In a few weeks the process of dissolution of Cofece and IFT will conclude, which will lead to the creation of the National Anti -Poil Commission and the application of the Federal Law on Reformed Economic Competition.
Among the changes that Congress introduced to the legal framework, is a substantive modification in the treatment of information between competitors, current or potential, within the framework of cartel research, which represents the greatest offense in competence.
Until now, article 53 of the Law indicated that the exchange of information could constitute collusive conduct if it gave rise to the realization of any of the following behaviors: i) Price Agreement; ii) Agreement to manipulate the offer; iii) Agreement to segment or divide markets; or iv) manipulation in public bidding procedures. Thus, the authority had to perform an analysis to determine whether the exchange had the ability or purpose of coordinating the actions of independent economic agents, with an anti -competitive purpose.
In order to give certainty, Cofece issued a guide that provided individuals with individuals about the type of information they had to refrain from sharing. In general terms, the authority has argued that aggregate historical information generates fewer risks and that this strategic information related to prices, customers, costs and business plans in general is more likely to raise scrutiny.
The reformed law introduces a substantial modification, since now the requirement of linking information with any of the aforementioned behaviors is eliminated and could be considered illegal by itself, under the optics of the authority. This places the Mexican legal framework very far from international practice, because in the leading jurisdictions worldwide, such as the US or the European Union, the mere exchange of information would never be considered illegal behavior without an analysis of effects or rationality.
Unfortunately, the new law does not abound on the criteria that the authority to analyze these situations must apply and does not expect the antimonopoly agency to be obliged to issue criteria or guidelines. This could lead to discretionary application situations of the legal framework to the detriment of companies in various contexts.
One of the risk areas occurs in associations or business chambers, in which companies in the same industry participate. To carry out the legitimate defense of trade union interests, companies share information and sometimes do so at the request of the same authority or for some regulatory obligation.
Another risk scenario occurs in the case of mergers and acquisitions, in which the parties must share certain information in order to concentrate. In particular, the possible buyer requires having access to detailed information about the business it intends to acquire. If the operation is not completed, the authority could consider that current or potential competitors made an exchange of improper information and initiate an investigation, which can lead to significant sanctions.
Companies must implement preventive measures to properly comply with the law. In the case of associations they must establish clear rules to prevent the discussion of specific topics on strategic or market information and in case of collecting information, they must have a specialized team for this subject to confidentiality rules that are responsible for processing and generating added indicators.
In the case of mergers and acquisitions, specific groups must be created in charge of accessing the information of the object company and must be committed to use the information only for the purposes of carrying out the operation.
These and other measures must be adopted as long as the new authority issues some pronouncement that generates certainty about the way in which the law will apply.
*Specialist in Economic Competition and Regulation. Director of Ockham Economic Consulting.
