Contributed By Galicia Abogados, S.C.
The statutory basis for challenging cartel behaviour in Mexico is the Federal Competition Act (Ley Federal de Competencia Económica, or “FCA”) and the Federal Criminal Code (Código Penal Federal, or “FCC”).
The general antitrust enforcer is the Federal Competition Commission (Comisión Federal de Competencia Económica, or “COFECE”), which is empowered to enforce the FCA and bring criminal complaints for cartel behaviour before federal prosecutors across all industries except broadcasting and telecommunications. Conversely, the Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones, or “IFT”) is a regulator that also acts as antitrust enforcer in the broadcasting and telecommunications industries.
Private litigation may only be used to seek damages following a resolution from COFECE/IFT establishing the existence of a cartel.
Liability is potentially both civil and criminal. Civil liability (under Mexican law, administrative liability) may result in fines of up to 10% of the aggregate revenue for tax purposes in Mexico of the economic agent for the immediately preceding fiscal year. In addition, disqualification from participating in public procurement or engaging in business may also be imposed on liable economic agents.
Individuals who engage in cartel behaviour may also face criminal charges. The penalty for cartel behaviour is five to ten years in prison.
Bid rigging is a per se offence and thus considered cartel behaviour in Mexico. The New Anti-corruption Act (Ley General de Responsabilidades Administrativas) prohibits, as corrupt behaviour, engaging in bid rigging in public procurement processes. The agencies enforcing this statute may impose fines on those who engage in this conduct even if COFECE/IFT have not investigated and fined the conspiracy themselves.
Mexico is a strict liability jurisdiction in the sense that only conducts that are defined and sanctioned as illegal in a statute are punishable. Other conducts that involve joint action but not cartel, such as boycott, are pursuable under the rule of reason doctrine.
Cartel behaviour, or per se conducts, or absolute monopolistic practices are, under the FCA, agreements among competitors the intent or effect of which is any of the following: (i) price-fixing (including purchase or sale price of goods or services); (ii) output restrictions; (iii) market/customer allocation; (iv) bid-rigging; and (v) the exchange of sensitive information.
Under the FCA, the investigation powers of the enforcers have a ten-year statute of limitations period, from the date on which the cartel ceased to exist.
Only those activities exclusively reserved to the Mexican Government (nuclear power, currency, etc), unions, IP rights, and associations for the sale of Mexican products abroad, are exempt from antitrust scrutiny.
While the FCA is territorial in reach, it vests in the enforcing agencies the ability to pursue conduct that has effects in the Mexican markets. Thus, conduct occurring abroad but having tangible effects in Mexico may still be pursuable under the FCA. From a practical perspective, the enforcers may face challenges in pursuing companies or individuals with no meaningful ties with Mexico.
Comity is not a concept of Mexican antitrust law and thus no such principles exist in statute or precedent. Through special chapters in trade agreements with other countries and inter-institutional agreements with enforcers in other jurisdictions (the US, Canada, the European Union, etc), Mexico has assumed positive and negative comity principles. These are bilateral soft commitments that seek to achieve mutual economic competition policy objectives.
Investigations may be the result of a complaint (from an agency or a private party), a leniency application or ex officio by the agencies. Generally speaking, once an agency becomes interested in a particular market, the starting point is the issuance of an order by the Investigative Authority (the “IA”, an independent body within each of COFECE and IFT, vested with powers to conduct investigations and issue letters of objection), identifying such market and the suspected illegal behaviour. This order, which is usually not publicly released until after initial requests for information (“RFIs”) or dawn raids have been conducted, affords the IA a term of no less than 30 business days and no more than 120 business days (provided that the IA may extend this term up to four times for 120 business days each) to conduct its investigation.
During the investigation, the agencies may issue RFIs (to persons of interest, market participants and government agencies, among others), conduct dawn raids, and summon and depose witnesses.
