	Lex Mundi Global Merger Notification Guide
	Mexico
	(Latin America/Caribbean) Firm Basham, Ringe Y Correa, S.C. Contributors Amilcar Peredo Updated 28 July 2023
Is there a regulatory regime applicable to mergers and similar transactions?	Yes, antitrust aspects of mergers and acquisitions are governed by the Federal Economic Competition Law ("Law") and its Regulatory Provisions. Antitrust law regulates ‘concentrations’ which are any act by means of which two or more economic agents joined. A concentration may be, for instance, any transaction that involves the sale of shares, real estate, certificates of participation, partnership stakes, intellectual property rights, joint ventures, etc. The wide scope of the definition of a ‘concentration’ is meant to minimize avoidance of regulatory notification requirements.
Identify the applicable national regulatory agency/agencies.	The antitrust regulatory agencies in Mexico are (a) the Federal Economic Competition Commission and; (b) the Federal Telecommunications Institute The Federal Economic Competition Commission ("COFECE") is the regulatory agency in charge of enforcing antitrust law in Mexico in all market sectors, except telecommunications and broadcasting. The Federal Telecommunications Institute ("IFT") is the regulatory agency in charge of regulating and enforcing telecommunications and broadcasting in Mexico, which includes antitrust investigations and merger control over these two sectors.
Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate.	There is no supranational regulatory agency.
Are there merger filing requirements? If so, where are they set out?	Yes, merger filings are required under the Law. If any of the thresholds provided under the 86 of the Law are exceeded a concentration has to be approved prior to its closing. Voluntary filing is permitted. Form requirements of the initial filing are set out in Article 89 of the Law (such as corporate and economic information). Filing fees apply.
What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)	In accordance with the Law, a concentration shall be understood as a merger, acquisition of control, or any other act by means of which companies, associations, stock, partnerships interest, trusts or assets, in general, are consolidated, and which is carried out by competitors, suppliers, customers or any other economic agent. Any of the transactions previously described if they satisfy the thresholds (mentioned in answer to question 8) would be “caught” by the national rule. Exceptions: When the transaction involves a corporate restructuring, in which the economic agents belong to the same economic interest group and no third entity participates in the concentration. When the holder of stock, partnership interest or units of participation increases its relative participation in a company´s capital stock which it has controlled since its incorporation or commencement of operations, or, when the Federal Economic Competition Commission had previously authorized the acquisition of such control and the former then increased its relative participation in the capital stock of the referred company. Note that: concentration authorizations shall not be required where a transaction in which an economic agent has, directly or indirectly at least ninety-five percent of the shares of the economic agent (s) involved in the transaction since its incorporation or since the Federal Economic Competition Commission authorized the transaction. The previous assumption shall not apply if within the remaining five percent some of the shareholders or owners of the partnership have corporate rights that allow them to appoint a director or administrator or influence significantly in the decision-making bodies of such economic agent. When the transaction concerns the incorporation of a management, guaranty or any other sort of trust, whereby the economic agent transfers its assets, stock, partnership interest or participation units without the purpose or necessary consequence of transferring said assets, stock, partnership interest or participation units to a company other than both the trustor and the corresponding fiduciary institution. However, if the guaranty trust is executed, this shall be notified in case the thresholds are met. When the transaction concerns legal acts of foreign companies, over stock, partnership interest or participation units, or under trust agreements entered into abroad and related to companies not residing in Mexico for tax purposes, insofar as the companies involved do not acquire control over Mexican companies, nor accumulate stock, partnership interest, participation units or participation in trusts or assets in general within the Mexican territory in addition to those which they directly or indirectly owned prior to the transaction. When the acquiring party is a variable income investment company and the transaction has as its purpose the acquisition of stock, obligations, assets, securities or documents with resources resulting from the placement of the investment company’s shares among the investing public, except if as a result or because of the transactions, the investment company may have significant influence over the decisions of the Economic Agent involved in the concentration. In the acquisition of stock, assets, titles or the representative documents of the capital stock of companies or whose underlying assets represent equity of legal entities and which are traded on stock exchanges in Mexico or abroad, when the act or sequence of acts does not entitle the purchaser to own ten percent or more of such capital stock, obligations convertible into stock, assets, securities or documents and the acquirer does not have the powers for: Appointing or removing members of the board, directors or managers of the issuing company; Imposing, directly or indirectly, decisions on the general meetings of stockholders, partners or equivalent bodies; Holding ownership rights that allow, directly or indirectly, to exercise voting regarding ten percent or more of a legal entity’s capital stock, or Directing or influencing, directly or indirectly, the management, operation, strategy or the main policies of a legal entity, by means of equity holdings, contractually or otherwise. Note that: the calculation of the threshold of the ten percent of the capital stock, obligations convertible into stocks, assets, securities or documents of companies listed on the stock exchange, must be on the total of the issued shares that represent the capital stock and not only on those that are listed on the stock exchange. When the acquisition of stock, partnership interest, participation units or trusts is performed by one or more investment funds merely for speculation purposes and which do not have investments in companies or assets that participate or are employed in the same relevant market as the economic agent involved in a concentration. Note that: It is understood that investment funds are those whose purpose is limited to financial speculation, as the funds acquired on behalf of their investors or partners with limited rights, securities or participation in other economic agents for the sole purpose of obtaining returns for their investors, without the investment fund having faculties or fact or right, nor the intention to participate, direct or indirectly, in the administration, operation, strategy or commercial policies of the economic agent object of the acquisition.
