The Federal Law of Economic Competition became effective in Mexico in 1993. Congress approved important amendments to this statute in 2006 and 2011. In 2013, the Constitution was amended to improve the enforcement of competition law and policy and, as a result of this constitutional amendment, Congress enacted a new Federal Law of Economic Competition (the Competition Law) in 2014. The Federal Economic Competition Commission (COFECE) enforces the Competition Law in all areas of the economy, except the telecommunications and broadcasting sectors, where the Competition Law is enforced by the Federal Telecommunications Institute (IFT).
Under the Competition Law, pre-merger notification is mandatory when certain monetary thresholds are met. Since 2014, a notified transaction must be approved by COFECE or IFT before consummation. Reportable transactions will not produce legal effects without such approval.
The Competition Law provides both a size of transaction test and a size of person test for determining whether a filing is required. For 2020, pre-merger notification is required when:
- the transaction's value exceeds 1,563.84 million pesos in Mexico;2
- an economic agent acquires 35 per cent or more of the assets or capital stock of an economic agent with assets or annual sales of at least 1,563.84 million pesos; or
- the acquired assets or capital stock amount to more than 729.79 million pesos,3 and the assets or annual sales of the parties involved in the transaction, jointly or separately, amount to more than 4,170.24 million pesos.4
The assets and sales that must be taken into account when assessing the thresholds are the ones located or originating in Mexico. The value of assets is the greater of book value and commercial value (i.e., the price paid).
Failure to file can result in a fine of between 434,400 pesos5 and 5 per cent of the parties' annual sales.
The Competition Law provides certain exemptions to the pre-merger notification requirement. Some general examples of these are:6
- intra-corporate transactions;
- acquisitions of capital stock by an acquirer who has held control of the company since its incorporation or since such control was approved by COFECE or IFT;
- transfers of assets or capital stock to administration or warranty trusts;
- international transactions not implying acquisition of control of Mexican companies or accumulation of assets in Mexican territory; and
- certain acquisitions solely for investment purposes.
Additionally, there is a special rule for the telecommunications and broadcasting sectors regarding the requisite of previous authorisation. The 2013 constitutional amendments ordered for IFT to determine if preponderant economic agents (i.e., agents whose national share surpassed 50 per cent) exist in the telecommunications and broadcasting sectors, which was confirmed by IFT on March 2014 and other later decisions. Afterwards, the ninth transitory provision of the Federal Law of Telecommunications and Broadcasting, effective as of 13 August 2014, provided that as long as preponderant economic agents exist, mergers between concessionaries (i.e., operators in such sectors) will not require previous authorisation from IFT whenever:
- the preponderant economic agent is not involved in the transaction;
- the Dominance Index shows a negative variation in the sector, as long as the Herfindahl–Hirschman Index does not show an increase that exceeds 200 points;
- as a result of the transaction, the economic agent has a share of less than 20 per cent in the corresponding sector; and
- the merger does not produce harmful effects to competition in the sector.
These types of transactions will require a post-closing notice instead of the pre-merger notification filing. This notice must be filed before the IFT within 10 days of the closing. The IFT will have 90 days to investigate the merger and, if substantial market power in the relevant market exists, the authority will be entitled to impose measures to protect competition.
Approved transactions may not be subject to further investigation unless the approval has been based on false information, or the approval has been subject to conditions and the parties do not comply with such conditions.
