CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
4.4 Competition Concerns According to the FNE’s Guidelines on Horizontal Mergers, the authority examines a broad range of potential competitive effects in merger control pro - ceedings. These include horizontal effects and, even in horizontal concentrations, unilateral and conglom - erate effects. The FNE also evaluates particular vari - ables related to dynamic competition and innovation incentives. The Guidelines also address digital platforms and markets, identifying additional theories of harm such as killer acquisitions, deterioration of non-price com - petition parameters (eg, privacy), reduced innovation incentives, monetisation strategies in non-transac - tional platforms, and barriers to entry or expansion created by combining data assets. In practice, the FNE has also assessed conglomerate risks such as consumer or platform-user exploitation and competi - tor exclusion through bundling and data concentration ( Cornershop / Uber Case F217-2019). 4.5 Economic Efficiencies It is customary for merging parties to submit evidence showing that the transaction will generate consumer benefits or efficiencies, which may act as countervail - ing factors to competition concerns. The FNE recognises a transaction may have produc - tive efficiencies (cost reductions) or dynamic efficien - cies (complementarities between the merging parties or changes in their ability and incentives that foster innovations). The FNE will only take efficiencies into account as long as they are: (i) verifiable (in both their likelihood and magnitude); (ii) inherent to the transaction (and not achievable through less restrictive means); and (iii) suitable for offsetting the increased market power of the merged entity (in magnitude, in time, and with benefits transferrable to consumers). Although the Merger Regulation requires parties to include efficiencies in the notification, in practice they usually present evidence only once the FNE raises concerns. Given the authority’s high standards, effi - ciencies are only exceptionally sufficient to fully offset identified concerns. More often, parties are able to
demonstrate some efficiencies but not all, falling short of outweighing the alleged concerns. 4.6 Non-Competition Issues Chilean merger control law does not allow the FNE to assess issues unrelated to competition in merger control review. In its decisions, the FNE has reiterated that Chilean competition law empowers it only to determine wheth - er a concentration substantially lessens competition, consistent with the principle of legality. Accordingly, as stated in State Grid / CGE (electricity distribution, 2021) and Codelco / SQM (lithium, 2025), matters such as geopolitical strategy, defence and national security fall outside the FNE’s remit. Regarding foreign direct investment, although there is no overarching screening regime (as explained in 9.1 Legislation and Filing Requirements ), see 1.2 Legislation Relating to Particular Sectors for further details on specific rules applicable to some markets and industries, which operate independently from the merger control regime. Chile has no specific regime governing foreign sub - sidies. 4.7 Special Consideration for Joint Ventures Under the FNE’s Guidelines on Horizontal Mergers, the FNE gives particular attention to co-ordinated effects in joint ventures. Joint ventures create or strengthen structural links between parent companies, which may increase their ability to co-ordinate in the joint ven - ture’s market, in markets where the parents compete, or in related markets (spill-over effects). The FNE also analyses unilateral effects if one of the parent companies is active in the same market as the joint venture, or if the latter will concentrate the par - ent’s activities in the same market. The FNE will evalu - ate: (i) how each parent’s incentives regarding its own competitive decisions are altered, since consumer switching would be partially recaptured through their participation in the joint venture; and (ii) whether each notifying party will have the ability to influence the joint venture’s competitive behaviour, and the reach of said influence.
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