14 Feb The Mexican Supreme Court of Justice issues an important precedent regarding the powers of the economic competition authority to access private communications.
After more than five years of litigation between the Federal Economic Competition Commission (“COFECE”) and a major Mexican airline, the Second Chamber of the Supreme Court of Justice of the Nation (“Supreme Court”) has established an important legal precedent regarding COFECE’s authority to Access, during dawn raids, to certain information and communications of economic agents as part of an antitrust investigations associated to their commercial activities.
The Supreme Court, determined that even if communications among competitors aiming to engage in illegal agreements take place through private means (such as personal email addresses), as long as such information or communications (i) are obtained by the competition authority by means of the exercise of its investigative powers, and (ii) relate to the commercial activity of the economic agents being investigated, it must be concluded that those constitute professional communications that go beyond strictly private matters and, therefore, are not protected by the constitutional right relating to the inviolability of private communications.
Assuming the contrary, this is, that information or documentation obtained during an antitrust dawn raid should be categorically considered private solely because it is stored on a personal device, personal email account, or personal phone, would create a broad zone of impunity, ultimately harming economic competition in detriment of consumers in Mexico and, ultimately, social welfare.
The Supreme Court’s ruling is highly relevant, since information or documents obtained through means that might initially appear or be deemed as private communications, in practice, those will be assessed within the context of the investigation and the competition authority’s powers, as well as with respect to the contents of the information, specifically concerning the commercial activity of the investigated economic agent.
Despite the above, judicial precedents previously issued in Mexico recognizing the attorney-client privilege should not be forgotten. This is important because the secrecy of communications between lawyers and their clients have a special protection as they constitute an essential factor in the right of defense of the economic agents. In this sense, an unlawful access by investigative governmental officers can lead to null and void investigations in addition to incurring into the infringement of fundamental rights that are protected by the Mexican constitution.
Therefore, it is important for companies to implement, review, update and strengthen their internal programs of integrity and antitrust compliance, with several objectives, including:
(i) To identify, prevent and mitigate risks of non-compliance with antitrust regulations,
(ii) To establish, in a language that is easy to understand by employees and members of each company, internal criteria and guidelines with respect to special scenarios, such as participation in industry chambers and business associations, implementing certain commercial strategies, among other topics, and
(iii) To proactively anticipate and define, in compliance with applicable legislation, do’s and don’t’s when receiving a dawn raid, identifying permitted actions and those that should be avoided, knowing the rights and obligations of economic agents when they are subject to an investigation of the antitrust authority (whether it is the current COFECE, or the future antitrust authority that will report to the Secretary of Economy).
Antitrust compliance policies cannot be kept static. They must be periodically revised and updated based on international trends, legal reforms, cases resolved, administrative and court precedents issued from time to time, as well as in accordance with the evolution of companies and the markets where they participate.
In Cuesta Campos we have several years of experience providing legal advice to companies to comply with economic competition laws and in designing and establishing customized antitrust compliance programs to prevent risks. Corporate policies and guidelines in these regards are not a one-size-fits all. They must be adapted to the realities of each company, industry, market power and market conditions, among other particularities of its operations, structure and stakeholders.
Contact
Azucena Marín
amarin@cuestacampos.com
Héctor Mercado
hmercado@cuestacampos.com
THE ABOVE IS PROVIDED AS GENERAL INFORMATION PREPARED BY PROFESSIONALS WITH REGARD TO THE SUBJECT MATTER. THIS DOCUMENT ONLY REFERS TO THE APPLICABLE LAW IN MEXICO. WHILE EVERY EFFORT HAS BEEN MADE TO ENSURE ACCURACY, NO RESPONSIBILITY CAN BE ACCEPTED FOR ERRORS OR OMISSIONS. THE INFORMATION CONTAINED HEREIN SHOULD NOT BE RELIED ON AS LEGAL, ACCOUNTING OR PROFESSIONAL ADVICE BEING RENDERED.