Transactions not surpassing the thresholds or falling under the exemptions may not be investigated after a year following their consummation. Transactions not subject to mandatory pre-merger notification may be voluntarily reported for approval and to eliminate the possibility of further investigation.7
In the past year, there have been no important changes to the Mexican merger control regime. In addition to the Competition Law, some of the most important regulations, guidelines and rules related to merger control are the following:
- Regulations of the Competition Law, issued and amended by COFECE per the publications in the Official Journal of the Federation on 10 November 2014, 5 February 2016, 14 February 2018, 1 August 2019 and 4 March 2020. These regulations complement the merger control provisions established in the Competition Law;
- Regulations of the Competition Law for the broadcasting and telecommunications sectors, issued and amended by the IFT per the publications in the Official Journal of the Federation on 12 January 2015, 1 February 2019 and 22 November 2019. These regulations complement the merger control provisions established in the Competition Law;
- Guidelines for the Notification of Concentrations, issued by COFECE on 9 October 2015 and amended on 20 April 2017. These guidelines provide further details regarding application of thresholds, information and documents required for the filing, and non-compete clauses, among other issues;
- Guidelines for the Notification of Concentrations for the telecommunications and broadcasting sectors, issued by the IFT on 28 June 2017. These guidelines provide further details regarding application of thresholds, information and documents required for the filing, and non-compete clauses, among other issues;
- Regulations of the use of Electronic Systems of COFECE, issued and amended by such authority per the publications in the Official Journal of the Federation on 8 December 2017 and 18 July 2019. These regulations establish the rules for the operation of the Electronic System of Filings of COFECE (including merger control filing); and
- Rules for the Notification of Concentrations via electronic systems, issued and amended by COFECE per the publications in the Official Journal of the Federation on 8 December 2017 and 18 July 2019. These rules establish the requirements and the procedure via the electronic system. It is important to note that under the latest amendments to these rules, the submission of a concentration filing via the electronic system has been mandatory since January 2020.
Finally, other rules and guidelines relating to the Mexican merger control regime are the following:
- Technical Criteria for the Calculation and Application of a Quantitative Index to determine concentration in the relevant market;
- Technical Criteria for the Calculation and Application of a Quantitative Index to determine concentration in the telecommunications and broadcasting sectors;
- Guidelines of the Investigation Procedure of Relative Monopolistic Practices (dominance) and Illegal Mergers;
- Guidelines of the Investigation Procedure of Relative Monopolistic Practices (dominance) and Illegal Mergers in the telecommunications and broadcasting sectors; and
- Guidelines for Exchange of Information between Economic Agents.
ii YEAR IN REVIEW
In 2019, COFECE received 153 pre-merger notifications and concluded reviews of 134 with the following outcomes: 132 transactions were authorised and two transactions were denied (Walmart/Cornershop MX and Inmueblemar/Soriana/Planigrupo). Ten transactions did not finish the review procedure and nine reviews were extended into 2020. The sectors involving the highest number of pre-merger notifications were manufacturing (36), real estate and leasing (16), transportation, postal services and storage (14), mining (12), electricity, water and gas (12), and retail (11).8
In the first quarter of 2020, COFECE reviewed 82 pre-merger notifications with the following outcomes: 37 transactions were authorised and 45 continued under review. In 2019, COFECE imposed 16 fines for failure to notify a transaction.
During 2019, IFT received and reviewed seven pre-merger notifications with the following outcomes: six were authorised and one transaction was conditioned to comply with undertakings. The IFT also reviewed two post-closing notices.
Of the past year's cases, it is worth mentioning the Walmart/Cornershop MX transaction9 by which Walmart intended to acquire Cornershop MX. In this case, COFECE decided to object to the transaction. Walmart is an international company that operates retail stores, price clubs, pharmacies and online stores, while Cornershop MX is a Mexican company that provides logistics services through the exhibition, sale and delivery of products offered by other companies via websites or apps. After reviewing the transaction, COFECE identified three possible risks to competition: (1) Cornershop MX might refuse to provide its services to Walmart's competitors, (2) Walmart might refuse to sell its products in competing platforms of Cornershop MX, and (3) the combined entity might have the potential to cause the exit of Walmart's competitors that used Cornershop MX by using the strategic information provided to and produced in the platform (esspecially the sales information). Walmart and Cornershop MX filed a proposal of undertakings, which were deemed insufficient by COFECE.
