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Select Monthly Report:

March 2024 Report

Colombia

 

The new government has been in place for two years, during which time for many months, President Petro did not appoint a superintendent. Superintendent Pimienta was appointed but had several scandals involving favoritism with former superintendents and lawyers. She was fired (she did not resign) by the President who then appointed Cielo Rusinque. She is a constitutional law expert who was appointed a month ago. The SIC has announced investigations, and sanctions, against several companies.


SIC imposed a fine on the fintech company “Nanocred” for how they present credits to customers online. With its hidden fees or credits, SIC considered that Nanocred was cheating consumers as it did not provide all the necessary information to customers. They broke the ceiling of the permitted interest rates.


There is another issue related to the company that makes the Passports, Thomas Greg and Sons. The government wanted to take the contract away from them. TGS won the contract, but the government did not want to accept the contract. The SIC ordered raids on the Ministry of Foreign Affairs, TGS, and the Registraduria. The Registraduria, a governmental entity, filed a complaint against the Procuraduria (investigative body for public officials) questioning the procedures in the down raids. It is alleged that additional information beyond the information related to the investigation was obtained by the SIC, and the SIC is being accused of abusing its powers.


Perhaps there may be an investigation/sanction of special transportation services. However, it is not clear if it is related to Uber/Lyft or other different companies (hotel transportation).


Open finance regulation: rules for banks to share customer’s information for fintech companies to access were released. The rules are based on the CMA decisions and incorporate data portability rights with data as a fundamental input for these markets. These regulations will enter into force between 6 to 18 months.


Brazil

 

The Finance Ministry opened a consultation to discuss the need for an ex-ante digital regulation in the country. The deadline for the submission of comments was extended until May 2nd. The Finance Ministry and IBRAC are planning an event in late April to discuss these issues.

January 2024 Report

Colombia

 

The SIC is once again without a chair. Late last year the President fired Superintendent Plimienta and has not appointed a new Superintendent yet. The authority for the most part has been inactive during this transition period.


Brazil

 

The new commissioners’ appointment has been approved. The DMA-like bill is moving slowly in the Congress. After last year’s hearings and open comment period, a new consultation process on the bill is likely to happen again at the beginning of this year as Congress continues discussing the bill.


Argentina

 

A lot of doubts about what might happen in the coming months with the new government. There are hopes of change from the previous situation. The process for appointing new commissioners and the President for the antitrust authority has been slow. There was a claim filed against Visa and Mastercard for abuse of dominant position in the payment details. The authority’s injunction is only against Visa since Mastercard had not yet implemented the investigated conduct in the country. The former commissioners created a study group for digital markets but there is not much news on their advancements given the changes in the authority. Antitrust law is subject to a big economic reform package proposed to Congress by the new government.


Chile

 

Two members of the Antitrust Tribunal will be replaced soon as they finish their term. There is no clarity as to who their replacement might be. The FNE in December 2023 published the interim report of a market study based on the market of online agencies and hotels, focusing on their competition concerns in this market.

October 2023 Report

Colombia

 

The SIC has revamped its enforcement of Consumer Protection, focusing mostly on FinTechs, Digital Platforms and AI services. There is a sense that the authority might have in sight to publish some soft-law Guidelines on the use of AI in digital platforms. These Guidelines would try to regulate services that use AI on their platforms. They would also entail that the platforms and service providers that use AI on any aspect of the platform could be subject to liability for any harm to consumers on the platform.


There is a new proposed bill to regulate Cryptocurrency that has been introduced into Congress. There is not much progress on the bill yet, but it might prove to be an important development and shows the growing concern on these issues.


The SIC opened a preliminary investigation against Visa and Mastercard after a third-party complaint. The companies are accused of incurring in anticompetitive behavior by businesses to avoid using third-party intermediaries on transactions where the card is not present (such as online transactions). The investigation is in its early stages but it is likely it might end on a consent decree.


There is an investigation against Claro following a complaint from Wom!, one of its competitors. There are two prongs to this case: the administrative investigation by the SIC for anticompetitive behavior against Claro, and the unfair competition complaint spearheaded by Wom! in which the SIC acts as an administrative judge. The same investigation and the same conduct are the common origin of both prongs.


