Judicial Review of Investigative Powers Exercised by the Colombian Competition Authority (SIC). What to Expect in 2026.

Introduction

The Colombia's Constitutional Court ruled in 2019 that no court order is needed for  dawn raids conducted by the Colombian Competition Authority (the SIC) however it let left open exactly how far the SIC could go once inside the premises of the undertaking  under investigation1.

The SIC interpretation of this judgement has been recently contested in 2025 and 2026 by extraordinary legal actions brought by affected parties, the Office of the Attorney General, and the “Fundación para El Estado de Derecho”, a Public Interest Organization to safeguard the constitutional rights of those under investigation.

In this context, the scope of inspection visits has become a legal battleground between an authoritarian interpretation of administrative law and its inherent inspection powers against an approach in which the fundamental rights recognised by the Constitution take precedence. This debate exacerbates concerns about the SIC´s lack of independence2.

The SIC, during the preliminary stage, is vested with administrative powers to conduct dawn raids, collect evidence, examine witnesses, and initiate investigations according to Law 1340 of 2009, Decree 019 of 2012, and Decree 4886 of 2011. These administrative regulations reflect an inquisitive design where the same authority has the power to initiate an enquiry, collect evidence, and even decide during the ulterior investigation phase on the evidence provided by the subject under investigation. The same Institution, has the capacity to decide the case and impose fines to both undertakings and individuals.

In building the case theory, the SIC may execute dawn raids to collect information regarding the facts under scrutiny.  In practice, the SIC has discretionary Authority to determine the time scope of the relevant investigation and the extent of the information requests to be issued in this preliminary phase. The scope of the information to be requested derives from the inspection credential, a document signed by the Deputy of Competition before each dawn raid.

Furthermore, throughout the investigation stage, the authority has the power to order and admit evidence under article 168 of the General Proceeding Code.  These powers have been challenged.

Extraordinary defences before the SIC in competition investigations

In Colombian administrative doctrine and institutions it is common for The Executive Branch to have investigative powers, and for the Superintendencies and Ministerial Departments responsible for public policy to exercise punitive powers.

Subjects under investigation are permitted to exercise administrative defenses; however, as the Competition Authority is also vested with the power to investigate and impose fines, by design, those defenses tend to be ineffective. A Master´s Degree thesis on public law shows that even the judicial branch has been accepting several breaches of fundamental liberties3.

Exceptionally, where no judicial remedy is available, or where the available remedy is ineffective, and a fundamental right recognized by the Constitution has been violated- -for instance, due process- a constitutional action may be brought according to article 86 of the Colombian Constitution. This mechanism provides for the immediate protection of infringed fundamental rights. In the context of administrative investigations, this action may be taken if the authority, notwithstanding the remedies pursued by the investigated party, continues to affect its fundamental rights.

The recent cases are summarised below:

i) The constitutional protection of the right to contradict. Dimayor Case. Writ of constitutional protection

The Colombian Constitutional Court ruled that the absence of a substantive decision on Dimayor’s evidentiary request before the SIC during the investigation phase,  seriously impaired the applicant’s constitutional procedural guarantees, under article 29 of the Colombian Constitution.

The case began when the Colombian Premier Football Division filed a constitutional protection action against the Deputy for Competition Protection of  the Superintendency of Industry and Commerce (SIC). This was because during the administrative investigation, the SIC closed the evidence-gathering phase without ruling on the admissibility of the expert evidence requested by the Dimayor in its defense. The purpose of the requested expert evidence was to verify whether the correspondence on which the statement of charges against the petitioner was based had been obtained in accordance with the data message regulations under Law 527 of 1999.

In support of this position, the SIC stated that it would rule on Dimayor’s evidentiary request once the investigated parties had been given an opportunity to review the digital evidence incorporated into the administrative proceedings after the statement of charges had been issued. In light of that determination, it was reasonable to expect that the Deputy of Competition would eventually either admit or reject the requested expert evidence. However, inexplicably, this never happened. Instead of ruling on the request the SIC waited until it issued the Reasoned Report, a document prepared after the evidentiary stage had closed.

