Any anti-competitive conduct specified in Article 3 of Decree Law No. 211 (DL 211) may give rise to competition damages claims. The first paragraph of this provision defines anti-competitive conduct broadly as any act, fact, or contract, whether individual or collective, that prevents, restricts, or hinders competition, or tends to produce such effects. The second paragraph provides a non-exhaustive list of anti-competitive practices, including hardcore cartels and other agreements (subsection a), abuse of dominant position (subsection b), predatory practices (subsection c), and interlocking (subsection d).

Competition damages claims are only admitted as follow-on actions and are filed before the Competition Court (TDLC). The basis for such actions is the anti-competitive conduct established in a prior TDLC ruling. Class actions are allowed on the same basis, but only in cases involving consumers, following Law No. 19.496.

As a system of follow-on actions, initiating competition damages claim requires a prior decision from the TDLC that establishes an infringement of competition law. This ruling must be final, with no pending means of appeal. A decision will be final if no appeal is filed or after the Supreme Court renders a decision if the ruling by the TDLC has been challenged.

According to Article 30 of DL 211, a competition damages claim must be based on the facts established in the judgment that determined the existence of anti-competitive conduct. Therefore, damages cannot be pursued for facts unrelated to that ruling. In Papelera Cerrillos S.A. v. CMPC Tissue S.A. and other (2023), the TDLC rejected the action, among other reasons, because it was based on facts not established in a previous decision.

Finally, class actions can only be brought by the National Consumer Service (Sernac), a Consumer Association, or a group of fifty or more consumers, as established in Article 51(1) of Law No. 19.496.

Competition damages claims may seek compensation for all damages resulting from anti-competitive conduct (Article 30 of DL 211). This includes both pecuniary damages (actual loss and loss of profit) and non-pecuniary damages, which is also valid regarding class actions (Article 51 of Law No. 19.496).

Additionally, exemplary damages (also referred to as punitive damages) may be only requested in class actions, amounting to 25% of the value of the compensatory damages. Exemplary damages are awarded if any of the aggravating circumstances outlined in the consumer protection law are present (e.g., repetition, severe pecuniary harm, harm to physical or psychological integrity or dignity, risk to safety, etc., as in Article 24 of Law No. 19.496).

Although not expressly regulated, since 2020, the use of the Cy-Pres mechanism for distributing compensations has become common in court settlements in class actions involving indirect consumers. Such agreements must be approved by the judge, who must ensure that they comply with legal requirements. The frequent use and approval of this mechanism may indicate its acceptance by the TDLC for application in its rulings.

Any other remedy should have been requested in the procedure for determining the existence of anticompetitive conduct.

Compensation includes all damages incurred during the period in which the infringement persisted, in accordance with the principle of full compensation (Article 30 DL 211). This is contingent upon establishing a causal link between the damage and the anti-competitive infringement that underpins the damages claim. As an exception, in class actions, exemplary damages may be awarded, constituting an additional 25% of the compensatory damages.

Pecuniary damages may encompass both actual loss and loss of profit:

• Actual loss: This can include, e.g., cost increases, overcharges. Compensation for ordinary, routine, and recurring expenses incurred by the firm to enter and remain in the market, such as patent fees, advertising, and salary expenses, has been rejected (e.g., Voissnet S.A. v. Telefónica Chile S.A. (2021)).
• Loss of profit: This may include a decrease in sales, limited market share growth, among other impacts.

Although not expressly provided for in our legislation, loss of chance has been requested in proceedings that are still pending (for instance, for damage to consumers who ceased purchasing a product due to overpricing resulting from collusion, e.g., Sernac v. Cencusud S.A.).

According to Article 2317 of the Civil Code, when unlawful conduct causing damages is committed by two or more parties, the perpetrators are jointly and severally liable. In cases arising from collusion, damages are typically pursued in accordance with this principle.

Finally, leniency programs grant benefits only for the infringement sanction (fines) and do not impact any subsequent claim for damages.

Competition damages claims are time-barred within four years from the date on which the judgment declaring the competition law infringement becomes final (final paragraph of Article 20 of DL 211). In contrast, the statute of limitations for competition law infringements expires after three years, or five years in the case of cartels, running from the date the conduct occurred.

The prevailing case law suggests that the statute of limitations for compensation claims is interrupted by the valid service of the claim.

