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The federal judiciary council announces new measures for the activity of the federal courts during the days of may 6th to 31st, 2020.

Through General Agreements 8/2020 and 9/2020, the Plenary of the Federal Judiciary Council announced the measures to be observed during May 2020, adopted for restoring the activities of the courts of the Federal Judicial Power in the context of the current situation of the health contingency generated by the COVID-19 virus. These measures are the following:

  1. Processing and resolution of urgent cases.

New matters that are considered urgent may be promoted physically or through the “online trial”, using the electronic signature, which is the Certified Electronic Signature of the Federal Judicial Power (“FIREL”) or the “e.firma” (called before as “FIRMA ELECTRÓNICA AVANZADA” or “FIEL”).

Jurisdictional bodies must follow up with the matters they classified as urgent after its filing.

In case that an urgent matter is physically promoted, the judicial staff will encourage the parties to continue the process through the “online trial”, as far as possible.

  1. Resolution of cases physically processed.

The resolution of the matters that have been processed in person will be resumed only when the emission of the final judgment or resolution is pending.

  1. Processing and resolution of cases presented through “online trial”.

The process and resolution of the matters that were presented through the “online trial” before the beginning of the health contingency will be reestablished, except those that require the physical presence of the parties for the holding of hearings, relief of proceedings, or the practice of personal notifications.

  1. Suspension of deadlines and terms.

There will not be procedural deadlines and terms, no hearings or proceedings will be held, in the case of (i) requests, demands, appeals, trials, and procedures in general, other than the cases mentioned above, and (ii) the appeals against the judgments and resolutions issued in physically.

  1. Urgent Cases.

General Agreement 8/2020 contains a non-limiting list of matters that must be classified as urgent, in particular the exercise of criminal action with a detainee, requests for a search warrant and the intervention of private communications, the qualification of arrests, links to process, extradition determinations, proceeding for the determination and execution of pre-liberal benefits and those relating from the Amnesty Law, protection against determinations on alimony, protection against determinations on precautionary measures in cases of domestic violence, protection related to acts that affect the superior interests of minors, precautionary measures in bankruptcy proceedings, and declarations of the non-existence of a strike.

In general, judges must classify a matter as urgent, considering the following: (i) the human rights object of the procedure, the significance of its eventual violation, and the consequences that may arise from postponing its procedure until the conclusion of the contingency, and (ii) the possible impacts on access to economic and social rights of groups and populations in a particularly vulnerable situation, such as rights related to their health.

  1. Ordinary sessions of the Collegiate Circuit Courts.

The session lists will be published timely on the website of the Federal Judicial Council.

The sessions will be carried out without the presence of the public, remotely, by videoconference, and will be stored and protected for subsequent consultation.

The meaning and observations of each Magistrate shall be stated in a report, as well as the characteristics of the session.

The parties may consult the register of the session once the resolution has been notified.

  1. Attention to cases in criminal matters additional to urgent ones.

In matters not classified as urgent, the jurisdictional bodies must: (i) process the decisions that do not require hearings, (ii) process the decisions that require hearings that imply danger to the life or integrity of people, seeking their release through videoconference, (iii) process the matters whose processing is integrated for its resolution, and (iv) practice the procedural actions that may be decided in writing and that allow the resolution of execution files.

Examples of these cases are requests for provisional release under bond and protection in which the seizure of the real estate that constitutes the home of the complainant.

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US Manufacturers address letter to the president of México to protect supply chainsus manufacurers

Several U.S. companies, members of the National Association of Manufacturers, dedicated to the manufacturing of different supplies in Mexico addressed a letter to President Andrés Manuel López Obrador on April 22, 2020, in which they expressed their concern in connection to the latest decrees that have been issued by the Ministry of Health and state governments that have resulted in the inability of such companies to operate their essential manufacturing facilities, as well as those of their suppliers. This, in detriment to their ability to deliver essential supplies (such as the resources required by health professionals, among others, to deal with the COVID-19 pandemic), both for Mexican citizens and for the inhabitants of the rest of North America.

