Guidelines for offering commitments to dismiss administrative proceedings for antitrust challenges

Investigations brought by the Superintendency of Industry and Commerce (the "SIC" or the "Authority"), arising from antitrust challenges, may be prematurely dismissed provided that the defendants offer sufficient commitments that they will suspend or modify the alleged restrictive conduct, thereby reaching a consent decree from the Authority.  

Recently, the SIC introduced the "Guidance for the Offering of Guarantees" (the " Guide"). The Guide is intended to serve as an orientation for defendants being investigated. It therefore addresses the criteria of appropriateness that the SIC takes into account when assessing an offer of commitments. Criteria have been explained in decisions such as Resolution 44684 of 2023, which revoked the acceptance of the commitments scheme submitted, among others, by DIMAYOR, the Colombian Soccer Federation, and some professional soccer clubs 1 . 

In order for a commitments scheme to be considered sufficient, the defendants must keep in mind that the scheme: 

1. Must not be limited to the observance of the provisions on fair and free competition, since compliance with the law is a mandate derived from the mere fact of participating in a market. 
2. It effectively results in the suspension or modification of the alleged infringing conduct. 
3. It is aimed to promote the free participation of agents in the market, it intends to achieve consumer welfare and achieve economic efficiencies.
4. The Authority suggests that structural commitments (i.e., those containing obligations related to the internal structure of the investigated market agents) are preferred, as opposed to behavioral commitments (i.e., obligations aimed at modifying the competitive behavior of the investigated market agents). This suggestion is based on the fact that the pro-competitive effects achieved with the scheme would not be generated with fines to be imposed on the defendants. 

Finally, it is important to highlight that the early dismissal based on a consent decree is discretionary for the Authority, and it is the burden of the defendants to support the sufficiency of their commitments.