from liability does not have an express term, other than the assumption that if the decision is unfavorable to the investigated parties, they will have ten (10) days following the notification of the decision to file an appeal with the same administrative authority, which will be resolved by the Superintendent.
8.4 Evidence
The SIC can request information, take witness statements and carry out inspection visits. In the preliminary inquiry phase, the evidentiary material is obtained that will allow it to close the preliminary inquiry or open the investigation phase. In the investigation phase, once the resolution to open the investigation is notified, as indicated above, the investigated parties have twenty (20) business days to request and provide evidence. During the investigation phase, the evidentiary period takes place, in accordance with the rules of the Code of Administrative Procedure and Administrative Disputes and the General Code of Procedure for the investigation, the study of admissibility and the evaluation of the evidence.
8.5 Initial administrative act
Once the preliminary inquiry has been carried out, if the analysis of the evidence gathered makes it possible to infer that anticompetitive conduct may have been committed, the SIC must issue an administrative act by means of which the full investigation begins. The administrative act must be duly reasoned, otherwise it would lack validity.
This initial administrative act must state the violations alleged against the investigated parties by the Antitrust Unit.
The importance of the accusations that are actually made is that they define the sanctions that the SIC may impose at the appropriate procedural moment. In other words, the SIC cannot adopt any decision regarding conduct that is not expressly imputed to the defendant parties in the initial administrative act.
8.6 Notification of the initial administrative act
The investigated parties must be formally notified of the administrative proceedings brought against them. Once they have been notified, this initial decision must be published: (i) on the SIC’s website; and (ii) in a newspaper with a regional or national circulation. Apart from informing the investigated parties about the charges filed against them, this gives interested third parties the opportunity to be formally included in the investigation procedure.
8.7 Defense statements
Once notified of the initial administrative act, the investigated party can exercise its defense rights by filing the written Defense. During this phase, the parties may submit their observations in relation to the facts and evidence contained in the initial act. In addition, the investigated parties may submit or request evidence. Thus, at this stage, the investigated parties may ask the Superintendent of Industry and Commerce to accept certain commitments in order to obtain the early termination of the investigation. Alternatively, they may agree to join the leniency program, accept the accusations made against them or contest them.
8.8 Evidence phase
Once the period to request and provide evidence has expired, an administrative act is issued which formally commences the evidence phase of the investigation. This act (i) resolves the evidentiary requests of the investigated parties and interested third parties; (ii) orders ex officio evidence; and (iii) may resolve other procedural requests raised in the statements of defense filed.
8.9 Hearings and allegations
The evidence phase, depending on the type of evidence to be considered, requires hearings to be organized and held for the giving of testimonial evidence, interrogations and statements of the parties, among others, where an interaction between the authority and the parties under investigation is necessary.
At the end of the evidence phase, the Deputy Superintendent for the Protection of Competition issues a decision which orders the end of the phase and sets a date and time for the hearing of final arguments. In this hearing, the investigated parties (and interested third parties) orally present their case.
8.10 Reasoned report
Upon completion of the oral hearing, the Deputy Superintendent will submit to the Superintendent of Industry and Commerce a reasoned report as to whether there has been an infringement.[1] The report advises the Superintendent on whether a sanction for the infringement of the conduct in question should be imposed. This reasoned report will then be served on the investigated parties and third parties formally joined to the procedure, who will have twenty (20) business days to submit to the Superintendent their observations in relation to its contents prior to the decision being adopted.
8.11 Decision
The Superintendent of Industry and Commerce adopts the decision that ends the administrative action, determining whether the conduct in question violated the competition rules. The Superintendent may terminate an investigation in one of the following ways:
8.12 Appeal to the same administrative authority
With respect to the administrative acts issued by the SIC in the administrative sanctioning procedure, an appeal to the same administrative authority may be filed. Pursuant to this appeal, the same authority that issued the disputed act may clarify, modify, supplement or revoke the decision in dispute. This decision may be filed within ten (10) business days following its notification.
Likewise, the concept of direct revocation has been used as a remedy in administrative sanctioning procedures. Direct revocation is a mechanism through which the administration controls its own acts. This mechanism is used to revoke administrative acts which are shown to be unconstitutional, illegal or in breach of fundamental rights. It can be initiated ex officio at the request of any of the parties affected by the administrative act. It should be noted that its classification as an additional appeal is not clear, however; “it is defined by some as an extraordinary appeal”.[2]
[1] Decree 2(52)153 of 1992.
[2] Colombia. Council of State. Ruling 4983-05. Filed 11001-03-25-000-2005-00114-00- (February 23, 2011). C.P: Gerardo Arenas Monsalve.
The SIC’s decisions on antitrust matters may be challenged through actions for judicial review heard by judges or courts depending on the quantum of the case.
As the decisions issued by the SIC are administrative acts, they must be challenged through an action for annulment and reestablishment of rights. This action is governed by article 138 of Law 1,437 of 2011, which provides that “any person who believes he or she has suffered harm as regards a right protected by a legal rule may request that the nullity of the particular administrative act, express or presumed, be declared and his or her rights be restored; he or she may also request that any loss or damage be remedied.”
The action will be successful if it is proven that the act was issued in any of the following circumstances: in violation of the rules on which it should be based; in an irregular manner; applying false reasoning, or beyond the powers of the person who issued it.
As stated above, the action may be heard by either of the following:
10.1 The Promotion of Competition
In general terms, “the Promotion of Competition” refers to the promotion of the culture of free competition. In a narrower sense, it refers to Article 7 of Law 1340 of 2009, pursuant to which the SIC can give a prior opinion on competition matters covered by draft regulations that are proposed by the public bodies forming part of the executive branch in Colombia. Thus, under the applicable provision, the public bodies in question must inform the SIC about the administrative acts they intend to issue where these may have an impact on free competition.
The opinion issued by the SIC is not binding; however, if a public body intends to deviate from the opinion given by the Authority, they must expressly state their reasons for doing so.
One of the main features of this concept is that it obliges public authorities with regulatory powers to inform the SIC of their actions. Moreover, following the amendment to article 7 of Law 1,340 of 2009 introduced by Law 1,955 of 2019, the SIC can informally obtain information about the state regulatory proposals which have an impact on competition. Decree 2,897 of 2010, which regulated the concept, establishes that the SIC will give its opinion within a period of 10 to 30 business days, depending on the type of regulation that is to be issued.
Since the regulatory proposals subject to the Promotion of Competition must affect free competition, the SIC issued Decisions No. 44649 of 2010, which raises the questions to be answered by public authorities in order to assess whether their proposed regulation meets this requirement and should be reported to the SIC. If these questions are answered in the negative, the public authority will not have to inform the SIC of the draft regulation; on the contrary, if any of the answers is positive, the duty to inform exists.
Article 7 of Law 1340 of 2009 establishes that the SIC has the choice of whether to issue an opinion. Thus, the SIC may issue its opinion indicating that the regulation does not give rise to any restriction on competition or, on the contrary, indicating that it has negative consequences for competition, or finally, it may choose not to give any opinion regarding the project in question. In the latter case, if the SIC issues no opinion, this is deemed to amount to its acceptance that the project does not represent an obstacle to competition. Finally, it is important to emphasize that if the Promotion of Competition stage is omitted, this may be a ground for annulment of the administrative act that was issued without taking it into account. Therefore, it is more than a simple formality for those entities that must seek the SIC’s opinion in terms of the Promotion of Competition; rather, it is a duty which must be complied with to avoid proposed state regulations that have an impact on competition from being rendered invalid.
10.2 Collective Action (Acción Popular)
(i) Applicable law
Under the Colombian legal system, the collective action (acción popular) is a procedural mechanism which aims to protect collective rights and interests under Law 472 of 1998. Such action may be brought to prevent contingent harm, put an end to danger, threats, infringement, or harm to collective rights and interests, or to restore conditions to their prior state where possible.
Given this definition, it can be seen that collective actions serve to protect the rights of the community in two ways: (i) ex ante, to prevent harm that may occur and in respect of which there is a threat or risk of occurrence; or (ii) ex post, to restore conditions to the state they were in before the harm occurred. With regard to compensation or redress, the ex post effect of a collective action is particularly important, since through this legal mechanism any individual who takes legal action in order to protect the community, may request that the infringing party restore the conditions that existed prior to the anticompetitive conduct.
Given that free economic competition is a collective right intended to safeguard the general and public collective interest, a popular action may be brought to ensure its protection in Colombia.
(ii) Statute of limitations
The statute of limitations for a popular action is five years from when the anticompetitive conduct took place.
10.3 Market Studies and Reports
The SIC has conducted multiple market and sectoral economic studies, in order to strengthen its institutional capacity and provide it with tools in order to take decisions related to aspects, not only for the protection of competition, but also consumer protection, industrial property, and others.
The SIC has prepared economic studies regarding different products such as cotton, balanced food, cocoa, the maize production chain, beef, rice. It has also covered the health sector, retail, postal, oil pipelines, access to credit, among others. These reports seek to describe the characteristics of the products in different markets as well as the industries involved.[1]
In addition, sectoral economic studies prepared by the SIC’s Economic Studies Group are also worthy of note. These are prepared by the SIC as input for the formulation of recommendations for the implementation of sectoral policies and for planning purposes as regards the different Units. These sectoral economic studies include the following:[2]
The sectorial studies conducted by the SIC seek to analyze the behavior of different sectors, their trends, national and international variables and to present, in some of them, an analysis of possible market dominance and concentration.
10.4 Guidelines
The SIC has issued non-binding booklets that aim to give guidelines on the application of the competition rules to: (i) collaboration agreements between competitors, (ii) associations of companies and associations or professional associations, (iii) merger assessment, (iv) good practices in the contracting of goods and services, and (v) guidance on the design of antitrust compliance programs, as explained below:
10.5 Opinions on draft legislation
With regard to the draft decree proposing to amend the requirements to hold the position of Superintendent of Industry and Commerce, a reduction in the professional and academic requirements for this position could undermine the technical quality of the enforcement of the competition rules in Colombia. The leadership of the SIC requires a high level of legal and economic specialization, given the complexity of the markets being assessed, the increasing sophistication of anticompetitive conduct, and the need to adopt high-impact decisions to ensure consumer protection and the proper functioning of markets.
Reducing the required years of experience, eliminating the requirement of postgraduate (Master’s-level) studies, and removing procedures such as the public call for applications would lower the minimum standards necessary to ensure that the position is held by individuals with the suitability, independence, and technical expertise demanded by the role. From an institutional perspective, relaxing these requirements increases the risk of appointments lacking the specialized profile required by the SIC. As a result, this may affect the consistency, credibility, and quality of its decisions. Moreover, such changes run counter to recommendations issued by the OECD aimed at strengthening competition authorities.
[1] Economic studies published by SIC: https://www.sic.gov.co/estudios-economicos
[2] Sectoral economic studies published by SIC: https://www.sic.gov.co/documentos-elaborados-por-el-grupo-de-estudios-economicos
[3] https://sic.gov.co/sites/default/files/files/CARTILLA_ACUERDOS%2019-03-2015.pdf
[4] https://www.sic.gov.co/recursos_user/documentos/CARTILLA_GREMIOS.pdf
[5] https://sic.gov.co/sites/default/files/files/Guia%20Concentraciones%20Empresariales%2004-11-15.pdf
[6] https://sedeelectronica.sic.gov.co/otras/guia-de-orientacion-para-el-diseno-de-programas-de-cumplimiento-en-materia-de-libre-competencia-economica
When a market operator engages in conduct that is contrary to the competition rules, it does not only violate the law in terms of the general interest, since its behavior also affects individuals, both legal and natural persons. This means that the competition rules can also be relied on by private individuals and entities to seek redress for the harm they have suffered as a result of anticompetitive conduct.
In order to protect free competition, the SIC has administrative powers to investigate and sanction anticompetitive conduct. However, as regards compensating loss caused to individuals, it does not have a particular regime for compensating damages. As a result, recourse must be had to the general civil liability regime as the appropriate means of seeking compensation for damage caused by anticompetitive conduct. This can be done either through civil liability actions, popular actions or class actions.
Article 2,341 of the Colombian Civil Code establishes that: “Whoever has committed a crime or negligence which has caused damage to another, shall pay compensation, without prejudice to the main penalty imposed by law for the negligence or crime committed“. Thus, this article makes it clear that whoever infringes the competition rules is also liable for the harm that his or her actions cause to individuals. Actions seeking damages in these cases may be brought before the ordinary courts. The foregoing is without prejudice to the sanctioning powers of the SIC in the administrative regime.
Such proceedings follow the same rules as ordinary civil liability proceedings, where the plaintiff has different ways of seeking damages. For example, an individual or a class action may be filed, depending on the type of result sought. Both types of action must be brought in the ordinary courts.
However, private damages actions for breaches of the competition rules are not yet firmly established in Colombia. If the aim is to develop, alongside the administrative procedure, an effective system in this regard, the general civil liability procedure rules must be supplemented with provisions that make specific reference to the competition rules.
It should be noted that although such actions have been filed in the civil courts, no final judgment regarding anti-competitive behavior has yet been given by any court.
11.1 Individual actions
The definition of civil liability is contained in articles 1,604 to 1,617 and 2,341 of the Colombian Civil Code and relates to the action for damages brought in the ordinary courts by a person who has suffered loss or damage.
This action gives rise to a civil liability proceeding in which the judge must determine whether one or more parties are liable for the damage caused to another person. For this purpose, the judge must study the different elements that must exist for liability to be found, such as: fault, the facts giving rise to the loss or damage, the existence of loss or damage and the causal relationship between these latter two elements. If liability is proven, the judge will order the defendant to pay damages for the loss or damage suffered by the victim.
The limitation period for civil actions is ten years from when the anticompetitive conduct took place.
11.2 Class actions
When there are several victims of anticompetitive conduct and they satisfy uniform conditions with respect to the conduct carried out, they may jointly file a class action in order to obtain legal recognition of the harm caused to them and compensation to remedy their loss, pursuant to article 3 of Law 472 of 1998.
In class actions, the affected parties may jointly seek damages for the loss or damage caused to the group by the anticompetitive effects of the restrictive conduct. This action has the advantage of opening the doors to a special procedure to “determine liability for the carrying out of certain facts that infringe the individual interests of a large number of persons” and thus “simplify the access to the administration of justice” for a group of victims.
In short, a class action means that an individual who has suffered the effects of anti-competitive conduct (and who is part of the group affected) can avoid bringing an individual damages action, with the cost and the time that this entails, since they can form part of the relevant class action.
According to Law 472 of 1998, the limitation period for class actions is 2 years from when the anticompetitive conduct ended.
11.3 Action for a declaration of unfair competition
Article 20(1) of Law 256 of 1996 establishes the action for a declaration of the existence of unfair competition. This means that those who have been affected by unfair competition acts can obtain a court order declaring the existence of such acts and ordering the infringing party to remove the harmful effects caused and to compensate the loss or damage suffered. The applicable procedure is governed by the General Code of Procedure.
According to article 23 of Law 256 of 1996, unfair competition actions are statute barred two years after the moment when the injured party became aware of the conduct in question and, in any event, three years after the time that the act in question was carried out.
Chapter written by Mario Navarrete Serrano (Pérez Bustamante & Ponce)
| COA | Administrative Organic Code |
| CODEG | General Organic Procedural Code |
| Constitution | Constitution of the Republic of Ecuador |
| CRPI | First Instance Resolution Commission |
| Decision 608 | Andean Community Decision 608 of March 28, 2005 |
| IGT | General Technical Office |
| Information processing instructions | Instructions for information processing within the Competition Supervisory Authority (SCE) |
| IGPA | Administrative procedural management instructions |
| INCCE | National Office for Control of Business Concentrations |
| INICAPMAPR | National Office for Investigation and Control of Abuse of Market Power, Restrictive Practices and Agreements |
| INICPD | National Office for Investigation and Control of Unfair Practices |
| INAC | National Competition Advocacy Office |
| INJ | National Legal Office |
| Board | Market Power Regulation Board |
| LORCD | Organic Law on the Regulation of Unfair Competition |
| LORCPM | Organic Law for the Regulation and Control of Market Power |
| LOTAIP | Organic Law on Transparency and Access to Public Information |
| RLORCPM | Regulations for the application of the Organic Law for the Regulation and Control of Market Power |
| SCE | Competition Supervisory Authority |
| Supervisor | Competition Supervisor |
| RBU | Unified Basic Remuneration |
The system of competition in Ecuador is governed by the following legislation:
There is debate regarding the power of the SCE to issue general binding rules (i.e., ex ante regulation). In the Supervisory Authority’s initial years some of these guides were issued but were subsequently held to be illegal or simply repealed[10].
On the other hand, there are few Supreme Court cases which have engaged in a substantive analysis of competition rules. One of them is the RECAPT case[12], in which the Court concluded that there are no anticompetitive practices by object, an interpretation that has been questioned by the SCE in its subsequent decisions[13]. According to the Court, all practices are subject to a factual and contextual analysis, shifting the burden of proof to the authority.
Apart from this case, which is not currently adopted as a reference, there are others such as the Kimberly Clark decisions[14], in which the Court did not make rulings involving a substantial change.
The system is organized by means of two institutions: the first, with regulatory powers; and the second, in charge of control, supervision and imposition of penalties.
The Market Power Regulation Board has governing power in the formulation and planning of public policies within the scope of the LORCPM, as well as the power to issue regulatory instruments in relation to the LORCPM[22]. The Board belongs to the executive power and is made up of delegates from various ministries.
On the other hand, the Competition Supervisory Authority (SCE) is the body in charge of control, supervision and imposition of penalties. The SCE operates under an institutional model in which it directs the investigations and decides on the punishment of anticompetitive practices[23]. The investigation stage is the responsibility of the various specialized offices according to the type of conduct analyzed. The offices conduct the investigative procedure and present a final report to the CRPI.
The CRPI is the collegiate body that hears and decides cases which, on the basis of the findings of the offices and the explanations of the economic operators, determines whether there is an infringement of the law. Its resolutions can be contested before the Supervisor or before the ordinary judicial review courts.
