Recently, COFECE's Merger Notification Guidelines were modified to include, among others, more information for the notification of joint ventures that could imply a concentration in terms of the Federal Antitrust Law ("FECL").
It also clarifies issues related to who are obliged to notify a concentration when it involves diverse buyers, and certain clarifications regarding the calculation of the pre-merger thresholds set forth in the FECL.

The Guidelines clarify certain issues regarding the procedure of a merger before COFECE. However, the content of the Guidelines is not binding for COFECE; thus, it should only be used as a tool to facilitate the analysis of the concentrations and their notification before COFECE.
In this update to the Guidelines, COFECE added elements that it considers in its merger review to clarify: 1) certain matters pertaining Joint Ventures and their notification to COFECE; 2) issues related to the calculation of pre-merger thresholds; 3) who is required to notify a merger involving multiple purchasers;  4) what information must be submitted to raise the argument of a distressed company; and 5) aspects related to the meaning of the concept of control.

Given that in some cases the Joint Ventures may have elements that can be equated to a concentration, the Guide provides more information so that economic agents can distinguish them and know which and when they must be notify them to COFECE.

Such is the most relevant item on the update to the Guidelines since COFECE establishes the following elements are to be considered to determine if we are in the presence of a Joint Venture subject to a pre-merger filing before COFECE:

1.	Term;
2.	Independence; and 
3.	Scope.

Additionally, it lists the following types of Joint Venture:

•	Consolidation of activities.
•	Creation of network systems.
•	Consolidation of production activities.
•	Joint distribution and/or joint marketing.
•	Purchasing clubs.
•	Research and development.

For the cases of concentrations involving distressed companies as target, the Guidelines recommend, among other things, to submit documentation that evidence the imminent risk that they could exit the market in the immediate future or that there are no solutions other than the concentration to mitigate their financial problems. The above, in order for COFECE to have a greater number of elements to take into account in the approval of the notified transaction.

If you have questions or require additional information regarding this communication, please contact Jose Ruiz (jose.ruiz@rapa.mx) and Néstor Velasco (nestor.velasco@rapa.mx).