Is notification required for minority investments?	If the minority investment exceeds any of the thresholds mentioned in answer to question 8, a notification is required except for the exemptions mentioned in answer to "What kinds of transactions are "caught" by the national rules?".
Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test?	Yes, when there is a purchase price allocated to the Mexican part of the deal or if takes place an indirect accumulation in Mexico of assets/shares that exceeds any of the thresholds mentioned in answer to "What are the relevant thresholds for notification?" then the filing is required. As a general rule, a transaction will be subject to the antitrust filing when it has effects on the Mexican economy
What are the relevant thresholds for notification?	The Law provides three scenarios under which a given transaction, referred to as a “concentration” is: “the merger, acquisition of control, or any act through which companies, associations, shares, partnership interests, trusts or assets in general are joined together, and carried out among competitors, suppliers, clients or any other economic agents”, must be notified and approved to the Federal Economic Competition Commission (“Commission”), prior to its closing. (i) If the transaction, or series of transactions, irrespective of the place of execution, results in a direct or indirect amount in Mexico of an amount greater than the equivalent of 18 million times the current “measurement unit” (MU), $1,867,320,000 pesos (approx. USD $111,882,564.40 at an exchange rate of 16.68 pesos per dollar). Note: The transaction will meet this test if the value or purchase price assigned to the Mexican part of the transaction, if any, exceeds the amount of USD $111,882,564.40. If no purchase price is being assigned to the Mexican part of the transaction, this test does not apply and then tests 2 and 3 below should be considered. However, in case tests 2 and 3 do not apply, we recommend internally estimating the transaction value in Mexico to discard that under a verification process, the Commission may calculate that this threshold was exceeded. (ii) If the transaction or series of transactions imply an aggregation of 35% or more of the assets or share capital of an economic agent, whose assets in Mexico or annual sales which originated in Mexico (regardless of the destiny), are greater than the equivalent to 18 million times the MU, $1,867,320,000 pesos (approx. USD 111,882,564.40). Note: The transaction will meet the first threshold of this test if the acquirer accumulates 35% or more of the shares capital or assets of the target. However, to meet this test, the target must have assets in Mexico or annual sales originating in Mexico above the second threshold of $1,867,320,000 pesos (approx. USD $111,882,564.40). (iii) If the transaction or a series of transactions imply an aggregation in Mexico of assets or share capital which amount to more than the equivalent of 8.4 million times the MU, approximately $871,416,000 Pesos (approx. USD $52,211,863.39) and two or more economic agents participate, whose assets or annual sales volume in Mexico on an individual or aggregate basis are greater than 48 million times the MU, $4,979,520,000 pesos (approx. USD $298,353,505.09) Note: The first threshold of this test will be exceeded if the proposed transaction results in the accumulation in Mexico by the acquirer of share capital or assets to more than $871,416,000 Pesos (approx. USD $52,211,863.39). If this test is exceeded, it should be reviewed whether or not the acquirer and seller jointly or separately have assets or annual sales volume in Mexico for more than $4,979,520,000 pesos (approx. USD $298,353,505.09).
Is the filing voluntary or mandatory?	If any of the thresholds are met, the filing is mandatory. Voluntary filings are also allowed.
Provide the time in which a filing must be made.	Economic agents must obtain authorization for conducting a concentration, prior to performing any of the following: Completion of the legal act in accordance with the applicable legislation, or, if the case may be, fulfilling the condition precedent to which said act is subject. The direct or indirect acquisition or exercise of factual or legal control of another economic agent, or the factual or legal acquisition of another economic agent´s assets, trust participation, partnerships interest or stock. The execution of a concentration agreement among the involved economic agents. Regarding a sequence of acts, the culmination of the last one, due to which the amounts of the thresholds are surpassed.
Is there an automatic waiting period? If so, please specify.	It is a suspensory regime; therefore, the closing may not be made until clearance is obtained. The regulatory agencies will have 60 business days after the reception of the concentration notice (as specified in point 2 of the answer provided for "Are filing fees required?") or after the request for additional information is completed. If the regulatory agencies do not issue a decision on the concentration notified within the 60 business days, this shall be interpreted as if the regulatory agencies do not oppose to the concentration. Note: All periods of time provided in this guide are counted as business days.
What are the form and content of the initial filing?	Filing content must include the following points, nevertheless, this is not limited to any additional information the parties deem necessary to explain the operation or any further information the Mexican Competition Authorities may require the parties to submit. Concentration notification shall be filed in writing. Name or corporate name of the economic agents that notify the concentration. If the case may be, the name of the legal representative and the documents or instrument that contains the representation powers. A description of the concentration, kind of transaction and a draft of the corresponding legal act, as well as a draft of the non-compete clauses if these were to exist. The documents and information that explain the purpose and motive of the concentration. The articles of incorporation and any amendments thereof and, if the case may be, the bylaws of the involved economic agents. The involved economic agents´ financial statements for the previous year. A description of the involved economic agents´ capital structure, whether Mexican or foreign, identifying each partner or stockholder´s direct or indirect holdings, before and after the concentration, and of the individual or legal entities that have and will have control thereof. An indication regarding the economic agents involved in the transaction that either has direct or indirect participation in the capital structure, in the administration or in any activity of other economic agents that produce or market equal, similar or substantially related goods or services to those provided by the economic agents participating in the concentration. The information regarding the market share of the economic agents involved and of their competitors. The location of the involved economic agents´ facilities or establishments, the location of their main distribution centers and the relationship between these and said economic agents. A description of the main goods or services that are produced or offered by each economic agent involved, specifying their use in the relevant market and a list of similar goods or services, and the main economic agents that produce, distribute or market the latter in Mexican territory. Any other elements deemed pertinent by the economic agents notifying the concentration for its analysis. The filing must be accompanied by the receipt of payment of the filing fees.
