MEXICO Law and Practice Contributed by: Christian Lippert, Carlos Chávez, Juan Carlos Burgos and Édgar Martín, Galicia Abogados
2.15 Circumstances Where Implementation Before Clearance Is Permitted The CNA is not allowed to authorise closing prior to clearing the transaction. Carve-outs are neither prohibited nor regulated in Mexico. Accordingly, while theoretically possible, parties implementing them assume the risk that the carve-out is unsatisfactory to the agency. While this can be discussed with the agency’s staff, the CNA does not have clear statutory authority to approve such carve-outs and staff would generally limit them - selves to providing general guidance on the thinking of the CNA but would likely not provide assurances even informally. In at least one precedent, the predecessor agencies of the CNA fined the parties to a global transaction for gun jumping as they took the position that the carve- out implemented by those parties failed to adequately segregate the Mexican operation. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There is no deadline for making a merger control fil - ing. The only mandatory requirement is that a filing be made before the reportable transaction takes effect. 3.2 Type of Agreement Required Prior to Notification It is not required to have a binding agreement to make a filing. A draft of the relevant transaction document or even a term sheet could suffice to meet the statutory requirement. Having said that, there are a couple of nuances that the parties should bear in mind before making a filing before a binding or final agreement is reached: • The actual executed final transaction document will have to be provided to the CNA after closing to evidence that the transaction has closed. To the extent that the CNA considers that the final document and the draft it reviewed for clearance purposes are materially different (usually, because there is a change in the parties thereto, the perim - eter of the transaction, or the non-compete or non-
solicitation obligations), it could fine the parties as noted in 2.2 Failure to Notify (for closing a transac - tion different to the one cleared by the CNA); and • Once the CNA confirms that the parties have satis - fied its information requests, the filing is deemed “closed” and no material changes can be made thereafter. Accordingly, to the extent that there are changes in the parties to the transaction, the perimeter thereof, or the non-compete or non- solicitation obligations, a new filing would likely be required. 3.3 Filing Fees Filing fees apply to any filing, whether mandatory or voluntary. Until 2025, filing fees were fixed annually by Congress in the Federal Duties Act ( Ley Federal de Derechos ). On 19 December 2025, the CNA passed a resolu - tion (the “Order”) setting the merger control filing fees applicable from such date. The Order abandons the fixed fee and transitions to a ladder of fees that are now determined based on a metric called the Maxi - mum Estimated Value of the Transaction in Mexico ( valor máximo estimado de la operación en México , or MEV). Based on the MEV, filing fees are divided into five tiers and range from approximately USD50,000 (excluding VAT, which applies to the filing fee) in the lower range, to approximately USD335,000 (excluding VAT), in the upper range. Determining the MEV is not straightforward. Under the Order, applicants must calculate the MEV using the highest value among several variables set forth in the Order and CNA guidance, including, among others: (i) consideration actually paid; (ii) value of assets actu - ally acquired; and (iii) acquired share capital. As part of the filing, the parties must make a determination of the filing fee and attach evidence of payment thereof. The CNA, in turn, can require that the parties make a supplemental payment per the fee ladder contained in the Order if it determines that the MEV is higher than that considered by parties. In this case, supplemental payment would typically be required before the CNA clears a transaction. Conversely, if the parties consid -
388 CHAMBERS.COM
Powered by FlippingBook