Modifies The Decree With Force Of Law No. 1 Of The Ministry's Treasurer, Building And Reconstruccia N, 2005, On Court Of Free Competition

Original Language Title: MODIFICA EL DECRETO CON FUERZA DE LEY Nº1 DEL MINISTERIO DE ECONOMÍA, FOMENTO Y RECONSTRUCCIÓN, DE 2005, SOBRE TRIBUNAL DE DEFENSA DE LA LIBRE COMPETENCIA

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(Amended article 3 ° in the following terms: to) in subsection first, insert, between the words "measures" and "corrective", the expression "preventive" ,".

(b) modify the second paragraph as follows: b-1. In your header, insert, between the word "competition" and the comma (,) that followed, the phrase "or that tend to produce such effects".

b-2. Replaced the letter to), with the following: "to) the express or tacit agreements among competitors, or the concerted practices between them, which confer them to market and that consist of set sale, purchase or other conditions for the marketing prices, limit production, assigned areas or market shares, exclude competitors or affect the outcome of bidding processes.".

b-3. Replaced by the letter b) the phrase "of a company or group of companies that have a common driver" by the terms "of an economic agent, or a set of them,".

((2) amended article 6 in the following terms: to) replace the second subparagraph by the following: "the Court shall have two deputies, a lawyer and a graduate or post degree in economic sciences.".

(b) Insert the following new third subsection: "No can be chosen as titular or substitute member of the Court, who has played the position of national economic Prosecutor or any leading position in the national economic Prosecutor's Office in the previous year at the beginning of the public history competition organized for the respective appointment.".

(c) replace the third subparagraph by the following: preceding, for which may be considered the same payroll and competitions for the appointment of holders. ".

(d) delete, in its fifth paragraph, the sentence "Also by this means, will determine the order in which surrogates will replace the titular members.".

(e) replace its seventh subparagraph by the following: "(Es incompatible el cargo de integrante deel Tribunal con la condición de: a) civil servant;"

b) administrator, Manager, worker dependent corporations open or subject to the rules of these societies, as also of its parent, subsidiaries, affiliated companies, or coligantes) and (c) consultant or provider of professional services in materials that say free competition related to natural or legal persons subject to the jurisdiction of the Court, considering also that advises or provides professional services if you receive any kind of compensation fee or royalty for natural or legal persons who advise or provide professional services in such matters.

The Deputy Ministers will only be subject to incompatibility mentioned in letter c) precedent.

Persons who at the time of his appointment, or during the exercise of office, have any of the conditions laid down in the seventh paragraph of this article, must relinquish them. "."

(3) replace, in the second paragraph of article 7 °, the phrase "further successive periods" by the terms "only a period thereafter".

(4) replace, in the first paragraph of article 9 °, the expression "two" by the term "three".

(5) replace article 10 by the following: ' article 10.-monthly remuneration of the titular members of the Court shall be the sum equivalent to the mensualizada gross remuneration of permanent character of the office of national economic Prosecutor. " Members alternates, if any, will receive monthly the sum of thirty monthly tax units and, in addition, the sum of ten monthly tax units for each session you attend in which do not concur the corresponding holder, with a maximum of 60 monthly tax units, either that is the number of sessions you have attended.

In the case of unjustified absence, qualified by the majority of the other members of the Court, the incumbent Minister will be you deducted an amount equivalent to 50% of what has received the substitute that would have replaced it. "."

((6) Introducense the following amendments to article 11: to) replace the second paragraph by the following: "(En todo caso, se presume de derecho que el ministro titular o suplente, según corresponda, también estará inhabilitado cuando: a) interest in this cause is your spouse or relatives up to the third degree of consanguinity or second of affinity, or people who are linked to him by ties of adoption" , or the companies or societies in which these same people be their legal representatives, agents, directors, managers or perform other management positions, directly or by means of other natural or legal persons have a percentage of the capital of more than 10%, or that allows them to choose or make choosing one or more of its managers, or exercise a decisive influence in the administration or management of the company according to the provisions of article 99 of law Nº18.045, of stock market, and b) advice or render professional services to natural or legal persons that have the quality of part in that cause, or has done so in the two years prior to the date that entry or during the investigation by the national economic Prosecutor that has resulted in it. "."

