MEXICO Trends and Developments Contributed by: Fernando Carreño, Sergio López, Carlos Cevallos and Dolores Jiménez, Von Wobeser y Sierra, SC
rent reform proposal seeks to address one pro - cedural hurdle by specifying that the statute of limitations for criminal sanctions begins with the issuance of the statement of objections – rather than at the time of the conduct – acknowledging that authorities cannot be expected to detect violations immediately. However, this change alone is unlikely to resolve deeper problems, such as the lack of specialised prosecutorial capacity and a broader legal culture that remains reluctant to embrace criminal antitrust sanc - tions. Without addressing these interconnected issues, the modified statute of limitations may prove inadequate to activate Mexico’s dormant antitrust criminal enforcement regime. Dogmatic reliance on increased sanctions The proposed doubling of maximum fines for cartel conduct and substantial increases for other violations lack a clear justification based on a rigorous analysis of why previous sanction levels were insufficient. Elimination of information exchange as an independent monopolistic practice The initiative proposes a fundamental shift in how information exchange is treated under competition law. Instead of being considered an independent monopolistic practice, it would only be deemed illegal if its object or effect is to facilitate absolute monopolistic practices such as price-fixing, market segmentation, or bid rig - ging. While this change might aim to align with international standards that focus on the anti- competitive effects of information exchange, the absence of a clear diagnostic rationale raises concerns. More restrictive leniency programme rules The presidential initiative also contemplates sig - nificant restrictions to the leniency programme. Notably, a participant who comes forward after
an investigation has already been initiated would only be eligible for a maximum benefit of 50% reduction in sanctions. This contrasts sharply with the current scheme, which does not explic - itly differentiate the level of benefit based on the timing of the leniency application relative to the start of an investigation. While there might be arguments for incentivising early reporting, the lack of a clear diagnostic analysis of the current leniency programme’s effectiveness and poten - tial shortcomings is concerning. Is the current programme being exploited? Are there specific reasons why later applicants should be so signif - icantly penalised? Without a clear understanding of the rationale behind this proposed change, it risks undermining the effectiveness of the leni - ency programme as a crucial tool for detecting and dismantling cartels, potentially discouraging later participants with valuable information from coming forward. Expansion of cartel definition to include potential competitors The presidential initiative also introduces a sig - nificant broadening of the definition of absolute monopolistic practices (cartels). While the cur - rent law prohibits agreements with competitors, the proposed amendment extends this prohibi - tion to agreements with potential competitors. This expansion raises substantial uncertainty and concerns within the legal and business communities. The concept of “potential com- petitor” is inherently ambiguous and open to broad interpretation. It is unclear how this will be defined in practice, and what criteria the new authority will use to determine whether a com - pany is “potential competitor” . This ambiguity could create a chilling effect on legitimate busi - ness collaborations and strategic planning, as companies may be hesitant to engage in activi - ties that could be construed as agreements with potential competitors, even in the absence of
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