Cartels 2024 Comparisons

The Mexican legal framework for competition is comprised of the following main instruments:

• the Federal Mexican Constitution (the foundation of the competition legal framework and the enforcement agencies);
• the Federal Economic Competition Law;
• the Regulations to the Federal Economic Competition Law;
• the Regulatory Provisions for the Immunity and Sanction Reduction Programme provided for in Article 103 of the Federal Economic Competition Law; and
• the Regulatory Provisions for the Qualification of Information Derived from Legal Counsel Provided to Economic Agents.

There are two autonomous government agencies with federal jurisdiction to enforce the competition legal framework. These entities are:

• the Federal Economic Competition Commission (the “Commission”); and
• the Federal Telecommunications Institute (the “Institute”, together with the Commission of Agencies).

The Institute oversees enforcing the law in the telecommunications and broadcasting sectors, while the Commission is responsible for enforcing the law in any other sector or market in Mexico.

The procedure is administrative and can only be implemented or carried out by such Agencies. It is impossible to exercise civil actions to enforce competition law, except for claiming damages and lost profits.

Specialised courts in competition, telecommunications and broadcasting exist as part of the competition system. These courts are the judicial authority in charge of any challenges filed by parties affected by the resolutions of the enforcement Agencies. Appeals against the decisions issued by specialised lower courts can be filed with specialised courts of appeal.

In 2020, the specialised courts in competition ruled that the Commission has jurisdiction over the markets for online search services, social networking and cloud computing services and that the Institute has competence over the mobile operating systems market.

The maximum administrative fine that the enforcement Agencies for cartel conduct can impose is up to 10% of the enterprise′s annual income. The Agencies can obtain the tax information from the corresponding authorities to determine the amount of the fine to be imposed. In case of recidivism, penalties can be doubled.

The Commission and the Institute are the only agencies allowed to file criminal complaints with the Office of the Attorney General. Criminal liability exists for cartel-like conduct and is punishable by imprisonment of five to ten years, regardless of the corresponding economic sanction imposed by the Agencies.

Once the Agencies’ decisions become final, the affected entities or individuals can claim damages and lost profits with the specialised courts on competition, telecommunications and broadcasting. 

Private entities and individuals have no legal right to claim damages or lost profits without first having the final resolution from the Commission or the Institute.

There is no private right of action for challenging cartel conduct. As mentioned in 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards, only the Commission or the Institute (either ex officio or by means of a complaint filed by any third party) can challenge cartel conduct.

There are five types of cartel conduct (also known as absolute monopolistic practices) specifically defined and catalogued by the Federal Economic Competition Law. Absolute monopolistic practices are considered illegal per se and consist of contracts, agreements, arrangements or combinations among competitors with the following purposes or effects:

• price fixing – to fix, raise, co-ordinate or manipulate the sale or purchase price of goods or services supplied or demanded in the market;
• output restriction – to establish an obligation not to produce, process, distribute, market (or acquire only a restricted or limited amount of) goods, or the provision or transaction of a limited or restricted number, volume or frequency of services;
• market allocation – to divide, distribute, allocate or impose portions or segments of a current or potential market of goods and services by a determined or determinable group of customers, suppliers, timespans or spaces;
• bid rigging – to establish, arrange or co-ordinate bids or abstentions from tenders, contests, auctions or purchase calls; and
• exchange of information – to exchange information for the purposes referred to in the preceding paragraphs.

Cartels or absolute monopolistic practices are considered serious violations of the law; consequently, they are null and void and do not give rise to legal effects.

The statute of limitations is ten years, beginning on the date the prohibited conduct ends.

Mexican competition law can only be enforced within Mexico; however, the Commission has specifically entered into co-operative agreements with foreign agencies, namely those of the EU and the US. Thus, if the conduct occurs entirely in a foreign jurisdiction, the conduct cannot be enforced by the Agencies unless it occurs within the country. However, regarding investigations in which the possible cartel participated in multiple jurisdictions (including Mexico), the Agencies have the authority to participate in international cartel investigations and co-operate with other countries to tackle international cartel conduct.