(b) Intercalanse following paragraphs third and fourth, new, passing current paragraphs third, fourth, fifth and sixth to be fifth, sixth, seventh and eighth, respectively: "without prejudice to the provisions of subparagraphs eighth, ninth and tenth of the article 6°, shall be causal challenge with respect to the holders or alternate members, have been advisory or provider of services of any of the parties during the year preceding the notification of the claim or the publication of the Decree ordering the initiation of the procedure of article 31; the existence of commercial, corporate, labour relations or in communities of professional character, with attorneys or advisors of any party, or performance or professional experience in the same premises, offices or real estate with the latter, even though this journal not participation in income or the development of common or coordinated functions.

Will also be causal challenge which the Minister advice or render professional services to natural or legal persons who have or have had in the two years prior to the date of entry of the case in question, the quality of the counterpart of the persons referred to in point (b)) of the second paragraph of this article, in any judicial proceedings or trade negotiation , which may affect the impartiality of the Minister. "."

(c) replace the fourth subsection, which happened to be sixth, the phrase preferably "by the substitute corresponding of the same professional area" by prayer "for the alternate for their same professional area, except that this rule prevents the court session with the minimum quorum established in article 9".

(7) add the following article 11 bis, new: "article 11 bis.-without prejudice to the incompatibilities laid down in article 6 °, holders members and alternate members of the Court may not be administrators, managers or dependent workers, or advise or provide professional services, natural or legal persons who have had the quality in any case that the respective Minister met" for a period of one year counted from the said Minister ceased in his office, except that the enactment of the judgment on a cause that the Minister had known finds is pending, in which case the term of one year will be counted from notification of the judgment.

Breach of this prohibition shall be punished with disqualification for public office for a period of five years and with a fine to be equal to the last year of remuneration in office, sanctions that they will be applied by the Supreme Court at the request of any interested party.

The requirement referred to in the preceding subparagraph designated clearly and precisely the facts that configuringin the offence and he will accompany or be offered, if it is the case, evidence that is fundaren. If the request does not comply with these requirements, the plenum, convened for the purpose, will declare it inadmissible into account, without any further formality.

Admitted to processing the requested the President of the Supreme Court will give transfer this to the accused, which must be evacuated within eight working days of the date of receipt of the respective trade, which will be forwarded along with your background by means deemed most expedient.

Evacuated the transfer or after the period provided for in the preceding paragraph, the President of the Court will be mentioned to an audience that will receive the proof that has been offered and appoint the Minister which must be filed. Made the proceedings or expired deadlines unless they are evacuated, ordered to bring the car in relation to the plenum of the Supreme Court, specially convened for the purpose. The Supreme Court may only enact measures to better resolve after the hearing.
Either party may appear before the Supreme Court prior to the hearing.

The sentence which accept the sanction referred to in this article, shall entitle who deemed affected to appeal for review of the judgement in which it has participated the sanctioned, when it considers that their performance and decision was detrimental to their interests. "."

8) amended article 12, as follows: to) incorporate, in its first paragraph, the following letter e), new: "e) engage in any of the cases referred to in the eighth and subsequent paragraphs of article 6.".

(b) replace, in the second subparagraph, the phrase "(letras c) and (d)" by "(letters c)(, d) (and e)".

((9) replace the number 2) of article 18, by the following: "2) meet, at the request of who has legitimate interest, or of the economic national prosecutor, the non-litigious matters that may infringe the provisions of the law, on facts, acts or existing contracts or held, for which, may lay down the conditions that must be fulfilled in such events" , acts or contracts; "."

((10) Introducense the following amendments in article 20: to) Intercalanse, in its second paragraph, then of the first sentence, the following: "requirement or demand shall contain clear and specific exposure of the facts, acts or conventions that would violate this law and indicate the markets that would have bearing the alleged infringement. In the event that demand or request does not contain the indications previously or any other required by article 254 of the code of Civil procedure and other applicable rules, the Court will give a period of three working days to the plaintiff or applicant to remedy those omissions. The previous expired without having been remedied the omission, the Court founded resolution may not admit to processing demand or requirement. "."

(b) replace, in the third subparagraph, the expression "two" "three".

(c) Insert, then of the third paragraph, the following new fourth subsection: "(Sin perjuicio de lo anterior, las acciones para perseguir las conductas previstas en la letra a) of article 3 will be prescribed within the period of five years, and the computation of the prescription will not start while remain the market effects attributable to conduct object of the action.".

((11) Introducense the following modifications in article 21: a) Insert the following new second subsection: "resolution received the cause to test must be notified by order. Within 30 working days from the enactment of the resolution unless it has been notified, the Court shall notify it in accordance with the fourth paragraph. "."

