Antitrust

LEGAL FRAMEWORK

Legal framework

The regime is set out in Decree Law No. 211 of 1973, whose consolidated text was fixed by DFL No. 1 of 2004 (published March 7, 2005; hereinafter “DL 211”). Its Article 1 seeks to promote and defend free competition. Article 3 contains a deliberately broad general clause sanctioning anyone who, individually or collectively, executes or enters into any fact, act or agreement that prevents, restricts or hinders free competition, or tends to produce those effects. Given its open nature, any conduct may be covered even if not specifically typified.

Law No. 20,945, published on August 30, 2016, reformed DL 211 and structures the current regime. It established mandatory prior control of concentration transactions administered by the FNE; toughened sanctions, raising the fine cap and adding disqualifications; and strengthened leniency. Merger control took effect on June 1, 2017.

The criminal regime for collusion is affected by Law No. 21,595 on Economic Crimes, published on August 17, 2023. Law No. 20,169, published on February 16, 2007, regulates unfair competition and assigns it, as a general rule, to the civil courts, and Decree No. 41 of 2021 approves the Regulation on notification of concentration transactions.

INSTITUTIONS

Institutions

The system rests on two specialized bodies — one that investigates and prosecutes, another that adjudicates — plus the Supreme Court as reviewer.

Antitrust Tribunal (TDLC) A jurisdictional body independent of the Government, subject to the oversight of the Supreme Court (Title II of DL 211). Under Article 5, it prevents, corrects and sanctions attacks on free competition. It comprises five sitting members: three lawyers and two economists. Its powers (Art. 18) include hearing contentious and non-contentious matters, issuing general instructions and resolving special appeals, including the review of an FNE resolution prohibiting a concentration. Acts executed in accordance with a non-contentious TDLC decision generate no liability (Art. 32), unless requalified on new evidence.

National Economic Prosecutor’s Office (FNE) A decentralized, independent public service under the President’s oversight through the Ministry of Economy. It is the prosecuting body and administrator of merger control. The Prosecutor’s powers (Art. 39) include opening investigations, acting as a party before the TDLC and the courts, and setting notification thresholds by resolution. To pursue cartels it has enhanced intrusive powers: with prior authorization from the TDLC and a Court of Appeals judge, it may raid and force entry, search and seize documents, and intercept communications.

Supreme Court It closes the system and reviews TDLC decisions, through its Third Chamber, when the corresponding appeal is filed. An appeal adds significant time to closing.

ANTICOMPETITIVE CONDUCT

Anticompetitive conduct

Article 3 defines the general rule and, in its letters, illustrates it with four groups of conduct. The list is not exhaustive.

Collusion and agreements between competitors · letter a The most serious conduct. It distinguishes hard-core cartels — agreements fixing purchase or sale prices, limiting output, allocating territories or market quotas, or rigging tenders — from agreements or concerted practices that, by conferring market power, determine marketing conditions or exclude competitors. For hard-core cartels, proving the agreement suffices, without proving market power; in the second hypothesis, market power is an element of the offense. The agreement may be express or tacit.

Abuse of dominance · letter b It sanctions the abusive exploitation of a dominant position by an agent or a group under common control. The law does not punish holding dominance, but abusing it to exclude competitors or exploit customers and suppliers. DL 211 neither defines it nor sets a share threshold; the analysis is case by case. Abuses include arbitrary discrimination, unjustified refusal to sell, tying, resale price maintenance and certain discounts with exclusionary effects.

ANTICOMPETITIVE CONDUCT

Unfair competition and interlocking Linked unfair competition · letter c

It sanctions predatory or unfair competition practices carried out to attain, maintain or increase a dominant position. Law No. 20,169 regulates unfair competition generally and assigns it to the civil courts; when such practices seek dominance, they also fall under the TDLC, so the same conduct can generate a civil action and an antitrust action in parallel.

Interlocking and minority stakes · letter d It prohibits the simultaneous participation of one person as director or relevant executive in two or more competing companies (interlocking). It applies when each company’s business group has annual revenue above UF 100,000 in the last calendar year, and the situation persists 90 days after that year ends.

Separate from merger control, there is also an obligation to report to the FNE, within 60 days, the direct or indirect acquisition of more than 10% of a competitor’s capital, provided both the acquirer (or its group) and the target exceed UF 100,000 in annual revenue in the prior year.

MERGER CONTROL

Control of concentration transactions

Mandatory prior merger control is the most significant change of Law No. 20,945 (Title IV of DL 211, Arts. 46 to 61), regulated by Decree No. 41 of 2021.

