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Colombia: New modifications to the structure and functions related to personal data and competition protection of the Superintendence of Industry and Commerce

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In brief

On 24 January 2022, the Colombian President issued Decree 092 of 2022, modifying  the structure of the Superintendence of Industry and Commerce (SIC) and assigned new functions to the different offices of this entity. Within the modifications, particularly noteworthy is the creation of the Compliance Department, which is part of the Deputy of Competition Protection, and the Habeas Data Department, which is part of the Deputy of Personal Data Protection. 

The new Compliance Department of the Deputy of Competition Protection will be in charge of (i) following up on the guarantees accepted during administrative investigations, relating to breaches of the competition protection and unlawful competition regulation, (ii) monitoring  compliance of the conditions established in regards to requests for merger control clearances, (iii) undertaking the administrative procedures related to the breach of guarantees, conditions, the obstruction of investigations, and the omission of requests for information, and (iv) the effective implementation of compliance programs established as part of the guarantees and conditions.

The Habeas Data Department of the Deputy of Personal Data Protection, will be in charge of ensuring  the principles and obligations related to data protection are complied with by any obliged person, and solving any complaint or claim submitted by the data owners to ensure their habeas data right, for which the Department has faculties to issue orders if applicable.

In detail

According to Decree 092 of 2022, the Colombian President modified the structure of the SIC and assigned functions to its different offices reflecting the new structure. Therefore, the main changes provided by the Decree are the following:

A. It removed the office and functions related to the supervision of the Chambers of Commerce. Taking into account, that Law 2069 of 2020 transferred said functions to the Superintendence of Companies. 

B. It removed the power of the SIC to issue any decision for which the Deputies have now been assigned authority, when they deem pertinent.

C. It created the Compliance Department, which is part of the Deputy of Competition Protection, and which functions are: 

  • Following up on the compliance of (i) the guarantees accepted during administrative investigations related to breaches of the competition protection and unlawful competition regulation and (ii) the conditions established in regards to requests for merger control clearances
  • Initiate administrative investigations with respect to the following:
  1. Breaches to the abovementioned guarantees and conditions
  2. Omissions of orders, instructions and requests for information issued by the Deputy of Competition Protection of the SIC
  3. Obstructions to investigations related to breaches of the competition protection and unlawful competition regulation
  4. Omission to undertake merger control procedures
  • Monitor the establishment of compliance programs for the implementation of the abovementioned guarantees and conditions

D. It created the Habeas Data Department, which is part of the Deputy of Personal Data Protection, and which functions are:

  • Ensuring the compliance of Law 1581 of 2012 and Law 1266 of 2008 (and any other regulation that complements or elaborates them) by any obliged person under said laws, namely the sources of information and/or data, operators, users of information, data controllers and data processors
  • Solve the complaints and claims filed to ensure the fundamental right of habeas data, and issue any order, as applicable, to guarantee and ensure the effectiveness of said right
  • In general, issue any order needed to ensure the fundamental right of habeas data and verify the compliance of said orders

It is worth mentioning that the functions related to investigation and sanctions for the breach of data protection regulation remain under the authority of the Department  of Investigations for Personal Data Protection. Therefore, Habeas Data Department must transfer to the former, any administrative procedure related to the breach of orders, or the lack of compliance with the law, so the Department may  investigate and impose any sanction as applicable. 

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Author

Carolina Pardo joined Baker McKenzie in 1994 and is a Partner of the Firm since 2008. She is currently a member of the Global Steering Committee for the Firm’s TMT industry group and of the Global Steering Committee for the Firm’s Investigation, Compliance and Ethics Group. She was a member of the Global Steering Committee for the Firm’s Global Antitrust and Competition from 2016 and until 2020 and is currently a member of the Latam's Antitrust Steering Committee.
She graduated as a lawyer and a specialist in International Contracts Law from Universidad de los Andes in Bogotá. She obtained a LL.M. with emphasis in International Private Law and Competition Law from the London School of Economics and Political Science.
Over 25 years, she has advised major national and international clients on matters related to compliance with data protection, competition and consumer law rules. She has represented clients in investigations and submissions related to data protection and competition matters in Colombia and has successfully coordinated and prepared white paper proposals to national authorities on behalf of major industrial groups in Colombia.
In 2016 Global Competition Review selected her as one of the 100 most influential women in antitrust. The last two Superintendents of Industry and Commerce have selected Carolina as a Non-Governmental Advisor to the Colombian Antitrust Regulator.

Author

Luis Alberto Castell is a Lawyer from the Pontificia Universidad Javeriana in Bogotá, with a specialization in Competition and Free Trade Law from the same university and a Master of Laws (LLM) in International Business from Queen Mary University of London.
Luis has more than 10 years of experience. He began his professional practice in the financial sector and has been specializing in the fields of competition law and corporate compliance. He was an advisor to the Superintendent of Industry and Commerce on matters related to antitrust and mergers and was part of the specialized group for the protection of competition in public procurement processes (Bid Rigging) of said entity. He was also part of Shop IV on Mergers of the Federal Trade Commission (FTC) of the United States of America as an International Fellow.
For more than three years he has been part of the Corporate Compliance team at Baker McKenzie, handling matters related to personal data protection, corporate compliance (prevention of corruption and prevention of money laundering and terrorist financing) and competition.

Author

Daniela Huertas has experiences in several matters related to antitrust and competition, data privacy, consumer protection, and corporate compliance. Hence, Daniela has represented local and foreign companies before administrative and judicial authorities, through investigations and lawsuits. Daniela is the Director of the Committee of Young Lawyers of the Colombian Association of Competition Law, and is professor of the Securities course at Universidad del Rosario. Before joining Baker McKenzie, Daniela was an associate in the practices of antitrust and competition, data privacy and compliance in another renowned law firm in Colombia.

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