Action for Damages

The action for damages (indemnización de perjuicios) is a legal action primarily addressed in the Civil Code, under Title XII of Book IV regarding contractual liability, and Title XXXV of the same Book for extra-contractual (tort) liability. However, the action for damages is also regulated in relation to final and enforceable judgments that convict for anti-competitive offenses under Article 30 of Decreto Ley 211 (DL 211), the Chilean antitrust law.

As a general rule, damages generated by anti-competitive offenses occur in an extra-contractual setting, notwithstanding that they may occur in a contractual setting (e.g., abusive clauses), in which case the victim may choose between the contractual or extra-contractual liability regime. Regardless, as seen below, because Chile possesses a follow-on action system, the typical requirements for each regime are not strictly required to be met; instead, it is sufficient to prove the damage and causality (Budnik, 2019).

Legal doctrine classifies damages derived from anti-competitive offenses into: (i) social damage or anti-competitive damage; and (ii) private damage or indemnifiable damage. Social or anti-competitive damage consists of a “loss of social welfare or the inefficient use of resources in different markets.” This is related to the close link between competition law and its status as a matter of public policy (orden público) (Lewin, 2011).

On the other hand, private or indemnifiable damage refers to damage inherent to the analysis of extra-contractual civil liability, that is, it points to any detriment suffered by a person, whether in their material or moral assets (Budnik, 2019).

Regarding indemnifiable damages, Article 30 of DL 211 prescribes that the compensation shall cover all damages caused during the period in which the infringement took place, thus comprising: (i) actual loss (daño emergente); (ii) loss of profit (lucro cesante); and (iii) moral damages (daño moral).

Undoubtedly, one of the greatest difficulties in an action for damages consists of calculating the extent of the indemnifiable losses. To this end, national and comparative doctrine and caselaw have used a series of methods, including:

• Yardstick method: This is built on the basis of comparing the market affected by an anti-competitive practice with another existing market, free of conduct threatening free competition, which has similar characteristics to the affected market (Lewin, 2011).
• Before and after method: This involves a comparison of prices in the market before and after the period the anti-competitive offense occurred (Budnik, 2019).
• Market share method: This is a combination of the yardstick and before-and-after methods, consisting of a hypothetical suppression of the anti-competitive offense to determine what the market share of the injured party would have been had the offense not occurred (Lewin, 2011).

In national jurisprudence, economic reports are frequently used to determine the amount of damages suffered (e.g., Conadecus v. CMPC and SCA, where an economic report following the before-and-after method was requested; and Sernac v. Agrosuper et al., 2015, where Sernac quantified the damage with an FNE report that followed the market share method).

Historically, the action for damages for anti-competitive offenses has been enshrined in Article 30 of DL 211, which refers to it when stating that a final and enforceable judgment from the TDLC allows for the deduction of an indemnity action.

Consequently, the indemnity action in free competition can only be exercised provided that there is a final judgment issued by Tribunal de Defensa de la Libre Competencia (TDLC), which in the U.S. system is known as “follow-on actions.” Indeed, doctrine has noted that “the referred rule is not only assuming but requiring that a prior ruling by the TDLC on the existence of the anti-competitive offense exists so that the indemnity action for damages derived therefrom can be resolved. Therefore, if this prior ruling by the TDLC does not exist, the action for damages would lack a procedural requirement that would make it inadmissible” (Maturana, 2020).

Prior to 2016 (before the reform introduced by Law 20,945), jurisdiction to hear the indemnity action resulting from a final judgment from the TDLC fell to the ordinary courts of justice. However, following said reform, Article 30 of DL 211 establishes that it shall be filed before the same court that issued the judgment (the TDLC).

Among the reforms introduced by Law 20,945, the modification of Article 51 of Law 19,496 (on Consumer Rights Protection) stands out, incorporating active standing for the collective or diffuse interests of consumers. Thus, since 2016, not only those who directly suffered the loss are entitled to act, but also the National Consumer Service (Sernac) and consumer associations.

On the other hand, a major difficulty for consumers is that Law 19,496 operates only between providers and affected consumers, which is why several actions filed against wholesalers have been rejected for lack of passive standing (legitimidad pasiva). For example, the 10th Civil Court of Santiago, in the case of Conadecus v. SCA and CMPC, (which confronted a consumer association with two colluded wholesale companies of papers) upheld the lack of passive standing, stating that despite the existence of a TDLC conviction for collusion, those companies did not relate directly to the affected consumers but rather through intermediaries; thus, they did not hold the status of “providers” required by the Consumer Protection Law. Similarly, the 29th Civil Court of Santiago rejected the lawsuit of Sernac v. Agrosuper et al., estimating that the defendants did not have the status of providers.

