Noticias

The Fiscalía Nacional Económica (FNE) launched today the “Internal Guidelines for Filing Criminal Claims for Cartels”, disclosing the criteria under which the FNE will exercise its authority to file criminal claims for cartel offences. This new legal prerogative conferred to the FNE by law No. 20,945, has entered into force in August 2016, reintroducing a criminal cartel offence into Chilean competition law.

As a general rule, the submission of a criminal claim is not compulsory, unless the collusive agreement determined by a final judgement of the Competition Tribunal (“Tribunal de Defensa de la Libre Competencia”) is considered by the FNE to “considerably hinder competition in the markets” as provided by subsection two of article 64 of the amended Law Decree No. 211.

The Internal Guidelines set forth the criteria the FNE will observe in order to assess whether the facts of a cartel case meet this parameter. Secondly, it makes public various factors the FNE will take into account to decide to file a criminal claim to prosecute the offence or, as the case may be, to justify the determination not to file a claim with a reasoned decision. Such elements include the magnitude of the effects of the conduct, the attainment and size of economic benefits, the extension of the agreement and the nature of the market, among others.

A draft of the Internal Guidelines was submitted for public consultation in February, 2018. The FNE received comments from the International Bar Association’s Cartels Working Group, the American Bar Association Sections of Antitrust Law and International Law, by the Mexican Federal Competition Authority (COFECE) and the Chilean Public Prosecution Office (Ministerio Público), among others. The updated version of the document published today takes into account several of those contributions.

The Internal Guidelines enters into force as from today.

The English version of the Internal Guidelines is available here.