The Congress of the Union approved an amendment to the Federal Economic Competition Law (LFCE) that will come into effect the day after its publication in the Official Gazette of the Federation (DOF). Institutionally, the Federal Economic Competition Commission (COFECE) ceases to be an autonomous constitutional body to become part of the Federal Executive Branch under the name of the National Antitrust Commission (CNA).
The Congress of the Union approved an amendment to the Federal Economic Competition Law (LFCE) that will come into effect the day after its publication in the Official Gazette of the Federation (DOF).
Institutionally, the Federal Economic Competition Commission (COFECE) ceases to be an autonomous constitutional body to become part of the Federal Executive Branch under the name of the National Antitrust Commission (CNA). Additionally, the number of commissioners that will form its Plenary is reduced from seven to five, and there will continue to be a separation between this collegiate body and the investigating authority, ensuring an internal balance in the CNA's decision-making regarding potential anticompetitive behaviors.
It is anticipated that this loss of constitutional autonomy should not alter the effective application of the competition regime as it would not be the first time that the Mexican competition authority operates under the dependency of the Federal Executive Branch (from June 1993 to mid-September 2013, this hierarchical subordination existed). However, there is a risk that decisions may be made with a more political than technical approach.
It is important to note that the powers in economic competition currently attributed to the Federal Telecommunications Institute (IFT) will be transferred to the CNA, so there will only be one economic competition authority in the country.
In terms of concentrations, the thresholds for mandatory notification are reduced, aiming to expand the number of transactions subject to scrutiny by the CNA.
In sanctioning matters, the amendment contemplates a tightening of the fine regime (which can be imposed as enforcement measures or as a sanction) by increasing applicable amounts and introducing new sanctionable assumptions. Simultaneously, it seeks to facilitate the filing of criminal complaints and collective actions.
In procedural matters, the amendment introduces changes that include temporary restrictions for submitting applications to the immunity program in cases of collusion and the offering of commitments to prematurely terminate procedures related to relative monopolistic practices. Additionally, deadlines for various procedures are reduced, especially for the resolution of concentrations, which will decrease from 100 to 50 days, including the extension. A novelty is the implementation of a certification system for LFCE compliance programs. This certification will be valid for 3 years, and certified programs may be considered mitigating factors in case of sanctioning anticompetitive practices.
During the transition period, that is, while the CNA Plenary is being integrated, COFECE and IFT will maintain their functions according to the previous legal framework.
Procedures that are in process will continue their processing until their conclusion under the regulations in force at the time of their initiation, with the exception that, from the entry into force of the amendment, deadlines in investigation procedures related to monopolistic practices, illicit concentrations, competition barriers, essential inputs, and market conditions will be temporarily suspended until the CNA Plenary is integrated. Concentration analysis procedures will not be suspended.
