A. Introduction to Chilean antitrust law

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Chilean antitrust law is very simple and general, nevertheless it covers effectively the regulation of vertical and horizontal agreements that restrict competition, anticompetitive mergers and predatory unilateral behaviors that may constitute a breach of antitrust law’s principles.

B. Relevant Acts

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The main acts that regulate antitrust law in Chile are the following ones:

I. Ley 20169

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Ley 20169 defines and gives examples of behaviors that constitute unfair competition. Establishes actions to demand rights to be upheld by consumers or anyone affected by an unfair competition behavior.

II. Decreto Ley 511

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Decreto Ley 511 (new text of Decreto Ley 211) states the practices that constitute a breach of free competition.

This law also establishes the organization and functions of the two main organs of Chilean Antitrust law:

1. Tribunal de Defensa de la Libre Competencia

The Tribunal de Defensa de la Libre Competencia (TDLC) is the main trial dedicated exclusively to hear and decide about any behavior considered as a breach of Chilean antitrust law and empowered to give general instructions that must be considered in any action or contract related to antitrust law.

2. Fiscalía Nacional Económica

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The Fiscalía Nacional Económica (FNE), is an independent public service that investigates any complaint related to a conduct that may be a breach of antitrust law. The head of this organ is the Fiscal Nacional Económico.

III. Ley 19911

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Ley 19911 creates the TDLC modifying any other previous law. Explain in detail the functioning, structure and procedural aspects that rule this independent trial.

IV. Ley 19496

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Ley 19496 is a law that gives protection to consumers.

C. Enforcement

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In order to monitor the compliance of antitrust law, the most important organ is the FNE, which has wide powers to investigate on its own account or due to a compliance made by particulars any behavior that may be a breach of antitrust Law. This organ can ask, with authorization of TDLC, support of other institution like police or detectives, and if it is necessary, keeping secret of the investigation. This organ can also ask any office or particular for any information that is relevant for the development of their investigations. Furthermore, the FNE can ask to the TDLC the exercise of any of its attributions, and can even impeach the decisions of TDLC before the Supreme Court of Justice.

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The Chilean antitrust law establishes some examples of behaviors that are considered as unfair competition, nevertheless, there are no explicit requirements or a limited list; in fact, the law states: “will be considered,among others, as actions or conventions that impede, restrict or distort competition...” Thus, among the examples, the law includes certain transactions between related undertakings and predatory behaviors.

Consequently, is possible to say that the Chilean very general legal framework on antitrust laws enables the FNE and the TDLC to decide based on the information provided, if a behavior constitutes a breach of antitrust law and should be investigated or sanctioned.

The most important issue to consider in this aspect is the strong attributions that DFLC and FNE have. The FNE, as an independent service that have great attributions to investigate and can ask support of almost any other service organ or authority, can ask for information from particulars and undertakings. Anyway, until now, this organ had been supported by other institutions and have demonstrated to be very effective. Besides, is remarkable the qualifications of their professionals part of the FNE (lawyers, economists and accountants among others).

Regarding to the TDLC, is important to say that is necessary to comply with a great amount of requirements to became a member of this trial, thus, it have highly skilled professionals. This organ has also the support of many experts in several areas, in order to support the trial members in the consideration of some technical issues that are not simple and require special analysis.