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Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
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  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
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  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
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  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
Chile

Ignacio Larraín
Partner

ignacio.larrain@ppulegal.com

Tel: +562 2364 3750

Álvaro Espinosa
Associate

alvaro.espinosa@ppulegal.com

Tel: +562 2429 3832

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced in Title IV of the Chilean Competition Act in 2016.

2) Which authorities enforce the merger control regulation?

The National Economic Prosecutor’s Office enforces the Chilean Competition Act including the merger regulation contained therein. However, the Chilean Competition Court acts as the tribunal for antitrust indictments by the National Economic Prosecutor’s Office and private claims by undertakings. Lastly, decisions by the Chilean Competition Court can be appealed before the Chilean Supreme Court.

Decisions of the National Economic Prosecutor’s Office forbidding mergers in Phase II can be appealed before the Chilean Competition Court. If the Chilean Competition Court approves the merger imposing different remedies than those last offered by the parties to the National Economic Prosecutor’s Office, a special appeal can be filed before the Chilean Supreme Court. 

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Title IV of the Chilean Competition Act. Detailed regulation is found in Regulation N° 33 of March 1st, 2017, enacted by the Economic Ministry and soft law regulation can also be found in various guidelines issued by the National Economic Prosecutor Office. Links to the relevant legislation, guidelines and forms are listed here:

Original Spanish version

Unofficial English translation

Decreto Ley N°211

The Chilean Competition Act (DL 211)

Reglamento Sobre la Notificación de una Operación de Concentración

Executive Order Merger Control Regulation (not available in English)

Resolución Exenta N° 157 que fija umbrales de ventas para la notificación de una operación de concentración

Thresholds 2019 Executive Decision (not available in English)

Guía de Competencia

Merger Control Jurisdiction Guideline

Guía de Umbrales

Thresholds Guideline (not available in English)

Guía de Remedios

Remedies Guideline

Formulario Ordinario de Notificación

Ordinary filing form (not available in English)

Formulario Simplificado de Notificación

Simplified filing form (not available in English)

Annexos del Formulario de Notificación

Filing form annexes (not available in English)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Generally, restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under general competition regulation.

General competition regulation may be used to oppose transactions as such (not merely a specific restriction in the transaction documents) provided that they are not considered mergers in accordance with merger regulation. 

For instance, the general prohibition on anti-competitive agreements may be applied to non-full-function joint ventures. 

Furthermore, theoretically, if the merger transaction does not meet the thresholds for merger filing, the National Economic Prosecutor’s Office could still investigate the transaction in accordance with general competition regulation.

5) May an authority order a split-up of a business irrespective of a merger?

Yes. The Chilean Competition Court has a wide range of measures (structural and behavioural) to put an end to acts that are considered anti-competitive or to prevent them from occurring, including the power to impose split-up or divestments of businesses.

The Chilean Competition Act does not require verification of the existence of a dominant position for the imposition of burdensome measures, such as the split-up of a business. A decision to split-up a business may be pursued within the context of either an indictment filed by the National Economic Prosecutor’s Office or of a private claim if it determines that there are anticompetitive effects that could only be resolved through the specific divestment. The Chilean Competition Court can even impose such split-up within the context of a public consultation if the consultation involves a market-wide review. 

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Chilean-regulated banks, insurance and financial institutions 

Authorisation must be obtained from the Financial Markets Commission (in addition to approval from the National Economic Prosecutor’s Office if the thresholds for merger control are met).

Chilean media companies (broadcasting and print)

There is a special review by the National Economic Prosecutor’s Office if certain requirements are met and the undertaking is a mass media operator with a public telecommunication concession (i.a., radio broadcasting and open television broadcasting concessions). If the thresholds for merger control are met, this special review is in addition to the merger control review.

Chilean water utilities

Transactions that change the control of a Government grant to perform water utility services are subject to the approval of the Superintendence of Sanitary Services (in addition to approval from the National Economic Prosecutor’s Office if the thresholds for merger control are met).

Chilean electricity distribution utilities

Transactions that change the control of a Government grant to perform electric distribution services are subject to the approval of the Ministry of Energy, having heard the Superintendencia of Energy, Gas and Oil and the National Energy Commission (in addition to approval from the National Economic Prosecutor’s Office if the thresholds for merger control are met).

Chilean telecommunications utilities

Transactions that change the control of a Government grant to perform telecommunication services are subject to the approval of the Telecom’s Undersecretariat. (in addition to approval from the National Economic Prosecutor’s Office if the thresholds for merger control are met).

