SAI Law & Economics
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Competition & Antitrust
In Mexico, some public institutions consolidate the procurement requirements of their entities into one public tender to save costs and increase efficiency. As such, joint propositions among competitors may be the solution for companies that wish to participate in such processes where they involve substantial volumes of goods. However, there are no official guidelines or criteria on how joint propositions between competitors should be negotiated or implemented so that they do not pose a risk to competition.
The Federal Economic Competition Commission (COFECE) recently issued a press release announcing that it had rejected Walmart's proposal to acquire Cornershop in light of the potential risks that it posed to competition and free market access. This case is significant as it is the first merger review case in which the COFECE has analysed vertical concentrations involving digital platforms.
All violations of attorney-client privilege are illegal, but the specific consequences will depend on the nature of the privileged information and the violation's potential effect on the plaintiff's defence strategy. In certain circumstances, a violation of attorney-client privilege can lead to a prohibition on prosecution due to procedural corruption. This article provides a number of practical tips for dealing with a violation of attorney-client privilege by the competition authorities.
In January 2019 the new government implemented several measures to counter and reduce gasoline and diesel theft, which generated fuel shortages in some of Mexico's main cities. To address these issues, the Federal Economic Competition Commission recently issued a follow-up to its 2016 recommendations which aimed to foster competition in the gasoline and diesel markets in order to address the new administration's concerns.
In 2017 the Federal Economic Competition Commission initiated an investigation into an unlawful concentration between Marzam – a major pharmaceutical product distributor in Mexico – and its main competitor, which had come to light following the release of the Panama Papers. However, before the investigation concluded, Moench Coöperatif (which had acquired control over Marzam) and one of its shareholders proposed a series of commitments in order to restore free competition in the pharmaceutical market.
In 2018 the Federal Economic Competition Commission (FECC) and the Federal Institute of Telecommunications (IFT) celebrated their 25th anniversary. Both authorities have made good progress in carrying out their various functions throughout the years and have been recognised globally for their positive effect on the country's economy. However, it will be interesting to see how the US-Mexico-Canada Agreement contributes to Mexican competition policy once implemented by the FECC and the IFT.
The Federal Competition Commission (FECC) recently issued its Competition Agenda for Public Procurement, in which it presented its findings regarding competition issues that can arise during the public procurement process. In the agenda, the FECC also proposed certain courses of action (both administrative and legislative) to promote effective competition in public procurement.
After two years of litigation, the First Collegiate Tribunal on Administrative Matters Specialised in Economic Competition, Broadcasting and Telecommunications has finally issued a final ruling acknowledging that the Federal Economic Competition Commission breached the attorney-client privilege principle during a dawn raid. The tribunal's ruling is relevant, as it demonstrates the possible outcomes of a violation of attorney-client privilege by the antitrust authorities.
FECC launches project to develop guidelines for analysis of collaboration agreements between competitorsMexico | 22 February 2018
The Federal Economic Competition Commission (FECC) recently issued its Annual Working Plan. In it, the FECC recognised that one of its strategic goals is to communicate to economic agents how anti-competitive practices will be investigated and which actions agents may adopt to prevent potential risks. In particular, the FECC declared that one of its goals for 2017 would be to launch a project to develop guidelines for the analysis of collaboration agreements between competitors.
Corn tortillas are a fundamental source of nutrition for Mexican families, and artificial price increases have a significant effect on the consumer economy. Given the importance of the corn tortilla market, it has come under the scrutiny of several authorities – for example, the Federal Economic Competition Commission, which recently fined three individuals a total of Ps394,508 for the commission of an absolute monopolistic practice in the market for the production, distribution and marketing of corn tortillas.
The Federal Economic Competition Commission (FECC) recently released a study on competition in the expired patent drug market, in which it analysed the level of competition in various drug markets following the expiry of an original drug's patent. According to the FECC, several obstacles to competition exist, which ultimately discourage possible new competitors from developing generic versions of drugs and entering the market.
The Specialised Competition Court recently annulled the Federal Economic Competition Commission's decision to revoke immunity granted during an antitrust procedure. The court's decision is relevant, as it sets the criteria for determining to what extent an economic agent can challenge the application of law in a specific case.
The Federal Economic Competition Commission (FECC) investigative authority recently published a press release stating that it had, for the first time, requested the attorney general to initiate criminal action against persons involved in absolute monopolistic practices. This case constitutes an important landmark in Mexico's promotion of competition; the FECC and the attorney general will work closely to set a precedent that will safeguard the credibility of criminal penalties.
The Federal Economic Competition Commission recently issued its Annual Work Programme. The programme's initiatives largely focus on sectors of strategic importance to Mexico's economic and social interests and should encourage economic agents participating in these sectors to avoid monopolistic practices that may harm, impede or restrict competition.
