Antitrust advisory under DL 211 — Anguita Osorio.
Merger control, cartel investigations, leniency and antitrust compliance programs.
DL 211 — Chilean Antitrust Law
Decree Law 211 is the Chilean antitrust statute. It defines anti-competitive conduct (cartels, abuses of dominance, exclusionary practices), governs preventive merger control, and creates the enforcement institutions: the National Economic Prosecutor (FNE) and the Free Competition Tribunal (TDLC).
Conduct caught by the law
Three categories define the bulk of TDLC and FNE casework.
DL 211 is broadly drafted: any act, agreement or practice that prevents, restricts or distorts competition — or tends to produce that effect — falls within scope. The case law has consolidated three principal categories of risk that companies must integrate into their compliance and M&A workflows.
Cartels
Agreements among competitors to fix prices, allocate markets, restrict output or rig bids. Most severely sanctioned, with individual criminal liability since 2016. Information exchanges in trade associations are a typical risk vector.
Abuse of dominance
Predatory pricing, exclusionary discounts, refusals to deal, tying and bundling, and other practices by dominant players that harm competition. Requires market-power analysis.
Merger control
Mandatory notification when transactions exceed FNE thresholds. Failure to notify (gun jumping) is an autonomous offense. The FNE conducts a Phase I / Phase II analysis with possible remedies or prohibition.
Compliance program — minimum components
Six pillars an antitrust program must cover.
- Antitrust policy
Documented policy approved by the board, communicated to commercial and senior teams, with clear no-go conduct (price coordination, market allocation, sensitive-information exchange).
- Trade-association protocols
Procedures for participation in industry forums: agenda screening, antitrust statements, withdrawal protocols and meeting minutes review.
- Sales and pricing controls
Approval workflows for pricing, discounts and distribution agreements; documentation of unilateral decision-making to defend against parallel-conduct allegations.
- M&A and joint-venture screening
Pre-closing antitrust due diligence: threshold analysis, gun-jumping safeguards (clean teams, hold-separate orders), and FNE notification timing aligned with deal calendar.
- Training and certification
Annual training for commercial teams, executives and board, with assistance and assessment records. Periodic re-certification is the market standard.
- Leniency procedure
A documented internal procedure to evaluate, decide and execute leniency applications when potential cartel conduct is detected, including legal-privileged forensic review.
Sanctions
Calibrated by severity and conduct type.
Sanction catalog
- Fines up to 30% of the sales associated with the product of the relevant market, or twice the economic benefit obtained.
- Cease and desist orders; modification or dissolution of acts and contracts contrary to the law.
- Prohibition from contracting with State bodies for up to five years.
- Individual criminal liability for cartel participants (imprisonment).
- In merger control: prohibition of the transaction or imposition of structural / behavioral remedies.
Frequently asked questions
What is DL 211?
Decree Law 211 is the Chilean antitrust statute that protects free competition in the markets. It defines anti-competitive conduct (cartels, abuses of dominance, exclusionary practices), regulates the merger-control regime, and creates the enforcement institutions: the National Economic Prosecutor (FNE) as investigator and the Free Competition Tribunal (TDLC) as adjudicator.
What are the most heavily sanctioned conducts?
Cartels — agreements among competitors to fix prices, allocate markets or limit output — are the most severely sanctioned conduct and the only one carrying individual criminal liability since 2016. Next come abuses of dominance (predatory pricing, exclusionary discounts, refusals to deal) and concerted or unilateral anti-competitive practices in vertical markets.
When is merger notification to the FNE mandatory?
Notification is mandatory when the parties exceed the thresholds set by FNE Regulation (Chilean sales in the past year). Closing without notification — when required — constitutes an autonomous offense (gun jumping) sanctioned with a fine, regardless of the substantive analysis of the transaction.
What sanctions can the TDLC impose?
Maximum fines reach 30% of the sales associated with the product of the relevant market or twice the economic benefit obtained. The TDLC may also order cessation of the conduct, modification or dissolution of acts and contracts contrary to the law, and prohibit contracting with State entities for up to five years. Cartels additionally carry individual criminal sanctions (imprisonment).
What is leniency (delación compensada)?
It is the program by which a party providing determinative cartel evidence may obtain full immunity from fines (first applicant) or significant reductions (subsequent applicants), subject to cooperation conditions. It is the most effective cartel-detection tool and has become standard corporate compliance practice.
How does DL 211 connect to corporate compliance?
A robust antitrust compliance program is the first defense against FNE investigations: competitor-engagement policies, training for commercial teams, control of sensitive information in trade associations, M&A pre-closing due diligence, and leniency procedures when conduct is detected. The TDLC values — but does not automatically excuse — the existence and operation of these programs.
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Eduardo Anguita Osorio
Managing Partner — M&A, corporate, securities law and financial regulation.
José Tomás Cuevas
Director of the Corporate Area — corporate, M&A, securities and strategic advisory.
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