The Competition Tribunal dismissed a lawsuit by Helicópteros del Pacífico Ltda. Against CONAF and Ministerio de Agricultura, for alleged conducts against free competition in the market of aerial forest fire extinguishing services.
One of the accusations against CONAF was to have offered aerial forest fire extinguishing services to third parties, without the corresponding legal and administrative authorizations. The Competition Tribunal stated that, even though CONAF did offer those services and received payment for them, it was not proved that its conduct had the objective of reaching, maintaining or augmenting a dominant position in said market. Consequently, it was not punished for this accusation.
The second accusation referred to CONAF’s use of confidential information, given to it by companies during a public tender process, in order to offer them aerial forest fire extinguishing services directly. Once again, it was not proved that its conduct had the objective of reaching, maintaining or augmenting a dominant position in said market. Consequently, it was not punished for this accusation either.
The third and final accusation against CONAF, for alleged predatory practices, was dismissed as well. The Competition Tribunal considered that the documentation brought in the process did not prove that CONAF had offered aerial forest fire extinguishing services with the objective of illicitly exclude private companies from that market. It did not prove that, even if private companies would have exited the market, CONAF could have exercised the acquired market power and compensate for the temporary losses from a predatory conduct, either.
Even though all three aforementioned accusations were dismissed, the ruling stated that, even though it is understandable that sometimes public organizations act zealously while carrying out their duties, there’s no justification for infracting constitutional and legal restrictions regarding their participation in economic activities. Therefore, the ruling specifically prevents CONAF from offering the discussed services for a payment to lands that are not administered by them, until a bill that authorizes it to do so is passed. CONAF was also instructed to only request relevant information to participants of public tenders, especially in cases where CONAF itself could, eventually, offer the tendered services.
As for Ministerio de Agricultura, the lawsuit against it was also dismissed, since its participation in the described conducts was not proved.
One judge held a minority ruling, related to the characteristics of this market, which cause market failures that would justify the State’s subsidiary role in it.