CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
2.6 Calculations of Jurisdictional Thresholds
If there are more than two parties to the merger, it is sufficient for only two to meet the thresholds. The same rule described above applies to joint ventures, with respect to the parents and their corresponding business groups. If the concentration is an acquisition of decisive influence or control over another undertaking, the individual threshold must be met, (i) on the one hand, by the sales of the acquiring entity and its entire business group, and (ii) on the other hand, by the sales of the target and all the entities controlled by it. The combined threshold must be met by the sum of the sales of all the above. Finally, if the transaction refers to the acquisition of assets, the individual threshold must be met, (i) on the one hand, by the sales of the acquiring entity and its entire business group, and (ii) on the other hand, by the sales generated by the target assets. The combined threshold must be met by the sum of the sales of all the above. 2.8 Foreign-to-Foreign Transactions According to the FNE Guidelines on Jurisdic - tion, transactions are only subject to merger control when it is likely that the concentration will affect the market and competition in Chile, which requires a geographical link to Chile. The geographical link is established by the notification thresholds, which consider sales in Chile for their determination. Thus, all concentra - tions producing effects in Chile and meeting or exceeding the sales thresholds in Chile must be notified to the FNE. According to the rules described above, if the target asset or undertaking has no sales in Chile, the transaction will not trigger a mandatory noti -
The thresholds are set in UF, and must be met by the amount of sales in Chile of the undertakings that intend to concentrate. Sales relevant to the calculation of thresholds are those made in the calendar year prior to the notification. These sales must exclude taxes directly related to sales volume, such as VAT, tariffs, customs charges, specific taxes, etc. Sales recorded in a foreign currency must be converted into Chilean pesos, in accordance with the average annual exchange rate pub - lished by the Central Bank of Chile. Subsequent - ly, sales are converted from Chilean pesos to UF, based on its value as of 31 December of the year preceding the notification. As mentioned in 2.5 Jurisdictional Thresholds , there are two types of thresholds, both of which must be met to trigger a mandatory filing: • The combined threshold must be met by the sum of the sales of the undertakings that intend to concentrate. • The individual threshold must be met, sepa - rately, by the sales of at least two of the undertakings that intend to concentrate. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds If the concentration is a merger, the combined thresholds calculation shall consider the sum of the sales of the merging parties, as well as those of their respective business groups. The individ - ual threshold, in turn, must be met separately by each of the two merging parties, including in each case their corresponding business group.
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