Memorandum of Understanding between the Commissioner of Competition, Competition Bureau of the Government of Canada, and the Superintendence of Industry and Commerce of the Republic of Colombia, regarding the application of Competition Laws

June 21, 2017


The Commissioner of Competition, Competition Bureau of the Government of Canada, and the Superintendence of Industry and Commerce of the Republic of Colombia, referred to as the “Participants”;

Having regard to Article 1304 of the Canada-Colombia Free Trade Agreement, entered into force on 15 August 2011;

Recognizing that cooperation in enforcement and policy activities and the coordination of such activities may result in a more effective resolution of concerns arising under the competition laws of their respective countries, than would be attained through independent action;

Acknowledging that it is in their common interest to cooperate and share information where appropriate and practicable; and

Acknowledging that it is in their common interest to minimize any potentially adverse effect of one Participant’s enforcement activities on the other Participant’s interests in the application of its competition laws;

Have come to the following understanding:

Purpose and definitions

1. (a) The purpose of this Memorandum of Understanding (MOU) is to promote cooperation and coordination between the Participants to further the effective enforcement of competition laws in their respective countries.

     (b) For the purpose of this MOU:
          “competition laws” means:

(i) for the Commissioner of Competition of the Competition Bureau of the Government of Canada, legislation
    and regulations as set out in Annex A; and

(ii) for the Superintendence of Industry and Commerce of the Republic of Colombia, legislation and
    regulations as set out in Annex B,

       as well as any amendments thereto and such other laws or regulations as the Participants may jointly decide in
       writing to be “competition laws” for the purposes of this MOU;

       “enforcement activity” means any investigation or proceeding conducted by a Participant in relation to the
       competition laws it administers or enforces; and

       “territory” means the territory in which a Participant has jurisdiction.

     (c) Each Participant will notify the other as soon as practicable of any amendments to its competition laws.

Notification

  1. Subject to paragraphs 12 to 14, each Participant will notify the other with respect to its enforcement activities that may affect the other’s interests in the application of its competition laws, including those that:
    1. are relevant to the enforcement activities of the other Participant;
    2. involve any conduct or transaction, other than mergers or acquisitions, carried out in whole or in part in the other Participant’s territory that may be subject to penalties or other remedies under the competition laws administered and enforced by the other Participant, except where such conduct or transaction is insubstantial;
    3. involve mergers or acquisitions in which one or more of the parties to the transaction carries out a business activity in the other Participant’s territory, or is under control of a body that is incorporated or organized under the domestic laws of the other Participant;
    4. involve conduct referred to in (ii) and (iii) by persons, within the knowledge of the notifying Participant, that directly or through a related person, carry out a business activity in the other Participant’s territory;
    5. involve penalties or other remedies that expressly require or prohibit conduct in the other Participant’s territory or are otherwise directed at conduct in that territory; and
    6. involve the seeking of information located in the other Participant’s territory, whether by personal visit by officials of a Participant or otherwise, except with respect to telephone contacts with a person in the other Participant’s territory where that person is not the subject of investigation and the contact seeks only an oral response on a voluntary basis. Such visits will be subject to the consent of the notified Participant.
  2. A Participant will ordinarily give notification to the other Participant as soon as it becomes evident that notifiable circumstances are present.
  3. Once a particular matter has been notified, the Participants will not make subsequent notifications on that matter unless the notifying Participant becomes aware of new issues bearing on the interests of the other Participant in the application of its competition laws, or unless the notified Participant requests otherwise.
  4. The Participants will ensure that notifications include the nature of the activities under investigation and the provisions of the competition laws concerned, and are sufficiently detailed to enable the notified Participant to make an initial evaluation of the effect of the activities on its interests in the application of its competition laws.

Cooperation and coordination

  1. Where the Participants are pursuing enforcement activities with regard to the same or related matters, they will endeavour to coordinate their enforcement activities where appropriate and practicable.
  2. The Participants accept that it is in their common interest to work together in technical cooperation initiatives related to the enforcement of competition laws and policy. Subject to the Participants’ reasonably available resources, these initiatives may include such forms of technical cooperation as the Participants decide are appropriate for purposes of this MOU, such as sharing of competition law enforcement experiences, sharing significant developments in their respective competition laws, research, engaging in capacity building, training courses, seminars or workshops, staff exchanges and other similar cooperation activities on a bilateral basis or in collaboration with other competition authorities and international organizations.
  3. Where one Participant informs the other Participant that a specific enforcement activity by the other Participant may affect the informing Participant’s interests in the application of its competition laws, the other Participant will endeavour to provide timely notice of significant developments relating to those interests and an opportunity to provide input regarding any proposed penalty or other remedy.

Interpretation and application

  1. The Participants will resolve any difference in the interpretation or application of this MOU in as timely and practicable a manner as circumstances permit.

Meetings

  1. The Participants will meet periodically, as necessary, to:
    1. exchange information on their enforcement efforts and priorities in relation to their competition laws;
    2. exchange information on economic sectors of common interest;
    3. discuss changes that may be under consideration with respect to competition laws;
    4. discuss competition advocacy initiatives;
    5. discuss the content of, and arrangements for, technical cooperation initiatives that they have decided to establish; and
    6. discuss other matters of mutual interest relating to the application of their competition laws or the operation of this MOU.
  2. The Participants may meet or communicate in person or by any technological means available.

Existing laws and confidentiality of information

  1. Nothing in this MOU will require a Participant to take any action, or to refrain from acting, in a manner inconsistent with existing laws, or will require any change in the laws of Canada or the Republic of Colombia.

  13. (a) A Participant will not communicate information to the other Participant if such communication is prohibited by
             the laws or regulations of the Participant possessing the information or would be incompatible with the
             interests of that Participant in the application of its competition laws.

        (b) The degree to which one Participant communicates information to the other under this MOU may be subject to,
             and dependent upon, the acceptability of the assurances given by the other Participant with respect to
             confidentiality and with respect to the purposes for which the information will be used.

  1. Unless the Participants decide otherwise, each Participant will, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence. Each Participant will oppose, to the fullest extent possible, any request by a third party for communication of such confidential information, unless the Participant providing the confidential information consents in writing to its communication.

Communications under this MOU

  1. The Participants will communicate directly with each other under this MOU through a designated contact point that each Participant will notify in writing to the other.

Legal status

  1. This MOU is not legally binding.

Final provisions

  17. (a) This MOU will come into effect on the date of final signature.

        (b) The Participants may amend this MOU upon their mutual written consent.

        (c) A Participant may terminate this MOU by giving a 60‑day written notice to the other Participant.


Signed in duplicate, atspace to insert signatureon thisspace to insert signatureday ofspace to insert signature2017, in the English, French and Spanish languages, each version being equally valid.

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For the Commissioner of Competition of the Competition Bureau of the Government of Canada

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For the Superintendence of Industry and Commerce of the Republic of Colombia

Annex A

“Competition laws” administered and enforced by the Commissioner of Competition:

  1. Competition Act, R.S.C. 1985, c. C‑34 except for sections 52 through 60 and Part VII.1; and
  2. Notifiable Transactions Regulations, S.O.R. 87‑348.

Annex B

“Competition laws” administered and enforced by the Superintendence of Industry and Commerce of the Republic of Colombia:

  1. Law 155 of 1959
  2. Law 256 of 1996
  3. Decree 2153 of 1992
  4. Law 1340 of 2009
  5. Decree 4886 of 2011
  6. Decree 1523 of 2015
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