In accordance with Article 30 of DL 211, the indemnity action shall be processed under the rules of the summary judgment (juicio sumario) established in Title XI of Book III of the Code of Civil Procedure (CPC). Resolutions issued in this procedure are only subject to a motion for reconsideration (reposición), except for the final judgment, against which an appeal may be filed before the Supreme Court.

In line with it being a follow-on action—since the conduct contrary to free competition has been previously established—it is not necessary to prove the element of culpability (imputabilidad) in the indemnity action, but only the damage and causality (Boetsch, 2021).

Finally, since the 2016 reform, it is relevant to highlight that it was explicitly added to Article 30 of DL 211 that evidence shall be evaluated according to the rules of sound criticism (sana crítica), which differs from what happened previously when, as the system of proof was not specified, it was understood that the legal or “taxed” evidence system applied, in which law mandated how evidenced had to be weighed.

In Judgment No. 199/2024, the TDLC ruled on the possibility of submitting indemnity actions derived from anti-competitive offenses to arbitration.

The dispute originated from Judgment No. 173/2020, in which the TDLC upheld a complaint (“requerimiento”) from the FNE and sanctioned the National Professional Football Association (ANFP) for anti-competitive conduct. The offense consisted of imposing an “incorporation fee” on clubs as a requirement for their promotion from the Second Division to Primera B. This fee was classified as an artificial and unjustified barrier to entry. This ruling was confirmed by the Supreme Court on September 6, 2021.

Once the infringement judgment became final, and in accordance with Chile’s follow-on system, the club Deportes Melipilla filed a lawsuit for damages before the TDLC. In its response, the ANFP filed an exception of lack of jurisdiction, arguing that, per its statutes, the conflict should be resolved before the Court of Patrimonial Matters (TAP), as the statutes contained a mandatory arbitration clause.

In resolving this, the TDLC held that there is no absolute prohibition against submitting claims for damages derived from anti-competitive offenses to arbitration. The Court stated that “even though the express text of DL No. 211 grants exclusive jurisdiction to this Court… respect for the private autonomy of the parties would allow to recognize the validity of an arbitration clause… provided that the damage generated by the conduct has a certain degree of predictability” (C. 28).

The Court specified three requirements for an arbitration tribunal to have jurisdiction (C. 29):

1. The offense must be determined by a final judgment before signing the arbitration clause: It is not acceptable to subtract a future offense from ordinary justice, as that would constitute the condonation of a future fraud (dolo futuro).
2. The arbitration clause must provide for the hearing of a clearly identified action for damages: The object must be indubitable and refer specifically to the controversy derived from a clearly identified final judgment.
3. The jurisdiction of the arbitration tribunal must be limited to determining the existence of damage, quantification, and causality: The arbitrator cannot re-examine the illegality of the conduct or re-discuss the offender’s liability.

– Cristián Boetsch Gillet (2021). Indemnización de perjuicios a consumidores por atentados a la Libre Competencia, en Centro Competencia UAI, disponible en: https://centrocompetencia.com/indemnizacion-de-perjuicios-a-consumidores-por-atentados-a-la-libre-competencia/
– Budnik Ojeda, Gabriel (2019). Indemnización de perjuicios por infracciones a la libre competencia. Revista Chilena de Derecho y Ciencia Política, junio 2019, vol. 10, pp. 93-116.
– Lewin Muñoz, Nicolás (2011): “Indemnización de perjuicios por atentados a la libre competencia: el daño anticompetitivo, su relación con el daño civil y la determinación de los perjuicios”, Revista Anales Derecho UC, Nº 6. pp. 43-62.
– Maturana Baeza, Javier (2020): “La acción de indemnización de perjuicios por ilícitos anticompetitivos desde la perspectiva procesal”, en Centro Competencia UAI, disponible en: https://centrocompetencia.com/la-accion-de-indemnizacion-de-perjuicios-por-ilicitos-anticompetitivos-desde-la-perspectiva-procesal/
– FUCHS, ANDRÉS VIVES, ÁLVARO (2015): Dos problemáticas en torno a la responsabilidad derivada de ilícitos anticompetitivos, en: “Estudios de Derecho Civil X”, Thomson Reuters.

– 29º Juzgado Civil de Santiago, Sernac v. Agrosuper y otros, causa Rol N° C-28470-2015.
– 10º Juzgado Civil de Santiago, Conadecus v. CMPC y SCA, Rol C-29214-2015.