CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The FNE is empowered to prohibit a concentration when it concludes that the transaction is able to sub - stantially lessen competition in Chilean markets. A prohibition decision may only be issued at the con - clusion of a Phase II investigation. Before extending the investigation into Phase II, the FNE must inform the parties of the competition con - cerns raised by the transaction, based on the informa - tion and evidence gathered during its investigation. The FNE may then extend the review into Phase II through a reasoned decision where it considers that the notified transaction, whether implemented uncon - ditionally or subject to the remedies offered by the notifying parties, may result in a substantial lessening of competition. In assessing a transaction, the FNE considers factors such as market structure, concen - tration levels, barriers to entry, and potential unilateral or co-ordinated effects. If, after completing its review, the FNE concludes that the transaction would sub - stantially lessen competition and that such concerns have not been adequately addressed by the parties through the remedies offered (see 5.2 Parties’ Ability to Negotiate Remedies ), it will prohibit the transac - tion. A prohibition decision can be challenged before the TDLC through a special review appeal, as explained in 1.3 Enforcement Authorities . 5.2 Parties’ Ability to Negotiate Remedies The parties have the legal right to offer and negotiate remedies to address the FNE’s competition concerns in either phase of the merger review process. Chilean law and the FNE’s Guidelines on Remedies recognise the possibility to offer structural, quasi-structural and behavioural remedies. In practice, structural remedies are generally preferred, particularly divestitures of overlapping businesses or assets. However, the FNE has also accepted quasi- structural remedies (such as access or licensing com - mitments) and behavioural remedies, including restric - tions on exclusive dealing, bundling, discrimination
practices, information-sharing safeguards (firewalls), and obligations imposed on purchasers of divested assets. Specifically regarding pricing commitments, the FNE has considered that such remedies are usually inap - propriate to mitigate concerns arising from horizontal concentrations and are only exceptionally accept - able as a temporary measure in the time between the authority’s decision and the adoption of a more per - manent solution to the identified risks, usually struc - tural remedies. However, in practice, most cases have been approved subject to behavioural remedies. As of April 2026, out of 26 total cases, 15 have only included behavioural remedies while 11 were subject to both structural and behavioural remedies. This show that although the FNE preferred remedial solution are structural remedies, there is no one-size-fits-all rule but rather a case-by-case assessment of which remedies more effectively address relevant concerns. Remedies are exclusively aimed at addressing com - petition concerns arising from the transaction and Chilean merger control rules do not contemplate rem - edies to address non-competition or public interest considerations. 5.3 Legal Standard The FNE’s Guidelines on Remedies set out the standards that proposed remedies must satisfy to be accepted. In particular, remedies must be: • effective to prevent the substantial lessening of competition identified by the FNE; • feasible to implement, execute and monitor; and • proportionate to the competition concerns they seek to address. The FNE assesses remedies on a case-by-case basis, considering the specific nature of the concerns iden - tified and the ability of the proposed measures to restore or preserve competitive conditions. In par - ticular, the FNE focuses on whether they are easy to implement, and on the remedies’ enforceability. While both structural and behavioural remedies may be accepted, the FNE generally expresses a preference
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