Cartels 2025 Comparisons

The main legal framework concerning competition law in Chile is Decree Law No 211 (DL 211). It has a general antitrust rule analogous to Section 1 of the Sherman Act.

Additionally, it includes a specific provision that establishes cartel conduct as a per se offence in certain scenarios, as it is not necessary to prove the anti-competitive effects of the conduct. It is classified as such in Chilean law, but it bears many similarities to a quick-look analysis, to the extent that it allows for rebuttal proof demonstrating that the agreement does not infringe competition law.

However, cartels can be analysed under the rule of reason in other hypotheses (exclusionary agreements or establishing trading conditions).

Both types of cartels are described in 1.4 “Cartel Conduct”.

Chile has a dual institutional framework regarding antitrust matters, with two specialised entities, one of which is responsible for enforcement, while the other plays a judicial role.

National Economic Prosecutor’s Office (Fiscalía Nacional Económica, or FNE)

The agency responsible for promoting and prosecuting all competition law offences is the FNE, a decentralised public entity, which is invested with a broad range of powers and the authority to investigate collusive conduct and also supervise merges.

The FNE’s powers include the following:

• investigation of infringements against competition law, including cartels;
• the right to bring legal action against cartels;
• the monopoly for criminal action against cartels;
• providing evidence to the Ministerio Público (MP) regarding criminal prosecution of cartels;
• managing Chile’s leniency programme, to promote cartel conduct self-report; and
• intrusive powers (such as dawn raids and intercepting communications), which require prior authorisation from both the TDLC (see below) and the corresponding duty judge from the Santiago Court of Appeals.

The last legal changes to its authority were made in 2016, when it acquired several powers to investigate cartels.

The FNE has publicly reported that it intends to incorporate further measures to track and identify collusive conduct, considering the technological innovations of the past years. A recent trend in this regard involves the study, investigation and potential sanction of algorithmic collusion.

Chilean Antitrust Court (Tribunal de Defensa de la Libre Competencia, TDLC)

The TDLC is the primary judicial institution responsible for overseeing matters related to competition law in Chile. The TDLC is a specialised court which incorporates five ministers, three lawyers and two economists. It was established under Chilean law in 2003.

It has the authority to rule on cases involving collusive practices, and it may impose fines and other sanctions. It also handles compensation claims for damages resulting from anti-competitive behaviour.

Appeals against its rulings are overseen by Chile’s highest judicial authority – the Supreme Court.

Supreme Court

The Supreme Court is the highest court within Chile’s judicial system. While not specialised in competition law, it exercises supervisory, disciplinary and administrative authority over the other Chilean courts, including the TDLC. It has the power to view and overrule TDLC sentences related to cartel matters. Consequently, its judgments have the greatest influence on the interpretation of antitrust law.

In addition to the FNE, private parties also have standing to challenge collusive conduct. To this effect, they must file a suit demonstrating a legitimate interest that justifies pursuing the respective claim.

Recently, case law has clarified that judicial standing requires a qualified standing; that is, the right to file the action belongs exclusively to those who have been affected by the violation of DL 211. Consequently, it has been ruled out that the action has a popular nature.

Nevertheless, the exercise of this action by a private party presents significant evidentiary challenges, given that it must prove conduct that is usually concealed or covered up by the potential perpetrators. As a result, this is not a power that is frequently exercised. In practice, private individuals tend to report the conduct to the FNE, which can initiate the corresponding proceedings through the filing of a complaint, if it has sufficient evidence to this effect.

Additionally, a private party may seek compensation for damages caused by a cartel through a follow-on damages procedure brought before the TDLC. However, compensation is only admissible when the anti-competitive act has previously been established by a final judgment.

The definition of “cartel conduct” is regulated in the DL 211, Article 3, letter a). The law defines collusion as an agreement or concerted practices between competitors that impact certain market variables.

Henceforth, the following hypotheses are established as typical hardcore cartel conduct. In Chilean law, they are considered as per se offences, but in practice they bear many similarities to a quick-look analysis, as outlined in 1.1 Legal Bases:

• price fixing (whether for sale or purchase);
• limitation of production;
• market or territory allocation; and
• bid rigging.

Each hypothesis can be criminally prosecuted.

Additionally, two other scenarios are regulated, which involve obtaining market power as an additional criterion. This reflects a less stringent standard compared to the one described above. The referred scenarios are agreements that, conferring market power, consist in setting trade conditions, or excluding actual or potential competitors.

Neither Chilean legislation nor case law provide exemptions for any specific industry. Therefore, antitrust law is uniformly applied, specifically regarding collusion, to all cartels and industries.

The statute of limitation is five years and this only commences once the market effects associated with the conduct have ceased. Consequently, the law regulates collusion as an ongoing offence.

