Publication DR Immunity Program

 Professional related: Francisco Fuentes Ostos , Pilar Mata   |      March 12th, 2020

COFECE issued the Regulatory Provisions of the Immunity and Sanctions Reduction Program and the repeal of certain articles of the Federal Economic Competition Law. This program is available to economic agents who recognize their participation in the performance of absolute monopolistic practices.

The Mexican Competition Commission (“COFECE”) issued new Regulatory Provisions for its leniency program (the “Regulatory Provisions”) and repealed certain articles of the general regulatory provisions issued by COFECE on 2014 related to such Program. The Regulatory Provisions were issued pursuant to Article 103 of the Federal Economic Competition Law, which refers to the leniency program (the “Program”) available to economic agents recognizing their participation on absolute monopolistic practices (cartel conducts). The Regulatory Provisions do not change the substance of the Program’s rules provided in the repealed provisions but intend to regulate in greater detail the various steps of the Program to provide more clarity to potential applicants. Similarly, while some provisions contained in the Regulatory Provisions were already provided in the Program’s Guidelines issued by COFECE (the “Guidelines”), by including them in the Regulatory Provisions COFECE seeks to grant more security to applicants as the provisions are now binding for COFECE1 .

Some of the most relevant aspects of the Regulatory Provisions are the following:

1) They specify the acts and omissions of an applicant to the Program that COFECE will consider determining whether it has “cooperated” with COFECE’s investigation and therefore if the benefits of the Program should be granted. An example of an act included in the Regulatory Provisions is the applicant’s duty not to deny its participation in the illegal conduct. Nevertheless, the Regulatory Provisions are not clear enough on whether this duty includes not denying the validity of evidence provided by third parties during the investigation and the procedure followed thereafter.

2) It provides that if COFECE’s Technical Secretary has evidence that the applicant to the Program failed to comply with its duty to cooperate with COFECE during the administrative procedure, the applicant will be granted the right of hearing and will be entitled to submit arguments to try to remedy the failure to cooperate, when possible.

3) As part of the applicant’s cooperation duties during COFECE’s investigation, the applicant must report all possible cartel conducts in which it has participated or is currently participating in the market(s) being investigated.

4) If the Program’s benefits are revoked to an applicant, COFECE may use the information provided by the applicant during the investigation phase and, if applicable, during the trail process. 1 The Guidelines are not legally binding.

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