Investigative powers in practice – MEXICO – November 2018 OECD GFC

This presentation by the Mexican Delegation was made during Break-out session 3: Due Process in relation to Evidence Gathering, of the discussion on “Investigative Powers in Practice” held at the 17th meeting of the OECD Global Forum on Competition on 29 November 2018. More documents and presentations on this topic can be found at oe.cd/invpw.

1. Dueprocessin
investigations
November30, 2018
Carolina Garayzar, DeputyDirector General forInternational Affairs

2. ConstitutionalPrinciples
Basics
LEGALITY RIGHT TO
DEFENSE
CERTAINTY ACCESS TO
JUSTICE

Comply with
procedural
formalities and
laws
Grant the
opportunity to
fully respond to
an alleged
violation
The decisions
must be taken
by competent
authorities, duly
grounded in law
and fact
Guarantees
the right to an
effective
remedy and to
a fair trial


3. Checksand balances in theMexican
CompetitionLaw
NEW INCREMENTAL
POWERS: REGULATION
OF ESSENTIAL INPUTS,
ELIMINATION OF
BARRIERS TO
COMPETITION,
DIVESTITURE REMEDIES
SEPARATION OF
INVESTIGATIVE AND
ADJUDICATION
AUTHORITIES
PROFESSIONAL
INDEPENDENT BOARD OF
COMMISSIONERS
TRANSPARENCY AND
ACCOUNTABILITY
SPECIALIZED JUDICIAL
REVIEW
CONSTITUTIONAL
AUTONOMY
INCREASE IN PENALTIES
AND FINES

4. Investigation stage
•Gathering of evidence to
prove possible
anticompetitive practices.
•Concludes with Statement
Possible Responsibity/
Preliminary opinion or the
proposal to close the file.
INVESTIGATIVE
AUTHORITY
Decision-makingstage
•Opportunityto present
evidenceand arguments.
•Concludeswiththefinal
resolutionof theBoard
BOARD OF
COMMISSIONERS
Ensuringimpartiality

5. Investigation procedure for anticompetitive practices
BEGINNING
Ex-officio or for
complaint
Complaint:
analysis of
merits for the
case
INITIATION
ORDER
Publication in
the Official
Gazette

INVESTIGATION
PERIOD
30-120 days
investigation
period

BOARD OF COMMISSIONERS
RESOLUTION
Procedureisfinishedwithresolution

TRIAL LIKE PROCEDURE
Allegedofendershavetherightto
defendthemselvesand present
evidence


STATEMENT OF
PROBABLE
RESPONSIBILITY
Issuedat the
endof
investigation
Orproposalto
closethefile

6. Investigative tools

7. PROTECTION OF
CONFIDENTIALITY
•Publication of the Initiation Order in the
Federal Official Gazette
•Several guidelines(guidelines to process the
investigationprocedure for relative
monopolistic practices or unlawful
concentrations; for the initiation of
investigations; for the leniency program; for the
exchange of information among competitors.)
RELATED PRINCIPLES


TRANSPARENCY
•Access to the file is not allowed during the
investigation stage
•Information and documents obtained during
investigations considered as Reserved,
Confidential or Public (FECL Art. 125)
•Public officials subject to responsibility for
disclosing confidential or reserved information
Dueprocessduringinvestigations
REMEDIES
PROPOSAL
•Agent(s) may propose suitable and
economically feasible measuresbefore the file
is integrated
•Board of Commissioners shall resolve on the
proposal within 20 days
•If the proposal is not accepted, the decision
must be justified

8. Dueprocessduringinvestigations
INDEPENDENT
DECISION-
MAKER
•Investigative Authority conducts the
investigation stage
•The Board of Commissioners resolves the
procedure
BASIC PRINCIPLES

RIGHT OF
DEFENSE
•Notificationof the preliminary opinion
•Access to file for economic agents with legal
interest
•Evidence and arguments stage
•Proposal of suitable and feasible measures
•Interviews with Commissioners
JUDICIAL
REVIEW
•Decisionsmaybechallengedthroughan
indirectwritofamparo
•Indirectwritofamparocarriedoutby
specializedcourts
•Ordersfordivestitureandfines,notexecuted
untiltheindirectwritofamparoisresolved