Are filing fees required?	Yes, there are filing fees that should be covered before the filing otherwise COFECE would not accept the filing. The fee as of January 1, 2023, is in the amount of $227,241.00 Mexican pesos (approximately USD $13,615.40 at an exchange rate of 16.69 pesos per 1 dollar).
Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?	There are two kinds of processes to notify a concentration in Mexico. The ordinary and the “fast track” processes. Ordinary Process 10 business days after the filing date, the authority (COFECE/IFT) may issue a request for basic information ("RBI"). The notifying parties will have 10 business days to gather and file the information requested. 15 business days after receiving the responses to the RBI, the authorities may issue a second requestion for information ("RAI"), which may include information deemed as necessary to fully analyze the concentration. The notifying parties have 15 business days to submit the responses, this term can be extended if needed. If the regulatory agency does not notify the dismissal of the concentration after the periods mentioned in point 1 (10 business days after the filing of the concentration notice) and 2 (15 days after the regulatory agencies had the concentration as received), means that the process continues its due legal course. The regulatory agencies will have 60 business days after the reception of the concentration notice (as specified in point 2) or after the request for additional information is completed. Please note: If the regulatory agencies do not issue a decision on the concentration notified within 60 business days, this shall be interpreted as if the regulatory agencies do not oppose the concentration. If the regulatory agencies consider that the concentration notified could pose risks for the competition process and free market access, the regulatory agencies shall notify the economic agents involved in the concentration within at least a ten-day period prior to the case being scheduled for a Board of Commissioners session, to allow the parties to propose conditions or remedies that may correct the risks. Under exceptionally complex cases, the regulatory agencies may extend the legal time frames mentioned in points 2 and 3, for an additional forty-day period. The favorable resolution of the regulatory agencies shall have a validity period of six months and may be only extended for one additional period under duly justified reasons. Fast Track Process If the economic agents want to file a concentration notice under the “fast track” procedure, this would require presenting to the regulatory agencies information and the corresponding elements of conviction that clearly demonstrate that the concentration will not hinder, damage or impede free market access and economic competition. According to the Law, a concentration does not have as its purpose or effect to hinder, damage or impede free market access and economic competition, when the acquiring party has no participation in markets related to the relevant market in which the concentration takes place, or is not an existing or potential competitor of the acquired party and, in addition, any of the following circumstances concur: The transaction implies the participation of the acquiring party in the relevant market for the first time. Consequently, the relevant market’s structure shall not be modified and will only involve the total or partial substitution of the acquired economic agent by the acquiring party. Prior to the transaction, the acquiring party does not hold control over the acquired economic agent, and as a consequence of the transaction, the former increases its relative participation in relation to the latter, without attaining more power to influence the company’s operation, administration, strategy and main policies, including appointing board members, directors or managers. The party acquiring stock, partnership interest or participation units has control of the company and increases its relative participation in the company’s capital structure Within the five-day period following reception of the concentration notification, the regulatory agencies shall issue its decision on its admissibility, or, order its inadmissibility and for the case to be processed under the regular procedure. The Board of Commissioners of the regulatory agencies shall resolve whether the concentration complies with the criteria of clearly not hindering, damaging or impeding free market access and economic competition, within a period no greater than fifteen days following the admissibility decision. Upon conclusion of said time frame, without the Board of Commissioners of the regulatory agencies issuing a resolution, it shall be understood that there is no objection to the concentration. Please note: Parties can shorten the review process by filing the requested information as soon as possible, shortening the terms granted by the regulatory agencies.
What is the substantive test for clearance?	There are several tests that the regulatory agencies conduct to determine whether to clear an operation. First, is to determine the relevant market, which includes a geographic analysis and a substitution analysis of the product, then it proceeds to review the parties to the operation; specifically, a) the markets they are involved in, b) their market share is such relevant markets, c) the degree of concentration in the relevant market and d) the effect of the operation of the relevant operation were approved. Finally, the test requires the regulatory agencies to verify 1) if the operation would have the effect of giving an entity excessive market power that would allow it to unilaterally control market prices or materially restrict the supply of goods, 2) if the market conditions after the operation is completed would give an entity power to displace other competitors or establish barriers to market entry to new competitors; and finally, 3) if the operation would give any entity monopoly power over a relevant market, and 4) if the operation would create a market scenario in which coordinated effects could affect the relevant market.
What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)?	The regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications) resolution may: Authorize, Object, or; Subject the authorization to certain conditions that are intended to prevent the possible effects of free market access and economic competition.
