26 Mar COVID-19 and collaboration agreements in the transport sector: Decree 482 of March 26, 2020
Much has been said in the last days about the value, role and boundaries of antitrust law in the context of the COVID-19’s sanitary emergency. At the center of this discussion is the possibility and need to increase the flexibility of the the enforcement of antitrust law in relation with collaboration agreements among competitors, which may be useful to mitigate the effects of the pandemic with regards to essential goods and services provision. Several antitrust agencies around the world (for example, from the UK and the United States) have taken measures to authorize a certain type of collaboration agreements. In Colombia, the Superintendence of Industry and Commerce published, a few years ago, a general guideline about collaboration agreements among competitors, but it would be very useful if the authority issued a specific one for the COVID-19 juncture.
The President of Colombia and the Ministry of Transport just took the first step towards that direction. On March, the Presidency issued the Decree 482 of 2020, that adopts measures “regarding the provision of public transport service and their infrastructure, under the State of Economic, Social and Ecological Emergency”
Article 3 of the aforementioned Decree creates the Logistic and Transport Center composed by the “Ministry of Agriculture and Rural Development, the Ministry of Commerce, Industry and Tourism and the Ministry of Transport”. The functions of the Center include: 1. Adopting and issuing regulation regarding the conditions in which the different subjects of the transport sector can cooperate or coordinate; and 2. Authorize the agreements that aim at obtaining efficiency synergies in logistics.
According to the recitals of the Decree, the attribution of these functions, to the head of the Logistic and Transport Center, has legal grounds on antitrust law’s exception established in the paragraph of article 1 of Law 155 of 1959, developed by Decree 1302 of 1964. The relevant extract of the Decree’s recitals states the following:
“Even though the agreements between cargo transport competitors in a normal situation would be considered anticompetitive, in light of the economic, social and ecological emergency in the country, the National Government considers necessary that cargo transport sector companies work with each other to overcome the crisis, generating efficiencies in the market, without place for reproach from the State. Currently, with regards to the COVID-19 pandemic, there are various countries, like the UK, that have adopted measures for companies which would be natural competitors, such as cargo transporters or cargo generators, to allow them to collaborate with the objective of overcoming the sanitary emergency.
In Colombia, the paragraph of article 1 of Law 155 of 1959 allows the National Government to authorize ‘the celebration of agreements or conventions that albeit limiting freedom of competition, have as an aim defending the stability of a basic sector of the production of goods and services that are in the general economic interest.’
That in this context, to safeguard the general interest, the wellbeing of all inhabitants of the Colombian territory and the supply of food, health services, healthcare and production and distribution of fossil fuels and transport, duration of the emergency, the celebration of contracts, conventions or agreements between cargo transport sector companies – cargo generators and/or the providers of the public service of cargo for the satisfaction of the needs of the colombian population ahead of this emergency, can be approved by the State and without risk of fines, if these are created, only and exclusively, in the context of the COVID-19 pandemic.”
The rules that will devlop the operation of the Logistic and Transport Center have not been issued. The outstanding rules should develop in detail the procedure for the regulation, study request and approval of the collaboration agreements, cooperation and synergies among sector companies.
If you are interested in the information about the relation between COVID-19 and antitrust law, I invite you to attend the webinar of the Latin America Regional Chapter of ASCOLA “Competition and Health in Times of COVID-19” – with the participation of experts from Colombia, El Salvador, México, Ecuador, Chile and that will be moderated by our partner Juan David Gutiérrez.