On January 13, the Court for the Defense of Free Competition (TDLC) accepted the request of the National Economic Prosecutor’s Office (FNE) to impose a fine on the Pontificia Universidad Católica de Chile (PUC).
This is due to its unjustified refusal to deliver, in a complete manner and within the required deadline, the information requested by the agency in the framework of the Higher Education Market Study (Rol EM09-2024), currently in progress. The sanction applied is based on the powers granted to the FNE by Article 39, letter h), in connection with Article 39, letter p) of Decree Law 211.
According to the FNE’s request, at the end of November 2024 the Legal Affairs Department of the PUC communicated by e-mail its decision not to respond to the questionnaire sent by the Prosecutor’s Office. This refusal was justified by the university by arguing the nature of the information requested and the university autonomy.
During the corresponding hearing, the PUC requested that the FNE’s request be dismissed, arguing an “ambiguous understanding” regarding the obligation to respond to the official notice, as well as the existence of “difficulties” in compiling the required data. Likewise, the legal representation of the institution stressed that the fine would have a dissuasive character that would no longer be applicable, given that the institution complied with the delivery of the information days before the hearing. In addition, they pointed out that the delay would not have caused any damage, since the progress of the market study was not affected.
For its part, the FNE maintained its position, arguing that the PUC’s initial attitude was a categorical refusal to comply with the injunction, and not a simple delay in providing the data. It also emphasized that the late compliance was achieved only after the sanction request filed before the TDLC.
Finally, the Court decided to sanction the PUC with a fine equivalent to 0.4 UTA for each day of delay, considering the delay as manifestly unjustified. It is important to mention that the original amount of the fine was 0.2 UTA per day of non-compliance; however, the TDLC accepted an appeal for reconsideration filed by the FNE, which requested an increase in the initial sanction because it considered that the amount of the fine was significantly lower than what was requested, taking into account the unjustified nature of the non-compliance.
It should be noted that this is the third occasion in which the FNE activates the procedure provided for in Article 39º ter, joining the cases of fines imposed on Pfizer Chile S.A. (Rol 39Ter-3-2019) and the Asociación Gremial de Cirujanos de la Quinta Región (Rol 39Ter-1-2018). In all these cases, the TDLC has accepted the FNE’s requests and imposed fines under the legal criterion of days of delay, without disregarding the particular circumstances.
However, this case presents some particularities in comparison with the previous ones. For example, (i) the PUC is a non-profit public law corporation, unlike the other sanctioned entities; (ii) the initial amount of the fine was the lowest among the cases reviewed; and (iii) in relation to the above, for the first time an appeal for reconsideration filed by the FNE was accepted, requesting an increase in the amount originally determined by the TDLC.