7) Are any parts of the territory exempted or covered by particular regulation?

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided that thresholds are met.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Chilean Competition Act, a merger subject to merger control is defined as any event, agreement or contract, or a combination thereof, the effect of which is that two or more economic agents not forming part of the same corporate group and previously independent from each other, cease to be independent in any respect in any of the ways that follow:

  1. Merging, regardless of the type of corporate organization of the merging entities or the entity resulting from the merger.
  2. Acquiring, one or more of them, directly or indirectly, an interest that allows them, individually or jointly, to exert a material influence on the other’s administration;
  3. Entering into agreements, under any modality, to form an independent economic agent, different than them, that may carry out activities in a continuous way;
  4. Acquiring, one or more of them, control over the other’s assets under any title.

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business on a lasting basis.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger for the purposes of Chilean merger control regulation.

11) How is “control” defined?

The Chilean Competition Act does not define what “control” is. Notwithstanding, the National Prosecutor’s Office’s Jurisdiction Guideline states that control is understood as the possibility of exercising “decisive influence”, whether direct or indirect, sole or joint, positive or negative, de jure or de facto. For competition analysis, there usually is no predetermined concept that is used, instead, it will be a case-by-case analysis of all borderline cases.

To this effect, de jure control arises when a party has the ability to exercise decisive influence conferred by a legal right, whilst, de facto control exists when the acquisition of certain rights grants control over the strategy and competitive behaviour of an undertaking. In order to determine the foregoing, the National Economic Prosecutor’s Office may assess the behaviour over time, including patterns of attendance at shareholders’ meetings during previous years. 

Other factors may also be reviewed, such as, inter alia, dispersion of the ownership in the controlled undertaking, the existence of other relevant shareholders who have structural, economic, or affinity links with another relevant minority shareholder; or any other situation that allows the exercise of decisive influence over an undertaking.

Positive control arises when a party can impose its will upon the controlled entity. Positive control most often arises in the case of a sole or majority shareholding. Negative control arises when a party is able to block or veto certain important decisions. The National Economic Prosecutor’s Office defines negative control as the ability to block strategy and economic behaviour. Examples include the ability to veto budgets, business plans, or the appointment of senior management, the authorisation of significant investments. It is also possible for more than one party to jointly hold negative control if they have a voting agreement.

Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. 

Notwithstanding the above, for threshold estimation, when assessing the sales of the corporate group, a specific and somewhat more limited definition of control or decisive influence is used by reference of Chilean Securities Regulation.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers someone with de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential for the strategic behavior of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer the buyer with a decisive influence on general meetings.

Notwithstanding the above, Chilean Competition Act establishes a mandatory ex post filing for minority shareholdings. The acquisition by a company or by an entity that belongs to its business group, of a direct or indirect shareholding that exceeds 10% of the equity, in a competing firm, taking into account both its own shareholdings as well as those managed on behalf of third parties, must be notified to the National Economic Prosecutor’s Office – at the latest – within the sixty days following the consummation of such acquisition. The National Economic Prosecutor may open an investigation in respect of such acts, with the purpose of ascertaining infringements.

The notification obligation shall only apply when the acquiring company, or its business group, as the case may be, and the company in which a stake is being acquired, each – separately considered – have annual incomes derived from sales, services and other activities of its ordinary business exceeding 100,000 unidades de fomento (approximately, CLP 2.830 billion) during the last calendar year.

In the event that the notification obligation set forth under this article is breached, the general measures established by Chilean Competition Law, i.e., a broad spectrum of preventive, corrective or prohibitive measures that are deemed necessary, may (theoretically) be applied.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function" and the corresponding thresholds are met:

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. 

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements and could be voluntarily filed directly before the Chilean Competition Court. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

A merger notification must be filed if:

  1. The sales in Chile of the economic agents that intend to merge reached or exceeded 2,500,000 Unidades de Fomento (approx. CLP 70.774 billion) in the fiscal year prior to that in which the notification is made, ; and
  2. The sales in Chile, separately, of at least two of the economic agents that intend to merge reached or exceeded 450,000 Unidades de Fomento (approx. CLP 12.739 billion) in the fiscal year prior to that in which the notification is made. 

