CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
Increased severity of penalties under the New Economic Crime Act To conclude this segment, it is relevant to high - light a legislative change of which companies must be aware in connection with the above- mentioned violation. Specifically, Act No 21,595 (the “Economic Crime Act”) was recently enacted in Chile, broadening the categories of conduct for which legal entities may be held criminally liable, including (among many others) concealing information requested by the FNE or providing false information in the context of any type of FNE investigation – therefore, including merger control investigations. Today, Article 39 (h) of DL 211 provides that the individuals responsible for providing false information or withholding information from the FNE during an investigation may be subject to a criminal penalty of imprisonment, for a period ranging from 61 days to three years. However, this provision has never been enforced. The rea - sons for this are not publicly known, but it is pos - sible to guess that this is explained by the high standard of proof in criminal matters (“beyond any reasonable doubt”) as well as by the fact that finding a clear culprit for such conduct is usually not an easy task. Nevertheless, the Eco - nomic Crime Act introduces the possibility that this provision will begin to be applied, not with respect to individuals, but to the legal entities investigated by the FNE. In this connection, it should be noted that, pursu - ant to the Economic Crime Act, criminal liability of the legal person is autonomous with respect to the liability of the individuals who committed the crime. For this reason, the law provides that the lack of identification of the individuals who perpetrated the crime (which may prove difficult
in the context of an FNE investigation) will not prevent the criminal liability of the legal person, provided it can be demonstrated that the con - duct could only have been perpetrated by or with the intervention of a person within the company. This law came into force in September 2024, authorising the FNE to report the alleged infringement to the Criminal Prosecutor’s Office. If a criminal conviction is obtained, the compe - tent criminal court can impose a fine from 11 to 100 “fine days” for this crime, with each ”fine day” being up to 5,000 “monthly tax units” ( Uni- dades Tributarias Mensuales , UTMs), although this depends on the company’s income. There - fore, the maximum criminal fine could amount to 500,000 UTMs (approximately USD35 million). In addition, the court may impose penalties of loss of tax benefits, disqualification from contracting with the state, confiscation, and the obligation to publish an extract of the conviction. Importantly, criminal prosecution does not pre - vent prosecution before the TDLC, which means that the offending company could be subject to two different fines for the same conduct if it with - holds or provides false information in the con - text of a merger control investigation: a fine for the crime of concealing information or delivering false information in an FNE investigation, and another for violating the provision of Article 3 bis(e) of DL 211, which penalises the notification of a concentration by providing false informa - tion. However, in such a case, the law provides that the administrative fine will be attributed to the criminal fine, or vice versa, which implies that if the company has already paid one of the two fines, it will only need to pay the remainder after the second conviction, if applicable.
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