Mexico has entered into different free trade agreements containing competition provisions that should be implemented; for instance, the revised United States–Mexico–Canada Agreement. Refer to 1.6 Extent of Jurisdiction and 3.5 Co-operation With Foreign Enforcement Agencies.

Although it is not a regulatory change, the Commission has recently announced its intention to increase the number of criminal cases by filing complaints with the Attorney General. This marks a significant development, especially considering that cartel cases traditionally have not resulted in criminal proceedings. See 2. Procedural Framework for Cartel Enforcement – Initial Steps.

The Agencies are required to have an objective cause to start an investigation. An objective cause is any indication of the existence of cartel conduct. According to the principles of the Mexican legal system, the investigative authority should clearly and duly justify its allegations.

Furthermore, the Regulations to the Federal Economic Competition Law list certain conducts that could drive an investigation either ex officio or prompted by a complaint filed by a third party. These conducts include:

• the invitation (or recommendation) to other entities or individuals to co-ordinate practice offers and conditions of production, marketing or distribution of goods and services or to exchange information with such purpose or effect;
• the fixing of the sale price offered by two or more competitors in Mexico considerably above or below the international reference price;
• instructions or recommendations adopted by business associations, business chambers or similar organisations to perform any of the conduct described above; and
• two or more competitors establishing maximum or minimum prices or adhering to prices issued by business associations or commercial chambers.

Different ways to initiate an investigation:

• complaint filed by any entity or individual (even if the complainant is not the affected party);
• a requirement by the executive branch, the Ministry of the Economy or the Consumer Protection Agency;
• ex officio; and
• investigations deriving from information obtained from leniency applicants.

Once the Commission or the Institute (through its investigative units) decides to start an investigation, it is required to publish a so-called “Initial Ruling in the Federal Official Gazette” – noting the beginning of a cartel investigation proceeding, the relevant market and the type of alleged conduct on which the investigation will be carried out.

After the publication of the Initial Ruling, the investigative process provides the corresponding enforcement Agency with a timeframe that runs from 30 to 120 business days (with the possibility to extend the investigative stage up to four times for 120 business days each time). The investigation process is confidential without the possibility of identifying the target entities or individuals.

Once the corresponding Agencies’ investigative unit considers that it has sufficient grounds, it submits the case to the Board of Commissioners to determine whether the alleged responsible participants are formally served with a document called the Statement of Probable Liability or the case is to be closed if the corresponding Agencies’ investigative unit gathered insufficient evidence. After serving the alleged responsible entities or individuals with the Statement of Probable Liability, a trial-like administrative proceeding starts. The parties to the trial are the investigative unit, the plaintiff, and the defendants. The defendants have 45 business days to answer every allegation and provide as much evidence as possible. Other steps are followed during the trial-like procedure, and upon completion, the Board of Commissioners should issue the resolution.

Dawn raids are possible and common during cartel investigations and, in some cases, are performed before the Initial Ruling mentioned in 2.1 Initial Investigatory Steps. The investigative unit carries out dawn raids.

A firm or individual facing a dawn raid must allow the visit to occur without obstructions and provide all necessary support to the visiting officials. If the firm or individual rejects or obstructs the visit in any manner, then the officials may use security forces to access the firm’s facilities, and the officials will include the fact in the corresponding minutes, and the alleged fact will be true.

It is possible for the visited firm or individual to include comments or arguments in the minutes and attach evidence or supporting documents to their arguments. The visited entities will be entitled to appoint two witnesses who will sign the dawn raid’s minutes.

Restrictions on Dawn Raids

The scope of the dawn raids is broad. The officials are authorised to access facilities, means of transportation, computers, electronic devices, storage devices, files, or any other elements that might contain evidence. The officials may also take pictures or record videos and copy any documentation, by any means, documents, books, files, or information generated by any technology (including computers and emails) or material support, provided that they are related to the investigation. Seizure of the relevant documents is not allowed. Furthermore, the Commission or the Institute cannot access information protected by the attorney-client privilege, as explained in detail under 2.7 Attorney-Client Privilege.