When notification is mandatory The obligation requires two cumulative conditions. First, that it is a concentration transaction (Art. 47), i.e. that two or more previously independent agents, from different groups, cease to be so by merger; by acquisition of rights allowing decisive influence over another’s management; by association to form an independent, permanent agent; or by acquisition of control over a third party’s assets. Second, that the FNE’s sales thresholds are exceeded and the transaction produces effects in Chile.

Threshold Current amount Statute

Combined sales in Chile of the agents planning to Equal to or above UF Art. 48 letter a), DL 211; Exempt Res. concentrate 2,500,000 No. 157 of 2019, FNE

Equal to or above UF Art. 48 letter b), DL 211; Exempt Res. Individual sales in Chile of at least two of the agents 450,000 each No. 157 of 2019, FNE

Both thresholds must be met jointly. Conversion to pesos uses the UF value at December 31 of the prior year. Below-threshold transactions may be notified voluntarily under the same procedure. The FNE may adjust the thresholds, so confirm the current amount.

MERGER CONTROL

Procedure, deadlines and review

Once notified, the transaction is suspended and cannot be completed until clearance (Art. 49). The procedure has two phases, preceded by a completeness review (deadlines under Art. 54).

Stage FNE deadline Possible outcome

10 business days from Opens the investigation if complete; otherwise grants 10 business Completeness review notification days to cure. Silence is deemed the start of Phase I.

Unconditional approval; approval with remedies; or prohibition of Phase II 90 business days the transaction.

FNE silence at the end of each phase is deemed approval on the terms proposed by the notifying party. Extension to Phase II allows interested third parties to submit evidence. The Regulation provides for simplified notification for less complex transactions.

Review by the TDLC Against an FNE resolution prohibiting a transaction, the parties may file a special review appeal before the TDLC within 10 days (Arts. 18 No. 5, 57 and 31 bis). The TDLC calls a public hearing within sixty days of receiving the file, and judgment is issued within sixty days of that hearing. That judgment is generally unappealable, except when the TDLC approves subject to remedies different from the last ones proposed, in which case the parties and the FNE may appeal to the Supreme Court.

LENIENCY

Leniency

Leniency allows a cartel participant who cooperates with the FNE to obtain exemption from or reduction of sanctions (Art. 39 bis). It requires providing precise, truthful and verifiable evidence proving the conduct and identifying those responsible; keeping the application confidential until the FNE files its complaint or closes the investigation; and immediately ending participation in the cartel, unless the FNE directs otherwise.

The benefits depend on order of arrival. The first applicant providing decisive evidence may obtain exemption from dissolution, from Article 26 fines and from criminal sanctions. The second who meets the requirements and provides additional evidence may obtain a fine reduction, which cannot exceed 50% of the highest fine sought against the other respondents. It does not reach whoever organized the cartel by coercing others to participate.

SANCTIONS

Sanctions and liability

The sanctions the TDLC may impose are in Article 26 and stack in three layers.

Administrative. Modification or termination of acts, contracts or agreements contrary to the law; modification or dissolution of the legal entity; and a fine payable to the Treasury of up to 30% of the infringer’s sales in the line of business associated with the infringement during its duration, or up to twice the economic benefit obtained. If neither sales nor benefit can be determined, the fine may reach 60,000 UTA. It may be imposed on the legal entity and, additionally, on its directors, managers and anyone who took part; fines on individuals may not be paid by the company or its partners.

Criminal (hard-core cartels). The TDLC may bar contracting with the State and being awarded State concessions. Added to this is the criminal regime of Title V of DL 211 (Arts. 62 et seq.), with prison sentences for individuals who enter into, organize or execute the agreement. The 2023 Economic Crimes Law No. 21,595 included collusion among economic crimes. As for legal entities, the current Art. 65 provides that, until the law coordinates the concurrence of penalties for the infringement and the crime of collusion, they will not be criminally liable for collusion, without prejudice to antitrust sanctions and the criminal liability of their executives. Civil. Anyone harmed by an infringement declared by the TDLC may seek damages before the same tribunal, through summary proceedings, with the ruling grounded on the facts of the prior infringement judgment, which eases the burden of proof.

Additionally, failure to notify a concentration is punished with a fine of up to 20 UTA per day of delay from completion (Arts. 3 bis and 26); failure to report a stake above 10% in a competitor falls under the general regime (Arts. 4 bis and 26).

S E C TO R A L R E G U L AT I O N

Interaction with sectoral regulators

DL 211 coexists with sectoral regulation. In regulated markets — telecommunications, energy, banking and insurance, transport — sector regulators operate alongside the general regime, so the same conduct may concern the FNE and the TDLC and, in parallel, the sector regulator.