CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
privacy policies); possible monetisation strate - gies for non-transactional platforms; as well as the raising of barriers to entry or expansion that may generate a weakening of competition as a result of the combination of certain information assets of the merging parties (eg, databases of their consumers and their preferences). 4.5 Economic Efficiencies The parties can describe and submit informa - tion evidencing consumer benefits or efficien - cies. The FNE will deem them sufficient provided that they are: • verifiable; • inherent to the transaction; • capable of compensating for the increased market power of the resulting entity; and • transferred to consumers. The FNE considers both productive and dynamic efficiencies. The Guidelines on Horizontal Merg - ers provide in this connection that, in markets where the loss of dynamic competition may imply a substantial reduction in competition, dynamic efficiencies will generally have greater importance, given that innovation and continu - ous improvement of products are fundamental elements in such markets. However, in markets in which the competitive risks associated with concentration are not mostly dynamic, these types of efficiencies generally only counterbal - ance the risks indirectly. Therefore, in these cases, dynamic efficiencies will be considered by the FNE within the overall analysis of the con - centration and both effects will be qualitatively weighted in light of their competitive risks. 4.6 Non-Competition Issues Chilean legislation, in line with the practices sug - gested by the OECD and the International Com -
petition Network, does not consider the analysis of non-competition issues. Furthermore, there are relevant precedents in this connection. Notably, in the State Grid/CGE case (2021), the FNE stated that the institution - al design of the merger control regime in Chile does not grant the FNE authority to rule on the basis of national or public interest considera - tions, such as geopolitical strategy, defence or national security, etc, concluding that the FNE can only determine whether a concentration is likely to substantially reduce competition. Simi - larly, in the recent Codelco/SQM case (2025), the FNE emphasised that the institutional design of the merger control regime in Chile does not grant it the power to rule based on considerations other than determining whether a transaction is capable of substantially lessening competition. Regarding foreign direct investment, Law No 20,848 establishes that foreign investors shall be treated in the same manner as local inves - tors. Notwithstanding the above, there are two restrictions regarding foreign investments, which are completely separate from merger control rules: • prohibition on acquiring the domain or any other right, possession or tenancy of real estate bordering a neighbouring country, which only affects the nationals (persons and corporations) of the respective country; and • ban on private investment in hydrocarbon exploitation; according to the Political Con - stitution of the Republic of Chile, the State of Chile owns all hydrocarbons, whether liquid or gaseous, existing on the national territory, having the exclusive right to extract or exploit such hydrocarbon deposits (this restriction affects both nationals and foreigners).
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