The SCE forms part of the Transparency and Social Control Function.[24]
The 1979 Constitution contains the first rule on free competition in Ecuador, which provided that “[a]ny form of abuse of economic power, including unions and groupings of enterprises which tend to dominate national markets, eliminate competition or arbitrarily increase profits is forbidden and punished by law”. Subsequently, the 1998 Constitution included an article which stipulated: “[w]ithin the social market economy system the State shall be responsible for: […] Promoting the development of competitive markets and activities. Enhancing free competition and penalizing, in accordance with law, monopolistic practices and others that impede and distort it”.
Despite the inclusion of these provisions, no laws were enacted to establish specific competition rules in Ecuador. For example, in 1999, 2005 and 2009, draft legislation was submitted to the Ecuadorian parliament but did not get sufficient votes to be passed.
The unsuccessful attempts to establish a system of its own were made up for by Decision 608 of the Andean Community, issued in March 2005. Article 51 of the Decision established a transitional regime which provided that it would come into force in Ecuadorian territory two years after it was published in the Official Gazette of the Cartagena Agreement. Pursuant to this transitional provision, the Competition Subsecretariat was created within the Ministry of Industry and Trade. In 2009 the Subsecretariat was entrusted with the investigation of anticompetitive practices[25].
In October 2011, a local competition regime was adopted for the first time. The LORCPM, based on the Spanish Competition Law[26], was the first piece of domestic primary legislation on the subject.
To date only a single substantive amendment has been made to the LORCPM, in May 2023[27], which included certain important items:
With respect to unfair competition, the next major milestone occurred in August 2025 with the enactment of the Organic Law on the Regulation of Unfair Competition (LORCD). Previously, unfair practices were regulated by Articles 25 to 27.1 of the LORCPM, which were repealed after the enactment of the LORCD. This new legislative framework makes significant changes to the existing legal framework:
(i) It distinguishes simple unfair practices, which are subject only to civil liability, from aggravated unfair practices, in relation to which fines may be imposed by the SCE.[31]
(ii) Sanctions have been increased. Aggravated unfair practices may now be sanctioned with fines of up to 12% of the company’s gross turnover in the previous year, making them among the highest in the world in this field.[32]
(iii) New prohibitions are added to the list of typical unfair practices, such as discriminatory acts, pyramid selling, and unlawful or covert advertising (native advertising). The new legislation also amends the content of existing prohibitions, for example by expanding the scope of inducement to commercial infringement so that any infringement, and not only material ones, may be deemed unfair.[33]
(iv) It reintroduces abuse of economic dependence as a form of unfair practice and makes it subject to fines.[34]
(v) It eliminates the reversal of the burden of proof for misleading conduct. In the past, the SCE made extensive use of this mechanism because the LORCPM required the accused party to prove that its statements were true, rather than the other way round. Under the new regime, the SCE must prove the allegations it raises in all cases.[35]
(vi) Although the LORCD does not regulate economic concentrations, its transitional provisions repealed the infringement for notifying a concentration transaction more than eight days after it is agreed. The obligation to notify still exists in Article 16 of the LORCPM, but failure to comply with this obligation is no longer legally defined as a minor infringement.[36] This does not mean that gun-jumping has been eliminated: the closing of a concentration and the carrying out of post-closing commercial acts without the required authorization continue to be sanctioned.
1.4 Definition of prohibitions and scope of action
The LORCPM classifies as infringements abuses of market power, collusive agreements and restrictive practices, as well as regulating business concentrations. The channels for protection under the law are market efficiency, fair trade and general consumer welfare. The LORCD prohibits unfair practices in order to ensure free and fair markets and to protect the interests of those participating in the competitive process.
Thus, the SCE is the authority responsible for interpreting and applying the LORCPM and the LORCD, in cases of aggravated unfair competition practices or antitrust infringements, resolving specific cases and defining criteria to be used as a reference for public policy in relation to antitrust and unfair competition.
The scope of action of the SCE in relation to the ex-post substantive aspects of the regulation are addressed in articles 9 and 11 of the LORCPM and article 5 of the LORCD.
As regards ex-ante control, article 14 regulates the system of control of concentrations. In addition,
In addition, Articles 29 and subsequent articles regulate the regime for the granting of public resources by the State.
Finally, the Regulation Board can impose restrictions on competition by means of a reasoned resolution, provided that it pursues the development of a national industry (State monopoly, strategic sectors and public services) or to promote the popular and solidarity economy[39].
1.5 Defendants in antitrust actions
The LORCPM and the LORCD take a functional approach to determining who is subject to its rules, establishing that any operator that engages in economic activities, regardless of its legal nature or lucrative purpose, must comply with the competition rules.
According to article 2 of the LORCPM and article 2 of the LORCD, the law applies to all individuals and legal entities, public or private, national or foreign, which currently or potentially engage in economic activities, both within and outside national territory, provided that such activities have effects in Ecuador. This includes exchanges of goods and services in the market, including by public procurement.
Thus, even public entities can infringe competition rules when their actions are considered economic activities and do not constitute an exercise of essential public powers. Furthermore, the law allows anticompetitive behavior to be attributed not only to the operator that engages in such behavior, but also to the entity that controls it, provided that it is shown that both act as a single economic unit.
Article 2 of the LORCPM provides that the law is applies to economic activities within Ecuadorian territory, as well as to those engaged in outside the country, provided that they produce or may produce effects on the national market. This allows the SCE to investigate and penalize anticompetitive behavior of foreign operators when it affects competition in Ecuador.
[1] Article 335, Constitution of the Republic of Ecuador, Official Registry (R.O.) 449 of October 20, 2008.
[2] LORCPM, R.O. Supplement 555 of October 13, 2011.
[3] Article 9, LORCPM.
[4] Article 11, LORCPM.
[5] Article 14, LORCPM.
[6] Article 29, LORCPM.
[7] Article 28, LORCPM.
[8] Ecuador has an obligation to abide by the decisions of the Court of Justice of the Andean Community (TJCA) under Article 2 of the Treating Creating the TJCA. Also, under Article 425 of the Constitution, international treaties form part of Ecuadorian law, which strengthens the binding force of such decisions within the national legislative framework.
[9] Article 503, Organic Code of the Social Economy of Knowledge. Official Registry Supplement No. 899 of December 9, 2016.
[10] Regulation Board of the Organic Law for the Regulation and Control of Market Power. Resolution No. JRCPM-SA-2023-003 of September 29, 2023. Manual of Good Commercial Practices for the supermarket sector and/or similar sectors in relation to their suppliers that are micro and small enterprises, popular economy organizations, craftspersons and small producers.
[11] In Ecuador, for Supreme Court decisions to be binding, there must be three rulings on the same concept in the same way. Article 185 of the Constitution of the Republic provides that: “Judgments issued by specialized chambers of the Supreme Court which repeat on three occasions the same opinion on the same point, shall require that the ruling is referred to the full Court so that it deliberate and decide within sixty days on its approval. If no ruling is issued within that period, or it ratifies the criterion, this opinion shall constitute binding case law.”
[12] Supreme Court. Judgment of January 27, 2023. Case No. 17811-2016-01852.
[13] SCE. Resolution of November 2, 2022. Case No. SCPM-CRPI-016-2022.
[14] Supreme Court. Judgment of September 10, 2021. Case No. 09802-2017-00767.
[15] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2023/09/Gui%CC%81a-de-aplicacio%CC%81n-de-las-conductas-desleales-contenidas-en-la-LORCPM-2020.pdf
[16] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2023/09/Gui%CC%81a-para-la-investigacio%CC%81n-de-acuerdos-y-pra%CC%81cticas-restrictivas-2021.pdf
[17] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2021/09/Guia-Compliance-en-Competencia-SCPM-INAC-DNPC-002-.pdf
[18] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2023/09/Gui%CC%81a-para-la-investigacio%CC%81n-de-conductas-de-abuso-del-poder-de-mercado-2021.pdf
[19] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2022/03/Guia-de-buenas-practicas-para-la-prevencion-de-acuerdos-colusorios-entre-oferentes-de-contratacion-publica-.pdf
[20] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2023/09/Gui%CC%81a-de-ana%CC%81lisis-para-determinar-el-falseamiento-al-re%CC%81gimen-de-competencia-por-el-cometimiento-de-las-conductas-desleales-contenidas-en-la-LORCPM-2023.pdf
[21] Available at: https://www.sce.gob.ec/sitio/wp-content/uploads/2025/09/Guia-Analisis-de-Operaciones-de-Concentracion-Economica.pdf.
[22] Article 35, LORCPM and Article 14, RLORCPM.
[23] Article 36, LORCPM.
[24] A particular feature of the Ecuadorian legal system is that instead of having three branches of government, Ecuador has five. In addition to the traditional branches (legislative, judicial, and executive), the Constitution of Ecuador includes (iv) the Transparency and Social Control Function and (v) the Electoral Function. The bodies that belong to the Transparency and Social Control Function previously formed part of the executive branch and generally perform regulatory functions.
[25] Executive Decree No. 1614. Official Registry No. 89 of October 2, 2009. The Subsecretariat heard the first free competition cases in Ecuador, for example: ARCA Ecuador S.A. (2011), Pfizer (2009) and LAN-Tame (2009). Of these, the Pfizer case culminated in a penalty for abuse of an intellectual property right.
[26] Spanish Competition Law 15/2007 of July 3, 2007.
[27] LORCPM, amended on May 16, 2023, Official Registry Supplement 311. Organic Law Amending Various Pieces of Legislation, for the strengthening, protection, enhancement and promotion of popular and solidarity economy organizations, craftsperosns, small producers, micro enterprises and entrepreneurial ventures, published in May 2023. In relation to the law, see: Brown, Alberto, “El proyecto de reforma a la ley de competencia ecuatoriana: Aspectos negativos” (Ecuadorian draft competition law: Negative aspects), CentroCompetencia, January 25, 2023, available at: https://centrocompetencia.com/proyecto-de-reforma-a-la-ley-de-competencia-ecuatoriana-aspectos-negativos/; Navarrete, Mario, “La reforma publicada de la ley de competencia no es la que la Asamblea Nacional aprobó” (The published reform of the competition law is not what the National Assembly passed), Centro Competencia, July 19, 2023, available at: https://centrocompetencia.com/reforma-publicada-ley-competencia-no-es-asamblea-nacional-aprobo/.
[28] This conduct was reintroduced as a form of unfair competition by article 6 of the LORCD.
[29] SCE. Resolution of February 9, 2023. Case No. SCPM-INJ-22-2022.
[30] Article 8 of the former RLORCPM included the following specific list of anticompetitive practices by object: (i) fix on a concerted basis or manipulate prices, interest rates, charges, discounts, or other commercial or transactional terms, or exchange information for the same object or with the same effect; (ii) allocate, restrict, limit, suspend, impose obligations or control on a concerted basis production, distribution or marketing of goods or services; (iii) allocate on a concerted basis customers, suppliers or geographical areas; (iv) acts or omissions, agreements or concerted practices are also subject to the presumption established in this article.
[31] Article 4, LORCD.
[32] Article 54, LORCD.
[33] Article 6, LORCD.
[34] Article 6, LORCD.
[35] Article 19, LORCD.
[36] Transitional Provision 3, LORCD.
[37] Article 4, LORCD.
[38] Article 31, LORCPM.
[39] Article 28, LORCPM.
Under article 78, infringements of the law can be classified as minor, serious and very serious. The LORCPM provides that fines will be calculated, as a general rule, on the basis of the infringing economic operator’s total turnover[1]. The sanctions laid down by the LORCD are based on the same approach. However, that possibility is qualified by article 96 of the RLORCPM, which provides that penalties must take into account only the infringing economic operator’s revenue in the relevant market.
In the reform of the instructions on fines[2], however, the SCE again envisaged the possibility of penalties being calculated on the basis of the infringing operator’s total turnover, for certain infringements that do not have an anticompetitive element (such as impeding an inspection or supplying misleading information); specifically for those in which there are prior obligations of which the infringing party is in breach, as in the case of violation of SCE resolutions.
In any event, irrespective of the base amount for the calculation, minor infringements are penalized by a fine of up to 8%, serious infringements by a fine of up to 10% and very serious infringements by a penalty of up to 12% of total turnover. The specific calculation formula and the variables for each penalty are explained in detail in the penalties guide.
For cases of unfair competition, article 54 of the LORCD provides that sanctions may be imposed of up to 12% of the infringing party’s gross turnover, with regard to all of its economic activities in the financial year immediately preceding the issuance of the decision. To date, no implementing regulation has been issued to further clarify or qualify this provision.
Apart from this general regime there are two exceptions. The first one applies in case the turnover cannot be calculated: the fine is based on a certain number of RBUs, depending on the classification of the infringement. In 2026 the RBU is equal to USD 482 and therefore the approximate calculation is as follows:
The second one applies when the profits obtained by the infringement exceed the thresholds established in the Law, for which the penalty will be equal to the profits obtained. This exception has been used in cases of collusion in public procurement, where the persons investigated are individuals[3].
The SCE may order the divestment, division or splitting of economic operators when it finds that it is the only viable measure to restore competition in the market.
As regards the liability of individuals, the LORCPM allows penalties to be imposed on legal representatives and members of the management bodies of firms that have committed a very serious infringement, with a fine of up to 500 RBU[4], depending on the degree of involvement in the conduct.
In order to determine the degree of involvement, the methodology for the imposition of fines for infringements of the law provides that the following will be taken into account: (i) the type of company; (ii) the type of shareholder or member; (iii) the system of governance; (iv) the voting capacity of the person penalized in the decision; and (v) the voting or management intention[5].
Apart from the system of penalties, the LORCPM includes the possibility of an operator presenting cessation commitments at any time during the investigation, and even before one commences. The distinctive feature of cessation commitments in Ecuador is that they require express acceptance of an infringement, as well as an assurance of cessation of the conduct and a proposal to rectify its effects. The SCE can accept, alter or reject the proposal within forty-five days from when it is presented[6].
[1] However, article 96 of the RLORCPM, together with resolution SCE-DS-2023-18, provides that the fine shall be calculated on the “turnover achieved in the relevant market or markets affected by the infringement under investigation”. In practice, the SCE refers to the regulations and not to the law.
[2] SCE. Resolution No. SCE-DS-2023-18 of November 16, 2023, Official Registry Supplement 348. Methodology for determining the amount of fines for commission of infringements of the Organic Law for the Regulation and Control of Market Power.
[3] SCE. Case No. SCPM-CRPI-025-2021.
[4] Article 79, LORCPM.
[5] Article 8, Methodology for the imposition of fines for infringements of the LORCPM.
[6] Article 89, LORCPM.
3.1 Competition Supervisory Authority[1] (LORCPM, articles 36 – 52)
On the other hand, the decision-making body of the SCE is the First Instance Resolution Commission, which is a collegiate body made up of five commissioners, appointed by the Supervisor[5].
[1] On September 3, 2024 Hans Willi Ehmig Dillon took up the post of Competition Supervisor.
[2] Appointment of the First Competition Supervisory Authority. Resolution No. CPCCS-PLE-SG-021-E-2024-0111 of April 7, 2024.
[3] This information refers to October 2025, according to the staff distribution published by the SCE.
[4] The principal activity of this office is the preparation of market studies.
[5] Article 44.8, LORCPM.
[6] Amount allocated in January 2026.
Like in the European system, in Ecuador agreements can be anticompetitive by their object or by their effect.
An anticompetitive agreement by object is that which, due to its very nature or purpose, impedes, restricts or distorts competition, there being no need to show its effects on the relevant market. Under article 8 of the RLORCPM, anticompetitive practices by their object are those of a horizontal nature which, directly or indirectly, involve price fixing, limitation of production, distribution or marketing, allocation of markets, and collusive practices in public procurement processes.
On the other hand, anticompetitive behavior by effect requires proof that it has given rise, or at least may give rise, to adverse effects on competition. In these cases, it is necessary to undertake an analysis of the real or potential impact of such practices on the relevant market. Behavior by effect can benefit from the de minimis rule.
According to the de minimis rule, restrictive practices and agreements by effect will not be penalized when, due to their small market share of the operators executing the conduct, are incapable of having an actual or potential effect on competition. In the case of horizontal agreements, the parties involved must have a joint market share of less than 14%. In the case of vertical agreements, the joint share must be below 15% for the practice to be considered not punishable.
However, when in a relevant market there are multiple similar agreements entered into by different suppliers or distributors – known as cumulative effects – the possibility of applying the de minimis rule is further restricted. In these cases, the market share threshold is reduced to 5% per participant. A cumulative effect is considered to exist when at least 30% of the market is covered by parallel networks of agreements, which increases the risk that such practices, which seem harmless in isolation, may significantly affect competition when taken together.
Finally, restrictive practices and agreements which contribute to improving production, marketing or distribution of goods and services, or that promote technical or economic progress, may be exempt from the prohibition, provided that they fulfill the following conditions:
In addition, article 48 of the LORCPM, in relation to the investigative powers of the SCE, points out that it may demand from any economic operator or public or private sector institution, the reports, information or documents that it considers necessary for the purpose of conducting its investigations, and summon those connected with the cases in question to testify.
The SCE also has powers to carry out raids, order other corrective measures, impose penalties, and in the case of collusive agreements, appoint a temporary auditor for the purpose of monitoring compliance with the corrective measures imposed by the authority[1].
To be eligible for the benefit, the economic operator must comply with the following specific requirements:
If an economic operator fails to comply with the requirements to obtain the full exemption, it may still benefit from a reduction of the fine if its cooperation contributes evidence with significant added value to the investigation. The percentage reduction is determined according to the order in which the economic operators present their information:
In addition to the penalties imposed on economic operators, article 79 of the LORCPM provides for the possibility of imposing penalties on legal representatives and members of management bodies of infringing companies, of up to 500 RBU (USD 235,000[3]), according to their degree of involvement in the unlawful conduct.
The procedure to avail oneself of the exemption or reduction of fines consists of the following stages[4]:
Although misappropriation of public funds is classified as an offense, the SCE does not currently refer cases of collusion to the Public Prosecutor’s Office. Ultimately the classification of offenses in the Criminal Code does not share the purpose pursued by competition rules, and therefore, does not pursue as its principal purpose the deterrence of anticompetitive behavior. Some years ago, the practice was different and the SCE usually sent information regarding collusion in public procurement to the Public Prosecutor’s Office, even in cases of cooperation, thus limiting the effectiveness of its incentives.
