The Competition Tribunal dismissed a lawsuit by the National Economic Prosecutor’s Office against Abercrombie & Kent S.A., ADSmundo Turismo Ltda., Turismo Cocha S.A., Chilean Travel Services Ltda. (CTS) and Turavión Ltda. The Tribunal considered that, even though it can be credited that at least some of the defendants worked coordinately to try to obtain larger commissions from Explora, this conduct could not give them enough market power to abuse Explora, as required by letter a) of Article 3 of the Decree Law N° 211, in its version at the date of the events.
Notwithstanding the former, the decision states that a coordinated negotiation by a group of competitors who do not have market power, facing a counterpart who has market power, can be economically efficient and is not per se illicit. Nevertheless, it cannot be deemed appropriate that the largest companies in this market –who jointly represent approximately 65% of total sales by tour operators in the country– coordinately, negotiate commissions with one of their clients. This conduct is punishable if it has the objective capability of conferring them enough market power to be used abusively, which was not proved in this case.
Summarizing, the Tribunal stated that, given (i) the lack of market power of the defendants with regard to Explora; (ii) the lack of proof regarding pressuring Explora, or other concerted actions against other suppliers of hotel or tour services; and, (iii) that the accused actions took place before the 2009 law modification, the National Economic Prosecutor’s Office’s lawsuit was dismissed.