ECONOMIC COMPETITION
This is not an official translation. The only official text is in "Diario Oficial de la Federacion" (Federal Official Gazette).
Chapter I
General Provisions
ARTICLE 1. For the purposes of the present Code of Regulations, the definitions contained in the Federal Law on Economic Competition, henceforth referred to as �he Law��, shall apply.
For those matters not provided for, either in the Law or this Code of Regulations, the Federal Code on Civil Procedures shall be applied in a supplementary manner.
ARTICLE 2. The text of those definitive judgments that have been emitted and the Commission� criteria, except where confidential information is concerned, shall be published in an informational gazette and an extract thereof in the Diario Oficial de la Federacion (the Government� official gazette). Such judgments and criteria shall be available to any person in the offices of the Commission for consultation.
ARTICLE 3. The periods contemplated in the Law or in this Code of Regulations shall begin as of the date in which the document in question is received at the Commission� filing desk.
ARTICLE 4. When the Law or the present Code of Regulations makes reference to days, it will be understood that the days referred to are business days, unless the contrary is stated. When no period is specified, it shall be understood that five business days are necessary for the performance of any such action.
Chapter II
On Monopoly Practices
ARTICLE 5. Instructions or recommendations issued by business chambers or associations to their members with the aim or effect of engaging in the type of conduct contemplated in Article 9 of the Law are circumstantial evidence of the existence of a an absolute monopoly practice.
The following, among others, constitute circumstantial evidence of engaging in the conduct referred to in Article 9, Section I, of the Law:
ARTICLE 6. Economic agents may accredit before the Commission whether the gains in efficiency deriving from a relative monopoly practice have a favorable influence on the process of competition and free participation in the market, which must be taken into consideration in the evaluation of the conduct referred to in Article 10 of the Law.
Such gains in efficiency are deemed to include the following, among others:
ARTICLE 7. Practices included in Article 10, Section VII, of the Law are deemed to include the following, without excluding others:
ARTICLE 8. For the effects of the provisions of Article 15 of the Law, the Commission shall require that state or municipal authorities, in a period not exceeding twenty days after notification of the request, manifest in writing whatever it is in their interests to express, attaching such documentary evidence as they may have in their possession, and offering such evidence as merits being presented.
Once the authority� pleading has been received, the Commission, in a period not exceeding ten days, shall admit or reject as appropriate the evidence offered, and shall fix a day and hour for the presentation of the said evidence within the following fifteen days. Once the evidence has been presented or the aforementioned term has run out, the Commission shall deliver a judgment within the thirty days following.
In the event of the period referred to in the first paragraph of this Article expiring without the Commission having received any pleading, the right to offer and present evidence shall extinguish.
Chapter III
On the General Rules for the Analysis of the Relevant
Market and Substantial Power
ARTICLE 9. For the effects of Article 12 of the Law, the Commission shall identify the goods or services which make up the relevant market, whether produced, marketed or supplied by the economic agents, and those that are or may be substituted for them, whether domestic or foreign, as well as the time required for such substitution to take place. Subsequently the Commission shall define the geographic area in which the said goods or services are supplied or in demand, and within which the option exists to go without distinction to suppliers and customers without incurring appreciably different costs; the Commission shall also take into consideration the cost of distributing the said good or service, and the cost and the probabilities of access to alternative markets.
Likewise, those economic and normative restrictions of a local, federal or international nature which prevent access to the said substitute goods or services, or which prevent the access of users or consumers to alternative sources of supply, or the access of the suppliers to alternative customers, shall be considered.
ARTICLE 10. In order to determine the market share to which Article 12, Section I, of the Law makes reference, sales indicators, number of customers, productive capacity, or any other factor that the Commission deems appropriate, shall be taken into consideration.
ARTICLE 11. For the effects of Article 13, section II, of the Law, elements which may be regarded as entry barriers include the following:
ARTICLE 12. In order to determine whether an economic agent has substantial power in the relevant market, pursuant to Article 13, section VI, of the Law, the following criteria shall also be taken into account:
ARTICLE 13. The Commission shall publish in the Diario Oficial de la Federacion the method for calculating the ratios for determining the degree of concentration which exists in the relevant market and the criteria for their application.
Chapter IV
On Concentrations
ARTICLE 14. The identification of the economic agents referred to in Article 18, section II, of the Law shall refer at least to the principal economic agents which together supply the relevant market.
ARTICLE 15. In order to determine whether a merger or concentration is to be objected to and sanctioned in accordance with Article 18, section III, of the Law, in addition the following criteria shall be considered:
ARTICLE 16. The conditions which the Commission may establish as binding upon the economic agents under the terms of Article 19, section I, of the Law, may consist in:
The Commission may not impose conditions that are not directly inked to the correction of the effects of concentration. The conditions imposed must be in proportion with the correction that is intended.
In the event of the Commission wishing to dictate a judgment whose purpose is to make the concentration in question subject to the fulfillment of certain conditions, notifiers may request that the Commission give prior consideration to their own proposals.