At the same time, there is an ongoing discussion about whether families are a single business group. The Supervisory Authority’s position seeks to combat the common practice where different members of a family participate as independent operators in public procurement processes. This strict position favors the imposition of fines but may be excessive when the rationale is applied to business concentrations or the calculation of fines.
Indeed, the most important case in which this theory was applied led to a penalty for five companies with a fine of USD 176,000, in which the argument that there was an agency relationship between them was not accepted[8].
In relation to the leniency program, unfortunately, following the the Kimberly Clark case, in which the SCE declassified information introduced as part of a self-report leniency process, a high degree of mistrust in the cooperation process arose[9]. The current administration has endeavored to change that perception, by issuing new rules on the handling of confidential information[10], but the number of leniency applications has not rebounded.
[1] Article 76, LORCPM
[2] Article 70, LORCPM.
[3] Bearing in mind that the RBU for 2025 is equal to USD 470.
[4] Instructions for the grant of benefits of exemption from or reduction of an SCE fine. Resolution No. SCPM-DS-2019-38 of October 2, 2019.
[5] Organic Integral Criminal Code. Article 278: […] persons who act pursuant to State authority who, for their own benefit or for the benefit of others take advantage of, appropriate, divert or use arbitrarily movable or immovable property, public funds, bills representing them, items, instruments or documents that are in their possession by virtue of or due to their office, shall be penalized by a prison sentence of between ten and thirteen years. […]
[6] OECD (2021) Peer reviews of competition law and policy of the OECD and the Inter-American Development Bank: Ecuador. https://web-archive.oecd.org/2021-03-31/583641-ecuador-examenes-inter-pares-sobre-el-derecho-y-politica-de-competencia-2021.pdf
[7] Some recent cartel sanction cases include the Prosostenible case (CRPI, Resolution of April 14, 2023, Docket No. SCPM-CRPI-031-2022), the Posamiconstru case (CRPI, Resolution of June 29, 2022, Docket No. SCPM-CRPI-004-2022), and the Biomedik case (CRPI, Resolution of October 30, 2023, Docket No. SCE-CRPI-4-2023).
[8] CRPI. SCE. Resolution of July 29, 2022. Case No. SCPM-CRPI-010-2022.
[9] Kimberly-Clark case. Decision No. SCPM-IG-DES-001-2016, Complaint of the SCPM to the CAN (Andean Community) (No. 2709), Decision No. 1883 of the SGCAN, Application No. SCPM-IDIAPMAPR-2013-277, Case No. SCPM-IIAPMAPR-EXP-2016-004, Case no. 09802-2017-00197, Case no. 09802-2017-00767, Case no. 09802-2017-00196 and Constitutional Court Case No. 2007-19-EP.
[10] SCE. Resolution of August 8, 2019. Instructions for the grant of benefits of exemption from or reduction of a fine of the Competition Supervisory Authority.
Article 8 of the LORCPM establishes the criteria for determining an operator’s dominance:
The definition of market power reflects a legalistic idea with vague boundaries which arises in the United Brands case[2], measuring the capacity of an enterprise to act independently of its competitors, customers and consumers. The SCE does not define dominant position exclusively as the capacity to profitably raise prices to supracompetitive levels, but rather adopts a broader approach based on structural criteria and competition barriers, aligned to the European model.
For example, point 8 forbids “unjustified tied sales”. On the other hand, point 4 classifies as an infringement “predatory or exploitative price fixing”. Since article 9.4 does not include the term “unjustified”, the agency has suggested that there can be no justification for predatory price fixing.
Similarly, the heading of article 9 states that it is forbidden to impede, restrict or distort competition, adversely affect economic efficiency or general welfare. The SCE has held that these three (competition, efficiency and general welfare) are understood independently. On this basis it has concluded, for example, that to diminish a distributor’s freedom constitutes a violation of the legal interest of competition[3]. Anticompetitive behavior can be classified, according to its effects, as a) exclusionary and b) exploitative:
These interpretations have given rise to penalties in cases such as BANRED and Chaide & Chaide, both being controversial rulings.
In the BANRED case, the SCE imposed on the largest ATM interconnection platform in the country a fine of USD 80,312.45. The Supervisory Authority considered as illegal the proposal by BANRED of terms of interconnection with another platform which, in its opinion, were excessive. The resolution does not specify whether an economic analysis of costs was performed in the determination of an “excessive” price[4].
In addition, the proposal was never implemented and the operation was ultimately completed under very different terms. However, the SCE held that the mere existence of the proposal was sufficient to consider it as potentially exclusionary. At judicial level, the Judicial Review Court overturned the decision of the SCE, concluding that no abuse of market power could be found[5].
There are also peculiar features in the Chaide & Chaide case. The SCE imposed on the country’s largest mattress manufacturer a fine of USD 370,000, alleging that it had imposed a minimum resale price fixing scheme. The theory of harm challenged that some of the company’s prices were unreasonably low, to the point that they could exclude a competitor from the market[6].
The problem with this analysis is that the SCE did not take evidence of costs to determine whether the low prices were actually predatory, which leaves open the question of how a price was classified as “excessively low ” without such analysis.
[1] Article 7, LORCPM.
[2] Court of Justice of the European Union. Judgment of February 14, 1978. United Brands Company v. Commission of the European Communities.
[3] SCE. Resolution of February 9, 2023. Case No. SCPM-INJ-22-2022.
[4] SCE. Resolution of July 28, 2022. Case No. SCPM-IGT-INICAPMAPR-2022-014.
[5] Judicial Review Court, Proceedings No. 09802-2022-01601, August 27, 2024.
[6] SCE. Resolution of February 9, 2023. Case No. SCPM-INJ-22-2022.
Unfair practices are governed by the rules on quasi offenses, and it is not necessary to prove the intention of the person under investigation or a subjective element in undertaking them. To prove such practices only the damage caused to another operator, consumers and public interest is taken into consideration. Potentially anticompetitive acts are also penalized[1].
The manner in which Ecuadorian practice developed over time is worthy of note. Unlike other legal systems, the unfair competition regime was introduced into the legal framework as part of antitrust infringements, subjecting unfair practices to the same investigative powers and sanctions as other competition-law violations. This approach is based on that of article 3 of the Spanish Competition Law, in which acts of unfair competition which, because they distort free competition, affect the public interest, are considered antitrust infringements[2].
As previously noted, in 2025 the LORCD came into force, and for the first time a distinction was made between conduct that undermines the competitive process and conduct in which the protected legal interest is a private one. In the former case, aggravated practices are those which, due to their seriousness and scope, may or do affect the interests of the public economic order and may distort, affect, or have an impact on the competition regime. In the latter case, simple practices are those that affect the specific and private interests of economic operators, whether competitors or consumers.
[1] Article 25, LORCPM.
[2] Article 3, Spanish Competition Law 15/2007 of July 3, 2007.
However, not every acquisition of rights, shares or assets is considered a business concentration. Article 13 of the RLORCPM provides that transactions do not constitute a business concentration where ownership of shares or fiduciary rights is of a temporary nature and is carried out by entities whose principal activity includes dealing in securities for one’s own account or for the account of third parties. For this exception to apply, two fundamental conditions must be fulfilled:
In addition, the RLORCPM excludes from the category of business concentrations situations in which control of an enterprise is acquired by order of an authority in liquidation, bankruptcy, insolvency, temporary receivership or composition with creditors proceedings. In these cases, the acquisition of control is a regulatory or judicial measure aimed at the reorganization or liquidation of the economic operator concerned, without involving a concentration strategy in the market.
Furthermore, acquisitions of control arising from confiscation procedures or other administrative measures ordered in accordance with law are not considered business concentrations either. These measures are due to government decisions linked to the public interest or legislative compliance and not due to business strategies aimed at altering the market structure.
| Concentrations involving institutions of the national financial system and of the securities market | 3,200,000 RBU
USD 1,504,000,000 |
| Concentrations involving insurance and reinsurance companies | 214,000 RBU
USD 100,580,000 |
| Concentrations involving economic operators not included in the previous categories | 200,000 RBU
USD 94,000,000 |
In addition, in view of article 22 of the RLORCPM, the SCE can, ex officio, demand notification of a transaction for information purposes, in which case operators will be obliged to submit the information within 15 days. However, this notification does not involve an authorization procedure nor confer powers on the SCE to block the transaction. The SCE has not exercised this power to date.
In addition, the legislation allows a formal consultation to be made to the SCE for two specific purposes: to determine whether a transaction qualifies as a business concentration under article 14 of the LORCPM, or to establish whether the transaction meets the minimum thresholds to render prior notification compulsory, in accordance with article 16 of the LORCPM.
The consultation must be submitted in writing to the Supervisor and must be accompanied by detailed information regarding the transaction and the operators involved. If the SCE considers the information to be insufficient, it can request additional information and, in the event of failure to comply, the consulting party will be deemed to have withdrawn its request.
If the consultation does not comply with the criteria provided in the legislation, the SCE can issue a resolution refusing to admit it. It is important to emphasize that this consultation does not replace the obligation to notify when the legal requirements to do so are met.
The eight-day period can be problematic due to the amount of information and documents required in the notification, in accordance with article 18 of the RLORCPM. The SCE may request compulsory additional information and, if the presentation is incomplete, it can grant 10 days to rectify it. If the information required is not completed, the application is deemed to be withdrawn.
Following notification of acknowledgement of the case, which occurs after the stage of preliminary review of the information presented, the INCCE checks compliance with the requirements and the supply of the mandatory documents. Afterwards, the INCCE must conclude the investigation within 55 days. That period may be suspended or extended under certain circumstances. This analysis period is divided into Stage 1 and Stage 2.
The evaluation in this phase proceeds when any of the following conditions are verified:
Likewise, Phase 1 applies for:
If the transaction meets these requirements and the information presented is sufficient to verify them, the INCCE can issue within 15 working days a report recommending the approval of the transaction to the Commission. From then onwards, the CRPI has an additional period of 10 days to issue its resolution. However, if the INCCE decides that the transaction requires a more thorough analysis or if it fails to rule within 15 days, the investigation will automatically move on to Phase 2.
In Ecuador, the transition to Phase 2 is not dependent on the existence of risks to competition nor on the identification of such risks in a list of requests. It is sufficient that the authority requests more time for the analysis. This aspect adds a degree of uncertainty to the procedure, since the notifying parties cannot always foresee the authority’s concerns nor the reasons justifying an extension of the investigation.
The SCE has maintained in recent cases that third parties involved cannot file appeals, as they are not considered parties to the proceedings[2].
Despite these provisions, in practice there is no record of the imposition of personal penalties on legal representatives or directors in cases of gun jumping. Moreover, the SCE has never resorted to splitting as a structural remedy in this context.
First of all, there is an examination of whether the transaction can give rise to a substantial reduction of competition using the following elements:
Secondly, if a substantial risk to competition is identified, the analysis is supplemented by the assessment of the possible benefits generated by the transaction. This examination is not automatic and is only conducted if there are signs that the concentration could restrict competition. At this stage, the following factors are considered:
The burden of proof of the benefits of the transaction rests exclusively on the notifying parties. For these benefits to be taken into account in the analysis of the SCE, they must comply with the following criteria: (i) be verifiable; (ii) specific to the concentration; and (iii) sufficient to counteract any negative effect on competition. Furthermore, efficiencies that can be achieved using mechanisms that restrict competition to a lesser extent will not be taken into account.
The SCE can impose these remedies unilaterally or accept them as voluntary commitments proposed by the notifying economic operators, provided that they are sufficient, verifiable and proportionate to the risks identified. The decision regarding the suitability of the remedy is adopted on the basis of a detailed analysis of the relevant market and of the expected effects of the concentration.
In addition, the application of remedies is subject to monitoring and compliance mechanisms, which can include appointing divestment or compliance supervisors, periodic audits or monitoring reports[3]. Breach of these conditions may give rise to administrative penalties.
Such authorization due to administrative silence has the same legal effects as an express authorization, allowing economic operators to execute the transaction without the need to make additional requests or take additional steps at the competition authority.
The time limits for a resolution on a concentration notification is 60 calendar days, from the filing of the full application and the documentation required.
However, this period can be extended on a single occasion for another 60 calendar days, and suspended for 45 days if the SCE considers that the circumstances of the analysis so require. If no express resolution is issued within this period, the transaction is deemed to be approved.
Positive administrative silence has been applied in a recent case relating to the merger of Cinemark and Multicines, in which the transaction was automatically approved because no express resolution was issued within the statutory period[4].
[1] Article 18, final subparagraph, RLORCPM.
[2] The SCE dismissed the appeal filed by CONTECON Guayaquil S.A. against the approval of the concentration between Hapag-Lloyd Aktiengesellschaft and SAAM Ports S.A. (a subsidiary of INARPI), on the grounds that it was “not a party to Administrative File SCPM-CRPI-005-2023, in which the concentration was authorized.” See Appeal File SCE-INJ-2-2023, SCE, July 6, 2023.
[3] Article 36, IGPA.
[4] Artículo 64.1, LORCPM.
Investigative and disciplinary procedures with respect to anticompetitive behavior are regulated in articles 53 to 69 of the LORCPM and 64 to 71 of the RLORCPM. The LORCPM also provides that infringements not arising from anticompetitive behavior are dealt with in accordance with the administrative disciplinary procedure established in the COA[1].
Article 59 of the RLOCPM points out that the applicant’s withdrawal does not prevent the SCE from continuing with the investigative stage.
The CRPI appraises the evidence in accordance with the rules of reasoned judgment; in other words, on the basis of experience, logic, firmly established knowledge and the state of the art.
On the other hand, the investigative stage will be private, except for the parties directly involved[8]. As in the preliminary investigations there are no parties, that stage (and also any prior step) is private and confidential.
Once the investigation has commenced, the parties are entitled to access the file, except whatever has been declared confidential. The SCE has adopted various views in relation to the standard of confidentiality. Initially it applied a very wide standard in which nearly everything was declared confidential, but now it has adopted a stricter view and tends to declare a small amount of information as confidential.
The tension between confidentiality and the right of defense continues, as shown by recurrent changes in the internal instructions[9].
On the other hand, if the complaint is considered complete, within three days the SCE informs the operators the subject of the complaint of its content and allows them a period of 15 days to reply. When this period has expired, the SCE can rule within 10 days on the commencement of the investigation, issuing a resolution to commence the investigation or to dismiss the complaint[10].
The investigation may last up to 180 calendar days, which may be extended for an additional 180 days, and ends with the filing of charges. When the process is commenced ex officio, the agency can conduct a preliminary investigation of up to 180 working days.
The Office in charge of the investigation may request from any economic operator, institution or public or private sector body information or documents to conduct its investigations[12].
When the term of the investigation has ended, the investigating body must issue a report on the results of the investigation; including any corrective measures and penalties that should be imposed, which will be notified to those allegedly responsible[13].
[1] Artículo 64.1, LORCPM.
[2] Artículo 55, RLORCPM.
[3] Artículo 56, RLORCPM.
[4] Artículo 57, RLORCPM.
[5] Article 48, fifth point, LORCPM.
[6] Article 48, fifth point, LORCPM.
[7] Article 27, LORCPM.
[8] Article 56, LORCPM. Article 5, Instructions for information processing of the SCE.
[9] As a reference, the most recent reform of the Instructions for information processing within the SCE was made on September 5, 2024, by Resolution No. SCE-DS-2024-37
[10] Article 56, LORCPM,
[11] Article 56, LORCPM. Article 62, RLORCPM.
[12] Article 64, RLORCPM.
[13] Article 67, RLORCPM.
[14] Articles 67 and 68, RLORCPM.
[15] Article 59, LORCPM.
[16] Article 70, RLORCPM.
[17] Article 61, LORCPM.
The investigation and administrative sanctioning procedures for unfair practices are regulated in Title II of the LORCD, specifically articles 8 to 63. Administrative violations for non-cooperation or non-compliance in the context of an administrative file concerning an aggravated unfair practice (as defined in article 56 of the LORCD) will be handled in accordance with the administrative sanctioning procedure provided for in the Administrative Organic Code (COA).[1]
(i) Initiation of the investigation: An administrative sanctioning procedure for aggravated unfair competition acts may be initiated ex officio or at the request of any interested party that can show a legitimate interest.[2]
(ii) Admissibility: When the procedure is initiated at the request of a party, the complaint must meet the following requirements:
Once the complaint is accepted, the INICPD has 60 business days to conduct a preliminary investigation and gather prima facie evidence of the existence of aggravated unfair competition acts.[7] It may request information or documentation from the respondent operator or other operators it deems relevant prior to opening the administrative file.[8]
After expiry of this period, the INICPD has 10 business days to issue a decision either initiating the investigation or closing the complaint file. If the investigation is initiated, this must be carried out within 150 business days, although this period may be extended by up to an additional 75 business days if necessary.[9]
At the conclusion of the investigation period, the body in charge must issue a results report, which, if applicable, will include corrective measures and sanctions to be imposed. This report shall be served on the parties allegedly responsible.[11]
This stage concludes with the issuance of a final opinion by the INICPD, which must be sent to the CRPI so that the latter is informed of its contents and can take a decision.[14]
The decision-making body may, at any time, order the suspension, modification, or revocation of interim measures due to circumstances that arise or that were unknown at the time they were taken.[18] Measures will cease either at the time established by the CRPI or when a decision concluding the procedure is taken.[19]
Simple unfair practices, and aggravated practices if requested by the complainant, are handled in judicial proceedings. This procedure is governed by articles 67 to 73 of the LORCD, the supplementary legislation being the COGEP. Those parties affected (legal standing in this regard being broadly defined) may sue the operator in question in the civil courts and request:
[1] Article 22, LORCD. For their part, simple unfair practices are always dealt with by the civil courts.
[2] Article 13, LORCD.
[3] Article 19, LORCD.
[4] Article 56, LORCPM. Article 5, Instructions for the processing of information of the SCE.
[5] Article 11, LORCD.
[6] Article 15, LORCD.
[7] Article 16, LORCD.
[8] Article 18, LORCD.
[9] Article 20, LORCD.
[10] Article 2, LORCD.
[11] Article 25, LORCD.
[12] Article 23, LORCD.