2019 was the year in which COFECE and IFT completed their review of the Disney/Fox transaction.10 In mid-2018, the transaction was notified as a global acquisition, which included the cinema and television studios, entertainment and regional sports channels, and international businesses related to television. However, in January 2019, to eliminate risks to competition in the distribution of films for cinemas market, the parties modified the transaction to include the transfer, on behalf of Sony Pictures, of the participation of Disney in the company that participated in this market in Mexico. After this, COFECE proceeded to clear the transaction.11 Regarding ITF's review, after analysing 10 markets related to telecommunications and broadcasting, it was found that the transaction would harm competition in two markets: provision and licensing of restricted channels to cable TV providers in the 'factual' (which includes culture programmes, documentaries and reality TV) and 'sports' categories. Therefore, after asking the parties to propose undertakings, the IFT decided to clear the transaction with the condition to comply with the following undertakings: (1) for the factual category, several measures were imposed to avoid coordination between the new agent (Disney/Fox) and Discovery (main competitor); and (2) for the sports category, the divestiture of Fox Sports and its related assets was ordered.
iii THE MERGER CONTROL REGIME
Notifications must be filed by all parties involved in the transaction (e.g., buyer and seller), and a common representative must be appointed to act on behalf of the parties before COFECE.12 As of 1 January 2020, a filing fee of 190,020 pesos must be paid for COFECE's filings, while filings before IFT does not require such payment.
The initial filing must provide, in general, some corporate and financial information and documents (articles of incorporation, by-laws, capital structure, corporate charts and financial statements); the agreements governing the transaction; the scope of the non-compete obligations; an explanation of the transaction purposes; and a brief description of the products and market shares of the parties. Such information and documents are described in Article 89 of the Competition Law and are commonly known as 'basic information'.
Within an initial 10-business-day period, COFECE may request basic information that was not provided with the initial filing, and such information must be submitted within a 10-business-day period, extendable under duly justified causes.
By reviewing the basic information, COFECE should be able to determine whether the transaction produces relevant effects in the market, in which case they would issue an additional information request to proceed with a deeper analysis of concentration effects.
Typically, the additional information request may be issued and notified to the parties within a 15-business-day term after the compliance of the basic information request, or after the initial filing if such request was not issued. However, in exceptionally complex cases, the 15-business-day term may be extended for another 40 business days. This additional information request may include such economic information that the authority deems necessary to analyse the effects of the transaction (description of products and substitutes, production processes, costs, investment amounts, distribution options, suppliers, clients, prices, market shares, etc.), and in many cases it has to be provided in a high level of detail. The response to the additional information request must be submitted within a 15-business-day term, extendable under duly justified causes for 40 additional business days.
If the notifying parties fail to comply with the information requests (basic and additional), it is legally tantamount to the notification not being filed. However, the transaction may be notified again and the procedure would start from the beginning.13
COFECE will issue its decision within a 60-business-day period after the compliance of the additional information request; the compliance of the basic information request (if an additional information request was not issued); or the initial filing (if no basic or additional information requests were issued). In exceptionally complex cases, this 60-business-day term may be extended for up to 40 additional business days. COFECE's decision may approve, with or without conditions, or disapprove the transaction. If a decision is not issued within the established time frames, the notified transaction is deemed approved. The approval of the transaction will be valid for a six-month period, which may be extended for another six months when justified causes are credited by the parties. The transaction may not be closed after the expiry of such periods unless a new notification is filed. The parties shall provide COFECE with documents evidencing the transaction formalisation within 30 business days after closing.
If during the notification process the concentration raises competition concerns, COFECE will inform the parties about such concerns at least 10 business days before the case is included for decision in the board of commissioners' agenda. No later than one day after the case is included for decision in the board of commissioners' agenda, the parties may offer undertakings to prevent the risks found by the authority. The 60- or 40-day terms for issuing the decision will start to count again from the day the proposed undertakings are filed. Also, parties can offer undertakings at any time from the beginning of the process. If they are offered with the initial filing the terms will not be interrupted, although this is rarely recommended.
