CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
In the event that the FNE blocks the concentra - tion, the parties have the right to file a special review appeal before the TDLC within ten days from the notification of the FNE’s prohibition decision. In addition, although this is not provided for in DL 211, it is possible to file a “complaint appeal” ( recurso de queja ) against the TDLC’s final ruling before the Supreme Court. The complaint appeal is a very special remedy that is exercised directly before the highest court, whose sole purpose is to correct serious faults or abuses commit - ted by judges in the issuance of judicial deci - sions and to enforce their disciplinary liability. By accepting this appeal, the Supreme Court may amend the TDLC’s ruling. There has only been one case so far in which this type of appeal has been used in a merger control review ( Colmena/ Nueva MasVida ). The FNE is also the authority in charge of ensur - ing compliance with the merger control regime, initiating investigations for gun jumping and, when applicable, suing legal entities that engage in this type of conduct before the TDLC. Accord - ing to the general rules of DL 211, the TDLC’s condemnatory or acquittal ruling can be chal - lenged before the Supreme Court, by means of an appeal.
olds. Note that there are no exceptions if the relevant thresholds are met. If the parties’ sales are below the thresholds, they are not obligated to file a merger notification. However, they are allowed to voluntarily notify the concentration to the FNE, in which case they will be subject to the same procedural rules as mandatory notifications. Voluntary notifications may be advisable when, for example, the par - ties’ sales are very close to the thresholds, and when the parties have high combined shares in the relevant market involved in the transaction. 2.2 Failure to Notify If the parties fail to notify a concentration that falls under the scope of mandatory merger con - trol, they can be subject to a fine of up to 20 Annual Tax Units (UTA) (today, approximately USD17,430) for each day of delay counted from the completion of the transaction (without a maximum). In addition, the TDLC may also impose other types of corrective, preventive, or prohibitive measures, including modifying or even terminating the acts, contracts, or agree - ments that violate the provisions of the law. This means that, if the concentration creates anti - competitive effects, the court can impose rem - edies or, if these are insufficient, even order the reversal of the transaction. To date, no fines have yet been imposed for failure to notify in Chile. Nevertheless, the FNE has investigated this type of behaviour on sev - eral occasions. The most recent public case, for which the FNE still has a pending investigation to this date, is the concentration between Mountain Capital Partners, LLC (MCP) and Larrain Vial, by which the former acquired control of the com - pany Ski La Parva S.A., owner of the ski resort La Parva. On 19 July 2024, the FNE published on
2. Jurisdiction 2.1 Notification
In Chile, the pre-closing notification of a transac - tion with effects in Chile to the FNE is only com - pulsory when (i) it amounts to a “concentration” ( operación de concentración ), as per Article 47 of DL 211, and (ii) the sales of the undertakings involved meet the relevant jurisdictional thresh -
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