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The Fiscalía Nacional Económica (FNE) is a public service of the Administration responsible for defending and promoting free competition across all markets and productive sectors of the Chilean economy.
Decree Law No. 211 (DL 211) establishes that the FNE is a decentralized public service with its own legal personality and assets, independent of any other body or service. It is headquartered in Santiago and is subject to the oversight of the President of the Republic through the Ministry of Economy, Development, and Tourism.
To fulfill its role, the FNE investigates any act, fact, or convention that prevents, restricts, or hinders free competition, or tends to produce such effects. Its investigative focus includes collusive practices, abuses of dominant position, and concentrations (mergers) that affect or could affect the efficient functioning of markets and consumer welfare.
Along with the antitrust Court, the Tribunal de Defensa de la Libre Competencia (TDLC) and the Supreme Court, it forms the institutional framework for free competition in Chile.
The origins of the National Economic Prosecutor’s Office date back to 1963, when the position of “Prosecutor” was established as a collaborative entity for the former Antimonopoly Commission. This commission had been created in 1959 as part of a package of measures intended to stabilize the Chilean economy, proposed by the U.S. Klein-Saks mission (Bernedo, 2013).
Later, with the enactment of DL 211 in 1973, the “Prosecutor’s Office for the Defense of Free Competition” was created. It was headed by a prosecutor whose goal was to assist the commissions —decision making bodies that preceded the TDLC— by providing administrative support, serving as an executive body for their agreements, and, above all, investigating and enforcing the law (Bernedo, 2013).
Following the reform of DL 211 in 1979, the office was officially renamed the “Fiscalía Nacional Económica” and reformed in several ways: its staff increased from seven to 50 officials, the appointment mechanism for the National Economic Prosecutor was modified, and new powers were granted. Additionally, this reform defined the FNE as a decentralized public service with its own assets, independent of any body or service, communicating with the government through the Ministry of Economy (Bernedo, 2013).
Other major modifications include:
The FNE currently has more than 100 officials working across seven divisions: Anti-Cartels, Antimonopoly, Market Studies, Mergers, Litigation, Administration and Management, and Institutional Relations and Leniency. In addition to these divisions, two units were recently created: the Enforcement Unit (under the Antimonopoly Division) and the Intelligence Unit (under the Anti-Cartels Division).
All personnel work interdependently under the supervision and coordination of the National Economic Prosecutor and the Deputy National Prosecutor.
As previously noted, the National Economic Prosecutor is appointed by the President of the Republic and selected through the Senior Public Management System. The term of office is 4 years, renewable for a single period. A Prosecutor may leave office early due to voluntary resignation, dismissal for manifest negligence, or incapacity. In the latter two cases, removal must be ordered by the President of the Republic, following a favorable report from the plenary of the Supreme Court agreed upon by a majority of its active members.
The leadership and representation of the FNE rest with the sole office of the National Economic Prosecutor, who possesses a margin of independence, judgment, and discretion. To characterize these powers, DL 211 allows the Prosecutor to exercise authority “in the manner he or she deems consistent with the law, according to his o her own assessments,” a phrase that has survived numerous legal amendments.
The Prosecutor serves as the investigative and prosecutorial lead for the Chilean competition regime. Legally speaking, he or she represents “the general interest of the community in the economic order.” To this end, the Prosecutor:
The Prosecutor conducts investigations using specific legal powers, such as requiring information from private and public entities, summoning individuals to testify, or requesting cooperation from other public services.
Furthermore, for investigations into serious collusive conduct, the Prosecutor may use “hard powers” (Article 39 n of DL 211), which include:
To use these powers with police assistance, the Prosecutor must obtain: a) TDLC approval and b) prior authorization from a judge of the Santiago Court of Appeals.
The Anti-Cartels Division is responsible for leading investigations into cartels, agreements, and concerted or collusive practices, as defined in Article 3 a) of DL 211. This division is also in charge of implementing the FNE’s leniency program (delación compensada).
Additionally, since 2020, the division has included an Intelligence Unit, which operates and updates a cartel detection system based on data science.
The Antimonopoly Division (DAM) is a prosecutorial branch of the FNE that investigates conduct contrary to DL 211 —excluding matters handled by the Anti-Cartels Division— and recommends courses of action to the National Economic Prosecutor to promote and defend free competition in the markets.
The primary behaviors investigated by the DAM are abuses of dominant position, as provided for in letters b) and c) of Article 3 of DL 211. Additionally, the Antimonopoly Division is responsible for investigating predatory conduct, unfair competition, interlocking, and other actions that could violate the first paragraph of Article 3 of DL 211.
Within the DAM is the newly established Enforcement Unit, which ensures compliance with the Prosecutor’s resolutions as well as the rulings and decisions issued by the TDLC and the Courts of Justice.
The Market Studies Division is responsible for conducting research on the competitive evolution of markets and also handles the coordination of the FNE’s international activities.
Market studies are a tool for competition advocacy and do not aim to prosecute anticompetitive offenses. Therefore, they cannot directly result in the imposition of sanctions or measures. However, along with the final report issued on an analyzed market, the FNE may choose to issue recommendations that will be subject to subsequent follow-up work.
These recommendations, which may be directed at public or private bodies, may consist of:
The Mergers Division oversees the preventive merger control in Chile, which is mandatory when the sales in Chile of the concentrating economic agents exceed certain thresholds.
Its objective when evaluating mergers is to determine whether they may substantially reduce competition in the affected markets. To achieve this, it employs a multidisciplinary team composed of lawyers and economists.
The control procedure takes place in two phases:
The Litigation Division is primarily responsible for determining the legal strategy and handling the judicial strategy of the FNE’s contentious cases before the TDLC and the Supreme Court. It is also tasked with filing and processing non-contentious matters initiated by the FNE before the Court.
Additionally, the division plays an active role in advising the National Economic Prosecutor on matters specific to their work by promoting internal development through training and actively interacting with the other divisions of the FNE.
The functions of the Administration and Management Division (DAG) include managing the administrative and support processes (IT, logistics, human resources, among others) of the Service to meet institutional goals and objectives. Furthermore, the Head of the DAG is responsible for managing and executing the budget, ensuring its compliance and allocation across the different areas of the Service.
The Institutional Relations Division is responsible for fostering and maintaining relationships between the Prosecutor’s Office and government agencies, academic institutions, business sectors, trade associations, and the media, both nationally and internationally.
Likewise, it is responsible for contributing to the internal coordination of the FNE’s Divisions, Departments, and Units, acting as a link between the FNE Leadership and each of them to ensure the fulfillment of institutional objectives.
