The Competition Tribunal approved the merger between SMU S.A. (SMU) and Supermercados del Sur S.A. (SDS), subject to the following mitigation measures:
- Sale of a group of supermarkets, chosen by the inquiring parties among the options set by the Tribunal, in the districts of Casablanca, Chimbarongo, San Carlos, Tomé, Penco, San Pedro de la Paz, Chiguayante, Lota, Pedro Aguirre Cerda, Angol, Temuco, Panguipulli, Valdivia, La Unión, Río Bueno, Frutillar, Puerto Montt, Ancud and Coyhaique, as well as the distribution centers that SDS operated in Pudahuel, Concepción and Osorno, and at least one of the commercial brands of SDS’s acquired establishments that were not being used by SMU at the time of the inquiry. All this must be sold as one economic unit, within an eight month period starting from the date on which this decision becomes enforceable.
- The purchaser of these assets may not be related to SMU S.A. nor may, at the date of this decision, have a national market share above 25% of supermarket sales.
- While the sale of the facilities considered in the first condition has not been completed, SMU must continue operating those premises and match the prices charged in those establishments to the prices charged in the closest location that has sufficiently competitive conditions, as well as reach agreements with local suppliers with conditions that are at least as favorable as the ones agreed with suppliers of the premises in the closest regional capital city, adjusted by differences in transport costs, if they exist.
- The sale of all direct or indirect participation in Supermercados Montserrat S.A., within an eight month period starting from the date on which this decision becomes enforceable.
- The modification of non-compete clauses agreed with the previous controllers of supermarket chains that had been purchased by SDS, adjusting them to a maximum period of two years from their original subscription.
- The establishment of general contract terms and conditions in analogue terms to those maintained by Cencosud –defining as “small provider” him whose total annual sales to SMU are equal or less than twenty five thousand UF, without VAT-, which must be displayed permanently in a visible place of its website. SMU will not be able to charge providers for the re-inauguration of facilities acquired to SDS or their related companies by this merger, and
- SMU and its related companies are required to inquire any concentration operation in the supermarket industry to this Tribunal, in the terms defined in article 31 of D.L. N° 211, and prior to its materialization, be it either in the wholesale or the retail segment.
The majority decision was was issued with the prevention of Judges Mr. Menchaca and Mr. Peña, who were for approving the operation without establishing the condition of divestiture of SDS’s three distribution centers in the districts of Pudahuel, Concepción and Osorno. Mr. Menchaca also was for not establishing the condition of divestiture in the district of Temuco, given that he considered that existing and potential competition in that geographic market was enough after the inquired operation.