Brazil

 

There is a discussion moving forward in Congress regarding ex-ante regulation in a DMA-like type of bill. It is not clear if the ‘new’ authority should be the Telecom authority or CADE. So far, the bill is focusing on some very broad and high-level points. The bill is moving slowly but it is very likely to get approved eventually.


Mexico

 

There is a new head of the Mexican authority (COFECE). There is an expected progress to be made on the digital ad cases. There is also a possible complaint coming forward against Walmart in the brick-and-mortar supermarket market for abusing its dominant position to pressure suppliers to not use e-commerce or digital channels. This is a different, but complementary, investigation to the e-commerce investigation being pushed by COFECE.


August 2023 Report

Colombia

 

There is a proposed bill that was introduced into Congress seeking to regulate the use of AI. It is still a very recent matter and there is no telling at this point how it may progress.


The SIC has increased its activity after a dormant period during which time the head position of SIC was either vacant or held by someone on an interim basis. There has been an increase in down-raids against different companies. An investigation has been opened against four companies belonging to influencers for consumer protection issues (i.e., deceiving publicity). The investigation is looking into issues such as not saying that the product advertised is a paid advertisement. This falls under the scope of the SIC’s influencer guidelines published last year.


Thera was an investigation opened against Claro (the biggest telecom company) for allegedly using a project that was issued by the telecommunications fund to favor low-income families. Claro allegedly deceived these beneficiaries and engaged in anticompetitive conduct. The accusation is within the scope of unfair competition and anticompetitive behavior. It is a mixed administrative investigation since it involves both an alleged anticompetitive conduct and an alleged unfair competition claim.


There is an unfair competition litigation involving Caracol (one of the largest national cable operators) and Claro. The latter included Caracol’s content on Claro’s streaming services. Cable operators such as Claro have the legal obligation to include publicly broadcasted national channels, such as Caracol, in their cable service so that cable users could also have access to the national channels and official TV. Claro included the channels in both the streaming service and its cable service and now Caracol is arguing Claro should pay an extra fee and was not authorized to include Caracol’s content on its streaming service.


There is some movement in the ex-ante regulatory perspective with an open finance decree. The Finance authority has issued the open finance and connectivity guidelines. So far this open finance and interconnectivity is voluntary but if companies enter they have to comply with some regulations. The only thing mandatory is to share transactional data. The authority published the technological standards that might provide a more open market. So far this is the only ex-ante regulation in this regard. Currently, there is no data portability right or obligation in Colombia.


Brazil

 

There was a decision in the case against the Brazilian public bank that handles the lottery. The allegation came from digital platforms that act as intermediaries. The allegation is that the bank was forbidding some of the platforms to intermediate in the payments to buy the bets. CADE blocked this prohibition of the bank while the authority investigates. It is a new market that is being developed in Brazil.


Congress started discussions and audiences regarding a “DMA-like” bill. Another bill, the “fake news bill” on content moderation has gotten more traction and might move forwards before the DMA-like bill. Inspired by the EU DMA, it tries to adapt the gatekeeper concept and provides broader principles, being more “high level” so far. There is a big discussion on who will be the regulator if the DMA legislation is passed.


July 2023 Report

Peru

 

Guidelines for the Classification and Analysis of Business Concentrations Transactions


On January 30, 2023 INDECOPI issued the "Guidelines for the Classification and Analysis of Business Concentrations Transactions" (the "Guidelines").


The Guidelines seek to provide guidance to parties about: (i) whether a transaction must be reported for evaluation, and (ii) the methodology to determine anticompetitive effects on the notified transaction. The features of the Guidelines are summarized below:


1. New insights on the interpretation of the MCL


Assessing Control

a) General criteria


According to the Authority, the concept of control is not evaluated from a perspective in which the economic agent has already executed such control; but the mere possibility of an agent exercising it.


