Mexico - Global bribery offenses guide

What is the legal framework governing bribery in Mexico?

Bribery-related offenses in Mexico are mainly governed by:

• The Federal Criminal Code (Código Penal Federal) (FCC);
• The General Law of Administrative Responsibilities (Ley General de Responsabilidades Adminsitrativas) (GLAR); and
• The Criminal Codes of each of the Mexican states.

What is definition of Bribe under Mexican Law?

As provided under article 222 of the FCC, a bribe is committed when:

• a public official, either directly or indirectly, illicitly requests or receives for themself or for another person, money or any other benefit, or accepts a promise, to perform or fail to perform an act that is inherent to their job, position or commission as public official;
• a person gives, promises or delivers any benefit to a public official to perform or fail to perform an act that its inherent to their job, position or commission as public official; or
• a member of congress, when performing their duties during the process of approving the corresponding budget of disbursements (presupuesto de egresos), operates or requests any of the following:
  • the allocation of resources in favour of a public entity, demanding or obtaining for himself or herself or for another person, a payment, gift or consideration, in money or in kind, different from their salary as a public official; or
  • the execution of public works or service contracts in favour of certain individuals or companies.

Note: A bribery offense is also committed when any person handles or requests, on behalf of such congressman, the allocation of resources or the execution of public works or service contracts in the same terms described above.

As provided under article 222 bis of the FCC, a bribe is committed in connection with a foreign public official when:

• any person with the aim of obtaining or retaining, either for themself or for any other person, unduly advantages in the development or conduction of international commercial transactions, offers, promises or delivers, directly or indirectly, money or any gift, either in goods or services:
  • to a foreign public official, for their own benefit or the benefit of a third party, so that such official handles or refrains from handling the processing or resolution of matters related to their duties under their employment, position or commission;
  • to a foreign public official, for their own benefit or the benefit of a third party, so that such official handles the processing or resolution of matters that are not within their functions under their employment, position or commission; or
  • to any person so that they appear before a foreign public official to require or to propose to such official to handle or resolver any matter related to their authorities under their employment, position or commission.

A foreign public official is defined as any person with a job, position or commission within the legislative, executive or judiciary branch, or within any independent public body at any level of a foreign government, either appointed or elected; any person exercising his or her authorities for any authority, organism, state-owned company or company with state participation, of a foreign government; and any official or agent of an organism or international public organization.

As provided by the GLAR, a bribe is committed when:

• a public official demands, accepts, obtains or pretends to obtain, either directly or indirectly, on the occasion of his/her duties, any benefit not comprised within their salary, consisting in money; securities; assets or real estate; including any sale with a price that is remarkably under market value; donations, services; job offers and other unduly benefits for the public official or their spouse, relatives or third parties with whom the public official has professional, labour or business relations, or for partners or companies in which the public official is a partner; or
• a public official refrains from returning the excess in their payment according to the applicable rules, within 30 calendar days from reception of such payment.

Please note that the above-mentioned definitions derived from federal laws, and they may vary depending on each Mexican state’s legislation.

What are the principal bribery-related offenses under this legal framework?

• Potential bribery-related offenses under Mexican legislation are illicit enrichment, misappropriation, embezzlement, operations with illicit proceeds, misuse of authority, influence peddling, among others.

What is the jurisdictional reach of the legal framework?

The jurisdictional reach is limited to Mexico.

Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

Public officials can be prosecuted for bribery offenses under paragraphs I and III of Article 222 of the FCC, and under Article 52 of the GLAR.

Private individuals can be prosecuted for bribery offenses under paragraph II of Article 22 of the FCC.

A company and/or its administrators and/or representatives can be held liable under articles 421 to 425 of the National Code of Criminal Procedures (Código Nacional de Procedimientos Penales) (NCCP).

Can a parent company be liable for its subsidiary's involvement in bribery?

Liability is limited to the company (and its administrators and/or representatives) regarding crimes committed in its name, on its behalf, in its benefit or through any means provided by such company, and when it has been concluded that no due controls were in place by such company to prevent the bribe.

Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

Yes, under Mexican Law facilitation payments are considered bribery, no matter how small the amount is.

Does the legal framework restrict political and charitable contributions?

In Mexico, in principle, they are not allowed (for private commercial entities). Engaging in this conduct may constitute a crime in Mexico.

Additionally, political and charitable contributions could be considered bribery if they are given or received with the intention that the corresponding public official performs or fails to perform an act that is inherent to their job, position or commission as provided in article 222 of FCC and 52 of the GLAR.

Also, as provided under article 52 of the GLAR, a public official may not receive any benefit other than their salary.

Does the legal framework place restrictions on corporate hospitality?

Yes, a public official may not receive any benefit other than their salary. (GLAR Art 52 )

Are there any defenses for bribery offenses?

There are no specific statutory defenses for bribery offenses; however, Mexico follows the principle of presumption of innocence. Before being found guilty of a crime, a trial must be held in which evidence and arguments can be presented.

What are the key regulatory or enforcement bodies with regard to bribery?

• The bodies comprising the National Anti-Corruption System.
• The General Prosecutor's Office (Fiscalia General de la República).
• The Prosecutor's Office of each of the Mexican states.
• The local and federal judicial system, composed of supervisory judges, trial judges, magistrates, among others.

What are the legal consequences of being found guilty of bribery offenses?

Bribery may have criminal and administrative consequences.

Under the ECC:

• When the amount or value of the bribe does not exceed the amount equivalent to 500 times the Unidad de Medida y Actualización at the time of committing the bribe, or the bribe is not able to be valued, individuals may face between three months to two years' imprisonment and a fine.
• When the amount or value of the bribe exceeds the amount equivalent to 500 times the Unidad de Medida y Actualización at the time of committing the bribe, individuals may face between 2 to 14 years' imprisonment and a fine.
• Under no circumstances may the money or any other benefits be returned to the individuals found guilty or to the company(ies).
• Consequences to companies involved in bribery offenses, may consist of a fine, the suspension of activities, temporary disqualification, closure of branches, or even dissolution of the company, among others, considering the degree of knowledge or involvement of the corporate organs in the transaction or the damages caused or the benefits obtain by the company.

Under the GLAR (as per entities)

• Economic sanction.
• Temporary disqualification to participate in acquisitions, leases, services or public works.
• Suspension of activities.
• Dissolution.
• Compensation for damages caused to the federal, local, or municipal treasury, or to the assets of public entities.

Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

Mexican Criminal Law provides the following settlement mechanisms:

• Compensation agreement.
• Conditional Suspension of the Process.
• Abbreviated Process.

It is important to note that each of these potential alternative mechanisms has specific procedural requirements and is only applicable in certain circumstances and for certain types of crimes.