Procedure of Dawn Raids

The procedure of dawn raids is quite formal and must follow specific rules, as follows:

• the investigative authority will issue an order containing the purpose, scope and term of the visit as well as the name and address of the visited economic agents;
• the visited economic agent is warned that in the event of access denial, hindering the visit or refusing to provide the documents or information requested, the enforcement measures (such as penalties) shall be imposed;
• the visits are carried out to obtain information and documents related to the investigation;
• the visits cannot exceed two months (with the possibility of extending them for two additional months);
• the visits can be performed on business days and during business hours, provided that the investigative authority may allow an inspection to be initiated on non-business days and during non-business hours or for an inspection to be continued into non-business days and hours;
• the visited entity’s officers, representatives or employees must allow the on-site inspection, providing access to the facilities and information as mentioned above;
• the visiting officers may request explanations regarding the facts, information or documents related to the purpose of the visit from the economic agent’s officers, representatives or personnel, whose answers will be recorded and included in the visit’s minutes;
• the visits can be conducted simultaneously in two or more places at a time; and
• the visiting officials will draft minutes in the presence of two witnesses, and a detailed description of the facts or omissions noted during the visit will normally be included.

The firms or individuals visited in a dawn raid are warned of certain measures, such as the imposition of fines. However, if spoliation of information occurs, the enforcement Agencies’ allegations may be considered proven, and criminal liability may be imposed.

The visited economic agent has the right to counsel; nevertheless, the visit can start without the presence of counsel. The counsel is authorised to speak or provide comments that will also be recorded in the minutes. Like any other officer or representative of the visited entity, the counsel will also be subject to the warnings made by the visiting officials.

The Requirement to Obtain Separate Counsel

Because competition law is a specialised legal framework, the economic agents typically engage separate counsels to address the investigations. For certain investigations, it is important to have an economist if some of the arguments used by the defendant rely on economic analysis. It is essential to note that engaging a separate counsel is not obligated.

Initial Steps Taken by Defence Counsel

The procedure to determine a violation of the Mexican competition law is divided into two stages. The first stage comprises the investigation procedure, and the second stage involves a trial-like administrative process as described in 2.1 Initial Investigatory Steps. The Commission or the Institute carries out both steps; however, the first stage is carried out by the investigative authority, which is an independent entity within the Agencies. The investigation procedure is confidential, so it is impossible to know if the economic agent is considered the target of an investigation or only a third party to the process.

Therefore, the defence counsel’s initial steps are to work with the economic agent to (internally) determine if responsibility exists. Even though the investigations are confidential, and it is not possible to determine who is under investigation, a visit or a request for information can provide sufficient background to carry out an assessment to prepare all the arguments and supporting evidence if a Statement of Probable Liability is to be served on the economic agents.

Evidence and testimony are obtained from diverse sources such as:

• dawn raids;
• official requests to any firm or individuals (including authorities);
• information gathered from complaints filed before the enforcement Agencies;
• intelligence investigations performed by the Commission or the Institute;
• appearances of any individual related in any way to the purpose of the investigation;
• anonymous complaints filed on the Commission’s website;
• public sources of information;
• economic analysis of market studies;
• co-operation with other authorities;
• information gathered in other procedures carried out with enforcement agencies; and
• information obtained from leniency applicants.

Procedure for Obtaining Other Types of Information

The Agencies, and specifically the Commission, have an intelligence unit in charge of gathering information from different sources (such as surveys, internal analysis and public sources, among others). The enforcement Agencies can also request information from other governmental agencies or foreign competition authorities.

The companies or individuals can be obligated to produce documents or evidence if formally required to do so. The Mexican competition law does not have an extraterritorial effect; however, in some instances, companies or individuals located in Mexico must produce documents related to activities or facts of an international nature.

The attorney-client privilege only applies to the external counsel of the economic agents and communications among the target entity; the external counsel communications cannot be used as evidence during the process. For instance, if during a dawn raid, the enforcement agency officials find communications between the external counsel and their client, that information cannot be included (or even considered) to pursue the agencies′ allegations against the target firm or an individual. Recent judicial criteria have confirmed the attorney-client privilege in competition matters.

In addition, the Commission has published rules applicable to attorney-client privilege, establishing what type of information can be considered an attorney-client privilege and the procedure to request the Commission to treat the information gathered as such.