COFECE is empowered to, and frequently does, request information from third parties that may be related to the market where the concentration will take place or have effects, being also empowered to request information of other authorities. Such information must be provided in a 10-business-day period, extendable for another 10 days when justified.
The Competition Law does not acknowledge the legal standing of affected third parties to challenge approval decisions issued by COFECE in a pre-merger notification process. However, third parties may submit their concerns and provide information and documents, which shall be taken into account by COFECE when issuing its decision.
During the notification process, only the notifying parties may have access to the file. Once the process concludes, COFECE publishes its decision, excluding the information classified as confidential, and any person may have access to the non-confidential information contained in the file, through a specific petition filed under the transparency law.
Finally, it is worth mentioning that concurrent review of concentrations is possible when a transaction affects markets in which COFECE and IFT have jurisdiction. However, the decision may only be issued with regard to the markets in which each agency has jurisdiction. Article 5 of the Competition Law provides that if one of the two agencies determines that it should be reviewing a case that is being reviewed by the other agency, it must inform the agency reviewing the case of its reasons for this determination. If this agency declines jurisdiction, the case is sent to the requestor agency within five business days. However, if after such notice the agency does not decline jurisdiction, the procedure will be suspended and the case will be sent to the economic competition, telecommunications and broadcasting circuit courts to determine which agency holds jurisdiction over the case. Also, whenever one of the agencies receives a case and deems that it should be reviewed by the other agency, the case should be sent within five business days to this agency. If the receiving agency declines jurisdiction, the other agency should be informed within five business days, and the case should be sent to the circuit courts to determine which agency holds jurisdiction.
The Uber/Cornershop MX case14 raised a jurisdiction conflict between COFECE and IFT because both agencies deemed that they had jurisdiction over the case. On one hand, the IFT deemed that both companies operate over the top platforms that require the infrastructure provided by telecommunications operators. On the other hand, COFECE argued that the economic agents that participate in the transaction are not telecommunications operators themselves. The federal circuit court ruled that COFECE is the authority that should review the transaction since the affected markets are reserved to the jurisdiction of this authority (delivery of food via Uber eats, as well as intermediation and delivery of products available in retail stores and other store formats).
iv OTHER STRATEGIC CONSIDERATIONS
The legal time frames provided for the merger control procedure cover many months and the actual time for obtaining an authorisation can only be estimated on a case-by-case basis. In the authors' experience, an authorisation for a case that does not produce effects (i.e., no overlaps or vertical integration) can be obtained in one and a half to two months. The review of a case with no significant overlaps, combined with other factors (availability of market share information, non-relevant market effects and presence of important competitors), may take two to three months and more complex cases may take six to 12 months or even longer.
There are some strategies that parties may use to accelerate the procedure. For example, if the parties believe that the merger is not expected to produce competition risks, they should provide economic information with the filling. Even though the parties are not obliged to provide such information at that time, its provision may avoid a request of additional information, which would speed up the process.
It is also recommended to approach the competition authorities at the early stages of the process and hold meetings with the officers in charge of the case. The purpose of such meetings will be to answer any questions and to explain every aspect of the merger. The assistance of executives of the concerned parties, especially those involved in the operation and commercial divisions, is very helpful at these meetings, and the meetings themselves may reduce the scope of information requests (basic or additional).
COFECE and IFT decisions may be challenged before federal courts via amparo, which is a trial aimed to revoke unconstitutional or illegal decisions. These trials are before competition, telecommunications and broadcasting specialised federal district judges and circuit courts that were created after the 2013 constitutional amendments. Amparo trials have no specific time frame and sometimes may last more than a year. Thus, in certain cases it is recommended to file a new notification offering suitable undertakings instead of challenging the decision before federal courts.
