CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
its website the resolution initiating an ex officio investigation regarding this concentration. In the resolution, the FNE pointed out that it was necessary to examine whether the transaction should have been notified prior to closing pur - suant to the mandatory merger control regime, as well as whether it could have significantly reduced competition in the market. In this con - nection, the FNE noted that there would be a horizontal overlap between the activities carried out by La Parva and Valle Nevado (also con - trolled by MCP) in the ski resort management industry. 2.3 Types of Transactions Pursuant to Article 47 of DL 211, only the follow - ing transactions amount to “concentrations’ and therefore fall within the scope of merger control, provided that they involve two or more previ - ously independent undertakings (not part of the same corporate group): • mergers; • acquisitions of decisive influence (control) over other undertakings; • full-function joint ventures; and • acquisitions of control over the assets of other entities. Based on the above concept, intra-group restructurings or reorganisations are not subject to merger control. 2.4 Definition of “Control” The FNE Guidelines on Jurisdiction define the concept of control or decisive influence as “the legal or de facto possibility of determining – or vetoing – the implementation of decisions regard - ing the competitive behaviour and strategy of an undertaking. Such control implies, among other things, the decisive influence or control over its
management’s composition, veto rights, strate - gic or business decisions or, in general, in its competitive performance.” Therefore, acquisitions of minority interests are caught by this concept provided that they allow the exercise of decisive influence (eg, if the minority interest involves veto rights over the target’s strategic decisions, such as the entry to a new market, the company’s business plans or budget, appointment of managers and key executives, authorisation to carry out certain investments). The FNE Guidelines on Juris - diction explicitly state that “it is possible for a minority shareholder, based on the existence of acts or agreements in regard of the controlled undertaking, or otherwise as per the faculties it holds under the bylaws, to have the possibility Chile’s jurisdictional thresholds are calculated in Unidades de Fomento (UF) (a unit of account used in Chile, adjustable according to inflation) and apply to all economic sectors, without dis - tinctions. Thresholds currently in force are as follows: • individual threshold: UF450,000 (USD18,321,192); and • combined threshold: UF2,500,000 (USD101,784,401). The currency conversion is based on the value of the UF as of 31 December of the previous year (2024) and the average exchange rate of the same year (as per the official data published by the Central Bank of Chile). of exercising a decisive influence.” 2.5 Jurisdictional Thresholds
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