Mexico City, January 26th, 2021.
On January 26, 2021, the Federal Economic Competition Commission (“FECC”) issued new Guidelines on the Immunity and Leniency Program (“Guidelines”), which replaces version no. 003/2015 of the Guidelines (“Previous Guidelines”). The Guidelines do not interpret or replace the immunity program (“Program”) regulations provided for in the Federal Economic Competition Law and the Regulatory Provisions of the Program. However, they show the FECC’s practice and are intended as a tool for economic agents. Some new elements included in this Guidelines are:
a) During the first stage of application to the Program: (i) Applicants who approach FECC after the first can receive benefits if they provide additional information to the Investigation Authority (“IA”), cooperate fully and continuously and cease to be involved in the conduct; (ii) the petition can be filed before or after an investigation has been opened; (iii) when the request covers an economic interest group (“EIG”), it must list all the entities who belong to the EIG covered by the application, as well as their unit of purpose and control; (iv) facilitators of the practice (such as business associations or chambers of commerce) may apply to the Program; and (v) the formal meeting between the applicant and the IA can be deferred on a single occasion, if justified reasons are provided.
b) During the second stage of the investigation: (i) more flexible conditions to provide information and communicate with the authority are provided for; for instance, the applicant may render oral statements to the IA, instead of having to file them in writing; (ii) in the event that any reported practice belongs to a market other than the one investigated, the applicant may request the benefit in the corresponding market, provided that the conduct did not start after the first request; (iii) contact rules with the authorities through meetings or calls are established; and (iv) it is clarified that within the obligation of full and continuous cooperation, applicants must: acknowledge their participation and terminate the conduct, unless the IA expressly requests in writing not to do so; refrain from destroying, falsifying and hiding information; and report all possible practices in which it has participated.
c) During the third stage of the trial-like proceeding: (i) in case the Technical Secretary detects a breach the applicant will be given 10 business days to correct it; and (ii) more flexible rules are established to contact the Technical Secretary through telephone calls and meetings that can be held in places other than the FECC, or by electronic means.
Regarding the order of the applications, if the first applicant loses the benefit during the investigation, the next applicant will take his place, and so on. However, if the benefit is revoked during the trial-like proceeding, subsequent applicants will keep the positions they had obtained according to the corresponding chronological order, that is, positions will not be reassigned.
Finally, the Guidelines indicate that if economic agents wish to make their participation in the program public, they must receive the appropriate authorization from the FECC.
S I N C E R E L Y,
Amilcar Peredo
Fernanda Garza
León Jiménez
Carmina Paredes
cparedes@basham.com.mx
