CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
Estudio Lizana Candelaria Goyenechea 3900 Oficina 303, Vitacura Santiago de Chile Chile Tel: +56 9 9237 1671 Email: clizana@estudiolizana.cl Web: www.estudiolizana.cl
1. Introduction 1.1 Current Framework for Private Antitrust Litigation Private Antitrust Litigation Framework Private litigation has been a cornerstone of antitrust enforcement in Chile, complementing the work of the Chilean Competition Agency ( Fiscalía Nacional Económica , FNE). Chilean law allows private litigation without limitations, granting individuals and legal entities the power to file antitrust claims with the Chilean Competition Court ( Tribunal de Defensa de la Libre Competencia , TDLC) for any anti-competitive conduct that may affect them, including, but not limited to, collusion, abuse of domi - nant position, predatory practices, unfair competition and interlocking (provided that such claims meet the necessary legal requirements for them to be consid - ered admissible, as detailed in 2.1 Statutory Basis ). Accordingly, private individuals or entities are granted the opportunity to seek remedies, request the imposi - tion of fines and pursue compensation for damages, thereby enhancing the overall effectiveness of anti - trust enforcement in Chile. Regarding the prosecution of cartels, while in theory private individuals have the power to file a complaint directly with the court, in practice this type of conduct is reported to the FNE. This is because the FNE has broad investigative powers, including the possibility of resorting to intrusive measures, which facilitates the collection of evidence and therefore increases the likelihood of success in cartel litigation.
Furthermore, affected individuals and consumer asso - ciations representing those harmed by anti-compet - itive conduct often join the proceedings initiated by the FNE as third-party interveners, aiming to influence the precise delineation of the anti-competitive behav - iour, thereby facilitating a more accurate linkage to the damages sought in any subsequent compensa - tion claims. Additionally, private parties may also seek compensa - tion for damages resulting from anti-competitive con - duct. Since 2016, following a reform of the Chilean Competition Act (Decree Law 211, “DL 211”), follow- on actions for damages resulting from anti-competi - tive conduct must be filed with the TDLC. Article 30 of DL 211 establishes that, after the TDLC issues a final decision finding an individual or legal entity guilty of anti-competitive behaviour, the same court has juris - diction to evaluate and potentially award damages to the plaintiffs in a subsequent trial. The TDLC must rule on the lawsuit for compensation for damages based on the facts that it has established in the previous anti - trust judgment that serves as a precedent to the claim, without being able to alter those facts in any way. Moreover, Law No 19,496 on Protection of Consumer Rights (the “Consumer Protection Act”) allows parties to request compensation for damages arising from anti-competitive conduct through class actions, based on the impact on the “collective or diffuse interest” of consumers. This action is also processed before the TDLC, but is subject to a different procedure, regu - lated by the Consumer Protection Act.
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