CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
FNE Consultation on Joint Operation of Liquid Fuel Storage Facilities: Scope of Applicable Measures in a Non-Contentious Proceeding The FNE’s consultation In 2022, the FNE submitted a consultation to the TDLC requesting that the latter rule on whether the joint operation agreements for liquid fuel storage facil - ities between the companies Copec, Enex, and Esmax (the “co-owners”), as well as the practical conduct observed in that context, comply with competition law. In its request to initiate proceedings, the FNE explained that the joint operation of these companies in the stor - age market could pose anti-competitive risks, specifi - cally related to co-ordination and exclusion. To miti - gate the identified risks, the FNE requested that the TDLC impose both structural and behavioural rem - edies, such as: (i) the divestiture of jointly owned facili - ties, and/or (ii) the passive participation of co-owners in the storage infrastructure and its management. Initial inadmissibility Initially, the TDLC declared this consultation inadmis - sible. According to the TDLC, since the FNE stated in its consultation that it had found frequent exchanges of commercially sensitive information between the companies involved, it would be inappropriate to review the matter through a consultation. A consulta - tion would effectively constitute the accusation of one or more anti-competitive behaviours that could war - rant the imposition of sanctions, a matter that must be judged through the exercise of judicial authority. The FNE subsequently filed a complaint against this decision before the Supreme Court, which accepted its request, declared the consultation admissible, and ordered the TDLC to hear and resolve it. In its rul - ing, the Supreme Court stated that the admissibility analysis for this type of matter is of a formal nature and cannot extend to an assessment of the merits of the allegations or requests contained in the consulta - tion, as that would imply ruling on the substance of the issue. TDLC resolution Following the consultation procedure, the TDLC issued its final decision on the matter in September
The court found a collusive agreement between FAASA and Calquín, through the intervention of the executives Ricardo Pacheco and Rodrigo Lizasoaín, with the purpose of influencing the result of the first tender. However, the TDLC considered that the evi - dence presented did not demonstrate that said col - lusive agreement was extended to the second tender in a clear and conclusive manner. In light of this, it pro - ceeded to examine the statute of limitations defences put forward by the accused companies and execu - tives. Based on the evidence presented, the court deter - mined that the collusive agreement relating to the first tender generated effects until 10 December 2014, the date on which a new tender was held under com - petitive conditions. Therefore, since the FNE lawsuit was filed on 19 August 2020, the five-year statute of limitations had already expired, rendering the claim time-barred. The Supreme Court Ruling and the single, continuous infringement theory The FNE filed an appeal against the TDLC ruling with the Supreme Court, seeking the dismissal of the stat - ute of limitations defences raised by the defendants and, consequently, the imposition of sanctions on FAASA, Calquín, and their executives for collusion. In February 2025, the Supreme Court upheld the FNE’s appeal, concluding that the two tenders under review should not be regarded as separate or independent from each other. Although the tenders differed in terms of initiation dates, operational requirements, and par - ticipants, the second tender was contingent upon the failure of the first, which had been declared void. The Supreme Court determined that this connection revealed a common objective underlying both pro - cesses, from the perspective of both CONAF, as the contracting authority, and the defendants. According - ly, the Court held that the statute of limitations should be calculated by treating both tender processes as part of a single, continuous conduct. This interpre - tation meant that the effects of the illicit agreement persisted for as long as the contracts entered into at the time of award were in force, extending beyond the date established as the deadline for calculating the alleged statute of limitations, that is, 19 August 2015.
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