[13] Article 29, LORCD.
[14] Articles 30 and 31, LORCD.
[15] Article 32, LORCD.
[16] Article 31, LORCD.
[17] Article 37, LORCD.
[18] Article 38, LORCD.
[19] Article 39, LORCD.
[20] Article 67; LORCD.
[1] Article 67, LORCPM.
[2] Article 68, LORCPM.
All resolutions of the Supervisory Authority can be contested in the courts. This challenge is heard by non-specialist judges of the judicial review district courts. On an exceptional basis, when constitutional proceedings are brought against the SCE, the judges with jurisdiction to hear them are constitutional judges (which, except for the Constitutional Court, refers to all judges regardless of their subject of specialization or rank).
These are the two possible channels, depending on the nature of the action:
11.1 Judicial review
The SCE has requested the creation of judges of administrative courts specialized in competition, but these chambers have not been created yet (and, for budgetary reasons, it is unlikely that they will be created in the medium term).
11.2 Constitutional review
Any challenge or claim of a purely constitutional nature which does not fit within any other channel in which the review of legality of an action is claimed, can be filed by means of constitutional actions. At first instance, all judges of all branches of jurisdiction and subject matter can hear constitutional actions. The Constitutional Court has final appellate jurisdiction.
[1] Article 266, Organic General Code of Procedure. Official Registry 506 of May 12, 2015.
Actions to remedy or indemnify damage caused in relation to anticompetitive behavior forbidden by the LORCPM can be filed in accordance with general rules, in summary proceedings before a judge of the civil courts[1]. The LORCD expressly provides that competitors and consumers may file damages actions in the civil courts for any losses caused to them by the commission of an unfair practice.[2] The action will become statute-barred in five years from when the resolution that imposed the penalty in question becomes enforceable.
In addition, article 64 of the LORCPM acknowledges that if the dismissal of malicious or reckless complaints has been ordered, the accused, if there are good grounds to do so, will be entitled to claim compensation in the courts for any loss and damage caused to him.
[1] Article 71, LORCPM.
[2] Article 67, LORCD.
Section elaborated by Gerardo Lemus, José Antonio Postigo and Marisol Gonzalez
| LFCE | Ley Federal de Competencia Económica (Federal Competition Law) |
| Reform | Decree amending, supplementing, and repealing various provisions of the Federal Competition Law and the Federal Law on State-owned Entities |
| CNA or Commission | Comisión Nacional Antimonopolio (National Antitrust Commission) |
| SE | Ministry of Economic Affairs |
| Investigative Authority | Investigative Body of the CNA |
| IFT | Federal Telecommunications Institute |
| CPEUM | Mexican Constitution |
| PROFECO | Procuraduría Federal del Consumidor (Federal Consumer Protection Agency) |
| AICM | Mexico City International Airport |
1.1 Legislative framework
The regulatory framework for competition in Mexico is primarily contained in the Federal Competition Law (LFCE), which sets out the foundations for free market access and economic competition, and defines monopolistic practices, unlawful concentrations, and barriers to competition.
1.2 Evolution of the system – CNA
The antitrust system in Mexico has evolved significantly since the enactment of the first Federal Competition Law in 1992. The 2014 statute and its reforms in 2017 and 2021 marked an important development for the antitrust authority at that time, by strengthening the autonomy and powers of the COFECE, adjusting and improving the legal framework to deal more effectively with anticompetitive practices and to adapt to changes in the economic and technological environment.
On July 16, 2025, the Decree amending, supplementing, and repealing various provisions of the Federal Competition Law and the Federal Law on State-owned Entities (the “Reform”) was published. The coming into force of this legislation has transformed the institutional framework in this field in Mexico.
As a result of the Reform, the Federal Competition Commission (COFECE), the autonomous body previously responsible for enforcing the LFCE, was dissolved and replaced by the newly created National Antitrust Commission (the “CNA” or the “Commission”). The CNA is a decentralized public body attached to the Ministry of Economic Affairs (“SE”), which forms part of the Federal Public Administration, together with the Office of the Presidency of the Republic, the other Ministries of State, and the Legal Counsel’s Office of the Federal Executive. It is an independent entity in terms of its management and also technically and operationally.
The Commission is composed of a Board of five Commissioners, including the Chair, and has an investigative unit responsible for carrying out investigations and acting as a party in proceedings conducted in the form of a trial (the “Investigative Authority”). In addition, the powers of the CNA include those relating to broadcasting and telecommunications, which previously fell within the remit of the now defunct Federal Telecommunications Institute (“IFT”).
1.3 Prohibited practices
The LFCE forbids absolute and relative monopolistic practices, unlawful concentrations and barriers to competition. Absolute monopolistic practices include agreements between competitors to fix prices, limit production, divide up markets or coordinate positions in public tender processes and information exchanges between current or potential competitors. Relative monopolistic practices are those engaged in by operators with substantial power (or substantial joint power) in the market which have as their object or effect: a) the improper displacement to other economic agents (as this term is defined in the LFCE); b) materially preventing access to other economic agents ; c) the establishment of exclusive advantages for one or more economic agents; or d) unduly limiting the capacity of other economic agents to compete in a given market.
Unlawful concentrations are operations, including mergers or acquisitions that hinder, reduce or impede competition.
Finally, barriers to competition are structural characteristics of the market or acts of economic operators which impede access by competitors or distort competition.
The scope of action of the LFCE includes all sectors of the economy, with emphasis on essential inputs, and on strategic sectors such as telecommunications and energy.
1.4 Parties liable
The LFCE applies to all economic operators, which include individuals and legal entities, for-profit or nonprofit, branches and entities of the federal, state and municipal administration, associations, chambers of commerce, professional groupings, trusts and any other form of participation in economic activity. All these operators are subject to the provisions of the law and can be jointly and severally liable for prohibited decisions and conduct.
1.5 Extraterritoriality
Article 1 of the LFCE provides that this legislation gives effect to Article 28 of the Mexican Constitution (“CPEUM”). It is important to note that the LFCE is a federal law subject to the CPEUM and to the legal principles enshrined in it, since the CPEUM upholds the principle of territoriality. Thus, in line with this principle, the LFCE only regulates situations or behavior referring to free competition, monopolies, monopolistic practices, and concentrations in Mexican territory and the effects in Mexico of situations or conduct created or occurring in another State.
Article 127 of the LFCE establishes various penalties which the Commission can impose in the event of infringements of the law. The following are the main types of penalties which that legislation makes available to the authority:
Some of the above-mentioned fines are determined as a percentage of the penalized economic operator’s revenue, which may amount to up to 10% in the case of relative monopolistic practices and up to 15% in the case of absolute monopolistic practices. Under article 127 of the LFCE, such revenue corresponds to that obtained by the economic operator involved in the unlawful conduct, (excluding income obtained from a source of wealth located abroad, and income subject to a preferential income tax regime for the last tax year in which the infringement was committed). If this information is not available, the previous tax year will be used as the base for the calculation.
The CNA may request from economic operators or the competent authority the necessary tax information to determine the amount of the fines referred to in the previous paragraph, and in the case of economic operators, may use the enforcement mechanisms established by the LFCE.
In the event of repeated infringements, the CNA can impose a fine of up to double that which would have been originally established. Any economic operator who, having committed an infringement that has been penalized, engages in other conduct forbidden by the LFCE, shall be considered a reoffender, regardless of whether the infringement is of the same type or not, if not more than ten years have elapsed between the commencement of the new procedure and the final decision.
On October 14, 2025, following the ratification of the Commissioners proposed by the Federal Executive, the National Antitrust Commission (CNA) was formally set up. Pursuant to Transitional Article Nine of the Reform, within a period not exceeding 180 calendar days from the date on which the CNA’s Board was constituted, the Plenary of the Commission and the Federal Executive, respectively, must issue the Organic Statute and the Regulations of the Federal Competition Law.
In order to comply with its constitutional mandate, the CNA will be organized as follows:
Moreover, the CNA’s powers include the possibility of creating the bodies and administrative units necessary for its professional, efficient, and effective performance, in accordance with its authorized budget.
5.1 Applicable legislation
Under the LFCE, anticompetitive behavior in Mexico is classified mainly as absolute monopolistic practices and relative monopolistic practices.
5.1.1 Absolute Monopolistic Practices (article 53 of the LFCE)
Absolute monopolistic practices can be identified as horizontal agreements. Absolute monopolistic practices are considered unlawful and consist of contracts, agreements, arrangements, information exchanges, or combinations between competing economic operators, whose purpose or effect is any of the following:
These practices are null and void, have no legal effect and economic operators that engage in them are liable for the penalties established in the LFCE, apart from the civil and criminal liability that may arise.
5.2 Statute of limitations
The limitation period established in general in the LFCE for the CNA to exercise its powers is ten years, from when the unlawful concentration was carried out or the conduct forbidden by the LFCE ended.
5.3 Specific powers
The Investigative Body of the CNA (see section 4), in accordance with article 28 of the LFCE, has powers to investigate anticompetitive behavior. Its powers include, but are not limited to, the following: conduct and develop investigations; request information from economic operators either due to their possible involvement in anticompetitive practices, or because they may have relevant information relating to such practices; in that same context, it may obtain statements from witnesses; request information from other authorities and file criminal complaints with the Public Prosecutor’s Office.
It should also be noted that under article 75 of the LFCE, in conducting investigations, the Investigative Authority of the CNA will have the power to perform dawn raids to companies’ premises. In the course of those visits, the Investigative Authority may, inter alia: (i) access any office, equipment, computer or electronic or storage device; (ii) check books, documents, papers and files; (iii) make copies of such books, documents or files, whether physical or electronic; (iv) secure books, documents and all other storage media, and (v) request from any official, representative or staff member of the economic operator explanations, information or documents related to the purpose of the visit.
5.4 Immunity and Penalty Reduction Program
There are immunity and penalty reduction programs for relative monopolistic practices, unlawful concentrations, and absolute monopolistic practices.
With respect to relative monopolistic practices or unlawful concentrations, economic operators can, on a single occasion, request the benefit of exemption from or reduction of the fines established in the law, pursuant to article 100 of the LFCE. This is provided that: (i) the operator in question undertakes to suspend, stop or rectify the concentration or practice, and (ii) it proposes measures to suspend, stop or rectify the conduct in question that are legally and economically viable. The Immunity and Penalty Reduction Program applies before the opinion on probable liability is issued.
Furthermore, with respect to absolute monopolistic practices, the CNA has an Immunity and Penalty Reduction Program in force under article 103 of the LFCE. This program applies to both economic operators and for individuals that have engaged in absolute monopolistic practices on behalf of legal entities, provided that such person: (i) is the first to provide sufficient facts so that the CNA may conduct an investigation; (ii) fully cooperates with CNA in the investigation and in the trial-like procedure, and (iii) carries out the necessary actions to end its participation in the unlawful practice. For these purposes, in addition to the provisions of the LFCE, a Guide to the Immunity and Penalty Reduction Program was also published by the now defunct COFECE.[1]
5.5 Criminalization
Article 254 Bis of the Federal Criminal Code establishes the penalties for which economic operators who engage mainly in absolute monopolistic practices will be liable. That provision states that the offenses specified there will be prosecuted on the basis of a complaint filed by the CNA. Thus, criminal proceedings may be dismissed at the request of those bodies in plenary session, when the accused persons comply with the administrative penalties and other requirements indicated by the CNA. The limitation period for these offenses is 90 months from the date when they took place.
Accused persons can avoid criminal liability when they avail themselves of the benefits provided for in article 103 of the LFCE.
5.6 Cooperation agreements between competitors
Unlike other jurisdictions, in Mexico there is no legal provision allowing the grant of an exemption from the application of the LFCE to cooperation agreements between competitors. Therefore, when an agreement of this kind is notified, the authority must verify whether there is evidence to equate the act in question to a concentration in accordance with the provisions of article 61 of the LFCE.
5.6.1 Legislative framework and regulation
Cooperation agreements between competitors are analyzed mainly in light of the provisions contained in articles 53, 61, 86 and 90 of the LFCE, which lay down the conditions in which such agreements can be considered lawful or anticompetitive. In addition, the Guide to the Notification of Concentrations,[2] published by the now defunct COFECE, provides the criteria to determine whether certain cooperation agreements can be considered concentrations and, as such, must be notified to that body.
5.6.2 Classification of agreements
Agreements between competitors can be divided into two large categories:
These agreements are designed to promote economic efficiency without unduly restricting competition, either contractually or through some vehicle with legal personality. Some examples of the above include:
These agreements directly or indirectly restrict competition and are prohibited by the LFCE. The most common examples include:
5.6.3 Notification of agreements
The interpretation of the rules of the LFCE which is explained in the abovementioned Guide to the Notification of Concentrations requires that certain agreements between competitors are notified to the CNA before they are implemented, depending on the sector in which they operate. Such notification will be compulsory if the agreement has an impact similar to that of a business concentration.
In that respect, the economic thresholds applicable to concentrations and the relevant notification procedure must be considered.
In order to analyze whether an agreement between economic operators constitutes a concentration, the following must be taken into account:
In addition, agreements can be investigated under article 53 of the LFCE if signs of anticompetitive practices emerge, even after prior authorization. This occurs if false information is detected or if the agreement unduly restricts competition. In this respect, notifying an agreement as a concentration does not prevent investigations regarding its legality.
[1] Available at https://www.cofece.mx/wp-content/uploads/2017/12/guia-0032015_programa_inm.pdf
[2] Available at https://www.cofece.mx/wp-content/uploads/2021/06/GUIACON_2021.pdf
6.1 Relative Monopolistic Practices (article 54 of the LFCE)
Relative monopolistic practices are those consisting of any act, contract, agreement, procedure or combination that:
The practices will be unlawful and will be penalized if the above-mentioned scenarios are proven, unless the economic operator shows that they generate efficiency gains and have a positive impact on competition and free market participation, exceeding their possible anticompetitive effects and leading to an improvement of consumer welfare. The efficiency gains may include: (i) introduction of new goods or services; (ii) use of surplus, defective or perishable products; (iii) cost reductions derived from the creation of new production techniques and methods; (iv) introduction of technological advances; (v) combination of productive assets or investments which improve quality or broaden the characteristics of goods or services, and (vi) improvements in quality, convenience and service which have a positive effect on the distribution chain.
6.2 Cases of Relative Monopolistic Practices
The cases referred to in article 54 of the LFCE are the following:
6.3 Barriers to Competition and Free Market Participation. Essential Inputs
Under article 57 of the LFCE, one of the CAN’s tasks is to prevent and eliminate barriers to competition and free market participation.
Article 56.XII of the LFCE considers as a relative monopolistic practice the refusal, restriction of access or grant of access under discriminatory terms and conditions to an essential input by one or more economic operators.
Article 60 of the LFCE establishes the criteria which the CNA must take into account to determine the existence of an essential input:
6.4 Regulation of Unfair Competition
Unfair competition legislation seeks to protect the trader’s goodwill, as opposed to economic competition, which protects the legal interest of market efficiency. Unfair competition focuses on avoiding behavior which may cause confusion, discredit competitors or mislead the public.
Article 5 of the CPEUM establishes freedom of trade, subject to the activities being lawful and not in violation of public policy or good practice. This constitutional basis is fundamental for the regulation of unfair competition.
Mexico is also a party to the Paris Convention for the Protection of Industrial Property, which prohibits unfair competition and defines specific acts that constitute such competition, such as causing confusion, making false assertions and misleading the public regarding the characteristics of products.
Although one of the objectives of the Industrial Property Law is to eradicate unfair competition, it does not provide a full set of rules in this respect. Infringements relating to unfair competition must show a violation of an industrial property right so as to bring proceedings, which in certain cases has limited their effectiveness.
However, on January 26, 2005, article 6.bis was added to the Commercial Code, so as to provide that traders must refrain from engaging in acts of unfair competition which cause confusion, discredit by means of false assertions, or mislead the public. This reform allows the possibility of commencing commercial actions for unfair competition without the need to prove a violation of an industrial property right, as shown by a single ruling I.3o.C.98 C (10a.) issued by the Third Civil Collegiate Court of the First Circuit (digital registration: 2003810), although there is still not sufficient clarity regarding its application in practice.
6.5 Interlocking regulation
Interlocking refers to the practice of sharing officers or directors between competing companies. This practice can have significant implications for competition, since it can facilitate coordination of commercial strategies, price fixing, the exchange of information and other anticompetitive behavior.
To clarify this concept, it should be noted that common or cross-directorships are established when a person forms part of the board of directors of two or more economic operators which are not part of the same business group. These directorships are considered risky for competition, since common directors can provide a channel for exchanging information between competitors, facilitating collusion and the monitoring of deviations.
The independent decision-making of boards of directors can be endangered, and competition can be affected due to the risk of exchange of strategic information and conflicts of interest. The CNA will assess the risks to competition arising from exchanges of information through common directorships, especially in markets with fewer participants.
It should be added that the CNA can assess the relationship of common board members or directors at economic operators, both parent companies, controlling companies, holding companies and subsidiaries, branches, as well as the exceptions that have been adopted in practice. This will allow findings of an information exchange which could have constituted an anticompetitive practice.
For the assessment of the exchange of information through directorships, it is suggested that economic operators consider the risk factors and the assessment criteria indicated in the relevant guide in force. In addition, safeguard measures can be observed to protect the use of strategic information available to common directors, guaranteeing the independent behavior of boards of directors.
Although the LFCE does not expressly mention interlocking, The Guide on Information Exchange between Economic Agents issued by the now-defunct COFECE does address this point, highlighting the risks that this practice can pose to competition. The CNA is expected to issue guidelines, provisions, and documents on the topic in the coming months. In addition, it should be noted that the provisions regarding absolute and relative monopolistic practices, as well as the regulations on unlawful concentrations, can be applied to regulate this practice.[2] Directors’ participation in competing companies could be investigated and penalized if it is shown to facilitate anticompetitive behavior or to diminish competition in the market. Companies must be careful when sharing directors and ensure that they fulfill the notification and assessment obligations established regarding this subject.
