1) Is a merger control regulation in force?

Yes. Merger control regulation has been in place since 1994, when the first competition act was passed in Mexico. This legislation was replaced in 2014 by the current Mexican Federal Economic Competition Law (“FCL”).

2) Which authorities enforce the merger control regulation?

The Mexican Federal Economic Competition Commission (Comisión Federal de Competencia Económica or “COFECE”) enforces the FCL across all industries except for telecommunications and broadcasting sectors. Merger control over such industries is enforced by the Mexican Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones).

The decisions of both agencies are subject to judicial review by the Federal Courts Specializing on Competition, Telecommunications and Broadcasting Matters, through amparo (constitutional) proceedings. 

3) Relevant regulations and guidelines with links:

Both COFECE and the Mexican Federal Telecommunications Institute have issued separate regulatory provisions in competition as well as separate merger control guidelines. The guidelines work as orientation tools for practitioners and economic agents but are not considered binding. Links to the relevant legislation and guidelines (and translation into English where available) are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Restrictions of competition that are ancillary to the merger, for instance, a standard non-competition obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation than merger control. 

However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements. Therefore, ancillary restraints are also evaluated in light of the relevant transaction and their effects on the relevant markets. Separate notifications for ancillary restraints or concerns are due only in very specific cases such as cross-participation opinions related to the hydrocarbons industry. A person or entity who, directly or indirectly, own share capital of an entity considered end user, producer or marketer of hydrocarbons, petroleum and petrochemicals that use the services of transportation by pipeline or storage subject to open access, may only participate, directly or indirectly, in the share capital of the entities that hold permits for the provision of such services when the COFECE issues favorable opinion for such cross-participation. The favorable opinion will be obtained if the cross- participation does not affect competition, market efficiency and effective open access.

Furthermore, please note that competition authorities have powers to start an investigation for anticompetitive practices if, during the course of the merger analysis, they believe that there are sufficient grounds to start any such investigation. The merger control review will be suspended until such investigations are concluded.

5) May an authority order a split-up of a business irrespective of a merger?

Yes. The FCL allows the agencies to initiate a market investigation which may conclude that a divestment or split-up of entities or businesses is necessary for purposes of eliminating barriers to competition. The FCL also allows the authorities to impose divestment or split-up sanctions in several cases, for example, when an individual or entity was previously sanctioned for monopolistic practices, or in abuse of dominance cases. Unlawful mergers (see topic 25) or failure to comply with remedies in merger cases (see topic 47) may also result in a split-up order.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Although not related to competition matters, mergers involving certain regulated sectors may also be prohibited by specific regulators. For example, mergers for financial businesses (banks, insurance companies, credit institutions and investment service companies), require a separate approval from the Mexican National Banking and Securities Commission and may be blocked by such entity.

7) Are any parts of the territory exempted or covered by particular regulation?

No. Antitrust regulation in Mexico is federal and applies equally for all the Mexican territory.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the statutory thresholds are met. 

Even if the transaction does not exceed any of the statutory thresholds, the parties to a merger could voluntarily make a filing before the relevant antitrust authorities. Voluntary filings are generally sought when the parties anticipate that a particular transaction may be at risk of generating competition concerns and they want such transaction to be formally analyzed before proceeding with it.

9) Is there a general definition of transactions subject to merger control?

According to the FCL, a merger (i.e., a reportable transaction) is any merger, acquisition of control, or any other act by means of which companies, associations, capital stock, partnership interest, trusts or assets in general are consolidated, and which is carried out among competitors, suppliers, customers or any other Economic Agents. The Commission shall not authorize and may investigate those mergers the purpose or effect of which is to hinder, harm or impede competition and free market access regarding equal, similar or substantially related goods or services.

Mergers subject to prior authorization by the Mexican competition authorities are those mergers which surpass any of the statutory thresholds set forth in the FCL, and which do not fall under any of the exemptions contained in such law.

10) Is "change of control" of a business required?

Not necessarily. A merger which exceeds at least one of the statutory thresholds and which does not fall within any of the exemptions stated within the FCL will still need to be filed for merger clearance before the relevant antitrust Mexican authorities. However, as explained in topic 20, there are a number of exemptions from the obligation to file a merger notification for transactions that do not result in a change of control, for instance transactions whereby the acquirer buys additional ownership interests in entities already controlled by the acquirer. 

11) How is “control” defined?

