Colombia is one of 52 countries that have enshrined competition protections in their constitution. The Constitutional Court’s 2026 ruling in Superintendence of Industry and Commerce v. National Civil Registry explored how countries may resolve clashing constitutional principles, in this case the state’s protection of competition and the separation of powers, write Maciej Bernatt, Angel Madiedo, Hannya Ramírez Madrid.
Scholars have long overlooked the relevance of national constitutions to competition law, even though a recent study finds that the national constitutions of at least 52 countries across Africa, the Americas, Asia, and Europe expressly protect competition. The constitutional protection of competition vest courts with a role of reconciling it with other constitutional protections and rights. Instead of studying how the constitutional protection of competition changes how courts approach competition law, scholars have focused, almost exclusively, on sub-constitutional legislation (such as the 1890 Sherman Act in the United States). Even in these circumstances, constitutions still shape the principles that motivate and limit competition law. The academic neglect of the role of constitutions in competition law thus extends beyond the 52 countries that have added explicit competition principles to their constitutions.
Apart from research on Poland and South Africa, very few studies (if any) have examined the tensions and legal consequences that arise from constitutional provisions protecting competition. Recent developments in Colombia, one of the countries whose constitution expressly protects competition, offer a case study of what happens when such protections come into conflict with the principle of separation of powers.
Superintendence of Industry and Commerce v. National Civil Registry
Article 333 of the Political Constitution of Colombia of 1991 expressly recognizes that “free economic competition is a right of all, entailing responsibilities” and requires the state to prevent any obstruction or restriction of economic freedom. To advance these constitutional responsibilities, Colombia has strengthened its competition law framework over the last few decades.
In 2024, the Superintendence of Industry and Commerce (SIC), the executive branch agency that oversees competition regulation in Colombia, conducted an inspection of the National Civil Registry, an autonomous public body part of Colombia’s Electoral Organization, which falls under the purview of the judiciary. The Registry is responsible for civil registration and the organization of elections. The SIC conducted the inspection as part of a preliminary inquiry into possible collusion in public procurement processes involving the Registry. As a result of that proceeding, the SIC opened an official investigation against several Registry officials for allegedly failing to comply with the orders and instructions issued during the visit.
The case ultimately gave rise to a constitutional challenge brought before the Colombian Constitutional Court against parts of Articles 2, 4 and 6 of the Colombian Competition Act of 2009, which was passed to help meet Colombia’s constitutional responsibilities to protect competition. Read together, these provisions vest the SIC with the exclusive power to conduct administrative investigations and to adopt infringement decisions not only against private firms but also against any state body. The constitutional complaint therefore questioned whether those powers could extend to the judiciary, the Electoral Organization and other constitutionally autonomous bodies without impairing their constitutionally ensured independence or the principle of the separation of powers. At a higher level, the complaint questioned how to reconcile Colombia’s constitutional protection of competition with its protection of the separation of powers.
The constitutional question the Court had to answer arose from the broad terms in which the 2009 Competition Act defines the legal scope of the competition regime. Articles 2 and 4 provide that its rules apply irrespective of the form or legal nature of those who carry out or affect an economic activity, and with respect to all sectors and economic activities. In turn, Article 6 vests in the SIC, on an exclusive basis, the administrative authority to investigate and determine if there were any infringements of the competition regime.
In 2026, the Constitutional Court ruled that the SIC may not exercise investigative, decision-making or sanctioning powers over certain branches of government, constitutionally autonomous bodies, or their officials when the conduct under scrutiny arises from the exercise of their constitutional functions.
The Court structured its analysis around two premises. First, it held that the separation of powers prevents the executive from exercising powers that create relationships of subordination or control over bodies that the Constitution has insulated from its direction and interference. Second, it emphasized that the powers granted to the SIC are particularly intrusive: they include administrative inspections, access to documents and electronic devices, information requests, sanctions, orders, and interim measures capable of directly affecting acts, contracts, information systems, and operations necessary for the exercise of constitutional functions. In that context, the concern did not depend on any potential abuse of those powers, but on the institutional design itself: an executive branch authority, headed by an official who may be freely removed by the president, could interfere with bodies that are specifically required to act independently of the executive branch or even to exercise oversight over it.
