According to the regulator, the company failed to submit 60 documents containing studies, analyses, reports, surveys or comparable documents, which contained information relating to the characteristics of the market affected by the operation.
Chile's National Economic Prosecutor's Office (FNE) reported that it has asked the Free Competition Defense Tribunal (TDLC) to apply a fine for the tax benefit of more than $5.25 billion (6,500 Annual Tax Units equivalent to more than US$5.3 million) to Cadena Comercial Andina SpA (CCA), belonging to the Oxxo Group, for the infraction of providing false information when notifying its concentration operation with Ok Market in 2021.
At the hearing held today before the TDLC to hear the arguments of the parties regarding the request filed by the FNE in December 2022, the lawyer of the Litigation Division, Cristóbal Méndez Mera, pointed out that CCA violated an article that sanctions anyone who notifies a concentration operation by accompanying false information.
According to Méndez, when the company notified the operation, it informed the FNE that it had to analyze six files and then indicated that it had to send 34 more documents. "However, it was subsequently proven that the company was in possession of at least 60 additional documents consisting of studies, analyses, reports, surveys or comparable documents, which contained information referring to characteristics of the market affected by the operation," the regulator said in a statement.
The FNE representative said that the 60 documents that were not provided by CCA contained information that would have allowed the investigation to be processed more efficiently and in less time, since they referred to sensitive aspects of the market characterization. He added that, since they were not initially provided by the company, said information should have been obtained through investigative proceedings.
He also stated that CCA's defenses "totally minimize the importance of promptly informing the FNE Económica in the notification of a concentration operation of all the background information required by the regulations, in a truthful, correct, exact and unequivocal manner."
The requirement in which this request is framed was presented by the FNE in December 2022 and originally also contained an accusation against CCA for having breached one of the mitigation measures that conditioned the approval of the acquisition of Ok Market, which consisted of waiving, within agreed terms, exclusivity clauses agreed in lease contracts for some premises.
This aspect of the case concluded in July 2023, when the TDLC approved a signed settlement between the FNE and CCA, in which the company acknowledged non-compliance and was obliged to pay $380 million (more than US$380,000) for tax benefit.