Neither the FCL nor its Regulations define the concept of “'control”'. However, the merger control guidelines issued by COFECE make reference to the definitions of control used in certain precedents set by the Mexican Supreme Court of Justice, and in other Mexican laws such as the Securities Market Law as well as the Regulations of the Industrial Property Law.

The abovementioned consider that control may be held through the ownership of shares or participations, as well as by contractual or factual means, by one or more persons or businesses, either jointly or separately. COFECE therefore considers that control could exist when an individual or business: 

1. has the power or the possibility to impose, directly or indirectly, decisions in shareholders’ meetings or equivalent governing bodies;
2. has the power to appoint or remove the majority of the members of a company’s board of directors;
3. has sufficient rights which allow it to, directly or indirectly, vote with more than 50% of the equity of a company;
4. has the capacity to appoint high-level executives such as directors, managers, relevant executives or main representatives of a company; and
5. has the power to determine, directly or indirectly, the management, strategy or main policies of a company, either through the ownership of shares, a contract, or by any other means.

12) Acquisition of a minority interest

Minority interest acquisitions, even if such acquisitions do not confer control of a business, are subject to merger control if such transactions exceed one of the statutory thresholds under the FCL. Statutory thresholds are monetary and not related to market share or controlling participations. Although the acquisition of a majority of the voting stock of an entity is certainly deemed an acquisition of control, the acquisition of minority interests or even non-equity interests could still be considered as acquisitions of control if the same falls within at least one of the criteria set forth in topic 11. 

The acquisition of minority interests subject to a filing notice may be exempted if they fall within any of the exemption cases provided under the FCL. 

13) Joint ventures/joint control – which transactions constitute mergers?

The FCL does not distinguish between different types of joint ventures that may or may not be subject to a filing. If a JV falls within the definition of a merger and exceeds at least one statutory threshold, it will need to be filed to and approved by the relevant competition authority before becoming effective. 

Joint ventures or joint control agreements generally require that the agencies take into account not only the effects on the relevant markets directly associated with the transaction but also, its possible impact on other markets in which the future partners participate, even if such markets are not related to the transaction. This is particularly important where the agencies may believe that coordinated effects may arise. To mitigate such risks, the parties would generally need to evidence the existence of sufficient firewalls to avoid any such effects.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

If none of the exemptions in topic 20 are relevant, a merger notification must be filed if:

1. the transaction results in the acquisition in Mexico of at least 35% of the total assets or capital stock of an economic agent whose total assets or sales in Mexico exceed 18 million times the daily measurement and update unit applicable for the relevant year (for the calculation of this threshold, the seller’s assets, and not only those of the target, may need to be considered); or
2. the transaction results in the acquisition in Mexico of assets or capital stock priced in excess of 8.4 million times the daily measurement and update unit applicable for the relevant year, provided that the joint assets or annual sales in Mexico of the economic agents involved in the transaction amount to at least to 48 million times the daily measurement and update unit applicable for the relevant year. (For this second threshold, and for purposes of the first prong, the assets and capital stock that should be considered are those of the target. For purposes of the second prong of the threshold, assets/sales of the participants that should be taken into account are the ones of the economic interest groups of the parties involved in the transaction, regardless whether the other entities or businesses of the economic interest group are parties in the merger. For purposes of such calculation, the Mexican assets and turnover of all entities that control, or are controlled by, or are under the common control of, the seller (and not only the target) and the buyer should be considered.) 

The value of the measurement and update unit (UMA, for its acronym in Spanish) is revised every year, so the parties need to review the National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía) website (https://www.inegi.org.mx/temas/uma/) for the applicable daily value of such unit at the time of the relevant merger.

b) Market share thresholds

N/A

c) Value of transaction thresholds

If none of the exemptions in topic 20 are relevant, a merger notification must be filed if the price allocated to the Mexican assets or entities acquired as part of the transaction exceeds 18 million times the daily measurement and update unit applicable for the relevant year.

d) Assets requirements

Please refer to turnover and value of transaction thresholds above. 

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds described in topic 14 apply to all transactions, sectors and industries - including the telecommunications and broadcasting sectors. 

16) Rules on calculation and geographical allocation of turnover

Rules on calculation thresholds are contained in the FCL and its regulations. Its Guidelines (see topic 3) contain additional detail related to the interpretation of the referred thresholds. Turnover, assets and capital stock are calculated first on the basis of the most recent audited accounts of the most recent financial year of the participating parties. If the parties do not generate audited financial statements, the calculations shall be made with current internal financials. 

To the extent figures in the relevant financial information are expressed in a currency different to the Mexican peso, the same shall be converted to pesos pursuant to the official exchange rate published by the Mexican Central Bank (Banco de México) at the time of the relevant merger.

