Antitrust Litigation 2023

Last Updated September 21, 2023


Law and Practice


Aziz & Kaye Business Law offers excellent advice and permanent attention to its partners. Its priority is to add value to companies and their executives, who require top-notch professionals with solid legal knowledge and business focus for decision-making. The firm is focused on strategic work that integrates experienced specialists in corporate, transactional, financial and antitrust law. Its expertise in each of the areas that make up the firm’s practice allows it to accurately identify the obstacles and challenges in the legal and business environment of its clients, in order to generate a practical and efficient alternative that achieves success. The closeness with which it attends to its clients’ calls has strengthened and consolidated the firm at a national and international level. Its strategic legal advice model is aimed at all those individuals, companies and/or associations seeking advice and solutions in corporate, transactional, financial and antitrust law.

Given that Mexico adopted the new Antitrust Law 2014, which replaced the previous iteration from 1992, there has been some development in the interpretation and application of the law, by judges and specialised courts.

It is noteworthy that, for the most part, judges and courts choose to grant deference to antitrust authorities, not going into the merits of the cases, thereby harming the development of antitrust law and the creation of precedents. In this sense, when there are resolutions favourable to individuals, these are only granted in respect of matters of form and not in terms of substance.

The authors do not perceive important developments in the Mexican jurisdiction, in part because of the deference that the specialised courts grant to the resolutions of the antitrust authorities. This ultimately stagnates judicial activity.

The legal basis for a claim for damages for breach of competition law is Article 134 of the Federal Economic Competition Law. In Mexico, only when legal remedies have been exhausted to combat the resolutions of the antitrust authorities, is it possible to approach the specialised antitrust courts to claim damages.

In this way, it is important to note that only when a resolution of the antitrust authorities is unappealable, is it possible to initiate a claim for damages. This means that there are no private shares.

As mentioned in 2.1 Legal Basis for a Claim, there are specialised judges and courts and all cases are heard, without exception, by them.

In the event of recusal or excuse, cases are transferred to a different judge or court, but always one that is specialised in antitrust, through an expedited procedure. It is not possible, and therefore there is no procedure, for a non-specialised court or tribunal to hear a case in which the Anti-monopoly Law is applied.

Decisions of national competition authorities are not binding. The function of specialised judges and courts is to control legality and determine whether or not the decisions of the Mexican antitrust authorities violate the fundamental rights of economic agents. For their part, the antitrust authorities can intervene; in fact, they are allowed to file collective actions for damages.

In Mexico, the pass-on defence is regulated in the Federal Civil Code and in the Federal Code of Civil Procedure, which establish that the claimant for damages must prove:

  • that the damage he alleges was caused to him;
  • that there is a causal link between the wrongful act and the damage; and
  • that the damage is directly attributable to the one who was held liable by the antitrust authority.

Thus, the burden of proof lies with the plaintiff and the standard of proof is high.

In Mexico, there have been few cases of claims for damages and, to date, these have not prospered, so no judgments have been issued for damages against those who have violated the antitrust law.

There are no antitrust damages judgments in Mexico. However, both directly and indirectly affected parties – ie, any other person – can file complaints with the antitrust authorities for anti-competitive practices and damages.

The basis for this is Article 134 of the Anti-monopoly Law, which establishes that persons who suffered damages or losses due to anti-competitive conduct may go before specialised courts to defend their rights, until the decisions of the antitrust authorities are final.

The reason why anyone can file complaints is because the legislature considered it important to expand the number of cases, so that, regardless of the influence of the offenders on directly or indirectly affected parties, illegal practices can be denounced, and these do not go uninvestigated.

In the experience of the authors, the processing of a case before the Mexican antitrust authorities, from the filing of the complaint and issuance of the resolution, can take at least three-and-a-half years. A trial before a specialised judge could take an additional two years and the review by the superior specialised court, at least one more year. At least another year is added in a case where a Supreme Court review questions the constitutionality of the Antitrust Law. In total, a case could take approximately seven-and-a-half years to conclusion. As noted above, Article 134 of the Antitrust Law states that claims for damages may be filed until the decisions of the antitrust authorities are final. It is clarified that the limitation period to claim damages is only two years, from the time the violation of the Anti-monopoly Law is committed; however, this period is suspended from the time the antitrust authorities initiate an investigation, and it resumes when the resolution is unappealable.

