Federal Economic Competition Commission publishes extracts from (i) Preliminary Opinion by which it preliminarily determines that there are no conditions competition in the digital Marketplace service markets for Sellers and Buyers; and (ii) Resolution by which the absence of conditions of effective competition in the Marine Transportation Service for Passengers and Cargo on the Pichilingue-Mazatlán and Pichilingue-Topolobampo routes is determined.

By Marco Antonio Tena

The Federal Economic Competition Commission (Cofece) published in the National Official Journal on February 13, 2024 the “EXTRACT of the Preliminary Opinion of File IEBC-001-2022, issued on February 6, two thousand and twenty-four” ( the “Preliminary Opinion IEBC-001-2022”), and, respectively, on February 14, 2024, the “Relevant INFORMATION of the Resolution issued in file DC-001-2022 by the Plenary Session of the Federal Economic Competition Commission” (“Resolution DC-001-2022”).

1. Preliminary Opinion IEBC-001-2022

Cofece determined, preliminarily, the absence of conditions of effective competition in the marketplaces service market (digital platforms for home order deliveries) for Sellers (“Relevant Seller Market”) and Buyers (“Relevant Buyer Market”). “) due to the possible existence of three barriers to competition in said market at the national level.

Cofece, as the Investigative Authority, warned in terms of article 59 of the Federal Economic Competition Law (LFCE) (i) that said markets are concentrated by Servicios Comerciales Amazon México, S. de R.L. of C.V. (Amazon) and MercadoLibre, S.A., de C.V., Institución de Fondos de Pagos Electrónicos (Mercado Libre) bring together the largest market shares up to more than 85% on the IHH scale for the Relevant Seller Market and 61% in the Relevant Buyer Market, (ii) the existence of strong network effects that constitute a barrier to entry for new participants, (iii) the existence of barriers to entry due to the high amount of investment for the marketplace and the development of technological tools such as the Buy Box, (iv) barriers to entry in relation to high advertising and marketing costs, (v) little pressure from other competitors and (v) little pressure from other competitors and (vi) the existence of the imposition of price parity clauses in their terms and conditions for sellers.

Cofece determined the existence of 3 barriers and corrective measures to address each one:

1. Barrier 1: Artificiality in some components of marketplace loyalty programs
   1. Measure 1.1: Disassociate streaming services from memberships and/or loyalty programs, as well as any other service that is not related to the use of the marketplace.
   2. Measure 1.2: stop promoting streaming services, as well as any other service that is not related to the use of the marketplace, in their marketplaces
2. Barrier 2: Opacity of the Buy Box (the technology used for the operation of offers and their positioning
   1. Measure 2.1: Order the companies of the Economic Interest Group to provide the information to implement 2.2. and 2.3.
   2. Measure 2.2: Seller information section in their Amazon portal
   3. Measure 2.3; Information section for sellers in their Mercado Libre portal
   4. Amazon and Mercado Libre must report the implementation of corrective measures.
3. Logistics solutions to the extent that sellers do not choose a logistics company.
   1. Modify Buy Box so that logistics agencies are not weighted as a weighting value for product sales.
   2. Allow logistics agencies to integrate into the Amazon and Mercado Libre platform through its API (Application Programming Interface)
   3. Modify the “PRIME” or “FULL” labels so that it is not preferred for sellers who contract logistics through Amazon or Mercado Libre.

2. Resolution DC-001-2022

The COFECE, as the Investigative Authority, resolved docket DC-001-2022, through which it determined the absence of conditions of effective competition in the Marine Transportation Service for Passengers (STMP) and Cargo (STMC) in the Pichilingue-Mazatlán and Pichilingue-Topolobampo routes. The above-mentioned represents 4 markets.

The Cofece determined, in terms of article 59 of the LFCE that there is a high degree of concentration of two participants in the STMP and STMC market for the two routes, without the differences in rates or tickets demonstrating conditions of competition, establishing the ability to set prices.

It also pointed out that there are barriers to entry and lack of access to sources of inputs, such as access to permits from the Ministry of the Navy, having a “Ro-Ro” type vessel, saturation in the Port of Pichilingue, and the lack of operational capacity. port to receive more providers.

The determination of the absence of competitive conditions will lead to an investigation for the possible commission of absolute and relative monopolistic practices.