As mentioned in topic 12, there is a separate ex post filing obligation for minority shareholdings exceeding 10% in a competing undertaking. This ex post filing obligation only applies when the acquiring company, or its business group, as the case may be, and the company in which a stake is being acquired, each – separately considered – have annual incomes derived from sales, services and other activities of its line of business exceeding 100,000  unidades de fomento (approximately, CLP 2.830 billion) during the last calendar year.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation and geographical allocation of turnover are contained in the Threshold Estimation Guideline

Turnover that is considered for threshold estimation generally refers to contracts or agreements where the customer is Chilean or where the effects of the contract take place on Chilean soil.

Turnover is calculated on the basis of the accounts of the financial year immediately prior to the filing of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. 

"Turnover" is the net turnover derived from sale of products and services within the undertaking’s ordinary activities after deduction of (i) value added tax and other taxes directly related to the sales volumes; (ii) any turnover between associated undertakings; and (iii) any amounts discounted of prices due to offers, promotions or discounts.

17) Special rules on calculation of turnover for particular businesses

Financial Undertakings:

For Financial Undertakings, turnover includes:

  1. Interest income and similar income of any kind;
  2. Income from shares or similar kinds or rights over companies;
  3. Fees and commissions receivable;
  4. Net profit on financial operations; and
  5. Other resulting from exploitation, from own activities or accesory to their company objective.

In accordance with the Threshold Estimation Guideline, Financial Undertakings are considered to be those that are authorized by law to grant credit; companies that perform as payment intermediaries; reciprocal guarantee companies, companies authorized to perform custody and value deposits, companies dedicated to execute transaction for themselves or for third parties with respect to national or international exchange operations.

Pension fund administrators:

For Pension fund administrators, sales will be considered as the regular income from fees and commissions plus the profits from reserves. If a pension fund administrator can be said to exert decisive influence over other undertakings from its portfolio companies, the income from those controlled undertakings must also be accounted for.

Private fund administrators:

For private fund administrators, sales will be considered as the regular income from fees and commissions and the turnover from the companies that the administrator can be said to control within its portfolio companies.

Insurance undertakings:

For an insurance undertakings the value of the gross premiums written applies. This includes all premiums, for insurance and re-insurance, received by the undertaking the relevant year, whether they come from contracts executed during the period or from contracts of past periods that are accrued and enforceable during the respective period.

18) Series of transactions that must be treated as one transaction

Transactions that are interdependent because they are reciprocally linked by conditions must be treated as one if control in each transaction is acquired ultimately by the same undertaking(s).

Furthermore, if the same parties enter into different transactions that are not interdependent regarding the sale of different businesses or different parts of a business, all such transactions within a two-year period must be treated as one and the same merger.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis and/or it produces a lasting change in the current market structure.

20) Special industries, owners or types of transactions

The National Economic Prosecutor’s Office’s Threshold Estimation Guideline specifies that there is no obligation to file a merger notification in the following situations:

Where credit institutions, other financial undertakings or insurance companies whose normal activities include transactions and dealing in securities, i.e., acting as a securities broker in accordance with Article 24 of Law No. 18,045 on the Securities Market, are temporarily in possession of interests in an undertaking acquired with the intention to resell, provided that they 

  1. do not directly or indirectly influence the ordinary business of the issuer; 
  2. do not exercise voting rights for the purpose of determining the competitive conduct of that undertaking and
  3. transfer the shares within one year.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but there is a simplified procedure available if there is no overlap (see topic 33).

23) Other exemptions from notification duty even if thresholds ARE met?

Chilean banking regulation (article 115 of the Banking Law) specifies that if a bank is failing and in order to resolve its condition a merger transaction or equivalent by another bank or banks is considered, then, said transaction will be exempted from merger control.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. The Chilean Competition Act explicitly establishes that possibility.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No Chilean Competition Authority can request a merger notification. 

However, the National Economic Prosecutor’s Office could initiate an investigation of a transaction that did not meet the thresholds and if it finds that anticompetitive effects arise from it, in theory, it could then file an indictment before the Chilean Competition Court.

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

Filing requirements and fees

30) Stage of transaction when notification must be filed

A merger notification must be filed when a binding agreement has been concluded or where parties have a real, serious and bona fide intention of closing a merger transaction. 

The National Economic Prosecutor’s Office considers that there is a real, serious and bona fide intention to close a merger transaction if, for example, the parties can demonstrate a good faith intention to conclude an agreement or – in case of a public takeover bid – if the parties have publicly announced an intention to make such a bid.

There is no specific deadline, but, if the thresholds are met, the transaction may not be implemented before the merger has been approved by the National Economic Prosecutor’s Office.

