CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
5.5 Conditions and Timing for Divestitures
complete the divestment within a period of nine months from the closing. Compliance with the remedies shall be moni - tored by the FNE, which can take place through the appointment of a designated compliance officer, who will be responsible for informing the FNE. The FNE usually initiates compliance inves - tigations shortly after ending the corresponding merger control investigations. Lastly, if the parties do not comply with the remedies, the FNE may file a lawsuit before the TDLC, and the parties will be subject to the gen - eral fine regime provided by Article 26 (c) of DL 211 (see 2.13 Penalties for the Implementation of a Transaction Before Clearance ). 5.6 Issuance of Decisions In a merger control review, the FNE issues its approval or prohibition decision through a formal resolution, together with a report indicating the reasons for clearing or blocking the transaction. Both the final resolution and the supporting report are first notified to the parties and shortly thereafter made public on the FNE’s website. However, prior to this publication, the parties are granted the opportunity to make confidentiality comments to these documents, requesting that certain passages be redacted, to the extent that their disclosure to third parties may affect their competitive performance. The law provides that, if the FNE does not issue any resolution within the legal period, the trans - action will be deemed approved. However, the FNE’s usual practice is to always issue a ground - ed resolution, even in the simplest cases.
In general, the FNE will prefer structural rem - edies rather than behavioural remedies, since there is no need to monitor such measures. In this connection, the FNE will seek to ensure that the remedies are effective, practical, executable and proportional. The parties may close the transaction before complying with the remedies depending entirely on the terms agreed with the FNE – especially considering that some remedies might require the transaction to be completed beforehand. Specifically in the case of divestitures, the Guidelines on Remedies provide for different possible scenarios. • Scenario I (preliminary solution): The parties identify the buyer in the remedy proposal and enter into a binding commitment with such buyer during the investigation and before implementing the notified transaction. In this case, the identity of the buyer will be included in the clearance resolution. • Scenario II (initial buyer solution): The parties identify the buyer and enter into a binding commitment with such buyer after the issu - ance of the clearance resolution and before the notified transaction is completed. In this case, after the approval of the buyer by the FNE, the parties may close the notified con - centration. • Scenario III (post-closing solution): In this case, the clearance resolution will be issued beforehand, leaving the identification of the appropriate buyer and the approval of the buyer by the FNE for after the closing. How - ever, in this scenario, the FNE will require that the parties obtain approval of the buyer and
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