CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
4. Substance of the Review 4.1 Substantive Test
a market share of 30% or more, and another party, while not being active in the same market, owns intellectual or industrial property rights important to that market; or (c) a situation in which any of the parties is active in a product market that is closely related to one in which another party is active, and their individual or combined market shares are equal to or greater than 30% in any of them. 4.3 Reliance on Case Law The FNE relies on its own merger precedents and on case law from the TDLC. Furthermore, the FNE often relies on case law from the Euro - pean Commission and the Federal Trade Com - mission. It also relies, in some cases, on prec - edents from other competition authorities in the region, such as CADE or COFECE. 4.4 Competition Concerns According to the FNE’s Guidelines on the Analy - sis of Horizontal Concentrations (“Guidelines on Horizontal Mergers”), in a merger control review, the FNE will investigate a wide range of com - petition concerns, including unilateral effects, coordinated effects, conglomerate effects, vertical concerns, and elimination of potential competition. The FNE will also consider how the transaction may affect dynamic competition and whether it may reduce the parties’ incentives to innovate. There is also a special chapter in the guidelines regarding digital platforms and markets, where the FNE outlines their distinctive features and elements that make their assessment different from traditional market analysis. In this section, the FNE mentions additional competition con - cerns, including risks of undermining non-price variables, such as platforms’ terms of use (eg,
The legal substantive test to clear a transaction is that it is not able to substantially reduce com - petition, whether without conditions or subject to the remedies offered by the parties. 4.2 Markets Affected by a Transaction The parties are only required to notify under the ordinary notification mechanism when the trans - action involves an affected relevant market. This is because the existence of affected markets demands a more in-depth analysis of the pos - sible effects on competition, which requires the FNE to have more information from the outset. A market is considered “affected” by the trans - action in the following cases. • The transaction gives rise to a horizontal overlap, in which the combined market share is equal to or greater than 20%. Neverthe - less, as an exception to the above, the parties are allowed to file a simplified form instead of an ordinary form when their combined market share is below 50% and the HHI delta is below 150. This is because such a small increase in market concentration is usually incapable of raising competition concerns. • The transaction gives rise to a vertical rela - tion, in which the individual or combined share in the upstream or downstream market is equal to or greater than 30%, regardless of whether there is an actual or past customer- supplier relationship between the parties. • The transaction involves: (a) a market in which one of the parties has a market share of 30% or more, and another party is a potential competitor in the same market; (b) a market in which one of the parties has
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