The Competition Tribunal ruled in favor of Naviera Valdivia Limitada, Comercial Selva EIRL and Ricardo da Bove Fierro, in a lawsuit against Fisco de Chile and Sociedad Marítima y Comercial Somarco Limitada (Somarco), for actions against free competition. Fisco de Chile designed a tender that allowed the concessionaire to charge exclusionary rates, and Somarco –the concessionaire- effectively charged a rate that produces those effects, when he could have established a rate that did not exclude or did not tend to exclude competitors.
The decision established that, in this case, Fisco de Chile’s tender, that originated the contract for an “Integral Service for Inland Water Transportation in Región de los Ríos” (the Contract), allowed the concessionaire to exclude competitors in the market of inland water transportation between the sites of Niebla and Corral. This happened because the transport service and the administration and maintenance of the port infrastructure were tendered together, in a vertically integrated setting. The Contract allowed for the concessionaire to charge a homing fee to its competitors in the market of inland water transportation between the sites, which had the effect of foreclosing them from the market.
Because of this, the Tribunal declared that the homing fee was against free competition, and ordered Somarco to determine a cost-based fee that does not produce exclusionary effects to competitors in the inland water transportation market between Niebla and Corral. As a preventative measure, the Tribunal also ordered Fisco de Chile, in the event of a new tender after the current contract ends, to choose between: (i) tender essential port services and transport services separately, or award the tenders to different and unrelated persons, or (ii) choose a vertically integrated setting, and impose to the concessionaire the duty of fixating the homing fee to the division of total costs and investments for maintenance, conservation and exploitation of harbor works in Niebla and Corral between the total annual number of landfalls in the period, considering all users –including the concessionaire-, and subtracting any subsidies from the investments and costs.
Fisco de Chile had to pay Tribunal costs.