Can parties proactively offer commitments to the agency to remedy identified competition concerns?	If COFECE/IFT consider that the concentration notified could pose risks for the competition process and free market access, the regulatory agencies shall notify the economic agents involved in the concentration within at least a ten-day period prior to the case being scheduled for a Board of Commissioners session, to allow the parties to propose conditions or remedies that may correct the risks. However, the notifying parties may offer remedies since the beginning of the review process.
Describe the sanctions for not filing or filing an incorrect/incomplete notification.	Sanctions for filing an incorrect concentration notice can be divided into two categories, (a) filing a concentration notice with false information; and (b) failing to comply with the requests for basic or additional information. the economic agent could be sanctioned with an administrative fine of 175,000 times the current “measurement unit” (MU), $18,154,500 pesos (approximately USD $1,073,252.38). Concentrations approved by the regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications Institute) that obtained their favorable resolution under the assertion of false information can be investigated. Failing to comply with the request for basic or additional information will update a cause for dismissal of the concentration notice, thus parties would be required to file a new concentration notice, as previously described in points 1 and 2 for the answer to "Are filing fees required?". Sanctions for dialing to notify a concentration when it was legally required to do so had two consequences; (a) the acts carried out shall be null and void, without prejudice of the administrative fine; and (b) economic agents that were obliged to be notified but didn’t could be sanction with an administrative fine range from the equivalent of five thousand times the current “measurement unit” (MU), $518,700.00 pesos (approximately USD $30,623.93 at an exchange rate of 16.93 pesos per 1 dollar) to 5% of the economic agent´s income. Please note: For those cases in which economic agents, for any reason, do not file tax returns or their accrued income has not been determined for income tax effects the administrative maximum fine would be equivalent to four hundred thousand times the current “measurement unit” (MU), $41,496,000.00 pesos (approximately USD $2,451,033.67 at an exchange rate of 16.93 pesos per 1 dollar).
Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.	If a merger is implemented “close” before the approval of the regulatory agencies, then this would be subject to the penalties described in point 2 of the answer to "Can parties proactively offer commitments to the agency to remedy identified competition concerns?". Nevertheless, if a concentration is implemented without the approval of the regulatory agencies then all the acts carried out shall be null and void, without prejudice to the economic agent´s administrative fines. If parties implement a prohibited merger, then this would be considered an unlawful concentration. An unlawful concentration is considered a concentration with the purpose or effect to obstruct, diminish, harm or impede free market access and economic competition. Sanctions for an unlawful concentration may be the following: Order the correction or suppression of unlawful concentration. Order the partial or total divestiture of an unlawful concentration in the terms of this Law, the termination of control or suppression of the acts thereof, as the case may be. A maximum fine equivalent to eight percent of the economic agent´s income, for having incurred in an unlawful concentration. For those cases in which economic agents, for any reason, do not file tax returns or their accrued income has not been determined for income tax effects the administrative maximum fine would be equivalent to nine hundred thousand times the current “measurement unit” (MU), $93,366,000.00 pesos (approximately USD $5,514,825.75 at an exchange rate of 16.93 pesos per 1 dollar).
Can the agency review and/or challenge mergers that are not notifiable?	Yes, competition agencies may challenge non-notifiable transactions within one year counted from the date on which the transaction took place.
Describe the procedures if the agency wants to challenge an unnotified transaction.	A transaction could be not notified under two scenarios (a) if the transaction per se did not meet the requirements to be a notifiable transaction, or, (b) parties failed to notify the transaction even when they had to do so. Under scenario (a) concentrations not requiring prior notice to the regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications Institute) may not be investigated if one year has passed since their execution. Nevertheless, the procedure to investigate them would be the same as the one explained in scenario (b). For scenario (b) it is required first that the Technical Secretary of the Federal Economic Competition Commission had the knowledge or objective elements regarding the existence of a concentration that should have been notified but was not notified. Procedure: The competition authorities will issue an official document opening the investigation, from this point, the investigative period would consist of 120 business days (this period can be only extended on one occasion for another 120 business days). During this time the competition authorities may request the relevant information they consider necessary to conclude if the existence of failure to notify exist. When concluded with this investigative stage (or before, subject to the competition authorities´ consideration) the competition authorities will issue a ruling stating that the investigative stage has concluded, within the next 20 days the Technical Secretary should issue a ruling stating: The file is concluded (when there are no legal grounds to conclude that the transaction should be notified). An administrative procedure would be ordered. The administrative procedure is composed of four stages so that the parties may argue what they deem necessary, file any proofs they consider necessary and file their allegations, after which the Federal Economic Competition Commission will issue the final ruling.
Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments.	Prior to 2017, there were exceptional cases in which the Federal Economic Competition Commission would dismiss a concentration notice for not “completely” fulfilling the requested information. As of 2017, the Federal Economic Competition Commission had become stricter and less flexible regarding the request for basic information, dismissing concentrations that in our opinion fulfill the request for basic information, and in some cases, the information requested should correspond to a request for additional information.
Other important/ notable information:	For many years failing to notify a transaction with no harm to the market was fine with a non-significant amount (i.e. approximately USD $20,000.00). Recently, the Federal Economic Competition Commission has been imposing very high fines for extemporary filing.