Dawn raids are possible although not yet a generalised practice of the agencies. During their course, visited firms and individuals are required to cooperate with the agency. Obstructing a dawn raid (either by denying access to the agency personnel or by deleting or destroying records) may result in criminal liability. Thus, it is important to grant access to the premises specified in the relevant order (agency personnel must bring the original order and the visited party has the right to review it) and allow the agencies to review and make copies of all information specified in said order. In addition, the raided agents may also be required to provide office space and electric power to accommodate the agencies’ equipment and personnel’s needs.
The only meaningful restriction is that the agencies may not seize documents or information. Having said this, the agencies are allowed to access physical and electronic records and make copies thereof.
The agencies are allowed to seal property, documents and records to prevent them from being altered or destroyed. The economic agents may not access or use the same unless they show that the use thereof is necessary in their ordinary course of business. As noted above, destruction or alteration of records, documents or information may result in criminal liability.
The representatives of the agencies may ask questions to representatives, officers and employees of the raided agents, provided that such questions relate to the documents, information or facts that are the subject matter of the visit order. Refusals to co-operate may result in a constructive confession (that is, facts asserted against the raided agent are deemed confessed). Further, the agencies may seek to coerce cooperation by imposing per diem fines, up to 36-hour arrest or pressing criminal charges for obstruction.
The agencies are required to draft minutes of the raid, the documents and information that they take with them, the interactions with the agent’s representatives, if any property or information is sealed, and any other relevant facts surrounding the raid. The raided agent is entitled to obtain a copy thereof and a copy of all information copied by the agencies. To the extent that this is not practicable, the agencies must reflect this in the minutes. The raided agent may thereafter file a petition to the agency requesting such copy and providing adequate storage means to that end.
There are no specific rules governing the participation of counsel during raids. Given that there is no restriction, counsel may participate and advise the raided agents or questioned individuals. Their leeway, however, is limited by the obligation on their clients to co-operate and the negative consequences that may arise from failure to so do. In depositions, for example, the participation of counsel is restricted to objecting to illegal questions but they are explicitly prohibited from advising their clients how to answer or speaking beyond the aforementioned objections.
As a matter of practice obtaining separate counsel is common although not required. Individuals usually obtain separate counsel if they are specifically identified in an RFI or a summons, or at any point in time at which an agent determines that they might have conflicting interests with the company. This typically occurs after the dawn raid.
The defence counsel should ensure that companies are aware of their duty to cooperate so as to avoid additional exposure. If a dawn raid takes place, it should assist during the course of the same and ensure that copies of all information obtained by the agencies are made. As quickly as practicable, it should conduct internal interviews and diligence to assess exposure and make a determination on potential leniency applications. It should establish an internal communications protocol addressing the situations and the concerns of employees. Depending on the nature of the situation, it should engage separate counsel for individuals and criminal and labour counsel to assess potential collateral liability.
Documentary evidence and testimony is mainly obtained through RFIs. RFIs are subject to a very low threshold in the sense that the agencies are only required to show the prima facie relevance of the requested information to their investigation. In practice, in the absence of special circumstances (trade secrets, attorney-client communications, material impossibility, etc), it is almost impossible to question an RFI as the agencies’ intermediate resolutions (that is, determinations different from those that adjudicate the matter) are not subject to judicial review.
To a lesser extent, the agencies resort to depositions. The threshold for calling a witness is substantially the same (pertinence for the investigation). Deposed individuals have the right to be accompanied by counsel but the ability of the latter is greatly restricted.
The agencies usually conduct internal research and create their own models and benchmarks which are later on used as indirect evidence. They may also request information from other agencies, such as the Banking Commission or the Tax Administration Service. They can also get information from affected government bodies, which may be critical in cases involving bid-rigging, for instance.
The FCA and the Regulations thereof enable the IA to request “information”. There is no distinction between information readily accessible to the recipient of the RFI and information stored abroad or otherwise not readily accessible. The recipients of RFIs must determine whether they are legally or practically impeded from providing the information requested by the IA which, in turn, will determine whether such impossibility releases the agent from the obligation to provide such information or, in turn, whether it pursues fines or other coercive means to force the agent to provide the relevant information. To this date, no guidance from the agencies nor meaningful precedent exists that could clarify this. In practice, in the absence of a legal impediment, economic agents provide information stored abroad.
