The Competition Tribunal dismissed lawsuits by Mr. Luciando Pinto Martínez and Sociedad Comercial Claal Ltda. (Claal) against Empresa Nacional de Minería (ENAMI). The plaintiff had to pay Tribunal costs.
In the lawsuit, Claal accused ENAMI of abuse of a dominant position, in buying minerals from small and medium-sized miners, unilaterally imposing abusive buying conditions, considering the high price of copper in international markets. ENAMI was also accused of predatory practices with the intent of achieving, maintaining or augmenting a dominant position in the market.
In its ruling, the Tribunal stated that ENAMI’s dominant position in buying minerals from small and medium-sized miners is caused by ENAMI’s promotion role in the mining sector. The Tribunal considered that ENAMI’s buying conditions are of general application, transparent, clear, available to every mineral seller all the time, and are not discriminatory. The only differentiating factor that ENAMI applies is the ore grade of the mineral, an element that directly affects processing costs.
The charge of predation was dismissed, because that conduct could not be configured in this case. According to the Tribunal, predation occurs when a company establishes commercial conditions that cause losses to third parties, and that have the objective of excluding competitors from the market, in order to achieve, maintain or augment a dominant position. Therefore, the sole circumstance that Claal and ENAMI are not competitors in the market, being in different levels of the copper and other minerals production chain, makes it impossible for ENAMI to incur in predatory practices against the plaintiff.