136 Global Competition Litigation Review Due to the reluctance of the courts to deal with private actions for

the infringement of competition provisions, the law was amended in November 2005 and since then the HCA directly and undisputedly allows for stand-alone private actions before the courts. Article 88/A states that: The power of the Hungarian Competition Authority to proceed, [], shall not prevent civil law claims, arising out of the infringement of the provisions laid down in Chapters III to V of this Act [on consumer deception, anticompetitive agreements and abuse of a dominant position] [] from being enforced directly in court. Moreover, art.88/B of the HCA provides that: For lawsuits to be assessed under the provisions laid down [e.g. for anticompetitive agreements and abuse of a dominant position], the provisions of Act III of 1952 on the Code of Civil Procedures shall be applied with the exceptions defined in this Chapter. In Hungary there has already been a thorough review of private enforcement up to 2009.7 Since that report some new cases have become accessible, therefore, we will first analyse the national legal framework and then proceed to evaluate the cases. Lastly, we will draw some conclusions.

Private Enforcement of Competition Law and Stand-alone Actions in Hungary

Dr Pl Szilgyi
Introduction
On the day of completing the present article, the European Commission submitted its proposed directive on private enforcement in the European Union.1 Based on the experience gathered in Hungary this was a timely and needed action. Here I evaluate the accessible case law on the private enforcement of Hungarian and EU competition (antitrust) rules in Hungary.2 The research focused mainly on cases where the Hungarian competition authority was not involved in any form.3 Due to the improvement of the judicial administration, as of 2007 a collection of all Hungarian judgments is available online in Hungarian.4 Accessing cases prior to that period is very difficult, since there is no publicly available register of those cases. The Curia, the highest court in Hungary publishes a collection of cases each month, but those cases are only summaries of the cases and are selective. Therefore, the assessment presented below includes a full analysis of all cases after 2007 until 2012, but we also refer to cases dating back prior to that period if those cases are in the public domain. No cases are discussed which constitute appeals to decisions of the competition authority, the Gazdasgi Versenyhivatal (GVH). As to the state of Hungarian private enforcement, we have to note that before the 1st of November 2005 it was not clear whether it was possible to initiate stand-alone actions based on arts 11 and 21 of the Hungarian Competition Act (HCA).5 The courts interpreted the law in a way prevented the direct application of the competition rules by the courts. Some authorscorrectlydisputed this interpretation since the first judgement rendered on that note, but nevertheless, this approach was retained by the courts.6
* *

National framework
Hungarian law allows for the possibility of both stand-alone and follow-on private actions for damages and there are also other remedies available. Hungarian law distinguishes between damages caused by breach of contract and damages caused outside of contractual relations, but the rules are basically the same for both types.

Litigation
The costs of litigation are covered by the unsuccessful party and the parties are free to agree on the level of legal fees. As a general rule, the plaintiff must pay a fee for initiating any procedure before the court. This fee is based on the value of the claim and is 6 per cent with minimum and maximum limitations. Following the judgement, the unsuccessful party has to cover all costs, including administrative, court and legal fees. However, if the court finds the legal fees to be unreasonable, it may reduce the

