This presentation by the Chile's Tribunal de Defensa de la Libre Competencia was made during the discussion on "Price discrimination" held during the 126th meeting of the OECD Competition Committee on 30 November 2016. More papers and presentations on the topic can be found out at www.oecd.org/daf/competition/price-discrimination.htm

1. Price Discrimination
Chile
OCDE
Roundtable on Price Discrimination
November 30, 2016

3. Abuse of a dominant position: in context
• According to the numbers, most of the TDLC’s work is on abuses of dominance.
- Not strange in developing economies, with entrenched dominant firms and rulling elites,
small markets, and ”natural barriers” due to location.
• But numbers are misleading
- By far the most important cases are on collusion
- Most of the abuse of dominance cases are straighforward and “easy” – clear dominance,
anticompetitive conduct is evident.
• Don’t believe in numbers.

4. Abuse of a dominant position: exploitative abuses
• Within abuses of dominance cases, very few are exploitative. But there is a jurisprudence
- E.g., excessive pricing is accepted under very narrow conditions.
• Excessive pricing:
• EMELAT as non-intervention outcome. Role of the Tribunal as regulator seen as
problematic.
• Campomar decision (2014), the majority over-ruled the prior approach. A tipping point?
• Explicit standard concerning excessive pricing.

5. Exploitative price discrimination (1)
• Fewer exploitative cases on price discrimination. Price discrimination sanctioned in Chile on a
stand-alone basis.
• Only few cases on price discrimination have been brought to the TDLC.
• Analysis focused on whether the conduct is arbitrary or not. Parties present the case with no
economic support
• Civil approach: justification hinging on costs or situation of buyers/suppliers.

6. Exploitative price discrimination (2)
• Examples:
• Telecommunications Company v. public train Company (EFE), 2008.
• International Courier services v. Santiago airport franchisee, 2008.
• FNE v. utilities firms (sewage and water distribution), 2009.

7. Exploitative price discrimination (3)
- All three cases decided on the basis that the amounts charged by the dominant firm to the
different parties were not based on any relevant measure of cost.
- But cases are “easy” – arbitrary discrimination was enough as standard to decide the case.
- Test similar to the one used in United Brands (lack of relation with the economic value of the
product).

8. Exploitative price discrimination (4)
• Legality matters: At least two of the cases were accepted due to the broad Chilean provision in
the law. They would not be accepted in the EU, for instance. They are more cases of
“unfairness”. However, beyond the general statement and due to lack of evidence, none of the
cases went deep into the economic reasons that would have allowed a discrimination.
• Cases reflect certain bias (perhaps a presumption) towards considering that price
discrimination is competitive.
• Today, under current development of the case-law in other areas, probably the requierement is
to present more (economic) evidence / support.
- Whether the discrimination is welfare-enhancing and can increase competition
- More information about the market in question.

9. Exclusionary price discrimination
• Price discrimination can be part of an exclusionary conduct. Most pressing antitrust concerns
about price discrimination relate to the pricing of inputs (upstream market).
• Price discrimination in the upstream market as part of margin squeeze ((which, unlike the US, in
Chile can be a stand-alone anticompetitive claim).
• E.g., at least two cases: in the telecoms and wood-made furniture markets.