There is no possibility for the parties to request the antitrust authorities to suspend the proceedings. On the other hand, taking into account that trials for claims for damages are composed of two instances, one before the district courts and the specialised courts, as well as, where appropriate, the amparo lawsuit that is promoted against the judgment of the court, claims for damages may have a duration of at least three years.

Class actions are available in Mexico, and a mixed scheme has been chosen: from the outset, collective actions in the strict sense can be taken, as can actions by a homogenous group of individuals with diffuse rights.

On the other hand, class action lawsuits can be filed by any affected party, and if these are a series of direct or indirect buyers, there is no impediment for them to go to the specialised courts to claim the right they believe they have. However, when they are competitors of those responsible for anti-competitive conduct, in the authors’ experience, they claim damages without resorting to class action.

A collective action may be brought by a community, such as consumers, or by companies, “economic operators”, who were directly or indirectly affected, namely direct competitors or companies in the value chain.

The Anti-monopoly Law states that “Persons who have suffered damage or harm as a result of a monopolistic practice or an unlawful concentration may bring legal actions in defence of their rights before the specialised courts”.

In addition, the Federal Code of Civil Procedure states that the Federal Consumer Protection Office, the Federal Environmental Protection Office, the National Commission for the Protection and Defence of Users of Financial Services, the Federal Economic Competition Commission and the Federal Telecommunications Institute have standing to bring collective actions in matters of economic competition. The Code states that the person who exercises the common representation must be part of the collectivity made up of at least 30 people; as must the civil associations or their non-profit correlatives, legally constituted, at least one year prior to the time of filing the action, whose corporate purpose includes the promotion or defence of the rights and interests of the matter in question and that comply with the requirements established in the National Code; the Office of the Attorney General of the Republic; and the Federal Institute of Public Defender’s Office.

What must be demonstrated is the direct impact of the violation of the Antitrust Law.

For its part, according to the Federal Code of Civil Procedure, at the certification stage, the judge must determine that the claim complied with the requirements established in that norm (for example, the precision of the diffuse, collective or homogeneous individual right that is considered affected and the considerations and facts that support the convenience of substantiation by collective means instead of individual action).

Also, during this stage, the judge must analyse whether or not certain legitimation requirements were met, for example: (i) that they are acts that have harmed the consumer due to the existence of anti-competitive conduct based on the resolution issued by the antitrust authorities; (ii) that there is a coincidence between the object of the action brought and the affectation suffered; and (iii) the action is not time-barred.

In the event that the judge considers that these requirements have not been met, he will dismiss the class action.

Judicial participation consists of the processing of the trial and the issuance of a judgment in which, if appropriate, the amount to be paid for damages would be fixed. Likewise, the judicial authority must supervise that, during the procedure, the representation of the community is adequate; that is:

  • they act with diligence, expertise and good faith;
  • there is no conflict of interest;
  • collective action is not promoted for profit, electoral purposes, proselytising, unfair competition or speculative; and
  • they have not conducted themselves with incompetence, bad faith or negligence in previous class actions.

There are no summary trials, although this is a special trial before specialised judges and courts. This trial is known as an amparo trial.

The relevant evidence consists of the resolution of the antitrust authority and those contained in the files that gave rise to the trials.

In the experience of the authors, judges, in granting deference to the regulator, often do not accept expert evidence, with which lawyers for economic agents sanctioned for violating the Antitrust Law seek to prove that the analysis of the antitrust authorities is not correct. However, in the second instance, the courts have ordered judges to admit expert evidence in order to analyse whether the decisions of the antitrust authorities are constitutional or not.

In most cases, specialised judges and courts usually confirm the merits of the decisions of the antitrust authorities, and only grant in favour of economic agents, reductions in considerations on the amount of damage caused, and fines.

In Mexico, there is only one antitrust law, which addresses concentrations (M&A), anti-competitive practices (abuses of dominance and cartel activity), investigations to determine the existence of essential inputs and barriers to competition, as well as conditions of effective competition. Also, to issue opinions on cross-participation and to participate in public tenders.

According to the Mexican Constitution, the only means of defence against the Anti-monopoly Law and the acts of the antitrust authorities is that provided for in the amparo law, through amparo proceedings before specialised judges and courts.

Antitrust authorities have ten years to initiate an investigation of an anti-competitive practice, counted from the date the practice was committed or ceased.

On the other hand, to initiate a claim for damages, there is a period of two years from when the damage was caused, or from when the affected party became aware of the existence of the damage.