Director of the Competition Law Research CentrePPCU, Budapest, H-1088, Hungary; pal.szilagyi@versenyjog.com, +36203666290). I would like to express my gratitude to Barry J. Rodger, Tihamr Tth and Petra Lncos. Usual disclaimer applies. The original research for this article was carried out under the following project: Comparative Private Enforcement and Consumer Redress in the European Union (http://www.clcpecreu.co.uk). The update of the report was published under the project TMOP-4.2.1.B-11/2/KMR-2011-0002 - Development of Scientific Research at PPCU. 1 Proposal for a Directive of the European Parliament and of the Council 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 COM(2013) 404 final. 2 The executive national report and the table of cases underlying this article are available here: http://www.clcpecreu.co.uk/default.htm [Accessed July 11, 2013]. 3 In Hungary, according to the public register, the GVH has not yet acted as amicus curiae in stand-alone cases and according to publicly available information there was only onenot yet reportedreal follow-on private enforcement case. There was one case where the GVH intervened but the higher courts found that it had no right to do so. 4 See: http://birosag.hu/ugyfelkapcsolati-portal/anonim-hatarozatok-tara [Accessed July 11, 2013]. 5 Act No. LVII. of 1996 on the Prohibition of Unfair and Restrictive Market Practices (HCA). 6 See e.g. Gbor Fejes, Versenyjogi jogsrts - polgri jogi szankci: rvnytelensg, teljestsre ktelezs s krtrts versenyjogi alapon in Boytha Gyrgyn (ed.), Versenyjogi jogsrtsek esetn rvnyestheto magnjogi ignyek (HVG-ORAC, 2009), p.51. Or Tams less and gnes Nmeth, Hungary, National Report (Ashurst Study on the conditions of claims for damages in case of infringement of EC competition rules, 2004) p.2. 7 Boytha Gyrgyn, (ed.) A versenyjogi jogsrtsek esetn rvnyestheto magnjogi ignyek (HVG-ORAC, 2009). See also less and Nmeth; and Csongor Istvn Nagy, The Judicial Application of Competition Law in Hungary (2010).

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137 amount. A special government decree is applicable for the calculation of legal fees if there is no agreement on the fee between the lawyer and the client. The decree has detailed rules on the amount of legal fees. In Hungary there are no contingency fees in a way that it is applied in the United States for example (no win no fee). Sometimes law firms agree that in case the party wins they will receive higher fees, but due to the legal regulations in force (see above) this approach is not favoured. There is no special prohibition on the application of such a fee, but since the party who loses the case has to pay the legal fees of both parties, none of the parties is interested in such a solution. Even if this were the case, because the courts may reducebased on a regulationthe legal fees by a significant amount, the lawyers arent interested in such a solution either. be summoned as a witness to produce the documents; or the court may oblige the parties to produce deeds in their possession. The general rule is that one of the parties has to request the taking of evidence. Both parties have an obligation to present appropriate evidence in a timely and proper manner. The court is free to decide on taking evidence, at the same time, it must explain its reasons in the judgment.

Types of remedies available

Until an amendment of the HCA in 2005, the act only referred to nullity as an available remedy. As of today, however, the plaintiff can seek the following remedies: recovery of loss suffered (compensatory damages); in integrum restitutio; interim measures; seize and desist; declaration; modifications of contractual relations by the court.

Courts
Competition cases which do not concern an administrative decision brought by the GVH are dealt with by the general courts.8 The highest court in Hungary is the Curia, formerly known as the Supreme Court. The structure of the Hungarian court system is as follows: local courts (131), tribunals (19+1), High Courts (5) and the Curia.9 There are no special mechanisms in place for follow-on rulings. In the court system, the civil courts deal with private enforcement claims, except for one type of case. It is possible in a criminal procedure to claim damages. In this case the criminal court can rule on damages or decide that a separate civil procedure shall deal with such claim. If an action involves damages, the amount of damages sought determines which court will be competent to adjudicate it. If the value of the claim is below HUF30 million, local courts shall be seized by the case, and above that amount, the tribunals shall proceed. Appeals are possible to higher level courts.

A special rule in the HCA is s.88/C, which states: In the course of civil proceedings for any claim conducted against a party to a restrictive agreement between competitors aimed at directly or indirectly fixing selling prices, sharing markets or setting production or sales quotas that infringes Article 11 of this Act or Article [101 TFEU], when proving the extent of the influence that the infringement exercised on the price applied by the infringer, it shall be presumed, unless the opposite is proved, that the infringement influenced the price to an extent of ten per cent.11 Although there is a common misunderstanding in Hungary that this rule is a presumption on damages, the rule might be beneficial for those who suffered damages. The presumption however does not solve the burden of proving causation and the actual amount of damages, which has to be substantiated by the plaintiff.12 The fact that this provision has not yet been applied in any publicly available case is a clear sign that this amendment has not lived up to expectations. One reason might be simply that the presumption on price increase does not resolve the most difficult hurdles for those who would seek to prove an antitrust case.

