CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
Introduction: General Statistics on Merger Control in Chile The merger control regime in force in Chile, established by Law 20,945, of 30 August 2016, came into force just about eight years ago, spe - cifically, as of 1 June 2017. Since then, and until 31 March 2025 (the most recent date for which statistics published by the authority are avail - able), a total of 309 concentrations have been notified to the Chilean Competition Agency ( Fis- calía Nacional Económic a, FNE). Only four of these concentrations have been blocked by the FNE. However, two of these pro - hibition decisions were subsequently reversed by court rulings: one by the Chilean Competition Court ( Tribunal de Defensa de la Libre Compe- tencia , TDLC), and the other, by the Supreme Court. Among the transactions approved by the FNE, only 25 have been subject to remedies, which implies that, in the vast majority of cases, the FNE has approved the notified concentrations without conditions. In line with the above, the investigations extended to Phase II (an in-depth analysis of the merger’s effects on competition, which requires more time) have reached 24, with all the others being approved in Phase I (which implies a shorter and more expedited review). It should also be noted that, in March 2019, the FNE raised the thresholds for mandatory notifi - cation. These new thresholds entered into force in August of the same year. This decision sub - stantially reduced the number of concentrations under the authority’s scrutiny. Since then, only one case (FNE v Navimag) is known in which this authority has challenged a below-threshold merger – ie, a concentration that was not sub - ject to mandatory merger control, but was still
investigated by the FNE post-closing, because it raised competition concerns. The above allows us to conclude that, so far, the Chilean competition authorities have not had an interventionist approach to merger control. The question remains, however, whether this trend could change in the near future, in the light of the phenomenon observed in other reference juris - dictions, such as the United States, the Euro - pean Union, and the United Kingdom, where regulators are showing a growing inclination to scrutinise and challenge concentrations. This article provides an overview of different aspects of the merger control regime in Chile that are of particular importance, so that compa - nies planning to take part in concentrations with effects in Chile take them into account. The Anomaly of the Appeal to the Supreme Court As mentioned, one of the few prohibition deci - sions issued by the FNE so far was finally reversed by the Supreme Court of Chile. This is quite anomalous, as Decree Law No 211 (DL 211) – Chile’s competition act – does not provide for any appeal to the highest court to reverse decisions related to the merger control regime. On the contrary, pursuant to DL 211, in the event of a prohibition decision by the FNE, the parties may only file a special appeal for review before the TDLC. The case in question was the merger between two private social security health institutions, Nueva Masvida and Colmena. The FNE had pro - hibited the merger, for which the parties filed a special appeal for review before the TDLC. The latter agreed with the FNE’s analysis, conclud - ing that the transaction would involve unilateral and co-ordinated risks, which would not be suf -
74
CHAMBERS.COM
Powered by FlippingBook