Antitrust Damages Recovery in Mexico: Embracing the Challenge

The Challenge

Since the establishment of a comprehensive legal framework for economic competition in Mexico in 1992, competition policy and its public enforcement have significantly evolved. However, effectively compensating individuals for damages and losses resulting from antitrust violations remains an important challenge. Although the Federal Economic Competition Law enacted in 1992 expressly contemplated private actions to claim damages caused by anti-competitive conduct, 30 years later, there have been only a limited number of initiated cases, with virtually no final ruling resulting in effective damage payments.

Unraveling the Cases

Only four cases involving antitrust damages claims have been clearly identified in México. An additional case acknowledged the relevance of publicizing the identity of antitrust offenders to facilitate redress actions. A detailed analysis of these cases up to 2018 can be found in the Organization for Economic Cooperation and Development (OECD) study titled “Individual and Collective Private Enforcement of Competition Law: Insights for Mexico.” Ongoing judicial proceedings and limited publicity have made it difficult to monitor the progress and initiation of new cases. Nonetheless, it is highly probable that one or more cases are in progress. Legal uncertainties and procedural obstacles have deterred redress actions. The OECD’s 2018 study offers specific recommendations that should be revisited.

Reviving the Public Agenda

Commissioner Andrea Marván, recently appointed President of the Federal Economic Competition Commission (COFECE) for a four-year term, has expressly acknowledged the significance of antitrust damage recovery in a comprehensive competition policy system. This view is also shared by recently appointed Commissioners Giovani Tapia and Rodrigo Alcáraz who also commented on this issue at an event organized by the Competition Commission of the ICC México on March 24, 2023. During her appearance at the Antitrust Law Spring Meeting 2023 Fireside Chat, Commissioner Marván emphasized the need for multiple tools to support and achieve effective deterrence of anti-competitive practices. She highlighted the potential of redress actions, both individually and collectively, in shaping Mexico's competition policy in the coming years. She noted that COFECE has the standing to initiate collective action for antitrust damages on behalf of consumers, and its exercise should be considered, along with exploring other actions to support proper damages compensation.

Striking the Right Balance

Acknowledging the impact of antitrust damages claims on incentives to apply for the Leniency Program, Commissioner Marván underscored the importance of dialogue with the private sector and civil society. She recalled the workshop held in Mexico this year with the ABA, where the implications of redress actions in connection to the Leniency Program were discussed. Collaboration with other jurisdictions and drawing from their experiences will be essential to foster this dialogue and achieve a balanced and effective competition policy.

The Road Ahead

Mexico is witnessing renewed interest in the debate surrounding antitrust damage recovery through private actions and the role of competition authorities in facilitating such actions. As Mexico embraces this challenge, global antitrust practitioners are presented with a compelling opportunity to participate in shaping the country's competition landscape.