MEXICO Trends and Developments Contributed by: Rodrigo Buj García, María José Jiménez Neria and Flora Astrid Alvarez Acosta, Malpica, Iturbe, Buj & Paredes
Abuse of dominance With respect to relative monopolistic practices (abuse of dominance), the reform introduced only one sub - stantive modification: the inclusion of an additional potential effect that may trigger liability. Specifically, it now provides that these practices may also be sanc - tioned when they result in “unduly limiting the ability of other economic agents to compete in the markets”. While this addition does not fundamentally alter the catalogue of relative practices, it broadens the scope of enforcement by allowing the authority to pursue conduct that, even without producing traditional exclusionary effects, can still impair the competitive From a procedural standpoint, the reform aims to streamline competition proceedings by reducing the timeframes available to the authorities. The key adjustments include: • investigations of monopolistic practices – an initial period of 30–120 days, extendable up to three times for 120 days each (previously four extensions were allowed); • initiation of sanctioning procedure – the deadline for the board to either initiate the sanctioning pro - cedure upon notification of the statement of prob - able responsibility or close the case was shortened from 30 business days to ten business days; capacity of rivals. Shorter deadlines • response of the Investigative Authority – the dead - line to address arguments and evidence submitted by parties was reduced from 15 business days to ten business days; • final arguments – must now be presented at a mandatory oral hearing before the CNA’s board, rather than through separate written submissions; • final resolution – the deadline was shortened from 40 business days to 30 business days; • barriers to competition or essential facilities pro - cedures – the investigation period was reduced from 60 business days to 40 business days, and the deadline to issue a resolution was also reduced from 60 business days to 40 business days; and • merger review – the deadline to resolve clearance requests was reduced from 60 business days to 30 business days, with a maximum extension of 20 additional days (previously 40).
These modifications reflect an effort to accelerate enforcement and increase procedural efficiency, though they may also limit the time available for par - ties to prepare defences and for the authorities to con - duct complex analyses. Sanction reductions and leniency programme The framework for sanction reductions in cases involv - ing relative monopolistic practices and unlawful merg - ers also underwent significant changes. Fine reduc - tions are now available only if the economic agent submits a co-operation request before the investi - gation is extended for a third time (in which case, a reduction of up to 100% of the applicable fine may be granted), or, alternatively, after the initiation of the sanctioning procedure but before its conclusion (in which case, the reduction may be up to 50%). Similarly, the rules governing the leniency programme have been tightened. The CNA may now grant full immunity only if the co-operation request is submit - ted before an investigation is formally initiated. If the request is filed later, subsequent applicants may only obtain fine reductions of 50%, 30% or 20%, depend - ing on the value of the additional evidence they pro - vide regarding the anti-competitive conduct. While the reform aims to provide greater certainty and discipline in the use of sanction reductions and leni - ency benefits, the stricter timing requirements may unintentionally weaken their effectiveness. By condi - tioning full immunity on co-operation requests filed before an investigation is even initiated, and by limit - ing subsequent reductions to relatively modest per - centages, the new framework could discourage firms from self-reporting or providing valuable evidence once an investigation is under way. This, in turn, risks undermining the leniency programme’s core function as the most effective tool for detecting and disman - tling cartels. Increase of fines One of the most significant changes is the increase in maximum fines for anti-competitive practices. Under the previous framework, penalties could go up to 10% of an agent’s annual revenues for collusion, and up to 8% for abuse of dominance or unlawful mergers. The new regime raises these ceilings to 15% for collusion
124 CHAMBERS.COM
Powered by FlippingBook