In this regard, the letter urges Mexico to recognize and standardize the criteria to determine if a manufacturer can be considered essential and critical, pursuant to the guidelines issued by the U.S. Department of Homeland Security’s Cyber Security and Infrastructure Agency (CISA), to the maximum extent possible. This would ensure the continuity of operations for producers of essential supplies, while reducing the disruption to the manufacturing supply chain of the production industry in North America.

Finally, the companies ensure their commitment to the safety and health of their employees, and in general, of the Mexican community, and have therefore implemented practices such as distancing and the use of protective equipment.

In Acedo Santamarina we continue advising our clients on their cross-border operations as well as in the adoption of the necessary measure to address the health emergency caused by the COVID-19 virus.

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Extension of the term to file the assets and interests’ declaration for public servants

The Ministry of Public Function (“MPF”) issued an Agreement published in the Federal Official Gazette on April 22, 2020 (the “Agreement”), by which the deadlines provided in article 33 of the General Law of Administrative Responsibilities (“GLAR”) are extended, in order to file the assets and interests’ declaration for the year 2020, due to the prevention and containment measures of the spread of the disease generated by the SARS-COV2 coronavirus (COVID-19).

Prior to the analysis of the aforementioned Agreement, it is advisable to indicate the legal basis of the obligation that public servants have to file their assets and interests’ declaration in accordance with the GLAR, as well as the deadlines in which they must be filed, as indicated in articles 32 and Fractions I, II and III of article 33 thereof, which are transcribed below:

Article 32. All the Public Servants will be obliged to file their assets and interests’ declaration, under oath and before the corresponding Ministry or their respective internal Control Body, in the terms provided in this Law. Likewise, they must present their annual tax declaration, in the terms provided by the relevant legislation.

Article 33. The assets declaration must be file d within the following terms:

  1. Initial declaration, within sixty calendar days after taking office when:
  2. Entering the public service for the first time;
  3. Re-entry to the public service after sixty calendar days from the conclusion of his last assignment;
  4. Asset declaration due to modification, during the month of May of each year, and
  • Declaration of completion of the position, within sixty calendar days following the conclusion.

Based on the foregoing, Article One of the Agreement extends the deadline for the submission of the assets and interests’ declaration in terms of section II of article 33 of the GLAR, until 31 of July 2020, for all public servants of the Federal Public Administration, including those who must file them for the first time. This, notwithstanding the measures that the health authority established to mitigate and control the health risks implied by the disease generated by the SARS-CoV2 virus (COVID-19).

Likewise, the Second Article of the Agreement establishes that the assets and interests’ declarations in its “initial” and “conclusion” modalities, in the Federal Public Administration, will continue to be filed within the terms established in article 33, sections I and III of the GLAR, and thus, it is worth considering that will resume upon the conclusion of the suspension of activities under the jurisdiction of the MPF (this is, from March 23 to April 17, 2020), considering the current suspension of MPF activities in term of certain agreement dated March 27, 2020.

From the foregoing, we can conclude that public servants are obliged to file their initial assets and interests’ declarations within sixty days after taking office; considering the current suspension of activities and terms that will resume on April 18, 2020.

Regarding the declaration of patrimonial modification, the public servants who are obliged to file it, including those who must present it for the first time, must do so no later than July 31, 2020.

Regarding the Declaration of completion of the commission, the public servants who are obliged to file it within sixty calendar days following the conclusion; resuming the computation of said term on April 18, 2020, date in which the MPF, will resume the computation of its terms and terms.

The lack of presentation of the assets and interests’ declaration by the public servants is considered a non-serious administrative fault, in terms of the provisions of article 49 section IV of the GLAR, and may imply some of the following sanctions, by the MPF or the internal control bodies: a) Public or private warning; b) Suspension of employment, position or commission; c) Dismissal of your job, position or commission; d) Temporary disqualification to hold jobs, positions or commissions in the public service and to participate in acquisitions, leases, services or public works.

The corresponding Ministry and the internal control bodies may impose one or more of the administrative sanctions if they are compatible with each other and in accordance with the significance of the non-serious administrative offense.