The jurisdiction of the TDLC is limited exclusively to the national territory, a limitation that also applies to the FNE. The general rule is that jurisdiction can be exercised upon cartel conduct which produces effects within Chilean territory.

According to Chilean law, cartel conduct which has occurred in a foreign country can only be pursued according to Chilean law when it has any kind of effect in Chilean territory.

The aforementioned does not prevent international co-operation to make the pursuit of cross-border cartels more effective.

Chile does not have an international comity regulation in competition law, notwithstanding the authorities’ recognition of its importance in addressing the challenges of pursuing anti-competitive conduct that takes place outside national territory but produces effects in Chile.

However, the FNE’s legal powers include the possibility to enter into international co-operation agreements and memoranda of understanding (MOUs) with public institutions and universities for the purpose of mutual co-operation.

This allows the FNE to enter into agreements with foreign agencies or other entities aimed at promoting or defending competition law.

In exercising these powers, the FNE has entered into international co-operation agreements with the United States, Mexico, Argentina, Brazil, Peru, Spain and Morocco, among others.

Chilean law does not establish a particular or specific order for determining priority in the prosecution of cartels. Thus, each offence is pursued without distinction. There is therefore no difference in priority based on whether the cartel involves price fixing or bid rigging.

The same reasoning is applied to investigations, whether they are launched ex officio or based on leniency. Likewise, no distinction is made between domestic and international cartels.

Therefore, the priority, speed and implementation of various measures depend on the specific case at hand, rather than on any abstract distinction regarding the type of cartel being investigated.

The FNE has published the following guides related to cartel conduct and enforcement, which are available to both consumers and businesspeople.

• Regarding filling criminal complaints for collusion: “Internal Guidelines for Filing Complaints Regarding Cartel Conduct” (Spanish link).
• Concerning leniency: “Internal Guidelines on Leniency in Cartel Cases” (Spanish link / English link).
• Regarding trade associations: “Trade Associations and Competition Law” (Spanish link).
• Concerning fines: “Internal Guidelines on the Request of Fines” (Spanish link).

The FNE has regularly stated that its approach to cartel investigations is based on both (i) reactive and (ii) proactive measures, with most cases being initiated ex officio.

• Among reactive measures, the FNE considers instances such as complaints from private parties or leniency applications, which may contribute to starting an investigation.
• As for proactive measures, the FNE has various investigative powers, including:
1. requesting information from entities;
2. summoning individuals to testify; and
3. investigating data sources or information, in which the FNE’s intelligence unit plays a prominent role.

In addition, the FNE also has intrusive powers to enhance its investigations; however, the exercise of such powers requires the existence of critical and specific facts, as well as authorisation from the relevant judicial authorities.

Additionally, the FNE also maintains co-operation agreements with other public entities; such as the Civil Registry and Identification Service, the Central Bank of Chile, and the National Customs Service, among others.

Regarding more recent investigative activities, the FNE has announced the development of an intelligence unit (IU), which specialises in the ongoing investigation of collusive conduct. To this end, it employs the latest available technological tools to detect any type of behaviour that warrants investigation. For example, the FNE uses screening techniques or economic analyses to clarify whether a matter merits particular attention from the enforcement authority.

In 2009, intrusive powers were granted to the FNE in order to provide it with tools for detecting and prosecuting cartels. According to the FNE’s 2024 Public Report, since these powers were conferred, 74% of collusion cases have been preceded by intrusive measures.

Intrusive measures are subject to a dual admissibility control: the National Economic Prosecutor must obtain prior authorisation from both the TDLC and a justice of the Santiago Court of Appeals, provided there is specific and serious evidence of the existence of collusion.

Once granted, the police are authorised, under the direction of an FNE official, to:

• enter public or private premises;
• search and seize all types of objects and documents that may prove the existence of collusion;
• authorise the interception of all types of communications; and
• order any company providing communication services to supply copies and records of the communications transmitted or received by them.

Companies are required to co-operate with the imposed measures, and public force may be used in the case of resistance. However, there are several safeguards in place that follow the same guarantees as in criminal proceedings. In fact, DL 211 makes the same guarantees established in the Criminal Procedure Code applicable to this matter.

For instance, it establishes a regulated procedure that includes identifying the officials conducting the measures, inviting the property owner to witness the act, issuing a certificate verifying the search, limiting the validity of the search warrant to a maximum of ten days, and requiring that seized objects and documents be sealed and held in custody.

Another important limitation is that the information obtained through intrusive measures may not be used by the FNE in any other investigation unless additional judicial authorisation is obtained.

