By Carey, for Chile, published by WSG.
INTRODUCTIONÂ Â
Is merger control regulation in force? Â
Yes, Law No. 20,945 published on August 30, 2016, amended the Chilean Antitrust Regulation (Law Decree No. 211 – “DL 211â€) incorporating, among other modifications, an ex-ante mandatory merger control regime.
HOT TOPIC 1: GUN JUMPING
1. Can the notifying parties get permission to partially execute the transaction before the merger control approval?
No, Article 3bis of DL 211 establishes sanctions for the implementation of a concentration operation without prior authorization of the Chilean Antitrust Agency (FiscalÃa Nacional Económica – “FNEâ€). The standstill obligation has no exceptions.
2. What are the consequences of implementing a transaction without approval/permission? Is unwinding the transaction contemplated?
In case the parties to a concentration implement the transaction without clearance, the Chilean Competition Court (Tribunal de Defensa de la Libre Competencia – “TDLCâ€) may impose the sanctions established in Article 26 of DL 211, which are: (i) modification or termination of anticompetitive agreements; (ii) dissolution or modification of any legal entity involved in the infringement; (iii) fines up to (a) 30% of the offender’s sales corresponding to the product line associated with the infringement, during the period of such infringement; or (b) double of the economic benefit obtained from the infringement. In case sanctions (a) or (b) cannot be practicable, fines up to UTA 60,000 (up to approx. USD 51.6 million) can be imposed. The TDLC has the power to unwind a transaction. Also, the DL 211 envisages a specific gun jumping fine, amounting up to USD$17,000 for each day of delay counted from the completion of the concentration.
