Market research and business integrations
In order to determine whether or not there is a risk of undue restrictions on competition in the future, Law 1340 of 2009 empowers the Superintendency of Industry and Commerce to submit business integrations to its prior control. In this way, the correct performance of a market study (through which the definition of the structure of the relevant market is carried out and together with it the identification of the participation quotas) is the key to determine if it should be exhausted before the Superintendency of Industry and Commerce an extensive procedure that in the best scenario lasts 30 business days, or an abbreviated procedure of just 10 business days known as notification.
The foregoing is found in article 9 of Law 1340 of 2009, which states that in those cases where two companies that are competitors or that belong to the same value chain plan to integrate, “but together they have less than 20 % relevant market, the operation will be understood as authorized. For the latter case, only the Superintendency of Industry and Commerce must be notified of this operation ”. When the joint market share is greater than 20%, the procedure established in article 10 of the same Law 1340 of 2009 must be exhausted, which is summarized in a first phase of pre-evaluation by the Superintendency of Industry and Commerce which lasts for 30 business days, followed by a phase of in-depth study of the application in those cases where additional time is required to assess the existence of "substantial risks to competition that may arise from the operation." Finally, in this extensive procedure, article 11 of the aforementioned Law allows the Superintendency of Industry and Commerce to impose conditions on the transaction for the “effective preservation of competition”..
Under this line of ideas, the Superintendency of Industry and Commerce recently published two decisions adopted in the matter of integrations related to the information technology and health sectors, in which reference is made to the market studies carried out by MarkUp Consultores that served as support for this authority to make the decision to approve each of the transactions through the abbreviated procedure of only 10 business days, namely: i) Godaddy, INC and Neustar, INC case (Filing: 20-135636-15); and ii) Case of Fundación Valle de Lili and Clínica Amiga (File: 20-340704-3)
The first case corresponds to a vertical integration operation between GODADDY, INC (hereinafter, GODADDY) and NEUSTAR, INC (hereinafter, NEUSTAR). Taking as support the information and the market study provided by Markup Consultores, the Superintendency of Industry and Commerce indicated that the participation of the integrated firms did not exceed 20% or in the Internet market shares, including promotion, administration and / or technical support of top-level domains by NEUSTAR or market share quotas for virtual IT infrastructure, including internet web services by GODADDY.
The second case refers to an economic integration operation between Fundación Valle del Lili and Clínica Amiga owned by Caja de Compensación Familiar del Valle del Cauca. Following the economic theory and the antecedents of the same Superintendency of Industry and Commerce, Markup Consultores carried out the calculation of the participation quotas in the relevant market through operating income and infrastructure (the installed capacity of beds, chairs and rooms), the market being the product of the provision of hospital services. The results showed that in the affected market the participation of the participating firms did not exceed 20%, as referenced by the same Superintendency of Industry and Commerce.