Non-Adversarial Procedure

In the field of Chilean antitrust, the non-adversarial procedure (procedimiento no contencioso) is one of the procedures regulated by Decreto Ley 211 (DL 211, the Chilean antitrust law) through which the Tribunal de Defensa de la Libre Competencia exercises its powers. This procedure encompasses the processing of: (i) consultations (Art. 18 No. 2); (ii) procedures related to the issuance of general instructions (Art. 18 No. 3); (iii) procedures for the TDLC to issue regulatory proposals (Art. 18 No. 4); and (iv) powers granted to the TDLC through special laws, such as the reports required by the Ports Law and the REP Law (Extended Producer Responsibility).

Article 18 of DL 211 states that 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; 3) To issue general instructions in accordance with the law, which must be considered by private parties in the acts or contracts they execute or enter into that relate to free competition or could undermine it; 4) To propose to the President of the Republic, through the corresponding State Minister, the amendment or repeal of legal and regulatory precepts deemed contrary to free competition, as well as the issuance of legal or regulatory precepts when necessary to foster competition or regulate the exercise of specific economic activities carried out under non-competitive conditions. In any case, the minister receiving the proposal must express an opinion on it. The response shall be published on the institutional websites of the Court, the Prosecutor’s Office, and the respective Ministry; (…).”

Furthermore, the stages non-adversarial procedures must undergo are regulated by Article 31 of DL 211. Said rules apply to consultation procedures, the issuance of general instructions, and regulatory recommendations.

The decree ordering the initiation of a non-adversarial procedure is published in the Official Gazette and on the TDLC’s website. Additionally, official notice shall be given to the FNE, the authorities directly concerned, and the economic agents who, in the judgment of the TDLC, are related to the matter. A period of no less than fifteen business days is granted for these parties and those with a legitimate interest, to provide background information and evidence. Notably, the FNE is required to submit information and may propose mitigation measures to avoid anti-competitive risks.

Once this period has expired, there are two alternatives: a) Those who have executed or entered into, or intend to execute or enter into, the consulted facts, acts, or contracts, may evaluate the recommendations made by the National Economic Prosecutor’s Office during the information-gathering stage and notify the Court in writing of their agreement with them. In this case, the TDLC will have a period of 15 days to schedule a public hearing from the receipt of said communication. b) If no communication is made, the TDLC will schedule a public hearing, to be held within a period of no less than fifteen days and no more than thirty days from its notification by means of a notice in the Official Gazette.

The TDLC has the authority to gather and receive background information it deems pertinent, either ex officio or at the request of an interested party. Following the public hearing, the Court will issue a resolution or report.

The availability of appeals against the resolutions or reports issued by the TDLC, and the final resolutions, is regulated in the final paragraph of Article 31 of DL 211, which states that:

“[T]he resolutions or reports issued or rendered by the Court in the matters referred to in this article may be subject to a motion for reconsideration (recurso de reposición). Final resolutions, whether or not they set conditions, may only be subject to the motion for review (recurso de reclamación) referred to in Article 27. Such motion must be substantiated and may be filed by the consultant(s), the National Economic Prosecutor, and any of the third parties who have provided information in accordance with the provisions of number 1.”