The veto power held by minority shareholders may qualify as control if such rights provide more powers to those generally related the legal rights granted to minority shareholders to protect their interests (e.g. The following actions do not constitute control: vetoes on stock capital increases or reductions and/or the liquidation of the company).


b) De Facto Control

An economic agent retains de facto control when its ability to exercise decisive and ongoing influence over another agent is determined from factual circumstances. The Guidelines provides the following examples of such situations:

i) if a minority shareholder has historically or may potentially obtain a majority of votes in shareholders meetings due to the level of attendance to such meetings.

ii) when, in addition to the minority shareholder, there is only one shareholder whose involvement in the management of the company is not active because they play an investor role (e.g., their main interest is to gain value without getting involved in the administration of the company).


c) Acquisition of rights enabling control

One of the transactions covered by the MCL is the acquisition of rights that allow an economic agent to control one or more agents. In this regard, it has been clarified that this type of transaction also includes usufruct rights (if they cover exercising inherent voting rights of shares or participations) and the establishment of trusts over shares (or similar) provided that the exercise of political rights is carried out by an economic agent different from the current owner of such rights.


d) Creation of joint enterprises, joint ventures, or related combinations:

Another kind of operation that could be identified as a notifiable transaction is the incorporation of joint enterprises, joint ventures, or any combination which involves acquiring joint control over one or more entities.


The newly created economic entity should operate as a functional and autonomous agent. The entity must have and deployed its own human, operational, and financial resources, enabling independent and continuous activities in the Peruvian market.


Operational autonomy means that the new entity has its own economic activities separate from those conducted by its parent companies. If the new company exclusively provides business management services to its parent companies, its creation will not constitute a notifiable transaction.


Moreover, the following scenarios are considered as operations that have similar effects to those identified in this section:


i) A joint venture of two or more companies that invites a third party to join them in exercising joint control over the existing combination.

ii) When control over a company changes from exclusive to joint control.


It is worth mentioning that the thresholds must be analyzed considering the gross income/sales and book value of assets of the involved companies and their economic groups.


e) Operations which do not qualify as notifiable transactions:


Among the operations that do not qualify as notifiable transactions:


i) The corporate growth of a company through self-investment or with third-party resources if it does not involve a modification in the structure of control of the “target”. For instance, the growth of capital through raising equity accounts or third-party funding through equity financing. As said previously, the creditor must not acquire political or any other rights to influence the debtor's competitive strategy.


ii) When credit institutions, financial businesses, insurance companies or capital market entities temporarily hold shares or stakes for the purpose of reselling them. Even though the MCL does not set a specific time, INDECOPI refers to international practice which determines a one-year period. Notwithstanding, it will be assessed if the period of the change of control impacts the Peruvian market and if the buyer has already exercised the voting rights of the shares or stakes it temporarily holds.



2. Updates regarding Financial Transactions


The Guidelines develops notable updates in this field which are worth mentioning:


a) Leasing

INDECOPI would not consider that there is a change of control (thus, an operation that should be not notified under the MCL) if the transaction occurs between a financial institution and a lessee. According to INDECOPI, even though such institution retains the ownership of the asset, the lessee preserves control over it.


If an unrelated third party sells to the lessee or the financial institution an operational productive asset, as described by the MCL, the transaction should be notified before the Authority (if thresholds are met). In this scenario, the control over the asset switches from the third party to the lessee determining the obligation to notify this transaction.


If a new asset is acquired through leasing, such operation does not require notification. In this case, such asset would not qualify as an operational productive asset since it did not generate income in the previous fiscal year.


b) Leaseback

The Authority does not consider leasebacks as transactions subject to be reported under the MCL since there is no change of control (the lessee, as the original owner, retains control over the asset).


c) Trusts

A trust does not qualify as a notifiable transaction because the trustor keeps control over the assets, even though the beneficiaries acquire the rights to protect the value of the assets of the trust.


This agreement will not qualify as a transaction under the MCL as long as:

i) the contract stipulates that the trustor has the power to make decisions regarding the competitive strategy of the trust assets.

ii) the rights granted to the beneficiary and/or trustee do not involve a transfer of control over the trust assets; and

iii) the agreement establishes that the assets of the trust will return to the trustor once the trust is extinguished.


This exception does not apply in the scenario of the execution of the assets contained in the trust (execution of the guarantees). In such cases, the Authority will assess if this activity may constitute or generate an operation subject to report under the Law (see, next topic).


d) Asset adjudication due to the execution of guarantees on behalf of a Financial Institution:


Commonly, the Authority has noted that a financial entity acquires an asset to sell it in a short period of time. Thus, the following criteria must be followed to consider such operation as non-notifiable:


i) the adjudication is completed due to the execution of a guarantee.

ii) the adjudication is made to the lender that is a financial institution.

iii) the financial institution will only have the control over the assets for twelve months. A six-month extension may apply, and the transfer must occur within this time.


