CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
either (i) grant conditional or unconditional clear - ance or (ii) extend the investigation to Phase II, for up to 90 additional working days. Phase II: Within the Phase II deadline, the FNE must either (i) grant conditional or unconditional clearance or (ii) prohibit (block) the transaction. In case of prohibition, the parties can file a spe - cial review appeal before the TDLC. If the parties offer mitigation measures, the above legal deadlines can be suspended for up to ten working days in Phase I, and up to 15 working days in Phase II. These deadlines can also be suspended by mutual agreement between the FNE and the parties, for up to 30 working days in Phase I and up to 60 working days in Phase II (only once per phase). Overall Timeline Regarding the overall timeline, a distinction must be made between approval in Phase I of the investigation or extension to Phase I. If approved in Phase I, the total timeframe should range between two to four months, while if the investigation extends to Phase II, it will usually take between seven to eight months. However, this will all depend on the number of incomplete - ness decisions, whether a suspension is agreed with the FNE, and whether (and how many times) the parties offer remedies. 3.9 Pre-Notification Discussions With Authorities There is an informal and collaborative pre-noti - fication procedure whereby the parties can ask questions to the FNE and clarify any doubts. The parties can bring up any procedural or substantive questions that they may have (for
example, whether the transaction qualifies as a concentration operation, whether the ordinary or the simplified notification form applies, whether the parties may be exempted from providing cer - tain information required by the regulation, etc). The FNE encourages pre-notification discus - sions to prevent any mistakes and thus to expe - dite the process. The pre-notification stage is entirely confidential. 3.10 Requests for Information During the Review Process The FNE typically requests additional information from the parties, as well as third parties (such as competitors and clients), during the course of its investigation. These requests for information do not stop the clock or suspend the review, which is why the deadlines to provide responses are usually very tight. The FNE’s requests for information can be from very simple to quite burdensome, which will depend on the complexity of the concentration, the markets involved and the amount of public information available. 3.11 Accelerated Procedure As stated above, the sole difference between the ordinary and simplified notifications is the amount and type of information that must be included in the notification. Therefore, all notifi - cations are subject to the same legal deadlines, regardless of the type of form used. In other words, formally speaking, there is no “fast-track” procedure. However, the FNE’s review of a simplified notifi - cation with no overlaps will usually take, in prac - tice, a substantially shorter time than an ordinary notification with several complex overlaps.
63
CHAMBERS.COM
Powered by FlippingBook