INTERPRETATION CRITERIA USED BY THE PLENUM OF THE FEDERAL

COMPETITION COMMISSION

Mexico


The plenum of the Federal Competition Commission (FCC) is its highest decision organ. It is empowered to resolve and impose administrative penalties for the infringement of the Federal Law of Economic Competition, as well as to interpret, with regard to administrative purposes, any provision of the Commission's Internal Regulations and to resolve unexpected situations not considered therein.

The plenum has agreed upon a series of Interpretation Criteria (ICP) which are made available to the general public in order to enhance enforcement of the legal provisions regarding economic competition. These criteria will remain in force as long as they are not ammended, extended or repudiated by the Commission's Plenum.

ICP 001

Determination of the starting date for the 45 day term awarded to the Commission to issue a decision regarding concentrations in cases where additional information has been required.

Date of emission: July 7, 1997

Article 21 of the Federal Law of Economic Competition (FLEC) establishes the procedures to be followed by those mergers requiring authorization by the FCC as follows:

"ARTICLE 21.- For the purposes of the preceding article, the following shall apply...II.- The Commission may request additional information or documents within twenty calendar days after receiving notification. This information must be submitted to the Commission by the interested parties within fifteen calendar days. This time limit may be extended in duly justified cases; III.- The Commission shall have forty-five calendar days after acquiring notification or, if in such case, the additional documents requested, to issue a decision. Once said time limit has expired and no decision has been given to the interested parties it shall be understood that the Commission has no objections whatsoever..."

However, economic agents fail to comply with the request for additional information in the following situations:

1) Additional information may be presented in an untimely fashion. In this case, a failure to comply with the requested deadline in due time exists.

2) Economic agents may present only partial information requested or may not present the required information.

Both cases have the same effects, as responsible agents fail to comply with the authority requirement. This follows from the principle that obligations should be fulfilled completely, being void to fulfill them partially.(i.e. no partial fulfilment applies)

The 45 calendar day deadline to produce a resolution should be counted only once economic agents have presented all the requested information as stated in section III of article 21. However, the 15 calendar days deadline to present additional information, determined in section II of the above mentioned article, can be extended only in duly justified cases. If the economic agent fails to present the requested information according to the established deadline, this cannot be taken as an approved extension of the deadline.

In order to prevent non compliance by the economic agents on their obligation to present additional information requested and to enhance expedite merger procedures it is convenient to inform economic agents that notification will not be acknowledged if requested information is not complete and is not presented within the deadline term.

To provide certainty to those agents that duly fulfill with the established deadlines and with the contents of the information requested it will be convenient for the FCC to issue a decree acknowledging compliance by the economic agents and establishing the starting date for the 45 day period for the FCC to issue a merger resolution.

Even if the 20 calendar day deadline for the Commision by the President to request information has elapsed, it is still possible, according to the first paragraph of article 31 of the FLEC to request additional information to merger applicants. However, in this case, the 45 calendar day deadline for the Commision to issue a resolution will not be interrupted.

Finally, extensions of deadlines awarded to the Commission, as established in Article 21, section IV should be done within the 20 calendar days authorized period to request additional information or within the 45 calendar day authorized period to issue a resolution, since elapsed deadlines may not be liable for extension. Similarly, if all requested information is not presented according to article 21 section III, the starting date for the period granted to issue a resolution cannot be determined, therefore no extension of such deadline applies.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 002

Elements and information required to judge complex concentrations.

Date of emission: August 14, 1997

1.- Competitors and agents that may be affected by the notified concentration should be required information and/or be summoned in written form to enable them to provide the Commission with elements that contribute to a better understanding and study of the concentration reviewed, even though such agents will not be considered as part of the proceeding. A precision must be made that if no answer is received in due time, it will be understood that the agent has no objection to the concentration.

2.- In the case of specially complex matters that require the Commission to obtain information from third parties, the requirements shall contain the admonition measures included in the FLEC.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 003

The Appeal for Reconsideration in order to comply with the constitutional "hearing of a case" requirement.