This exception does not apply to the sale of the assets to a third party.



3. Does the Guidelines cover any topic related to a failing firm defense?


The following elements should be taken into consideration in the case of a failing firm defense:


i) If the company exits the market in the foreseeable future due to a failure to meet financial obligations if the transaction does not occur. In this regard, documentation revealing the company’s financial information such as profitability reports, cash flows, and statements may be useful, as well as third-party information such as reports from legal, financial, or insolvency advisors, and information from the company's creditors and stakeholders, such as shareholders.


ii) If there are no other less restrictive options to preserve the competitiveness of the market. For instance, assessments comparing the competitive effects of the transaction with alternative scenarios, such as the acquisition of the company by a third party. Additionally, evidence showing that no other third party filed or were able to file offers to acquire the failing firm should be submitted.


iii) If the exit of the failing company would have a lesser negative impact in the market compared to the completion of the proposed transaction. In this regard, the Authority may conduct a study on the destination of the company’s sales if it exits the market.



Congress modifies the criminal offense against cartelization and clarifies its effects on the Leniency Program regarding this type of anticompetitive behavior


On May 4, 2023; Congress passed a Law (the "Law") amending the current criminal offense against cartel practices and clarifying criminal liability against the leniency applicant which received full immunity from the competition agency under its Leniency Program (“Clemencia Tipo A” or “Clemencia Tipo B”, under specific circumstances).


Particularities of the Law:



The Law needs to be published in the Official Gazette to become fully enforceable. Currently, it is under review by

the Executive Branch. However, the Government is entitled to reject the Law and return it to Congress for further

deliberation.



June 2023 Report

Colombia

 

Like the rest of the hemisphere, there is a growing interest in artificial intelligence. Usage of AI is increasing, and policies have begun to be implemented at the academic level and at different law firms to both anticipate and better manage AI Usage.


The SIC started a preliminary investigation into ChatGPT to see if they comply with data protection laws in Colombia. There is no further news on this case or advancements on what, if any, the authority found. Nevertheless, there is a growing concern to see how ChatGPT (and similar AI) utilizes and manages user’s data given the unregulated and unlimited use that can occur.


There is a new bill project to create the National Agency for Digital Security. This bill would create a new government agency of a national capacity that will handle and coordinate the governmental efforts to fight against cyber terrorism and promote cyber security in Colombia. It is still in the first debate in Congress. Given the sensitive issues it presents and the creation of a new agency, it is a requirement for the Government to endorse the bill if it is to move forward.


Brazil

 

Congress will hold hearings to prepare the bill to create a DMA-like authority and analyze how to move forward. There is still not much clarity as to who the authority will be: whether CADE would be the authority for digital markets or a new authority would be appointed. It is also not clear if the bill will gather enough momentum to go forward as Congress is not approving much of the government’s agenda.


As for the so-called “Fake News” Bill, it focuses mainly on payments to media companies, content moderation discussion, and related affairs. Google has been promoting their views on this bill. There is discussion on whether they are abusing their dominant position on the bill by promoting their views on the bill in the search engine. It's not clear if they are meddling with the algorithm so that there is a limit to freedom of expression and the actual positions on the bill. Other companies like Telegram have also been sharing their concerns and positions with their users through the platform.


There is also a concern for AI and a belief that it needs to be regulated. Nevertheless, it is very soon to see the competition spin on these regulatory arguments. For now, the draft of the proposed bill is focusing more on the transparency and information access aspects of the AI.


Chile

 

There is a new head of the Fiscalía Nacional Económica (FNE), Chile’s Competition Authority. The authority is also currently conducting an empirical study on digital markets and how to better regulate them. For now, it appears as if this study will be focusing on Airbnb-like platforms regarding hotel and accommodation services. 

April 2023 Report

Colombia

 

There is white smoke at Colombia’s competition enforcement authority since Maria del Socorro Pimienta was confirmed as the new Superintendent of Industry and Commerce. She was the acting head of the SIC and is now formally appointed to the position. This gives more sustainability and institutionality to the authority as the head is formally appointed. Down-raids and investigations are already active. SIC is promoting publicity and news coverage to the down-raids which damages the reputation of the companies and goes in a way against how publicity of these investigations should be done. Nevertheless, other positions that were being filled on an interim basis such as the Deputy Superintendent of Competition, have not been formally appointed yet.