”Turnover” shall be understood as the sales invoiced  in Mexico, regardless whether such sales are generated by a foreign business. COFECE’s Guidelines note that with respect to third-party sales, these may be exempt whenever those sales are made through independent distributors who import and distribute products of the target in Mexico, provided that those distributors are not part of the target’s own distribution systems. 

Regarding assets and capital stock, the figures that are relevant for calculation of the thresholds are just the assets or stock located in Mexico. 

For the transaction value threshold, such value should be calculated based on the total consideration in a domestic transaction, or otherwise, in international mergers, the consideration allocated to the Mexican portion of the deal, if applicable. 

Pursuant to COFECE’s merger guidelines, the parties need to be aware that the relevant value of the assets, capital stock or sales to take into account must be the higher value between the value allocated by either of the parties (which may include the price to be paid for said assets or capital stock) or its book value.  

17) Special rules on calculation of turnover for particular businesses

There are generally no special rules on calculation of turnover. The general rules (see topic 16) on calculation of thresholds apply for every business, industry or sector. A specific exemption exists for the matter of concessions in the Telecoms industry (see topic 23 below). 

18) Series of transactions that must be treated as one transaction

If a series of acts or transactions allow an economic agent to merge companies, shares, assets or business from the same seller or economic interest group, and such jointly surpass the merger thresholds, all such acts or transactions shall be considered as the same merger, and must be notified to COFECE before the last of any such actions or transactions within the succession is intended to close.

There is no meaningful guidance on what should be considered a succession of actions and deciding whether or not two or more transactions qualify as such (and thus be looked at as one series of actions under the FCL). If it is not clear, the merger may be notified before COFECE in order to avoid investigations and possible sanctions (see topic 25). 

19) Temporary change of control

The thresholds described in topic 14 apply to all transactions, sectors, and industries. These thresholds are the only thresholds applicable for Merger control in Mexico, regardless of change of control, and even if the acquisition of control is temporary. As mentioned in topic 12, even minority interest acquisitions are subject to merger control if such transactions exceed one of the thresholds.

20) Special industries, owners or types of transactions

The FCL specifies that there is no obligation to file a merger notification in the following situations, even if such merger exceeds the monetary statutory thresholds:

1. acquisitions of less than 10% of the outstanding capital stock of publicly traded corporations that do not vest the acquirer with the right to appoint directors or officers of the issuer, or to otherwise control the issuer or influence its main policies;
2. corporate restructurings in which all the relevant parties are under common control or otherwise form a part of the same economic group, provided that no third party participates in the relevant transaction;
3. increases in ownership interests in entities already controlled by the acquirer;
4. transfers of assets to trusts controlled by the transferor; and
5. certain investments made by investment funds which are purely speculative in nature.

Exemptions to file should always be properly assessed for purposes of their applicability, as COFECE interprets such exemptions on a very narrow basis. 

Please refer to topic 23 for other specific exceptions. 

21) Transactions involving only foreign businesses (foreign-to-foreign)

Transactions involving foreign entities which have no assets and/or sales in Mexico are not subject to merger control. However, and since the FCL does not necessarily require physical or legal presence in Mexico to trigger a filing, foreign to foreign transactions could be subject to merger control. Either ownership or control of assets located in Mexico or the existence of sales originated (meaning generally invoiced) in Mexico may require close evaluation in order to assess if those trigger a filing obligation in Mexico. 

22) No overlap of activities of the parties

In Mexico there is no exemption for transactions with no overlaps of activities and neither is a simplified procedure available if there is no overlap or competitive concerns. If the transaction, even without overlaps or contemplating competitive concerns, exceed at least one of the statutory thresholds, the transaction is subject to merger control.  

23) Other exemptions from notification duty even if thresholds ARE met?

In addition to the exceptions described on topic 20, article 9th Transitory of the Federal Telecommunications and Broadcasting Act provides that, as long as a preponderant agent exists in the telecommunications or broadcasting sector, transactions among concession holders, different from the preponderant agent, that would otherwise require antitrust clearance under the FCL are not subject to prior Mexican Federal Telecommunications Institute   clearance if and to the extent that they fall below certain market concentration indexes and meet certain volume criteria.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes, regulation contemplates compulsory and voluntary notifications (see topic 8). 