Date of emission: September 4, 1997

In ex officio investigations where an economic agent has rendered a declaration before this Authority and has pleaded guilty to the commitment of absolute monopolistic practices set out in article 9 of the FLEC, the filing and adjudication of an appeal for reconsideration of resolutions issued according to the faculties established in the first paragraph of article 31 of the FLEC, are a means to comply with the "hearing of a case" requirement, stated as an individual guarantee in article 14 of the Political Constitution of the Mexican United States.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 004

Date of emission: May 15, 1998

Imposition of fines due to extemporary merger notification

a) If the economic agents present an extemporary merger notification, the fine shall be equivalent to two times the duties for a merger notification.

If the notification is presented by request of the FCC or by the course of a preliminary or ex-officio investigation, the fine shall be equivalent to three times the duties for a merger notification.

If the parties present the merger notification under false pretences, the fine shall be equivalent to four times the duties for a merger notification or higher.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 005
Date of emission: May 28, 1998

Withdrawing a merger notification

Only for those cases where the operation is not going to be concluded it shall proceed, as the procedure would be left unsubstantiated.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 006

Date of emission: July 16, 1998

Admission of evidence in the filing for the appeal for review process

It is established as an internal criteria that no evidence shall be admitted in the filing for the appeal for review process unless this evidence has the characteristics of supervening, according to article 52 of the RFLEC.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 007
Date of emission: August 20, 1998

Consultations resolution*

In order for the FCC to resolve consultations received, these should be based in real and concrete cases, and the relevant information for their analysis should also be provided.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 008

Date of emission: February 18th, 1999

The appeal for review does not proceed in consultations raised according to article 49 of the Code of Regulations of the FLEC

The appeal for review does not proceed against official letters issued by this Commission answering consultations raised by economic agents, according to article 49 of the Code of Regulations of the FLEC, given that according to article 39 of the FLEC and article 52 of the Code or Regulations to the FLEC, the appeal for review only proceeds against resolutions that put an end to the procedure. Just the same, according to article 23, index VII of the Bylaws of the Federal Competition Commission, the official letter that resolves the consultation, does not have the rank of a resolution since it is not binding does it have judicial effects that cause an injury or a damage in the judicial sphere of the consultant, in this light the imposition of an appeal for review does not proceed.

The appeal for review proceeds against consultations raised according to articles 50 and 51 of the Bylaws of the Federal Competition Commission.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 009

Date of emission: September 14th, 1999

Corporate restructure notices may be merger notifications

When an economic agent files a concentration notice according to article 21 index II of the Code of Regulations of the FLEC, when it should have field a concentration notification, since it does not comply with all of the requirements to meet the exception, the Commission will take into account the economic agents recent behavior to impose a fine for extemporary notification equivalent to one or two shares of the fee for merger notification, taking into account the circumstances of the case and according to the criteria established in article 26 of the FLEC.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 010
Date of emission: September 30th, 1999

The appeal for review will proceed in the resolution of consultations and opinions

The appeal for review will proceed according to article 39 of the FLEC and 52 and 53 of the Code of Regulations of the FLEC, against resolutions issued by the Commission in which they answer consultations and opinions raised by economic agents, according to article 49 and 51 of the Code of Regulations of the FLEC, when such are about real and concrete situations. The Commission will take into account all the necessary elements in order to give the most precise answer in order to enlighten the economic agents of the compliance of the law, without giving a compromised criteria that has not been discussed or approved previously by the Plenum.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 011

Date of emission: April 12th, 2000

A substitute President will be designated for matters discussed in the Plenum when the President has an excuse.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 012

Date of emission: August 17th, 2000

Unnotified concentrations to the FCC that derive from an operation notified with posterity.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 013

Date of emission: February 8th, 2001

Enterprises of recent creation

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 014

Date of emission: February 15th , 2001

Quantitative information used to elaborate Preliminary Resolutions.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 015

Date of emission: November 8th, 2001

International concentrations that derive in a posterior corporate restructure of the Mexican subsidiaries.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 016

Date of emission: August 21st, 2003

Cases in which article 21 index II of the Code of Regulations of the FLEC applies.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm

ICP 017

Date of emission: August 21st, 2003

Scope of indirect property in notices of corporate restructures.

http://www.cfc.gob.mx/Contenido.asp?P=http://sp.cfc.gob.mx:8080/cfc01/Documentos/cfc99e/Resoluciones/Criterios%20de%20Pleno/index.htm


* Published as criteria CIP-004, in the Economic Competition Gazette, year 1, number 1, March ??August 1998