In 2022, President Duque’s government presented and got approved a law to get the fines increased. It was a huge increase and could have been a powerful tool for SIC. Under this law the maximum fines are up to 20% of the company’s income or patrimony, 20 million dollars or 300% of revenue of the anticompetitive earnings. This law was declared unconstitutional which brings the previous fines back into effect. AS a result, the previous fines of law 1340 are back into effect and the 2022 fines are no longer applicable.


March 2023 Report

Colombia

 

There is a complex situation in the Superintendence of Industry and Commerce – SIC, the competition law authority, since the process for the new Superintendent has not been finalized yet. There have been people holding the seat in an interim capacity but no permanent appointment. Maria del Socorro Pimienta is still the interim Superintendent and has not been confirmed in this position although everything points to her being the one to be appointed.

 

On the legislative side, the National Development Plan includes an aspect granting the communications commission to make requests of information from communications from any online services companies even if they are not domiciled in Colombia. This might prove to be a sensitive issue in the future as there is no clarity on the limits of these powers and on how the companies might react if the Commission decides to use these powers on foreign companies without any physical presence in Colombia.


Brazil

 

There is some movement on CADE regarding the App Store cases against Google and Apple. The investigations have been progressing but there hasn’t been any tangible or actual progress so far.


The Economic division of CADE has received a request to carry out a study on archived investigations over the last 10 years. As for now, it appears this will only be a study to provide a final report and nothing more will come out of this research.


Chile

 

The Competition agency is advancing on an investigation of Apple and Google regarding their app stores for tying and exclusionary practices. It is important to note that Chile does not develop most apps which means that the conducts investigated are not necessarily relevant in Chile but a copy of the cases of other jurisdictions like the EU. The investigation started before a case was brought by a private party.

 

The head of the FNE has not been appointed. This means that each division of the FNE is being handled by its own deputy in sort of an independent manner but not in a uniform direction. 


Mexico

 

A new chairperson of COFECE has been appointed. This means that the COFECE finally has all its seats assigned in the commission which might make easier and more effective to make decisions and move forward with investigations. The Telecommunications Institute still needs and is missing a definite chairperson. They have three out of the seven commissioners appointed and are waiting for the appointments from congress of the remaining four commissioners.

February 2023 Report

Colombia

 

There is a complex situation in the Superintendence of Industry and Commerce – SIC, the competition law authority, since the process for the new Superintendent has not been finalized yet. There have been people holding the seat in an interim capacity but no permanent appointment. There was a new interim superintendent appointed recently, as these interim positions are 3-month periods by law. Decree 1870 2015 established the requisites for the appointment of the Superintendent. Following OECD’s requirements, it included the need to have a call for resumes before appointing the superintendent. Part of the decree was declared unconstitutional (since the superintendent can be freely appointed and removed).  After the call, 105 people presented their resume for consideration. Maria del Socorro Pimienta, the current interim Superintendent, fired many important people and appointed other important positions. This makes it possible to assume she might be the new superintendent, but it is not final.

 

On the legislative side, the National Development Plan includes an aspect granting the president extraordinary powers to issue special decrees. These powers could be used to modify the competition law or even modify the structure of the competition authority as an entity, as well as other authorities. These powers last 6 months.

 

The Government filed the health law reform that changes the health care system model. Previous law provided a health care in competition and competition to provide health care plans among private and public companies. 98% Colombians have coverage. The current administration wants to change the model and have a government-owned system where there would be no competition, but all service providers owned by the government.


Finally, the authority is reviewing a merger filing by Amazon and iRobot, although there is not much information on this case so far.


Brazil

 

There is not much to report as there is still a transition in the Government after the elections.

 

There is an official proposal in Congress for a new Digital Platforms Law. The enforcement for the regulation of Digital Platforms would be overseen by the National Communications Agency.  The proposed new law would give many powers to the regulator, without a clear delineation of what those powers entail or what they can and cannot regulate.

 

The proposed bill tries to incorporate some of the aspects of the DMA, but not all of it. As a result, there is a mixture of subjects that don’t apply properly and end up leaving many grey areas and lack of clarity on how it will be applied. What is clear is that CADE is cut-out as a regulator for Digital Platforms (unless there is an antitrust case) and the regulatory authority falls all under the head of the telecommunications regulator (National Communications Agency).