A filing is mandatory if a transaction exceeds at least one of the statutory thresholds. Voluntary filings can be made even if the statutory thresholds are not met. Voluntary notifications are not common and would generally only be made if the parties believe that a competition concern may arise out of a transaction and they want such transaction to be analyzed and cleared before closing.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The parties are the only responsible entities to notify the transactions that are subject to merger control. Therefore, agencies do not request a merger notification to be made, even if the thresholds are met. 

Nevertheless, the FCL provides that the parties to a reportable merger must refrain from closing the transaction until COFECE and/or Mexican Federal Telecommunications Institute   have cleared it. Therefore, agencies could initiate an investigation in order to sanction any transaction that was allegedly subject to a prior filing. Additionally, the agencies hold sufficient powers to investigate unlawful mergers, even if the same were not reportable. Unlawful mergers are classified in the FCL as transactions which have as their purpose or effect to obstruct, diminish, harm or impede competition or access to markets, even if they are not subject to merger control. Furthermore, mergers that have been approved by competition authorities may not be the subject of an investigation unless the resolution was issued under the assertion of false information.

Transactions which are not subject to merger control have a statutory limit of 1 year to be investigated by the competition authorities.   

26) Referral within the jurisdiction

As mentioned in topic 2, and with the exception for telecommunications and broadcasting sectors which are supervised by the Mexican Federal Telecommunications Institute, COFECE enforces merger regulation across all industries and sectors. COFECE and the Mexican Federal Telecommunications Institute are the only competition enforcers in Mexico. 

If any of both agencies (COFECE or the Mexican Federal Telecommunications Institute) has information that the other is processing a merger under its scope, such agency will request the merger filing to be transferred for its analysis and resolution. Merger agencies may also transfer filings which they consider fall within the scope of the other. Please note that some mergers may fall under the scope of both regulators, and thus, will need to be cleared by both of them before closing.  

27) Referral from another jurisdiction

The COFECE and the Mexican Federal Telecommunications Institute cannot handle mergers based on referrals from other jurisdictions, COFECE and the Mexican Federal Telecommunications Institute can only enforce mergers that have effects in Mexican territory, as per the relevant statutory thresholds.  

28) Referral to another jurisdiction

The COFECE and the Mexican Federal Telecommunications Institute are not entitled to refer mergers to other jurisdictions.

29) May the merging parties request or oppose a referral decision?

In principle, merging parties could not request or oppose a referral decision. However, and since there are no documented cases of such event happening, an amparo (constitutional) proceeding may be sought if merging parties believe that their case should not be referred. 

30) Stage of transaction when notification must be filed

A merger notification must be filed:

1. before the transaction closes; 
2. before ownership and/or control is acquired (de jure or de facto); or 
3. before a transaction comprised by different steps exceeds any of the statutory thresholds.

The FCL prohibits to close (de jure or de facto) a reportable transaction without previously obtaining clearance from the relevant agency. This is a statutory mandate that cannot be waived or exempted.

31) Pre-notification consultations

The FCL does not contemplate pre-notification consultations. Normally the agencies’ merger control officials accept to have informal pre-notification meetings with the parties to a transaction in order to address general questions and consultations regarding the merger to be filed. However, please note that they are not allowed to review information or to give formal advice or preliminary conclusions. In practice, the meetings are requested just to address certain general consultations and are only recommended in complex cases, where the parties may be unsure if a transaction is subject to merger control.  

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules on timing of notifications in case of public takeover bids and acquisitions on stock exchanges. The only rule is that those transactions may not close before obtaining clearance. The prohibition to close or implement a transaction before clearance from COFECE and/or the Mexican Federal Telecommunications Institute, as applicable, is not subject to any exemption.  

33) Forms available for completing a notification

There are no forms available for completing a notification in Mexico. Neither the FCL nor its regulations or guidelines contemplate a specific form to submit the notification. The parties merely need to file a free writ with the information required in the FCA and its regulations (see topic 35), and which is also consistent with general administrative filings before governmental authorities pursuant to the Mexican Federal Law of Administrative Procedure.

The FCL refers to two types of notifying procedures: a “'short-form” or simplified filing, and the “full” or standard filing.

The simplified filing is applicable if it is evident that the merger will not have an anticompetitive effect in the relevant market and also complies with the criteria referred in the FCL for purposes of requesting a simplified filing. The notifying parties need to explicitly state in the application that they wish for the transaction to be analyzed under such simplified proceeding and that it is evident that the transaction does not entail any competition risks. If criteria for such purposes is not met, then a long-form or full notification is required (see topic 35). 

