CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
fication, because the individual threshold will not be met. 2.9 Market Share Jurisdictional Threshold Chilean legislation does not establish a market share threshold. Although market share will be considered in the assessment of the concentra - tion levels to determine potential effects on com - petition, only the thresholds related to the par - ties’ sales are considered to determine whether a concentration must be notified to the FNE. 2.10 Joint Ventures Only full-function joint ventures are considered as concentrations. Therefore, only this type of joint venture is subject to merger control, as long as it meets the jurisdictional thresholds. Specifically, Article 47 (c) of DL 211 provides that a concentration shall exist when two or more undertakings (the “parents”) associate with each other through any fact, act or agreement that creates an independent undertaking, separate from its parents, on a lasting basis. This new entity or association is usually referred to as a ”joint venture”. According to the FNE Guidelines on Jurisdic - tion, to consider a joint venture as a concen - tration, the FNE will assess (i) the creation of a new economic entity, and (ii) the full-functionality criterion. As for the first condition, the FNE explains that “the creation and entry into the market of a new undertaking, different from its parent companies is needed. The created undertaking, though, can be totally new or also arise from previously owned activities or assets, contributed by the parent companies with such purposes.” Impor -
tantly, ”the parent companies may or may not control the joint venture.” The full-functionality criterion requires the crea - tion of “an independent undertaking, which car - ries out all its functions on a lasting basis. That is to say, the joint venture must be completely autonomous from a functional and operational viewpoint and have the possibility of performing full functions in the market.” The rules for determining whether a joint venture meets the jurisdictional thresholds are described in 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds . 2.11 Power of Authorities to Investigate a Transaction Below-Threshold Concentrations In the case of concentrations that do not meet the jurisdictional thresholds, the FNE still has the power to open an investigation to assess the transaction within one year of closing, to determine whether it may substantially reduce competition. If the FNE concludes that it does, it can challenge the transaction by filing a law - suit with the TDLC, requesting the imposition of mitigation measures or even the reversal of the transaction. Note that the investigation must be formally ini - tiated within one year of closing; however, the FNE can then challenge the transaction in court at any time as long as the statute of limitations has not expired, which, pursuant to DL 211, is three years from the execution of the corre - sponding anticompetitive conduct (which, in this case, should be understood as the implementa - tion of the transaction).
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