In a unanimous decision, the Competition Tribunal accepted a lawsuit presented in November 2011 by the National Economic Prosecutor’s Office against Agrosuper S.A. (Agrosuper), Empresas Ariztía S.A. (Ariztía), Agrícola Don Pollo Limitada (Don Pollo) and the Association of Poultry Producers of Chile (APA). The decision stated that Agrosuper, Ariztía and Don Pollo, via APA, agreed to limit production of poultry meat offered in the national market, and assigned production quotas amongst themselves, infringing Article 3 letter a) of Decree Law N° 211.
The decision established the existence of the illicit agreement with e-mails and other evidence of coordination between the defendants. The agreement between the poultry companies, who concentrate over 80% of the national supply of poultry meat, consisted of projecting future demand for poultry and assigning production quotas. The Tribunal established that it was proven that APA had an important role in coordinating, implementing and monitoring compliance with the agreement.
The Tribunal stated that abundant evidence proves that the defendants, using demand projections manufactured with APA, pursued a range on which they wanted the poultry meat prices to fluctuate –implicitly and most likely imperfectly–, by defining coordinately a predetermined level of production. This last exercise constitutes a collusive agreement regarding output quantities, in order to achieve specific prices or price ranges, thereby restricting or suppressing competition between the defendants. Within each year, the agreement was controlled or adjusted by load suggestions, slaughter of chicks or other coordinated policies or mechanisms.
The Tribunal also considered that other instances of coordination were proven, which account for the complexity of the cartel that the poultry companies formed.
On its decision, the Tribunal rejected every exception, allegation and defense of the defendants, particularly, the statute of limitations defense of Ariztía and prescription allegations by all the defendants. The Tribunal also stated that the applicable law for this case is Decree Law N° 211, in its modified text by Law N° 20361 of 2009.
The decision set the maximum possible fines to Agrosuper and Ariztía; they had to pay 30,000 Annual Tributary Units. Don Pollo’s fine ascended to 12,000 Annual Tributary Units. The Tribunal also ordered the dissolution of APA, who acted as coordinator of the cartel. The Tribunal imposed Agrosuper the obligation to submit any concentration operation to merger control.
Former judges Butelmann and Depolo concurred to the ruling, but they were for: (i) imposing a 30,000 Annual Tributary Units fine to Don Pollo; (ii) force all the poultry producers in the cartel to submit any concentration operation to merger control, as well as inquire the Tribunal before participating in new trade associations; and (iii) force them to undergo a compliance program in antitrust for 5 years.