The rules on attorney-client privilege provide that the Commission will not use or grant evidential value to the communications if the economic agent proves that the communications with the external counsel had the purpose of seeking legal advice. The procedure to request that the information be treated as attorney-client privilege is the following.

• During a dawn raid, the visited economic agent can request the visiting officials to classify certain documents or information as attorney-client privilege. The visiting officials must detail the request of the visited economic agent in the draft minutes.
• Once the authority concludes the dawn raid, the visited economic agent has 20 business days to submit a formal request to the Commission. Even if the economic agent failed to file the request during the dawn raid, it has the right to submit the request once the dawn raid has finished.
• The information subject to the privilege must be described, eg, if the information is digital, the exact location, name and type of document (agreement, letter, email, and memorandum), the author’s name and date.
• A detailed description of the legal advice and the reasons for the information being considered attorney-client privilege must be provided.
• Proof that the external counsel is legally authorised to practice law must also be included.
• If the investigated entity operates outside of the Mexican borders, correspondence with external lawyers of that country is treated under the same principles.

Please note that for the Commission, documents may be privileged irrespective of whether they are labelled “Privileged and Confidential” (or some variant). Therefore, the labels of documents are indicative, not determinative.

Other Relevant Privileges

Formal rules in the Mexican Federal Constitution protect all entities and individuals. Some relevant privileges granted to individuals are the following:

• due process; and
• the presumption of innocence for defendants.

The due process privilege states that individuals should not be disturbed in their goods, domicile, papers or possessions without a written order from a competent authority, which should be duly supported.

Conversely, the presumption of innocence for defendants provides that if the Commission or the Institute do not gather enough evidence to accuse the defendants of cartel behaviour, the defendants should be considered innocent, and the investigation should be closed.

In general terms, both the entities and individuals co-operate with enforcement agencies. However, the consequences of non-cooperation with the Commission or the Institute may give rise to fines imposed on the economic agents that fail to co-operate. For instance, a fine of approximately USD18,000 can be imposed for each day of non-compliance with an order or requirement from the enforcement agencies.

In addition, non-cooperation can be considered an omission that affects the exercise of the Commission’s authorities, a criterion that is taken into account in the competition law when estimating the applicable fine.

The information obtained by the enforcement Agencies can be considered public, confidential or reserved as set out below:

• information deemed public can be accessed by everybody or even published on the authority’s webpage;
• reserved information can be accessed by economic agents who are part of the trial-like procedure; and
• information deemed confidential can only be accessed by the economic agent who provided the information.

In order to classify information as confidential, an economic agent must show and justify that the information is, in fact, confidential in nature and file a summary thereof. Besides not being available from public information sources, the following are included as bases for confidential classification:

• information that, were it to be disclosed, would cause damage or lost profits;
• information that contains personal data that requires consent for disclosure;
• information that would put security at risk; or
• information which disclosure is prohibited by any legal provision.

Legal and factual arguments are raised at two different stages of the process. During the investigation stage, arguments can be raised through the responses and evidence provided to the official requests issued by the investigative authorities of the Agencies, regardless of the fact that it is not possible to know if the economic agent is a target or not at this stage.

The second stage of the process ‒ the trial-like procedure ‒ is the appropriate procedural moment to raise all arguments, file evidence, provide economic analysis and include arguments to persuade the enforcement agencies that the economic agent is not responsible for the execution of a cartel.

A leniency programme exists in Mexican competition law and is available for any economic agent that has participated in cartel conduct (either directly or indirectly). The general rules applicable to the leniency programme are the following:

• the applicant should provide enough evidence to allow the enforcement agency to presume a cartel;
• the applicant should fully and continuously co-operate throughout the investigation stage and, if required, during the trial-like procedure; and
• the applicant must cease their participation in the cartel.

If said requests are fulfilled, the Agency will impose a minimum fine. The first applicant to the leniency programme will receive a total reduction of the fine. Further applicants who are not the first to provide evidence can also request such benefit, but they will only receive a reduction of 50%, 30% or 20% of the maximum permitted fine (depending on the chronological order in which requirements are submitted and on the supporting evidence provided).

