Chile Legal Alert: Antitrust changes for horizontal merges

Written by Carla López V. & León Lánis V. 

On May 12th, Chile’s National Economic Prosecutor's Office (or also known as FNE) launched a new version of the Horizontal Merger Guidelines in order to update the previous version in force since 2017. In addition, it has also released an “Instruction on Pre-notifications”, which establishes a formal stage available to the public to resolve substantive and procedural doubts for future notifications. 

The new guidelines, which are open for public consultation until June 11th, underline the importance and impact horizontal mergers have in the national and international economy, and consequently, the need to design effective regulation given that an operation of this kind has the ability to substantially reduce competition in the market.

 The public consultation process aims to gather the public’s view in order to create precise and modern criterion that is up to international standards on competition law and reflects market evolution. Likewise, the new framework intends to complement the current antitrust system under DL No 211 (which latest amendment was done in 2017 with the regulation of cartels and collusions), incorporating the experience gathered from the last four years of operation of the mandatory control, as also from case law evolution before the National Antitrust Court (Tribunal de Defensa de la Libre Competencia).

 Among the new amendments, the guidelines give more details regarding coordinated risk assumptions; it includes a new section on the evaluation of mergers in dynamic markets and digital platforms; and mentions the quantitative methodologies used to estimate unilateral risks, while also including counterfactual evaluations as a predictive method.

 Overall, the intention behind this update is to make ex ante notifications more flexible for target companies (even reinforcing the “company in crisis” defense), while updating the applicable legal standards for a more certain and predictable internal procedure.

It is a substantial contribution to the ongoing growth of the antitrust scheme, reflecting what the stakeholders have learnt over the past few years, and including the development of new technologies, markets and risky situations that had not been imagined previously while maintaining the focus of what has been accomplished so far.

Harris Gomez Group is an English and Spanish speaking law firm with 25 years experience based in Sydney, with sister offices in Chile and Colombia. We specialise in business, technology and corporations law and cross-border issues. Many of our clients are technology companies, service providers and engineering companies that focus on the mining, energy and infrastructure markets. We are members of both Australian Latin American Business Council (ALABC) and Auscham.

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