The bill also proposes the creation of a tax to be imposed on the platforms that “exist” in the Brazilian jurisdiction. This would entail a percentage to be paid on global, and not just Brazilian, revenues of the platforms. It is important to wait and see what the new Congress has to say about this proposal and the bill since, in principle, this tax would be unconstitutional.

November 2022 Report

Report Date: November 17th, 2022.

Colombia

 

After more than one-hundred days after the new President was elected, there is still not an official designation of the new Superintendent of Industry and Commerce (head of the competition authority in Colombia). This current situation brings a lot of uncertainty as there is not much clarity on the direction the authority might take once the new Head is appointed. There is a temporary Head, but the appointment of a proper Superintendent of the competition authority is still pending.

 

The Superior Court of the Judicial District of the Civil Chamber revoked the measure that prohibited the sales of Apple-branded iPhones and iPads with 5G technology in Colombia.

 

The prohibition measure was imposed in July of this year by the 43rd court of the Bogotá circuit due to legal disputes between the US company and Ericsson. At that time, the entity found that Apple had infringed the Colombian patent NC2019/0003681, necessary to develop 5G technology. Permission that Ericsson does have from 2019 to 2037. 


Brazil

 

There is not much to report as there is still a transition in the Government after the elections.

 

There is an official proposal in Congress for a new Digital Platforms Law. The competence for the regulation of Digital Platforms would be overseen by the National Communications Agency.  The proposed new law would give many powers to the regulator, without a clear delineation of what those powers entail or what they can and cannot regulate.

 

The proposed bill tries to incorporate some of the aspects of the DMA, but not all of it. As a result, there is a mixture of subjects that don’t apply properly and end up leaving many grey areas and lack of clarity on how it will be applied. What is clear is that CADE is cut-out as a regulator for Digital Platforms (unless there is an antitrust case) and the regulatory authority falls all under the head of the telecommunications regulator (National Communications Agency).

 

The bill also proposes the creation of a tax to be imposed on the platforms that “exist” in the Brazilian jurisdiction. This would entail a percentage to be paid on global, and not just Brazilian, revenues of the platforms. It is important to wait and see what the new Congress has to say about this proposal and the bill since, in principle, this tax would be unconstitutional.


October 2022 Report

Report Date: October 31, 2022.


Colombia

After almost one-hundred days after the new President was elected, there is still not an official designation of the new Superintendent of Industry and Commerce (head of the competition authority in Colombia). This issue brings a lot of uncertainty as there is not much clarity on the direction the authority might take once the new Head is appointed.

Another consequence of this sort of vacancy of the Superintendent position is that all the antitrust and competition law investigations and procedures are advancing very slowly. As there is not a head of the authority, the deputy superintendents do not want to commit on advancing an investigation without having more certainty of the direction the authority will be taking in the coming years.

There is a discussion among scholars and practitioners regarding the potential anticompetitive effects that privacy law and data protection regulations might have. This, due to the high burden these regulations impose on tech companies regarding data and information of underage people. The regulations for big tech companies regarding the data protection of this information might place them in an unfavorable position compared to other competitors which would imply anticompetitive effects of the regulations. Unfortunately, this is a discussion that cannot be applied so far to actual cases given again the absence of a Head of the authority.


Brazil

The iFoods investigation regarding the market of food vouchers was closed. The opinion by the superintendent made an important analysis on the gatekeeper concept and whether a gatekeeper in a digital market should be considered an essential facility or not. Nevertheless, this analysis was not considered or used as a basis for the decision of the case.

The “Jedi Blue” case regarding the agreement signed between Google and Facebook for ad headings and offerings has advanced into an administrative inquiry. This is the step before deciding whether to open a formal investigation. There is currently an antitrust discussion on the facts more than the case itself and additional information and questions about the market structure has been requested from Google and Facebook.

There is currently a potential antitrust investigation on hold during the elections as it involves the Research Institutes that conduct election polls. There was a request by the president of the competition authority (Conselho Administrativo de Defesa Econômica – CADE) to the General Superintendence for the latter to open an investigation against these institutes as they might have engaged in cartel behavior. The argument behind the request is that the results on all the polls were off by the same percentage outside the margin of error and the same candidates. Nevertheless, external authorities (notably the Electoral Court) have decided to delay the investigation until elections are over in order to not affect the results. There is also uncertainty on what the economic behavior of this conduct would be.



