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Notification

Process and timing

Is the notification process voluntary or mandatory?

Until May 31 2017, notification is voluntary for concentration operations and mandatory for minority shareholdings. From June 1 2017, notifications will be mandatory when concentration transactions have an impact in Chile and meet or exceed the sales thresholds established by the national economic prosecutor.

Parties to a concentration transaction which does not meet or exceed these thresholds may also voluntarily notify the national economic prosecutor. Such voluntary notifications shall be subject to the same rules applicable to mandatory ones, provided that the transaction has not been implemented before the filing.

If a concentration transaction which does not meet or exceed the relevant thresholds is not voluntarily notified, the national economic prosecutor has one year from its execution to open an investigation into it. 

What timing requirements apply when filing a notification?

Minority shareholdings must be notified within 60 working days of the acquisition. For past transactions (ie acquisitions that took place before the publication of Law 20.945), the national economic prosecutor must be notified of the minority stakes within 180 days following publication in the Official Gazette, that is, until February 26 2017.

Concentration operations that meet or exceed certain thresholds must be approved by the prosecutor before execution. The new mandatory merger control system consists of two phases.

Phase I Once the transaction is notified, the prosecutor has 10 working days to determine whether the filing is complete. If the answer is yes, it shall initiate an investigation, communicating its decision to the parties and to the public (safeguarding any confidential information). During the course of the investigation, the prosecutor may request cooperation from staff at public offices or services, and information from private individuals and companies, and request a declaration from individuals which may have information regarding the transaction.

Within 30 days of the investigation’s initiation, the prosecutor shall:

  • approve the transaction unconditionally if it concludes that it will not substantially damage competition;
  • approve the transaction on certain conditions, if the prosecutor concludes that – subject to these measures – the transaction will not substantially damage competition; or
  • extend the investigation by up to 90 additional days if it considers that the transaction could substantially damage competition if it is executed unconditionally or even approved subject to certain conditions – in such event, the proceeding moves to Phase II.

Phase II The national economic prosecutor shall inform all agencies and authorities directly concerned, as well as any economic agents likely to be affected by the extension. Recipients of this communication – as well as any third party interested in the transaction, including suppliers, competitors, clients or consumers – may submit information to the investigation within 20 days following the extension’s publication on the prosecutor’s website.

Upon the expiration of the 90-day period, the prosecutor shall:

  • approve the transaction unconditionally if it concludes that it will not substantially damage competition;
  • approve the transaction on certain conditions, if the prosecutor concludes that – subject to these measures – the transaction will not substantially damage competition; or
  • prohibit the transaction, if it concludes that it might substantially damage competition. 

The law contemplates a special revision appeal only if the prosecutor prohibits the transaction altogether. This must be filed before the Competition Court within 10 days of notice of the prosecutor’s decision. The court shall schedule a public hearing to be held within 60 days following receipt of the investigation’s docket. The public hearing may be attended by the parties, the prosecutor and all those who submitted information during the investigation. Within 60 days of the hearing, the court shall issue a decision confirming or overturning the prosecutor’s decision.

If the court’s decision overturns the prosecutor’s decision and approves the transaction subject to fresh conditions, both the parties and the prosecutor may file an appeal with the Supreme Court.

Banking  For transactions in the banking sector, the General Banking Act provides that the Superintendency of Banks and Financial Institutions (SBIF) must deny or approve the transaction within 60 days of being notified of it. This notification is in addition to the merger control filing.

Media Pursuant to Article 38 of the Act on Freedom of Opinion and Information a change in control of a media company must be notified within 30 calendar days of its completion. If social media is subject to the concession system granted by the state, the transaction must be cleared by the national economic prosecutor before being implemented.

What form should the notification take? What content is required?

Only the parties to the concentration operation are obliged jointly to notify the national economic prosecutor of the transaction. Third parties which are not part of the concentration operation cannot notify the transaction.

The Competition Statute establishes that the notification must include:

  • all information necessary to identify the concentration operation and its parties (including subsidiaries or other companies that are part of the same business group);
  • all information necessary to conduct a preliminary evaluation of the potential risks which the concentration operation might have on competition;
  • an affidavit of the parties declaring that they are executing the concentration transaction in good faith; and
  • sufficient information to fulfil other requirements to be established by a regulation issued by the Ministry for the Economy.