There is no suspension of the statute of limitations for competition damages claims. The only exception rule applies in class actions, where suspension occurs in the event of initiation of the voluntary procedure for the protection of the collective and diffuse interests of consumers, an alternative dispute resolution mechanism established in Law No. 19.496, aimed at compensating consumers for damages caused by anticompetitive conduct.

Since 2016, competition damages must be brought before the TDLC, the court specialized in antitrust matters. The TDLC’s rulings can only be challenged before the Supreme Court through an appeal.

Before 2016, competition damages claims were decided by ordinary civil courts. Judgments from these courts could be appealed to the Court of Appeals and subsequently to the Supreme Court. There are still three cases pending under this previous procedural regime.

Competition matters are governed solely by domestic law. According to Article 30 of DL 211, actions for damages resulting from competition law infringements are decided by the TDLC. Chile does not admit international antitrust cases.

Chilean law governs all competition damages claims. DL 211 does not include specific rules for tort law; therefore, the provisions of the Civil Code apply. This requires proving negligent or intentional conduct (although this is not necessary for anticompetitive conduct claims, as it is established in the judgment that triggers the competition damages claim), the existence of damages, and the causal link between the conduct and the damages.

The system for evaluating evidence is based on sound criticism, and the standard of proof is the preponderance of the evidence (more than 50% probability).

According to Article 30 of DL 211, in competition damages claims, the TDLC must base its decision on the facts established in the judgment that declared the competition law infringement and that serve as the basis for the claim.

Chilean courts are not bound by the decisions of foreign courts or authorities in antitrust matters.

Chilean law has adopted a follow-on system for competition damages claims. Consequently, a prior final decision declaring the existence of anticompetitive conduct is required to initiate the action. Therefore, such claims cannot be filed while the public enforcement procedure is still pending.

However, it is a frequent practice for those affected by a conduct to participate in the public enforcement process and attempt to obtain economic information from the defendant, in order to initiate negotiation discussions involving potential compensation payments.

Class actions for competition damages claims are explicitly regulated are expressly regulated, but only when damages are caused to consumers, as outlined in Law No. 19.496 on Consumer Protection. Such class actions may be initiated by the Sernac, a Consumer Association (both of which do not need to prove representation of the affected consumers), or by a group of fifty or more affected consumers. These actions are commonly used in cartel cases.

There is no threshold for filing class actions. The certification process is formal and requires only that the action be brought by an authorized plaintiff and that the general procedural requirements for the claim are met (identification of the court and defendant, statement of facts and claims, among others). This has resulted in all competition damages class actions that have been filed being admitted for processing.

Both class actions and individual claims may be consolidated. This occurs when the actions are identical or arise from the same event, with the same parties and subject matter, and when the judgment in one action must have res judicata effect in another (Articles 92 et seq. of the Code of Civil Procedure).

As a general rule, there is no pass-on defence, since Article 30 of Decree Law 211 allows for filing a competition damages claim without distinguishing the claimant’s position.

However, in class action cases, it is common to exercise defences against active pass-on claims. This is because Law No. 19.496 (consumer protection law), under which class actions are regulated, requires a direct relationship between the parties involved. Furthermore, class actions encompass the protection of collective (identifiable consumers) and diffuse (unidentifiable consumers) interests. For actions concerning collective interests, proof of a contractual relationship is necessary.

However, since 2019 (amendment of Law 19.496 by Law No. 21.081), proof of a contractual relationship is not required for compensation related to diffuse interest. There are several cases where settlements have been reached for the compensation of indirect consumers under diffuse interest actions (e.g., CONADECUS A.C. and another v. Agrosuper S.A. and others (2023), Arcam v. NYK and others (2024)). In these cases, the Cy-Pres distribution mechanism is used.

The burden of proof for damages and their amount falls on the plaintiff, and the burden of proof for defences fall on the defendant, in accordance with the general rule established in Article 1698 of the Civil Code.

The submission of economic and legal reports is usual in competition damages claims. Economic reports are primarily used for calculating damages and establishing the causal link. Legal reports may support legal positions that may require expert validation. This type of evidence is almost indispensable (especially economic reports).

Experts are selected by each party. They are typically included as witnesses and are required to testify about their report and respond to questions from the court and the other parties.

