CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
regime and is, in principle, aimed at correcting serious faults or abuses in judicial decisions rather than reviewing the substantive merits of a transac - tion. Enforcement of Merger Control Rules The FNE also enforces compliance with the merger control regime. It investigates failures to notify, proce - dural and substantive gun jumping, breaches of rem - edies imposed by the FNE (or the TDLC before the mandatory system was enacted), implementation of prohibited transactions and submission of false infor - mation when filing. The FNE may then bring proceed - ings before the TDLC seeking sanctions under DL 211 and, where applicable, unwinding or modification of a transaction implemented in breach of merger control rules. TDLC judgments in such proceedings may gen - erally be appealed before the Supreme Court. 2. Jurisdiction 2.1 Notification Compulsory Notification A transaction must be notified to the FNE when all the following requirements are met: • it has effects in Chile; • it legally qualifies as a concentration; and • the sales of the parties involved in the concentra - tion exceed the applicable jurisdictional thresholds. There are no exceptions if all the requirements are met. Voluntary Notification Concentrations that do not meet the jurisdictional thresholds may nevertheless be voluntarily notified to the FNE. In its decisions and guidelines, the FNE has indicated that voluntary notification may be advisable, among others: • in scenarios that are borderline or uncertain as to whether the jurisdictional thresholds are met; • where one or more of the parties hold a significant position in the markets where their activities over - lap; and/or • where the transaction may affect existing remedies.
If such a transaction is not voluntarily notified, the FNE may open an ex officio investigation to assess its effects on competition, within one year from closing, as explained in 2.11 Power of Authorities to Investi- gate a Transaction . Post-Closing Reporting of Minority Acquisitions Under Chilean law, certain acquisitions of minority shareholdings must be reported post-closing to the FNE, within 60 days after the completion of the acqui - sition. This obligation is triggered when: • a company – or another entity of its business group – acquires, directly or indirectly, more than 10% of the share capital of a horizontally competing company; and • the acquirer (and its business group) and the target each had revenues exceeding UF100,000 in the year prior to the acquisition (USD4,174,684 in 2025, for acquisitions in 2026). The threshold is expressed in Unidades de Fomento (UF), an inflation-indexed unit of account widely used in Chile. The reporting requires a simple form with basic infor - mation of the parties’ identity and their products and services supplied in Chile. It applies exclusively to acquisitions of non-controlling minority shareholdings in competitors. Where the acquisition confers control, the merger control system (mandatory or voluntary) applies. In other words, if an acquisition qualifies as a concentration but does not meet the merger control jurisdictional thresholds, it remains outside the scope of the duty to report acquisitions of 10% sharehold - ings in competitors, even if it meets the respective threshold. If the acquisition is not reported within those 60 days, the FNE can prosecute the infringement of the duty to report them through a claim before the TDLC, which may impose the same penalties as those applicable to a failure to notify (with the exception of the additional daily fine), as explained in 2.2 Failure to Notify .
70 CHAMBERS.COM
Powered by FlippingBook