The First Collegiate Tribunal on Administrative Matters Specialised in Economic Competition, Broadcasting and Telecommunications recently ordered the admission of a trial against the Federal Economic Competition Commission, whose representatives had obtained confidential documents protected by attorney-client privilege during a dawn raid. This is a landmark judgment, as it recognises attorney-client privilege and the attorney-client work product doctrine in an antitrust context for the first time.
Shortly after its establishment, the Federal Economic Competition Commission (FECC) sought feedback on where it should focus its attention in regards to enhancing competition. The results indicated that the pharmaceutical sector should be a priority, particularly regarding the sale of medicines to public health institutions and these institutions' IP rights. As such, in 2016 the FECC launched a series of activities relating to the pharmaceutical sector.
The Federal Economic Competition Commission (FECC) recently revoked immunity granted to an undertaking involved in anti-competitive practice on the grounds that it had failed to fulfil its obligation to cooperate fully in all phases of the investigation. This is the first time that the FECC has revoked immunity and therefore sets an important precedent for undertakings that successfully receive immunity under the leniency programme.
As a result of the 2013 constitutional energy amendment, parties outside the Mexican Petroleum franchise model can now sell gasoline and diesel. Further, gasoline and diesel prices will be liberalised after December 2017. In light of this, the Mexican Federal Economic Competition Commission has issued a series of recommendations to foster competition in the market, taking into account legislative concerns and the market's performance.
In February 2015 the Federal Economic Competition Commission (FECC) initiated an investigation to determine whether essential inputs or barriers to competition existed in the air transport services market at Mexico City International Airport. The FECC recently issued its findings from the investigation and proposed several corrective measures. However, certain of these proposed measures raise significant concerns.
The Federal Economic Competition Commission recently issued a number of recommendations regarding first-hand contracts for the supply and franchise of gasoline and diesel. Although the recommendations are non-binding, they are intended to incentivise competition in the gasoline and diesel supply, sale and delivery markets, generating better conditions for customers and paving the way for the permanent liberation of the markets in 2018.
Following a public consultation, the Federal Economic Competition Commission (FECC) recently issued guidelines on the exchange of information between economic agents. The guidelines aim to clarify the elements that the FECC will consider when evaluating information exchanges and allow economic agents to determine with greater certainty whether their exchanges of information are permissible.
Following an investigation of the pay television market in 2,124 municipalities across Mexico, the plenum of the Federal Telecommunications Institute has ruled that Televisa is not a dominant agent in any of the relevant markets. However, the resolution – adopted with two of the seven commissioners dissenting – has generated much controversy among industry participants and academics.
Since transportation network companies such as Uber and Cabify began operating in Mexico City, much controversy has arisen regarding their regulation. In response, the Mexico City government has issued a new regulation governing how such companies provide their services. However, it may impose unnecessary limitations which could hinder competition between taxis and these companies.
The Federal Economic Competition Commission has approved a merger on the condition that the acquiring company abstain from requesting anti-dumping proceedings and provide no assistance or information within the framework of an anti-dumping investigation in the relevant market for 10 years. It is worth examining whether such measures were justified and strictly necessary.
The Federal Economic Competition Commission (FECC) recently published new technical criteria for the estimation and application of a quantitative index to measure market concentration. The technical criteria were issued after a public consultation and reflect the accumulated experience of the FECC and international best practices.
The Federal Economic Competition Commission recently initiated an investigation into the market for air transport services relating to landing and take-off slots at Mexico City International Airport. The purpose of the investigation is to determine the existence of alleged barriers to competition or essential inputs with potential anti-competitive effects.
The Federal Economic Competition Commission recently released its Strategic Work Plan 2015. The plan addresses one of the main issues facing antitrust regulation in Mexico: collaborations among competitors. It specifically commits to drafting, submitting to public consultation and ultimately issuing guidelines setting out the commission's criteria for assessing collaborations among competitors.
Earlier in 2014 several laws were enacted or modified in order to address the new legal energy framework introduced by the 2013 constitutional reform. As a consequence of the reform, the Federal Economic Competition Commission is expected to have a more active role in the energy sector, in order to ensure that private parties can compete fairly with the state-owned operators.
The new Federal Telecommunications and Broadcasting Law recently entered into force, introducing significant changes in relation to competition in the telecoms and broadcasting sectors. The new law recognises the Federal Telecommunications Institute as the authority governing competition in these sectors, with significant investigative and enforcement powers.
The new Federal Law on Economic Competition will soon enter into force. The new competition framework maintains the traditional faculties of any competition authority, but also grants important incremental powers and introduces new procedures and penalties, which will lead to additional regulatory costs and risks for regulated agents. Companies should thus take appropriate measures to avoid violations of the new framework.