The Commission published Guidelines on the Leniency and Fines Reduction Programme that details the steps an applicant should follow to apply for leniency, what an applicant should understand as full and continuous co-operation, and the procedure to revoke the benefit granted.

No information is available in this jurisdiction concerning amnesty.

The enforcement agencies may demand information from company employees of all levels of seniority. The requests for information can be through:

• official requests; and
• a requirement to appear in the enforcement Agencies’ offices, where officials perform interviews with company employees or managers.

Former employees or managers can also be required to provide information or appear for interviews or hearings.

The enforcement agencies can acquire the information directly from the target company or others (including governmental entities). To acquire the information desired, the Agencies typically issue official requests that should be fully answered within ten business days (a term that can be extended for another ten business days). The Agencies are authorised to issue as many official requests as they deem proper. Typically, the official requests contain a significant amount of information to be addressed, filed or produced. If official requests are not fully addressed, the governmental agencies can either reiterate their request or impose a fine for every day of non-compliance.

The enforcement agencies do not typically seek information from companies or individuals outside Mexico. However, there are legal instruments that allow enforcement agencies to obtain information located abroad.

There is inter-agency co-operation and co-ordination available at four different levels:

• with public authorities;
• with academic institutions;
• with international institutions; and
• with the social and the private sector.

Within the public authorities’ co-operation, the Commission has co-operation agreements with the Mexican Central Bank (Banxico), the Tax Administration Service (SAT), the Ministry of Economy (SE), the Ministry of Finance and Public Credit (SHCP), the Energy Regulatory Commission (CRE), and the Consumer Protection Agency (PROFECO), the Science and Technology Council (Conacyt), among others.

With academic institutions, there are agreements between the Commission and Instituto Panamericano de Alta Dirección de Empresa (IPADE) and Centro de Investigación y Docencia Económicas (CIDE). Regarding co-operation agreements with international institutions, the Commission has such agreement with the Inter-American Development Bank (BID), and finally, with the social and the private sector, the Commission has a co-operation agreement with the Consejo Coordinador Empresarial (CCE).

These interagency co-operation instruments are relevant since several cases have started by means of co-operation or information provided by other government agencies. In addition, the Mexican competition law provides that the SE and the PROFECO can file complaints for cartel behaviour. If the enforcement agencies learn that cartel conduct may result in damages or lost profits to consumers, the CPA should be informed so it can start an investigation accordingly.

The Commission is quite active in its relationship with foreign enforcement agencies. For instance, it is committed to adopting the best international practices through participation with international organisations such as the OECD, the International Competition Network, and the United Nations Conference on Trade and Development.

Some international treaties and instruments require the Commission to comply with co-operation mechanisms with other agencies. In addition, it has entered into co-operative agreements with other agencies, such as the one executed with the European Commission for increased co-operation on competition matters and in merger control cases. The co-operation agreement with the European Commission includes the possibility for either agency to remit a case to the other when potential law violations exist. It also provides for training and the exchange of officials between both authorities. For instance, in the past, US and British authorities have participated with the Commission to train their officials. For more information, see 1.6 Extent of Jurisdiction.

Criminal cartel cases can be filed with the Attorney General′s Office by the Agencies without necessarily having a final resolution. Therefore, enforcement agencies can file criminal claims once the investigative authority issues the Statement of Probable Liability. Third parties or other agencies cannot bring criminal cases for cartel conduct; however, to date, it is not common for a cartel investigation to give rise to criminal procedures.

Once the Attorney General′s Office is aware of the complaint, it will apply the criminal law rules to determine whether or not a crime has been committed. These rules and principles are quite different from the administrative procedure carried out by the Agencies. If the Attorney General’s investigation results in an alleged cartel crime, it will then file the case with a criminal court for the fining process. The defendant has the right to due process and to know the basis and rationale for the accusation.

As mentioned in 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards, the procedure to enforce competition laws in Mexico is administrative, and no civil actions to enforce such laws can be brought (other than damages or loss of profits civil procedures). Regarding the right of third parties to file complaints in order for the Agencies to start a cartel investigation, the third party may submit a plaintiff before such authorities through a written document containing:

• the specifics of the alleged responsible entity or individual;
• a description of the facts considered illegal, the market structure, and the goods and services involved;
• how the conduct affects the market;
• a list of documents and supporting evidence which may include minutes, chats, communications, videos, emails, audio recordings, statistics, market surveys; and
• any other evidence or information that might help enforcement agencies to prove the case.

