CHILE Law and Practice Contributed by: Francisca Levin, Benjamín Torres, María Paz Dulanto and Antonia Silva, Cuatrecasas
for remedies that directly and effectively address the source of the competitive concern and can be moni - tored and enforced with relative certainty. 5.4 Negotiating Remedies With Authorities Parties may offer remedies in writing at any time dur - ing the merger review process, in either Phase I or Phase II. Tentative proposals for remedies can also be submitted prior to or together with the notification, but they are not considered a proper remedies proposal and therefore they do not suspend the investigation timeline. The FNE may discuss potential alternatives with the parties and provide feedback on whether the pro - posed remedies can address the identified concerns. However, the FNE cannot impose remedies, as any remedy must be voluntarily offered by the notifying parties. The FNE’s role is limited to assessing whether such mitigation measures are effective to address the identified competition concerns. Procedurally, the submission of remedies suspends the review period, as explained in 3.7 Review Pro- cess . In practice, the FNE usually communicates its preliminary assessment and feedback before the expiration of the applicable suspension period, allow - ing the parties to revise or supplement their remedy proposal. As part of its assessment, the FNE usually conduct a market test by consulting interested third parties to evaluate whether the proposed remedies adequately address the competition concerns identified and to assess their likely effects on the market. If the FNE concludes that the proposed remedies ade - quately address its concerns, it may clear the transac - tion subject to those conditions. If the remedies are considered insufficient and no satisfactory alternative is offered, the FNE may ultimately prohibit the transac - tion at the conclusion of a Phase II investigation. 5.5 Conditions and Timing for Divestitures There is no single approach regarding the timing of remedies. The implementation schedule depends on the nature of the commitment and the terms accepted
by the FNE in connection with its clearance decision. A transaction can be suspended as long as the FNE and the merging parties are holding remedy discus - sions through the successive submissions of new remedy proposals. For structural remedies, particularly divestitures, the FNE’s Guidelines on Remedies contemplate three possible implementation scenarios: • the “fix it first” solution, where the purchaser is identified and contractually committed before clearance and closing; • the “upfront buyer” solution, where the purchaser is approved by the FNE after clearance but before closing; and • the “post-closing divestiture” solution, where the transaction may close before a suitable purchaser is identified and approved. The FNE generally prefers the first two alternatives and will only accept post-closing divestitures where there is no apparent risk that implementation difficul - ties could compromise the viability of the remedy. Where the purchaser has not been identified during the merger review, the parties must propose a suit - able purchaser for the FNE’s approval after clearance. The FNE must respond within 15 days (or 30 days if pre-approval of up to two alternative purchasers is requested). Accordingly, and depending on the specific remedies, parties may close a transaction before those reme - dies are fully implemented. This is most common for behavioural remedies which are implemented after closing as they apply to the merged entity. Penalties for Not Complying With the Remedies Failure to comply with commitments accepted by the FNE as a condition for a clearance decision may constitute a merger control procedural infringement. The same procedure and penalties for failing to notify apply, as described in 2.2 Failure to Notify . 5.6 Issuance of Decisions The FNE always issues a formal written decision in all merger review proceedings, whether clearing the
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