CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
takeover of a bank by a person or group that already controls another; and (e) substantial increase in the participation of one of the banks controlled by the same person or group; this is understood as when the controller acquires the majority or two thirds of the shares, as applicable. The bank’s systemic importance will be deter - mined by the CMF, with the prior favourable agreement of the Council of the Central Bank of Chile, for which it will take into consideration the bank’s size, market share, interconnectivity with other financial institutions, the degree of substi - tution in the provision of financial services, or any other objective criterion considered relevant for such purpose. • In addition, pursuant to Article 36 of the General Banking Law, no person may acquire, directly or through third parties, shares of a bank that, alone or added to those they already own, represent more than 10% of the bank’s capital, without having previously obtained authorisation from the CMF. • Furthermore, as per Article 49 (5) of the General Banking Law, in order for a bank to acquire shares of another bank with the aim of carrying out a merger between both institu - tions, it must meet a series of requirements, including obtaining prior authorisation from the CMF, which can only be granted when it is demonstrated that the acquiring com - pany has secured control of two thirds of the issued shares with voting rights of the com - pany whose shares it intends to acquire. Other examples are found in the pension and insurance industries: according to the relevant regulations, the acquisition of shares that repre - sent 10% or more of the ownership of a Pension Fund Administrator (AFP) must be authorised by
the Pension Superintendency, while the transfer of a significant ownership interest (10% or more) in an insurance or reinsurance company must be authorised by the CMF. Thus, depending on the type of regulated entity in question, there will be various prior approval requirements for ownership changes. Media According to Law No 19,733 on Freedom of Opinion and Information, any significant modi - fication in the ownership of media companies must be reported to the FNE within 30 days of completion. Nevertheless, in the case of media companies subject to state-granted concessions, the rel - evant event or act by which the change in the ownership of the company becomes effective must obtain a favourable report from the FNE concerning its impact on competition, prior to closing. The FNE must issue this report within 30 days after receiving all the relevant background. If the report is unfavourable, the FNE must submit the relevant event or act to a public consultation process before the Chilean Competition Court (TDLC), so that the latter can decide whether it has the ability to infringe competition laws and, if applicable, impose the conditions necessary to ensure that the change in the ownership of the company does not restrict competition. 1.3 Enforcement Authorities The FNE is the authority in charge of review - ing merger notifications and then conducting the corresponding merger control investigation, both in Phase 1 and in Phase 2 (where applica - ble). Once the merger investigation is concluded, the FNE decides whether to clear or block the concentration.
54
CHAMBERS.COM
Powered by FlippingBook