New FNE consultation form regarding the notification of the acquisition of a competitor’s shareholding

On December 1, 2023, the National Economic Prosecutor’s Office (“FNE”) enabled a specialized form to answer queries regarding the obligation to report on the acquisition of stakes in competitors, as provided in Article 4 bis of Decree Law No. 211[1]. This new communication channel will be accessible through this link, constituting the only channel through which the FNE will answer questions related to this matter. Its objective is to resolve in an agile and efficient manner the concerns of those involved in these transactions.

Article 4 bis of DL 211 imposes the legal responsibility to report to the FNE all acquisitions of interests in competitors made by companies or entities that meet the following criteria:

• The acquisition must be made by a company or any entity belonging to the same business group.
• This acquisition must represent a direct or indirect participation of more than 10% in the capital stock of a company that is a competitor of the acquirer or any entity of its corporate group.
• Both the acquirer – or its corporate group – and the acquired entity, separately, must have exceeded 100,000 UF (CLP 3,650 million approx.) in revenues during the last calendar year.

If these requirements are met, the acquisition of a stake must be reported to the FNE no later than 60 days after the transaction is completed. It is essential that companies comply with this obligation to report acquisitions of stakes in competitors. This ensures that they are not subject to investigations related to acquisitions that may violate Article 3 of DL 211, and, ultimately, to avoid the imposition of sanctions established in Article 26 of the same legal body, among which are contemplated the modification or termination of acts or contracts contrary to the law and fines for tax benefit.

If you require further information and/or assistance in formulating questions to the FNE regarding acquisitions of competitors, please contact our Antitrust team.

[1] Decree Law No. 211 of 1973, which establishes rules for the defense of free competition (“DL 211”), Article 4 bis.- “The acquisition, by a company or any entity member of its corporate group, of a direct or indirect participation in more than 10% of the capital of a competing company, considering both its own participations and those administered on behalf of third parties, must be reported to the National Economic Prosecutor’s Office no later than sixty days after its perfection. The National Economic Prosecutor may initiate an investigation with respect to such acts in order to verify violations of Article 3.

The reporting obligation set forth in the preceding paragraph shall only apply in the event that the acquiring company, or its business group, as the case may be, and the company whose interest is acquired have, each separately, annual revenues from sales, services and other activities of the business that exceed one hundred thousand unidades de fomento in the last calendar year.

In the event that the reporting obligation set forth in this article is violated, the measures set forth in article 26 may be applied, as well as such preventive, corrective or prohibitive measures as may be necessary”.