Finally, in accordance with the FNE’s Internal Investigation Guidelines, any evidence obtained through an intrusive measure must necessarily be included with the complaint. It also states that, within ten days from the date on which the resolution ordering the closure of the investigation becomes final, all objects and documents obtained through intrusive measures that remain in the FNE’s possession must be made available to the affected party, as well as any media containing recordings of intercepted communications.

The FNE has the authority to demand the application of criminal penalties in the event that its investigative work is obstructed, such as by providing false information or unjustifiably refusing to comply with the obligation to submit the requested documents.

Chilean law does not establish a specific parameter indicating when this obligation begins, but it can reasonably be inferred that it is triggered, at the very least, from the moment the authority makes the respective request.

In a recent conviction for refusal to provide all the required information in a merger control case, the TDLC imposed a fine of approximately USD2.5 million on the offender, taking into account the maximum penalty, which amounted to 30% of the offender’s sales.

Chilean law establishes the right to a defence as a constitutional guarantee. However, during the initial stages of an investigation and prior to a formal accusation by the Economic Prosecutor’s Office, preliminary investigative actions may be carried out with or without the presence of legal counsel.

Nonetheless, the interested party may request legal assistance from a competition law expert in order to appropriately reply to the authority’s requirements. This legal support can take various forms:

• Regarding requests for information – The involvement of legal counsel can be crucial in accurately identifying what the authority is requesting, determining what may be protected by trade secrecy, and recognising which information should be marked as confidential to avoid harming the client’s competitive standing. It can also be helpful to file an opposition concerning the disclosure of information requested. Such opposition must be submitted to the TDLC, which rules on the matter without a formal trial during its next scheduled session. These requests have generally been denied; however, in most cases, the tribunal has ordered the Prosecutor’s Office to maintain the confidentiality of any information deemed to be of a confidential nature.
• Regarding summons to testify – The attorney can attend with the interviewee and supervise that their rights are respected. The attorney can also request a copy of the declaration. However, the attorney cannot guide the interviewee’s answers.
• Regarding dawn raids – Legal counsel can play a key role in asserting the client’s rights and ensuring that procedural safeguards are observed, an essential condition for the legality of the authority’s actions.

Besides intrusive powers, the FNE can request documents and declarations related to facts that warrant investigation. Regarding these, the following distinctions can be made.

Statements

The FNE may summon individuals to testify or request information from the relevant parties. If such requests are not complied with, the FNE may issue a warning and request the imposition of fines or arrests.

Requests for Information

Requests may be addressed either to the party directly affected by an investigation or to any individual or entity that could contribute relevant background information for the procedure.

The resolution ordering the respective measure must clearly indicate the specific information being requested. If the request is likely to cause harm to the party involved or to third parties, a petition may be filed with the TDLC to have the request annulled.

Generally, the party under investigation must be notified of the initiation of proceedings against them, and the fact that investigations are generally public, although the prosecutor has the authority to order that certain parts of the case file be kept confidential or under seal.

In fact, the prosecutor, with the approval of the TDLC, may determine that an entire investigation be classified as confidential and — with the corresponding TLDC authorisation — may also decide not to notify the affected party of the initiation of the investigation. Both powers are typically exercised in collusion cases, due to the level of secrecy required in such investigations.

The deadline to deliver the information may be extended upon a justified request, which will also be registered in the investigative file.

Intrusive Powers Authorisation

Any intrusive power of the FNE requires prior authorisation from both the TDLC and the corresponding duty judge from the Santiago Court of Appeals. For the judge to grant authorisation, serious and specific evidence indicating the existence of a collusive practice must be identified.

Attorney-client privilege is governed by the general rules of the Chilean legal system.

Thus, the affected party may have legal counsel during the investigation, although the relevant steps may also be taken without legal assistance. Accordingly, the role of counsel is as outlined in 2.4 Role of Counsel. There are certain activities which entail information protected by professional secrecy, as noted in 2.2 Dawn Raids/Search Warrants.

All Chilean attorneys are authorised to litigate before the competition authorities. Attorney-client communications are protected by professional secrecy, which applies to both external and in-house counsel.

Concerning the non-self-incrimination principle, this primarily pertains to criminal law. However, since criminal sanctions have been reinstated for hardcore cartels, this right could also apply to such cartels within the competition law framework and not only in criminal proceedings.

Even though requests from the authority can be opposed, this is not frequently attempted, considering that the TDLC generally rejects said opposition.

That said, the Chilean legal framework provides various consequences when the supervisory role of the FNE is obstructed or hindered:

• if a person is summoned to testify and fails to appear without justification, the imposition of a fine may be requested; and
• if replies to the FNE’s information requests are sent after the deadline, or only partially provided, a fine may be requested for each day of delay.