The newly created Federal Economic Competition Commission (FECC) recently issued its strategic plan for 2014 to 2017, in which the FECC's commissioners and principal officers established the entity's mission, vision, values, objectives and strategic lines of investigation. The FECC considers that there are major competition-related challenges to resolve, specifically targeting several sectors.
After a fast legislative process, major reform to the constitutional framework for energy activities will soon become effective. These activities can now be carried out by private parties, including foreign investors. The reform will accordingly have a significant impact on competition matters, as the regulatory entry barriers to this sector have been eliminated to some extent.
After a two-month transition period, the new Federal Economic Competition Commission has resolved two major appeal proceedings inherited from the former competition agency that outline its revision criteria for future cases. The proceedings concerned the Sherwin Williams/Comex merger and the Cinemex/Cinemark merger.
Recent constitutional amendments provide for the creation of two new entities tasked with monitoring competition concerns – the Federal Economic Competition Commission (FECC) and the Federal Telecommunications Institute (FTI), both to be governed by seven commissioners. The Senate recently ratified six of the seven FECC commissioner candidates chosen by the president and all seven of his chosen FTI commissioner candidates.
Congress recently enacted amendments to the the competition regulatory framework in Mexico, which substantially overhaul the institutional structure of the Federal Competition Commission. Several significant modifications to the original proposals were made before passage. However, the future of proceedings pending before the commission is uncertain, due to unclear wording in the amendments.
A legislative proposal to amend the financial regulatory framework in Mexico was recently submitted to Congress. The amendment would have significant effects on competition policy in the financial sector; among other things, it provides for the Federal Competition Commission to monitor the sector and evaluate its competition conditions with the aim of making recommendations to financial authorities.
A proposal was recently submitted to Congress that provides for major changes to the institutional structure of the Federal Competition Commission. Among other things, the proposal calls for the creation of a new commission as a constitutional and autonomous entity, with new enforcement powers and operational guidelines. However, there is concern that the proposed amendments could bring considerable complications.
In 2010 the Federal Competition Commission (FCC) commenced an investigation concerning allegations of relative monopolistic practices – specifically, denial of service and discrimination – in the provision of both airport and complementary services and slot allocation by Mexico City International Airport. However, the FCC recently issued a resolution closing the case due to lack of sufficient evidence.
In three separate cases the Federal Competition Commission (FCC) has exercised its investigative and punitive powers over government officials involved in anti-competitive practices. These decisions have confirmed the reach of the FCC's authority and reinforced the precedent that government officials are not exempt from complying with competition laws due to their status as public servants.
The Mexican courts recently admitted an unprecedented amparo motion by a civil rights association, aiming to preserve the rights of freedom of speech and information, against a merger involving Grupo Televisa and GSF Telecom Holdings. This amparo motion is the first of its kind and sets a precedent in determining legal standing under Mexican law.
A year after imposing the biggest fine in Mexican competition history on Telcel, the Federal Competition Commission stated that it would not impose liability on the mobile phone company, finding its proposal of commitments to be "suitable and economically viable". The decision raises a number of questions; a potential court challenge might yet provide the answers.
Amendments to the Federal Law on Economic Competition in 2011 enhanced the Federal Competition Commission's powers to conduct inspection visits. Companies should ensure that they understand the scope of these powers and should prepare for the possibility of dawn raids. However, they should also be aware of significant and worrying questions that these enhanced powers may raise in practice.
The Federal Competition Commission has recently been involved in decisions on some of Mexico's most prominent cases involving media and telecommunications. However, a report by the Organisation for Economic Cooperation and Development reveals the extent of Mexico' s competition problems in the sector and the potential cost of inaction.
In May 2011 amendments to the Federal Law on Economic Competition entered into force. The aim was to make Mexican competition legislation more effective. A review of the Federal Competition Commission's activities in the fields of merger review, cartels and abuse of dominance, as well as significant pronouncements from the Supreme Court, offers an insight into the shape of competition enforcement in future.
The Supreme Court has issued a significant ruling on legal standing to challenge a Federal Competition Commission (FCC) declaration that an economic agent is dominant in a particular market. The case concerned Telmex - one of the biggest players in the telecommunications sector - and its motions for reconsideration of the FCC's finding that it had substantial market power in certain markets.
Amendments to the Law on Economic Competition seek to allow for collective actions for damages in competition matters. However, it remains unclear whether different standards apply for bringing individual actions and collective actions. Moreover, as a final Federal Competition Commission resolution is required for collective actions, will the deadline for bringing an action be suspended until a resolution becomes final?
After a long debate Congress has approved amendments to Mexico's competition regime. The changes include new exceptions to the obligation to obtain merger clearance, provisions on early termination of proceedings and greater powers for the Federal Competition Commission to investigate and penalise breaches of the law.