The authorities may always request a standard application if they estimate that the statutory information is incomplete, the relevant criteria is not met, or that the transaction may raise any competition concern, which may in turn delay its clearance. Simplified proceeding filings require almost the same information as a standard application. The authorities will normally avoid clearing filings under simplified proceedings as criteria is normally applied on a strict and narrow basis.  

34) Languages that may be applied in notifications and communication

Spanish. All information and communications filed with the agencies must be in Spanish. Documents in a foreign language shall be translated into Spanish by a certified translator in their relevant sections before their submission to the authorities.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification, whether simplified or standard:

1. a notarized copy of the public deed containing the power of attorney granted to the legal representatives of the parties making the filing;
2. a copy of the organizational documents of the entities involved in the filing;
3. the most recent audited annual financial statements for each of the parties to the merger;
4. all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
5. group chart/overview for each of the parties to the merger, including its indirect shareholders or partners up to persons that hold interests representing 5% or more of the capital stock or participation;
6. a description of the ownership and capital stock of each entity involved in the transaction, identifying the controlling party (or parties) thereof, before and after giving effect to such transaction;
7. a description of any non-compete clauses or agreements;
8. a description of the products or services produced or rendered by each party involved in the transaction and a list of the main distributors or competitors of each such entity in Mexico;
9. market share information and any documentation on which the parties have based their market definition and assessment of market shares;
10. a schedule setting forth the location of the plants or premises of each entity involved in the transaction and a list of their main distribution channels;
11. confidential version of the notification; and
12. evidence of payment of the applicable filing fee.

The powers of attorney of the representatives of the parties making the filing must be apostilled or legalized if granted abroad and preferably, notarized before a Mexican notary public. Except from the powers of attorney, photocopies of the other documentation listed above will suffice for purposes of making a filing in either type of procedure.

The information required for a simplified and for a full notification is substantially the same. Simplified procedures require that the parties further justify and provide sufficient information in order to fully demonstrate to COFECE and/or the Mexican Federal Telecommunications Institute that the merger does not arise any competition concern and also complies with the criteria for purposes of making a simplified filing.

36) Filing fees

The filing fee (before the two agencies) for 2019 amounts to MXP$ 184,539.00. Filing fees are generally increased every year in an amount which normally accounts for inflation. Evidence of payment of the filing fee must be attached to the relevant filing. Otherwise, the filing will not be accepted. 

As filing fees are collected through a contributions payment system managed by the Federal Tax Service, payments must be made by entities having a Mexican taxpayer’s registry. The same filing fee applies for the simplified and the standard proceedings.

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved and closed. However, normal, preparatory reversible steps are not prohibited (see topics 39 and 40).

38) May the parties get permission to implement before approval?

No, the merging businesses must be run separately and independently until the merger has been approved and closed and there are no exceptions. However, normal preparatory reversible steps are not prohibited, provided that the parties are always mindful of their gun jumping obligations and, if competing businesses, take care of avoiding the exchange of commercially sensitive information until clearance has been obtained and closing has occurred.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents competitively sensitive information from being used for purposes other than assessing the viability of the merger. Competitively sensitive information should only be exchanged between competitors in a due diligence process with the implementation of standard safeguards (i.e., clean teams).

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market. However, the agencies could request the information that the parties exchanged during their due diligence stage (i.e., email communications, access to the data site through which the information has been exchanged, amongst others), in order to determine if any gun jumping or unlawful information exchange has been carried out between the parties. 

Furthermore, there are no guidelines on what may be considered acceptable preparatory steps. Preparatory steps shall be implemented on a need to have basis and shall require to be evaluated in each particular case before its acceptance and execution. For example, preparation of integration of internal functions such as IT and HR is generally acceptable, except where such items are fundamental or core to the relevant businesses.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

Parties must act independently until they obtain the relevant clearance from antitrust regulators and they close the transaction. 

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” proceedings for the Mexican part of a transaction when approval by Mexican antitrust authorities is pending. Therefore, carve outs are neither permitted nor prohibited under the FCL or its regulations. Parties will need to determine if, with respect to a particular transaction, a carve-out is feasible so as to allow global closing while at the same time adequately ring-fencing Mexico in a way which avoids the parties incurring in any gun-jumping and/or improper information-sharing scenario. These procedures are usually discussed with the agencies on a case-by case basis in order to ensure that competition concerns will be avoided and/or addressed. Parties should note that even such guidelines and/or discussions with the competition agencies are non-binding and therefore, risks in this regard may be mitigated but not completely avoided.   