The Constitutional Court stated that it was not constitutionally permissible for the respondent administrative authority to refrain indefinitely from ruling on the admissibility of the requested evidence.

ii) Limits to the inspection warrant. Attorney General Investigation

In another incident, the Office of the Attorney General of the Nation, in its capacity as the authority responsible for exercising disciplinary jurisdiction over public officials under Article 276 of the Colombian Constitution, initiated an investigation against officers and contractors of the Competition Authority for exceeding their powers in  accordance to the General Disciplinary Code applicable to all public officers (Law 1952 of 2019).

In this case, the disciplinary authority established that the scope of the requirements issued during dawn raids in competition law investigations is strictly limited to the subject of the investigation. No phishing activities are allowed under Colombian law. The appeal is to be decided in 20264.

In the viewpoint of the Attorney General’s Office, the Superintendency of Industry and Commerce may, in the course of administrative inspection visits, collect information and partial forensic data, without being obliged to extract all the information from storage devices. This authorization, which includes access to emails and files, is based on the search for evidence, provided that the purpose of the visit is respected.

The disciplinary investigation was initiated following a series of dawn raids conducted at the premises of the Colombian Electoral Authority and Colombia´s Foreign Relations Department related to the potential infringement of the competition regime in the public procurement processes applied to these two institutions.

iii) Strategic litigation against the SIC. FEDE Lawsuits

The Foundation for the Defense of the Rule of Law, brought a legal challenge against Decree 4886 of 2011, which sets out the SIC’s powers to carry out inspections and gather evidence. Should this challenge be successful, it would oblige the legislature to enact new legislation to regulate the conduct of administrative inspections.

With regard to the power to carry out administrative visits, the lawsuit essentially argues that administrative proceedings of a punitive nature not regulated by special laws are governed by Part One of the (CPACA), Colombian Administrative Procedural Code, Law 1437 of 2011 which expressly states the rights to representation, defense and the right to be heard must be guaranteed in punitive proceedings 5.

As the the regulations governing the various matters for which the SIC is responsible do not provide for a special administrative proceeding, Dawns Raids must strictly adhere to the aforementioned general procedure.

Furthermore, the same organisation has lodged another judicial complaint against the investigation instruction guidelines arguing that the Competition Authority disregards Congress’s power to regulate sanctioning procedures, and questions the failure to inform the affected party in advance of the facts under investigation.

The complaint also asserts that this infringes on lawyers’ professional privilege and the principle against self-incrimination. Furthermore, it states that it is unlawful to assign sanctioning functions to service providers contracted by the Authority.

Conclusions. What to expect in 2026.

Warrants authorizing administrative inspections must clearly specify their scope and purpose.  During an inspection, indiscriminate copying of storage devices is not permitted. However, the Attorney General’s Office accepted that the SIC may obtain partial copies.

Clearly, the legal framework lacks provisions that would  provide the Authority and to those under investigation with legal certainty regarding the information that may be gathered during an inspection. There is broad discretion for the inspection authorization to set out comprehensive criteria; this lack of definition undermines the legal certainty of the procedure for both the Authority and the potential subject of the investigation.

The Dimayor case set a precedent for proceedings in which the Competition Authority undermines procedural fairness.

Finally, if  the actions for simply annulment filed against the Decree 4886 of 2011 and the Inspection Guidelines  succeed, they could lead to a transformation of the current procedure. The arguments put forward are sound and it is possible that a favorable ruling will be handed down. If so Congress will have to exercise its mandate to establish the applicable legal framework.

• 1Constitutional Court. Judgment C-165 of 2019.
• 2https://legalblogs.wolterskluwer.com/competition-blog/main-developments-in-competition-law-and-policy-2022-colombia/ Se also: https://www.pymnts.com/cpi-posts/the-independence-of-colombias-competition-authority-still-a-pending-task/
• 3Judicial Deference or Judicial Deficiency. Universidad del Rosario. 2021. J.D. Elorza Martínez. Master’s Degree thesis.
• 4https://www.procuraduria.gov.co/Pages/procuraduria-sanciona-extralimitacion-visitas-superintendencia-industria-comercio-entidades-publicas.aspx. Accesed 12.09.2026.
• 5Article 3. Law 1437 of 2011.