June 26, 2022

Volume XII, Number 177

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June 24, 2022

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Mexico Antitrust Commission (“COFECE”) Fined Auto Parts Companies for Failing to Notify Concentrations

Under the Federal Economic Competition Law (LFCE), parties to certain concentrations with effects in Mexico, such as joint-ventures, mergers, or acquisitions of shares or assets (directly or indirectly) in Mexico, are required to notify and to obtain clearance from the Federal Economic Competition Commission (“COFECE”) before the transaction is closed and becomes effective in Mexico. Recently, COFECE has fined companies in the auto parts industry more than 9 million Mexican pesos for failing to notify two concentrations on time.

A joint venture, merger, or acquisition transaction should be notified and cleared by COFECE only if it triggers any of the thresholds set forth in Article 86 of the LFCE, in one or more steps, in Mexico.

Pursuant to the last update in the Mexican Official Unit of Measure (known as “UMA”) value published in the Federal Official Gazette on January 10, 2022, the referred thresholds to notify were modified, and currently apply as follows[1]:

  • Section I. When the value of the transaction (i.e., the price to be paid for the shares or assets), directly or indirectly, and regardless of its place of execution, is greater than $1,731,960,000 Pesos, Mx. Cy. (the equivalent of approximately USD$86.5 Million) in the portion attributable to the Mexican shares or assets, if any.

  • Section II. When the transaction involves the direct or indirect acquisition or accumulation of thirty-five percent (35%) or more of the capital stock or assets of an economic agent (e.g., a company) having, before the transaction, assets or annual sales in Mexico or attributable to Mexican operations, greater than $1,731,960,000 Pesos, Mx. Cy. (the equivalent of USD$86.5 Million approximately).

  • Section III. When the transaction involves the direct or indirect acquisition or accumulation in Mexico by the acquirer of assets or capital stock of other entities in an amount exceeding $808,248,000.00 Pesos Mx. Cy. (the equivalent of approximately USD$40 Million) and the economic agents participating in the transaction (e.g., joint-venture parties, buyer, seller, or others), jointly or separately, had assets or annual sales in Mexico in the previous year exceeding $4,618,560,000 Pesos Mx. Cy (the equivalent of USD$231 Million approximately).

Due to the last UMA increase, the fines that COFECE may impose for the omission to notify a concentration have also increased 7.36%.

Our antitrust and transactions teams at Foley have extensive experience and capacity to assist clients in filing these type of merger control notifications and obtaining clearances with COFECE in Mexico.


FOOTNOTES

[1] The thresholds are based on multiples of the daily Mexican Official Unit of Measure (known as “UMA”) set forth for 2022 (i.e., $96.22 Mx. Cy.) and is subject to change on a yearly basis. For the estimated conversion into U.S. Dollars, we have used an average exchange rate of $20 Mx. Cy. per U.S. Dollar, and rounded the figures. It should be noted that the official figures to consider are in Mexican pesos. The Mexico/U.S. Dollar exchange rate is constantly fluctuating and, therefore, U.S. Dollar amounts are only for an estimated reference. If the transaction is closed in 2022, the financial figures to consider while analyzing the thresholds of Section II and Section III are those set forth in statutory financial statements as of December 31, 2021.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 136
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About this Author

Marco Antonio Najera Martinez, Foley Lardner, Litigation lawyer
Partner

Marco Najera Martinez is a recognized go-to transactional and regulatory lawyer representing global companies doing business in Mexico. With particular experience in the Mexico antitrust laws, he represents Fortune 500 corporations, as well as Mexico companies, in this highly specialized area. Marco’s clients comprise many sectors, including financial services, insurance, energy, health care and real estate, and they rely on him for mergers and acquisitions, as well as a full range of corporate, project financing, compliance and regulatory matters.

Marco has a deep understanding of...

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Marcos Carrasco Menchaca International Trade Attorney
Partner

Marcos Carrasco-Menchaca provides advisory and consulting services related to international trade compliance, customs, free trade agreements, customs litigation and taxation on foreign trade, as well as rendering services in international business transactions and administrative litigation.

Marcos has broad experience in advising the implementation of governmental exportation programs, such as the registration of companies in the Mexican Maquila Program (IMMEX), VAT certification, Sectorial Promotion Programs (PROSEC) and Drawback, among others.

A recognized international...

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Erika Padilla Foley Gardere Arena in Mexico City Transactions Corporate
Associate

Erika Padilla is an associate at Foley Gardere Arena in Mexico City. She has experience in tax and customs litigation and controversy, representation before tax and customs authorities, corporate and international taxation (tax planning and consulting). She also has corporate counsel experience with knowledge in the legal needs of a corporation from the inside, such as drafting, reviewing and negotiating all types of contracts and legal documents, including finance and banking agreements, providing legal advice to the commercial and investment departments and developing the organization’s...

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