The procedure begins with the filing of the complaint and the response. Following this, a conciliation hearing is scheduled. If the parties do not reach an agreement, the court will issue the points of evidence, which typically include the existence of damages, their amount, and the causal link with the anticompetitive conduct. The evidentiary period lasts eight days and several types of evidence may be presented, such as witnesses, documents, confessions, and expert reports. Once all evidence has been presented, the TDLC must make its decision.

In the case of class actions, the procedure is governed by the rules described in Law No. 19.496, which are slightly different from those regulated under DL 211. For example, the evidentiary period is 20 days.

The decision is made by the TDLC, a specialized court composed of five judges, two economists and three lawyers. Appeals are heard by the third chamber of the Supreme Court, dedicated to constitutional and public matters (the same chamber that hears the appeal in the procedure to decide on competition law infringements), and composed of five judges, all lawyers.

Evidence is analyzed based on the rules of sound criticism, meaning the court has the freedom to assess it, but must adhere to principles of logic, experiential maxims, and scientific knowledge. This means that the court must rationally and logically justify in its judgment the reasons for accepting or rejecting evidence to prove certain facts.

Regarding oral evidence, although there is no specific rule, cross-examination is allowed.

Since the 2016 (reform that granted jurisdiction to the TDLC to hear competition damages claims), only one case has resulted in a TDLC´s judgment. The procedure took over three and a half years. An appeal was filed against the decision at the end of December 2023 and is currently pending before the Supreme Court. However, there are currently other cases before the TDLC where more than three and a half years have passed without a judgment being issued.

Decisions of the TDLC can only be challenged through an appeal to the Supreme Court. Therefore, there is only one level of appeal.

In brief, the procedure could take more than 5 years to reach a judgment: over three and a half years before the TDLC and approximately one and a half years before the Supreme Court (the referenced procedures began in 2020, so their processing times may have been affected by the Covid-19 pandemic period).

The Chilean leniency program does not grant benefits in the context of litigation for damages resulting from anti-competitive conduct.

No judgments ordering the payment of damages have been issued since the 2016 reform, so there are no rulings clarifying how damages are calculated, and the methodologies used. However, economic reports are often considered relevant evidence in competition law litigation. Several reports have been submitted in competition damages claims before the TDLC, most of which are currently confidential. Publicly available reports construct the counterfactual scenario for assessing damages using various methodologies or approaches: before and after, yardstick, structural, difference in difference, or combinations of these.

There is one judgment ordering compensation, though not yet final, from before the 2016 reform (under the old processing system). In Farmacia Cruz Verde and others v. Servicio Nacional del Consumidor (2023) (competition damages claim related to a cartel involving three pharmacies), a report using the before and after model was followed in both the first and second instances to calculate damages. The decision is currently pending before the Supreme Court.

Umbrella effects have been sought in competition damages class actions arising from collusion. Specifically, in Agrecu v. SMU and others (collusion in setting the minimum sale price for fresh chicken by three supermarket chains), damages to buyers who did not purchase directly from the defendants but from external third parties influenced by the collusive conduct were sued under this category.

There is no general rule for the calculation of interest.

No judgments ordering the payment of damages have been issued since the 2016 (reform that granted jurisdiction to the TDLC). Therefore, there are no judgments where this court has ruled on the payment of interest.

However, in cases initiated before the 2016 reform, such as Philip Morris and Compañía Chilena de Tabacos (2013) and Voissnet S.A. v. Telefónica Chile S.A. (2021), the Supreme Court ordered that compensation be paid with interest and adjustments calculated from the date the decision became final until the actual payment.

Competition damages claims are subject to the default rate of interest. When enforcing the judgment, the plaintiff must request the Court to liquidate the debt, for which the Court proceeds to apply the adjustment (according to the Consumer Price Index) and then applies the interest rate for the period.

Finally, there is a special rule for class actions established in Article 27 of Law No. 19.496, which stipulates that restitutions must be paid with interest and adjustments from the date of the infringement.

There are no cases where defendants have obtained contribution towards the payment of compensations or have received indemnity from other defendants. Since 2016, there have also been no resolved cases where compensations have been ordered in lawsuits involving multiple defendants. However, in class actions arising from collusion, it is common to seek liability and claim damages based on the market share of the defendants (e.g., Agrecu v. SMU and others).