Burden of proof and discovery

The plaintiff bears the burden of proof before the courts: the party bearing the burden of proof must produce documents supporting its claims and arguments.10Article 164 (1) of the CCP states that [o]n general principle the facts based on which the case can be decided shall be adduced by the party bearing a vested interest in persuading the court to recognize them as true. There are no rules related to discovery procedures in competition proceedings. In Hungary courts may take evidence ex officio only if it is expressly allowed by an act and this is not the case in competition law cases. There are some special rules which might be of assistance to the plaintiffs. For example a person in possession of documents may
8 9

Standing
There are no special rules on standing. The general rule according to the CCP art.48 is that [a]ny person who is able to accrue rights and obligations under the rules of

Appeals from the GVH are to be made to the Metropolitan Court. Currently there is an ongoing reform of the judicial system. The reform will most probably have an effect on the court which deals with appeals from the GVH. 10 Act III of 1952 on the Code of Civil Procedure (III 1952) art.190 (1). 11 For a more detailed assessment of the presumption of price increase see: Csongor Istvn Nagy, The new Hungarian rules on damages caused by horizontal hardcore cartels: presumed price increase and limited protection for whistleblowers an analytical introduction 32 E.C.L.R. 63. 12 To date (November 9, 2012) there is no judgment available in the public register on this provision of the HCA.

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138 Global Competition Litigation Review civil procedure is considered to have the capacity to be a party in legal proceedings (legal capacity). Article 49 (1) states that [a]ny person having full legal competency under the rules of civil procedure may be a party in legal proceedings acting personally or by way of a counsel, or who has the right of disposition of the subject matter of the action under the rules of civil procedure (competency in legal proceedings). A plaintiff can only enforce claims if s(he) has standing. A plaintiff has standing if his/her rights or interests are affected by the legal dispute. Parties involved in an agreement have standing as well as those who suffered damages. Third parties also have standing if they can demonstrate sufficient interest in the case. There is special provision in relation to Hungarian private enforcement in cases where a criminal procedure is ongoing before the courts and the party who suffered damages requests the criminal court to decide on the damages. As noted above, the GVH might have standing to enforce consumer claims and also indirect purchasers have standing.13 In certain cases the GVH can act as amicus curiae (see below, art.88/B (3)).14 of the courts notification based on the above cited provision of the HCA. The judgment of the Curia,16 however, clarified that the decision of the authority was only binding if the court had to stay its proceedings and await the final decision of the GVH in that particular case. The judgment clearly correctly reflects the grammatical interpretation of the wording of the Act, but the ruling may have an unintended effect on follow-on private enforcement claims. This basically means that infringement decisions of the GVH, even if final, are not binding in any other case on the courts.17 The personal opinion of the author is that this judgment is not beneficial for private enforcement. If a particular plaintiff has to factor in the possibility that the GVH will take over the casehe has the right to do soand the decision of the GVH might be appealed and hence his claim will only be decided upon in 6 to10 years at the earliest, then that might be quite discouraging. On the other hand, those defendants who would like to use the section contained in the act as a defence, can also successfully prolong the procedure, since the undertaking only has to make a plausible case to invoke the HCA upon which the court will stay the proceedings to await a (final) decision of the GVH.

Obligatory involvement of the GVH

The Hungarian Parliament adopted many positive initiatives in order to promote private enforcement. For example, the Hungarian Competition Act includes a provision that creates a rebuttable presumption that a cartel increases the price of products by 10 per cent. However, more recently there was a remarkable decision rendered by the Curia. The HCA states that, if there is a claim relating to anticompetitive agreements or abuse of a dominant position before any court in Hungary, the court shall notify the GVH without delay. The GVH may initiate an investigation and the court has to stay its proceeding and await the outcome of the investigation and the final decision in the case. This final decision on the existence or absence of an infringement is binding on the court, as discussed below. The relevant article15 of the HCA reads as follows: (2) The court shall notify, without delay, the Hungarian Competition Authority of lawsuits before it, which are to be assessed under the provisions laid down in Chapters III to V of this Act.

