Merger Control 2025

CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana

7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third-Party Rights to Make Representations Third parties can be requested to answer official requests for information from the FNE during the merger review. When answering the requests for information, they provide comments and make representations if the FNE asks them whether, in their opinion, the transaction raises any antitrust concerns. Furthermore, when the file becomes public in Phase II, any third party with an interest in the investigation can voluntarily provide information and make submissions expressing their con - cerns. Document Access In Phase I investigations, third parties can request access to the investigation file, but the parties can oppose this request, in which case the FNE will deny the access. In Phase II, the file becomes public, and therefore third parties can access the entire file, including the public versions of all the confidential docu - ments (where all competitively sensitive informa - tion has been redacted). 7.2 Contacting Third Parties The FNE typically contacts third parties to gain a better understanding of the industry and the competitive implications of the merger. Accord - ingly, the parties are asked to identify in the noti - fication their main competitors and clients, pro - viding their contact details. The FNE may then reach out to these contacts or other relevant third parties through RFIs. It can also require these third parties to give a statement, in the

5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions As stated above, foreign-to-foreign transactions will only be subject to merger control if there is a geographical link, determined by the jurisdic - tional thresholds. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Clearance decisions will address all aspects of the transaction, including ancillary restraints, such as non-compete or exclusivity clauses, among others. In its analysis, the FNE will review if these arrangements have the potential to affect competition and, subsequently, include in the clearance decision their conclusions regarding that aspect. The FNE may even request rem - edies only in connection with ancillary restraints (for example, the Minerva/Marfrig case). If the FNE considers that one or more clauses in the transaction agreements do not qualify as ancillary restraints because they are not directly related to the concentration and/or are not nec - essary for its implementation (ie, clauses agreed in the context of the concentration, but which are not part of its main purpose nor are they accessory to it), then those clauses shall not be considered approved by the FNE’s clear - ance decision, and will be subject to the gen - eral framework of DL 211. This means that the FNE will be authorised to investigate the effects of such clauses in a separate investigation and on a post-closing basis, according to general antitrust rules (see, for example, the Codelco/ SQM case).

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