The complaints are filed with either the Commission or the Institute, and the investigation and analysis of the claim are carried out by the independent investigative authority of the applicable Agency, which will eventually do one of the following:

• issue an official communication marking the beginning of the investigation, previously described as the Initial Ruling;
• issue an official request to the claimant to petition fulfilment of the requirements of a complaint; or
• issue an official communication refusing the complaint, either due to the lack of the necessary requirements or because the behaviour cannot be considered cartel conduct.

Defendants do not have access to the information in possession of the investigative authority while the confidential investigation is in process. Once the Statement of Probable Liability is served on the defendant, it is possible to know the specifics of the conduct attributed to the defendant.

Cartel conduct always implies that at least two involved parties are considered competitors. Therefore, the enforcement is typically brought against multiple parties within the same case. The identity of the parties involved in the conduct will be disclosed once the investigation stage is complete and the alleged responsible parties are served with the Statement of Probable Liability.

Depending on the type of procedure (ex officio or following a complaint), the burden of proof to initiate the cartel investigation is on the plaintiff or applicable Agency. Upon the completion of the investigation, should the investigative authority gather enough evidence (ie, from the plaintiff, information gathered during dawn raids, previous investigations, and information provided by the target entities and other parties), it will have the burden of proof by means of the Statement of Probable Liability.

The enforcement proceedings carried out by the Commission or the Institute are of an administrative nature. The finders of facts are both the plaintiff and the enforcement Agency. The Agencies enforce the law for those facts. In criminal cases, the finder of fact is the enforcement agency which files the complaint with the Attorney General. The Attorney General’s Office investigates the criminal case, and the criminal courts apply the criminal law to those facts.

Evidence obtained in one proceeding can be used in another proceeding if it relates to the facts and the target company. Information provided by applicants for the leniency programme is only used in the proceeding for which the information is provided.

According to the legal principles applicable in Mexico, the evidence should comply with constitutional standards, allowing the defendant access to due process. Therefore, the enforcement Agencies should produce and support their allegations with the highest standard of legal and economic analysis. If the Commission or the Institute fines the defendant, it could still challenge the decision by means of an amparo indirecto (constitutional injunction) proceeding before specialised courts on competition, telecommunications and broadcasting. Such courts will analyse whether the procedure performed by the enforcement Agencies followed minimum legal standards and principles; if it did not, the resolution could be amended or revoked. For more information, see 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards and 4.8 Available Forms of Judicial Review or Appeal.

Experts are, in some cases, fundamental to a proper defence. Economists, as independent experts, produce an important part of the arguments and evidence presented to the Agencies. Furthermore, if a communication or document is not written in Spanish, translation experts must translate it into Spanish or translate the appearance of a given person who does not speak Spanish and who is necessary for the cartel procedure.

Likewise, in the case of the amparo indirecto, other kinds of independent experts may be necessary depending on the market of the cartel investigation. The need for these experts depends greatly on the type of evidence that is part of the cartel procedure.

The attorney-client privilege is recognised, and documents protected under this principle cannot be used as evidence. See 2.7 Attorney-Client Privilege.

Sanctions are imposed directly by the Commission or the Institute, depending on the case. However, if the cartel investigation has led to a criminal complaint, these complaints are resolved by criminal courts, which are entitled to impose prison sanctions.

Sanctions are imposed directly by the Commission or the Institute, depending on the case. However, if the cartel investigation has led to a criminal complaint, these complaints are resolved by criminal courts, which are entitled to impose prison sanctions.

Other than the leniency programme mentioned in 2.11 Leniency and/or Immunity Regime, there are no plea bargaining or settlement procedures for cartel conduct.

No collateral effects (other than criminal complaints or civil cases to claim losses and damages) exist in Mexico. The Commission has been actively pursuing a fight against corruption agenda. As part of this agenda, there are initiatives to create collateral effects: for instance, the first case of debarment in public procurement processes or public bids of entities or individuals sanctioned for cartel conducts has been implemented, and other cases are expected to come to reality in the near future.

