ADMINISTRATIVE OR JUDICIAL PROCEDURES

The National Economic Prosecutor's Bureau is the investigative agency in charge of directing the investigations it may deem appropriate to prove any violations to the Competition Act. The National Economic Prosecutor may initiate an investigation ex officio or upon a complaint. The Prosecutor first undertakes a preliminary examination of the matter to determine whether it raises a question under any of the provisions of the Act. If upon examination, the Prosecutor believes that there has been a violation of the provisions of the Act, he will initiate an inquiry into all such issues he deems appropriate to determine the facts.

Although the FNE has to examine the admissibility of the complaints it receives, it is not obliged to take action on each of them.

The FNE, prior notice to the Chairman of the Competition Tribunal, may order that investigations initiated ex officio or upon a complaint be dealt with as confidential. Also, provided the Competition Tribunal has approved so, the National Economic Prosecutor may direct that no notice be given to the affected party of the initiation of the investigation.
The FNE may request the collaboration of any public servant and public service, and of any state enterprises, all of which are compelled to cooperate. The FNE can also request from them background information it may consider necessary for the investigations or complaints' examinations it is carrying out. Moreover, the FNE may request information from private parties. The FNE may also summon to declare or request the declaration in writing of the representatives, managers, advisors and dependants of the entities or persons that might have information about acts or agreements that are the object of a FNE's investigation.

Previous to the latest modifications of the Competition Act, the FNE could not be granted search warrants and therefore searches were performed on premises only on a voluntary basis. The 2009 amendments have radically improved the investigative tools of the FNE, specifically for cartel investigations, giving the National Economic Prosecutor the power to obtain warrants to intercept communications, perform dawn raids and search and seize properties. The amendments have also introduced a leniency programme for cartel enforcement which empowers the FNE to reach agreements with perpetrators and to grant full immunity to the first applicant and a substantial reduction of fines to subsequent leniency applicants .

Once the investigation is completed, and if the National Economic Prosecutor believes that there are sufficient grounds to determine the existence of a violation to the Competition act, it will bring the case to the Competition Tribunal.

Regarding the proceedings before the Competition Tribunal, and given that this tribunal is a judicial body, the due process of law principle applies to all of the cases before it. The Competition Tribunal may, ex officio, or upon a party's request, at any stage of the procedure or before its initiation, order all the interim measures it deems necessary to prevent any adverse effects brought about by the conducts it is examining and to safeguard the common interest. The measures so imposed are provisional and may be revoked at any stage by the Tribunal. When requested by a party, the petitioner has to submit sufficient information to substantiate the grounds of its request. The Tribunal may, we it deems it necessary, ask the petitioner for a guarantee before granting the measure.

The Tribunal has to issue its final decisions within 45 days counted from the completion of the hearings.

The decisions may be punitive, restrictive or corrective. The types of decisions that may be made are to amend or terminate the acts, contracts, agreements, systems or arrangements deemed contrary to the competition act provisions, to order the amendment or dissolution of the partnerships, corporations or any other private legal entities involved in the anticompetitive violations; and to impose fines. According to the Competition Act, the only existing type of sanction is pecuniary, and though imposed by a judicial body, its nature is administrative. However, civil redress may be pursued before a civil court upon a final condemnatory decision of the Competition Tribunal. Sanctions may be imposed on firms, their managers and directors and any person involved in the conduct. Chilean legislation provides for an appellate procedure (Recurso de Reclamacion) before the Supreme Court of Justice, on the grounds of both questions of law and fact.

The modifications to the Competition Act provide for a three -year statute of limitations , after the infringement has occurred, to initiate legal proceedings. This period is interrupted by the initiation of proceedings before the Tribunal, either by the FNE or by a private party.
For cartel infringements, the new amendments establish a specific five-year statute of limitations, which will not start running while the conduct's effects on the market persist.

The aforementioned amendments also raise the fines that may be imposed against cartel members to approximately US$23 million.