Attorney-client privilege is not a concept of Mexican law as it exists in other jurisdictions. From a Mexican law perspective, independent external counsel are subject to a duty of secrecy with respect to information obtained or prepared in the course of their engagement. Professional secrecy has been recognised as the basis for excluding from the review of the agencies documents prepared by counsel, although this doctrine has just been recently recognised in federal court precedents. From the same, it is not clear that the “privilege” would extend beyond Mexican external counsel so as to cover foreign counsel and/or in-house counsel. In criminal cases, it is a statutory rule that communications between counsel and their clients can neither be accessed nor be used as evidence.
The ability of the agencies to impose antitrust liability is part of what under Mexican law is known as the administrative liability powers of the government. While Supreme Court precedents have established that the principles of criminal law are, mutatis mutandis, applicable to this area of law (which is also a principle of human rights international treaties), subsequent Supreme Court and lower court precedents have eroded the applicability of certain principles such as self-incrimination and presumption of innocence to antitrust cases.
Certain information may be subject to banking, securities or tax secrecy obligations or may constitute private communications, for which a court order could be required.
As noted above, it is almost impossible to obtain judicial relief against an RFI. Refusing to answer the same, in whole or in part, as also noted above, may result in significant fines and ultimately in significant impairment to the defence at later stages. In practice, most agents work with the agencies to provide responses to the RFI in a way that is satisfactory to the agencies and reasonable for the agents.
All parties (targets and third parties) that submit information to the agencies are entitled to request confidential treatment of the same. Rules governing confidentiality require that the agents show and justify that such information is actually confidential in nature and provide redacted versions, to the extent practicable, of the information for which confidential treatment is sought.
The possibility to advocate for the closure of the investigation, or that a client should not be part of the same, exists from the outset and until the IA enters a statement of objections. In practice, the better window to do this is after the responses to an RFI have been provided, depositions been taken and dawn raids concluded, at which point in time counsel can argue that the file does not support moving forward or taking action against a client.
At any point in time, whether an investigation has been launched or not (in the former case, provided that the investigation term has not expired), any agent may apply for leniency. To the extent granted, leniency entitles the recipient to a reduction in the fine (almost 100% for the first comer, 50% for the second, 30% for the third applicant and 20% for subsequent applicants). All recipients of leniency also receive immunity from criminal prosecution and from disqualification from engaging in business or acting as director or representative.
Leniency is available to any agent that participated in a cartel and the individuals who ordered or facilitated the same. Economic agents can include in their immunity applications their employees, representatives and officers.
An application requires an acknowledgement of having engaged in anti-competitive behaviour. Once an application is logged, the applicant receives a marker, provisionally granting the aforementioned benefits, subject to the satisfaction of the agencies that the applicant (i) provides evidence of the cartel which the agency did not already have and (ii) cooperates throughout the investigation and the trial-type proceeding following the same. If the recipient of the marker complies with the evidentiary threshold described above, the agency will confirm the marker and grant immunity subject to its continued cooperation.
In practice, COFECE (leniency applications to IFT are not frequent) zealously applies the provisions of the leniency programme and applications to the same as these applications are an important source of information and a critical tool for enforcement. Only in rare cases has COFECE (i) denied leniency on the grounds that the statutory evidentiary threshold is not met or (ii) revoked leniency on the grounds of lack of cooperation.
Applications to the leniency programme and information provided in connection therewith are confidential.
The agencies can seek information from any person. In practice, employees are contacted directly only if the agencies have objective evidence that such employees participated in the cartel. The rules for summoning employees and for requesting information from them are the same as described above. Company information, however, should only be requested from the company itself.
RFIs can be addressed to any person and are only subject to the threshold that the agencies show that the requested information is of relevance to their investigation.
Seeking information directly from companies or individuals outside the jurisdiction is not common. The agencies would have to resort to letters rogatory or consular aid to effect this. In practice, the agencies reach out to local subsidiaries of establishments of foreign entities.
