CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
2024. In the decision, it was established that the con - tracts under consultation and the related practical conduct do not infringe competition law, provided that the companies involved comply with a series of behavioural measures imposed in the same resolu - tion. The most noteworthy include: • the prohibition against co-owners sharing commer - cially sensitive information in the context of plant operations; • the prohibition against their respective commercial departments participating in the flow of information circulating in the operation of the shared plants; and • the prohibition against disclosing information from a company’s own plant to the other co-owners. Moreover, the TDLC dismissed the structural divest - ment measure proposed by the FNE, arguing that such a measure was excessive in relation to the iden - tified risks, as there were less harmful behavioural measures available that better preserved corporate freedom and property rights. Supreme Court ruling: the scope of the consultation procedure The FNE filed a complaint before the Supreme Court against the TDLC’s decision, requesting its modifica - tion to broaden the mitigation measures imposed. Among other things, it sought that the operation of the joint plants be assigned to one or more independ - ent administrators.
In July 2025, the Supreme Court issued its ruling, rejecting the FNE’s complaint. Among other argu - ments, the Court emphasised that the consultation is a non-contentious procedure, which cannot be used as a preliminary trial for a sanctioning process where there is a dispute between the FNE and the defend - ants. Therefore, in the Supreme Court’s view, if the FNE believed there was sufficient merit for applying any of the sanctions established in DL 211 ‒ such as ordering the dissolution of the communities or requir - ing the passive participation of the community mem - bers in the jointly operated plants ‒ it should have initiated a contentious proceeding through a formal lawsuit. This Supreme Court ruling is particularly significant as it appears to represent a shift in judicial criteria. Just six years earlier, the same court had upheld a TDLC decision in a consultation procedure initiated by a consumer association, in which the tribunal had ordered a series of remedies, including a struc - tural divestiture measure (ie, requiring the companies Abastible and Gasco to sell their ownership stakes in the Gasmar terminal). Now, under this new approach, such a measure could be interpreted as a sanction under Article 26 (a) of DL 211 ‒ namely, the modifi - cation or termination of acts, contracts, agreements, systems, or arrangements contrary to the law.
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