Nevertheless, under the general rules of joint and several liability, a defendant could seek contribution from the other defendants after having paid the indemnity.

Settlements are a common way to finish competition damages action without a full trial, particularly in class action cases (e.g., CONADECUS A.C. and another v. Agrosuper S.A. and others (2023)). In such cases, the settlement must be judicially approved as long as it complies with Law No. 19.496.

Also, in class actions, a lawsuit may be declared inadmissible if it is not filed by authorized plaintiffs or does not meet basic formal requirements (e.g., providing a clear statement of facts and legal grounds and a clear delineation of the claims).

Parties are free to reach settlements in competition damages claims. Additionally, the procedure provides that the TDLC must summon the parties to conciliation once the complaint has been answered, thus the procedure includes a negotiation phase.

Regarding class actions, Law No. 19.496 provides for an alternative dispute resolution mechanism known as the voluntary procedure for the protection of the collective and diffuse interests of consumers. This can be initiated either by Sernac ex officio or upon request by the infringer or a Consumer Association. Its duration is up to three months, extendable once for an additional three months. In practice, parties often suspend this procedure to have more time for negotiation, so it may effectively extend beyond six months. This procedure cannot be initiated if a class action has already been filed. Its initiation is common in cases of anticompetitive conduct harming consumers. While this procedure is underway, class actions cannot be filed. If the parties reach an agreement, it must be approved by the court. Once approved, no class actions can be brought for the same facts.

There is no cross-border competition damages litigation in Chile, so there are no scenarios where the settlement could extend to a party outside Chile.

Parties may request the confidentiality of their information submitted to the proceeding when its disclosure could affect their competitive performance. This is a frequent practice during litigation before the TDLC. According to the regulation issued by the TDLC, information related to formulas or trade secrets, production costs, margins, profitability and pricing strategies, purchase or sales volumes, discounts obtained, positioning strategies, and the identification of the company’s suppliers is presumed confidential if it is less than 5 years old.

If the information is more than five years old, the TDLC tends to reject any confidentiality requests that the parties may seek.

Regarding the provision of documents that are part of a leniency application or investigation by the FNE, plaintiffs may request the TDLC to issue a formal request of this information to this agency. However, the FNE can administratively declare the reserve or confidentiality of the documents it holds, obtained through different means (e.g. leniency agreements, search and seizures, information requests), and when responding to such requests or orders from TDLC or other authorities, it typically follows the confidentiality definitions it has previously established. Therefore, access to the documents it holds is often limited.

The general rule is that parties may only recover procedural costs (costs of legal process, as notifications) and personal costs (legal expenses incurred by the claimant that do not include expert reports), only if the defendant is completely defeated.

Third-party funding is a practice that is not regulated in Chile. Therefore, since it is neither prohibited by law nor by ethical regulations, it is allowed. However, in competition law and competition damages claims, there are no known cases of third-party funding.

Among the main challenges of competition damages claims is the lengthy period between the infringement and the final judgment in the damages case. Given that the system is based on a model of follow-on actions (requiring a previous decision that establishes the competition law infringement), the final decision in a competition damages claim can take more than 10 years from the date the infringement was committed, which creates problems for both victims and defendants.

Additionally, the complexities inherent in proving damages and causation, as well as the costs of litigation and hiring economic experts, can discourage affected companies from filing such actions.

Competition damages claims are not yet a frequent practice. Most of the cases filed are class actions related to collusion (a total of seven out of thirteen actions). There is only one case where a competitor sued colluding companies and between 2017 and 2021, only one action was filed related to abuse of dominance.

However, this may be changing, as between 2022 and the present four damages actions related to abuses of dominance have been filed.

Therefore, the litigation in this context is still developing and may experience some expansion in the next five years. This could be encouraged by the simplification of the procedural aspects required to be proven by claimants, which has already been established through TDCL´s systematic decisions when establishing the points of proof. Another factor that could stimulate this litigation would be a reduction in processing times before the TDLC in sanctioning cases that precede damages claims. This is a declared objective of the tribunal.

Finally, there are some legal practitioners and scholars who advocate for the acceptance of arbitration as a means of resolving competition damages claims. Although there are no cases in this area yet, the possibility of implementation of arbitration can have significant developments and impacts during the next five years.