The FECL provides a leniency programme for cartel offences.25 The leniency programme provided in the FECL is similar to leniency or amnesty programmes in other jurisdictions. The Mexican programme grants practical immunity to those cartel offenders who appear before the authority to self-report a cartel violation, even for ringleaders.
The leniency programme grants immunity to cartel offenders who request it by exempting them from criminal prosecution and disqualifications,26 and reducing the fine to its lowest possible amount (89.62 Mexican pesos). Yet, there is no exemption for damages in private or class actions, and leniency protection is granted only if the following occurs:
- a cartel member is the first to apply to the programme and recognises its participation in the cartel;
- a cartel member provides enough evidence that allows the investigating authority to initiate an investigation procedure or at least allows the authority to presume the existence of a cartel;
- the applicant fully and continuously cooperates with the competition authority throughout the entire procedure by providing information and collaborating with all requests; and
- the applicant implements all necessary actions to terminate its participation in the cartel.27
If there is already a first leniency applicant, the remaining cartel offenders can obtain other types of benefits, which include partial fine reductions and full criminal prosecution immunity when they provide additional evidence related to the conduct being investigated. The following table outlines what type of benefit applicants might receive.
|Applicant||Reduction of fines||Disqualification sanction||Criminal prosecution|
|First||Maximum fine reduction*||Immunity||Immunity|
|Second||30 per cent to 50 per cent fine reduction||Immunity||Immunity|
|Third||20 per cent to 30 per cent fine reduction||Immunity||Immunity|
|Fourth and subsequent||Up to a 20 per cent fine reduction||Immunity||Immunity|
|* The minimum applicable fine is equivalent to one Unit of Measure (UMA) (the official unit for determining fines), which, in 2020, was set at 86.88 Mexican pesos. For 2021, the UMA is set at 89.62 pesos.|
As in other jurisdictions, the marker system in Mexico is very relevant when applying to the leniency programme. Pursuant to the provisions set forth in the FECL and the Guide for Leniency Application Programmes issued by Cofece,28 a leniency applicant will obtain a marker after applying for the leniency programme.29 Likewise, when formally submitting the leniency application, the applicant does not need to provide relevant information concerning the cartel, as it can provide this subsequently.
According to Article 103 of the FECL, the investigating authority is under an obligation to preserve as confidential the identity of the leniency applicant at all times and without exceptions. Likewise, information provided by the leniency applicant will be classified as confidential, and no third party (including private practitioners or external counsel) should access this information.
Mexico's leniency programme witnessed a remarkable rise in applications in 2015 and 2016, but this has since tailed off.30 In 2013 and 2014, Cofece received, respectively, four and six leniency applications. The numbers jumped to 18 in 2015 and 26 in 2016, before declining to 15 in 2017 and only 10 in 2018, with no information on the number of applications during 2019 or 2020.31 The decline is attributed to several concerns regarding the legal uncertainty of the immunity programme that has arisen with some recent Cofece decisions. However, Cofece reported that in 2019, the total amount of reductions resulting from its leniency programme was 28 million pesos.32
The International Competition Network's best practice suggests that the success of any leniency programme depends on the legal certainty that it provides to those who want to resolve their criminal liability. To provide that certainty, the authority should be explicit in defining the leniency requirements. Additionally, if an applicant meets the leniency requirements, the agency shall have little to no discretion to deny the request.33 For example, the US Antitrust Division attributes part of its success to its 20-year record of honouring leniency agreements, which provides comfort to potential applicants.34
Yet, Mexico's deviation from this best practice has been problematic. Specifically, it is argued that the lack of legal certainty is a leading factor for the declining number of leniency applications. And the attraction to leniency has decreased partly as a result of two cases in which Cofece withdrew the benefits of leniency to applicants for a failure to cooperate sufficiently,35 thus reducing certainty and predictability for would-be applicants.
However, specialised federal courts have recently decided that revocation of leniency benefits should be limited, and that leniency applicants should not lose leniency benefits even if they choose to exercise their constitutional defence rights against Cofece's claims.36 A specialised federal court recently ruled that the fact that a leniency applicant, when submitting a response to a statement of objections, exercises its defence rights through raising defences against the accusation should not be considered as conduct against the obligation to cooperate under the FECL, considering that cooperation rights are not infringed by clarifying investigated facts and contesting the accuracy of some of these, as there is no legal restriction to do so.
Furthermore, concerns regarding new anti-corruption laws have caused applicants to fear using the antitrust leniency regime because they could simultaneously implicate themselves criminally under the country's new anti-corruption laws.37 These factors, along with the very high fines that Cofece has recently imposed in cases commenced under the leniency programme and the assessment of damages that Cofece has made for fining purposes, have contributed to an unwillingness to apply for the leniency programme. Nonetheless, Cofece believes the diminishing number of applications can be directly attributed to a lack of awareness of the existence of the leniency programme.38
Mexico has also adopted another noteworthy deviation to its leniency programme. Whereas in most jurisdictions a ringleader cannot be granted full immunity, this is not the case in Mexico. Unlike in other jurisdictions, the FECL makes no distinction. A benefit of the Mexican system is that cartel members are more likely to come forward when they do not have to worry about the uncertainty of who the ringleader is. Thus, international cartel applicants should note that although they may be ineligible for certain types of immunity in jurisdictions such as the United States, they may still be eligible in Mexico.
Moreover, Cofece's leniency programme was recently reinforced. In March 2020,39 Cofece published its new proposed Regulatory Provisions or Regulations for its Leniency and Fines Reduction Programme in terms of Article 103 of the FECL.40 The main features introduced by these new provisions include:
- explaining what should be understood under the obligation to 'fully and continuously cooperate' with Cofece under the context of a leniency application, as the scope of such obligation has been subject to debate in recent cases before federal courts;
- providing clarity on the procedure to follow when a request for immunity is received, as well as the rights and obligations of those who adhere to the Programme;
- providing key information so that applicants know their place in the chronological order of application for immunity, in the event that they are awarded the benefit definitively; and
- introducing a new specific process that addresses what should happen when Cofece revokes leniency benefits to an applicant, including the right to have a prior hearing before the actual revocation occurs, or to receive a notice from Cofece that leniency benefits might be revoked depending on which stage the investigative procedure is at.