Superintendencia de Industria y Comercio

Mariangel Barraza - Lucas F. Mejía

It has been thought over the course of time that with the creation of Law 590 of 2000, where it was established "provisions that promote the development of micro, small and medium enterprises (MYPIME, for its acronym in Spanish)" and especially with regard to article 16¹ of said norm, this would be applied only and exclusively to the restrictive commercial practices of competition that concern the micro, small and medium enterprises. But, in time, the Superintendence of Industry and Commerce (hereinafter "Superintendence") extended this rule to other companies that are not MYPIME.

First, this argument was resolved by the Superintendence in Resolutions 80847 of 2015 ("Sugar" case) and 7676 of 2017 ("COMCEL" case), both of which extended the concept of “third parties” in order to include other companies that are not MYPIMES. This was possible through the interpretation of Numeral 10 of Article 47: Antitrust Agreements: “Those whose purpose or effect is to prevent third parties from accessing markets or marketing channels” and Numeral 6 of Article 50 of Decree 2153 of 1992: Abuse of Dominant Position: “Obstruct or prevent third parties, access to markets or marketing channels”.

For the Superintendence, it seems that Law 590 of 2000, regarding the concept of "third parties", refers to any company within the Colombian market, and not exclusively to MYPIMES. It would be absurd to say that the Law applies only to a MYPIME company and not to any third party that have such quality, since the text of the Law, would be immediately dismissed. Otherwise, it would be equivalent to ignoring the principle of interpretation, according to which, when the Law does not make distinctions, it is not possible to the interpreter to make any distinction.

Second, it's worth noting that arguing that the rule only protects MIPYMES would lead to the absurdity of affirming that the defense lawyers in the investigations can shield the behavior of their subjects saying that, since their companies are not MYPIMES, they cannot be legally responsible when abusing their dominant position or when forming an antitrust agreement whose purpose or effect is to prevent third parties from accessing markets or marketing channels, interpretation that would go against the philosophy of the Colombian Competition Regime². Under this wrong interpretation, it would then be outside the scope of application of the Law those cases that have the potential to generate greater pernicious effect on the market, since it excludes companies that have larger size and, thus, great relevance; without resting importance of MYPIMES.

Finally, the fact that the prohibition of “obstructing access of third parties to markets or marketing channels” and the prohibition of forming agreements whose “purpose or effect is to prevent third parties from accessing markets or marketing channels” extends to other companies does not infringes, in any way, the unity of matter that must exist in any Law, since the provision is directly related to the purpose of the Law and, additionally, to the material content of the one that was modified. Following this argument, the material scope or the thematic content of the referenced regulations has a strict causal, thematic, teleological and systematic relationship with the core spirit of Decree 2153 of 1992.

Thus, the Superintendence affirms that the application of the law must be extensive to all companies and not exclusively for the MYPIMES.

References

¹ “RESTRICTIVE PRACTICES. The Superintendence of Industry and Commerce, in order to prevent the establishment of barriers to market access or marketing channels for MYPIMES, will investigate and sanction those responsible for such restrictive practices. For this purpose, it added the following Articles and Numerals in Decree 2153 of 1992: 
  Article 47, Numeral 10:
  (…) Those whose purpose or effect is to prevent third parties from accessing markets or marketing channels. 
  Article 50, Numeral 6: 
  (...) Obstruct or prevent third parties, access to markets or marketing channels.”

² “APPLICABLE NORMATIVITY. The Law 155 of 1959, the Decree 2153 of 1992, the present law and the other dispositions that modify or add them, constitute the general regime of protection of the competition, applicable to all the sectors and all the economic activities. In case there are particular rules for some sectors or activities, these will prevail exclusively on the specific topic "