In the Mexican Antitrust Law, there are no discovery procedures, however, in the experience of the authors, the competition authorities, informally, have initiated information requests with the characteristics of a discovery.

The attempts of the antitrust authorities to carry out discovery proceedings have not borne fruit, since the law firms of the economic agents have successfully exercised the defence that discovery does not exist in Mexican law.

In Mexico, information on the human right to confidentiality of communications and the client-attorney privilege can be withheld. Both are provided for in Article 16 of the Mexican Constitution.

However, one of the two competition authorities, specifically the Federal Economic Competition Commission, has issued provisions that seek to regulate this human right. These provisions establish a procedure through which it is determined whether certain documents that are requested, or that were obtained during a verification visit, are indeed protected by professional secrecy.

This regulation has not been challenged in the constitutional courts and it is pending that the Supreme Court of Justice of the Nation determine whether that authority has the power to issue the regulation.

Leniency and/or settlement agreements are protected in the Antitrust Law and in the guidelines and regulations that the antitrust authorities have issued. However, in the experience of the authors, there have been situations, especially when other authorities such as prosecutors’ offices are responsible for investigating the commission of crimes or those responsible for combating corruption, in which the identity of leniency agreements has been revealed. Therefore, antitrust authorities should be pressured to properly safeguard the information of those seeking immunity, when they provide information to other authorities.

However, the accreditation of crimes for violating the Antitrust Law, under Mexican law, requires a higher standard of proof than that required to prove a violation of the Antitrust Law.

There are witness testimonies in Mexico which, except in the case of authorities, are oral. These testimonies are subject to cross-examination. If someone refuses to testify, without reasonable cause, they may be fined or even subject to administrative arrest. 

While there are certain parameters for factual witnesses to be considered reliable, it is generally necessary for testimony to be bolstered by the existence of other evidence in order for factual witnesses to support liability for antitrust violations.

In the experience of the authors, although the Antitrust Law allows the offering of expert evidence, in 99% of cases, the Mexican antitrust authorities do not validate expert testimony. These testimonies are submitted in writing and in response to questions from companies and antitrust authority prosecutors.

In court, experts only must prove that they are experts in the field, who present their testimonies separately and there are no alternative methods for expert evidence.

In Mexico, there are no judgments for damages, either in individual actions or in class actions. In addition to the above, exemplary or punitive damages are not available in current Mexican laws.

However, in civil matters, there is at least one precedent in which the Supreme Court of Justice of the Nation condemned a company with the payment of punitive damages, so there is the possibility that in antitrust matters this criterion of the Supreme Court is applied as an exceptional measure in those cases that are considered particularly harmful.

The pass-on defence is not available in Mexican law, nor is it known what the criteria of the courts are, since in Mexico, no judgments have been issued for damages derived from violations of the Antitrust Law. 

Mexican laws do not provide for the payment of interest, nor is it known what the criteria of the courts are, since in Mexico, there have been no judgments for damages derived from violations of the Antitrust Law.

However, the authors believe that there is a possibility that the amounts for damages that have been generated must be updated due to the passage of time, in order to bring to present value the damages that the anti-competitive conduct has generated.

Lability is not solidary. It is interesting to note that in the case of the liability of applicants for immunity, this is only reduced by the fine and criminal immunity, however, immunity does not prevent its applicants from being sued for damages, nor is any type of discount applied to this amount, on the grounds that the offender has been granted immunity.

There is no procedure in Mexican law for bringing contribution proceedings against a third party, nor is it known what the criteria of the courts are, since in Mexico there have been no judgments for damages for violations of the Antitrust Law. 

The Anti-monopoly and Regulation of One of the Anti-monopoly Authorities Act does provide for precautionary measures during the investigation.

In the judicial procedure for claiming damages, provision is made for precautionary attachment, the seizure of property and conditions necessary to preserve the cause of requesting and to ensure the effective execution of the judgment, provided that things remain in the state in which they are on the date of service of the order, the public order and interest or that of third parties are not affected, and rights are not constituted in favour of the applicant, equivalent to those that would be obtained, in the case of obtaining a favourable final judgment. This includes, in addition to the debtor, those who have the quality of partners and administrators of other people’s assets.

The authors are not aware of alternative methods to resolve disputes for damages, however, there are authors who point out the possibility of resorting to arbitration.

In no way will alternative methods of dispute resolution be considered as mandatory when deriving from a non-contractual liability, that is, for the violation of antitrust law.