42) Consequences of implementing without approval/permission

The parties may be fined if a merger is implemented before approval is obtained. The amount of the fine will be up to 5% of the taxable revenue in Mexico of the involved parties (the economic group, not only the directly involved entities). The specific fine to apply will be determined based on the nature, and seriousness of the conduct. The authorities will also consider whether this is the first infringement of the parties or not. 

Fines are made publicly available by the agencies on their respective websites and the agreements executed in violation of the prior clearance requirement are unenforceable under the FCL. Parties that implement a transaction before getting clearance may run into information-sharing risks, which may be construed as a per se offence under cartel prosecution provisions. Therefore, parties to a merger that are or potentially could be considered competitors that close or implement a merger before obtaining clearance may also face a cartel investigation. Parties should also note that if the transaction gives rise to any competitive concerns, the authorities may also proceed with investigating the transaction as an unlawful merger. It is unclear if the relevant authorities may prosecute the same closed transaction as both a cartel and an unlawful merger. 

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "significantly impede effective competition – in particular due to the creation or strengthening of a dominant position". It is important to mention that there is no de minimis overlap or market size below which the agencies would automatically clear a transaction.

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

Generally, and if the parties overlap in any markets, the relevant agency will conduct a market concentration analysis pursuant to its criteria based on the Herfindahl-Hirschman Index (HHI). If at least one of the following tests is met after giving effect to the merger, such transaction will not be deemed in principle as problematic in a specific market: 

1. the HHI is lower than 2,000;
2. the delta in the HHI is lower than 100; or 
3. the HHI is between 2,000 and 2,500, the delta in the HHI ranges between 100 and 150, and the resulting economic agent (in horizontal mergers) is not among the four largest players in terms of market share.

The aforementioned criteria are only indicative. If a particular merger fails to meet any of the aforementioned thresholds, the authorities will proceed to analyze the market on a closer basis, and may even require third party input before reaching a conclusion. 

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but the parties must implement sufficient firewalls in order to avoid gun-jumping or information exchange events not only in the relevant merged business but also, in businesses where they will remain as competing entities, even if not associated to the relevant merger. 

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments, or prohibited.

If the COFECE or the Mexican Federal Telecommunications Institute expresses competition concerns about the merger, the parties should enter into negotiations of possible commitments to offer to the agencies. Once the remedies are proposed to the agency by the parties or the agency proposes remedies on their own, the clock will restart for purposes of the authority issuing a resolution. Once accepted, the conditions will be imposed on a take it or leave it basis. If the party’s do not comply with the imposed remedies, such transaction will not be able to be closed and/or implemented. 

Commitments may take any form and they can be either structural or behavioral, with or without time limitations. When the remedies demanded by the agencies are structural in nature, ex-ante fixes are usually required whereas ex-post transfers are rarely accepted.

The authority may impose a fine up to the 10% of the economic agents’ total taxable income in Mexico and also order a separation of businesses for failing to comply with the conditions imposed for the clearance of the merger.

48) How and when will details about the merger be published?

An extract of the filing notice is published on the website of the relevant agency once the application is admitted. This extract contains only the name of the parties and the date when the transaction was filed. Once a resolution is issued and notified to the parties, the relevant agency publishes the resolution on its website. The resolution that is published is not the complete resolution - it is a redacted version that excludes any confidential or sensitive information of the parties.

The merger file is strictly confidential and may only be generally accessed by the parties to the transaction. Third parties who have an interest in the transaction may file information or information from third parties could be requested by the agencies, which may or may not be taken into consideration. However, such third parties are generally prevented from accessing the merger case file. Requests made by third parties by means of transparency law provisions will only succeed in obtaining information related to a particular merger insofar as such information is not deemed confidential.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the complete file, which includes correspondence with third parties that the COFECE or the Mexican Federal Telecommunications Institute may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority may redact third parties’ confidential information, often including the identity of such third parties and/or confidential or sensitive information. 

Third parties:

As mentioned in topic 48, third parties do not generally have access to the file. Certain exceptions apply, as discussed in the referred topic. 

50) Who can appeal and what may be appealed?

The merging parties can appeal any finally decided matter or decision (for instance, those which object to a transaction or condition the same to certain remedies). Other acts are generally non-appealable since they are considered internal or merely procedural, transitory issues. The decisions of both agencies are subject to judicial review by the Federal Courts Specializing on Competition, Telecommunications and Broadcasting Matters. 

Third parties may not in principle challenge a clearance decision, unless extraordinary circumstances arise and such third parties credit that the resolution generated them a direct damage.