COFECE issues new Guidelines for Exchange of Information between Economic Agents

 Professional related: Carlos Orcí , Francisco Fuentes Ostos   |      December 10th, 2020

Considering that pursuant to the Federal Economic Competition Law (the “Law”), the Federal Economic Competition Commission (“COFECE”) must review its guidelines every five years, on November 24, 2020, COFECE issued a new Guidelines regarding Exchange of Information between Economic Agents (the “Guidelines”), which replaces the once issued in 2015 (the “Previous Guidelines”).

The Guidelines’ content is essentially the same to that of the Previous Guidelines, only simplifying some of its sections. Furthermore, the following matters were added to provide more clarity to economic agents:

• The Guidelines incorporated the existence of barriers to entry as an additional market characteristic1 considered by COFECE while analyzing whether an exchange of information between economic agents could result in risks to competition. The Guidelines points out that barriers facilitate collusion by inhibiting the entry of new competitors that impose a competitive pressure. Thereafter, the Guidelines consider that information exchanges in markets with high entry barriers may be more likely to generate the aforementioned risks.

• It expressly states that co-investments or joint-ventures formed with the purpose of creating a “buying club” can favor communication and exchange of information between competitors which could affect other related markets, even when they aim to improve purchase conditions. Thus, COFECE emphasizes the need of considering the exchange of information when creating buying clubs.

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