Freedom of enterprise is a prerogative that entrepreneurs have to create without any legal impediment, without prejudice to the requirements for each commercial activity. In that sense, commercial law has given fundamental importance to this concept insofar as it is necessary for the State to guarantee the free right to create a company. In the Political Constitution, freedom of enterprise is contemplated in Article 333 of the Political Constitution and imposes on the State the obligation to protect it.
For the construction of the economic model in Colombia, it has been necessary over the years for merchants to constitute organized companies in order to stimulate the country's economic growth. In that sense, Decree 2153 of 1992, in Article 45, numeral 5, has defined dominant position as "the possibility of determining, directly or indirectly, the conditions of a market." The Superintendence of Industry and Commerce (hereinafter SIC) has been the entity that monitors the rights of entrepreneurs and consumers. Thus, it has ruled on multiple occasions regarding restrictive practices of free competition, in the exercise of its jurisdictional powers.
In practice, the most notorious case of this type of violation has been in the telecommunications sector, in which Resolution 53403 of 2013, confirmed by Resolution 66934 of 2013 issued by the SIC, sanctioned Comunicación Celular S.A. (Comcel) for endangering freedom of enterprise and fair competition in the telecommunications sector by impeding number portability to other operators.
In said administrative act, barriers to market entry are considered with the non-delivery of the personal identification number (NIP) for the transfer of users from Comcel to other operators, delaying and hindering the process or causing the client to desist from the procedure. In addition, they invented requirements not contemplated by the Communications Regulation Commission (CRC) for the opening of bands; and to top it off, through campaigns, they approached users handing out Comcel SIM cards for free, when what they were actually doing was carrying out number portability processes without consulting the consumer.
For these conducts, the SIC updated its jurisprudence, applying Law 1340 of 2009, in harmony with Decree 2153 of 1992 and Law 155 of 1959, establishing that there is a violation of the free competition regime and, particularly, a violation for abuse of dominant position and, consequently, it was sanctioned and fined.
In the legal analysis, the SIC investigated Comcel for violating Article 1 of Law 155 of 1959 and numeral 6 of Article 50 of Decree 2153 of 1992, for placing barriers in the market systematically, so that users and other mobile telephony operators had difficulties when carrying out the number portability process. Furthermore, without consumer consent, they were deceived into believing they were obtaining a new SIM card promoted by Claro, when what the Company was doing was carrying out the number portability process, so that, among other things, the portability figures of users to Claro would increase in the statistics of the Communications Regulation Commission.
In that sense, Claro's conduct is representative because, for a social state of law, when it is proclaimed that freedom of enterprise exists, it is not enough that there are norms that allow development, but that in practice one can truly access the market, and placing barriers or using other means to prevent changing operators violates the rules of free competition. Hence, the conducts deployed by Claro, which were subject to the sanction imposed by the SIC, constitute an impairment of freedom of enterprise. The impairment must then be seen not only from the sanctioning point of view, but also from the point of view of guarantees. That last part would mark the differentiating element, so that conducts like Claro's do not change the paradigm when the damage is already caused to the other market actors.
The foregoing implies that the rules applied by the SIC have been efficient if evaluated at the sanctioning level; however, at the preventive level, the regulations fall short so that, through preventive-consultative law, lawyers can exercise protective actions, given that if the damage does not occur, then there is no place for protection. From that perspective, a complement with pedagogical programs through the Chambers of Commerce of the country is suggested.
Author: Luis F. Gomez Morales – AZC Consulting Attorney