[1] In accordance with the provisions of article 58 of the LFCE, in order to determine the relevant market, the following criteria must be considered: (i) The possibility of replacing the good or service in question with others, both of domestic and foreign origin, taking into account technological possibilities, the extent to which consumers have substitutes and the time required for such substitution; (ii) The costs of distribution of the good itself; of its most important inputs; of its accessories and of substitutes from other regions and from abroad, taking into account freight, insurance, customs duties and non-customs restrictions, restrictions imposed by economic operators or by their associations and the time required to supply the market from those regions; (iii) The costs and the probabilities for users and consumers to access other markets; (iv) Federal, local or international legislative restrictions which limit access by users or consumers to alternative sources of supply, or suppliers’ access to alternative customers; (v) All others that are established in the Regulatory Provisions, as well as the technical criteria that may be issued for such purpose by the Commission. Article 59 of the LFCE establishes the criteria to determine whether there is substantial power.
[2] As per the preliminary decision on casefile IEBC-003-2022, from May 2nd, 2024, pp. 15-19, Órdenes a Grupo Toluca, Grupo La Piedad, Grupo IAMSA, Grupo Estrella Blanca, Grupo Transpaís Único, Grupo ADO, Grupo Pullman, Grupo Estrella Roja and Grupo Senda who are Concessionaires of Motor Transport and of Terminal, as well as the CANAPAT, linked by Cross-Directorates and Contact Spaces.
Under the current LFCE, a concentration is a merger, acquisition of control or any act for the union of companies, associations, shares, SRL shares, trusts or assets in general that is carried out between competitors, suppliers, customers or any other economic operators (article 61 of the LFCE)[1].
In this context, business concentrations and cooperation agreements between competitors are subject to notification obligations and supervision by the competent authorities.
7.1 Applicable legislation
The LFCE contains the rules applicable to concentrations that are implemented or have effects in Mexico. In addition, in recent years the Guide to the Notification of Concentrations, published by the now defunct COFECE, has provided practical guidance regarding how to comply with the statutory provisions applicable and certain considerations that the authority takes into account when analyzing the operations that are filed for approval.
The LFCE is based on the principle of effective competition, whose principal objective is to encourage economic efficiency, promote a competitive environment and protect consumers. This principle seeks to ensure that enterprises compete on equal terms, avoiding anticompetitive practices that distort markets.
The specific objectives of the regulation of concentrations include:
In addition, the current legislative framework includes criteria and key elements for the assessment of concentrations. In this respect, to determine whether a business concentration should be approved or penalized, the following is taken into consideration:
Likewise, the LFCE identifies situations in which a concentration can be considered unlawful:
In this respect, the assessment of business concentrations requires an integral analysis which takes into consideration both the characteristics of the market, and the possible effects of the proposed transactions on competition.
The legislative framework serves as a preventive and corrective mechanism. The supervision of concentrations allows the authorities to identify possible risks before they materialize and to mitigate adverse effects on competition. In addition, by analyzing notified transactions, the authorities in charge ensure that business decisions do not limit the competitive dynamics of markets.
7.2 Notifiable Transactions
The transactions that must be notified to the authority in charge are concentrations (as defined earlier) which reach the economic thresholds established in article 86 of the LFCE.
7.2.1 Mandatory notification thresholds
The economic thresholds contained in article 86 of the LFCE determine whether a concentration must be notified and seek to ensure that transactions with a significant impact on markets are supervised. The following are the quantitative criteria to determine whether a concentration must be notified:
These thresholds not only determine notification obligations but are also an indicator of the importance of the transaction in terms of its potential impact on the market. Once a concentration is notified in view of such criteria, the authorities will also consider the qualitative aspects mentioned in section 9.1 above, the potential impact on the market, for the purpose of determining mainly whether the concentration in question takes place between an operator or operators that have substantial power in the relevant market and whether the transaction damages competition and free market participation.
Enterprises must carefully calculate the total value of the transaction, which includes contingent payments, debts assumed and other factors. Any error in the estimation could lead to infringements involving fines or even the reversal of the transaction. It should be remembered that the LFCE and the Guide to Notification of Concentrations, when assessing notification obligations, impose the obligation to notify transactions which are carried out by successive acts (for example, purchases of assets carried out in packages, but which form part of the same transaction). Finally, it is also necessary to take taxes into account when calculating the amounts of a transaction in economic terms, in order to ascertain whether or not it must be notified.
Economic operators must notify a concentration before any of the following scenarios occur:
Concentrations arising from legal acts performed abroad must be notified before they take effect legally or physically in national territory.
7.3 Exceptions
It should be mentioned that article 93 of the LFCE indicates the following cases in which prior authorization is not required for concentrations (even when exceeding the thresholds referred to above):
7.4 Notification procedure and time limits
The procedure for notification of concentrations to the competent authorities follows various key stages which ensure an adequate analysis of the transaction and its impact on markets. Each of these stages is described below:
7.4.1 Filing of notification
Economic operators must file a notification together with the documents required. The latter include:
If the authority requires it, the parties can be requested to provide additional information. This may include market studies, price data or any other necessary documentation for the analysis.
7.4.2 Assessment by the authority
The LFCE establishes a procedure with specific time limits so that the authorities can analyze and rule on concentration notifications. However, it also provides for exceptional situations in which such time limits can be extended due to the complexity or particular nature of the transaction notified.
7.4.3 Resolution
At the end of the procedure, the authority can:
If the authority does not issue a resolution within the stipulated periods, the concentration is considered to be tacitly approved. This is known as the positive administrative silence principle and is designed to guarantee legal certainty for businesses. However, this principle is rarely applied.
The time limits and exceptions in the notification procedure reflect the balance between the need to protect competition and to guarantee legal certainty. Enterprises must be proactive in providing full information and considering possible extensions in complex cases. Experience shows that interaction with the authorities and transparency in the transaction are key to facilitating an efficient and favorable analysis.
7.5 Voluntary notification and ex officio investigation
The voluntary notification of concentrations is a mechanism established in the LFCE which allows economic operators to notify transactions to the authority for their assessment and approval, even though they do not exceed the stipulated thresholds. In practice, this scenario is taken into account for transactions whose nature could give rise to subsequent questions regarding the competitive effects of the operation or the obligation to seek authorization.
7.5.1 Benefits of voluntary notification
7.5.2 Voluntary notification procedure
The procedure and requirements to notify a transaction on a voluntary basis is the same as that described in Articles 89 and 90 of the LFCE. However, in cases notified voluntarily the authority usually undertakes a less intensive analysis since the economic thresholds have not been exceeded. However, if possible risks to competition are identified, the authority in charge could extend the assessment and, in extreme cases, impose conditions or reject the transaction.
7.5.3 Ex officio investigation
The ex officio investigation is a key mechanism in the system of supervision of unnotified concentrations which could give rise to adverse effects on the market. In this respect, the authority has the power to investigate transactions carried out without prior notification when it detects signs of harm to competition. [4]
Reference is made below to the most relevant aspects of the provisions regarding the authority’s power to conduct investigations in cases of possible unlawful concentrations:
The combination of voluntary notification and ex officio investigations enables the authority to maintain effective control over concentrations, even in cases in which operators try to avoid supervision. It also promotes an environment of trust and compliance among market participants.
7.6 Pre-notification
It is worth mentioning that the authority attends to all consultations made to it and clarifies any doubts that private parties may have when dealing with their affairs. This allows prior consultations to be made to the authority regarding the obligation to make notifications. This is done with the understanding that, although replies to such consultations are not binding, they can provide clarity for economic operators in this respect.
[1] The Guide to the Notification of Concentrations explains how some of these concepts should be interpreted, for example, acquisition of control.
[2] The value of the UMA in 2026 is $117.31 Mexican pesos.
[3] Exchange rate published by the Bank of Mexico in the Mexican Official Gazette on January 28, 2026: MXN 17.2357 per dollar, legal tender in the United States of America.
[4] Under article 65 of the LFCE, transactions that are not subject to mandatory notification cannot be investigated after three years have elapsed from their closing.
8.1 Commencement of investigation
In order to commence an investigation for monopolistic practices or unlawful concentrations an objective reason is required. Any sign of the existence of monopolistic practices or unlawful concentrations is an objective reason.
Under article 66 of the LFCE, investigation of anticompetitive behavior will be commenced ex officio by the CNA, or at the request of the President of the Republic, directly or through the SE, at the request of either the PROFECO or a party and will be the responsibility of the CNA’s Investigative Authority.
As part of its activities, the Investigative Authority monitors on a permanent basis the media, specialized press, websites, and any other kind of information regarding industries and markets, including discussion forums, chat rooms, blogs, etc., since sometimes signs of anticompetitive practices can be found there.
According to the provisions of article 66 of the LFCE, the requests for investigation presented by the President of the Republic, directly or through the SE, or by the PROFECO will be given priority.
Anyone can report to the Investigative Authority violations relating to absolute monopolistic practices, relative monopolistic practices or unlawful concentrations.
Article 69 of the LFCE gives the Investigative Authority a period of 15 working days from the receipt of a complaint, to analyze it and issue a decision (a) ordering the commencement of the investigation, (b) rejecting the complaint, in whole or in part, on the grounds that it is clearly unfounded, or (c) warning the complainant of the need to clarify or complete his complaint within 15 working days, which may be extended by the same period in justified cases. If the complainant fails to duly comply with that warning, the complaint will be deemed not to have been filed.
Pursuant to this provision, the decision deeming a complaint not to have been filed must be notified to the complainant within 15 working days from the date of expiration of the period for compliance with the warning.
If the decision is not issued within the above-mentioned periods, the investigation will be deemed to be commenced. In this case, the Investigative Authority, at the request of the complainant or ex officio, must issue the decision to admit.
8.2 Time limits
Article 71 of the LFCE provides that the investigation period will commence from the issue of the relevant decision to commence and may not be less than 30 or more than 120 working days. This period may be extended on up to three occasions, for periods of up to 120 working days, when there are duly justified reasons to do so in the Investigative Authority’s opinion.
Once the investigation has ended, the Investigative Authority will have a period of 30 working days to present to the Board an opinion proposing:
If the Investigative Authority orders the commencement of the procedure the likely perpetrators involved must be summoned.
Once the likely perpetrators have been summoned, they will have access to the file of the investigation and will have an unextendible period of 45 working days to respond in their best interest, attach documentary evidence in their possession and put forward the evidence that should be taken.
The person summoned must refer to each of the facts indicated in the statement of probable responsibility. Any facts to which he does not respond will be deemed to be correct, unless proven otherwise. The same will occur if he fails to file a reply within the period indicated in the previous paragraph.
The likely perpetrator’s response will be considered by the Investigating Authority so that, within a maximum period of 10 working days, it may rule on the arguments and evidence offered. When that period expires, a decision will be taken to reject or admit the evidence and the place, date and time for taking such evidence will be set. The evidence will be taken within a period not exceeding 20 days from when it is admitted.
When all the evidence has been presented, the CNA will set a period of up to 10 working days so that the Investigative Authority and the likely perpetrators may file their written submissions.
When submissions have been filed or the period granted to do so has expired, the file will be deemed to be completed and will be sent to a Commissioner to prepare the draft resolution to be submitted to the Board.
The Board of the CNA must issue its resolution within 30 working days from the date on which the file of the investigation has been completed.
8.3 Evidence
Within the trial-like procedure due to a statement of probable responsibility for anticompetitive practices, all evidence is admissible, except for confessions of the parties and witness evidence to be given by the authorities.
The CNA will reject evidence that has not been lawfully offered, that bearing no relation to the facts the subject of the procedure, as well as unnecessary or unlawful evidence.
Once the evidence has been taken, within the next 10 days, the CNA may approve and order the taking of additional evidence to clarify obscure or contradictory facts.
The CNA has complete freedom to analyze the evidence, to determine the value of each piece of evidence in relation to each other, and to set the final result of that appraisal. The appraisal of the evidence by the CNA must be based on an assessment as a whole of direct, indirect and circumstantial evidence that emerges in the process.
8.4 Hearings
Within 10 working days from the date on which the file is completed, the likely perpetrator or the complainant will be entitled to request an oral hearing from the Board for the purpose of making the submissions that they consider appropriate.
8.5 Reasoned report
Pursuant to the provisions of article 79 of the LFCE, the opinion submitted by the Investigative Authority to commence the trial-like procedure must contain at least the following:
8.6 Decision
In order to issue its resolution, the Board will deliberate collectively and decide the matters by majority of the votes cast, pursuant to article 18 of the LFCE. All Commissioners must vote and may not refrain from doing so.
Commissioners who are absent from the Board must cast their vote in writing before the meeting or within five working days after the meeting in question. If Commissioners cannot vote for duly justified reasons or because they are prevented from doing so, and there is a tie in the vote of the Board, the Chair Commissioner will have a casting vote.
Board meetings will be public, except the parts dealing with matters containing confidential information declared as such in accordance with the legislation.
Any definitive resolution issued by the Board of the CNA must contain the following:
Decisions and resolutions of the Board will be public and only the parts containing confidential or restricted information, within the meaning articles 124 and 125 of the LFCE and other applicable provisions, will be kept secret.
8.7 Appeals
Only the final resolution in the trial-like procedure issued by the Board of the CNA due to an investigation of anticompetitive practices can be contested. That decision of the CNA can only be contested by means of the indirect action for protection of fundamental rights (i.e. “amparo indirecto”[1]) and will not be suspended.
Only in cases in which the CNA imposes fines or orders the divestiture of assets, rights, shares or SRL shares, will such measures be executed after the resolution of any action for protection of fundamental rights that is brought.
The final resolution of the trial-like procedure may only be contested due to an action for protection of fundamental rights, or for violations committed in the resolution or during the procedure. Moreover, the general rules applied during the procedure can only be claimed in the action for protection of fundamental rights filed against the aforementioned final resolution, and not separately.
Proceedings for protection of fundamental rights will be heard in the District Courts for Administrative Matters, Specialized in Competition, Broadcasting, and Telecommunications, based in Mexico City and having jurisdiction throughout the entire Mexican Republic. Ordinary or constitutional appeals against acts in the course of procedures shall not in any event be admitted.
[1] The indirect amparo writ is a legal procedure in Mexico that protects individuals against acts of authority that violate their fundamental rights. It is called “indirect” because it is filed before a district judge and is generally used when the challenged act does not stem from a final judgment or resolution of a trial, but from laws, regulations, omissions, or administrative acts that affect a person’s rights.
The CNA also has an Immunity and Sanctions Reduction Program, which is used as a mechanism for detecting, investigating and penalizing absolute monopolistic practices.
Under the provisions of Article 103 of the LFCE, any person or enterprise that has participated or is carrying out unlawful agreements with their competitors can join the Immunity and Sanctions Reduction Program to receive a reduction of the fines for which they would be liable and be exempt from criminal liability. In exchange, the economic operator must supply information and evidence to the Investigative Authority regarding such agreements and provide full ongoing cooperation throughout the procedure so as to determine whether there are absolute monopolistic practices.
Any person that has aided, facilitated, induced or participated in such practice can also join the program. The identity of the informant economic operator will be kept confidential.
The benefit of reduction of penalties is granted provided that:
The following are the benefits of the Immunity Program:
[1] Available at: https://www.cofece.mx/wp-content/uploads/2021/02/Acuerdo-CFCE-312-2020.pdf
[2] Disqualification from serving as a board member, administrator, director, manager, officer, executive, agent, advisor, representative, or attorney-in-fact of a legal entity in the relevant market for a period of up to five years, and fines of up to the equivalent of three hundred and fifty thousand times the daily value of the UMA, imposed on those who participate directly or indirectly in monopolistic practices or unlawful concentrations, when acting for and on behalf of natural or legal persons.
Title IV of the LFCE describes the special procedures that may be undertaken by the CNA. Each of these procedures seeks to ensure effective competition and to eliminate practices that restrict it.
This title includes chapters on:
The first chapter focuses on the investigation of essential inputs and barriers to competition, allowing the COFECE to commence investigations ex officio or at the request of other competent authorities. These investigations can lead to recommendations, orders to eliminate barriers, or the divestiture of assets.
The second chapter deals with resolutions regarding market conditions, which are commenced at the request of authorities or parties affected and may culminate in opinions or resolutions (published in the Official Gazette of the Federation), where CNA can, among others, order measures to eliminate barriers to competition, determine the existence of and regulate access to essential inputs, and order the suspension of acts constituting anticompetitive behavior.
The third chapter establishes the power of the CNA to issue opinions or authorizations regarding licenses, concessions and permits at the request of the contracting authority. This ensures that measures are included to protect competition in invitations to tender and tender conditions.
The fourth chapter addresses the procedures for exemption from and reduction of fines, allowing economic operators to request these benefits before a statement of probable responsibility is issued, with the commitment to correct unlawful practices.
The fifth chapter regulates requests for the CNA to issue formal opinions when they concern new or unresolved issues related to the application of this law and are considered relevant matters. These opinions will not be issued with respect to cases or issues that have already been resolved or regulated. The opinions issued are binding on the CNA.
Finally, the sixth chapter establishes the possibility of the Federal Executive Branch, through the SE, notifying the CNA of matters that are relevant to the national interest in the area of free competition. In such cases, the Commission will issue a decision addressing the matter raised within a period not exceeding 10 business days.
These special procedures are designed to enable the CNA to investigate and resolve complex issues relating to competition in an effective manner, ensuring free market participation and market efficiency. The publication of its resolutions and opinions promotes transparency and trust in the country’s competition system.
11.1 Actions for damages
Article 53 of the LFCE, in its final paragraph, provides that economic operators that engage in monopolistic practices will be liable for the penalties established in the law, apart from the civil and criminal liability that may apply. In other words, in addition to the fines which the CNA may impose on the economic operator that engages in those practices, those affected may claim damages in the civil courts. Furthermore, the Federal Civil Code provides that anyone who engages in unlawful conduct and causes harm to another is obliged to remedy it, by paying damages.[1]
Article 134 of the LFCE itself provides that persons who have suffered loss or damage due to a monopolistic practice or an unlawful concentration can file proceedings to protect their rights in the specialist antitrust courts, when the resolution of the CNA has become final. Upon the final resolution issued in the trial-like process, the unlawfulness of the economic operator’s conduct will be deemed to be proven for the purposes of the action for indemnity.
