MEXICO TRENDS AND DEVELOPMENTS Contributed by: Christian Lippert Helguera, Carlos Chávez Alanís, Juan Carlos Burgos Carbajal and Gerardo Rodríguez Aguilar, Galicia Abogados, S.C.
essential facilities), the periods (i) for issuing a statement of objections and (ii) for the Board to issue a ruling, are reduced from 60 to 40 busi - ness days. This is relevant as there is a trend of favouring market probes over investigations of abuse of dominance (which requires that the agency prove an actual violation of the statute); it is thus expected that the CNA will continue prioritising market inquiries over abuse of domi - nance cases, given the lower burden of proof. Fines and other sanctions The FCA currently sets fines for both substan - tive and procedural infringements. Examples of fines for substantive violations are up to 10% of the undertaking’s taxable income in Mexico for cartel behaviour; up to 8% of such income for abuse of dominance or illegal mergers; and up to 5% in the case of failure to file for clearance of a reportable transaction. Conversely, fixed fines are established for procedural violations such as submitting false information, failing to show for a deposition when summoned by the agency or refusing to provide information when requested, among others. The Bill proposes to double the ceiling for sub - stantive infringements (eg, cartels, abuse of dominance, illegal mergers and failure to file a reportable transaction) and higher fines for pro - cedural infringements. In addition to the obvious increased exposure that higher fines for substantive violations carry, given the complexity and length of RFIs both in the context of merger review and investigations and the short timeframe that the FCA affords the parties to answer the same, we believe that procedural fines can potentially also become an important concern depending on how strict a stance the CNA decides to take on this issue,
especially as those fines can be imposed based on the number of days a party remains in default. Antitrust compliance makes it to the statute While COFECE has issued guidance recom - mending that economic agents adopt antitrust compliance programmes, the FCA does not grant any sort of benefit for having and enforcing such a programme. The Bill, in turn, proposes to include a fine and other sanctions reduction benefits for economic agents that have a compli - ance programme that has been certified by CNA. Per the proposal in the Bill, CNA will charge a filing and review fee and its certification will be valid for three years. An obvious concern with this is that in order to be eligible for the benefit, economic agents will have to undergo certification proceedings before CNA. To the extent the agency adopts a “light touch” approach and certification is granted if certain minimum requirements are met, this could be attractive and ultimately an effective tool. If, on the other hand, the CNA takes the position that answering lengthy information requests beyond the scope of the programme itself will be necessary to be certified, undertak - ings would likely not pursue this. Legal privilege Attorney-client privilege is recognised as a basic human right by the Mexican Constitution, inter - national treaties ratified by the Mexican State and court precedents; however, legal privilege has virtually no regulation in Mexico, except for certain exclusionary rules in the Criminal Proce - dure Code. COFECE issued regulations that introduced a qualification procedure pursuant to which, at the request of economic agents involved in pro - ceedings before it, a committee within COFECE
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