MEXICO TRENDS AND DEVELOPMENTS Contributed by: Christian Lippert Helguera, Carlos Chávez Alanís, Juan Carlos Burgos Carbajal and Gerardo Rodríguez Aguilar, Galicia Abogados, S.C.
reviews the requests and determines if the information identified by such agents is indeed privileged. If so, the committee will order the exclusion or return of the information, restrict - ing access to other COFECE officers. The main concern with this approach is that the same agency against which privilege is asserted, and not a third party (such as a court), gets to review the information and decide whether the same is privileged. While the Bill proposes to finally elevate legal privilege to legislated status, it maintains a “first look, then decide” procedure similar to current regulation issued by COFECE. It is also worth noting that the Bill excludes in-house lawyers from privilege protection. The experience with the proceeding currently existing under the regulations issued by COFECE has been very limited. It will thus be important to keep an eye on the way in which the CNA approaches this, and if it is willing to issue prec - edents that start shaping a legal doctrine around legal privilege in competition matters. Leniency Under the FCA, any party involved in anti-com - petitive behaviour or an illegal merger may apply
for leniency at any time, before or after COFECE has launched an investigation (provided that the investigation period has not expired). The first successful applicant is entitled to a full waiver whereas successive applicants are entitled to a lesser discount. All successful applicants receive a waiver from criminal prosecution. The Bill proposes to limit the benefit of reduced fines, limiting the full waiver only to the first suc - cessful applicant and only if it applies before the CNA launches an investigation. If an investiga - tion has already been launched, the reduction of fines would start at 50%, then 30% and 20% for successive applicants, but only to the extent they apply before the second extension of the investigation period. On the plus side, the Bill makes it clear that regardless of the place in which a marker is obtained, all successful appli - cants get immunity from disqualification (under the Federal Criminal Code, all successful appli - cants are immune from criminal prosecution). The reality is that the leniency programme has been a successful tool for COFECE. While the Bill claims that abuses of the programme could have taken place, it would appear that maintain - ing the credibility and availability of it should be a priority for the CNA.
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