In both scenarios, if the investigative work of the FNE is obstructed, the authority may request the arrest of those responsible as a coercive measure. Such an order must be granted by a criminal court judge, at the request of the National Economic Prosecutor, with prior authorisation from the TDLC.

Additionally, a criminal penalty is established in cases where relevant information is concealed or false information is provided to the FNE, thereby undermining its supervisory functions.

In such instances, the National Economic Prosecutor may forward the appropriate documentation to the Public Prosecutor’s Office, which is deemed as a formal complaint, and the matter will thereafter be governed by the general rules of criminal law.

A similar approach applies where false or fraudulent information is submitted in the context of the leniency programme or a collusion investigation, and such cases may also result in criminal sentences.

As established in 2.5 Obtaining Evidence/Testimony, individuals or entities subject to the FNE’s demands may request that all or part of the information provided should be treated as secret or confidential, which can also be declared motu proprio by the national prosecutor.

It is also important to emphasise that investigative files are only accessible to the affected parties. This aims to preserve the confidentiality or secrecy of any information that could impact the involved parties or hinder the natural market development.

Arguments against enforcement actions can be made at any stage of the investigation, as there is no legal formality required to do so. However, it is quite difficult during the investigation phase, given the confidentiality typically surrounding cartel investigations.

By contrast, once the FNE files the corresponding complaint for collusion before the TDLC, all procedural rights of the accused come into effect, and it is the Prosecutor’s Office that must prove the charges.

In the judicial phase, the defendants are entitled to all legal rights of defence, including a statutory period to raise any exceptions or defences, a statutory period to submit evidence, and the opportunity to make all types of filings — just as in any adversarial proceeding before a court of law.

One of the key strengths of Chile’s institutional framework is that the body responsible for determining whether or not a violation has occurred is a specialised court of law, which ensures full guarantees of due legal process.

Chile has a leniency system (delación compensada), which establishes specific requirements and benefits for those who disclose anti-competitive agreements.

Consequently, the law requires that applicants:

• Provide precise, truthful and verifiable information that effectively contributes to the establishment of sufficient evidence to support a collusion complaint before the TDLC.
• Refrain from disclosing the leniency application until the FNE has either filed the complaint or decided to close the case, unless the authority expressly agrees to such disclosure.
• Cease the collusive conduct immediately upon submitting the leniency application.
• Be the first among the responsible parties to provide the relevant information. The second applicant may only be eligible for a reduction in fines, not full immunity.

Acceptance into the leniency programme is subject to the FNE’s assessment. In this regard, it evaluates if the submitted information is sufficiently robust to constitute the necessary evidence for filing the corresponding complaint. Thus, even though the law sets out express requirements for participation, a certain degree of discretion is provided to the FNE.

Regarding its use, cases in which leniency has been granted have typically resulted in a final judgment. Also, it is worth noting that the FNE has reported that, since 2009, leniency has been applied in around 40% of its collusion complaints.

The Chilean system also includes a “marker” (known in Chilean law as Indicador de Postulación), which signals the initiation of the leniency process and determines which party was the first to provide relevant information. Certain requirements must be met in order to obtain the marker and, once granted, it establishes priority within the leniency system.

Rather than constituting an amnesty system, compliance with the requirements of the leniency programme grant immunity from antitrust and criminal penalties. Meeting the conditions outlined in 3.1 Leniency allows for full or partial exemption from the sanctions established by law.

If the applicant is the first to disclose the violation, immunity may extend to the entirety of the applicable fines and penalties. Additionally, if the prosecutor requests a fine, the TDLC may not impose a higher amount. However, no applicant can benefit from the programme if they were the organiser of the illegal conduct, coerced others into participating, or submitted false information in order to obtain the benefit.

Only one second applicant may receive leniency benefits, and in their case, the immunity is not full but limited to a reduction of up to 50% of the applicable fine.

In this scenario, and in addition to meeting all previously described requirements, the second applicant must also provide new and additional information, beyond what was submitted by the first applicant.

It is important to note that the applicant is not exempt from civil liability for damages resulting from the anti-competitive behaviour.

As previously mentioned in 3.1 Leniency, benefits under this programme have been granted in approximately 40% of the applications submitted since 2009.

In general, the courts have upheld the FNE’s decisions to grant these benefits and the Supreme Court has overturned such grant in only one case, after concluding that the beneficiary organised the illegal conduct and coerced the other parties to participate in the cartel.

Chilean regulations do not include a whistle-blower system, nor do they offer incentives for third parties to report collusive agreements. That said, it is viewed positively when a company or entity develops a compliance system that enables the detection, exposure and reporting of any conduct contrary to competition law, including collusion.

