After a long debate Congress has approved amendments to the competition legal framework. They entered into force on May 11 2011 and affect many aspects of antitrust law. This update considers some of the most important aspects.
On the issue of joint dominance, the amendments expressly allow the Federal Competition Commission to consider joint substantial power in cases involving relative monopolistic practices (ie, abuse of dominance, monopolisation and rule of reason claims), declarations on effective competition conditions and merger reviews.
The amendments clarify the simplified merger review process and indicate situations where the simplified merger review applies (ie, for mergers in which it is clear that no negative effects will occur). Formerly, these situations were set out in the regulations.
New exceptions apply to the obligation to obtain merger clearance from the commission. Clearance is not required for:
- corporate restructurings;
- transactions in shares of foreign companies, provided that the economic agents involved do not acquire a participation in Mexican companies or assets, either directly or indirectly;
- transactions in which the acquirer has controlled the target since its incorporation or since the commission's approval of a transaction in respect of the same target;
- contributions to guarantee or administration trusts that do not involve a transfer of assets to parties other than the fiduciary;
- acquisitions by equity investment funds in which the purpose of the transaction is to purchase equity with resources obtained through public placements, unless the transaction allows the acquirer to exercise significant influence over the target's decision making; and
- transactions on the stock market, provided that the acquirer does not hold more than 10% of the target and its interest does not entitle it to participate in the administration or decision making of the target.
The amendments allow for early termination of proceedings involving allegations of relative monopolistic practices or anti-competitive mergers through settlement by consent - that is, a commitment to suspend, withdraw from, correct or refrain from the conduct or merger in question. Such termination may be granted with or without an attribution of liability. If a party is found liable, the commission will impose a fine, which will be half the amount that would have been imposed had the settlement not been reached.
The commission's investigative powers during verification visits (ie, dawn raids) have been strengthened; until this change was introduced, the commission could examine only data and documents that it had previously requested.
The commission is empowered to impose provisional measures in order to restrain the negative effects of a merger or anti-competitive conduct while proceedings are ongoing.
The size of the fines that the commission may impose on economic agents has risen. Fines are expressed as a percentage of the taxable revenue of the economic agent which is directly liable, excluding income from foreign sources. The commission may impose fines of:
- up to 10% for absolute monopolistic practices (ie, hardcore cartels) or failure to comply with conditions or commitments imposed by the commission in merger clearance;
- up to 8% for unfairly exercising monopolistic practices or engaging in an anti-competitive merger; and
- up to 5% for breaching the obligation to request clearance for a reportable merger.
Individuals responsible for absolute monopolistic practices face between three and 10 years' imprisonment. This crime is prosecuted on the basis of a complaint by the commission and does not apply to parties that have successfully applied for leniency.
A new appeal procedure will be available to parties that wish to challenge a resolution issued by the commission. A new trial will be heard by specialist judges and courts that specialise in competition matters. Rules on the new procedure are to be issued by mid-December 2011.
The commission is obliged to issue and update public guidelines on:
- the calculation of fines;
- the merger review process;
- the initiation of investigations;
- the determination of substantial market power and joint dominance;
- the determination of relevant markets;
- leniency programmes; and
- provisional measures.
For further information on this topic please contact Lucia Ojeda Cardenas at SAI Abogados by telephone (+5255 59 85 6618 ), fax (+5255 59 85 6628) or email ([email protected]).