The Competition Tribunal partially accepted the lawsuit by Ganadera Río Baker Limitada and Ganadera Río Neff Limitada, declaring that Centrales Hidroeléctricas de Aysén S.A. (HidroAysén) infringed the prohibition contained in the Tribunal’s Resolution 22/2007 that imposes it the obligation to consult any request or acquisition of water rights in the basins of Palena and Aysén rivers and in the sub-basin of the Ibáñez river. According to the Tribunal, that infringement resulted in a violation of article 3, paragraph 1, of Decree Law 211.
Because of this, the Tribunal sentenced HidroAysén to the payment of a fine, considering the fact that the requests that infringed the aforementioned condition were dropped, as an attenuating circumstance.
The Tribunal backed up its ruling, arguing that the resolutions it dictates while exercising its consultative legal authority, are binding to whoever starts a consultation procedure. Therefore, the judicial consequence derived of failure to comply with the measures, conditions or terms that are defined in resolutions that authorize an act or contract, is the consultants’ responsibility in infracting free competition norms, when that failure to comply might result in endangering or injuring competition in the relevant market.
Additionally, the Tribunal considered that the measures or conditions imposed by it prevent the authorized acts or contracts being considered unlawful from an antitrust standpoint. Therefore, not complying with those conditions can not only affect their validity, but can also turn said acts or contracts into contrary to the Competition Act.