CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
TDLC ruling, upheld by the Supreme Court In December 2023, the TDLC dismissed the lawsuits, acquitting the banks and ordering the plaintiffs to pay the procedural costs, given that their claims were entirely without merit and lacked reasonable grounds. Regarding the relevant markets identified by the plaintiffs, the TDLC found no evidence indicating that banks and exchanges were in competition in the downstream markets at the time of the events. How - ever, cryptocurrency exchanges were potential com - petitors of banks for certain services. Therefore, the TDLC proceeded to examine the alleged conduct of the accused parties. The TDLC’s analysis focused primarily on the alleged collective abuse of a dominant position in the upstream market of banking accounts. In this context, the TDLC defined collective abuse of dominant position as a behaviour adopted individually by multiple competi - tors in a market (none of which necessarily has a dominant position on its own), which, in a scenario of strategic interdependence, know that the result of their collective conduct will grant them the ability and incentives to generate anti-competitive effects, such as creating barriers to entry. This occurs without an explicit or implicit agreement or a concerted practice among them (which differentiates it from a collusive arrangement). The TDLC’s ruling, largely reflecting the assumptions developed by European case law, established that collective dominance requires: • strategic interdependence among the economic operators; • transparency in the relevant market, ie, that com - petitors can be aware of the simultaneous behav - iour of their rivals to determine whether they are adopting collective behaviour; and • sustainability of the internal and external conduct, which corresponds to the incentives not to deviate from collective behaviour. In addition, the infraction also demands a behavioural element, which consists of a concrete abuse capable of producing anti-competitive effects.
After examining all these conditions, the TDLC ruled that there was no evidence of a collective abuse of a dominant position in this case. The plaintiffs challenged this ruling before the Supreme Court, which upheld the TDLC’s decision in May 2025, thereby endorsing and conclusively settling the condi - tions for an abuse of a collective dominant position outlined by the TDLC. FNE/Helicopter Companies: Statute of Limitations in Bid-Rigging Agreements FNE accusation In August 2020, the FNE filed a lawsuit against FAASA, Calquín and their executives, accusing them of col - lusion in a contracting process conducted by the National Forestry Corporation (CONAF) during the year 2014 ‒ which was conducted through two tenders ‒ to provide helicopter transportation and firefighting services for the prevention and combat of fires. In general terms, the FNE’s accusation was based on the fact that proposals submitted by both companies did not overlap, suggesting a co-ordinated behaviour between them. Statute of limitations defence raised by the defendants Among the allegations of the defendants, they invoked the statute of limitations, claiming that its calculation should be based on the date when the effects of the alleged agreement ceased in the market. According to the defendants, this date corresponded to the closing date for the receipt of proposals. For the first tender, the effects were said to have ceased on 24 September 2014, and the second one, on 17 November 2014. Therefore, in respect to both tenders, the statute of limitations would have already expired, as more than five years had elapsed since the cessation of the effects of the anti-competitive conduct at the time the FNE filed its claim. TDLC ruling In November 2023, the TDLC dismissed the lawsuit. It is worth noting that, before this ruling, the TDLC had not rejected an FNE claim for a cartel case in 11 years.
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