Lex Mundi Global Merger Notification Guide

Back XLS

Is there a regulatory regime applicable to mergers and similar transactions?

Yes, antitrust aspects of mergers and acquisitions are governed by the Federal Economic Competition Law ("Law") and its Regulatory Provisions. Antitrust law regulates ‘concentrations’ which are any act by means of which two or more economic agents joined. A concentration may be, for instance, any transaction that involves the sale of shares, real estate, certificates of participation, partnership stakes, intellectual property rights, joint ventures, etc. The wide scope of the definition of a ‘concentration’ is meant to minimize avoidance of regulatory notification requirements.

Identify the applicable national regulatory agency/agencies.

The antitrust regulatory agencies in Mexico are (a) the Federal Economic Competition Commission and; (b) the Federal Telecommunications Institute

The Federal Economic Competition Commission ("COFECE") is the regulatory agency in charge of enforcing antitrust law in Mexico in all market sectors, except telecommunications and broadcasting.

The Federal Telecommunications Institute ("IFT") is the regulatory agency in charge of regulating and enforcing telecommunications and broadcasting in Mexico, which includes antitrust investigations and merger control over these two sectors.

Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate.

There is no supranational regulatory agency.

Are there merger filing requirements? If so, where are they set out?

Yes, merger filings are required under the Law. If any of the thresholds provided under the 86 of the Law are exceeded a concentration has to be approved prior to its closing. Voluntary filing is permitted.
Form requirements of the initial filing are set out in Article 89 of the Law (such as corporate and economic information). Filing fees apply.

What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)

In accordance with the Law, a concentration shall be understood as a merger, acquisition of control, or any other act by means of which companies, associations, stock, partnerships interest, trusts or assets, in general, are consolidated, and which is carried out by competitors, suppliers, customers or any other economic agent.

Any of the transactions previously described if they satisfy the thresholds (mentioned in answer to question 8) would be “caught” by the national rule.

Exceptions:

When the transaction involves a corporate restructuring, in which the economic agents belong to the same economic interest group and no third entity participates in the concentration.

When the holder of stock, partnership interest or units of participation increases its relative participation in a company´s capital stock which it has controlled since its incorporation or commencement of operations, or, when the Federal Economic Competition Commission had previously authorized the acquisition of such control and the former then increased its relative participation in the capital stock of the referred company.

Note that: concentration authorizations shall not be required where a transaction in which an economic agent has, directly or indirectly at least ninety-five percent of the shares of the economic agent (s) involved in the transaction since its incorporation or since the Federal Economic Competition Commission authorized the transaction.

The previous assumption shall not apply if within the remaining five percent some of the shareholders or owners of the partnership have corporate rights that allow them to appoint a director or administrator or influence significantly in the decision-making bodies of such economic agent.

When the transaction concerns the incorporation of a management, guaranty or any other sort of trust, whereby the economic agent transfers its assets, stock, partnership interest or participation units without the purpose or necessary consequence of transferring said assets, stock, partnership interest or participation units to a company other than both the trustor and the corresponding fiduciary institution. However, if the guaranty trust is executed, this shall be notified in case the thresholds are met.

When the transaction concerns legal acts of foreign companies, over stock, partnership interest or participation units, or under trust agreements entered into abroad and related to companies not residing in Mexico for tax purposes, insofar as the companies involved do not acquire control over Mexican companies, nor accumulate stock, partnership interest, participation units or participation in trusts or assets in general within the Mexican territory in addition to those which they directly or indirectly owned prior to the transaction.

When the acquiring party is a variable income investment company and the transaction has as its purpose the acquisition of stock, obligations, assets, securities or documents with resources resulting from the placement of the investment company’s shares among the investing public, except if as a result or because of the transactions, the investment company may have significant influence over the decisions of the Economic Agent involved in the concentration.

In the acquisition of stock, assets, titles or the representative documents of the capital stock of companies or whose underlying assets represent equity of legal entities and which are traded on stock exchanges in Mexico or abroad, when the act or sequence of acts does not entitle the purchaser to own ten percent or more of such capital stock, obligations convertible into stock, assets, securities or documents and the acquirer does not have the powers for:

Appointing or removing members of the board, directors or managers of the issuing company;
Imposing, directly or indirectly, decisions on the general meetings of stockholders, partners or equivalent bodies;
Holding ownership rights that allow, directly or indirectly, to exercise voting regarding ten percent or more of a legal entity’s capital stock, or
Directing or influencing, directly or indirectly, the management, operation, strategy or the main policies of a legal entity, by means of equity holdings, contractually or otherwise.

Note that: the calculation of the threshold of the ten percent of the capital stock, obligations convertible into stocks, assets, securities or documents of companies listed on the stock exchange, must be on the total of the issued shares that represent the capital stock and not only on those that are listed on the stock exchange.

When the acquisition of stock, partnership interest, participation units or trusts is performed by one or more investment funds merely for speculation purposes and which do not have investments in companies or assets that participate or are employed in the same relevant market as the economic agent involved in a concentration.

Note that: It is understood that investment funds are those whose purpose is limited to financial speculation, as the funds acquired on behalf of their investors or partners with limited rights, securities or participation in other economic agents for the sole purpose of obtaining returns for their investors, without the investment fund having faculties or fact or right, nor the intention to participate, direct or indirectly, in the administration, operation, strategy or commercial policies of the economic agent object of the acquisition.

Is notification required for minority investments?

