CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
The FNE claimed that, although the accused execu - tives participated in parent companies that did not compete directly with each other, their subsidiaries did, which would be prohibited under Article 3 (d) of DL 211. The FNE argued that the concept of “com - pany” does not refer solely to the legal entity involved in a particular market, but to all entities that are part of the same “economic unit.” Therefore, if a company defines or can influence the competitive behaviour of its subsidiaries, and takes part in the commercial decision-making process, all such entities should be considered as a single competing company. Conversely, the defendants argued that Article 3 (d) clearly distinguishes between “competing compa - nies” and the “business groups” to which they belong, to prohibit only cases of direct interlocking, since the provision explicitly refers to the concept of business groups serving solely to calculate annual revenues, not to establish which companies qualify as competi - tors. In this context, since Article 3 (d) establishes a per se prohibition, which is a matter of strict law, extensive interpretations or analogies would not be allowed. Accordingly, indirect interlocking would fall outside the scope of the statutory prohibition. Partial settlement In November 2022, the FNE reached a settlement agreement with the company Falabella, on one hand, and with Hernán Büchi, the director accused in the Büchi case, on the other. As part of these agreements, Falabella agreed to pay USD1.2 million to the treasury, while Hernán Büchi paid approximately USD185,000. TDLC rulings Between April and June 2025, the TDLC upheld both FNE lawsuits, imposing a fine of UTA80 (approxi - mately USD68,000) on Juan Hurtado (the interlocked director in the Hurtado case), and fines ranging from UTA1,148 (approximately USD985,000) to UTA4,000 (approximately USD3.5 million) on the companies involved in each infringement. In its rulings, the TDLC confirmed the prohibition of indirect interlocking under Article 3 (d) of DL 211 as a per se infringement, stating that each parent company and its subsidiaries formed a single economic entity, and, as such, were to be regarded as competitors. The TDLC further reasoned that, given the absence of elements in the legislative
history that clearly link the term “competing compa - nies” to the doctrinal concept of direct interlocking, the determination of its true meaning and scope must be left to the interpreter. This approach is consistent with the TDLC’s established case law, which has com - monly adopted a broad interpretation of the concept of “company”. The defendants challenged the TDLC’s rulings by filing appeals with the Supreme Court. Interestingly, their position is supported by the minority vote of one of the TDLC judges, according to whom indirect interlocking cannot be sanctioned in Chile without proof of its anti- competitive effects, unlike direct interlocking, which is unlawful per se under Article 3 (d). As of today, the Supreme Court rulings remain pending, and thus the TDLC’s interpretation is still subject to confirmation. Cryptocurrency Exchanges/Chilean Banks: Collective Abuse of Dominant Position Lawsuits filed by cryptocurrency exchanges Between April and June of 2018, three cryptocurrency exchanges filed lawsuits against ten major banks in Chile. The plaintiffs claimed that the accused banks infringed Article 3 (b) of DL 211 for abusing their “collective dominant position” through the unjustified closure of bank accounts and/or the refusal to open them. Since, in their view, cryptocurrency exchanges would compete with banks in the downstream markets for remittance services, foreign exchange and pay - ment methods, the defendants’ conduct would have amounted to an exclusionary practice. In particular, by closing bank accounts or declining to open them, the banks would have created artificial barriers to entry and engaged in arbitrary discrimination, as well as a refusal to deal. The importance of this case lies in the fact that there had not been any previous lawsuits claiming an abuse of a “collective” dominant position. Therefore, this was the first opportunity for the TDLC to directly address this concept and the conditions under which it may arise, as explained below.
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