The evidence obtained from employees or dependants of an investigated entity is subject to the same criteria established in 2.5 Obtaining Evidence/Testimony. The same requirements and limitations apply as when the information is requested from any other private individual.

It is possible for the FNE to request information directly from any subject, even from those that are not being investigated.

Concerning requests for information outside the national territory, the FNE does not, by itself, have the jurisdiction to coercively enforce compliance with its orders in this area.

However, there are reciprocal co-operation programmes that authorise the sharing of information or carrying out of actions outside national territory, as mentioned in 1.7 Principles of Comity. Subjects who reside within Chile must send the required documents, if they have them.

There are no co-ordination mechanisms between the FNE and the TDLC, precisely due to the nature of these institutions (one being administrative and the other judicial).

The Prosecutor’s Office does not have any procedural benefit or advantage over its counterpart in antitrust proceedings.

Nevertheless, there is the possibility for co-operation between oversight entities within the national territory for the purpose of reporting the existence of offences against free competition.

Additionally, the FNE may also contribute evidence to the Public Prosecutor’s Office for the criminal prosecution of cartels.

Besides agreements with other international agencies – as stated in 1.7 Principles of Comity – there is no permanent record of co-operation with antitrust agencies in other jurisdictions, with the exception of international co-operation agreements and permanent contact and communication in international meetings, such as those organised by the OECD and the International Competition Network (ICN), among others.

Nevertheless, the FNE has emphasised that international co-operation has been relevant in certain investigations:

• the gathering of evidence in Spain, related to the market for aerial fire-fighting and suppression services;
• the use of wire taps in the Netherlands in the investigation of a cartel case related to salmon; and
• the help of the FBI in decrypting a device seized during an investigation of a cash-in-transit companies cartel.

Antitrust Offences

Criminal charges can be filed for antitrust offences and the necessary steps in order to file a complaint or indictment depend on the specific offence reported. All proceedings are handled by the competent criminal court (juzgado de garantía) and, aside from the procedural differences concerning how each process begins, they follow the same procedural rules, which redirect to general criminal jurisdiction.

Being involved in a hardcore cartel is classified as a criminal offence. To be criminally pursued, a preceding final judgment which confirms the existence of the cartel is required.

The exclusive authority to file a criminal complaint for collusion rests exclusively within the FNE, precluding other individuals or institutions from initiating such legal action. As a general rule, the decision to file a criminal complaint lies within the discretionary power of the FNE; however, if the FNE chooses not to proceed, it must issue a reasoned decision explaining its rationale. That said, there are certain cases in which the FNE has to file a criminal complaint; specifically, when the collusive agreement severely undermines free competition in the markets.

In such instances, the FNE has established certain cumulative criteria that are required in order to make it mandatory to file a criminal complaint:

• the cartel has been sanctioned by a final judgment as an infringement of letter a) of Article 3 of DL 211;
• the economic effects of the conduct are substantial and capable of causing systemic market impact;
• the conduct affects goods or services of mass consumption or basic necessity; and
• at least one of the following conditions is met –
1. the conduct was sustained over a significant period of time (defined as three or more years); and/or
2. the conduct affected the entire, or a large portion of, national territory.

Since the standards of criminal law are applicable, it is important to emphasise that in each case, the burden of proof lies with the accusing party, which in this context is the complainant (the FNE) and the public prosecutor. The standard of proof is that of beyond a reasonable doubt, as applies in all criminal prosecutions.

Other Scenarios

Besides collusion, there are other scenarios in which a criminal complaint can be filed.

Provision of false information to the FNE

In cases where false information is provided, the FNE may refer the relevant background information to the MP, which is the entity responsible for overseeing compliance with Chilean criminal law. This referral acts as a formal complaint for all legal purposes.

Enforcement measures for obstructing the FNE’s supervisory functions

As indicated in 2.7 Non-Cooperation, the FNE may request the imposition of arrests, with prior authorisation from the TDLC and following the approval of a judge with criminal jurisdiction. While this does not constitute a formal criminal complaint, it may result in measures that restrict individual liberty.

Breach of confidentiality of information obtained by the FNE

Under the framework of administrative criminal liability, DL 211 establishes criminal sanctions for FNE agents if there is a breach of confidentiality or secrecy of the information obtained through the FNE’s intrusive investigative powers. In such cases, criminal penalties may also be applied.

In terms of civil actions, these can be brought by individuals or entities harmed by an antitrust violation.

Not only direct victims are entitled to file such claims, consumer associations and the National Consumer Service (Servicio Nacional del Consumidor, or SERNAC) also have standing. These cases are handled by the TDLC through a fast-track procedure.