Like the legislation in other jurisdictions, the concepts of loss and damage are found in civil legislation, specifically in the Federal Civil Code. As well as defining those concepts, article 2110 of the Federal Civil Code provides that the loss and damage must be an immediate and direct consequence of the breach of the obligation, either that it has been caused or must necessarily be caused. On that basis, in actions for indemnity in Mexico it is essential to establish and prove that causal relationship.
11.2 Class actions
In 2012 a legal reform came into force in Mexico which introduced amendments to various laws, including the LFCE, the Federal Civil Code, the Federal Civil Procedure Code and the Federal Consumer Protection Law, so as to expressly provide for and regulate class actions.
In this regard, article 585 of the Federal Civil Procedure Code provides that, among other bodies, the CNA has standing to bring class actions. For such purpose, the action must contest acts which harm consumers or users of goods or services, public or private, or the environment, or the acts involved have harmed the consumer due to the existence of unlawful concentrations or monopolistic practices, declared to exist by a final resolution issued by the CNA. This is consistent with the provisions of articles 53 and 134 of the LFCE, already mentioned.
In this respect, the use of this mechanism has been very limited. Few class actions have been filed by private parties against other economic operators, among the most notable being a claim against Coca Cola for the harm caused to Big Cola[2] and a claim filed by the Mexican Social Security Institute against pharmaceutical companies due to the cartel that they operated from 2005 to 2009 in relation to the sharing of public tender processes for insulin and serums[3]. More recently, in October 2024, the now defunct COFECE filed its first class action against certain pharmaceutical companies for manipulation in supplies and prices of medicines. That action is still pending decision.[4]
11.3 Situation in practice
One wonders whether the fact that the law provides the possibility of filing an action in the courts for loss and/or damage caused by anticompetitive behavior is sufficient to effectively protect the rights of the public in general and whether it provides sufficient tools to enforce these rights. To offer an initial response, if we look at the number of individual actions before the now defunct COFECE or the IFT which ultimately seek to determine damages, according to the public information available, it is very limited.
The lack of action by market players that are affected by anticompetitive practices is due to various factors, such as: unawareness of the existence of these legal mechanisms; the absence of a clear procedure for claiming damages; the difficulty in proving in legal proceedings the causal connection between the conduct and the loss and damage the subject of the claim. Due to all these factors, the conditions do not exist yet for the proliferation of actions for damages by persons affected. In this regard, it is deemed necessary that Parliament needs to regulate the procedures for filing actions for damages in relation to competition, so that those affected by anticompetitive practices who resort to legal action obtain, if it is well founded, the appropriate remedy.
However, in January 2025 the competition courts affirmed a judgment previously issued against the Mexico City International Airport (“AICM”) confirming the finding initially issued by the COFECE under article 134 of the LFCE against the AICM and in favor of a taxi company, due to discriminatory practices by the AICM in favor of other taxi companies[5]. In the same way, in December 2024 the competition courts had already initiated a sub-proceeding to determine the damages to be paid by the AICM.
[1] Article 1910 of the Federal Civil Code: Anyone who unlawfully or against good customs causes harm to another is obligated to repair it, unless they can demonstrate that the damage was a result of the inexcusable fault or negligence of the victim.
[2] Casefile DE-21-2003 COFECO, Propimex, S.A. de C.V. v Coca Cola.
[3] COFECO v Baxter, Fresenius, Eli Lilly and Pisa. Jesús Eduardo Aguilar Cortés, “El papel de la reclamación de daños y perjuicio en el derecho de competencia económica en México” (The role of the claim for damages in competition law in Mexico), Tirant lo Blanch, Mexico, 2019.
[4] Collective action COFECE v Casa Marzam, Casa Saba, Fármacos Nacionales and Asociación de Distribuidores de Productos Farmacéuticos de la República Mexicana.
[5] Decision DE-009-2014 COFECE, Servicio de Excelencia v Santaló Estudios y Proyectos (SEPSA), Sitio 300, Alfonso Méndez; Yellow Cab, Enrique Ruvalcaba; Porto Taxi, Jorge Espinosa; Nueva Imagen, Carlos Tepale, and Confort.
Section elaborated by Ivo Gagliuffi, Javier Coronado and David Fernandez
| INDECOPI | National Institute for the Protection of Competition and Intellectual Property |
| Directorate | National Directorate for Investigation and Promotion of Free Competition of INDECOPI |
| Commission | Competition Commission of INDECOPI |
| Chamber | Competition Chamber of the INDECOPI Competition and Intellectual Property Tribunal |
1.1 Legislative framework and other sources
The Peruvian competition system is regulated by:
The current system of promotion and protection of competition is the responsibility of the National Institute for the Protection of Competition and Intellectual Property. It provides for an administrative and judicial model in which an investigating body, the National Directorate for Investigation and Promotion of Free Competition of INDECOPI (the “Directorate”), investigates and presents cases to an administrative decision-making body, the Competition Commission (the “Commission”). The latter body rules at first instance on whether: (i) the conduct constitutes an anticompetitive practice, imposing the relevant penalties and corrective measures, if this is so; or (ii) whether a business concentration is approved, with or without conditions, or rejected. Afterwards, the Competition Chamber of the Competition and Intellectual Property Tribunal (the “Chamber”) is the decision-making body that rules at second instance on appeals filed against the Commission’s rulings.
The Chamber’s decisions can be the subject of judicial review, specifically, at first instance, by the Judicial Review Chamber of the High Court. The latter body’s decision can in turn be appealed to the Civil Chamber of the Supreme Court and may be the subject of a cassation appeal to the Constitutional and Labor Chamber of the Supreme Court.
The origin of the system of Competition Law dates back to 1991, with the enactment of Legislative Decree 701. This legislation established for the first time the protection of free competition in the Peruvian legislative framework on an institutional and structured basis (there were some previous pieces of legislation of an isolated nature or lacking sufficient legislative technique[25]). Subsequently, it was partly supplemented by legislation on free competition with the inclusion in 1997 of Law 26876, the Law Combatting Monopolies and Oligopolies in the Electricity Sector, which included prior control of business concentrations, but only in the electricity sector.
In 1992, INDECOPI was created by Law 25868, the Law on the Organization and Functions of INDECOPI, in charge of the observance and application of Legislative Decree 701.
Years later, 2008 saw the enactment of Legislative Decree 1034, the Law for the Elimination of Anticompetitive Behavior, the legislation currently in force, whereby Legislative Decree 701 was repealed, a series of new features being established, including the following:
As can be seen, the legislation made important changes to competition regulation in Peru. In addition, certain additional amendments to that law were made on two occasions. First of all, Legislative Decree 1205, of September 2015, which introduced the following changes:
Subsequently, the amendments provided for by Legislative Decree 1396 of September 2018 were included, which incorporated, inter alia:
On the other hand, in relation to control of concentrations, Law 31112, establishing prior control of business concentrations, came into force in June 2021. This legislation incorporated control of concentrations in general, i.e. for all sectors, repealing Law 26876, the former legislation on control of concentrations applicable only to the electricity sector[26], and included some amendments to Legislative Decree 1034.
Finally, through Laws 31040 (2020) and 31775 (2023), the criminal offense of Abuse of Economic Power was introduced and clarified in the Criminal Code, and Legislative Decree 1,034 was amended in relation to the Leniency Program; whereas Legislative Decree 1,728 (2026) introduced some minor amendments to Legislative Decree 1,034, particularly to eliminate the administrative fee for the filing of requests for interim measures.
1.4 Definition of anticompetitive conduct
Competition legislation penalizes anticompetitive conduct, dividing it into two broad types: (i) Abuse of a Dominant Position, and (ii) Collusive Practices (which in turn, are subdivided into Horizontal and Vertical Collusive Practices).
The legislation provides lists of examples or open lists, regarding the forms of behavior that could constitute an Abuse of a Dominant Position or a Collusive Practice.
It should be noted that behavior is analyzed under two different rules, in accordance with articles 8 and 9 of DL 1034: (i) the Per Se Rule, whereby certain behavior is considered to be absolutely prohibited, because it is based on the premise that it cannot confer any benefit on consumers (i.e. price fixing between competitors) and, therefore, in these cases, in order to confirm the existence of an administrative infringement, it is sufficient for the authority to prove the conduct (not its effects on the market); and (ii) the Rule of Reason, according to which certain behavior is considered to be prohibited in relative terms, because it could be justified and capable of creating a pro-competitive balance in the market (i.e. exclusive distribution agreements) and, therefore, in these cases, to confirm the existence of the administrative infringement, the competition authority must prove the existence of the behavior and also that it has -actual or potential- net negative effects for competition and consumer welfare.
1.5 Defendants in competition proceedings
DL 1034 applies to individuals and legal entities, irregular companies, independent funds or other public or private-law entities, national or otherwise, for-profit or nonprofit, which offer or demand goods or services on the market or whose associates or members engage in such activity. It also applies to those who manage, administer or represent the above-mentioned entities that have legal obligations, since those persons have participated in planning, carrying out or executing the administrative infringement. The law also applies to individuals and legal entities which, without competing in the market in which the behavior under investigation occurs, act as planners, intermediaries or facilitators of an infringement subject to absolute prohibition (i.e. hub & spoke). This provision includes officials, executives and public servants, in relation to matters not pertaining to the regular performance of their functions.
DL 1034 is governed by the Effects Theory and, in that sense, applies to behavior that causes or may cause anticompetitive effects in all or part of the national territory, even though that act has originated abroad.
1.7 Acts of the authorities and exemptions
Article 2 of DL 1034 does not draw a distinction regarding the agents that can be considered perpetrators of competition law infringements. In that regard, its scope[27] expressly includes individuals and legal entities, irregular companies, independent funds or other public or private-law entities, national or otherwise, for-profit or nonprofit.
The scope also includes those who manage, administer or represent the above-mentioned entities that have legal obligations. It is also expressly pointed out that individuals and legal entities that act as planners can be penalized, also taking into account officials, executives and public servants, in relation to matters not pertaining to the regular performance of their functions.
Subject to what is stated above, article 3 of DL 1034 establishes an exemption, by pointing out that behavior that is a consequence of legislative provisions falls outside the scope of the legislation. Such legislation will be contested in the appropriate channels (i.e. a constitutional challenge in the Constitutional Court), not before the competition authority.
In this respect, the Chamber issued a binding precedent in its Resolution 479-2014/SC1-INDECOPI of April 16, 2014[28], referring to the application of the exemption described. In the Chamber’s opinion, any exemption from the application of DL 1034 must be based on a restrictive or literal interpretation of other legislation. The Chamber specifically held as follows:
However, by Cassation appeal 2035-2022 (Lima), the national Supreme Court overturned this Resolution 479-2014/SC1-INDECOPI, setting aside the penalty imposed by the Chamber on two labor unions that used boycott strategies to restrict competition in the labor market in the Port of Salaverry in Peru. Although the Supreme Court did not expressly overturn the above-mentioned binding precedent, it would be understood to have ceased to be valid, as the resolution that approved it was formally annulled. Furthermore, the Supreme Court did not follow the Chamber’s reasoning which, as we have pointed out, proposed a restrictive or literal interpretation of legislation that can exclude DL 1034. On the contrary, the Supreme Court adopted a kind of teleological or purpose-based interpretation of the employment legislation in the face of competition legislation, pointing out as follows:
“[T]he correct interpretation of article 2 of Legislative Decree No. 1034, the Law for the Elimination of Anticompetitive Behavior, is that labor unions are not within the scope of that Law, since they are not created with the intention of competing in the market, their intrinsic purpose being the protection of the employment rights of their members in a relationship of subordination to an employer, all of which is guaranteed by the Constitution itself (article 28) and the International Conventions on the subject (Number 87 of the ILO).”
[1] Available at: https://www.congreso.gob.pe/constitucionyreglamento/.
[2] Available at: https://www.gob.pe/institucion/indecopi/normas-legales/6088289-111-2024-pcm.
[3] Available at: https://www.gob.pe/institucion/indecopi/normas-legales/1736208-31112.
[4] Available at: https://wb2server.congreso.gob.pe/spley-portal-service/archivo/MTA2NDUx/pdf/31775-LEY.
[5] Available at: https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H817703.
[6] Available at:
https://cdn.www.gob.pe/uploads/document/file/3288494/3.2.Texto%20integrado%20ROF%20Indecopi%20%28vigente%29.pdf.pdf.
[7] Available at: https://www.gob.pe/institucion/indecopi/normas-legales/2066201-027-2013-clc-indecopi.
[8] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2067535-guia-de-estudios-de-mercado.
[9] Available at: https://www.indecopi.gob.pe/documents/1902049/3898344/CLC%20-%20Lineamientos%20para%20la%20interpretaci%C3%B3n%20de%20aspectos%20espec%C3%ADficos%20de%20la%20Ley%20de%20Represi%C3%B3n%20de%20Conductas%20anticompetitivas.pdf.
[10] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2067481-guia-del-programa-de-clemencia.
[11] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2067475-guia-de-compras-publicas.
[12] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2067464-guia-de-asociaciones-gremiales-y-libre-competencia.
[13] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2115567-lineamientos-del-programa-de-recompensas.
[14] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2115530-guia-de-programas-de-cumplimiento-de-las-normas-de-libre-competencia.
[15] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2115561-lineamientos-de-visitas-de-inspeccion.
[16] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2115541-guia-informativa-sobre-acuerdos-anticompetitivos-entre-empresas-en-el-ambito-laboral.
[17] Available at: https://cdn.www.gob.pe/uploads/document/file/6861713/5935812-guia-para-identificar-consorcios-inusuales-en-las-contrataciones-publicas.pdf?v=1732829317.
[18] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/2115578-lineamientos-sobre-resarcimiento-a-consumidores-por-conductas-anticompetitivas.
[19] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/1945863-lineamientos-para-el-calculo-de-los-umbrales-de-notificacion.
[20] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/3862900-lineamientos-para-la-calificacion-y-analisis-de-las-operaciones-de-concentracion-empresarial.
[21] Available at: https://cdn.www.gob.pe/uploads/document/file/7426125/6327253-cartilla-informativa-sbs-indecopi.pdf?v=1735319052.
[22] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/7116296-proyecto-de-guia-de-colaboracion-entre-competidores-para-practicas-sujetas-a-prohibicion-relativa.
[23] Available at: https://www.gob.pe/institucion/indecopi/informes-publicaciones/7211527-proyecto-de-instructivo-procedimental-del-regimen-de-control-previo-de-operaciones-de-concentracion-empresarial.
[24] To access INDECOPI rulings see: https://servicio.indecopi.gob.pe/buscadorResoluciones/.
[25] For a detailed review of the origins of competition legislation in Peru, see: Gagliuffi, Ivo. (2006). “Viaje a la semilla: ¿cómo era regulada la libre competencia en el Perú hasta antes del Decreto Legislativo 701?” (Back to the Source: how free competition was regulated in Peru before Legislative Decree 701?) (2006). In: Universidad de Lima (Ed.), Libro Homenaje Facultad de Derecho (pp. 133-162). Fondo Editorial Universidad de Lima.
[26] It should be pointed out that beforehand the Government, during the parliamentary interregnum, enacted Urgent Decree 013-2019, establishing for the first time on a transversal basis the Prior Control of Business Concentrations; however, it was repealed by Law 31112, before it came into force.
[27] By “scope” we refer to those as a whole to whom competition legislation may be applied.
[28] Available at:
https://servicio.indecopi.gob.pe/buscadorResoluciones/getDoc?docID=workspace://SpacesStore/220fb8aa-055c-47b3-b046-f3972b402e83.
Article 46 of DL 1034 divides penalties into fines for “minor”, “serious” or “very serious” infringements. Fines for minor infractions can reach up to five hundred (500) UIT[1] (approximately USD 800,000[2]), for serious infractions up to one thousand (1,000) UIT (approximately USD 1,600,000), while fines for very serious infractions can even exceed that last amount.
All of this is so, provided that the fine does not exceed a certain percentage of sales or gross revenue received by the perpetrator of the infringement, or its business group, in relation to its entire business activities in the year prior to that of the Commission’s resolution (8% for “minor” infringements, 10% for “serious” infringements, and 12% for “very serious” infringements).
In the case of professional bodies or business associations, or economic operators that have commenced their activities after January 1 of the year prior to the decision that imposes the fine, such fine may not in any event exceed one thousand (1,000) UIT. (approximately USD 1,600,000).
A fine can also be imposed of up to one hundred (100) UIT (approximately USD 160,000) on individuals, whether legal representatives or members of management bodies, depending on the finding of their degree of responsibility for the infringements committed.
Furthermore, fines can be imposed in the event of submission of false information, concealment, destruction or alteration of information requested by competition bodies, unjustified failure to comply with requests for information, refusal to appear, or the hindering of performance of the functions of competition bodies. These fines can amount to one thousand (1,000) UIT (approximately USD 1,446,000). provided that they do not exceed 10% of the sales or gross revenue of the perpetrator of the infringement or its business group for the year immediately prior to that of the Commission’s decision.
[1] The UIT is the Tax Unit, which is used in Peru to calculate the amount of administrative fees or fines. The UIT is updated annually. For 2026, it has been set at PEN 5,500 (approximately USD 1,600).
[2] Calculated as of 16/03/2025, an exchange rate of around 3.44 PEN per USD was applied, considering this value as an average due to exchange rate variability.
At the time this document was prepared, there was no significant draft legislation on competition under consideration in the Peruvian Congress. However, some bills seek to modify the economic regime set out in the Constitution or to grant INDECOPI constitutional status, and their content could affect the application of competition rules.[1] These initiatives, however, do not appear to have gained significant support.
The most recent amendments to the regulation of the subject that are in force were the passing of Law 31112 (2021), establishing merger control; Law 31775 (2023), specifying the offense of abuse of economic power; and Legislative Decree 1728 (2026), which eliminated the requirement to pay a fee for requests for interim measures and the provision establishing that the parties must bear the costs of evidentiary actions ordered by the authority (something that, in practice, was not previously happening).
[1] In this regard, on November 20, 2025, the Plenary of the Congress of the Republic approved, on first reading, the opinion proposing a constitutional reform bill that would elevate INDECOPI to the status of an autonomous constitutional body. For the proposal to become law, it was originally required to be ratified by referendum. However, on December 4, 2025, the Plenary approved a motion for reconsideration in order to reopen debate on the opinion. As a result, the proposal must once again be discussed and potentially approved by Congress.
