MEXICO Law and Practice Contributed by: Agustín Aguilar López, Carlos García Cueva, Claudio Catalán Arvide and Joana Karime Novia Ibarra, Aziz & Kaye Business Law
2.3 Impact of Competition Authorities Decisions issued by the CNA are non-binding and do not create precedent for the courts. The role of spe - cialised judges and courts is to review the legality of such decisions and determine whether they infringe upon the fundamental rights of economic agents. In the context of damages claims, the decision of the competition authority must be treated by the courts as conclusive proof of the existence of the unlawful con - duct. Courts cannot disregard the decision or admit evidence intended to disprove it. Moreover, the competition authority is entitled to inter - vene and may legitimately file class actions to claim damages. However, no authority had ever exercised this power until October 2024, when the now-extinct COFECE filed its first-ever class action lawsuit alleg - ing collusion in the supply and pricing of medicines. The lawsuit named several major pharmaceutical dis - tributors and seeks approximately MXN2.3 billion in compensation, to be allocated to the IMSS-Bienestar programme (the Mexican Social Security Institute’s public healthcare initiative aimed to provide free, uni - versal access to primary and secondary medical ser - vices for people without social security coverage). The outcome of this case is still pending. However, it is worth highlighting that the District Court initially dismissed the class action, arguing that COFECE’s resolution was not yet final and unappeala - ble; COFECE challenged this dismissal and requested the Supreme Court to exercise its power of attraction. In that regard, earlier this month, the Supreme Court ruled that COFECE’s resolutions become final and unappealable upon issuance, as there is no ordinary appeal available against them under the Mexican legal framework, with only amparo proceedings available as constitutional review. As a result, the Supreme Court revoked the lower court’s decision, allowing the class action to proceed. This criterion aligns with the new FECL, which allows the authority to file a class action lawsuit as soon as the CAN’s decision is issued. Conversely, resolutions from foreign competition authorities have no legal effect before Mexico’s spe - cialised competition courts in damages claims. Nev -
ertheless, in the absence of a sufficient number of domestic precedents, foreign competition authorities’ decisions have occasionally been used as a guide by Mexican competition authorities and courts. 2.4 Proof No judgments have been issued for damages against those who have violated the FECL. In a lawsuit seeking damages for anti-competitive conduct, the plaintiff must demonstrate the follow - ing: (i) the existence of anti-competitive conduct, as established by a decision of the competition authority; (ii) that damages resulted from such unlawful conduct; and (iii) the causal link – ie, it must be proven that the damage is a direct and immediate consequence of the unlawful conduct. In this regard, the decision of the competition authori - ty is conclusive regarding the unlawfulness of the con - duct, and no evidence to the contrary is admissible. On the other hand, from the authors’ perspective, there is no legal presumption applicable to damages claims. Therefore, the burden of proof lies entirely with the plaintiff, who must demonstrate, through direct evidence, the existence of harm and its direct and immediate connection to the unlawful conduct. 2.5 Pass-On Defence In Mexico the “pass-on” defence is regulated by the Federal Civil Code and the Federal Code of Civil Pro- cedures. These establish that the claimant for damag - es must prove that the alleged damage was caused to them, that there is a causal link between the wrongful act and the damage, and that the damage is directly attributable to the party held liable by the competi - tion authority. Thus, the burden of proof lies with the plaintiff and the standard of proof is high. For example, it is possible for the defendant to allege that the plaintiff did not suffer any damage because of an anti-competitive practice, having transferred the overcharge to the next link in the production chain.
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