In certain investigations there has been significant inter-agency cooperation, especially when other agencies (such as public hospitals) have been harmed by anti-competitive behaviour. Coordination with other regulators exists but is not significant. Federal agencies are statutorily allowed to share information with the agencies, except for certain specific cases (securities, banking and tax secrecy, for instance). The agencies, on the other hand, are required under the FCA to keep all information relating to their investigations confidential.
The agencies do co-operate with enforcement agencies in foreign jurisdictions. While the bulk of the agencies’ cartel work comprises local cartels, several cartels, especially in the case of COFECE, are international in nature.
Mexico has entered into different international agreements that enable international co-operation in the enforcement of competition laws.
In practice, co-operation is a double-edged sword; it could lead COFECE to the conclusion that an international cartel has been sufficiently investigated and corrected abroad and thus dissuade it from taking further enforcement actions or, alternatively, prompt COFECE to ask for information provided to other enforcers and seek similar enforcement actions.
The agencies are the only entities with standing to press criminal charges for cartel behaviour. Such complaint would need to be filed before a federal prosecutor who, in turn, would review the merits of the same. Should the prosecutor be persuaded that a criminal case is plausible, she could either conduct additional investigation, call witnesses and gather additional evidence, or directly ask a federal criminal judge to issue indictments. In the context of the criminal proceedings, defendants are allowed to produce evidence in all forms admissible (witnesses, experts, documents). At such point in time, the defendants would have the right to access all information used by the agency to press charges except for information classified as confidential and will also have the right to ask the court to direct third parties to produce evidence and information in their possession.
Civil litigation is not available to agencies. Only those parties affected by a cartel may resort to civil litigation and only to seek damages after the competent agency has ruled that a cartel exists.
As enforcement is conducted as an administrative proceeding before the agency, it is not possible (or necessary) to have multiple proceedings.
The standard is the same for all enforcement proceedings. Under Mexican law, the burden of proof lies upon the party that makes an assertion in trial (that would be the IA, asserting the existence of cartel behaviour). Further, charged agents are deemed innocent unless the IA establishes the existence of cartel behaviour. Notwithstanding the foregoing, court precedents afford COFECE ample leeway in making its determinations. For instance, courts have (i) accepted indirect evidence as sufficient to meet the burden of proof if such evidence is not contradicted by the charged agents and (ii) set a high judicial review standard on non-legal matters (ie economic theories of harm etc), pursuant to which courts will defer to the agencies on such matters absent manifest error.
In addition to the foregoing, pursuant to the “best available information” standard set forth in the FCA, if an investigated party refuses to co-operate or to provide information, the agencies are entitled to ground their decision on the facts known to them and the information available in the record.
In administrative proceedings before the agencies, the finder of fact is the relevant IA and the body in charge of applying the law to those findings is the Board of Commissioners of each of COFECE and IFT (respectively).
In criminal cases, the finder of fact is a federal prosecutor (upon a complaint from the competent agency) and a federal criminal judge applies the law to those cases.
The information obtained by the agencies in the proceedings before them can be used to ground a criminal complaint. Information obtained from a leniency applicant, however, can only be used for purposes of granting the marker and leniency thereafter. Thus, only that information that is formally a part of the investigation can be used to impose liability by the agencies or to ground a criminal complaint.
In the proceedings before the agencies, the civil rules of procedure govern admissible evidence and the specific weight that each item of evidence carries, although the agencies have ample discretion to ponder such evidence. Generally speaking, the confession of the parties, witnesses, documents (which includes audiovisual materials, electronic evidence, etc), expert reports and inspections are admissible evidence.
Experts, especially economists, may be critical in these processes. Expert reports from economists are especially helpful to contest indirect evidence (after-cartel shocks, econometric models, etc), theories of harm and quantification of harm to the market, which is the main criterion upon which fines are assessed. IT experts may also be important should chain of custody or similar questions arise.
Certain information may be subject to banking, securities or tax secrecy obligations or may constitute private communications. Additionally, attorney-client communications are subject to secrecy obligations. Such privileges can only be trumped by a court order.
