Chile's Tribunal de Defensa de la Libre Competencia (TDLC) fined Cadena Comercial Andina SpA, part of Grupo Oxxo, over $2.4 billion for providing false information when notifying its 2021 merger with Ok Market. The ruling accepts a request from the Fiscalía Nacional Económica (FNE) and emphasizes the need for accurate data in merger oversight. Oxxo stated it will consider appealing to the Supreme Court.
Chile's Tribunal de Defensa de la Libre Competencia (TDLC) accepted on Tuesday a request filed by the Fiscalía Nacional Económica (FNE) in December 2022 against Cadena Comercial Andina SpA (CCA), part of Grupo Oxxo. The fine, exceeding $2.4 billion (equivalent to 2,898 Tax Units), was imposed for violating article 3° bis letter e) of Decree Law No. 211 of 1973, which penalizes providing false information in merger notifications.
In its ruling, the TDLC stated: “The delivery of reliable, complete, and timely information in the notification is an essential element to carry out merger control duties. The authority must review the notified operation by the parties in a short period, making early access to all necessary information for that review fundamental.”
The FNE charged that when notifying the Ok Market acquisition in 2021, CCA initially reported 6 files for analysis, later supplemented with 34 documents. However, the company held at least 60 additional documents, such as studies, analyses, and reports on the affected market, which were not initially provided and required investigative efforts. These records, per the FNE, would have enabled more efficient processing by addressing sensitive market characterization aspects.
Fiscal National Economic Jorge Grunberg praised the decision: “this ruling protects the effectiveness of the preventive control system for concentration operations, reaffirming that those notifying an operation to the FNE must proactively provide all required background information under the regulations, in a truthful, correct, exact, and unequivocal manner.”
The original request also included a charge for failing to comply with a mitigation measure in the acquisition approval, resolved in July 2023 through a settlement requiring CCA to pay $380 million.
In response, Oxxo declared: “we have acted with transparency and good faith. From the start of this process, Oxxo has actively collaborated with the FNE and delivered all requested background in the investigation framework. At no time was false information provided, nor were backgrounds deliberately hidden.” The company reaffirmed that the operation was duly approved and that the questioned records did not alter the substantive analysis, so it will exercise its legal rights and evaluate an appeal to the Supreme Court to challenge the ruling.