31) Pre-notification consultations

The National Economic Prosecutor’s Office encourages pre-notification consultations. There have been occasions where the parties submit a number of draft notifications before the authority informs the parties that the notification appears to be ready to be formally submitted. 

The deadlines for the National Economic Prosecutor’s Office will only start to run from the formal submission. Notwithstanding, parties could formally file the transaction regardless of the status of the pre-notification consultation and subject themselves to the decisions made by the corresponding case team.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no such special rules. All merger transactions must be filed following the same timing rules for notification. National public takeovers bids are rare so there is little case law and no real practicalities. Notwithstanding, in order to avoid competition liability for early implementation, it is generally recommended that parties file the transactions by the time public announcements are made and before any actual decisive influence changes occur. Note that even for public takeover bids, buyer and seller will be considered as notifying parties and would have to jointly file the transaction.   

33) Forms available for completing a notification

There are two forms available: one for simplified notification and an ordinary one for full notification.

Simplified notification is possible in each of the following cases:

  1. Mergers with neither horizontal nor vertical overlap; 
  2. Mergers with low overlap: below 20% joint market share in horizontal market and below 30% joint or individual market share in a vertically related market;
  3. For mergers, acquisitions of control over an entity, or acquisition of control over a relevant asset where (i) the joint market share of all parties and business groups, in the relevant market, is below 50%; and (ii) the increase (delta) of the HHI post transaction is below 150. 

Note, however, that if certain requirements are met, the National Economic Prosecutor’s Office can request a full notification, even if the conditions for simplified notification are present, and even after having accepted and declared a simplified notification complete.

34) Languages that may be applied in notifications and communication

Spanish.

35) Documents that must be supplied with notification

In general, the following documents should always be supplied with a merger notification whether simplified or full:

  1. the most recent audited annual financial statements and annual reports for each of the parties to the merger.
  2. documentation regarding undertakings that have been recently sold or acquired;
  3. all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
  4. group chart/overview for each of the parties to the merger;
  5. file with contact information for most significant competitors, suppliers and customers;
  6. any documentation on which the parties have based their market definition and assessment of market shares;
  7. List of economic activities of the parties and volumes and turnovers related to those activities.

For full notification, a range of further documents may be relevant, including analyses, reports, minutes of board meetings and similar documents related to the merger. There also more detailed documents and specific annexes to be provided both for an ordinary or simplified form.

36) Filing fees

There are no filing fees. 

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited (see topic 39).

Furthermore, for acquisitions of minority shareholdings as described in topic 12, no approval is issued and the mandatory filing obligation for such transactions is “ex post”. 

38) May the parties get permission to implement before approval?

No.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger. An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

There are no guidelines on what may be considered acceptable preparatory steps and decisions of the merging parties to this effect generally depend on a case-by-case analysis.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses. If the veto rights can, in effect, cause an alteration of the decision-making process the authority could theoretically consider it a form of gun jumping.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Chilean part of a transaction to avoid delaying implementation in the rest of the world pending approval in Chile.

Further, the National Economic Prosecutor’s Office has generally stated that it does not consider “carve-outs” to be, in and of themselves, a viable mechanism to avoid merger control and it is likely to consider it a gun jumping breach of Chilean merger regulation. Notwithstanding, the quality of the actual carve-out may be considered as an argument to lower the potential fines for such breach.

Consequently, carve-outs must be assessed on a case-by-case basis to determine whether it is possible to carve out the Chilean part of a transaction. However, if the Chilean part of the transaction and the rest of the transaction are interdependent, it is unlikely to be feasible. 

42) Consequences of implementing without approval/permission

The parties are exposed to the general sanctions established for anticompetitive breaches in Chilean Competition Act if the merger is implemented before approval is obtained.

The merger may be prohibited and the Chilean Competition Court may decide to split up the merged entity or take any other measures necessary to restore efficient competition. 

In all circumstances it may be expected that a fine will be requested. The amount of a fine will be established based on the nature, gravity and duration of the infringement.

The level of the fine can go up to thirty percent of the sales of the offender within the product or service line associated with the infringement during the period in which the infringement was being perpetrated, or up to the double of the economic benefit received as a result of the infringement. In the event that it is neither possible to determine the sales nor the economic benefit gained by the offender, the Chilean Competition Court is authorized to impose fines for a maximum amount equivalent to 60,000 unidades tributarias anuales (approximately CLP 35.159 billion). 

