The sanction responds to an injunction filed in December 2021 by the National Economic Prosecutor’s Office (FNE), which was accepted in its entirety by the Court.
After more than three years of trial, the TDLC found that Juan Hurtado served simultaneously as a director of Consorcio and LarrainVial, both companies that compete through their subsidiaries in the securities brokerage and stock market services.
The ruling considers that this situation violates Article 3, letter d) of Decree Law 211, which establishes the prohibition of interlocking. According to the TDLC, this figure constitutes an infringement per se, i.e., unlawful by its mere configuration, without the need to prove concrete effects on the market.
The judgment imposed fines totaling 3,117 UTAs (approx. Ch$2,554 million):
– LarrainVial will have to pay 1,889 UTAs (approx. Ch$1,548 million),
– Consortium, 1,148 UTA (approx. $941 million),
– and Juan Hurtado, 80 UTA (approx. $66 million).
As argued by the FNE and ratified by the TDLC, Hurtado, in his role as director, was in a position to access strategic and sensitive information of both competing companies, putting free competition at risk.
Although its dual role had been in place since before the entry into force of the rule (February 2017), it continued until April 2019, even exceeding the legal adequacy period granted by law.
The TDLC emphasized that the conduct of those sanctioned allowed the same individual to know financial, commercial and strategic information of two rival companies, with the possibility of influencing their management decisions, seriously affecting the competitive dynamics of the market.
The sentence was issued with the dissenting vote of Minister Ricardo Paredes, who was in favor of rejecting the FNE’s request because it did not provide evidence of the effect that the interlocking conduct would have had, in circumstances in which it should have done so, since it was a case of indirect interlocking. According to Minister Paredes, the latter conduct would only be punishable under Article 3, paragraph 1 of Decree Law 211 (which does require proof of anticompetitive effects), and not under letter d) of the same article (unlawful per se), since the latter rule would only sanction direct horizontal interlocking, i.e., that produced directly between competing companies. On the other hand, it would not cover situations of indirect horizontal interlocking (as in the case of Juan Hurtado), in which competition occurs between subsidiaries of those companies that effectively share one or more directors or relevant executives.