The suspension of employment, position or commission that is imposed may be from one to thirty calendar days. If the temporary disqualification is imposed as a sanction, it shall not be less than three months, nor may it exceed one year.

Taking into account that the matter of responsibility of public servants is concurrent, it would be necessary to analyze the legislation of each federative entity with respect to the presentation of the declaration of patrimonial situation and interests of local public servants, in order to determine if there are provisions other than the aforementioned, for the purposes of fulfilling said obligation.

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Extension to file annual income tax return

According to Article 150 of the Mexican Income Tax Law all residents receiving income during the calendar year are required to file an annual tax return no later than April 30th, of the succeeding year.

However, due to the evolving COVID-19 outbreak in Mexico many business associations, professionals and the international community requested to the Federal Government tax measures in order to mitigate the financial impact of the pandemic.

Therefore, on April 22nd, 2020, the Mexican tax authority (“Servicio de Administración Tributaria”) published on its internet site the fourth advance version of the First Resolution on Amendments to the Fiscal Miscellaneous Resolution, in which rule 13.2. was incorporated, allowing individuals to file their 2019 annual tax return no later than June 30th, 2020.

This measure aims to facilitate tax collection and encourage taxpayers to complete via online these proceedings.  At the moment of the elaboration of this report, the rule at hand has not been published on the Federal Official Gazette.

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Modification of the Agreement that establishes extraordinary actions to address the health emergency generated by the SARS- CoV2 virus (COVID-19)

On April 21, 2020, the “Agreement modifying the similar one that establishes extraordinary actions to address the health emergency generated by the SARS- CoV2 virus, published on March 31, 2020” was published in the Federal Official Gazette (the “New Agreement”).

The Agreement of March 31 (the “First Agreement”) ordered the immediate suspension of non-essential activities from March 30 to April 30, 2020, in order to reduce the spread of the virus in the community. In this sense, the Agreement published on April 21, 2020, by means of an amendment to section I of Article One of the First Agreement, extends the “Jornada Nacional de Sana Distancia” from March 30 to May 30, 2020, the period in which non-essential activities will remain suspended.

Likewise, Article Three was added to the First Agreement, which states that extraordinary actions to address the health emergency generated by the COVID-19 virus will cease on May 18, 2020 in municipalities where there’s low or nonexistent transmission of the virus at such date. The Federal Health Ministry will define the criteria to evaluate the intensity of the transmission of the COVID-19 virus. In addition, such Ministry will indicate the guidelines for the reduction of mobility in municipalities with a different degree of propagation. Regardless of the intensity of transmission in each municipality, the measure to protect people within the risk groups will be maintained.

Further on, a Fourth Article was added, which establishes that the Federal Health Ministry will adapt the epidemiological surveillance system, and other information systems, as it considers necessary to achieve surveillance of the demand and availability of hospital services at the second and third levels of medical care, as well as of patients who are seriously ill due to the COVID-19 virus.

Likewise, Article Five was added, which mentions that local governments should (i) keep updated the daily report of occupation, availability and care for Severe Acute Respiratory Infection (IRAG, as per its Spanish abbreviation) and any other report that the Federal Health Ministry may indicate, (ii) implement prevention and control measures according to the general criteria issued by the Ministry, and in accordance with the magnitude of the epidemic, (iii) establish and implement mechanisms leading to the reduction of mobility of inhabitants between municipalities with different levels of spread, according to the criteria established by the Ministry of Health, to achieve this end, the Federal Public Administration agencies may assist the state, and (iv) within the scope of their competence, guarantee the implementation of these measures, and inform the Health Ministry of their follow-up, with the periodicity established by the Ministry.

Finally, the local governments, in their capacity as health authorities, and the members of the National Health System that provide health services in each state, must execute and supervise the plans for hospital conversion and expansion to guarantee health care for the population for COVID-19 disease, as well as for any other need for care, as indicated in Article Six, which was also added.

