TDLC (Chile’s Antitrust Court)

The Tribunal de Defensa de la Libre Competencia (TDLC) is a special Chilean court, headquartered in Santiago, which is subject to the directive, correctional, and economic superintendence of the Supreme Court. Its most recognizable function is jurisdictional and consist of hearing and adjudicating conflicts arising from violations of free competition through the special contentious procedure regulated by Decree Law No. 211 (DL 211), a law aimed at promoting and defending free competition.

Alongside the Fiscalía Nacional Económica (FNE) and the Supreme Court, it forms part of the institutional triad for the protection of free competition in Chile.

The TDLC represents a unique feature of Chilean legal design, reinforcing the commitment to independence, specialization, and inter-agency checks and balances, as it is a formal court and includes two economist ministers among its members.

The TDLC was created by Law No. 19,911 in 2003, replacing the Antimonopoly Resolutive Commission and the Preventive Commissions. This new regulation established a dual system consisting of one body that adjudicates (the TDLC) and another that prosecutes (the FNE), ensuring effective checks and balances within the legal process.

Considered the “most significant modification ever made to Chilean free competition institutions” (Bernedo, 2013), this law resolved a series of obstacles inherent in the previous institutional design.

Firstly, this reform addressed the confusion regarding the scope of work and powers between the commissions and the National Economic Prosecutor, where “the latter had to prosecute and, at the same time, provide all necessary support to the commissions for adjudication, sitting at the same table as the judges” (Bernedo, 2013). In this regard, the powers of the Prosecutor were separated from those of the adjudicator.

Furthermore, the modification allowed for the reassignment of the power to defend and represent the public interest in matters of free competition. Consequently, the representation of the public interest (and, therefore, the ability to act ex officio) was vested in the FNE rather than the TDLC, which is not authorized to act on its own motion.

The TDLC is a collegial body composed of five full-time sitting members and two substitute judges. Three of the sitting ministers must be lawyers (including the President of the court) and the other two must hold degrees or postgraduate qualifications in economic sciences.

Its appointment scheme combines three autonomous state institutions:

• The President of the TDLC is appointed by the President of the Republic from a list of five candidates compiled by the Supreme Court.
• Two members are appointed by the Board of the Central Bank.
• Two members are appointed by the President of the Republic from shortlists of three candidates (ternas) prepared by the Board of the Central Bank.

Court members —including the President— serve six-year terms and may only be reappointed for one successive period.

The Court operates on a permanent basis and holds legally constituted sessions to resolve cases at least three days a week. Agreements or decisions are adopted by majority vote; in the event of a tie, the President holds the deciding vote.

Additionally, the Court’s work is supported by a lawyer-secretary, rapporteurs (relatores), and professionals from the economic field. Rapporteurs and economic professionals perform various functions, such as advising and collaborating directly with Court members in the processing and resolution of matters and party petitions, supporting the Court in the drafting process of its decisions, and researching and preparing reports on matters related to cases before the Court, among others.

As a court, the TDLC exercises jurisdiction by resolving specific conflicts between parties, without the power to initiate disciplinary proceedings or non-contentious matters ex officio (on its own motion). However, it also has public interest powers at its disposal that do not fall under its jurisdictional function.

Its powers include:

• To hear, at the request of a party or the National Economic Prosecutor (FNE), of situations that could constitute violations of DL 211 under contentious proceedings
• To hear consultations submitted by parties, those with a legitimate interest, or the National Economic Prosecutor regarding existing or proposed facts, acts, or contracts that may violate DL 211 under non-contentious proceedings.
• Issuing binding general instructions for industries
• Making regulatory recommendations to the executive branch, a process it can even initiate ex officio.
• Exercising its economic powers to issue court orders (auto acordados) to regulate the exercise of its powers and processes. For example, there are court orders regarding requests for information secrecy or confidentiality in its proceedings or regarding the recording of evidentiary proceedings by audio-visual means.
• The TDLC also fulfills a monitoring role over the actions of the National Economic Prosecutor’s Office, beyond the resolution of contentious matters. The TDLC can decide on oppositions to the Prosecutor’s requests for information from private individuals. Likewise, it intervenes in the procedure to authorize the use of ‘hard powers’ (such as dawn raids) regarding cartels
• Resolving actions for damages, covering all harm caused during the period in which the violation occurred —a power added with the legal change in 2016.
• Reviewing the FNE’s decision when it prohibits a concentration operation through the hearing of a special review appeal.
• Approving or rejecting out-of-court settlements reached between the FNE and economic agents within the framework of an investigation.
• The power to issue reports mandated by special laws (such as those required by the Port Law when a single-operator scheme is implemented in berthing fronts via bidding, the General Telecommunications Law, among others).