ARTICLE 17. The notification of the concentrations referred to under the terms of Article 20 of the Law must be made before any of the following possible events take place:
In the case of concentrations resulting from legal acts carried out in other countries, these must be notified before they have legal or material effects on Mexican national territory.
ARTICLE 18. The merging party, the party acquiring control of the companies or associations, or the agent which is intending to carry out the act or produce the effect of accumulating shares, partner� capital contributions, participation in trusts or assets that constitute the object of the transaction, are obliged to notify the concentration, without prejudice to its being carried out by any of the economic agents participating in the transaction.
ARTICLE 19. For the effects of Article 20 of the Law, the general daily minimum wage in force in the Federal District on the day previous to that on which the notification is made shall be considered; and, in the event of the operations being contracted in foreign currency, the rate of exchange to be applied shall be that for settling obligations denominated in foreign currencies for payment in the Mexican Republic, determined by the Banco de Mexico and published in the Diario Oficial de la Federacion the day before the said notification. In the event of failing to notify a concentration, the procedure set forth in Chapter V of this Code of Regulations shall be followed ex officio, and the current general daily minimum wage and the rate of exchange published by the Banco de Mexico on the day before the transaction shall be considered.
ARTICLE 20. For the effects of Article 21, Section I, of the Law, the notification of the concentration shall include:
The documents referred to in Sections II and III above shall be presented either in the original or in a certified copy or, alternatively, a simple copy for collation with the original.
When the notification fails to furnish all the requisites referred to in Sections I to VIII above, the Commission shall give warning to the notifiers in order that, within a period not exceeding five days, the required information be supplied; in the event of the said information not being presented within the aforementioned term, the concentration shall be deemed unnotified. In like manner, the concentration shall be deemed unnotified when any material requested additionally to the aforementioned is not presented within the period specified in Article 21, Section II, of the Law. The Commission shall only require such additional material as is relevant for the analysis of the concentration in accordance with the criteria set forth in the Law, which shall exclusively constitute the basis and motivation of the corresponding requirement.
The promoter shall be informed of the Commission� decision to deem a concentration unnotified within five days following the day on which the term for presenting the required information expires.
In the absence of the Commission issuing and notifying the aforementioned decision, once the aforementioned period of five days has come to an end it shall be understood that the promoter has presented the entirety of the information required.
The Commission may require information from other economic agents related with the concentration, without it being construed thereby that the said agents are accorded the nature of party to the concentration procedure.
The economic agents shall present exclusively the information referred to in Sections I to VII above, when they accredit before the Commission that it is plainly manifest that the transaction will not have as its object or effect an increase in substantial power in the relevant market or diminish, impair or prevent competition and free participation.
The Commission may grant exemption to the presentation of any requisite, when duly justified cause exists for said exemption.
ARTICLE 21. It shall not be necessary to notify pursuant to Article 21, Section I, of the Law:
ARTICLE 22. For effects of the last sentence of Article 21, Section III, of the Law, the Commission shall, at the request of the interested party, issue a certificate of non-objection within the five days following the presentation of the corresponding application.
Chapter V
On Procedure
First Section
On the Opening of the Investigation
ARTICLE 23. Pursuant to Chapter V of the Law, the Commission shall commence an investigation when it has knowledge of facts from which it may deduce the probable existence of:
In the cases of Sections I and II, the procedure shall begin de officio with the issue of the corresponding judgment or on request by a third party with the presentation of a complaint. In the case of Section III, the said procedure shall only be opened ex officio.
ARTICLE 24. The complaint referred to in Article 32 of the Law shall include:
A copy of the complaint and of the remaining documents that accompany it must be presented for each of the accused parties.
ARTICLE 25. Within ten days following the day on which the complaint is received at the filing desk, a judgment must be delivered, which:
Should the aforementioned period end without the Commission� advice being answered or without the said requirements being complied with, the complaint will be held not to have been presented. The Commission� judgment deeming the complaint unpresented shall be notified to the complainant within the five days following that on which the period for responding to the caution has expired.
If no judgment is emitted within the aforementioned periods the corresponding investigation will be deemed to have begun.
ARTICLE 26. The Commission shall reject the complaint as being clearly contrary to law, when:
ARTICLE 27. An abstract of the judgment whereby the Commission officially gives opening to a an investigation shall be published in the Diario Oficial de la Federacion within the ten days following delivery of the said judgment, which abstract shall, at the least, mention the monopoly practice or prohibited concentration to be investigated, and the market in which it is to take place; the said abstract may be disseminated in any other medium of communication when the Commission deems the business in question to be of sufficient importance, with the purpose of enabling any person to assist in the investigation. In no case in the process of publication referred to in the present paragraph shall the identity, company or business name of the economic agents involved be revealed.
The period of investigation shall begin from the day on which the judgment is published, and shall be not less than thirty days nor in excess of ninety. In exceptionally complex cases, the Plenum of the Commission may extend the term by further periods not exceeding ninety days.