Once a statement of objections is issued by the AI, a criminal complaint may be filed with a prosecutor and a defendant could find itself contesting said statement of objections before the competent agency and, at the same time, persuading a prosecutor not to pursue criminal charges. Also, to the extent that the cartel infringes upon other legislation (ie bid rigging involving public procurement may also violate the Anti-corruption Act), the defendant may find itself facing enforcement from other agencies under such statutes.
Except for criminal responsibilities, both the COFECE and the IFT have the authority to impose sanctions directly. The FCA provides specific limits to impose sanctions for each of the illegal conducts. Monetary sanctions are imposed up to a percentage of the taxable income of the economic agent incurring in the wrongdoing. Criminal responsibilities can only be prosecuted if the Commission or the IFT file a claim before the Procuraduría General de la República (the federal prosecutor) and a federal criminal judge applies the law to those cases.
As previously mentioned, in cartel investigations, any agent may apply for leniency provided that the investigation term has not expired. Leniency is available to any agent that participated in a cartel and the individuals who ordered or facilitated the same. The application requires an acknowledgement of having engaged in anti-competitive behaviour.
Regarding illegal mergers and abuse of dominance investigations, before the statement of objections is issued, agents are entitled to express in writing their intention to attain the exemption and fine reduction benefit established in the FCA. For such purpose agents are required to (i) commit themselves to suspend, eliminate or correct the corresponding practice or concentration, in order to rectify the corresponding market irregularities, and (ii) propose effective means that are legally and economically feasible and appropriate to avoid or eliminate the relative monopolistic practice or unlawful merger/concentration under investigation.
Disqualification from participating in public procurement or engaging in business may be imposed on liable economic agents (including officers and employees of the company). These effects cannot be typically avoided or mitigated by plea bargaining with the Commission or the IFC, since these measures are imposed by administrative authorities not related to the investigation proceeding.
As mentioned above, criminal responsibilities are generally available only for cartel investigations. The agencies are the only entities with standing to press criminal charges for cartel behaviour. Such complaint would need to be filed before the Procuraduría General de Justicia (the federal prosecutor) who, in turn, would review its merits. The penalty for cartel behaviour is five to ten years in prison.
As mentioned above, civil litigation is not available to agencies. Only those parties affected by a cartel may resort to civil litigation and only to seek damages after the competent agency has ruled that an antitrust wrongdoing exists. In Mexico, civil judges typically only acknowledge direct damages suffered by a specific person. Mexico has no punitive nor treble damages.
A compliance programme might help vis-à-vis the responsibility of the legal entity and the appetite of the authority to impose a relevant fine. In accordance with Mexican precedents, the authority is more focused on the damage the relevant market has suffered and the wilful misconduct of the relevant firm.
Sanctions do not extend to mandatory consumer redress on an automatic basis, but they may be taken into account in order to argue a particular redress by affected consumers, as cartel fines issued by the authorities have to evidence, among others, the severity of the relevant conduct.
In Mexico, final decisions of the competition authorities are subject to a constitutional appeal by means of a special court proceeding known as an indirect “amparo”. Since amparo proceedings are constitutional proceedings, the basis and standards required for them are based on violations to constitutional rights of the alleged cartel members during the proceedings before the relevant competition authorities. Amparo proceedings are to be expected whenever the relevant analysis of the competition authorities have not considered evidence or arguments brought by alleged cartel members or generally, where their constitutional rights during the proceedings have been affected. Amparo proceedings are held before specialised tribunals in antitrust, telecommunications and broadcasting. These were created as part of the recent antitrust and telecommunications reforms.
Mexican law allows the recovery of damages arising from illegal behaviour to the extent that the former are directly caused by the latter. A final finding by the Commission or the IFT of a cartel is undisputable evidence of illegal behaviour. Thus, third parties asserting that they were harmed by such conduct would only need to show that they have suffered damages and that the same were directly caused by the illegal behaviour (such claimants would not be required to prove the illegality of the conduct).
Private litigation (including class actions) against cartel behaviours has not yet occurred in Mexico. As mentioned above, cartel behaviour and its prosecution can only be executed by the Commission or the IFT. In this same regard, the Supreme Court of Justice acknowledged that for a damage claim to proceed, the corresponding administrative authority (the Commission or the IFT) should have resolved upon the administrative offence.
