Illegal merger investigation in Mexico’s diesel and gasoline market

On Tuesday, March 6, 2018, Mexico’s Federal Economic Competition Commission (COFECE) formally announced the commencement of an investigation on a potential illegal merger in the market of marketing, distribution and retail sale of diesel and gasoline in Mexico. This means that either (i) a merger or acquisition that may have required prior approval by COFECE by virtue of meeting the relevant thresholds was closed without the latter´s knowledge or approval; or (ii) a merger or acquisition which purpose or effect could harm the competition process and free participation in the relevant market.

The investigation is a direct result of a request for investigation filed by an undisclosed party in late 2017. Consistent with the provisions of the Federal Economic Competition Law, COFECE did not name the parties subject to investigation, and expressly noted that the investigation does not prejudge on the alleged conducts and omissions of any economic agents that may be involved.

COFECE will have an initial term of up to 120 business days term to conduct its investigation. This initial term may be extended as much as four times (for up to 120 business days each) and upon its conclusion, COFECE will issue a resolution either initiating a process against the involved economic agents or dismissing the case.

If COFECE holds that an illegal merger materialized, it may order the unwinding thereof (in whole or in part). Economic agents may face fines of up to 8 per cent of their revenue for their involvement in an illegal concentration, and up to 5 per cent of their revenue for failing to notify and obtain the approval of COFECE for the concentration (irrespective of, and in addition to, any criminal or civil liability that the economic agents may face). Individuals found guilty of participating in the execution or negotiation of an illegal concentration may also face substantial fines, in addition to criminal and civil liability.

This development marks the second investigation announced by COFECE in Mexico’s oil and gas sector this year. Last month, COFECE announced an investigation on potential horizontal cartel arrangements (prácticas monopólicas absolutas) in the distribution and marketing of Liquefied Petroleum Gas (Gas LP). Both investigations are ongoing and seem to be unrelated.