MEXICO Law and Practice Contributed by: Christian Lippert, Carlos Chávez, Juan Carlos Burgos and Édgar Martín, Galicia Abogados
er a higher MEV and pay a higher filing fee than they should have, they are not entitled to a reimbursement. 3.4 Parties Responsible for Filing The FCA requires that all parties to a relevant transac - tion make the filing. While this is generally limited to buyer and seller, the CNA usually requires that all par - ties to the transaction agreement join the application. In practice, this could result in parent entities, target entities, guarantors and minority sellers (often times, several individuals) having to either sign the applica - tion or grant a power of attorney to be represented in the proceedings. 3.5 Information Included in a Filing Generally speaking, per the FCA and CNA practice, all parties making a filing must provide a notarised and apostilled power of attorney (except for individuals signing the application themselves), together with a certified Spanish translation thereof. The applicants, along the same lines, must file, togeth - er with the application, copies of their organisational documents and most recent financial statements (in all cases, together with certified Spanish translations thereof). Equal corporate and financial information is required from all entities involved in the transaction (usually the target and its subsidiaries and the relevant subsidiaries of the applicants). The applicants are also required to provide documentation, to the extent avail - able, which sets forth the rationale of the transaction from their perspective. The application itself must be filed in Spanish and include a description of the parties (including their shareholding structures), the transaction, and the tar - get and its business. Also, a proposed relevant market should be described and market information (partici - pants, market shares, market structure and dynamics, among other things) provided. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification As the burden to make a complete filing is placed on the applicants, there is no fine for submitting incom - plete information. Having said that, an incomplete fil - ing may result in the dismissal thereof, although appli - cations are rarely dismissed and parties are usually
given the opportunity to supplement and complete the information through requests for information (RFIs). Providing inaccurate or misleading information, on the other hand, may result in fines should the CNA take the position that the parties closed a transaction different to the one approved by it. Correspondingly, transactions cleared by the CNA cannot be chal - lenged thereafter, unless the same were approved on the basis of incomplete or misleading information. Supplying false information to the CNA is a felony and can result in criminal charges to the applicants and even their representatives. 3.7 Review Process Differently from other jurisdictions, merger control pro - ceedings before the CNA are not divided into phases. Once a filing is made, the CNA usually (in the vast majority of cases) makes an RFI within ten business days, based on the information contained in and attached to the application. Such requests are cus - tomary and not an indication that a more in-depth analysis is warranted. These RFIs, however, can be lengthy, and the timeframe to respond to the same is relatively short. Most matters are cleared after the parties satisfy the requests contained in the RFI and any follow-on questions from staff. To the extent that staff are not satisfied after the responses to the RFI have been delivered, the CNA has the statutory powers to issue a second RFI, which is generally broader and more focused on market infor - mation. It may also conduct a market test and request information from third parties. A second RFI and/or requests to third parties are indications that staff have identified competition concerns which will need to be addressed before the matter can be cleared. If, after the aforementioned proceedings, staff still believe there are competition concerns, they will notify such concerns to the applicants, who can, in turn, propose remedies to address them. With such remedies or in the absence thereof, staff will issue a recommendation to the Board of Commissioners, which will decide the matter.
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