New Criteria and Guidance on Mexican Economic Competition

On April 4, 2011, on the same date as the "Day of Competition 2011," the Mexican Federal Competition Commission (ComisiĆ³n Federal de Competencia or COFECO) published new reference documents, guides and criteria regarding economic competition. The new documents released at such event are the following: (i) reference document concerning the definition of "relevant markets;" (ii) reference document concerning the determination of "substantial power in the market;" (iii) guide for providing notice of economic concentration; and (iv) draft of technical criteria for the imposition of fines in economic competition matters. Prior to issuing these documents, the COFECO had already prepared and published a guide concerning its immunity and sanctions reduction program, a guide for compliance by associations, business chambers and professional associations, as well as a reference document for the taking of surveys, so that these new documents become part of a series of actions that have been undertaken by COFECO for the purpose of making its activities more transparent and achieving greater certainty with respect to its resolutions, all in benefit of those economic parties who are regulated. These measures are based on the results of public consultations on transparency carried out between February and April 2010, which show that key players in the economy, have expressed their interest in obtaining from the authorities published guides, criteria and instructions that track those from the leading competition regulators of the world, such as those from the United States of America and the United Kingdom. In addition to these documents, and taking as a reference the results obtained through the public consultation process, the COFECO has also improved its database for providing public access by Internet to all cases in process and the history of resolutions it has taken. The authorities have also implemented modifications to the format of their resolutions in order to enable parties to see how the commissioners voted and how measures tending to equalize access and protection of confidentiality and information within their files have been implemented. It is worth noting that the COFECO has stated that in the near future it will publish other documents adding to those referred to above, for the purpose of completing the actions proposed to improve its regulatory mandate. Among the documents that are expected is one regarding collaboration between competitors and vertical market restrictions. Finally, note that none of these documents creates legal rights or obligations, but instead serve only as sources of reference or guides not intended to substitute the text of the applicable competition law, and thus such simply explain and add to the available information for the benefit of the public. Therefore, under special circumstances merited in a case, the COFECO would be completely authorized to depart from the contents of such documents, so long as the COFECO's action is based expressly on provisions of the applicable competition law. At CCN, we are available to discuss any questions regarding these topics, and we also inform our readers that the above documents and recently published guides may be reviewed directly at the webpage of the COFECO at: http://www.cfc.gob.mx/index.php/HOME-carousel/dia-de-la-competencia-506.html

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