(b) replace the second paragraph, which happens to be third, by the following: "the final judgments be notified personally or by order.

Other resolutions shall be notified by any safe means that the parties by common agreement fixed and subsidized by the State newspaper. In the event that they choose electronically, notification must subscribe through advanced electronic signature. "."

(c) delete their current third paragraph.

((12) Introducense following amendments to article 22: to) added, in its third paragraph, then the expression "enforceable", passing the point aside to be followed, the following: "in any case, only be accepted by test point, three witnesses for each party, unless the Court, to petition founded to present the list of witnesses, expand that number. Not be governed with respect to witnesses set out in the articles 358, 360, number 2, 373, 374, 376, 377 and 378 of the code of Civil procedure. "."

(b) add, in its fourth paragraph, then of the expression "case", passing the endpoint to be comma (,), as follows: "which may make inquiries as it deems appropriate, prevent the parties questions and statements to turn on irrelevant or unacceptable aspects and solve drawing objections that were made you.".

(c) Intercalanse following paragraphs sixth, seventh, and eighth, new, passing the current sixth subparagraph to be ninth: "the Court will have the record of all hearings to any place in unabridged form, by any means that ensures their loyalty.

The instrumental test may be made until ten days before the date fixed for the hearing. At the request of a party, the Court may award reservation with respect to third parties unrelated to the process or even confidentiality to other parties, of those instruments containing formulas, strategies or trade secrets or anything else whose disclosure may significantly affect the competitive development of the incumbent. The instruments that are reserved or confidential nature pursuant to the second paragraph of the letter to) article 39, they must always be submitted in as such by the national economic Prosecutor, and the Tribunal shall maintain the reservation or confidentiality.

Notwithstanding the foregoing, ex officio or at the request of a party, the Court may order the part which corresponds, at any stage of the process and even as a means to better resolve, to prepare a public instrument version so other parties exercising their right to object to it or watch it. If the concerned public version is insufficient as a valid precedent for failing the cause, the Court may order ex officio and founded resolution, the term of the reservation or confidentiality of the instrument, and will order put it to the attention of the other parties. "."

((13) Introducense the following modifications in article 26: to) Intercalanse, the letter c), then the word "annual", phrases annual "(y, en el caso de sancionar una conducta prevista en la letra a) of the 3rd article, up to an amount equivalent to thirty thousand tax units", and the following third and fourth sentences, new: "fines applied to natural persons not may be paid by the legal person that exercised functions or shareholders or members of the same. Also, neither may be paid by any other entity belonging to the same corporate group in the terms laid down by article 96 of the securities market law, nor by the shareholders or partners of these. "."

(b) replace your third paragraph by the following: "for the determination of the fines will be considered, among others, the following circumstances: economic profit motive of the offence, the seriousness of the conduct, the quality of recidivist offender and, for the purposes of reducing fine, the cooperation it has provided to the Prosecutor's Office before or during the investigation.".

(14) delete the final subparagraph of article 27.

15) amending article 31, in the following sense: a) replacements the number 1) and 2) of the first subparagraph, for numbers 1), 2) and 3), passing the current numbers 3) and 4) a 4) and 5), respectively: "1) Decree mandating the initiation of the procedure will be published in the official journal and on the website of the Court and shall be notified , by trade, to the national economic Prosecutor, to the authorities which are directly concerned and operators which, in the sole judgement of the Court, relating to the matter, so that, within a period not exceeding fifteen working days, these and those who have a legitimate interest to contribute record.

For subjects that are specifically related to certain areas, it may order that the notification is also practiced by posting a notice on the respective local newspapers.

The Court contents 14(bis) will provide always the necessary conditions so that all those involved can impose record.

(2) expired the previous deadline, those who have executed or held, or intend to run or celebrate the facts, acts or contracts consulted, can evaluate recommendations that has made the national economic Prosecutor at the stage of contribution of background and communicate in writing to the Court its concordance with them.

(3) once the period referred to in number 1, the Court shall summon a public hearing, which will take effect within a period not less than 15 days nor more than thirty days from the notification, to be practiced by means of a notice published in the official journal and on the Internet of the Tribunal website , so who had provided background can express his opinion.

Where is made the communication referred to in number 2, the Court shall have fifteen days to cite the public audience, counted since has received such notice, which shall take effect in accordance with stated in the preceding paragraph. "."