To file a civil claim, there must be a final judgment, which relies on a prior antitrust ruling as its legal basis. Consequently, the TDLC will base its ruling on the judgment that serves as a precedent. Although the burden of proof lies with the party seeking damages, the facts established in the conviction judgment will serve as precedent in the civil proceedings, in which evidence will be assessed according to the rules of best judgment.

In the prosecution of cartels, expert input plays a key role within Chile’s dual institutional competition law framework.

Both the TDLC and the FNE rely on economists to ensure that investigations and legal proceedings related to anti-competitive conduct are carried out effectively.

Among its personnel, the TDLC has five ministers, three of whom are lawyers and two of whom are economists. The FNE also seeks to ensure that, in addition to legal experts, there is a relevant support team for economic analyses of the cases it investigates.

That being said, it is common for both the investigated parties and the FNE to hire experts to prepare legal and economic reports for the cases in which they are involved. Additionally, the TDLC may order expert reports as a means of evidence.

Under the general principles of Chilean procedural law, the simultaneous handling of parallel cases based on the same facts is not ordinarily allowed. There are specific defences (collateral estoppel) designed to prevent such duplication when the same parties, facts and legal grounds are involved.

Similar defences may be applied to avoid reopening a case in which a final ruling has already been issued (res iudicata). Accordingly, when collusive behaviour is alleged, legal action must be brought against all parties involved within the same proceeding.

Lastly, following general procedural rules, evidence obtained in one proceeding may be used in another, provided it meets the required legal and procedural standards. For example, a copy of testimonial evidence given in a different case may be submitted and considered as an indication or clue, but it cannot be regarded as testimonial evidence in a new proceeding, since the requirements for that type of evidence are not fulfilled.

The FNE does not have any authority to impose fines or enforce their payment. As such, the TDLC holds the authority to impose fines on cartels that have violated competition law.

Considering that the development of investigations is kept secret, it is not possible to give the exact number of investigations that have concluded in an indictment. However, the FNE has initiated virtually all cartel enforcement actions and has maintained a high success rate in the matter.

It is possible to reach settlements with the FNE in every competition law case, including collusion. A settlement can also be agreed upon during court proceedings. Every settlement must be approved by the TDLC and that entity will acquiesce, given that the agreement does not affect competition. 

However, these hypotheses are not common in cartel cases, mainly because of the magnitude of the conduct involved.

Chilean law provides that parties found guilty of collusion may be barred from contracting with centralised or decentralised state entities, or from being awarded public concessions, for a period of five years following the issuance of a final judgment.

The conviction may also carry civil liability for the damages caused by the conduct, which is pursued before the same TDLC. Out-of-court settlements, conciliation and leniency (or compensatory collaboration) may release the involved party from that respective liability and make it more difficult to pursue compensation for damages.

Sanctions include fines, equivalent to up to 30% of the offender’s sales in the product or service line associated with the infringement during the period in which it occurred, or up to twice the economic benefit obtained from the infringement. If neither of these amounts can be determined, the fine may be up to 60,000 UTA (approximately USD51,898,484).

In addition, the TDLC may amend or terminate acts or contracts that contravene competition law; order the modification or dissolution of private legal entities involved in collusion; and impose other preventative, corrective or prohibitive measures deemed appropriate by the court.

Furthermore, in cases of hardcore cartels, criminal courts may also impose prison sentences ranging from three years and one day to ten years. Until pending regulations are enacted, criminal liability can only be pursued against the natural persons who participated in the conduct, and not against the legal entity.

When seeking sanctions, the FNE takes into account various factors, most notably, the magnitude and duration of the conduct, the offender’s market power, the economic benefit derived, and the involvement of trade associations, among others.

In Chilean history, there has not been pursuit of a criminal liability for cartel conduct, so there is no record of any actions or measures taken in that regard. As a result, the most significant penalties have come from proceedings before the TDLC.

The largest fine imposed for an antitrust violation was USD63.3 million, related to collusion in the poultry market. This was followed by a USD34.3 million fine in the maritime vehicle transport cartel case.

There is no specific regulation that establishes the consequences of an effective compliance programme in determining liability for antitrust violations. As a result, in the absence of an explicit legal provision, the Supreme Court has held that the existence of a compliance programme can only be considered as a mitigating factor, but not as a ground for exemption from liability.

Furthermore, the FNE has published a guide which outlines what could be considered an effective and well-developed compliance programme, that would be taken into account in the case of an investigative scenario.

Nevertheless, the difficulty lies in assessing how a compliance programme can be deemed effective if collusive conduct has nonetheless occurred. For instance, the TDLC has denied fine reductions based on the existence of a compliance programme, concluding that the occurrence of collusion demonstrates that the programme in question was not effective.

As previously stated in 4.7 Issuing Civil Complaints, once liability has been established for collusive conduct, affected individuals may seek appropriate compensation for damages. In this regard, consumers may take action individually or collectively in order to claim appropriate redress.

