LEGAL ALERT: Exceptional measures in proceedings before the National Economic Prosecutor’s Office, in response to the outbreak of coronavirus

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On March 25, 2020, the National Economic Prosecutor’s Office (“FNE”) issued Resolution No. 188, which orders that during the emergency situation of coronavirus, certain rules and proceedings will be adjusted.

I. Investigations
1) Proxies and representation before the FNE: The FNE shall accept, powers of attorney signed and approved by means of an electronic signature. If this is not possible – for example, because the proxy does not have a digital signature – the proxy(s) should send an email to the lawyer in charge of the investigation informing him/her of his/her appointment and acceptance of the assignment, and that he/she does not have an electronic signature. The following information should be included in the e-mail: (a) e-mail of the person that is granting the power of attorney, stating his/her full name, profession, address and identity card, designating one or more agents and stating that he/she does not have an electronic signature, and (b) a copy of his/her identity card, on both sides.

2) Communications: Responses to requests of information by parties under investigation and third parties, should be sent to oficinadepartes@fne.gob.cl with copy to the lawyer in charge of the investigation.
3) Interviews: Shall be made by remote means, using Zoom, Skype, telephone or others.

II. Merger Control
FNE requests notifying parties of possible merger operations, in light of the current exceptional situation, to undertake an evaluation of the opportunity of notifying a merger operation to the FNE, limiting the filings only to those which are urgent and essential to be notified and assessed.

1. Merger control notification and Complementary notifications:
1.1. Notification: From March 30th and during the exceptional situation the FNE shall only receive merger control notifications via e-mail sent to oficinadepartes@fne.gob.cl
1.2. For the purposes of calculation and compliance of deadlines, it will be understood that the deadline runs until midnight on the last day of the corresponding period for those submissions that are sent electronically.
1.3. Electronic digital filing of information: Those who are unable to attach all the respective files to the FNE’s e-mail -due to the weight, quantity, electronic format of the files, or for any other reason- may send several successive e-mails, attach the files in a compressed form, or send a link allowing the FNE to access them. If this is not possible, it will be understood that the submission is not complete and the deadlines for the FNE to resolve will not have any effect.
1.4. Other presentations: The abovementioned in regard to notifications will also apply to the complements of notification, as well as to the responses to the requests by virtue of which both parties of a merger control operation and third parties must accompany information to the FNE, and also to the submission of mitigation measures proposals.

2. Exceptional and transitory measures to comply with the delivery of information required by the Merger Control Regulation.
2.1 Granting of powers: Regarding the powers of attorney of the proxies of the economic agents, rules contained in Section I.1 above shall apply.
With regard to powers of attorney granted abroad and their apostille, the FNE will accept, on a temporary basis, the unofficial representation of the agents, by simply signing the documents or by means of other legalizations that may have been carried out.

3. Pre-notification: The pre-notification regime for consultations will continue, but during the period of exception the only channel for contacting the FNE will be the email prenotificaciones@fne.gob.cl

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