1. Introduction In July, 2014 the OECD Secretariat launched a report called “Assessment of Merger Control in Chile”. This report analyzes the Chilean merger control system, identifies its chief problems and makes recommendations in order to overcome such shortcomings. The main conclusion of the report is that the Chilean merger control regime “lacks transparency, legal certainty and predictability”1. Following such statement, the OECD Assessment suggests several proposals in order to correct the regime’s failures. 2. Main Recommendations a) Add the merger control regime to the Competition Act (DL 211). b) Within the scope of Merger Control:
- Make a legal definition of “Concentration Operations”, in order to identify the operations that will be under the competition authorities’ scrutiny;
- Set forth a merger notification system before the enforcers. A mandatory or hybrid2 notification regime is recommended. Likewise, sanctions should be established in case of failure of notification.
- Establish notification thresholds.
c) Regarding the Review Powers and Procedures:
- Adopt a two-phase specific merger procedure. In the first stage, unproblematic operations would be assessed and cleared. In the second, only complex mergers requiring a substantive in depth analysis would be evaluated. The report recommends the reviewing powers to be exercised by the National Economic Prosecutor (“FNE”) and the Antitrust Court (“TDLC”).
- The OECD Assessment also proposes two different models implementing the two-phase procedure:
- Option 1: Phase I before the FNE, and Phase II with TDLC;
- Option 2: Phase I and II before the FNE, and judicial review exercised by the TDLC.
1 Assessment of Merger Control in Chile, Report by the OECD, OECD 2014, p.7 2 Compulsory system if certain thresholds are achieved.