MEXICO LAW AND PRACTICE Contributed by: Fernando Carreño, Sergio López, Michel Llorens, Andoni Garza and María García, Von Wobeser y Sierra
first part. However, the second part of the analy - sis contemplates the Mexican assets or sales of all parties involved in the transaction – ie, seller, buyer and target (as applicable). With respect to changes in the business, it is important to note that these should not affect the assessment, as Mexican law requires that only the financial information from the audited financial statements of the most recently com - pleted fiscal year be considered. Accordingly, if a business was divested or acquired, the corre - sponding financial figures must be excluded or included in the threshold analysis, as applicable. 2.8 Foreign-to-Foreign Transactions In Mexico, there is no explicit local effects test for foreign-to-foreign transactions. However, the Mexican thresholds imply the necessity of a certain local presence through either the acqui - sition of Mexican assets/capital stock or the existence of Mexican sales. Hence, a foreign- to-foreign transaction could trigger a Mexican fil - ing if it implies the acquisition of Mexican capital stock/assets or where the parties’ Mexican sales exceed the threshold. Based on the foregoing and the Mexican thresh - olds, a filing would not be triggered if the target has neither Mexican sales nor assets/capital stock. 2.9 Market Share Jurisdictional Threshold It is important to note that in Mexico, all thresh - olds are monetary-based, meaning there are no thresholds based on market share. 2.10 Joint Ventures Joint ventures are subject to merger control and the general thresholds apply. Joint ventures can qualify as a transaction subject to merger control
if they involve the union of two or more undertak- ings to jointly carry out economic activities either contractually or through a vehicle with legal per - sonality – in the latter case, through which said agents will make contributions and participate jointly in the profits and losses. 2.11 Power of Authorities to Investigate a Transaction Mexican antitrust enforcers have a one-year statute of limitations to investigate transactions that fell below the notification thresholds. How - ever, if a transaction met any of the applicable thresholds and the parties failed to notify it, the enforcers have up to ten years to initiate an investigation. 2.12 Requirement for Clearance Before Implementation In Mexico, all transactions that trigger a Mexi - can filing must not be closed until the Author - ity authorises the transaction. In fact, Mexican competition law requires the parties to include a clause in the transaction documents suspending the closing until clearance is obtained. 2.13 Penalties for the Implementation of a Transaction Before Clearance As mentioned in 2.2 Failure to Notify , Mexican competition law sets forth a fine ranging from MXN565,700 (approximately USD28,908) up to 5% of the income generated in Mexico for the previous fiscal year for failing to notify or imple - menting the transaction before obtaining clear - ance. This fine is applied to each of the under - takings involved in the transaction. These penalties are in many cases related to foreign-to-foreign transactions. For reference, here are some of the recent fines imposed by the Authority for failing to notify.
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