Today, everything revolves around digitisation: every company is transforming itself into a digital service or platform, every business is trying to participate more and more in e-commerce through its own or third-party platforms, and new large businesses are being created as digital platforms.
Increasingly, the digital world and technological tools are defining the way in which society informs itself, comparing and making decisions to purchase products and services, and generating new forms of interaction between suppliers and consumers with rules that are very different from the dynamics of traditional markets, while production processes are integrated and become dependent on technologies and telecommunications. Today, cloud computing, big data, the internet of things and artificial intelligence have disruptively transformed various sectors and industries and, while they have generated lower costs and brought many benefits for consumers, they also raise new challenges to protect and promote innovation, the process of competition, the protection and privacy of personal data and the protection and promotion of freedom of speech and access to information.
Digital markets are dynamic, with abrupt changes, high levels of concentration and a convergence between traditional models and innovative models that are little or not regulated at all, which call into question traditional concepts and tools, ranging from techniques to define a relevant market to the application of the SSNIP test, particularly in the case of ‘multi-sided’ markets.
In Mexico, as in the rest of the world, digital platforms are technologies that are creating spaces for aggregating content and services, connecting users (in this case, consumers with producers or providers) through communication, carrying out transactions (such as buying and selling products or services) or sharing information.
Although competition authorities are working to ensure competition in digital markets, based on the technical knowledge required and the constant evolution of the digital economy, it is difficult to apply traditional competition laws and economic principles to this sector. This represents a continuous challenge as competition authorities not only face technical difficulties, but also geographical problems due to the global scope of digital economies, which requires cross-border cooperation between different competition authorities.
In line with the above, this Chapter seeks to address and set forth some of the challenges faced by the Mexican antitrust authorities, particularly the Federal Economic Competition Commission (COFECE) and the Federal Telecommunications Institute (IFT) (the Mexican Antitrust Authorities), as well as the criteria upheld by the Mexican Specialised Courts over the past few years. This Chapter will also highlight some of the key cases that have been analysed by the Mexican Antitrust Authorities regarding digital markets in recent years.
Both Mexican Antitrust Authorities have undergone a number of successful cases in digital enforcement in the last couple years, as described below. However, we would like to highlight a challenge that may not be common in other jurisdictions given Mexico unique situation: unlike in other jurisdictions, antitrust and competition matters in Mexico have a peculiarity, namely there are two different competition authorities with equal hierarchy, responsible for the enforcement of the same law.
Pursuant to Article 28 of the Political Constitution of the United Mexican States (the Mexican Constitution), COFECE is an autonomous agency, with legal personality and assets of its own, whose purpose is to guarantee free and open competition and access to the markets, as well as to prevent, investigate and prosecute monopolies, monopolistic practices, unlawful concentrations and other restrictions to the efficient functioning of the markets. Likewise, in accordance with this article, the IFT is also an autonomous agency, with legal personality and its own assets, whose purpose is to guarantee free market access and economic competition, but exclusively in the broadcasting and telecommunications sectors.
By virtue of the above, the IFT is the authority with exclusive powers in the broadcasting and telecommunications sectors, while COFECE is the authority with exclusive powers in the rest of the sectors. Although this distinction seems, in principle, simple, it has generated doubts and jurisdictional conflicts between both authorities on several occasions, including two in the past two years (one in 2020 and one in 2021) in the case of digital markets and platforms.
It should be noted that the Federal Economic Competition Law (the Mexican Competition Law) provides in its Article 5 a procedure in case there is a competition conflict between the Mexican Antitrust Authorities; that is, if either of them (or neither) accepts jurisdiction over a certain matter or case. That Article states the following:
When one of the entities mentioned in the previous paragraph [IFT or COFECE] has information that its counterpart is processing a matter under its jurisdiction, it shall require the submission of the corresponding file. If the requested entity acknowledges its own lack of jurisdiction to resolve in a given case, it shall submit the file, within the following five days after receiving the request. In case the entity considers that it has jurisdiction in a given case, it shall notify the requesting entity of its resolution in the same period, suspending the procedure and submitting the file to the specialized Federal Collegiate Circuit Court in Economic Competition, Broadcasting and Telecommunications, which shall resolve on the jurisdictional issue within a period of ten days.