In antitrust law, and especially regarding cartels, it is possible to file an appeal (recurso de reclamación) to the Supreme Court for a review of the TDLC’s decision, which is akin to a second-instance procedure.

The Supreme Court may examine the applicable law and the background information submitted during the proceedings, applying the relevant procedural rules for proper adjudication of the appeal.

About 70% of the TDLC’s antitrust rulings have been challenged, and the court’s decision has been upheld in about 75% of cases.

In recent years, investigations by the FNE have taken around 2.9 years on average, taking into account both archived cases and those in which an injunction has been filed before the TDLC.

However, judicial proceedings also take considerable time, as each case judged by the TDLC – from the indictment to the judgment – is projected to take almost three years to resolve. According to the latest TDLC yearbook, the average resolution time for a contentious case is 1,011 days.

Finally, the appeal stage before the Supreme Court adds an additional year or so to the process. This implies that, on average, the prosecution of a cartel takes around six years, a figure which may increase or decrease depending on the specific circumstances of the case.

The regulation of civil action associated with antitrust matters is as established in 4.7 Issuing Civil Complaints. Additionally, once a civil action has been initiated, it is governed by civil law regulation, although through a fast-track procedure in which facts established in the antitrust judgment are considered as proved.

Since 2016, it has been possible to file class actions before the TDLC so that consumers can claim civil damages resulting from anti-competitive conduct. Although not many civil liability claims have been presented to the TDLC, this power has frequently been exercised whenever the collective or diffuse interest of consumers is affected.

On the other hand, consumer associations are granted legal standing to bring actions, whether in contentious or non-contentious proceedings, a fact that has been upheld on various occasions by antitrust case law.

The law expressly states that “the indemnity for damages shall include the ones caused during the period in which the infringement has occurred”. However, the law does not establish rules for indirect purchasers. It is possible that future antitrust judgments may shed some light on this matter.

The facts established before the TDLC will be considered as facts of the liability case, even those linked to evidence provided by government investigations.

There is currently no significant register of case law involving claims for damages following rulings in competition law matters. Since 2016, when the TDLC was granted jurisdiction for such cases, only about 20 civil claims have been filed. Among them, only two have reached a decision by the TDLC.

As a result, there is limited information on procedural trends or consistent practices, other than that the facts established in the preceding competition law ruling remain unchanged. Only one case has resulted in a final judgment, with the entire process taking approximately four-and-a-half years. The TDLC ruling was given three-and-a-half years after the indictment, followed by about one year of revision review at the Supreme Court. Another case in which the TDLC issued a decision took roughly a year and a half, but that ruling was also appealed and is therefore not yet final.

In short, the small number of cases that have progressed all the way to a final judgment make it difficult to draw broader conclusions or define general procedural standards. For this reason, it would be necessary to monitor and analyse the development and outcomes of trending cases to reach a comprehensive conclusion.

Chile does not have a discovery procedure; witness testimony is submitted by the parties during the evidentiary period. Nevertheless, the parties may request, as an evidentiary measure, the production of documents held by the opposing party.

The determination of the amounts that lawyers may receive for a favourable outcome is made on a case-by-case basis. That said, if one of the parties is entirely unsuccessful or lacked plausible grounds to litigate, it may be ordered to pay the legal costs, which are set by the court and, unless otherwise agreed, benefit the prevailing party rather than their attorneys.

In general, those who lose a lawsuit may be ordered by the court to pay the legal costs of the proceedings, which include the opposing party’s attorneys’ fees.

As for the fees and costs of the losing party’s own attorney, these are subject to what has been agreed between the parties.

Judgments issued by the TDLC in damages cases may be reviewed by the Supreme Court. However, there are not enough cases to establish general guidelines, except to note that the two cases decided to date have been subject to appeals for review.       

Information sharing is not regarded as a cartel offence per se, although it may serve as evidence of one, as a facilitator of collusion, and may also be pursued as an independent infringement of competition law.

Certain guidelines have been established to help identify which types of information require greater caution – especially in specific contexts. In this regard, the FNE has outlined in its Guidelines for Trade Associations the types of information considered particularly sensitive, and therefore, any exchange or disclosure of such information should be handled with care.

The FNE’s assessment concerning information sharing focuses on several key factors:

• market conditions;
• the nature of the information;
• the parties involved in the exchange;
• how often and when the exchange occurs;
• the method of exchange; and
• the actual or potential effects of the exchange.

Moreover, even if the conduct does not constitute information sharing by itself, it is worth noting that Chilean law also sanctions interlocking, due to the risks it presents as a facilitator of collusion or in terms of sharing sensitive information.