(b) in its final paragraph, replace the sentence "resolutions which set conditions that must be fulfilled in acts or contracts may also be appealed claim." by "the term resolutions, is that they set or not conditions, may only be subject to the appeal of claim referred to in article 27. Such an appeal shall be founded and can such appeal the consultants, the national economic Prosecutor and any third party who made history in accordance with the provisions in number 1. "."

(16) replacements second and third subparagraphs of article 33 by the following:
"The national economic Prosecutor will be based in Santiago. It will be carried out by an official called the national economic Prosecutor, who shall be appointed by the President of the Republic through the process of selection of public executives referred to in paragraph 3 ° of title VI of the law N ° 19.882. It will last four years in office, his appointment and can be renewed only once.

The economic national prosecutor shall cease in their functions by the following reasons: to) end of the legal period of their appointment.

(b) voluntary resignation accepted by the President of the Republic.

(c) dismissal by manifest negligence in the performance of their duties.

(d) failure.

(Removal by the grounds mentioned in the letters c) and (d)) shall be prepared by the President of the Republic, with the favourable report from the Supreme Court, at the request of the Minister of economy, development and reconstruction. Favorable report shall be issued by the plenum of the Court specially convened for the purpose, and shall meet as the majority of its members vote in exercise.

The national economic Prosecutor shall exercise both upper head and judicial and extrajudicial representation of the service.

Without prejudice to the General requirements to enter the civil service, the Prosecutor must provide proof of degree and ten years of professional practice or three years in the service. "."

((17) Introducense the following modifications in the second paragraph of article 39: to) Agreganse in the letter to) following paragraphs third and fourth, becoming the current third fifth: "also, the national economic Prosecutor may order ex officio or at the request of the person concerned, that certain parts of the record are reserved or confidential, provided that they relate to protect the identity of those who have made statements or made history in accordance to article 39 bis , or contain formulas, strategies or trade secrets, or any other element whose revelation could significantly affect the competitive development of the proprietor, or safeguard the effectiveness of investigations of the Prosecutor's Office.

The foregoing is without prejudice to a process in progress and previous transfer, applies the provisions of the eighth paragraph of article 22, or ordered by the Court provide copies of parts of the dossier that not have been added to the process, deleting them all references that might reveal the identities or object of protection referred to above.

b) Suprimense in (b)) the expressions "(que se rigen por lo dispuesto en la letra i) of this article.", replacing the comma preceding them by a point apart.

((c) add at the end of the letter f), replacing the semicolon (;) by a comma (,), as follows: "and also to provide the background which held in its files and that the national economic Prosecutor requires them, even if such a history are qualified as secret or reserved, in accordance with the legislation in force, if latter that will require the authorization of the Court.".

((d) insert in the letter l), then the expression "understanding" and before the terms "agencies", the following "with other utilities and universities, on matters of mutual cooperation. In addition, agreements".

e) be replaced at the end of the letter m) the comma (,) and the letter 'and' that follows it, by a semicolon (;).

((((f) Intercalanse then the letter m), the letters n) and n), new, passing the current n) to be or): "n) (in cases of serious and qualified research to prove conduct described in the letter to) article 3 °, request, through a founded request and with prior approval of the Court's defense of free competition" (, authorization to the Minister of the Court of appeal that corresponds according to the shift, so police or police investigations, under the direction of the official of the national economic Prosecutor indicating the request, appropriate a: n.1) enter public or private premises and, if necessary, to pave and shoot;

n.2) register and seize all objects and documents that prove the existence of the infringement;

n.3) authorize the interception of all communications, and no.4) order to any company that provides communications services, enabling copies and records of communications transmitted or received by it.

The circumstance of having attended the approval referred to above, will not be causal inability to Ministers of the Court's defense of free competition to learn from the process.

For granting the authorization referred to in the first paragraph, the Minister of Court of appeals shall verify the existence of precise and serious history about the existence of practices of collusion, gathered by the Attorney General prior to the request for authorization to make use of the powers of this letter. In the authorization, you must specify with precision, the singling out of action, the time by which it may exercise and persons to which such measures affect.

The exercise of the powers conferred in the first subparagraph, must conform to the requirements and formalities set out in article 205; 207; 208; 209, first, second and third subparagraphs, not being applicable remission of the background to the regional public prosecutor for the purposes specified in this last subsection; 210; 212-214, and 216 to 225, except the third subparagraph of article 222 of the code of criminal procedure. Without limiting the foregoing, the prosecution can not intercept communications between the researched subject and those persons who, by their status, profession or legal function, as lawyer, doctor or confessor, have the duty of secrecy that has been entrusted to them.