In case one of the entities mentioned in paragraph one of this article is processing a matter and considers it lacks the jurisdiction to resolve it, said entity shall submit the corresponding file to the other entity within the following five days. If the latter accepts it has jurisdiction, it shall further undertake the procedure of the case, on the contrary, within the following five days, it shall notify the entity that it has declined jurisdiction of the case and submit the file to the specialized Federal Collegiate Circuit Court in Economic Competition, Broadcasting and Telecommunications, which shall resolve on the jurisdiction issue in a period of ten days.
To date, there have only been four jurisdictional conflicts between the Mexican Antitrust Authorities resolved by the Specialised Courts, of which only the last two have been related to digital markets. The first case was related to a merger between Uber and Cornershop, whereas the second case involved an investigation into barriers to entry and essential facilities in the markets of online search services; social networks; mobile operating systems; and cloud computing services. Both cases are detailed below.
This merger control case involved app-based transportation application or ride-sharing app Uber acquiring Cornershop, a home shopping and delivery application for supermarkets and local retail stores (grocery shopping app).
The parties initially submitted the pre-merger filing with COFECE; however, the IFT considered itself to have jurisdiction over the case and to analyse the transaction and, since both Mexican Antitrust Authorities considered themselves to have jurisdiction, the case was forwarded to a Federal Circuit Court as provided for in the Mexican Competition Law.
The IFT considered, essentially, that it had jurisdiction over the transaction since both Uber’s and Cornershop’s activities were carried out through digital platforms and through internet signals, which, according to the IFT, were a part of the telecommunications sector and, consequently, the scope of jurisdiction corresponds to the IFT and not to COFECE.
On the contrary, COFECE argued the transaction fell under its jurisdiction, arguing that Uber’s and Cornershop’s services related to the intermediation and logistics services, that are not part of the telecommunications and broadcasting sector. COFECE also considered that, although Cornershop and Uber use the internet to provide their services, their economic activities (i.e., intermediation) is independent from the internet and does not impact in any way, the telecommunications sector.
The case was assigned to the First Collegiate Circuit Court in Administrative Matters, specialised in Economic Competition, Broadcasting and Telecommunications (the First Specialised Court), which, after a long analysis of over six months, ruled in favour of COFECE. The First Specialized Court agreed with COFECE in the sense that ‘the underlying economic activity remains the same, regardless of the channel used [in this case, the internet] for the commercialization of the product or service in question, and that a comprehensive assessment must be made to identify the competitive dynamics with traditional businesses in order to determine which is the competent Mexican Antitrust Authority.
This case represented the first merger between platforms ever reviewed and cleared unconditionally by COFECE.
Investigation into barriers to entry and essential facilities
The second jurisdictional conflict between COFECE and the IFT involving digital platforms derived from an investigation initiated by the IFT to identify barriers to entry or essential facilities in the markets of online search services; social networks; mobile operating systems; and cloud computing services.
The IFT initiated the investigation considering that there seemed to be a lack of effective competition conditions in these markets owing to several reasons, including: there has been a reduction in the number of competitors within some of the investigated markets because of a generalised practice of purchasing companies that represent a potential threat (also known as killer acquisitions); and there is a high degree of concentration in hands of very few economic agents.
When COFECE became aware of the IFT’s investigation, it requested the IFT to forward the investigation, arguing that these markets were not related to the telecommunications and broadcasting sectors and that the use of the internet was not sufficient to grant jurisdiction to the IFT, as this would mean an improper extension of its original jurisdiction. The IFT, in turn, rejected the request arguing that the internet fell under its jurisdiction based on its constitutional purpose, which is the efficient development of telecommunications and broadcasting, for which it holds the responsibility of the regulation, promotion and supervision of, among other things, access to active and passive infrastructure and other essential inputs. In this regard, the IF stated that broadband and transition towards internet protocol networks favoured an integration and interconnection of markets that – before – were considered not-connected.
As the Mexican Antitrust Authorities did not reach an agreement., the case was sent to the First Specialised Circuit Court.
In its ruling, the First Specialised Circuit Court agreed with COFECE that jurisdiction over online search services, social networks and cloud computing did not require the use or exploitation of spectrum frequencies related to telecommunications and broadcasting, and the main players in these markets were not active in either telecommunications nor broadcasting. Further, the First Specialised Circuit Court also mentioned that, although the operation of digital platforms involves specialised techniques and technological complexities that IFT is competent to know, the nature of the underlying economic activities must be considered as well (as determined in the Uber and Cornershop pre-merger filing) and, therefore, COFECE should have jurisdiction to deal with such markets.