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Measures implemented by COFECE in light of the contingency caused by COVID-19

On March 27, 2020, the Federal Economic Competition Commission (“COFECE” – as per its Spanish abbreviation) established its position by means of a press release, regarding the application of the Federal Economic Competition Law (Ley Federal de Competencia Económica) in the context of the health emergency resulting from the pandemic generated by the COVID-19 virus. In this announcement COFECE states that collaboration agreements between economic agents will not be prosecuted, whether they are vertical agreements or agreements between competitors.

COFECE specifies that this measure will be maintained in the current context, with respect to such agreements ” for maintaining or raising supply, satisfying the demand, protecting the supply chain and avoiding the shortage or hoarding of goods”.

COFECE, however, clarified that the measures are applicable to any collaboration agreement, nevertheless, it pointed out those characteristics that could cause a collaboration agreement to be considered as a concentration, this is: (i) the duration of said agreements, since concentrations are generally designed to have permanent or long-term effects; (ii) the determination of whether the agreement involves the creation of a new economic agent, and whether this agent is independent of the shareholders in the decision-making process; (iii) the scope of the agreement in the sense that the economic operators entering into the agreement must maintain a competitive constraint that is exercised on all other activities outside the agreement and that the exchange of information must be limited to the agreement alone, in particular regarding competitors; and, finally, (iii) the levels of competitive pressure exercised by the parties to an agreement.

Due to the abovementioned, the COFECE reaffirms the responsibility of the economic agent involved in an agreement that meets the characteristics described above (pursuant to the thresholds established by the law), to determine whether the agreement could be considered a concentration, in which case it must be notified before COFECE so that the commission issues the corresponding resolution.

Additionally, COFECE mentions that the increases or setting of prices must be an individual and independent decision of each company. However, they are committed to review the markets where indiscriminate price increases are observed in order to assess and rule out that the causes of such increases are not a result of undue barriers or arrangements between competitors, and in such case, to initiate an investigation proceeding.

In addition, COFECE will expedite the review of filed concentrations to create synergies and contribute to the increase of production capacities for satisfying the demands derived from this crisis.

Finally, COFECE also warned that any agreement between competitors with the object or effect of manipulating or fixing prices, reducing supply or segmenting a market will be analyzed as an absolute monopolistic practice and, in such, should be subject of an investigation.  In each case, the Investigating Authority of COFECE will be aware of the intention of such agreements and, consequently, the economic agents must report them, assuring that it is temporary and aimed at addressing the situation derived from the COVID-19 pandemic, so that the Investigative Authority, in the shortest time possible, conducts the corresponding analysis and, if it is the case that, in effect, the agreement does not have as its main or preponderant object to fix or manipulate prices, reduce supply or allocate the market in detriment of consumers, inform the applicant that such conduct will not be investigated during the contingency.

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Suspension of jurisdictional activities is extended

As a result of the Resolutions reached in the meetings held on April 13, 2020, the Supreme Court of Justice of the Nation, the Council of the Federal Judiciary, the Federal Court of Administrative Justice and the Council of the Judiciary of Mexico City, decided to extend the suspension of jurisdictional activities that were originally set up until April 19, 2020, declaring as non-working the days from April 20 to May 5, 2020.

This extension was made with the purpose to be consistent with the “Resolution declaring the epidemic disease caused by SARS-CoV (COVID19) virus, as a health emergency due to force majeure”, and the  “Resolution establishing extraordinary actions to attend the health emergency caused by the SARS-CoV-2 virus”, both published in the Official Gazette of the Federation on March 30 and 31, 2020, respectively, where the suspension of non-essential activities was ordered to take place from March 30 to April 30, 2020, for reducing the dispersion, transmission, disease burden, complications, and deaths, that may be caused by the COVID-19 virus in the national territory.

Considering that the public service for the administration of justice is an essential function, the authorities adopted the necessary measures to maintain the operation of the courts giving priority only to urgent cases. For example, in the Resolution of the Federal Judicial Council, are considered as urgent cases, the execution of arrest warrants or freezing of bank accounts and matters in which people health or physical integrity is endangered.

Finally, the Resolutions of the Supreme Court of Justice of the Nation and the Federal Court of Administrative Justice refers to the possibility of holding the sessions that may be necessary, remotely, through the use of technological tools.

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