The threshold requirements for such an action are, in general, to have capacity or legal standing to bring such proceedings before the courts, and that the statute of limitations for purposes of bringing such actions has not elapsed. For class actions for example, no more than three and a half years should have elapsed since the relevant damage for which redress is being sought was caused. Furthermore, and as it relates to class actions, active legal standing is only held by certain authorities (including the Commission), the common representative of a collectivity of at least 30 affected members, non-profit civil associations that were incorporated at least one year before the class action is brought to the courts, and Mexico’s Attorney General. Actions seeking redress due to cartel conduct may be brought before applicable federal civil courts.
Please refer to 5.2 Threshold Requirements.
There is no particular law or code that deals with such specific scenarios which are common in other jurisdictions. Although private actions related to cartel conduct have not yet happened in Mexico, it would be expected that indirect purchasers or midstream economic agents could demonstrate in courts that the cartel conduct was the direct and immediate cause of any damages they may have suffered in their own businesses, and not merely as a member of the relevant product or service chain which eventually was affected by means of the cartel conduct.
The affected parties and the cartel members that are sued will enter into an adversarial court proceeding under general civil law terms. Generally, this will require that the courts receive a lawsuit by the affected party or parties in which they make and evidence their claim, and which will naturally include the definitive resolution issued by the relevant antitrust authorities (as stated above, such claimants would not be required to prove the illegality of the conduct). The sued cartel members will then have the opportunity to respond to such claim and evidence. Although the parties will have the right during the proceedings to appoint experts in order to support their position, it is to be expected that courts will seldom be deterred from any conclusions that the relevant antitrust authorities made during the course of their analysis.
Generally, evidence from governmental investigations is admissible, but cartel members may require that certain evidence is withheld pursuant to possible leniency applications or otherwise, related to certain matters under applicable laws. It is unknown, however, how such exceptions or requests will be viewed by courts.
Generally, private civil actions will be only made for purposes of seeking specific redress in observance of a direct damage caused by the relevant cartel members and conduct, whereas the governmental proceedings are expected to be analysing and sanctioning damages to the overall market, independently of the specific portion that could be construed to have been caused to specific market participants.
Punitive and treble damages are by general rule non-existent under private claims, so the only kind of damage that would be in principle admitted would be compensatory, direct damages. However, the Mexican Supreme Court of Justice has resolved at least one case where punitive damages have been admitted, although such case was unrelated to antitrust laws and regulations.
As mentioned above, private civil litigation would in principle only accept relief in the form of redress or compensatory damages.
There has not been any private civil litigation (individual or class actions) related to cartel conducts or, generally, antitrust cases in Mexico.
Generally, private civil litigation does allow successful claimants to proceed with a special proceeding within the litigation process to obtain compensation for costs and expenses, on the understanding, however, that such compensation is limited, depending on where the applicable federal courts are located. In Mexico City, such compensation is limited to 6% of the claim and an additional 2% for an appeal process.
Class actions have different limits from those in private civil litigation. Class actions have a limit of 20% if the claim does not exceed 200,000 times the applicable minimum wage in Mexico City; 20% over the first 200,000 times the applicable minimum wage in Mexico City, and then an additional 10%, if the claim is more than 200,000 times but less than two million times the applicable minimum wage in Mexico City; and 11% over the first two million times the applicable minimum wage in Mexico City, and then an additional 3% over the rest of the claim, when such claim exceeds two million times the applicable minimum wage in Mexico City. Other relevant particularities are associated with expenses and costs in class action proceedings.
Regular appeals as well as amparo proceedings are available for decisions involving private civil litigation. The standards to be applied and how common such reviews will be will largely be dependent on the success of the first private litigation claims to be held which consider antitrust damages.
Competition authorities in Mexico generally provide leniency application guidelines as well as guidelines to prevent the exchange of commercially sensitive information between competitors, and have amended their pre-merger filing notice guidelines to include certain safe harbours or thresholds related to non-compete agreements. Such guidelines may be found at the following website: https://www.cofece.mx/publicaciones/normateca/