Additionally, the prosecutor must be informed of any new fact, act or convention which might alter any of the information, conclusions or estimates set out above as soon as the parties become aware of them. If the changes are relevant, the prosecutor shall issue a resolution declaring that the changes are significant – this will be considered a new notification for the purpose of deadlines.

In relation to the forthcoming regulation from the Ministry for the Economy, this includes a lengthy list of information that the parties must submit in merger control procedures. The documents listed related to financial information, corporate structure before and after the operation, relevant market definition, market data and potentially affected markets.

Is there a pre-notification process before formal notification, and if so, what does this involve?

There is no pre-notification process before the formal notification contemplated in this statute – although it is expected that there will be contact with the national economic prosecutor pre-notification. 

Pre-clearance implementation

Can a merger be implemented before clearance is obtained?

No, under the new regime the parties must notify the national economic prosecutor before the execution of a merger where the concentration transactions will have an impact in Chile and meet or exceed the thresholds established by the prosecutor. A notified concentration transaction will be suspended until the prosecutor issues a decision on it.

Guidance from authorities

What guidance is available from the authorities?

The Ministry of the Economy has launched a public consultation on the regulation which establishes what background information must be included in the filing of a mandatory or voluntary concentration operation before the national economic prosecutor. The document also regulates a simplified filing mechanism for certain concentration operations described therein. The regulation is not currently in force and a final decision from the authority is expected by March 1 2017.

Also, in October 2012 the prosecutor issued non-binding guidance to assess concentration operations. However, despite this it may issue new guidance on concentration operations by virtue of the new merger control regimen.

With respect to minority shareholdings, the prosecutor issued a form for notifying the acquisition of more than 10% of the equity of a competing company. The form indicates what information should be shared with the prosecutor and how the notification must be submitted. 

Moreover, jurisdictional decisions about concentration operations may also be reviewed in order to seek guidance.

Fees

What fees are payable to the authority for filing a notification?

There are no fees involved in filing a notification. 

Publicity and confidentiality

What provisions apply regarding publicity and confidentiality?

Once an application is filed, the national economic prosecutor’s resolution ordering the opening of an investigation must be published (probably on its website – although this is not specified by the law). The prosecutor is responsible for protecting any confidential information provided by the parties.

In addition, the prosecutor may decide, ex officio or at the request of one of the parties, to keep confidential some parts of the file in order to protect strategic formulas, commercial secrets or any other element the revelation of which might significantly lessen the competitive potential of its owner or the investigation’s efficacy.

The Competition Court publishes all supporting documents, any other submissions made by the parties and its final decision in its website. The confidentiality of information during these procedures is established by the Auto Acordado on Confidentiality (15/2012).

According to this, the parties can request confidential treatment for documents – although it is up to the court’s discretion whether to grant this. In practice, the request should be submitted along with persuasive arguments.

Also, jointly with the request, the party must attach a public version of the document redacting the confidential information and disclosing the remainder. The auto acordado establishes that certain information will be confidential when the Competition Court considers that its disclosure may harm a person, a company or free competition.

Notwithstanding this, the prosecutor will always have access to confidential documentation. 

Penalties

Are there any penalties for failing to notify a merger?

Failure to notify will allow the Competition Court to take the following measures, as established by Article 26 of the Competition Statute:

  • modify or terminate the acts, conventions, agreements or systems (ie, through divestiture or behavioural measures);
  • order the modification or dissolution of the companies, corporations and legal entities which have carried out the acts, contracts, conventions, systems or agreements referred to above;
  • apply fines of up to 30% of the sales of the offender corresponding to the line of products or services associated with the infringement, during the term of the infringement or up to double the economic benefit gained by the infringement. If this amount cannot be determined then a fine of up to UTA (unidad tributaria anual or annual tax units) 60,000 (approximately $50 million)
  • a fine of up to UTA20 (approximately $16,000) for each day of delay, starting from the execution of the concentration transaction.

For a fine to be imposed, the transaction must contravene the Competition Statute (ie, give rise to anti-competitive effects), with the exception of point four above, which requires only failure to notify.

While there are no specific provisions for transactions in the banking sector, the General Banking Act provides that when there is no special sanction, the SBIF can level fines of approximately $199,000. In the event of repeat offences, this may rise to approximately $995,000. In addition, the SBIF can fine directors, managers and other responsible officers up to $39,800.

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