CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
3.8 Pre-Notification Discussions With Authorities Pre-notification is a voluntary and informal stage that allows the notifying parties to approach the FNE and engage in consultations on specific substantive or procedural aspects of a potential notification, in which FNE has self-provided internal deadlines to respond a merging party’s query. The FNE distinguishes two types of pre-notification enquiries: • Simple queries : These concern procedural or for - mal matters (eg, powers of attorney, formalities or threshold calculation methods). They are handled remotely, and responses are generally provided during the same call. If further review is needed, the deadline is up to five business days. • Complex queries : These imply enquiries that demand from FNE a deeper analysis of the project - ed transaction (eg, legal qualification of concen - tration transaction, applicable filing form, market overlaps, etc). Complex queries must be submitted in writing with specific information about the trans - action (eg, a summary of the transaction, merging parties identification, economic activities and the specific query). The parties can expect the FNE to schedule a meeting within five business days of the submission. If a draft notification is attached for the FNE’s review on certain queries, the dead - line extends to 5–10 business days. Exceptionally, deadlines may be extended for particularly com - plex matters (to a maximum of 15 business days). In practice, pre-notification proceedings in com - plex queries can last three to four weeks. Pre-notification is confidential and there is no pub - licity of any guidance or FNE decision at this stage. Not all transactions involve a pre-notification stage, and whether submitting a simple or complex query is advisable for a given transaction is a matter that should be evaluated on a case-by-case basis. 3.9 Requests for Information During the Review Process During the review process, it is customary that the FNE issues at least one request for information (RFI) to the notifying parties, and usually also to third parties
information is required. If the notification is deemed incomplete, the FNE issues a notice of incomplete - ness. It is not unusual that the FNE issues one or more such notices, each extending the review period by around one additional month. • Phase I : Once the FNE declares the notification complete, the Phase I clock starts. Phase I lasts up to 30 business days (approx. six weeks). This period may be suspended: (i) for up to ten addi - tional business days each time the parties submit remedies; and/or (ii) by mutual agreement between the FNE and the parties, for up to 30 additional business days. While the FNE’s average decision time on Phase I (without remedies) is 27 business days, a Phase I review could last between 1.5 and 2.5 months (or even more) from the opening of the investigation, depending on whether there are remedy submissions and suspensions. At the end of Phase I, the FNE may: (i) clear the transaction unconditionally, if it concludes that the transaction does not substantially lessen competition; (ii) clear the transaction subject to remedies; or (iii) extend the investigation into Phase II, if has concerns that the transaction (with or without remedies) could substantially lessen competition. • Phase II : This phase lasts up to 90 business days (approx. 18 weeks) from the FNE’s decision to extend the investigation. This period may be sus - pended: (i) for up to 15 additional business days each time the parties submit remedies; and/or (ii) by mutual agreement between the FNE and the parties, for up to 60 additional business days. The FNE’s average Phase II decision time is 130 busi - ness days. In practice, Phase II typically lasts between four and 11 months from the end of Phase I. At the end of Phase II, the FNE may: (i) clear the trans - action unconditionally; (ii) clear the transaction subject to remedies; or (iii) the prohibit the transaction, on the grounds that it is capable of substantially lessening competition. Overall Timeline for Clearance Standard transactions (ie, those that do not raise com - petition concerns) are usually cleared in Phase I within 2.5 to four months from filing. This rate has been the general rule in 87% of merger filings before the FNE.
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