If the minority investment exceeds any of the thresholds mentioned in answer to question 8, a notification is required except for the exemptions mentioned in answer to "What kinds of transactions are "caught" by the national rules?".

Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test?

Yes, when there is a purchase price allocated to the Mexican part of the deal or if takes place an indirect accumulation in Mexico of assets/shares that exceeds any of the thresholds mentioned in answer to "What are the relevant thresholds for notification?" then the filing is required. As a general rule, a transaction will be subject to the antitrust filing when it has effects on the Mexican economy

What are the relevant thresholds for notification?

The Law provides three scenarios under which a given transaction, referred to as a “concentration” is: “the merger, acquisition of control, or any act through which companies, associations, shares, partnership interests, trusts or assets in general are joined together, and carried out among competitors, suppliers, clients or any other economic agents”, must be notified and approved to the Federal Economic Competition Commission (“Commission”), prior to its closing.

(i) If the transaction, or series of transactions, irrespective of the place of execution, results in a direct or indirect amount in Mexico of an amount greater than the equivalent of 18 million times the current “measurement unit” (MU), $1,867,320,000 pesos (approx. USD $111,882,564.40 at an exchange rate of 16.68 pesos per dollar).

Note: The transaction will meet this test if the value or purchase price assigned to the Mexican part of the transaction, if any, exceeds the amount of USD $111,882,564.40. If no purchase price is being assigned to the Mexican part of the transaction, this test does not apply and then tests 2 and 3 below should be considered. However, in case tests 2 and 3 do not apply, we recommend internally estimating the transaction value in Mexico to discard that under a verification process, the Commission may calculate that this threshold was exceeded.

(ii) If the transaction or series of transactions imply an aggregation of 35% or more of the assets or share capital of an economic agent, whose assets in Mexico or annual sales which originated in Mexico (regardless of the destiny), are greater than the equivalent to 18 million times the MU, $1,867,320,000 pesos (approx. USD 111,882,564.40).

Note: The transaction will meet the first threshold of this test if the acquirer accumulates 35% or more of the shares capital or assets of the target. However, to meet this test, the target must have assets in Mexico or annual sales originating in Mexico above the second threshold of $1,867,320,000 pesos (approx. USD $111,882,564.40).

(iii) If the transaction or a series of transactions imply an aggregation in Mexico of assets or share capital which amount to more than the equivalent of 8.4 million times the MU, approximately $871,416,000 Pesos (approx. USD $52,211,863.39) and two or more economic agents participate, whose assets or annual sales volume in Mexico on an individual or aggregate basis are greater than 48 million times the MU, $4,979,520,000 pesos (approx. USD $298,353,505.09)

Note: The first threshold of this test will be exceeded if the proposed transaction results in the accumulation in Mexico by the acquirer of share capital or assets to more than $871,416,000 Pesos (approx. USD $52,211,863.39). If this test is exceeded, it should be reviewed whether or not the acquirer and seller jointly or separately have assets or annual sales volume in Mexico for more than $4,979,520,000 pesos (approx. USD $298,353,505.09).

Is the filing voluntary or mandatory?

If any of the thresholds are met, the filing is mandatory. Voluntary filings are also allowed.

Provide the time in which a filing must be made.

Economic agents must obtain authorization for conducting a concentration, prior to performing any of the following:

Completion of the legal act in accordance with the applicable legislation, or, if the case may be, fulfilling the condition precedent to which said act is subject.
The direct or indirect acquisition or exercise of factual or legal control of another economic agent, or the factual or legal acquisition of another economic agent´s assets, trust participation, partnerships interest or stock.
The execution of a concentration agreement among the involved economic agents.
Regarding a sequence of acts, the culmination of the last one, due to which the amounts of the thresholds are surpassed.

Is there an automatic waiting period? If so, please specify.

It is a suspensory regime; therefore, the closing may not be made until clearance is obtained. The regulatory agencies will have 60 business days after the reception of the concentration notice (as specified in point 2 of the answer provided for "Are filing fees required?") or after the request for additional information is completed. If the regulatory agencies do not issue a decision on the concentration notified within the 60 business days, this shall be interpreted as if the regulatory agencies do not oppose to the concentration.

Note: All periods of time provided in this guide are counted as business days.

What are the form and content of the initial filing?

Filing content must include the following points, nevertheless, this is not limited to any additional information the parties deem necessary to explain the operation or any further information the Mexican Competition Authorities may require the parties to submit.

Concentration notification shall be filed in writing.
Name or corporate name of the economic agents that notify the concentration.
If the case may be, the name of the legal representative and the documents or instrument that contains the representation powers.
A description of the concentration, kind of transaction and a draft of the corresponding legal act, as well as a draft of the non-compete clauses if these were to exist.
The documents and information that explain the purpose and motive of the concentration.
The articles of incorporation and any amendments thereof and, if the case may be, the bylaws of the involved economic agents.
The involved economic agents´ financial statements for the previous year.
A description of the involved economic agents´ capital structure, whether Mexican or foreign, identifying each partner or stockholder´s direct or indirect holdings, before and after the concentration, and of the individual or legal entities that have and will have control thereof.
An indication regarding the economic agents involved in the transaction that either has direct or indirect participation in the capital structure, in the administration or in any activity of other economic agents that produce or market equal, similar or substantially related goods or services to those provided by the economic agents participating in the concentration.
The information regarding the market share of the economic agents involved and of their competitors.
The location of the involved economic agents´ facilities or establishments, the location of their main distribution centers and the relationship between these and said economic agents.
A description of the main goods or services that are produced or offered by each economic agent involved, specifying their use in the relevant market and a list of similar goods or services, and the main economic agents that produce, distribute or market the latter in Mexican territory.
Any other elements deemed pertinent by the economic agents notifying the concentration for its analysis.