4.1 National Directorate for Investigation and Promotion of Free Competition[1]
In addition, for the conduct of its investigative activities, the Directorate has powers to: (i) carry out inspection visits with or without prior notification (dawn raids), at premises of individuals or economic operators; (ii) demand that any kind of document be handed over, such as internal and external correspondence, and magnetic or electronic records; (iii) summon and question persons under investigation or their officials; (iv) demand, with prior judicial authorization, a copy of private correspondence contained in physical or electronic files; and (v) seek judicial authorization to remove the secrecy of communications (including the confiscation of cellphones and other devices, monitoring of calls and copying of personal messages sent or received using any application).
In this respect, these investigative powers allow the Directorate to use various tools for the purpose of obtaining evidence to prove the existence of cartels in Peru. In addition, the possibility of demanding private correspondence and removing the secrecy of communications facilitates the authority’s work with the adoption of new technologies used by economic operators so as to plan, implement and monitor these unlawful agreements.
4.2 Competition Commission
4.3 Competition Chamber of the Competition and Intellectual Property Tribunal
[1] Although DL 1034 refers to the “Technical Secretariat”, article 96 of the “Integrated Text of the Regulations on the Organization and Functions of the National Institute for the Protection of Competition and Intellectual Property” creates the “National Directorate for Investigation and Promotion of Free Competition”, and article 97 assigns to this body the task of “Carrying out the functions of Technical Secretariat of the Competition Commission”.
5.1 Applicable legislation
Abuses of a dominant position are analyzed in accordance with article 10 of DL 1034. In particular, article 10.1 of that legislation provides that an abuse of a dominant position exists when a dominant operator in the relevant market uses its position to unduly restrict competition, with the intention of making a profit, to the detriment of actual or potential competitors, whether direct or indirect. This is so insofar as the abusive behavior would not have been possible if there was no dominant position.
Since, according to article 10.4 of DL 1034, abuses of a dominant position are subject to a relative prohibition, in accordance with article 9 of the same legislation, in order to prove the existence of an infringement, the authority must confirm the conduct and that it has or could have negative effects on competition and consumer welfare.
Potentially abusive behavior is therefore analyzed applying the standard of the so-called Rule of Reason.
5.2 Dominant position
Under article 7.2 of DL 1034, the mere possession of a dominant position does not constitute unlawful conduct. In addition, according to article 7.1 of the same legislation, an economic operator is deemed to enjoy a dominant position in a relevant market when it is capable of substantially restricting, affecting or distorting the supply or demand conditions in that market, its competitors, suppliers or customers being unable, at that time or in the immediate future, to counteract that possibility, due to factors such as:
5.3 Abuse of a dominant position
DL 1034 only considers to be abusive behavior conduct that can have an exclusionary effect (in contrast, abuses that only have strictly exploitative effects are not sanctioned, as is the case in certain jurisdictions.). In particular, article 10.2 provides a list of examples of that kind of behavior, such as: unjustified refusal to deal, application of dissimilar conditions to equivalent transactions (discrimination), imposing as a condition for the conclusion of contracts the acceptance of additional transactions that bear no relation to the subject matter of such contracts (tied sales), imposing exclusive distribution or sale agreements or non-compete clauses which are not justified, repeated abuse of judicial or administrative proceedings aimed at restricting free competition (predatory litigation).
In general, behavior that impedes or hinders the entry or continued presence of current or potential competitors, for reasons other than greater economic efficiency, will be considered abusive practices.
5.4 Standard for assessment of behavior
In various resolutions the Chamber has defined the sequence of analysis in cases of abuse of a dominant position[1]. This has been included in the Guidelines for the interpretation of specific aspects of the Law for the Elimination of Anticompetitive Behavior[2] which provide the concurrent conditions as indicated below:
According to various rulings of the Commission and the Chamber, it is not necessary to verify the existence of actual exclusionary effects, it being sufficient to prove that the conduct can potentially have such effects.
5.5 Trends
Most of the proceedings for abuse of a dominant position have been commenced by complaints made by a party, i.e. by private economic operators, not by ex officio actions of the Directorate. In recent years, however, there has been a move towards investigating and pursuing ex officio potential cases of abuse of a dominant position.
[1] For example, see Resolutions No. 0589-2015/SDC-INDECOPI, No. 0460-2016/SDC-INDECOPI, and N°0266-2025/SDC-INDECOPI, available at: https://servicio.indecopi.gob.pe/buscadorResoluciones/tribunal.seam.
[2] Competition Commission (2016) “Lineamientos para la Interpretación de Aspectos Específicos de la Ley de Represión de las Conductas Anticompetitivas” (Guidelines for the interpretation of specific aspects of the Law for the Elimination of Anticompetitive Behavior), Section 2.1, published by Resolution No. 129-2016-INDECOPI/COD. Available at: https://www.indecopi.gob.pe/documents/1902049/3898344/CLC%20-%20Lineamientos%20para%20la%20interpretaci%C3%B3n%20de%20aspectos%20espec%C3%ADficos%20de%20la%20Ley%20de%20Represi%C3%B3n%20de%20Conductas%20anticompetitivas.pdf
6.1 Applicable legislation
The applicable legal regime described in article 11 of DL 1034 provides that the following will constitute a “horizontal” collusive practice: any agreement, decision, recommendation or concerted practice engaged in by competing economic operators if they have as their object or effect the restriction, obstruction or distortion of free competition. Examples of these, listed in the same law, are agreement on or for:
The legislation also provides that some of these practices are always particularly damaging to competition and the market, which are known as “hardcore cartels”. In that case, article 11.2 of DL 1034 provides that the following are subject to absolute prohibitions: inter-brand horizontal collusive practices (i.e. between economic operators that do not belong to the same business group) which do not complement or are not ancillary to other lawful agreements and which have as their object:
All other collusive practices would therefore be subject to relative prohibitions (article 11.3 of DL 1034).
6.2 Statute of limitations
The limitation period for this type of behavior is five (5) years from the final act of execution of the infringing behavior. It should be pointed out that the limitation period is interrupted by any act of the Directorate relating to the investigation of the infringement which is notified to the person allegedly responsible.
6.3 Compensated reporting
This concept is provided for in Peruvian legislation by means of the so-called Leniency Program. This consists of the possibility, before the commencement of an administrative procedure for the imposition of penalties, for any person to request an exemption from penalties in exchange for providing evidence that helps to detect and prove the existence of a collusive practice, and to penalize those responsible (article 26.1 DL 1034).
If several economic operators seek exemption from penalties, only the first that has provided evidence in relation to the existence of anticompetitive behavior and the identity of the perpetrators of the infringement, will benefit from the full exemption (Type A Leniency)[1]. This is so unless the Directorate already has circumstantial evidence of the existence of the collusive practice, in which case the Directorate will reasonably assess the amount of the reduction, between 50% and 100% of the applicable fine, depending on the usefulness and effectiveness of the information provided (Type B Leniency)[2].
Other economic operators that provide relevant information may benefit from a reduction of the fine (Type C Leniency)[3], if such information contributes significant added value to the investigative and disciplinary activities of the Directorate and the Commission (article 26.3 DL 1034).
For the reduction of the fine, DL 1034 provides for the following ranking:
The following are some of the requirements to participate in the leniency program: (i) that the individual or legal entity has participated in the cartel; and (ii) that he offers his full cooperation with the authority’s investigative activities. In this regard he will be required to provide relevant information to prove the conduct and will continue to have a duty to cooperate throughout the entire procedure. The Commission published, in August 2017, the Leniency Program Guide, describing various additional aspects relating to the program[4].
6.4 Specific penalties
In accordance with the Twenty-third Final Additional Provision of the Consolidated Amended Text of Law No. 30225, the Public Procurement Law, approved by Supreme Decree No. 082-2019-EF[5], if the INDECOPI classifies an anticompetitive practice pursued in the course of contracting with the State as a very serious infringement and that aspect of the final resolution becomes final, then the Public Procurement Supervisory Body (OSCE) enters the perpetrators of the infringement in the register of persons disqualified from contracting with the State and they will remain on record there for a period of one (1) year.
6.5 Criminalization
On June 7, 2023, Law 31775 was published, amending article 232 of the Criminal Code, in relation to the offense of abuse of economic power, within the offenses against the economic order[6]. With this amendment, horizontal collusive practices subject to absolute prohibition (hardcore cartels) could be penalized not only in administrative proceedings, but also in the criminal courts, and individuals involved in the alleged offense could be individually prosecuted. However, Law No. 31775 has provided that the beneficiaries of total exemption under the Leniency Program may also benefit from immunity in criminal proceedings.
6.6 Trends
The Commission has engaged in extensive work in detecting horizontal collusive practices, specifically, the detection of hardcore cartels, whose penalties have been generally confirmed by the Chamber at second instance at administrative level. In addition, the leniency program has been playing an important role in the detection of this type of conduct. Nevertheless, in the medium term it will be necessary to analyze the impact of the criminalization of cartels and the grant of immunity from prosecution to the beneficiaries of the total exemption in a leniency program, in accordance with Law 31775 of 2023.
[1] See: Technical Secretariat of the Competition Commission (2017), “Guía del Programa de Clemencia” (Leniency Program Guide). Section 3.1.: “Exoneración de la sanción” (Exemption from penalties).
[2] Idem.
[3] See: Technical Secretariat of the Competition Commission (2017), “Guía del Programa de Clemencia” (Leniency Program Guide). Section 3.2.: “Reducción de la sanción” (Reduction of penalties).
[4] In this respect, see the “Guía del Programa de Clemencia” (Leniency Program Guide), available at:
https://www.INDECOPI.gob.pe/documents/1902049/3761587/Gu%C3%ADa+del+Programa+de+Clemencia.pdf
[5] Public Procurement Law. “Twenty-third Final Additional Provision.- Anticompetitive practices in Public Procurement.- In the framework of the provisions of the Second Final Additional Provision of Legislative Decree No. 1034, the Legislative Decree approving the Law for the Elimination of Anticompetitive Behavior, when the National Institute for the Protection of Competition and Intellectual Property (INDECOPI) finds an infringement of that Law classified as very serious and the penalty is final, the Public Procurement Supervisory Body (OSCE), or whoever acts as such, shall proceed to enter, for a period of one year, the perpetrators of the infringement in the register of persons disqualified from contracting with the State”.
[6] Criminal Code “Article 232.- Abuse of economic power. Any person who participates in an anticompetitive agreement or practice subject to an absolute prohibition established in Legislative Decree 1034, the Legislative Decree approving the Law for the Elimination of Anticompetitive Behavior, or legislation that may replace it, with the object of impeding, restricting or distorting free competition, shall be punished by a prison sentence of not less than two nor greater than six years, with a fine of between one hundred and eighty and three hundred and sixty-five days and disqualified in accordance with article 36, subparagraphs 2 and 4.”
7.1 Applicable legislation
The regulation applicable to such conduct is described in article 12 of DL 1034, which provides that the following constitute vertical collusive practices: agreements, decisions, recommendations or concerted practices engaged in by economic operators operating at different levels in the same production, distribution or marketing chain, which have as their object or effect the restriction, obstruction or distortion of free competition.
In this respect, the legislation points out that these vertical unlawful practices may consist of scenarios classified as infringements for cases of abuse of a dominant position and for cases of horizontal collusive practices.
It also provides that this anticompetitive practice requires that at least one of the parties involved has, before engaging in the conduct, a dominant position in the relevant market.
Like abuses of a dominant position, vertical collusive practices are subject to a relative prohibition and, therefore, are analyzed in accordance with the Rule of Reason.
7.2 Statute of limitations
Like horizontal collusive practices, the limitation period for this type of behavior is five (5) years from the final act of execution of the infringing behavior. It should be remembered once again that the limitation period is interrupted by any act of the Directorate relating to the investigation of the infringement which is notified to the person allegedly responsible.
7.3 Specific powers
These powers are the same as those that apply to the investigation and detection of abuses of a dominant position and horizontal collusive practices.
7.4 Compensated reporting
In accordance with the Leniency Program Guide (2017), compensated reporting does not apply to this type of conduct.
7.5 Trends
Most investigations of vertical collusive practices have not been launched by the Commission. This was pointed out in the Peer Review of Competition Law and Policy in Peru, drawn up by the OECD and the Inter-American Development Bank in 2018[1].
[1] Available at: https://www.oecd.org/daf/competition/PERU-Peer-Reviews-of-Competition-Law-and-Policy-2018.pdf
8.1 Applicable legislation
Legislative Decree 1044, the Law for the Elimination of Unfair Competition (“DL 1044”), of July 26, 2008, regulates the system of unfair competition and punishes acts of unfair competition whose actual or potential effect is that the proper functioning of the competitive process is affected or impeded. Its provisions apply to any individual or legal entity that offers or demands goods or services in the market, and engages in conduct that causes or may cause effects in Peruvian territory, even if the act has originated abroad.
As regards conduct, for an act to be considered an unfair practice, it is sufficient that it contravenes the General Clause provided in article 6 of DL 1044, i.e., that it is objectively contrary to good faith in business, this premise essentially being the basis for classifying acts as unfair practices.
In that sense, the unfairness of conduct under competition rules will be determined in view of the fact that such conduct is not motivated by efficiency, but rather by a violation of the requirements of objective good faith. Thus, the following are considered acts contrary to the requirements of good faith in business (unfair): those which lead to a competitor acquiring a better competitive position -attracting customers or suppliers-. This is done by actions that are not based on its own entrepreneurial effort, but rather they are essentially actions obstructing third-party competitors.
8.2 Classification (types of conduct)
In addition to the definition of unfair acts contained in the General Clause, the legislature saw fit to provide a list of examples of such acts, for the purpose of guiding citizens with greater certainty regarding conduct that is deemed to infringe that General Clause, for which it adopts the following classification:
It should be emphasized that, in terms of case law, the fact is that INDECOPI admits or pursues complaints of unfair competition using some of the above-mentioned practices contained in the list of examples, establishing a series of scenarios contained in DL 1044 that must be met so as to be considered an unfair practice. On the other hand, the concept of the General Clause is used when the conduct reported has atypical characteristics of its own which do not resemble any of the infringements already listed in the legislation, i.e., it is applied as a last resort[1].
8.3 Competent Authority
The competent authority to hear cases in this respect is the Unfair Competition Supervisory Commission of INDECOPI, at first instance at administrative level, and the Chamber as the second instance at administrative level.
8.4 Procedure
The procedure may be commenced ex officio or in response to a party’s complaint, then the accused must present its case so that the evidence that is considered appropriate is taken and a final resolution is issued. A resolution at first instance is issued within a maximum period of approximately two hundred and five (205) working days and, if there is an appeal against that resolution, at second instance the resolution is issued within a maximum period of one hundred and twenty (120) working days, in accordance with DL 1044.
8.5 Penalties
If the perpetrator of the infringement is found liable, the authority may impose a fine of up to seven hundred (700) UIT per infringement, provided that this does not exceed 10% of the gross revenue received by the perpetrator in relation to its entire business activities, for the year immediately prior to that of the issue of the Commission’s resolution.
[1] See Resolutions No. 25-2022/SDC-INDECOPI, No. 86-2021/SDC-INDECOPI, No. 98-2018/SDC-INDECOPI, No. 235-2017/SDC-INDECOPI and No. 3156-2012/SDC-INDECOPI.
9.1 Applicable legislation
Law 31112, which establishes Prior Control of Business Concentrations, was published on January 7, 2021 and came into force on June 14, 2021. This legislation replaced the Urgent Decree 013-2019 of the Government, published on November 19, 2019, which introduced, for the first time, a general regime for control of business concentrations in Peru. Law 31112 also repealed Law 26876, the Law Combatting Monopolies and Oligopolies in the Electricity Sector, which established control of concentrations only for the Peruvian electricity sector, since 1993.
Regulations under Law 31112 were enacted by Supreme Decree 039-2021-PCM, in March 2021. Those regulations, inter alia: (i) established an ordinary procedure and another simplified procedure for the notification of concentrations; (ii) defined the scope of the calculation of the economic thresholds to determine the obligation to notify; (iii) regulated the procedure for reviewing conditions; and (iv) established the special circumstances which may justify an ex officio investigation of transactions where there is no obligation to notify.
On an additional basis, the Commission has approved and published Guidelines for the Calculation of Notification Thresholds (“Guidelines for the Calculation of Thresholds”)[1], which establish the details of the calculation of economic thresholds that determine whether or not a transaction must be notified on a mandatory basis. The Commission also recently approved Guidelines for the Classification and Analysis of Concentrations (“Guidelines for the Classification of Concentrations”)[2].
9.2 Authorities
The Commission is the competition authority with powers to apply Law 31112. However, in the case of transactions of entities that obtain deposits from the public, such as banks and financial institutions, the joint approval of the Commission in relation to competition, and of the Banking, Insurance and Pension Fund Managers Supervisory Authority (SBS) is required, according to its responsibilities. In addition, since a concentration between entities that obtain deposits from the public poses a systemic risk for the stability of the banking and financial system, only the approval of the SBS will be required[3]. On the other hand, in cases in which a transaction involves economic operators whose activities have been authorized by the Securities Market Supervisory Authority (SMV), the joint approval of the Commission will be required, in relation to competition, and of the SMV according to its responsibilities.
9.3 Notifiable concentrations
Under article 5 of Law 31112, concentrations within the scope of that legislation are any act or transaction that involves a transfer or change of control over an enterprise or part of such enterprise. Such concentrations can occur as a consequence of the following transactions (see Table No. 1):
Table No. 1
Cases of business concentrations covered by Law 31112
| Type of transaction | Comment |
| (a) A merger of two or more economic operators, which were independent before the transaction, irrespective of the form of corporate organization of the entities that are merged or of the entity resulting from the merger. | Independence refers to operators that do not form part of the same business group. Law 31112 also defines economic operator as an individual or legal entity, national or foreign, subject to private law or public law, which offers or demands good or services and is the holder of rights or beneficiary of contracts or which, without being the holder of such rights or beneficiary of such contracts, may exercise the rights inherent in them. This includes national or foreign investment funds (article 3). |
| (b) The acquisition by one or more economic operators, directly or indirectly, of rights which enable it, individually or jointly, to exercise control over all or part of one or more economic operators. | The concept of control has been defined in article 3 of Law 31112, as the possibility to exercise decisive and continuous influence over an economic operator by (i) rights of ownership or of use of all or part of the assets of an enterprise, or (ii) rights or contracts which allow influence to be decisively and continuously exercised over the composition, deliberations or decisions of the bodies of an enterprise, determining competitive strategy directly or indirectly.
