CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
ficiently mitigated by the remedies proposed by the parties. Thus, the TDLC rejected the appeal, and the concentration was therefore blocked (with one of the court’s judges voting against). However, one of the parties challenged the TDLC’s ruling through a complaint appeal ( recur- so de queja ) filed before the Supreme Court. A complaint appeal is a very special appeal that must be filed directly with the hierarchical higher court, the purpose of which is to correct seri - ous faults or abuses committed by judges in the issuance of judicial decisions and to enforce their disciplinary liability. On 27 March 2023, the Supreme Court revoked, in a unanimous ruling, the TDLC’s blocking deci - sion, and instead approved the concentration, accepting the remedies proposed by the parties and imposing additional ones. This Supreme Court ruling is certainly a very important precedent for the merger control regime in Chile, since it seems to imply that, through the hearing of complaint appeals, said court will be able to review any merger blocking decision as a sort of “third instance” — which is not provided for in DL 211. The Few (Yet Noteworthy) Gun-Jumping Cases Just like most jurisdictions, Chile has an ex ante merger control regime, providing for mandatory pre-closing notification of concentrations above certain thresholds. The regime prohibits imple - menting the notified concentration until the FNE has approved it, which is known as a “standstill obligation”. Gun-jumping is an infringement of the merger control regime and usually refers to two types of conduct: implementing a concentration in viola -
tion of the duty of notification (known as “failure to notify”) or prior to obtaining the authority’s clearance (violation of the standstill obligation). In Chile, both behaviours are outlined, respec - tively, in Article 3 bis(a) and (b) of DL 211. Pursuant to Article 26 (e) of DL 211, failure to notify is subject to a fine of up to 20 “annual tax units” ( Unidades Tributarias Anuales , UTAs) (today, approximately USD17,430) for each day of delay counted from the completion of the transaction (without a maximum). In turn, viola - tions of the standstill obligation are subject to the general fine regime for antitrust violations established by Article 26 (c) of DL 211, which involves fines of up to (i) 30% of the sales of the offender corresponding to the line of prod - ucts or services associated with the infringement for the period for which it was extended or (ii) up to twice the economic benefit obtained by the offender due to the infringement. If it is not possible to determine the sales and econom - ic benefit obtained by the offender, the TDLC may impose a fine of up to 60,000 UTAs (today, approximately USD52.3 million). In addition, the TDLC may also impose other types of corrective, preventive, or prohibitive measures, including modifying or even termi - nating the acts, contracts, or agreements that violate the provisions of the law. This means that, if the concentration creates anti-compet - itive effects, the court can impose remedies or, if these are insufficient, even order the reversal of the transaction. Since the mandatory merger control regime came into force in 2017, the FNE has conducted a few known gun-jumping investigations, exer - cising its authority to investigate transactions within one year of their completion, as per Article 48 paragraph 9 of DL 211. In most of these cas -
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