There is no litigation funding in Mexican law. In any case, in certain cases, the payment of expenses and costs may be requested from the party who lost the trial for claim for damages. 

Whether the payment of costs can be awarded will be determined in the respective judgment so that the need to guarantee expenses and costs is not foreseen. The amount of costs can be determined based on the fee established by law, or based on the fees that the prevailing party has paid to its attorneys during the trial of claim for damages.

In effect, the claim of the resolutions of the antitrust authorities is made through the amparo trial before specialised judges and courts (appeal through review appeal).

On the other hand, appeals for damages are heard by appellate courts, which will only determine whether the respective judgment adequately analysed the existence of the damage, the causal link between the violation of the antitrust law and, if so, whether the amount of the sentence was properly determined. Subsequently, the parties have the possibility of challenging this decision via amparo proceedings, so that a higher court may analyse the constitutionality of the appeal resolution, an amparo trial that, under certain conditions, may be heard by the Supreme Court of Justice of the Nation.

Aziz & Kaye Business Law

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Ciudad de México

+52 555 985 6605

+52 555 985 6605

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Trends and Developments


Galicia Abogados, S.C. is a firm with more than 29 years of experience. Renowned for its specialised knowledge in financial, energy and infrastructure, private equity, regulated industries, real estate and hospitality, and life sciences, it is the only Mexican leading firm able to provide its clients a unique service offering that includes strong transactional and regulatory expertise coupled with strategic capabilities in litigation and ESG. Sustainability is at the top of Galicia Abogados’s agenda when it comes to advising clients. Diversity, equity and inclusion (DEI) and pro bono work are part of Galicia’s core values. The firm's DEI-driven culture has positioned +38% of women in leading positions (partner, counsel, executive and management) over the last five years.


Due to political conjuncture and several events in Mexico, antitrust litigation has been constantly on the rise, and this trend promises to continue in the near future. Although a number of events or factors may be responsible for the trend, two specific items seem to be the cornerstones of the situation. 

First and foremost, the ruling party’s majority in both Mexican federal and local congresses has resulted in a general, overall alignment in terms of public policy at the executive and legislative level, and to a certain extent, at the current leadership of the federal judiciary. Such majority has been favouring the return of state-owned monopolies, primarily in the energy sector, a centralisation of faculties and powers in state ministries, and a preference for national champions. In addition, and after years of impasses between the executive and such authorities, new Commissioners have been appointed by the current executive, which, considering their decisions thus far, seem keen on preserving the independence of the Commission, even if this may put them at odds with the Federal Executive's policies.

The second item of relevance is a thorough mistrust of (if not outright opposition to) the work made by constitutional autonomous bodies, including the Mexican Federal Telecommunications Institute (IFT), and currently, to a lesser extent, the Mexican Federal Economic Competition Commission (COFECE). The result of such distrust has had a dual effect.

First, the creation of strong incentives for both of these authorities to be perceived as tough and efficient, and therefore the rise of verification proceedings in merger control filings as well as a more thorough scrutiny in the overall spectre of matters brought to their attention. Second, and due to lack of clarity as to the limits of powers and competences between each of these authorities, a constant, on-going battle at courts (with its corresponding collateral damage to filing parties) between COFECE and the IFT. This in order not only to ascertain their relevance in Mexico but also, to see which authority holds competence to review cases in several market segments, particularly, in the digital arena. 

Other factors may account for the rise of litigation in antirust matters, including (i) lack of transparency or clarity in the decisions from the agencies; and (ii) lack of judicial precedents that may orient parties and rein in broad interpretations of authorities under applicable laws. 

With this in mind, what follows is a short summary of some of the most important developments in antitrust litigation.

Litigation in the Retail Market Segment

In 2015, the second- and third-largest grocery store chains in Mexico filed a merger control notice by means of which the second player would acquire 159 stores from the third one. Although such purchase would merely provide the second with sufficient volume to effectively compete against the first, COFECE conditioned the transaction and requested the divestment of 27 stores, after having analysed about 160 different local, geographical markets. About half of these 27 stores were excluded from the transaction, and the remaining stores were subject to one of the first, thorough divestment programmes (and perhaps the last one) of COFECE to date. 