The filing must be accompanied by the receipt of payment of the filing fees.

Are filing fees required?

Yes, there are filing fees that should be covered before the filing otherwise COFECE would not accept the filing. The fee as of January 1, 2023, is in the amount of $227,241.00 Mexican pesos (approximately USD $13,615.40 at an exchange rate of 16.69 pesos per 1 dollar).

Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?

There are two kinds of processes to notify a concentration in Mexico. The ordinary and the “fast track” processes.

Ordinary Process

10 business days after the filing date, the authority (COFECE/IFT) may issue a request for basic information ("RBI"). The notifying parties will have 10 business days to gather and file the information requested. 15 business days after receiving the responses to the RBI, the authorities may issue a second requestion for information ("RAI"), which may include information deemed as necessary to fully analyze the concentration. The notifying parties have 15 business days to submit the responses, this term can be extended if needed.

If the regulatory agency does not notify the dismissal of the concentration after the periods mentioned in point 1 (10 business days after the filing of the concentration notice) and 2 (15 days after the regulatory agencies had the concentration as received), means that the process continues its due legal course.

The regulatory agencies will have 60 business days after the reception of the concentration notice (as specified in point 2) or after the request for additional information is completed.

Please note: If the regulatory agencies do not issue a decision on the concentration notified within 60 business days, this shall be interpreted as if the regulatory agencies do not oppose the concentration.

If the regulatory agencies consider that the concentration notified could pose risks for the competition process and free market access, the regulatory agencies shall notify the economic agents involved in the concentration within at least a ten-day period prior to the case being scheduled for a Board of Commissioners session, to allow the parties to propose conditions or remedies that may correct the risks.

Under exceptionally complex cases, the regulatory agencies may extend the legal time frames mentioned in points 2 and 3, for an additional forty-day period.

The favorable resolution of the regulatory agencies shall have a validity period of six months and may be only extended for one additional period under duly justified reasons.

Fast Track Process

If the economic agents want to file a concentration notice under the “fast track” procedure, this would require presenting to the regulatory agencies information and the corresponding elements of conviction that clearly demonstrate that the concentration will not hinder, damage or impede free market access and economic competition.

According to the Law, a concentration does not have as its purpose or effect to hinder, damage or impede free market access and economic competition, when the acquiring party has no participation in markets related to the relevant market in which the concentration takes place, or is not an existing or potential competitor of the acquired party and, in addition, any of the following circumstances concur:

The transaction implies the participation of the acquiring party in the relevant market for the first time. Consequently, the relevant market’s structure shall not be modified and will only involve the total or partial substitution of the acquired economic agent by the acquiring party.
Prior to the transaction, the acquiring party does not hold control over the acquired economic agent, and as a consequence of the transaction, the former increases its relative participation in relation to the latter, without attaining more power to influence the company’s operation, administration, strategy and main policies, including appointing board members, directors or managers.
The party acquiring stock, partnership interest or participation units has control of the company and increases its relative participation in the company’s capital structure

Within the five-day period following reception of the concentration notification, the regulatory agencies shall issue its decision on its admissibility, or, order its inadmissibility and for the case to be processed under the regular procedure.

The Board of Commissioners of the regulatory agencies shall resolve whether the concentration complies with the criteria of clearly not hindering, damaging or impeding free market access and economic competition, within a period no greater than fifteen days following the admissibility decision. Upon conclusion of said time frame, without the Board of Commissioners of the regulatory agencies issuing a resolution, it shall be understood that there is no objection to the concentration.

Please note: Parties can shorten the review process by filing the requested information as soon as possible, shortening the terms granted by the regulatory agencies.

What is the substantive test for clearance?

There are several tests that the regulatory agencies conduct to determine whether to clear an operation. First, is to determine the relevant market, which includes a geographic analysis and a substitution analysis of the product, then it proceeds to review the parties to the operation; specifically, a) the markets they are involved in, b) their market share is such relevant markets, c) the degree of concentration in the relevant market and d) the effect of the operation of the relevant operation were approved. Finally, the test requires the regulatory agencies to verify 1) if the operation would have the effect of giving an entity excessive market power that would allow it to unilaterally control market prices or materially restrict the supply of goods, 2) if the market conditions after the operation is completed would give an entity power to displace other competitors or establish barriers to market entry to new competitors; and finally, 3) if the operation would give any entity monopoly power over a relevant market, and 4) if the operation would create a market scenario in which coordinated effects could affect the relevant market.

What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)?

The regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications) resolution may:

Authorize,
Object, or;
Subject the authorization to certain conditions that are intended to prevent the possible effects of free market access and economic competition.

Can parties proactively offer commitments to the agency to remedy identified competition concerns?