The expressions "fiscal" or "Public Ministry" referred to in the provisions of the code of criminal procedure, be construed as references, for the purposes of this Act, to the "national economic Prosecutor". References to "judge" or "judge of warranty", shall be made to the Minister of the Court of appeal designated in paragraph first this literal; the allusions to "oral proceedings" shall mean the "procedure", and those carried out to "accused" are construed as references to the "affected".

If the public prosecutor does not comply with any of the requirements or formalities referred to in the fourth subparagraph, those affected may claim against the Minister of Court of appeals referred to in the first subparagraph, which shall decide immediately, at a single hearing, without form of trial and hearing the parties.

The results of the actions laid down in the first paragraph, not may be used as evidence in the procedure before the Court, when the performance or exercise of them has taken place outside the cases established by law or have not met the requirements for their origin and has been declared as well, in the manner indicated in the preceding paragraph referred to by the Minister of Court of appeals there.

The background obtained by virtue of the exercise of the powers referred to in this letter, may not be used by the prosecution in any other inquiry, except that mediate a new judicial authorization;

(n) sign settlement agreements with the economic agents involved in his research, with the purpose of precautionary free competition in markets.

The Court will take knowledge of the agreement at a single hearing, without form of trial, convened especially for this purpose, within the fifth business day of received history, during which will hear allegations of the Parties present at the agreement. The Court must approve or reject the agreement within a maximum period of fifteen working days from the date of the hearing. "These resolutions once ordered shall be binding on the parties which attended the agreement and only proceed against the appeal, and".

(18) add the following article 39 bis, new: "(Artículo 39 bis.-El que ejecute una conducta prevista en la letra a) of article 3 can access a reduction or exemption from the fine when it contributes to the national economic Prosecutor background that lead to accreditation of such conduct and to the determination of policymakers."

To access one of these benefits, the executor of the conduct you must meet the following requirements: 1. provide accurate, truthful and verifiable history representing an effective contribution to the creation of sufficient evidence to found a requirement before the Court;

2. refrain from spreading the application of these benefits until the Prosecutor made the request or order to archive the history of the request, and 3. put an end to their participation in the conduct immediately after submitting your order.

To access the exemption from the fine, in addition to meeting the requirements set out in the preceding paragraph, the executor of the conduct must be the first which brings history to the public prosecutor within the Group of perpetrators of the conduct imputed.
To access a reduction of the fine, in addition to the requirements mentioned in the second paragraph, the executor of conduct should provide additional background to those presented by who first accompanied background to the Prosecutor pursuant to this article. In any case, the reduction of the fine requested the Prosecutor at their request, may not exceed 50% higher fine requested for other implementers of the conduct which may not qualify for the benefits of this article.

At your request the Prosecutor bears each executor of the conduct which fulfilled the requirements to access the benefit of exemption or reduction of the fine. If the Court gives for accredited behavior, you can not apply fine to who has been individualized as a creditor of an exemption, as neither a fine greater than the requested by the Prosecutor who has been individualized as a reduction of the same creditor, unless he is credited during the process that such secured creditor was the organizer of the tortious conduct coercing others to participate in it.

Who alleged the existence of the conduct referred to in to) item 3 °, founded knowingly false or fraudulent records for the purpose of harm to other economic agents to the benefits of this article, shall be punished in accordance with article 210 of the Penal Code. "."

(19) in article 41, merge, separate dot (.), then what happens to be followed dot (.), the following sentence: "to determine whether to investigate or dismiss the allegations formulated, the Prosecutor may request, within a period of 60 days of received the complaint, background to individuals, as also call to declare any person that you may have knowledge of the reported fact." Background delivery and declaration previously identified delivery will always be voluntary, and the national economic Prosecutor may not exercise the penalty provided for in subsection first article 42 while he has not formally initiated an investigation. "."

((20) amend article 42, in the following terms: to) in the third paragraph, replace the expression "(letters to)(, g) and h) item 39" by "(letras a) (, g)(, h) and n) of article 39, and article 41".

(b) replace the fourth subparagraph by the following: "a breach of this prohibition shall be punished with the penalties specified in articles 246, 247 and 247 bis of the Penal Code, and the disciplinary sanctions that can be applied administratively by the same lack. In addition, the responsible officer and the State standards referred to in the law Nº19.880, the decree with force of law N ° 29, 2005 of the Ministry of finance, which sets the text revised, coordinated and systematized law No. 18.834, administrative status, and law N ° 18.575, on General Bases of the administration of the State shall apply. "."