This divestment programme was divided into three stages, where the purchaser was allowed to carry out the divestment on its own during the first phase, and required the participation of a divestment trustee for the second and third stages. For the third stage, a fire sale was required. COFECE developed this programme primarily on its own and required that per each possible divestment, the parties to the relevant transaction submitted a merger control notice before being able to divest the relevant stores. Incidentally, such notices stopped the clock for the divestment of stores and the progression of the divestment programme. This, in addition to lack of clarity and content in later stages of the programme (particularly the third one) resulted in the administration of a divestment programme that lasted about six years to end, with the following figures:

  • 21 interested parties;
  • ten different merger control filings, where only two of them were approved;
  • more than eight constitutional (amparo) claims were filed only by the divesting party before specialised competition courts, along with incidental/review processes; and
  • six stores were materially impossible to divest, causing COFECE to issue its official acknowledgment of the impossibility for the divesting party to comply with requested remedies, even by means of a fire sale, and the ability for the divesting party to keep such stores. 

Although many causes may have contributed to these results, litigation ensued due to this divestment programme left valuable lessons for the future of antitrust in Mexico. Key points from these claims are summarised below.

Concurrence of claimants

Specialised courts determined that it was not necessary for both parties to a merger control notice to be a party to a constitutional (amparo) claim in order for it to be admissible. The courts acknowledged that parties to an antitrust proceeding might have different motivations and suffer distinct violations of their rights, so concurrence of involved parties in the relevant proceeding before antitrust authorities was not required for purposes of having access to a constitutional (amparo) claim. 

Long-term leases

Specialised courts acknowledged that long-term leases might be considered forms of complying with divestment programmes insofar as COFECE did not expressly excluded them. Parties to such a proceeding claimed that since COFECE had historically analysed long-term lease agreements as subject to merger control filing analysis, it must follow that they were also a valid form of divestment. The point was particularly evident since the divestment programme included stores that were not owned by either the purchaser or the seller.     

Informing risks associated with a transaction

Specialised courts had historically stated that due to jurisprudence issued in connection with Amparo Law, constitutional claims were not admissible against actions or notices from competition authorities that did not result in a final determination that would effectively endanger or affect the claimant.  However, claims in the context of the divestment programme made it possible to consider that the nature of some acts of antitrust authorities, even though not final, were sufficiently determinant in nature to affect the entire process. One of those acts was precisely the need of antitrust authorities informing thoroughly on competition risks associated with their transaction, and on a written basis. Otherwise, the courts reasoned that the parties would have insufficient tools to address antitrust concerns and thus, affect the overall merger control process. This particular resolution seems to not only have opened the door for other potential claims in the near future, but also, changed the way in which COFECE at least has been informing parties of competition risks associated with their transaction.   

Prevention of execution of resolutions

At one point in time, the divestment programme offered an interesting dilemma. Parties to at least one of the divestment transactions were involved in a constitutional claim against COFECE due to a challenge issued in respect of their transaction. In the meantime, the divestment trustee was reaching its limit for divesting pending stores under the second stage of the process, and required to start preparing for a fire sale. If the fire sale was carried out and the constitutional claim ended up being solved in favour of the parties, it would have been materially impossible for the parties to close their transaction, as other parties may have already acquired the stores during the fire sale. Therefore, the divesting party made another constitutional claim in order to prevent the divestment programme from advancing to the third phase until litigation had definitively concluded. 

Article 28 of the Mexican Constitution prevents parties from requesting any kind of suspension under an amparo claim, but generally, does state that the execution of fines and sanctions is prevented until after amparo claims are ended. Considering such text, the parties made important efforts for specialised courts to confirm that the application of the fire sale, in light of existing litigation, would effectively undermine and prevent the parties from defending their rights, and thus, needed to prevent its execution.

Although the parties were not successful in preventing the fire sale at such point in time, some of the magistrates in specialised courts did elaborate on their decision, stating that the referred prevention was requested on a pre-emptive basis, without any conclusive evidence that the fire sale would be executed before a decision pertaining the amparo claim had been reached. This effectively opened a door to future claims where the scope of the constitutional prohibition to prevent the execution of decisions of antitrust authorities might be questioned.           

Unfortunately, several other items that were brought forward under constitutional claims by means of the divestment programme did not have a conclusive result. For instance, once the fire sale was in the process of being executed, the divesting party requested again the prevention of its execution, only to withdraw such claim later in the process after being informed by the divestment trustee that the fire sale did not have any interested participants registered in the upcoming process. 

