Consultation

The consultation (la consulta) is an action that initiates a non-adversarial procedure, by which a natural or legal person, whether private or public, submits to the Tribunal de Defensa de la Libre Competencia (TDLC) existing or future facts, acts, or contracts —other than mergers— so that the Court may rule on whether these facts, acts, or contracts infringe the provisions of Decreto Ley 211 (DL 211, Chile’s antitrust law), as well as for the potential establishment of conditions that must be met in such facts, acts, or contracts to comply with antitrust regulations.

Legal doctrine has noted that the purpose of the TDLC’s “consultative” power is to “provide certainty regarding the lawfulness of existing facts, acts, or contracts and to contribute to ensuring that those yet to be performed are legally valid from their inception” (Velozo and González, 2011, p. 27). For its part, caselaw has indicated that this power serves a “preventive” purpose by preventing a fact, act, or convention from potentially undermining free competition should it materialize (Supreme Court Judgment, June 21, 2023, Case Roll No. 171.797-2022).

The consultation process is regulated by Article 18 No. 2 of DL 211, which states: “The TDLC shall have the following powers and duties: (…) 2) To hear, at the request of those who are party to or have a legitimate interest in existing or future facts, acts, or contracts —other than the concentration operations referred to in Title IV— or the National Economic Prosecutor, non-adversarial matters that may infringe the provisions of this law, for which it may set conditions that must be met in such facts, acts, or contracts.”

On the other hand, its procedure is governed by Article 31 of the same body of law. Regarding its processing, it is subject to the general rules for non-adversarial procedures.

The consultation procedure has four admissibility requirements: (i) the object of consultation must be a current or future fact, act, or contract; (ii) there must exist doubt or risk regarding compliance with antitrust regulations concerning that fact, act, or contract (Resolution H. TDLC No. 60/2019, December 5, 2019); (iii) the consultation must be filed before the TDLC; and (iv) the person filing it be a party to or have a legitimate interest in the consulted fact, act, or contract.

The Supreme Court has pointed out that through a consultation, it is not possible to impose conditions that regulate a general market in abstract terms, as such an action should be undertaken through the power to issue general instructions (Supreme Court Judgment, May 10, 2021, Case Roll No. 138.221-2020).

Furthermore, in the same ruling, it affirmed that it is possible to apply the non-adversarial procedure if the consultation refers to specific acts and if there is no formal and direct accusation regarding the commission of anti-competitive offenses that could result in a punitive claim (Campos and Corte, 2021, pp. 8 and 9). Thus, it maintains that it is not possible to use the consultation to instrumentally obtain an early decision on an adversarial matter and limit the procedural defense guarantees of the opposing party (Supreme Court Judgment, May 10, 2021, Case Roll No. 138.221-2020).

In this sense, the TDLC has rejected consultations presented by the National Economic Prosecutor’s Office, considering that they actually constituted allegations of anti-competitive conduct that could imply the imposition of a sanction (H. TDLC Resolution, November 29, 2022, Case Roll NC No. 517-2022). Notwithstanding the above, the Supreme Court overturned this resolution, declaring such a consultation admissible for hearing by the TDLC (Supreme Court Judgment, June 21, 2023, Case Roll No. 171.797-2022).

Final resolutions of a consultative procedure, whether or not they set conditions, are only subject to a motion for review (recurso de reclamación), which may be filed by the consultant(s), the National Economic Prosecutor, and any of the third parties who have provided information and evidence.