CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
1.3 Enforcement Authorities Administrative Stage
or notice before the relevant sector-specific regula - tor, regardless of general competition law or merger control rules. For instance, such is the case in the financial sector, where banking institutions, insurance and reinsurance companies, pension fund administrators and payment system participants are subject to prior authorisation and ongoing supervision by the relevant regulator, with changes of ownership or control typically requir - ing prior approval and compliance with fit-and-proper and capital requirements. In telecommunications, public service concessions may be held only by entities incorporated and domi - ciled in Chile, and transfers or assignments require prior regulatory approval. The media sector, under Law No. 19,733, imposes transparency and oversight requirements, including notification and, in some cas - es, ex ante review of ownership changes, particularly where state concessions are involved. Infrastructure activities, such as public works concessions, ports and airports, are also subject to special concession regimes, tender requirements and State contractual frameworks. By contrast, in sectors such as electricity, regulation primarily relates to licensing, tariffs and operational requirements rather than restrictions on foreign own - ership as such, although entry and operation remain subject to a detailed statutory and regulatory frame - work applicable to all market participants. Certain strategic sectors, including hydrocarbons, lithium and nuclear energy, are subject to heightened State control. Hydrocarbons and lithium fall outside the ordinary mining concession regime, so private par - ties may participate only through exceptional mecha - nisms, such as administrative concessions or special operating contracts, subject to State conditions and authorisations. Nuclear energy activities are also sub - ject to specific statutory authorisations and oversight by the Chilean Nuclear Energy Commission where applicable.
The National Economic Prosecutor’s Office (FNE) is the authority responsible for merger control review, with powers to unconditionally clear concentrations, condition them upon remedies or prohibit them. Judicial Review Only an FNE decision prohibiting a concentration may be subject to judicial review before the Competition Court (TDLC) and, in limited circumstances, before the Supreme Court. The law does not provide for a special appeal against decisions clearing concentra - tions, whether unconditionally or subject to remedies. • First, once the FNE has issued a prohibition deci - sion, the parties may challenge such ruling and file a special review appeal ( recurso de revision espe- cial ) before the TDLC, within ten days of notifica - tion of the FNE’s decision. The TDLC may either uphold the FNE’s decision, overturn it and clear the transaction, or subject the transaction to new remedies different from the ones the parties offered to the FNE in their final proposal. • Second, if the TDLC clears the transaction sub - ject to new remedies, the TDLC’s decision may be challenged by the merging parties through a recurso de reclamación before the Supreme Court within ten days of notification of the decision. This scenario has not taken place to date. • In addition, the merging parties or the FNE may file a general complaint appeal ( recurso de queja ) before the Supreme Court against the TDLC’s deci - sion in a special review appeal within five days of notification. This is a general remedy solely intend - ed to correct serious faults or abuses committed by judges in judicial decisions and to enforce their disciplinary liability. If granted, the Supreme Court may modify, amend or invalidate the TDLC’s ruling. This remedy has been extraordinarily accepted by the Supreme Court once, in the Colmena / Nueva MasVida transaction, where it overturned the TDLC’s decision upholding the FNE’s prohibi - tion and conditionally cleared the transaction. This outcome is institutionally significant, as it enabled the Supreme Court to review a merger decision through an extraordinary disciplinary remedy that is not expressly contemplated by the merger control
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