An analysis two years after the entry into force of the Law that Improved the Competition System

In August 2016, Law 20,945 was enacted, which was aimed at improving competition with respect to the collusion cases that had taken place up to then. For mergers, the law established a new mandatory notice to be sent to the National Economic Prosecutor’s Office (FNE). Also, new sanctions for collusion between competitors (per se rule); criminalization of cartels, among others.

Two years after the entry into force of the Law, and according to information published by the National Economic Prosecutor’s Office, said Prosecutor’s Office has controlled 63 mergers, of which only 2 have been rejected, 8 approved with mitigation measures and 53 without mitigation measures.

The implementation of the “Per Se Rule” for the prosecution of unlawful agreements between competitors has been delayed, since the Competition Court (TDLC) has not yet issued any decision regarding acts performed after August 30th, 2016. The same applies to fines – which can amount to the double of the economic benefit, 30% of the sales during the corresponding period, or approximately 49.500.000 dollars if not possible to determine the above – since in order to reach these amounts, the facts must have taken place after the law’s entry into force.

Finally, regarding the obligation to report cross-shareholdings to the FNE, until now only one case is known, therefore more time is required to analyze this measure’s effects.