Various Commission rulings have held that control can be positive or negative, which has been included in the Guidelines for the Classification of Concentrations. |
| (c) The establishment by two or more economic operators, which are independent of each other, of a joint venture or any other similar contractual form that involves the acquisition of joint control over one or more economic operators, so that such economic operator performs the functions of an autonomous business entity. | The Guidelines for the Classification and Analysis of Concentrations issued by the Commission have included in this case the signature of association agreements, such as joint ventures and consortiums[4]. Also included are shared-risk contracts and other forms of association that involve joint control of two or more operators, which may involve associations, irregular companies and any organizational structure that is different from that of its members. |
| (d) The acquisition by an economic operator of direct or indirect control, by any means, of operating productive assets of another or other economic operators. | The Regulations pointed out that an operating productive asset is an asset that generated a flow of business, sales or revenue for the economic operator in the year prior to the transaction. |
In addition, under article 2 of Law 31112, concentrations within the scope of the legislation are those that have effects in all or part of the national territory. This also includes concentrations that are carried out abroad and are binding directly or indirectly on economic operators that engage in business activities in the country, i.e. there must be a geographical connection with national markets.
9.4 Mandatory notification thresholds
A transaction that is classified as a business concentration and has a geographical connection in Peru, must be notified on a mandatory basis to the Directorate before it is carried out, provided that the following economic thresholds are met simultaneously[5]:
The Regulations and the Guidelines for the Calculation of Thresholds establish the scope of information and the details for calculating it.
For example, in the case of transactions consisting of the purchase of rights that involve the acquisition of control of an economic operator by another previously independent operator, the thresholds must take into account sales, gross revenue, or assets at book value of the acquiring operator and its business group in Peru, and of the operator being acquired and only the operators over which the latter exercises control[7].
In addition, in the case of the calculation of thresholds by assets, an exception is applied to determine whether the assets are located in Peru. In particular, the Guidelines for the Calculation of Thresholds provide that if more than 50% of the sales attributable to a particular asset are exports, such asset will not be considered to be located in Peru and, therefore, its book value will not be taken into account for the purposes of the calculation of thresholds[8]. This exception is intended to be consistent with the treatment of the calculation of thresholds by sales or services, which take into account the place of delivery or performance of the service, irrespective of the provider’s residence.
9.5 Voluntary notification and ex officio investigation
Article 6.4 of Law 31112 provides that the Directorate may act ex officio in cases in which there are reasonable signs to consider that the concentration may give rise to a dominant position or affect effective competition in the relevant market.
Thus, Law 31112 stipulates that the notification of the transaction is voluntary for the parties when the enterprises involved do not reach the thresholds established in article 6.1 of the legislation.
When read together, these provisions imply that the Directorate has powers to conduct an ex officio investigation of the effects of a transaction which fulfills the conditions of a change of control between economic operators and a geographical connection, but which do not reach the economic thresholds provided for in the legislation. The legal framework also offers an individual the possibility to issue a voluntary notification, if he considers that there are reasonable signs that the transaction may give rise to a dominant position or affect effective competition in the relevant market.
However, the ex officio review cannot be arbitrarily activated, but rather it is included within a series of parameters aimed at identifying reasonable signs regarding the creation of a dominant position or a significant restriction of competition in the relevant markets involved. Thus, the Directorate can only commence the ex officio review of a business concentration up to one (1) year after its formal closing[9].
Finally, this ex officio review involves the authority proving the existence of special circumstances in which reasonable signs are identified that the Transaction may give rise to a dominant position or affect effective competition in the relevant market.
In this respect, the Regulations provide an open list of special circumstances, pointing out certain examples which are indicated below:
“Article 23. Criteria and parameters for ex officio action of the Technical Secretariat in the event of business concentrations
23.2 The scenarios indicated below, inter alia, are considered special circumstances:
It must be borne in mind that scenario d) above covers any concentration that has the potential to create possible significant restrictive effects on competition. This must be read in a broad sense, so that even if a transaction does not give rise to significant effects which are effective when the transaction is executed, it could be investigated if it is considered that such effects have not materialized, but could do so in the future.
9.6 Prior consultations
Under article 17 of Law 31112, before the prior control procedure is commenced, economic operators participating in the business concentration can individually or jointly consult the Directorate for guidance. This is so as to be able to clarify, among other aspects, whether the transaction falls within the scope of this Law or what information is required for the prior control. The Directorate’s opinions are not binding on the Commission when making its decisions.
9.7 Pre-notification
There is the possibility of pre-notification to the Directorate; however, this procedure is informal, is not binding and there are no legal time limits. The following are the main advantages of pre-notification:
9.8 Procedure and time limits
When the application has been admitted for consideration, the Commission has thirty (30) working days to issue a decision at Stage 1, or refer the transaction to Stage 2. The application and the file are kept strictly confidential, which means that no third party has access to it.
At any time in the procedure, the parties can request hearings or oral submissions to the Commission. In these cases, the time limit for the procedure can be extended for up to fifteen (15) working days. The Commission can also request information from other public institutions, and may suspend the administrative time limits for up to ten (10) working days, which may be extended by an additional five (5) working days, so as to obtain the response of the institution in question.
Within the legal time limit, the Commission can unconditionally authorize the transaction at Stage 1, or order the commencement of Stage 2, when it considers that there are potential significant restrictions on competition which must be analyzed in greater detail.
According to information from public resolutions to date, which authorize concentrations at Stage 1, the Commission has been issuing resolutions in approximately two months from when the application is filed. To date no transaction has been the subject of a resolution issued outside the legal time limit.
During Stage 2, although the case is made public, and third parties with a legitimate interest duly appearing can access the file, the parties can request that the information that they consider appropriate is kept confidential.
The Commission has ninety (90) working days to issue a ruling; this period can be extended by an additional thirty (30) working days.
At any time at Stage 2, the parties can request hearings or oral submissions to the Commission. In these cases, the time limit for the procedure can be extended for up to fifteen (15) working days. The Commission can also request information from other public institutions, and may suspend the administrative time limits for up to ten (10) working days, which may be extended by an additional five (5) working days, so as to obtain the response of the institution in question.
According to public information, as of December 2025, five (5) transactions that completed the prior authorization procedure, were authorized at Stage 2. These applications were resolved in periods of between nine (9) months and one (1) year, approaching the maximum time limits stipulated[10].
Finally, in 2024 the Commission refused authorization of one (1) concentration in the sugar industry. In the Commission’s opinion, the transaction would give rise to a significant restriction of competition in two markets related to the sugar industry in Peru, whereas the measures proposed by the applicant would not mitigate these possible restrictive effects[11].
9.9 Positive administrative silence
If the competent body fails to issue an express ruling within the stipulated legal time limit, positive administrative silence applies, the transaction being deemed to be unconditionally approved, and the prior control procedure is concluded. To date no application for prior authorization has been approved by resorting to positive administrative silence.
9.10 Appeals
If the application for authorization is refused or is authorized subject to conditions, the applicant economic operators can file an appeal. The time limit for filing such appeal is fifteen (15) working days from the day following notification of the resolution ending the first instance procedure conducted by the Commission.
If the Commission has ordered an interim measure, enforcement of the contested resolution is not suspended, unless the Chamber orders otherwise by means of a duly reasoned resolution. The Chamber rules within a maximum period of ninety (90) working days and ends the administrative proceedings.
9.11 Breach of the obligation to notify (gun jumping)
Executing a business concentration which should have been notified on a mandatory basis, without having filed the relevant application for authorization or without having waited for the competent administrative authority to issue a ruling or definitively conclude the prior control procedure (gun jumping), renders null and void any acts arising from such execution. These acts have no legal effect, without prejudice to the applicable penalties.
In particular the following are considered serious infringements:
These infringements result in fines of up to one thousand (1,000) UIT (approximately USD 1,600,000.), subject to a limit of 10% of the sales or gross revenue of the perpetrator of the infringement or its business group.
The following are also infringements, although of a minor nature:
These infringements involve fines of up to five hundred (500) UIT (approximately USD 800,000), subject to a limit of 8% of the sales or gross revenue of the perpetrator of the infringement or its business group.
In addition, the following are considered very serious infringements:
These infringements may lead to fines exceeding one thousand (1,000) UIT (approximately USD 1,600,000 ) subject to a limit of 12% of the sales or gross revenue of the perpetrator of the infringement or its business group.
9.12 Substantive Analysis to Classify a Concentration
Article 7 of Law 31112 points out that the test that must be applied by the authority in relation to the economic analysis of a concentration involves identifying whether it causes a significant restriction of competition in the markets involved. Although it refers to the markets involved, in various resolutions the Commission has carried out the substantive analysis applying a standard definition of relevant markets[12].
In the case of horizontal concentrations, the recent Guidelines for Classification of Concentrations include the case law of the Commission developed since Law 31112 came into force. In particular, they have established the following criteria for analysis using the Herfindahl-Hirschman Index (HHI), so as to conclude that the transaction is unlikely to create risks to competition:
However, the Commission will consider that, despite the circumstances described above, there are risks to competition if other economic aspects are identified such as:
An interesting aspect in relation to the substantive analysis is that the Commission will consider the possible competitive pressures to which the operators involved in the transaction might be subject that may be exerted by the informal supply, bearing in mind that the informal or underground economy in Peru accounts for a significant percentage of the national economy.
On the other hand, the Commission has paid attention to possible vertical anticompetitive effects in concentrations. The authority has adopted the international experience of the European Commission[13] and the Federal Trade Commission (FTC) to develop an analysis of vertical impacts, strengthening the predictability of its decisions.
In fact, based on the experience of the European Commission and the FTC, in recent decisions of the Commission[14] in which it has identified vertical overlaps, the authority has investigated whether there may be significant risks to competition arising from the following situations or theories of harm:
In order to rule out the existence of these possible effects, the Commission has adopted as a criterion that a concentration could give rise to vertical risks when the enterprises involved have a market share equal to or greater than 30% in the respective links of the production chain, in line with the experience of the European Commission and the FTC.
[1] Resolution 022-2021/CLC-INDECOPI, of May 19, 2021.
[2] Resolution 103-2022/CLC-INDECOPI, of December 27, 2022.
[3] This procedure has been explained in greater detail by the “Factsheet on the role of the Banking, Insurance and Pension Fund Managers Supervisory Authority in the prior control of business concentrations”.
[4] See: National Directorate for Investigation and Promotion of Free Competition (2023) “Lineamientos para la calificación y análisis de las operaciones de concentración empresarial” (Guidelines for the classification and analysis of concentrations). Section 1.2.3.: “Constitución de una empresa en común, joint venture y modalidades análogas” (Establishment of a joint venture and similar forms).
[5] It should be pointed out that the thresholds are not based on the value of the transaction, but rather on the sum of the factors of sales or gross revenue, or on the book value of assets in Peru.
[6] Article 6.1 of Law 31112.
[7] Competition Commission (2021) “Lineamientos para el Cálculo de los Umbrales de Notificación” (Guidelines for the Calculation of Notification Thresholds). Section 2: “identificación de las empresas involucradas” (identification of enterprises involved).
[8] Idem. Section 3.2.3. “Valor de los activos: Nexo geográfico” (Value of assets: Geographical connection).
[9] Article 23.4 of the Regulations.
[10] See in this respect: INDECOPI, News “El Indecopi autorizó con condiciones la adquisición de Hersil S.A. por parte de Pharmaceutica Euroandina S.A.C.” (INDECOPI authorized subject to conditions the acquisition of Hersil S.A. by Pharmaceutica Euroandina S.A.C.), Press release (October 2022), available at: https://www.gob.pe/institucion/indecopi/noticias/663850-el-indecopi-autorizo-con-condiciones-la-adquisicion-de-hersil-s-a-por-parte-de-pharmaceutica-euroandina-s-a-c; INDECOPI, News, “El Indecopi autoriza con condiciones la operación de adquisición de Enel Distribución por parte de China Southern Power Grid International” (INDECOPI authorizes subject to conditions the acquisition of Enel Distribución by China Southern Power Grid International), Press release (February 2024), available at: https://www.gob.pe/institucion/indecopi/noticias/902252-el-indecopi-autoriza-con-condiciones-la-operacion-de-adquisicion-de-enel-distribucion-por-parte-de-china-southern-power-grid-international; INDECOPI News, “El Indecopi autoriza con condiciones una operación de concentración empresarial en el mercado mayorista de redes de acceso de fibra óptica” (INDECOPI authorizes subject to conditions a business concentration in the wholesale market for fiber optic networks), Press release (September 2024), available at: https://www.gob.pe/institucion/indecopi/noticias/1026842-el-indecopi-autoriza-con-condiciones-una-operacion-de-concentracion-empresarial-en-el-mercado-mayorista-de-redes-de-acceso-de-fibra-optica; and, INDECOPI News, “El Indecopi autoriza con condiciones una operación de concentración empresarial en el mercado de materiales de construcción” (INDECOPI authorizes subject to conditions a business concentration in the wholesale market for construction materials), Press release (October 2024), available at: https://www.gob.pe/institucion/indecopi/noticias/1041735-el-indecopi-autoriza-con-condiciones-una-operacion-de-concentracion-empresarial-en-el-mercado-de-materiales-de-construccion.
[11] See in this respect: INDECOPI, News “El Indecopi no autorizó que el Grupo Gloria adquiera la empresa fabricante de azúcar doméstica Agrícola del Chira S.A.” (INDECOPI did not authorize the Gloria Group to acquire the company manufacturing domestic sugar Agrícola del Chira S.A.), Press release (July 2024), available at: https://www.gob.pe/institucion/indecopi/noticias/984250-el-indecopi-no-autorizo-que-el-grupo-gloria-adquiera-la-empresa-fabricante-de-azucar-domestica-agricola-del-chira-s-a.
[12] This is the case of Resolution No. 013-2023-CLC/INDECOPI.
[13] In fact, in the Vinci / Cobra Servicios transaction the Commission referred to the standards set forth in the Guidelines for the assessment of nonhorizontal concentrations in accordance with the Council Regulation on the control of concentrations between undertakings. In: Official Journal of the European Union. 2008/C 265/07. Available at: https://eur-lex.europa.eu/legal-content/ES/TXT/PDF/?uri=CELEX:52008XC1018(03)&from=ES
[14] In this respect, consult Resolutions 098-2021/CLC-INDECOPI of December 17, 2021 (Vinci – Cobra case) and 043-2022/CLC-INDECOPI of July 19, 2022 (Al Manaki / Holding Hotelera GHL case).
The legislation applicable in these procedures is that established in Title V of DL 1034 (“Administrative Disciplinary Procedures”). The various stages of this procedure (and the authority in charge) are indicated below.
10.1 Part one: the responsibility of the Directorate
10.2 Part two: the responsibility of the Commission
10.3 Part three: the responsibility of the Chamber
[1] Article 21 of DL 1034.
[2] Article 28 of DL 1034.
Since DL 1034 provides that final rulings of the Chamber end the administrative procedures, no additional administrative appeal can be filed. In this sense, only an action for judicial review can be filed against them in the courts, in accordance with the relevant legislation.
In accordance with the Third Final Additional Provision of Law 31112, actions for judicial review of resolutions issued by INDECOPI in relation to elimination of anticompetitive behavior and prior control of business concentrations are filed at first instance in the Judicial Review Chamber of the relevant High Court. In this case, the Civil Chamber of the Supreme Court decides on appeal and the Constitutional and Labor Chamber hears cassation appeals, if any, in accordance with the provisions of Law 27709, amending article 9 of Law 27584, which regulates judicial review proceedings.
In addition, in relation to competition, the time limit for filing an action for judicial review is three months, in accordance with the provisions of article 18 of the Consolidated Amended Text of Law 27584, governing Judicial Review Proceedings.
12.1 Competition Advocacy
The Commission, pursuant to the power granted by article 14.e) of DL 1034, can suggest, urge or recommend to entities of the public administration to implement measures to restore or promote competition. Among such cases would be the elimination of entry barriers or the application of economic regulation to a market in which competition is not possible.
12.2 Market Studies and Reports
The Directorate, pursuant to the power conferred by article 15.2.g) of DL 1034, can conduct studies and publish reports. The parameters for drawing up these documents are established in the Market Studies Guide.
12.3 Guidelines and Guides
The Commission, pursuant to the power conferred by article 14.e) of DL 1034 and on the basis of a proposal made by the Directorate, can issue Guidelines and/or Guides on matters within its powers.
In addition, guidelines can be prepared by the Commission in relation to a specific subject, according to the powers delegated by other pieces of primary legislation, for example, in relation to control of concentrations (articles 12.2, 18.4, 58 of Law 31112) and rewards linked to the reward program (article 28.2 of DL 1034).
12.4 Opinion on draft laws and legislative initiatives
INDECOPI, through its Chair of the Governing Council, can propose to the relevant Government authorities the adoption of the measures that it considers necessary to ensure protection of the rights and principles governing the functions assigned to the institution; this is in accordance with article 7.3.c) of Legislative Decree 1033, the Law governing the Organization and Functions of INDECOPI.
13.1 Applicable scenarios
Article 52 of DL 1034 provides that any person that has suffered damage as a consequence of anticompetitive behavior which has been held to exist by a final ruling, may pursue in the Courts a civil claim for damages, even if he has not been a party to proceedings pursued before INDECOPI.
13.2 Functions of INDECOPI
An action for damages can also be filed by the Commission, following a favorable report of the Directorate, and complying with the prerequisites established in article 82 of the Code of Civil Procedure and the Guidelines on compensation of damage caused to consumers due to anticompetitive behavior, approved by Resolution No. 007-2021/CLC-INDECOPI.
Although there is ongoing litigation regarding damages initiated the following issues remain unresolved: (i) the declassification of documents necessary to prove the unlawful conduct or the damage; and (ii) the judicial quantification of damages.
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