Regarding the first investigation referred to, it was reported that since 2018 all service stations (“EDS”) present in the mentioned communes would have been offering Fuels at the same value, a situation different from the one that would have occurred previously, in which there would have been competition among the EDS, some of which even offered lower prices than other communes in the Valparaíso region.
In order to clarify the facts that are the subject of the Complaint, this Prosecutor’s Office reviewed and analyzed the available public information and carried out a series of diligences to clarify the behavior of the market and its players during the period between 2016 and 2018.
First, the FNE observed that the prices in the communes under investigation during the period 2016 and 2017 were on average well below the prices of the rest of the communes of the Valparaíso Region, allowing inferring that the investigated market was involved in a price war between the different DSUs, which would have ended at the beginning of 2018.
In this regard, the FNE pointed out that, although price wars may be indicative of the execution of a sanction mechanism in the face of the deviation of one of the actors in a collusion, as well as being indicative of a collusion by virtue of which the economic agents put an end to the sustained reduction of prices, in themselves they do not constitute a sufficient factor to affirm the existence of collusion.
In view of the foregoing, the FNE analyzed separately the behavior of the different distributors in the municipalities subject to the investigation, in order to determine how the price war would have been carried out and how it would have been terminated. Thus, the FNE found that during the period under investigation, one of the investigated companies had acquired a new EDS, and together with its entry into the market, it had established lower prices than the competition in order to attract a greater flow of vehicles and consequently triggered a price war.
The FNE noted that once the market consolidated and adapted to the new entrant, 2018 saw the end of the price war and the market gradually adjusted. This would have been carried out through the execution of unilateral decisions resulting from the commercial and pricing strategies applied by the different companies, due to the actions of an EDS that was subsequently followed by the other competitors, without necessarily having any type of collusive coordination on the part of the companies under investigation.
On the other hand, the FNE stated that it did not find any background information that would expose communication between competitors. Consequently, no acts were identified on the part of the DGSs that present risks to competition and merit continuing with this investigation.
Notwithstanding the foregoing, the FNE identified that a tool used by the various DGSs to determine their prices is the National Energy Commission’s platform called “Bencina en Línea”, based on the regulations issued by said agency. Since it is not clear whether this transparency tool in the industry generates greater anticompetitive risks or efficiencies in the market, the FNE considered it necessary to analyze more generally the actual or potential effects on competition of the “Bencina en Línea” platform in a new and specific investigation on the matter.