Regarding jurisdiction over mobile operating systems, the First Specialised Circuit Court ruled, in summary, that, in accordance with the Mexican Federal Telecommunications and Broadcasting Law, the IFT has the authority to issue technical guidelines regarding the infrastructure and equipment connected to telecommunications networks, as well as in matters of homologation and conformity assessment of such infrastructure and equipment. Therefore, the First Specialised Circuit Court noted the necessary link between operating systems and mobile equipment with public telecommunications and broadcasting services and, in consequence, determined that the IFT should have jurisdiction over the market of mobile operating systems.
Both jurisdictional conflicts represented the first precedents involving multisided markets or platforms since, prior to this case, there was no clarity as to which of the Mexican Antitrust Authorities had jurisdiction to review and analyse matters involving these markets and industries, and private parties had to conduct their own assessment and, in many instances, guess what the Mexican Antitrust Authorities’ position would be regarding a given market. In other words, although both Mexican Antitrust Authorities have conducted investigations into digital markets in the past, this is the first investigation expressly aimed at digital platforms.
Although each case has its particularities and may differ from one another, these precedents serve as a guidance for future transactions, allowing the parties involved to focus on the markets being impacted by their activities, rather than on the inputs being used to conduct such activities.
In terms of investigations into digital market, both Mexican Antitrust Authorities have been more active, including through several ex officio investigations and market probes.
Specifically, COFECE has conducted an investigation for potential relative monopolistic practices (abuse of dominance) in the market of e-commerce platform services in Mexico (COFECE informed that this was the first time an investigation on digital markets was opened in Mexico); a market probe to determine the existence of barriers to entry or essential facilities in the market of payment services which involve compensation of payments through debit and credit cards; and a market study related to the retail of food and beverages.
Similarly, the IFT (in addition to the barriers investigation that gave rise to the jurisdiction conflict explained above) initiated a probe into potential abuse of dominance in the market of production, distribution and commercialisation of content transmitted through internet (streaming), as well as in the distribution and commercialisation of streaming devices.
On the other hand, COFECE has also analysed merger control cases involving digital markets (even if not mergers between two platforms). In this regard, one of the first transactions in which COFECE had the opportunity to analyse digital platforms was the proposed concentration involving Cornershop and Walmart, where COFECE ultimately blocked the deal, considering it ‘could generate incentives to unduly displace or impede the access of other competitors to the Cornershop platform and/or hinder the development of new platforms’.
Another important merger analysed by COFECE in 2020 was the acquisition by Despegar.com over BestDay (both online travel agencies). This case involved the first in-depth review of a transaction between relevant online travel agencies in Mexico, which required COFECE to analyse markets that had not been previously subject to a detailed assessment and analysing the interrelation of the relevant players in both channels (online and offline). After a seven-month in-depth review, COFECE ultimately cleared the transaction without imposing any remedies.
As a consequence of the investigations and merger control cases mentioned above, in 2020, COFECE created General Direction of Digital Markets to advance in the analysis of the digitalisation of the Mexican economy and to exercise more effectively its authority. According to COFECE, ‘this new unit is part of COFECE’s Digital Strategy, a document that defines the actions to be implemented by COFECE to successfully address its analysis and research in digital markets.’ Further, COFECE has also published studies such as COFECE Digital Strategy (Estrategia Digital COFECE), where it has expressed its position, work and concerns in digital markets.
On the other hand, IFT has also undertaken several efforts to address and analyse the digital economy and digital markets. In this regard, it has published different studies related to the digital economy (for instance, Performance of Market Indicators and the Digital Economy) and has also organised different roundtables inviting different panellists and experts in the field to discuss the impact that these markets have had on the telecommunications and broadcasting sectors.
