Ecuador
Answer ... Although infrequent, the Market Power Control Superintendency (SCPM) has imposed fines for failure to notify a transaction and for gun jumping. One of the most recent fines imposed in this regard was issued in 2021 and amounted to $2 million.
Failure to notify and gun jumping will incur fines as set forth in Article 79 of the Competition Law, as follows:
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Minor infraction – failure to notify a transaction within eight days of a triggering event: 8% of the turnover in Ecuador in the previous fiscal year.
- Serious infraction – execution of a transaction without notification: 10% of the turnover in Ecuador in the previous fiscal year.
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Very serious infraction – commencing the combined business without notification of the transaction: 12% of the turnover in Ecuador in the previous fiscal year.
These limits do not apply in the case of repeat offences. In addition, if the benefit attributable to the breach exceeds these limits, the SCPM can increase the fine to equal the benefit.
The mandatory methodology for the calculation of fines is set out in Article 80 of the Competition Law and Articles 95 to 100 of the Regulations on the Competition Law.
SCPM Resolution SCPM-DS-2021-19 sets out the applicable considerations for fine calculations. The considerations include, among other things:
- the generation of effects on the rights of consumers and other undertakings; and
- the extent of involvement of legal representatives.
Ecuador
Answer ... If a transaction is closed while a review is ongoing, the notifying undertaking can be penalised with fines of between 10% and 12% of its turnover in Ecuador in the previous fiscal year, as such infractions are deemed to be serious or very serious under Article 79 of the Competition Law. Also, if several parties jointly participate in a notifiable transaction, all parties are liable to fines.
The seller is not liable to fines unless it will retain control of the target post-transaction as a joint-controlling parent.
Ecuador
Answer ... Most of the conditions imposed are monitored by monitoring trustees which are specialised in competition matters. A smaller percentage are monitored through the direct intervention of the SCPM, but always in cooperation with the concentrated undertaking – for example, through the presentation of biannual reports on the application of the remedies.
In case of non-compliance with the conditions, the SCPM can impose additional corrective measures or fines of up to 12% of the turnover of the notifying undertaking.