As indicated in 1.2 Regulatory/Enforcement Agencies and Penalties and 2.1 Initial Investigation, the FNE considers that one of the key issues to address regarding new cartels relates to the use of AI and the potential emergence or formation of algorithmic collusion.

In this regard, it has also advocated for the implementation of new technologies that allow for the most effective investigation of such scenarios. Likewise, the development of an intelligence unit with an expert specialised in technological matters underscores the importance that has been placed on this topic moving forward.

In Chile’s legal system, monopolisation practices are equivalent to abuse of dominant position, which can in turn be categorised as either exploitative or exclusionary conduct.

In the case of exclusionary practices, it is possible for economic agents to be involved in collusion without the intent to fix prices, allocate market shares, or manipulate bidding processes, but solely with the purpose of excluding a competitor.

In such cases, Chilean law allows for sanctions – but not as a hardcore cartel – against those economic agents who, through an agreement or concerted practice, aim to exclude a competitor. In such instances, the conduct can only be sanctioned if the practice has conferred market power to the parties involved.

Competition authorities typically focus their attention on activities where there is significant market concentration, involving homogeneous goods or services, as it is easier to reach an agreement and the potential gains from doing so are greater.

The most recent major cartel cases currently under investigation and of particular relevance have occurred in the gas market, the food delivery market, the casino market, and the bread market, among others.

The use of instant messaging platforms is becoming increasingly relevant to identify hypotheses that could be subject to investigation by the FNE. In this regard, this type of communication was among the key background elements considered by the prosecuting authority when filing its claim in the casinos case (2024), which is still ongoing.

That said, there is no formal or specific guideline for safeguarding or preserving instant messages, beyond the general provisions of the leniency system and the possibility of requesting telecommunications institutions to provide the relevant communications.

In any case, there remains the possibility of requesting the arrest of anyone who obstructs the FNE’s oversight efforts. However, since this requires authorisation from the TDLC and a ruling by a criminal judge, such a measure appears to be corrective rather than preventative.

In general, if any conduct is identified as an agreement between competitors, there is nothing preventing it from being sanctioned as such or, alternatively, as a violation of the general prohibition against anti-competitive conduct. That being said, to date, there have been no cases in Chile that would allow for the establishment of clear criteria in this matter.

The FNE’s latest report indicates that since 2009, around 40% of its enforcement actions have involved the use of leniency applications. The latest public report by the FNE – which covers the period from January 2024 to March 2025 – indicates that, out of 49 investigations, 18 were initiated ex officio, representing approximately 36.73% of total filings. Between January 2023 and March 2024, out of a total of 33 investigations, nine were initiated ex officio, equivalent to around 27% of total filings.

Thus, there has been an observable increase in this form of initiation. However, the enforcement authority itself has stated that leniency remains one of its main tools against cartels. Consequently, said increase does not necessarily reflect a corresponding development in the use of the leniency programme.

Most FNE investigations are national, due to the reasons set out in 1.6 Jurisdiction. However, there are certain cases that extend beyond national borders.

For instance, the “Navieras” case involved an investigation into imports that produced anti-competitive effects in Chile. The cartel in question was sanctioned not only within the national territory, but also in the United States, Australia and the European Union.

Recently, the FNE has filed a complaint concerning market allocation involving multiple national territories, including Chile, Egypt, Peru and Ecuador. However, such cases are relatively uncommon, with the majority of investigations focusing on conduct that occurs within national territory.

ESG criteria are not explicitly defined as a standalone consideration within competition law frameworks. In essence, these criteria may be viewed favourably by the authority, but they do not carry any specific antitrust effect.

In general, setting ESG standards within an industry may fall within the normal activities of a trade association. However, this does not preclude such actions from being investigated if they conceal an attempt to restrict free competition or impose unjustified barriers to market entry.

Each case must be assessed individually, and it should be verified not only that an agreement exists, but also that it confers market power on the competitors involved.

The most recent enforcement actions concerning alleged conduct during the COVID-19 pandemic period have only recently come to light, due to the time required to conduct thorough investigations.

None of the cartel cases are justified by, or directly related to, post-pandemic inflationary pressures or supply chain issues. This is evident from the recent complaints filed by the FNE in the casino gaming market cartel case; the gas market cartel case; and, more recently, the delivery market case.

It is important to note, however, that these cases are still under review, and therefore it cannot be confirmed that the alleged conduct actually took place. Market conditions in Chile are conducive to collusive behaviour due to the size of the economy, which results in relatively high concentrations in many markets – making collusion easier to achieve.

Nevertheless, the severity of sanctions, the effectiveness of competition agencies in detecting and punishing cartels, and the growing competition culture have led to a substantial decrease in such cases over the past two decades.