Another aspect worth mentioning is the treatment of collaboration agreements in the Mexican antitrust regime, which are not regulated in the Competition Law. According to the latest Guidelines for Notification of Concentrations issued by COFECE, such agreements may be reviewed under the merger control procedure whenever the transactions meet the characteristics of a concentration. This means that the parties will have certainty regarding the legality of a collaboration agreement if they submit it to scrutiny by COFECE before its closing. This implies that the agreement would be studied on a rule-of-reason basis, which will give the parties the possibility to submit economic arguments, such as efficiency gains and absence of substantial market power, for the authorisation of the agreement.
Finally, regarding international transactions, there are two important aspects to note. First, the Mexican competition authorities have well-established communication channels with other competition authorities (especially those in the United States), and it is common for the Mexican authorities to ask for waivers and to follow the investigation lines or approaches that other authorities are adopting. Second, there are no derogations from the standstill provisions in the Mexican merger control regime, which means that a notified transaction must be approved before its consummation. Notwithstanding this, if the legal time frames provided in the merger control procedure are not compatible with the transaction calendar or closing date, a carve-out might be designed by the parties to enable the transaction to close in other jurisdictions without producing effects in Mexico. For example, the shares of the Mexican subsidiaries could be transferred to a trust while the merger control procedure is taking place, with the shares being reverted to the acquirer once the transaction is approved.
v OUTLOOK and CONCLUSIONS
As 2019 was a difficult year, economically, for Mexico (the economy shrank by 0.14 per cent, according to the National Institute of Statistics and Geography), the number of cases filed before COFECE decreased by 16.39 per cent compared with 2018 (153 versus 183 filings). The aggregate transaction value of cases decreased by 91.5 per cent compared with 2018 (0.6 versus 7.8 billion pesos). This situation is expected to worsen due to the effects of the covid-19 crisis in Mexico.
COFECE has taken all necessary measures to ensure the health crisis is not an obstacle to current and future transactions. First, while COFECE has suspended some of its procedures, merger control is an exception. This decision is due to two factors: (1) COFECE knows that suspending the current merger control procedures could mean transactions being terminated and (2) the electronic system for the merger control procedure allows for all stages of the notification procedure to take place electronically (notifications with their corresponding annexes, receipt of requests for information and decisions, filing of responses and documents) and provides remote access to files 24 hours a day.
Finally, the expectation is that the covid-19 crisis will result in future mergers of firms in financial distress. In this regard, it is important to mention that the Mexican merger control regime does not provide special rules for this scenario. However, the economic agents facing this situation can anticipate that the competition authorities will take the failing firm defence into consideration in their analysis and will provide their full cooperation in accelerating the review process.
1 Rafael Valdes Abascal is the founding partner and Enrique de la Peña Fajardo is senior associate at Valdes Abascal Abogados SC.
2 18 million times the unit of measure and update (UMA), currently: 86.88 pesos. The value of the UMA is updated each year.
3 8.4 million UMAs.
4 48 million UMAs.
5 5,000 UMAs.
6 The Competition Law provides eight exemptions. Note that some specific requirements need to be met to fall into each of the exemptions.
7 Transactions that do not meet the thresholds can still be illegal. An illegal merger is defined in the Competition Law as any merger that has the purpose or effect of hindering, diminishing, damaging or preventing free competition or economic competition. This type of merger is penalised with a fine up to the equivalent of 8 per cent of the infringing parties' annual sales.
8 2019 Merger Control Report. COFECE. April 2020.
9 Case No. CNT-161-2018.
10 Case No. CNT-126-2018.
11 The other markets that were analysed by COFECE were: (1) licensing of audiovisual content for entertainment in physical and digital formats, both for direct acquisition and direct download; (2) licensing of music for entertainment in physical and digital formats, both for direct acquisition and direct download; (3) licensing of music in non-digital media; (4) live entertainment; and (5) licensing of intellectual property rights for books and magazines, and for consumer goods and development of interactive media and gaming.
12 Unless specified, the acronym 'COFECE' will be used to refer to both competition authorities in this section.
13 The payment of a new filing fee would be required.
14 As the Walmart/Cornershop MX merger was refused by COFECE, Uber is now trying to buy Cornershop MX.