MEXICO LAW AND PRACTICE Contributed by: Fernando Carreño, Sergio López, Michel Llorens, Andoni Garza and María García, Von Wobeser y Sierra
behavioural remedies, as these require periodi - cal review. The authorities consider behavioural remedies to be more effective for transactions involving vertical links – although they are not usually accepted, even in these circumstances, as their surveillance takes more time, is more expensive and difficult. In practice and when required, the authorities issue an official announcement – in which the possible risks to competition are identified – rather than directly requesting remedies from the parties. Afterwards, the parties usually offer remedies to address the identified risks, where - by they specifically address the authorities’ con - cerns. Finally, all remedies imposed or accepted shall be directly related to correcting the competition concerns derived from the transaction. 5.3 Legal Standard For remedies to be deemed acceptable, they must meet the following legal standard: • The Authority may only impose or accept conditions that are directly related to correct - ing a concentration’s effects. • The conditions that are imposed or accepted must be proportionate to the intended correc - tion. 5.4 Negotiating Remedies With Authorities The parties can offer remedies from the initial notification of the proposed transaction until one day after the transaction is listed on the agenda for the board of commissioners to review. If the remedies are proposed after the initial notifica -
tion of the transaction, the term for the authority to resolve the transaction is restarted. The authority can propose the remedies on their own motion. However, it is standard practice for the authority to defer to the parties in this respect – given that the parties are knowledgeable when it comes to their own business and, ultimately, can suggest remedies that will best address the competition concerns raised by the authorities. If the transaction is cleared subject to remedies, the parties must accept said remedies or the transaction will be blocked by the authority. 5.5 Conditions and Timing for Divestitures The parties have a period of six months (which can be extended for another six months) to evi - dence the closing of the transaction on the terms authorised in the decision. Where the remedies contemplate the divestment of certain assets and/or entities (ie, structural remedies), they can include a request for the divestment business to operate as a “hold separate” during the closing of the main transaction. If remedies are not complied with, the parties can be fined up to 10% of their total income and ultimately be forced to dissolve the transaction. 5.6 Issuance of Decisions The authorities issue a decision either clearing the transaction, clearing it subject to remedies, or blocking it. A non-confidential version of the resolution is subsequently published on the authority’s website. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions In recent years, the only foreign-to-foreign transaction to be prohibited was the acquisi -
365 CHAMBERS.COM
Powered by FlippingBook