May 13, 2020

SIC Resumes Terms for the Ex-Ante Control of Economic Concentrations and Sets Standards for Collaboration Agreements Between Competitors

Holland & Knight Alert
Danilo Romero Raad

Through Resolution No. 20476 of 2020, the Superintendence of Industry and Commerce (SIC) decided to resume the terms of the administrative procedure for ex-ante control of economic concentrations as of May 12, 2020. Such procedures will be advanced through the use of information and communication technologies (ICT) enabled by the SIC.

In this sense, the companies involved in economic concentrations and third parties can file their requests, responses to requirements, and in general, all their actions in the e-mail "" with a copy to the e-mail "". The above, taking into account that during the period of suspension of terms for this proceedings, measures were adopted in order to allow the administration of the files and its consultation by users to be carried out by means of the use of ICT.

Additionally, Resolution No. 20490 of 2020 was issued, establishing standards for the interpretation of the general regime for the protection of competition for the conclusion of collaboration agreements between competitors. In principle, the regime for the protection of competition prohibits agreements that have as their object or effect a distortion of the dynamics of competition in the market. However, collaboration agreements between competitors which do not lead to restrictions of competition and are legitimate, are permitted provided that they fulfill four conditions:

  1. The agreement produces efficiency improvements at any stage of the value chain. Efficiencies may include, for example, sharing risks, reducing costs, increasing investments, pooling expertise, increasing quality, etc.
  2. Indispensability to achieve the efficiency improvement objectives.
  3. Benefits to the users to whom the efficiency gains are to be passed on, in order to offset the effects that may arise from the collaboration agreement.
  4. Not promoting the elimination of actual or potential competition regarding a substantial part of the relevant market.

However, in the light of the current emergency, it is considered necessary to ensure that the general regime for the protection of competition will not be an obstacle to the implementation of these agreements. Accordingly, collaboration agreements between competitors aimed at dealing with the emergency caused by the outbreak of the COVID-19 coronavirus or at overcoming the effects on the economic system as a result of the emergency will comply with the requirement to produce efficiency gains. In other words, whoever is interested in developing this type of agreement will have the certainty that the efficiency requirement is understood to have been met under those conditions so that the collaboration schemes can be focused on proving compliance with the remaining requirements, which will be demanded by the SIC.

In addition, the Resolution establishes the possibility that the SIC requests the respective supervisor of the sector in which the collaboration agreement between competitors is to be carried out, the analysis of the content of the agreements, as well as the benefits for the consumers.

Therefore, those who make these agreements under the terms of this Resolution must inform the SIC about: i) the realization of the collaboration agreement; ii) the market agents that will participate in the dynamics; iii) the products and/or services that could be affected; iv) the specific content of the collaboration agreement; and v) its duration, specifying the time of beginning and projected end.

Finally, whoever does not notify any type of agreement before the SIC regardless of the sector or modality, will not be exempted from administrative and/or criminal responsibilities.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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