Mexico

There is a new jurisdictional discussion between COFECE (the competition authority of Mexico) and IFT (the telecommunications authority and regulator of Mexico) regarding a competition claim in the digital market.

Mony de Swaan, former head of the IFT, presented a complaint against Google and Apple in front of COFECE for self-preferencing and dominance abuse. Since COFECE required additional information to study the merits of the complaint before deciding to start an investigation, de Swann withdrew the complaint and filed it in front of IFT, effectively going “forum shopping”. The complaint was immediately accepted by IFT, and an investigation was initiated.

After the IFT investigation was announced, COFECE started their own officious investigation on the same facts. Right now, there are two identical and simultaneous investigations, one at each authority, against the same companies based on the same facts. In the past, this discussion has been resolved by the courts in favor of COFECE stating that they are the competent authority to investigate antitrust violations in the digital markets.

September 2022 Report

Report Date: September 21, 2022


Colombia

The new government has not appointed yet the new Superintendent of Industry and Commerce (head of the antitrust authority in Colombia) and there is currently a person in charge of the authority. Nevertheless, the deputy superintendents, especially the deputy for competition protection, have not left office. This deputy is the one in charge of opening and carrying out the antitrust investigations and it is the Superintendent who decides the cases. This means that, so far even without a head of the antitrust authority, the SIC continues to work as usual.

There are still some preliminary investigations moving forward, but as for now, since the previous Superintendent already left office, there are no new formal investigations. There is some uncertainty as there is a possibility for the deputies to open a formal investigation and leave it for the new government and new members of the authority to decide. There is also the other possibility of the deputies leaving the preliminary work done but withhold from opening the formal investigations leaving that decision to the new superintendent and his team.

There were two cases that the public believes were hastily closed by the Superintendent before he left office. These two cases were both closed with the acceptance of guarantees offered by the investigated parties (consent decrees) by the authority.

The first case was regarding Dimayor (Colombia’s football authority) and some football teams allegedly blocking the market for sports rights of players. The second case involved Ab InBev Bavaria and an alleged abuse of dominance of the company, related to exclusivity clauses for the sale of beer.


Brazil

There are three cases moving currently in Brazil, though with not much advancement recently. Two of them are involving iFoods, the other one is regarding the “Jedi Blue” investigation.

The first iFoods investigation is regarding the delivery market and iFood’s position on this market. There has been a lot of pressure for the preventive measure to be reframed in this case. Even if the case is moving, it is doing so slowly and there is not a new decision as of right now.

The second iFoods investigation is regarding the market of food vouchers. In this case, there is a higher delay than in the delivery market case and hence it is moving slower. So far there have been negotiations and complaints between the investigated company and the company that presented the complain which has made the case to be delayed.

The “Jedi Blue” case is regarding the agreement signed between Google and Facebook for ad headings and offerings. This case is still in its very early stages of investigation. There is in Brazil a new way to organize and move forward on investigations regarding unilateral conducts. There is a 30-day period in which the authority will review the case and decide whether it was antitrust merits to move forward.

The “Jedi Blue” case is currently in this 30-day period which expires in October. A decision is still pending but the NY Courts decision to close the investigation might affect or influence the decision of Brazilian authority on how to proceed in this case.

Finally, there was a case that was settled recently regarding Gym-Pass. This was an investigation that was opened to review the anticompetitive effects of Gym-Pass’s exclusivity agreements with gyms and their employees. The case was settled and in was understood that these exclusivities are permitted in the sense that they provide efficiencies. Nevertheless, such efficiencies must be passed down to the consumers. It was decided that there would be a cap of 20% for the gyms that could be under the coverage of Gym-Pass in each city.


Argentina

No major advancements or cases to report. On the judicial front, the Whatsapp – Facebook injunction issued by the Secretary of Trade in May 2021 on the change of privacy policy, the news is that ,the different appeals presented by the companies to the court of appeals were rejected and on September 13, the parties filed a direct appeal to the Supreme Court. There is no change in the head of the antitrust authority.