Criminal proceedings can only be started by means of a formal complaint brought by the Commission or the Institute. Criminal law is quite formalistic, and specific rules apply. Currently, only a few cases have been brought before the Attorney General. If, under criminal rules, the cartel conduct described in the Federal Criminal Code is carried out, then a specific unit of the Attorney General’s Office would require a criminal judge to start the fining process, provided that the corresponding judge will determine the applicable sanction.

The cartel investigations performed by the enforcement Agencies are administrative. The Mexican competition law allows companies and individuals to be fined after an adversarial proceeding in the form of a judicial trial. The enforcement Agencies are the only entities authorised to apply sanctions (other than criminal charges and resolutions determining damages and loss of profits). In the event of civil actions to claim damages and loss of profits, the specialised courts on competition, telecommunications and broadcasting will determine the corresponding amount to be paid, if applicable.

Sanctions are of an economic nature; however, the enforcement Agencies can order the correction or suppression of certain types of conduct in the future.

The Commission specifically encourages economic agents to implement competition compliance programmes as a preventative measure to avoid violations of the Mexican competition law. Nevertheless, no specific rules or benefits are included in the competition law.

Sanctions imposed by the enforcement agencies are for the benefit of the government and are not intended to provide consumer redress or any benefit to other affected parties.

A judicial review is the only procedure available to challenge the enforcement Agencies’ resolutions. The judicial challenge (known as indirect amparo) should be filed with the specialised courts on competition, telecommunications and broadcasting. Appeals against the decisions of a lower court are lodged with specialised courts or appeal courts on competition, telecommunications and broadcasting. No other remedies are available to challenge either inner process resolutions or acts or final resolutions other than the above-mentioned indirect amparo (constitutional injunction).

No private right of action exists for cartel conduct in Mexico. However, once the final resolution from either the Commission or the Institute is issued, any affected third party can file civil actions to claim damages and loss of profits, which will be brought before the specialised courts on competition, telecommunications and broadcasting.

Class actions for competition cases are allowed in Mexico when led by the enforcement Agencies; however, competition class actions are not common in Mexico.

No private right of action exists for cartel conduct in Mexico. Nevertheless, civil actions exist for damages and loss of profits.

Evidence obtained from government investigations is admissible and, in some cases, can be considered an indication of cartel conduct.

Because there is no private civil litigation to enforce competition law related to cartel conduct, there is no describable frequency of claims. Also, it is not common in Mexico to file civil actions to claim damages or loss of profits.

The compensation for successful attorneys is agreed upon between clients and their counsel on a case-by-case basis. The resolutions issued by the enforcement agencies do not compensate for legal representatives’ compensation.

The resolutions issued by the Commission or the Institute do not mandate that unsuccessful claimants be obligated to pay defence costs for counsel. Nevertheless, in a procedure to claim damages and loss of profits, and depending on the case, costs can be included as part of those damages.

According to the strategic plans of the Commission and the Institute, some markets or sectors will be given specific attention and may be the subject of future cartel investigations. On the Commission’s side, they published their 2022‒2025 strategic plan, and its priority sectors include food and beverage, transportation and logistics, financial, construction and real estate, energy, health, public procurement and digital markets. The Institute’s strategic plan for 2019‒2023 includes the digital ecosystem and new technologies as priorities.

According to the strategic plans of the Commission and the Institute, there are markets or sectors that will be given specific attention and may be the subject of future cartel investigations. On the Commission’s side, they published their 2022‒2025 strategic plan, and its priority sectors include food and beverage, transportation and logistics, financial, construction and real estate, energy, health, public procurement and digital markets. For the Institute, their strategic plan for 2019‒2023 includes as priority sectors the digital ecosystem and new technologies.

The Commission has published the following guidelines (which are non-binding); however, important criteria and interpretations are included therein:

• Guidelines on information exchange between economic agents;
• Guidelines on initiating an investigation regarding anti-competitive practices;
• Guidelines on investigations regarding absolute monopolistic practices; and
• Guidelines on the Leniency and Fines Reduction Programme.