La aplicación de multas a agentes económicos en el Derecho Chileno de la libre competencia: una propuesta metodológica

The excessive discretion of Chile’s public authorities to set fines in competition matters may and should be restricted —from both a qualitative and a quantitative perspective. This work focuses on the latter aspect. Avoiding a ‘mechanical’ approach, it proposes a four-stage methodology to set fines for undertakings that engage in anticompetitive conduct, which entails (i) a base fine of 15-25% of the net sales of the product in Chile, depending on the gravity of the conduct, for each of the years of the infringement; (ii) a percentage adjustment to reflect any aggravating factors (up to a 30% increase in the base amount depending on the circumstances) and mitigating factors (up to 20% decrease in the base amount depending on the circumstances); (iii) any necessary adjustment based on the legal maximum fine allowed; and (iv) any applicable adjustments under the leniency programme. In my opinion, only the third stage requires amendments to the Competition Act. I propose changing the actual system, which caps fines based on a fix amount, to a system that imposes a 10% cap based on the net total sales of the undertaking.