As noted, the Court declared the challenged provisions conditionally constitutional. Specifically, it held that the SIC may not exercise investigative, decision-making or sanctioning powers over the legislative and judicial branches, the Office of the Comptroller General, the Office of the Inspector General, the Ombudsman’s Office, the National Electoral Council, the National Civil Registry and the Central Bank, or their officials, when the conduct at issue is carried out in the exercise of their functions and is connected to acts attributable to those bodies. The exclusion, however, does not amount to a general immunity of the state from competition law. The Court limited it to institutions that perform functions essential to the rule of law, whose autonomy and independence are directly protected by the Constitution, and whose relationship with the executive is specifically defined by it.
The SIC therefore retains its powers over other public entities not covered by the constitutional condition, as well as over private parties. The Court also made clear that the protected institutions remain bound by competition law and that, in public procurement, the SIC retains full authority to investigate and sanction private parties engaged in collusive practices. The boundary drawn by the judgment thus does not turn simply on whether a public entity is involved, but on the constitutional status of the institution and on whether the conduct under scrutiny arises from the exercise of its constitutional functions. The precise scope of that boundary, however—particularly which acts are sufficiently connected to constitutional functions and which remain subject to SIC enforcement—is likely to generate further debate and judicial development in the nearfuture.
The decision makes clear a third consequence of Colombia’s constitutional arrangement. Recognizing free competition as a constitutional right strengthens the state’s mandate to protect it, but this does not mean that the instruments created to give it effect may operate independently of the rest of the Constitution. National competition regimes must be understood in light of the values and choices embodied in their respective constitutional orders. The judgment in Superintendence of Industry and Commerce v. National Civil Registry offers a concrete manifestation of that premise: the protection of competition must be reconciled with other constitutional principles, including the separation of powers and the autonomy recognized for certain institutions.
Thus, the Court’s ruling conveys a clear message: recognizing free competition as a right reinforces the state’s duty to protect it, but this does not mean that the mechanisms established to give effect to that right may operate unrestrained by other aspects of the constitution.
Conclusion
In sum, the Colombian experience shows that constitutionalizing competition strengthens its protection but also requires clearer boundaries vis-à-vis other constitutional principles and institutions. Superintendence of Industry and Commerce v. National Civil Registry highlights, in particular, a question also identified in comparative scholarship: competition law may reach certain forms of state conduct—such as when the state participates in the market, facilitates private restraints, or misuses administrative powers to harm competition. However, this reach encounters limits when sovereign or constitutionally protected functions are involved. Eleanor Fox and Deborah Healey make precisely this point: the relevant line should not simply be drawn between public and private actors, but between forms of state conduct that may properly be subject to competition control and those that, because of their connection with sovereign functions and separation-of-powers concerns, require different treatment.
The Colombian decision adds an institutional dimension to that debate. The question is not only which forms of state conduct may be scrutinized under competition law, but also who exercises those powers and under what guarantees of independence. Where an authority embedded within the executive can investigate and sanction constitutionally autonomous bodies, concerns about the separation of powers may arise differently than they would if the competition authority were protected by stronger safeguards against political influence. This leaves open a question that is likely to generate further debate: whether the constitutional balance struck by the Court might have been different under an institutional design providing greater independence for the SIC from the executive branch. Colombia is therefore not only a case about the consequences of recognizing competition as a constitutional right, but also about how competition protection, institutional autonomy and competition agency independence should be reconciled.
Authors’ Disclosures: This research is part of the project “Competition Law Through Constitutional Lenses: Integrating Socio-Economic and Environmental Values in a Time of Just Transition,” funded by the National Science Centre, Poland, 2023/50/E/HS5/00482. The authors report no conflicts of interest. You can read our disclosure policy here
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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