In summary, the Mexican Antitrust Authorities have made significant efforts in recent years in relation to digital markets. However, in doing so, one of the biggest challenges for Mexican Antitrust Authorities has been to adapt to the new way of analysing mergers related to digital markets and learn to analyse:
- the possible indirect network effects;
- economies of scale;
- multi-homing and its effects on the competitive dynamics in terms of the possibility of users to use multiple platforms simultaneously to analyse their best choices;
- the impact of big data;
- the relationship between the different sides of a platform; and
- the relevance of market shares in rapid-changing markets, among other particular characteristics of these markets.
Likewise, the Mexican Antitrust Authorities should try to be as expeditious as possible when analysing and resolving transactions involving digital markets, since they usually involve new economic agents, in many cases, creators of a new market. It is also very important to emphasise that lengthy antitrust analysis discourages, on the one hand, innovation and on the other hand, the investment of private equity funds in these new projects, which, in many instances, is essential for the development of an emerging business.
The Mexican Antitrust Authorities must take into account the dynamism of digital markets, in which conditions can change abruptly, and consider that blocking transactions involving nascent markets because a direct application of traditional tools can also slow innovation and investment, and negatively affect the growth and expansion of new products and services that result from the combination of business models, strategies and technologies, which, in many instances, increase competition and benefit consumers.
In conclusion, the Mexican Antitrust Authorities, as in other jurisdictions, will continue to face different challenges related to the digital economy and its markets, and will have to adapt to the dualism of adapting traditional markets and these new digital markets. The tools they develop and the criteria they define will shape the competitive landscape in digital markets for years to come and will either foster competition and innovation or become barriers for the expansion and development of businesses.
The Mexican Antitrust Authorities will have to continue to try to understand these markets and perform the best possible analysis in the shortest possible time. We believe that, despite having provided precedents as to which Mexican Antitrust Authority is the competent authority in digital markets, companies will continue to face uncertainty on jurisdictional issues in Mexico, which may cause delays when cases go to court. Hence, Mexican Antitrust Authorities should also devote their best efforts to reach agreements before going to court to avoid causing unnecessary delays; likewise, circuit courts should bear in mind that monthly delays to decide jurisdiction may end up killing a deal and increasing transaction costs unnecessarily, which also weakens Mexico’s position as an attractive market for innovation, owing to bureaucratic issues.
1 Carlos Mena Labarthe and Jorge Kargl Pavía are partners, and Regina Esparza Fregoso is an associate at Creel García-Cuéllar, Aiza y Enríquez, SC.
2 ‘Small but Significant Non-Transitory Increase in Price’.
3 First Collegiate Court in Administrative Matters, specialized in Economic Competition, Broadcasting and Telecommunications. C.C.A. 4/2019. Public Version available at: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1304/13040000260354650018016.doc_1&sec=Victor_Hugo_Figueroa_Carro&svp=1.
4 Comisión Federal de Competencia Económica, COFECE probes the market of e-commerce platform services in Mexico, file number IO-002-2017, 1 February 2018, available at: https://www.cofece.mx/wp-content/uploads/2018/02/COFECE-06-2018-COFECE.pdf.
5 Comisión Federal de Competencia Económica, COFECE investigates possible barriers to Competition and/or essential inputs in card payment systems, file number IEBC-005-2018, 26 October 2018, available at: https://www.cofece.mx/wp-content/uploads/2018/11/COFECE-047-2018-English-.pdf.
6 Comisión Federal de Competencia Económica, COFECE initiates market study in retail food and beverage sector, file number REC-001-2019, 20 May 2019, <https://www.cofece.mx/wp-content/uploads/2019/05/COFECE-031-2019-English.pdf>;.
7 Comisión Federal de Competencia Económica, COFECE, Press Release COFECE-032-2019. https://www.cofece.mx/cofece-resolvio-no-autorizar-la-concentracion-entre-walmart-y-cornershop/.
8 Comisión Federal de Competencia Económica, COFECE, 15 Relevant Actions 2020 (15 Acciones Relevantes 2020), https://www.cofece.mx/wp-content/uploads/2021/01/15del20-VF.pdf.
9 Comisión Federal de Competencia Económica, COFECE, Estrategia Digital COFECE https://www.cofece.mx/wp-content/uploads/2020/03/EstrategiaDigital_V10.pdf.
10 Instituto Federal de Telecomunicaciones. Comportamiento de los Indicadores de Mercado y la Economía Digital, http://www.ift.org.mx/sites/default/files/contenidogeneral/transparencia/Cindicadores2020.pdf.