Abstract
This chapter examines the Hungarian regime of sanctions for antitrust infringements, assessing them from the perspective of various fields of law including competition law, criminal law, public procurement law and civil law.
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- 1.
Directive 2014/104 of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ 2014 L 349, p. 1.
- 2.
See paras 67-69 of the Antitrust Notice.
- 3.
See e.g. also Decision No. Vj/11-334/2014 or Decision No. Vj/37-303/2014).
- 4.
See para 51 of the Antitrust Notice.
- 5.
See paras 51-52 of the Antitrust Notice.
- 6.
CJEU, Generali-Providencia Biztosító Zrt v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság, ECLI:EU:C:2014:2469.
- 7.
It’s worth mentioning that in 2015 the concept of self-cleaning was introduced in the Public Procurement Act. Self-cleaning makes it possible for an economic operator subject to one or more grounds for exclusion to take measures to prevent or reduce the risk of the recurrence of the activity constituting its ground for exclusion. In case the measures taken by the economic operators concerned comply with the conditions stipulated by the Public Procurement Act (e.g. paying compensation) and are sufficient to demonstrate the reliability of the economic operator, then the exclusion will no longer apply.
- 8.
See the chapter III. of decision no. 1392/B/2007 of the Hungarian Constitutional Court. The HCA thus complies with the requirement of the Supreme Court that states, ‘in individual cases - in case of special circumstances - the individual decision may differ from the notice, however, a detailed justification must be given which indicates the circumstance that justifies the derogation’. (See order No. Kfv.II.37.497/2010/14. of the Supreme Court (VJ/102/2004.).)
In addition, in decision No. Vj/8-1751/2012 (the so-called Bank Data case, which is an ongoing case) the HCA decided not to apply the Antitrust Fine Notice, given that neither the EU or the Hungarian case-law were entirely clear as regards the infringement at the beginning of the initial period of the conduct.
- 9.
See Supreme Court judgment No. Kfv.III.37.582/2016/16. brought in case No. Vj-74/2011 (FX loan repayment).
- 10.
HCA: The main changes of the Antitrust Fine Notice and its background http://www.gvh.hu/gvh/elemzesek/vitaanyagok/nyilv_konz_antitroszt_fogyasztos/a_birsagkozlemeny_fobb_valtozasai_es_hatteruk.html.
- 11.
Nevertheless, this administrative procedure based on the criteria set down by the ECHR in the Bendenoun (Bendenoun v France, 24 February 1994 18 EHRR 54.) case, (in particular the rules on data collection and sanctions) may be considered criminal in nature, or at least quasi criminal. This conclusion is supported by the Menarini (A. Menarini Diagnostics S.R.L. v Italy [(43509/08), 27 September 2011.]) and the decision of the Hungarian Constitutional Court (30/2014. (IX. 30.)).
- 12.
As prescribed by Articles 6:518 and 6:519 of the new Civil Code.
- 13.
Act XIV of 2009: Now Article 88/G of the Competition Act, which sets out a reversible presumption when stating that in lawsuits instituted for the enforcement of any civil claim against any person alleged to be an accomplice in a cartel for the purpose of determining the impact of the infringement on the price charged by the infringer, it shall be treated - until proven otherwise - that the infringement distorted the price to the extent of ten per cent.
- 14.
See Decision No. Vj-34/2003/73., para 34.
- 15.
Idem.
- 16.
See Decision No. 359/B/2008 Hungarian Constitutional Court.
- 17.
See Decision No. -29/2011/522.
- 18.
See Decision No. Vj-1/2008/77. – in this case, the board of the trade association.
- 19.
See Decision No. Vj-29/2008/412.
- 20.
See Decision No. Vj-8/2012/1751.
- 21.
Article 76 (1b) of the Competition Act.
- 22.
Para 13 of the Antitrust Fine Notice.
- 23.
See Decision No. Vj-8/2012/1751.
- 24.
Metropolitan Court of Appeal 2.Kf.27.129/2009/14. and Supreme Court Kfv.II.37.268/2013/8. (Vj-51/2005).
- 25.
Article 76(6) of the Competition Act.
- 26.
See Supreme Court judgment Kfv.III.37.557/2009. in Case No.Vj-199/2005.
- 27.
Article 76(7) of the Competition Act.
- 28.
Section 3:81(1) of the Civil Code.
- 29.
Section 3:81(2) of the Civil Code.
- 30.
This is what happened in connection with the so-called BankAdat banking cartel case (see Decision No. Vj-8/2012/1751).
- 31.
Section 3:65(4) of the Civil Code.
- 32.
NOTE: 1 061 300 000 HUF (ca 3.6 million EUR) was imposed on Auchan in 2015 in Case No Vj/60/2012 but this was not a classic antitrust case but a special one under Hungarian law (court procedure pending: appeal to supreme court; second instance annulled the Competition Authority’s decision and ordered a new procedure).
- 33.
C. Beccaria, On Crimes and Punishments, Italy, 1764.
- 34.
We add. that – as the HCA also has powers in connection with consumer protection cases – the HCA has numerous unfair commercial practices decisions where it takes recidivism into account as an aggravating factor.
- 35.
- 36.
Article 89 of the Criminal Code.
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Marosi, Z., Árpád, H. (2019). Hungary. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Liability for Antitrust Law Infringements & Protection of IP Rights in Distribution. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-030-17550-4_7
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