As of June 1 2017, the national economic prosecutor (FNE) will undertake a control procedure for merger operations before they begin.
The latest reform of the Competition Statute (DL 211) introduces a control procedure for merger operations that have effects in Chile. According to the standards established by law, the FNE must examine any merger in which:
- sales in Chile by the economic agents planning to merge are equal to or greater than 18 million units of account (approximately $70 million); and
- at least two of the economic agents planning to merge have generated sales equal to or greater than 2.9 million units of account (approximately $11 million).
The FNE has produced the following legal guides in this regard:
- the Competition Guide;
- the Threshold Application Guide; and
- the Remedies or Solutions Guide.
The control procedure for merger operations gives the FNE a 10-day deadline to reply if a notification fulfils the above requirements, after which the investigation stage (Phase 1) begins. The FNE can extend this stage by 30 days.
At the end of Phase 1, the FNE can extend the investigation by a maximum of 90 days (Phase 2) if it is believed that the merger would substantially reduce competition.
At the end of Phase 2, the FNE must:
- approve the notified operation if it believes that the merger would not substantially reduce competition (ie, simple approval);
- approve the notified operation and demand that the measures offered by the applicant during the investigation process be fulfilled if it believes that it is unlikely that the merger would substantially reduce competition; and
- reject the merger if it believes that the merger could substantially reduce competition.
The interested parties can appeal the FNE's findings before the Competition Court.
A recent example of a merger that received simple approval is the joint venture agreed between Japanese shipping companies Nippon Yusen Kabushiki Kaisha Ltd, Mitsui OSK Lines Ltd and Kawasaki Kisen Kaisha Ltd. In this case, the FNE dismissed the possibility of eventual competition risks. As a result, mitigation or disinvestment measures were not required. Considering the global character of the operation examined, several jurisdictions examined the merger in question.
The FNE also recently granted Phase 1 approval to the acquisition of Enjoy SA by Entretenciones Consolidadas SpA, Inversiones e Inmobiliaria Almonacid and Inversiones Cumbres Ltd – through which Entretenciones Consolidadas SpA gained decisive influence over the management of Enjoy SA – as the proposed operation did not generate concentration in the market.
In addition, Minerva SA's acquisition of JBS SA (ie, Brazilian enterprises which sell beef in Chile) was recently approved during Phase 1, as the FNE found that the operation would not significantly reduce competition.
The merger between Dow Chemical Co and EI Du Pont of Nemours and Company (both of which produce and market chemical products for the agricultural business) was recently approved with disinvestment measures. Within the framework of the investigation, the FNE detected risks that could substantially reduce competition in some specific markets. In this context, the enterprises involved offered disinvestment measures (eg, selling assets, some business units and the production plants of other commercial lines), which were accepted by the FNE.
Conversely, the merger between AT&T Inc and Time Warner Inc was approved under mitigation measures, whereby the FNE detected that the proposed operation presented a risk to competition. To avoid these risks, the parties offered to protect the confidentiality of sensitive information and provide access to Time Warner's programming channels in non-discriminatory terms. The parties also offered to undertake arbitration as a conflict resolution mechanism if required for issues that could arise during the negotiation and renegotiation of licence agreements relating to pay-for-view TV channels.
Finally, the merger between Atlantia SpA and Abertis Infraestructura SA (which operate in the public roadwork concessions industry) was also recently approved under mitigation measures.
The recent amendment to Chile's competition system establishes a new obligation for economic agents, which will now have to undergo a preventive control procedure led by the FNE where it is deemed appropriate. The amendment aims to provide legal certainty and reduce the length of merger control procedures.
At least five mergers have been accepted in the three months since the new control procedure came into force. Further, there are several ongoing FNE investigations, including the examination of:
- the mergers between:
- Empresas Target and Grupo Minerva;
- Amanecer Solar SpA and Orion US Holding; and
- Ideal SA and Nutrabien SA; and
- HP Inc's acquisition of Samsung Electronics Co Ltd.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Francisco Gonzalez or Javier Maturana at González & Rioseco Abogados by telephone (+56 228 400 400) or email (firstname.lastname@example.org or email@example.com). The González & Rioseco Abogados website can be accessed at www.gonzalezrioseco.cl.