Fines may be levied on the relevant legal person, its directors, administrators and all persons that participated in the performance of the respective act. The fines levied on natural persons may not be paid by the legal entity for which he or she perform duties or by the shareholders or partners thereof.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations and pre-notification has not had a pervasive use by Chilean practitioners as, in practice, a successful pre-notification would not guarantee an immediate formal completeness acceptance of the filing form by the corresponding official case team.

No set duration or deadline

Assessment of completeness of notification:

When the merger notification has been formally submitted, the authority must assess whether the notification is complete within 10 working days. If the notification is deemed incomplete, the authority must declare this within the 10 working days’ deadline and state which information is missing.

The authority may spend another 10 working days assessing whether the notification is complete after receiving the requested supplementary information. In practice, it may take months for the authority to actually declare a notification complete.

Even when the notification has been declared complete, the authority may still request more information and documentation, through the issuance of RFIs. These additional requests do not stop the clock on the corresponding legal terms.

Further, the authority can at any time until the merger has been approved request a full notification, even if a simplified notification has already been accepted and declared complete. There are specific reasons to justify this measure, however, they give the National Economic Prosecutor’s Office considerable leeway to make this determination. Notwithstanding this, this type of modification has been used only in limited occasions.

10 working days.

Phase I:

The merger is either approved, with or without commitments, or it is moved to a Phase II investigation of the merger.

In practice the National Economic Prosecutor’s Office may undertake the same types of investigations under phase I and II, and the authority may also negotiate commitments in both phases. However, complex and/or problematic mergers will often require the longer deadlines applicable in phase II.

Normally, the National Economic Prosecutor’s Office will provide the parties with a preliminary statement of concerns on day 20 of Phase I.

30 working days from the date when the notification was complete.

Suspensions:
There are two suspension options (which may be combined):

  1. 10 working days whenever commitments are offered by the parties during Phase I.
  2. The notifying parties and the National Economic Prosecutor can agree to suspend the Phase I term one time for up to 30 days.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

The investigation will involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

 

90 working days from the date when the phase II was initiated.

Suspensions:
There are two suspension options (which may be combined):

  1. 15 working days whenever commitments are offered by the parties during Phase II.
  2. The notifying parties and the National Economic Prosecutor can agree to suspend the Phase II term one time for up to 60 days.
Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The legal criteria to be assessed is a “substantial reduction of competition".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

No.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the National Economic Prosecutor’s Office expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible remedies well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Remedies may take any form and they can be either structural or behavioral and with or without time limitations.

Publicity and access to the file

48) How and when will details about the merger be published?

The general rule is that all decisions by the National Economic Prosecutor’s Office are public in nature. Reactions to protect business secrecy notwithstanding. 

Therefore, the decision that initiates the investigation, when filing form is considered complete, is a public decision and, therefore, at that time, the fact that the filing exists becomes public. 

Further, generally, the National Economic Prosecutor’s Office makes a public announcement when it has formally issued a decision on a merger transaction. This announcement is usually made before the actual decision becomes public. Afterwards, a non-confidential version of the competition impact report and of the actual decision become public. The level of detail of decisions varies considerably.

Time and content of mere announcements is not coordinated with the parties. Notwithstanding, to protect business secrets, timing and content of the non-confidential versions of the competition impact report and of the decision are presented to the parties for them to review and propose redactions. Ultimately, however, redactions are decided by the National Economic Prosecutor’s Office.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the case file, which includes formal communications with third parties that the National Economic Prosecutor’s Office may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority redacts third parties’ confidential information, often including the identity of such third parties. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Third parties do not have access to the case file, at least not during Phase I. During Phase II, the case file becomes public, notwithstanding redactions made ex officio by the National Economic Prosecutor’s Office or at the request of the notifying parties or of other parties or entities that may have submitted information to the case file. However, it should be noted that redactions requested will ultimately be decided by the National Economic Prosecutor’s Office in accordance with its own understanding of what constitute commercially sensitive information that could affect the on-going businesses.

Judicial review

50) Who can appeal and what may be appealed?

The merging parties can only appeal prohibition decisions issued by the National Economic Prosecutor’s Office before the Chilean Competition Court.

The Chilean Competition Court has stated, in the only appeal case to date, that an appeal in such cases gives it full review prerogatives over the National Economic Prosecutor’s Office’s decision. 

If the Chilean Competition Court approves the merger imposing different remedies than the last remedies that were offered by the notifying parties, a last appeal is enabled before the Chilean Supreme Court. 

Third parties may not appeal any decisions under the merger control regulations.


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