The Competition Tribunal ruled in favor of Atrex and others, in a lawsuit against SCL, concessionary of the Airport of Santiago, Chile, for abuse of a dominant position and unjustified discrimination against courier companies who do business in the airport.
These conducts can be summarized as follows: first, establishing a tariff for subconcessions of facilities used by couriers, based on kilograms of each company’s transported cargo. This calculation method was not authorized by the Tender process’s bases, or by the Concession Decree, which govern SCL. The excess income perceived by SCL between November 2004 and November 2006, under this concept, was estimated in CL$ 552 million (around US$ 1,1 million).
Second, the Tribunal verified both discrimination from SCL against some smaller courier companies, charging them different prices with no justification, and a different treatment to Correos de Chile regarding other courier companies, since SCL does not charge it the variable tariff, based on kilograms of transported cargo.
The Tribunal also considered that SCL violated free competition by abusing its dominant position, by restricting the expansion of infrastructure for courier companies, even though suitable terrains are available in the airport. SCL delayed the expansion’s negotiation process without justification, prolonging the necessary studies and demanding unjustified requisites and conditions for new facilities.
Even though the Tribunal declared that the lawsuit exceeded the statute of limitations, and the defendant’s lack of standing to be sued for the Tender bases, Concession Decree and Complementary Agreements that regulate the Airport of Santiago, SCL was fined for the aforementioned conducts with 1,800 Annual Tributary Units (around US$ 1,7 million), and it was declared that this company must rent a terrain to courier companies, if they ask it to, so that they can build the necessary facilities, jointly of separately, among other corrective measures.
To establish the amount of the fine, the Tribunal considered the unjustified income, the economic losses that the discriminatory conducts caused, the delay in making new infrastructure available for courier companies, SCL’s previous antitrust offenses, and the particular care that this company should have had in not abusing its monopoly power over the Airport infrastructure. The Tribunal also took into account -in SCL’s favor- that the Public Infrastructure Ministry’s fiscal inspector, who should have overseen these practices, did not object to them, even though he was aware of them.