If COFECE/IFT consider that the concentration notified could pose risks for the competition process and free market access, the regulatory agencies shall notify the economic agents involved in the concentration within at least a ten-day period prior to the case being scheduled for a Board of Commissioners session, to allow the parties to propose conditions or remedies that may correct the risks. However, the notifying parties may offer remedies since the beginning of the review process.

Describe the sanctions for not filing or filing an incorrect/incomplete notification.

Sanctions for filing an incorrect concentration notice can be divided into two categories, (a) filing a concentration notice with false information; and (b) failing to comply with the requests for basic or additional information.

the economic agent could be sanctioned with an administrative fine of 175,000 times the current “measurement unit” (MU), $18,154,500 pesos (approximately USD $1,073,252.38).

Concentrations approved by the regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications Institute) that obtained their favorable resolution under the assertion of false information can be investigated.

Failing to comply with the request for basic or additional information will update a cause for dismissal of the concentration notice, thus parties would be required to file a new concentration notice, as previously described in points 1 and 2 for the answer to "Are filing fees required?".
Sanctions for dialing to notify a concentration when it was legally required to do so had two consequences; (a) the acts carried out shall be null and void, without prejudice of the administrative fine; and (b) economic agents that were obliged to be notified but didn’t could be sanction with an administrative fine range from the equivalent of five thousand times the current “measurement unit” (MU), $518,700.00 pesos (approximately USD $30,623.93 at an exchange rate of 16.93 pesos per 1 dollar) to 5% of the economic agent´s income.

Please note: For those cases in which economic agents, for any reason, do not file tax returns or their accrued income has not been determined for income tax effects the administrative maximum fine would be equivalent to four hundred thousand times the current “measurement unit” (MU), $41,496,000.00 pesos (approximately USD $2,451,033.67 at an exchange rate of 16.93 pesos per 1 dollar).

Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.

If a merger is implemented “close” before the approval of the regulatory agencies, then this would be subject to the penalties described in point 2 of the answer to "Can parties proactively offer commitments to the agency to remedy identified competition concerns?".

Nevertheless, if a concentration is implemented without the approval of the regulatory agencies then all the acts carried out shall be null and void, without prejudice to the economic agent´s administrative fines.

If parties implement a prohibited merger, then this would be considered an unlawful concentration. An unlawful concentration is considered a concentration with the purpose or effect to obstruct, diminish, harm or impede free market access and economic competition.

Sanctions for an unlawful concentration may be the following:

Order the correction or suppression of unlawful concentration.
Order the partial or total divestiture of an unlawful concentration in the terms of this Law, the termination of control or suppression of the acts thereof, as the case may be.
A maximum fine equivalent to eight percent of the economic agent´s income, for having incurred in an unlawful concentration.
For those cases in which economic agents, for any reason, do not file tax returns or their accrued income has not been determined for income tax effects the administrative maximum fine would be equivalent to nine hundred thousand times the current “measurement unit” (MU), $93,366,000.00 pesos (approximately USD $5,514,825.75 at an exchange rate of 16.93 pesos per 1 dollar).

Can the agency review and/or challenge mergers that are not notifiable?

Yes, competition agencies may challenge non-notifiable transactions within one year counted from the date on which the transaction took place.

Describe the procedures if the agency wants to challenge an unnotified transaction.

A transaction could be not notified under two scenarios (a) if the transaction per se did not meet the requirements to be a notifiable transaction, or, (b) parties failed to notify the transaction even when they had to do so.

Under scenario (a) concentrations not requiring prior notice to the regulatory agencies (Federal Economic Competition Commission and Federal Telecommunications Institute) may not be investigated if one year has passed since their execution. Nevertheless, the procedure to investigate them would be the same as the one explained in scenario (b).

For scenario (b) it is required first that the Technical Secretary of the Federal Economic Competition Commission had the knowledge or objective elements regarding the existence of a concentration that should have been notified but was not notified.

Procedure:

The competition authorities will issue an official document opening the investigation, from this point, the investigative period would consist of 120 business days (this period can be only extended on one occasion for another 120 business days).

During this time the competition authorities may request the relevant information they consider necessary to conclude if the existence of failure to notify exist.

When concluded with this investigative stage (or before, subject to the competition authorities´ consideration) the competition authorities will issue a ruling stating that the investigative stage has concluded, within the next 20 days the Technical Secretary should issue a ruling stating:

The file is concluded (when there are no legal grounds to conclude that the transaction should be notified).

An administrative procedure would be ordered.

The administrative procedure is composed of four stages so that the parties may argue what they deem necessary, file any proofs they consider necessary and file their allegations, after which the Federal Economic Competition Commission will issue the final ruling.

Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments.

Prior to 2017, there were exceptional cases in which the Federal Economic Competition Commission would dismiss a concentration notice for not “completely” fulfilling the requested information. As of 2017, the Federal Economic Competition Commission had become stricter and less flexible regarding the request for basic information, dismissing concentrations that in our opinion fulfill the request for basic information, and in some cases, the information requested should correspond to a request for additional information.

Other important/ notable information:

For many years failing to notify a transaction with no harm to the market was fine with a non-significant amount (i.e. approximately USD $20,000.00). Recently, the Federal Economic Competition Commission has been imposing very high fines for extemporary filing.

Lex Mundi Global Merger Notification Guide

Mexico

Lex Mundi Global Merger Notification Guide

Mexico

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