Once the abstract of the judgment has been published, persons wishing to make contributions to the proceedings may do so even before summons is served on the alleged violator, as well as presenting new allegations regarding the facts motivating the investigation.
ARTICLE 28. Once an investigation is begun, from which it becomes clear that sufficient evidence exists to determine: that the object or effect of the monopoly practice or prohibited concentration is or might be to reduce, impair or prevent the process of competition and free participation in the market at national level; that other economic agents exist which are involved; or that a plurality of monopoly practices or prohibited concentrations exist, the Commission may institute a single proceeding, allow the facts forming the basis of the complaint to be extended, or initiate new proceedings, as it deems most suitable for the prompt and efficient handling of the issues.
ARTICLE 29. All persons who have any relation with the facts being investigated by the Commission shall be obligated to provide to the Commission within the period that shall be allotted them, under oath, the relevant information and data required in writing, as well as to appear to declare when summonsed.
ARTICLE 30. Once the investigation is concluded, if sufficient elements exist to bear out the existence of monopoly practices or prohibited concentrations, the Chairman and the Executive Secretary of the Commission shall serve a writ of alleged responsibility, which shall include the name and domicile of the alleged violator, the facts that constitute the substance of the monopoly practice or prohibited concentration which is imputed to it, the articles which are being violated, and the evidence on which the allegation of violation is supported, wherewith the Commission shall summons the alleged violator.
ARTICLE 31. The procedures performed by the Commission before serving the summons shall be fully valid for purposes of upholding the writ of alleged violation. In the performance of the said procedures the provisions regarding evidence set forth in this Code of Regulations shall be applicable where appropriate.
In the event of the existing evidence being insufficient to uphold the alleged violation by an economic agent, the Plenum of the Commission shall decree the closing of the file and, in that case, notify this excision to the complainant.
Second Section
On the Summons
Chapter VI
On Consultations and Opinions
ARTICLE 49. Any person, whether natural or artificial, and including the agencies or other official bodies of the Federal, state or municipal public administrations may request consultation on the subject of competition and free participation in the market, for which purpose the following requirements shall apply:
If the said information is not provided within the period provided for in Section II above, the consultation shall be deemed not presented, without prejudice to the concern� entitlement to request an extension of the said period or to present a new inquiry.
ARTICLE 50. When legal or regulatory provisions expressly provide that questions of effective competition, existence of substantial power in the relevant market, or other questions regarding competition and free participation in the market are to be to resolved, it shall be the responsibility of the Commission, excepting provision to the contrary, to emit the corresponding judgment. For this purpose, the Commission, either ex officio, or on the request of the respective authority or of an economic agent with some interest in the matter, shall emit a judgment in accordance with the following terms:
When the judgment is to be emitted at the request of the authority or other interested party, the Commission shall emit the preliminary judgment referred to in Section II above in a maximum period of thirty days following the presentation of the said request. This period and that indicated in Section III of the present Article may be extended by the President of the Commission, when this is justified, up to the maximum number of days contemplated for each case.
Notwithstanding the maximum periods contemplated in this article, the Commission shall resolve with due promptness, so that those authorities which are obligated to consider such judgments as are emitted pursuant to this article, may be able to apply in a timely manner the provisions in question.
ARTICLE 51. When in public bidding processes the favorable opinion of the Commission is required as a condition, this must be resolved within the procedures and periods established by the corresponding terms of reference which are established pursuant to the corresponding laws and upon agreement between the body calling for bids and the Commission.
Chapter VII
Motion for Reconsideration
ARTICLE 52. The motion for reconsideration shall only be in order against judgments putting an end to a proceeding or those which hold a complaint not to have been presented or a concentration not notified.
In the case of those proceedings provided for in Chapter V, as well as those in Articles 8 and 50 of this Code of Regulations, the challenged judgment shall be evaluated on the basis of the court records, and the only admissible additional evidence hall be such as has subsequently come to light and which has a relation with the facts in dispute, which is susceptible of modifying the terms of the judgment, which must accompany the document in which the motion for reconsideration is set forth and shall be ruled by the relevant provisions in chapter V of the present Code of Regulations.
The only persons having a legitimate interest to file a motion for reconsideration against the judgments of the Commission shall be the complainant, the alleged violator, who shall be party to a procedure of notification of concentration, or those involved in the proceeding as contemplated in Article 50 of this Code of Regulations.
ARTICLE 53. The President of the Commission shall deliver a ruling that either admits or rejects the motion within a period of five days following its presentation. In the event of the motion being admitted, the alleged violator, the complainant and the economic agents referred to in Article 50, as appropriate, shall be given a hearing, so that, within a period of ten days, they may set forth whatever it is in their interests to express.
Provisional
SOLE. The present Code of Regulations shall enter into force on the day following its publication in the Diario Oficial de la Federacion, except for Article 2, which shall enter into force after a period of six months following the said publication.
Published in the Diario Oficial de la Federacion, March 4, 1998.