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29 June 2017
On July 5 2016 the Federal Economic Competition Commission (FECC) imposed total fines of $3,882,378.52(1) on Denso and Mitsubishi for commissioning an absolute monopolistic practice in a sensible commercial information exchange, the object and effect of which was the manipulation of the price of automobile air conditioner compressors.
In its ruling, the FECC revoked the immunity granted to Denso, on the grounds that it had failed to fulfil its obligation to cooperate fully and continuously with the FECC during all phases of the antitrust procedure. The FECC held that 'cooperating' under the leniency programme means to "act jointly with another or others to reach a common goal; act favourably in accordance to the interests or purposes of someone". This implies that, under the leniency programme, economic agents should not deny a practice or try to impede the FECC from imposing a penalty.
Denso challenged the FECC's resolution though an amparo action (ie, based on constitutional grounds) submitted on August 5 2016 before the first judge of the Specialised Competition Court. Denso's main arguments were as follows:
On January 3 2017 the first judge of the Specialised Competition Court resolved as follows:
The FECC requested a review of the Specialised Competition Court's resolution, which is pending.
The Specialised Competition 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. On the one hand, while it is clear that an economic agent cannot deny the facts ascertained during an antitrust procedure, it is unclear whether it must accept the FECC's motivation and reasoning in relation to the illegal conduct. On the other hand, it is clear that economic agents must cooperate with the FECC in such a way that ensures that the procedure is effective. Permitting an economic agent to act strategically when adhering to the leniency programme may affect the programme's effectiveness.
For further information on this topic please contact Lucía Ojeda Cárdenas or Felipe García Cuevas at SAI Consultores SC by telephone (+52 55 59 85 6618) or email (email@example.com or firstname.lastname@example.org). The SAI Consultores website can be accessed at www.sai.com.mx.
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