In the end, and as referenced, the divestment programme was recently acknowledged by COFECE as impossible to carry out, allowing the divesting party to keep the remaining stores. Notwithstanding, the effects of the original resolution and its market analysis have continued to cause ripples, sometimes contradictory in nature, in the competition analysis of the retail market segment, particularly where grocery chain stores are concerned.

For example, in 2019, COFECE blocked the merger between the alleged biggest market player in the grocery store segment in Mexico and a tech company that provides logistical services for at-home delivery of grocery store products. COFECE argued that the transaction was blocked because, among others, market power allegedly held by the grocery store player would cause the exit of other competitors from the digital application held by the tech company, create incentives for misuse of information from other competitors, or deny using other platforms from other tech companies for the provision of such delivery services.

Such result seems contradictory in nature from prior precedents involving the divestment programme. This, since COFECE resolved in many of its prior cases that online grocery shopping was minimal in Mexico, and construed a market analysis that prevented the consideration that all brick-and-mortar stores competed against each other, even in close proximity, due to a segmentation of the relevant market considering types of stores and specific, applicable geographical markets.

Although the tech company was eventually sold to another party where no further analysis was apparently required, the existence of such narrow (and contradictory), precedents and market analyses will no doubt give rise to ample opportunities for parties to continue to challenge resolutions that come (or are related) to the retail market segment. This in addition to the present challenges of the digital economy, as seen below.

Another example is a recent case related to sale of necessary goods and services, in this case, an alleged price fixing of such items, which seems to disregard the referenced precedents.

Indeed, and based on a recent case file, two supermarket chain stores were considered to have colluded with several tortilla distributors due to an alleged price-fixing scheme in a municipality in Mexico.

Arguments aside referring to whether the price-fixing scheme existed or not and whether it was encouraged or structured by local authorities due to political reasons, the fact of the matter is that COFECE considered that supermarket chains are considered competitors of local distributors and small shop owners, which was precisely one of the major points that was not acceptable in referenced prior precedents due to an established segmentation between types of businesses and stores.

COFECE’s decision in this case is currently being challenged in specialised, federal courts due to this evident contradiction in its market analysis, as well as for other relevant arguments including the temporary disqualification of the stores’ supervisors since they were considered accessories to the conspiracy. Disqualification of personnel of companies which have been considered a party to price-fixing schemes has also been on the rise, where the labour effects of such actions are not clear since disqualifications by antitrust authorities, even if only temporary, are not in principle considered valid grounds under Mexican labour laws to legitimately terminate employment.

The Fight for the Digital Economy

The struggle to determine the relevant competition authority to analyse antitrust matters in the digital economy continues.

During the last four years, judgements of specialised courts have been changing, favouring one agency or the other, making it extremely complicated to identify which will be the agency in charge of reviewing a particular transaction.

The most recent judgements of specialised courts seem to imply that the use of internet is the key element to settle the jurisdiction in favour of the IFT. However, it would seem that such element is not sufficient to properly classify a case under the scope of the telecoms or broadcasting segment, particularly if considering that in the near future, almost all businesses will have an online presence in one way or the other. Should this trend continue, it would be expected that COFECE will gradually diminish in its participation of antitrust matters in favour of the IFT.

In any event, practitioners and filing parties should continue to account for possible jurisdictional conflicts and burdensome filings considering that, in case of doubt, filings or processes before both COFECE and IFT will be required.

Litigation in the Power Sector

For more than two years, the Federal Government has issued several rules and regulations as well as amendments with the sole purpose of benefiting the state-owned companies, Petróleos Mexicanos (PEMEX) and Comisión Federal de Electricidad (CFE), in the oil and gas and electricity industries, respectively.

Although the content of such rules and regulations, as well as amendments, are varied, the constant element that these share is their outright disregard for competition matters and policy in Mexico. In light of this, dozens of amparo claims have been filed in specialised antitrust courts for purposes of avoiding private parties, from generators or producers, to industrial end-consumers, from being left out of the energy industry in Mexico, or otherwise, from being forced in one way or the other to accept PEMEX or CFE as their almost exclusive supplier.

The political rhetoric behind such actions is well known currently across the globe; ie, national security and sovereignty, unfair foreign investment, corruption, to name a few. However, such arguments have not yet had the desired effect in specialised courts, where several amparo claims have been successful in seeking to stop such trend and where antitrust arguments have been one of the most important elements in convincing the courts of the inapplicability of such acts. Among such arguments, undue displacement of competitors, lack of access to better sources of power, discriminatory access to essential inputs and facilities, are commonly referred in all amparo claims. 

