September 28, 2021

Volume XI, Number 271

Advertisement

September 27, 2021

Subscribe to Latest Legal News and Analysis

Mexico’s Competition Commission Updates Merger Control Guidelines

The Federal Economic Competition Commission (COFECE, or the Commission) has published an update to the Merger Control Guidelines. Although there are no significant changes from the prior version, the Commission did strengthen its view to carry out a “substance-over-form” analysis when it comes to transactions requiring prior antitrust clearance in Mexico.1 Some of the key aspects include:

1.   Not only acquisitions are reportable “concentrations.”

As with competition law in other jurisdictions, Mexico’s Competition Law uses the term “concentration” to refer to those transactions that could be reportable to the Commission when meeting certain thresholds. Definition of the term “concentration” has always been an issue.  The Guidelines list as examples of reportable transactions not only mergers and acquisitions but also trusts (fideicomisos), donations, joint ventures and collaboration agreements, assignment of rights, and even lease agreements meeting certain requirements. Irrespective of the form, the Commission clarifies that a reportable transaction could include any form of agreement between economic agents to jointly participate in economic activities, whether or not through a new company, when there is a legal or de facto transfer of assets or contributions of any kind to the new venture, and an arrangement to distribute profits and losses.

2.   The treatment of joint ventures and other collaboration agreements between companies.

The Guidelines provide more information to enable economic agents to determine whether a joint venture or any other sort of collaboration agreement should be considered a “concentration” and thus reportable if it exceeds the notification thresholds. 

The Commission points to three key elements: duration (long-term vs. short-term), operating independence, and reach or potential reduction of incentives to compete. According to the Guidelines, a joint analysis of these three elements should allow the parties to determine if, from a competition standpoint, a given transaction could have the same impact as a “merger” or an “acquisition” and thus should be reported as a “concentration.”2

3.   Calculation of notification thresholds.

The Guidelines provide clarification on how to calculate the three reportability thresholds set forth in article 86 of the Competition Law, which include: 

a.   The different tools that could be used to calculate the “value of the transaction” threshold when there is no specific value assigned to the Mexican part of the business,
  b.   The entities or companies that should be considered in determining the “value of the transaction” threshold, and
  c.   The Commission’s understanding of the term “succession of acts” for reportability thresholds. 4.   Investment funds as buyers in a transaction. When investment funds participate as buyers in a transaction, the limited partners’ information will not be required unless they: a.   have the right to intervene in the decision-making process related to:
  i)   the business plan, policies, and objectives of the investment fund or the target company,
  ii)   the fund’s annual budget or target companies,
  iii)   the appointment of the fund manager, or the companies where the fund invests, or
  iv)   any other operational activities of the fund. b.   have rights or hold 20% or more of the assets, contributions, capital, or voting shares of the fund. 5.   Information that should be filed to raise a “failing firm defense” argument.

The Guidelines recommend, among other things, filing documentation demonstrating the imminent risk to companies that could potentially go out of market in the immediate future, or showing the risk to companies with no other solution to mitigate a financial crisis, other than an acquisition.


The Guidelines are not binding. Nevertheless, in the Commission’s own words, they “reflect the operating practices of the Commission and are a tool for transparency and certainty […]”

2 Examples of collaboration agreements that according to the Guidelines are typically considered “concentrations” include: collaboration to consolidate activities, to develop a network, to consolidate production, for joint commercialization, to consolidate procurement or “buying clubs,” and even research and development. 

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 105
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Miguel Flores Bernés Antitrust & Competition Attorney Greenberg Traurig Mexico City, Mexico
Shareholder

Miguel Flores Bernés focuses his practice on antitrust and competition issues affecting clients in various industries, including government merger review, investigations of alleged anticompetitive conduct, litigation and counseling. He regularly represents clients before the two Mexican competition authorities: Comisión Federal de Competencia Económica and Instituto Federal de las Telecomunicaciones, and designed and implemented antitrust/competition compliance programs for clients in Mexico.

Prior to joining the firm, Miguel was a partner dedicated to antitrust and competition...

52 55-5029-0096
Víctor Manuel Frías Garcés Commercial Law Attorney Greenberg Traurig Mexico City, Mexico
Shareholder

The practice of Victor Manuel Frías is focused on commercial law, including competition, mergers and acquisitions and arbitration.

On the competition side, Mr. Frías has represented clients in numerous cartel investigations before the Competition Commission in different industries for over 20 years. He frequently represents clients in pre-merger filings. Mr. Frías has been ranked by different publications as one of Mexico’s premier competition attorneys. He often appears before Mexico’s Federal Specialized Courts in Competition and Telecommunications matters.

On the M&A...

52 55-5029-0020
Rocío Olea Salgado Business Attorney Greenberg Traurig Mexico City, Mexico
Associate

Rocío Olea Salgado focuses her practice on business and competition law, including compliance and transactional issues in the technology, e-commerce, product manufacturing, pharmaceutical, among other industries, as well as economic and competitive issues, including the review and notification of mergers and concentrations and investigations before Competition Commission in Mexico.

She represents foreign and Mexican entities with mergers and acquisitions, corporate restructuring processes and compliance matters. Rocío is experienced handling the implementation of start-up processes...

52 55-5029-0041
Valery Dayne García Zavala Corporate Attorney Greenberg Traurig Mexico City, Mexico
Associate

Valery Dayne García Zavala focuses her practice on corporate and securities matters, including antitrust litigation and competition, telecommunications counseling and compliance.

 Concentrations

  • Counseling and compliance
  • Antitrust and competition litigation
52 55-5029-0084
Jose Abel Rivera-Pedroza Antitrust/Competition Attorney Greenberg Traurig Mexico City, Mexico
Associate

Jose Abel Rivera-Pedroza focuses on antitrust/competition issues affecting clients in different industries, including government merger review and investigations of alleged anticompetitive conduct, litigation and counseling. He regularly represents clients before the two Mexican competition authorities: Federal Economic Competition Commission and Federal Telecommunication Institute, as well as before the Federal Courts specialized in competition, telecommunications and broadcasting, and designs and implements antitrust/competition compliance programs for clients in Mexico...

52 55-5029-0089
Advertisement
Advertisement
Advertisement