Since the Federal Government has not shown any sign of stopping its efforts to reinstate the monopoly of state-owned enterprises in the energy sector, even after failing to obtain the necessary votes to amend the constitution for such purposes, it is to be expected that antitrust litigation in energy matters will continue to thrive.

In this regard, practitioners should note that both the United States of America and Canada have already started relevant proceedings under the United States-Mexico-Canada Agreement due to the Federal Government’s alleged lack of compliance with such treaty in the energy sector. Since the treaty holds a specific article related to competition policy and its enforcement, it is also to be expected that competition matters in such proceedings will be analysed. 

Other Relevant Matters

The aforementioned matters are not the only ones driving the agenda of litigation in antitrust in Mexico.

For example, and following trends in the labour sector, COFECE fined 17 football clubs and eight individuals for fixing caps for salaries of football players, which was also considered to broaden concerns about gender salary gaps. Furthermore, fines were also issued due to practices preventing the free trade of football players, and indirectly, labour rights of these in negotiating their salaries and permanence or change between football clubs. The arguments used in such case by COFECE may start a trend in reviewing non-solicitation covenants in the context of possible mergers, as well as in other processes, to ensure free-trade provisions in labour market segments. Furthermore, this may also start a trend in litigation matters, since a clash between labour non-compete clauses is expected. Although such provisions are acceptable in civil and commercial matters, competition laws in Mexico may, in essence, prohibit such covenants. 

On this note, COFECE is also currently on a streak of sanctions against cartel participants which include the temporary disqualification of managers, supervisors and directors that they considered to have participated in the cartel from their appointments or offices. This has resulted in several litigation cases that question the constitutional grounds of such sanctions, including labour laws and principles. At the date of this publication, there has only been one single precedent where a judge has granted a permanent suspension against any such disqualification until the entire case under litigation is solved, and which is expected to be revisited in a second-tier review by an appellate body of magistrates.     

In other matters, and as referenced, COFECE struggled with the lack of ratification of missing Commissioners to solve relevant cases and ensuing litigation. In 2018, COFECE started an investigation due to possible barriers to competition and/or essential inputs in card payment systems (clearinghouses). Although COFECE’s Investigative Authority has already concluded that there are barriers to competition in such market segment, and trial-like proceedings have already occurred, the Board of Commissioners of COFECE had been prevented from solving the case due to lack of quorum.

To address this, COFECE made a claim against the Federal Executive for lack of designation of missing members of the Board, but also, issued a general suspension notice, which prevented parties to such case from receiving a final resolution. The parties involved sought for specialised courts to declare the illegality of such general suspension and force COFECE to declare its closing, since the statute of limitations for issuing its resolution had already elapsed. Even though the missing Commissioners have been appointed and the case has been finally solved, such claims are still under analysis by specialised courts.

Galicia Abogados, S.C.

Blvd. Manuel Avils Camacho 24 – 7th Floor
Col. Lomas de Chapultepec
Mexico City

+52 5555409200
Author Business Card

Law and Practice


Aziz & Kaye Business Law offers excellent advice and permanent attention to its partners. Its priority is to add value to companies and their executives, who require top-notch professionals with solid legal knowledge and business focus for decision-making. The firm is focused on strategic work that integrates experienced specialists in corporate, transactional, financial and antitrust law. Its expertise in each of the areas that make up the firm’s practice allows it to accurately identify the obstacles and challenges in the legal and business environment of its clients, in order to generate a practical and efficient alternative that achieves success. The closeness with which it attends to its clients’ calls has strengthened and consolidated the firm at a national and international level. Its strategic legal advice model is aimed at all those individuals, companies and/or associations seeking advice and solutions in corporate, transactional, financial and antitrust law.

Trends and Developments


Galicia Abogados, S.C. is a firm with more than 29 years of experience. Renowned for its specialised knowledge in financial, energy and infrastructure, private equity, regulated industries, real estate and hospitality, and life sciences, it is the only Mexican leading firm able to provide its clients a unique service offering that includes strong transactional and regulatory expertise coupled with strategic capabilities in litigation and ESG. Sustainability is at the top of Galicia Abogados’s agenda when it comes to advising clients. Diversity, equity and inclusion (DEI) and pro bono work are part of Galicia’s core values. The firm's DEI-driven culture has positioned +38% of women in leading positions (partner, counsel, executive and management) over the last five years.

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