Case-law
After 2007 until 2012 there have been 16 such cases. Except for two cases all the cases invoked the national equivalents of arts 101 and/or 102 TFEU.18 Below we will give a short overview of all the available cases and discuss the conclusions afterwards.

X. v Y and Others (14.Gf.40.521/2011/9.)

A municipality concluded an agreement with an undertaking (the plaintiff) for the financing of a project. It later turned out that a bid-rigging took place in relation to the project and the GVH adopted a decision condemning the members of the cartel (the defendants in the case) for concerted practices. The plaintiff sued the defendants before the Metropolitan Court for damages. The plaintiff was unsuccessful before the court of first instance, however, the case was not decided on its merits. The Metropolitan Court ruled that the plaintiff had no standing, since it was only an intermediary in the financing of the project and the damages caused by the cartel were not suffered by the plaintiff but the municipality. The plaintiff appealed to the High Court of Budapest which dismissed the appeal. The Curia however annulled the decision of the Metropolitan Court and ordered a new procedure on the basis that the Appellant had standing. The High Court of Budapest in the second

Most practitioners and academics in Hungary were previously of the view that the final decision of the GVH on an infringement subsequently binds all the courts, even if the procedure of the authority was not initiated because
13

There are no publicly available cases where indirect purchasers brought an antitrust case. See also: X., (Fovrosi tlotbla 2012). In this case the court dismissed the argument, but accepted in theory that it is possible for indirect purchasers to have standing. 14 There are several judgements available on the application of this provision, e.g. X. v Y. (14.G. 41095/2007/43.). 15 HCA art.88/B. 16 X. v Y. (Gfv.IX.30.152/2011/10.). See also X, (Fovrosi Brsg, 2010). 17 This is of course not a unique approach in the European Union, since many Member States are on the same position or even adopt a more lenient approach. See e.g. European Commission, Commission Staff Working Document Impact Assessment Report Damages actions for breach of the EU antitrust rules (2013), para.41. 18 In Hungary, the official register of the cases is anonymous, i.e. the names of the parties are left blank. We use X, Y and Others to refer to plaintiffs and defendants.

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139 procedure however dismissed the case due to the lack of damages on the part of the plaintiff.19 The court also briefly noted that even if there was the theoretical possibility of damages, the plaintiff did not prove that it could have achieved better prices on the market.

X. v Y. (Gfv.IX.30.246/2007/6)
The dispute in this legal proceeding concerned a distribution and repair services agreement. The plaintiff was selling trucks and provided repair services. The defendant did not prolong the agreement on repair services and therefore the plaintiff sued him. One of the arguments raised in the application was that the defendant had abused its dominant position. The court decided that the defendant was not in a dominant position and therefore could not have abused such position, however. the reasoning of the court was quite short, limited to a few sentences.

X. v Y. and Others (14.Gf.40.088/2012/11)

This case is part of a long procedure related to one of the largest cartels in Hungary in which the GVH fined the members of cartel.20 The plaintiff commissioned a public procurement procedure and as a result concluded a contract. It turned out later that a bid-rigging was involved in the public procurement. In its judgement21 the High Court of Budapest dismissed the plaintiffs claim for damages, mainly based on the lack of standing. However, what is of relevance to our topic is that the court accepted that in theory it is possible for indirect purchasers to have standing.

X. v Y. (25.G.40.031/2010/7)
The case involved the procurement of legal services. The plaintiff handed in an offer to the procurer (the defendant) but due to procedural issues his offer, according to the defendant, was invalid. The defendant argued that the plaintiff should have sued another person according to art.11 (2) c) of the HCA. (The judgment does not mention that the plaintiff relied on this article in his claim. Nevertheless the defendant raised the argument and the court assessed it.) The court held that the provision on anticompetitive agreements in the HCA cannot be enforced by courts. The appellate court did not rule on the question.

X. v Y. (Gfv.IX.30.152/2011/10)
The plaintiff and the defendant concluded a distributorship agreement which ended just before the accession of Hungary to the European Union. After the GVH initiated a competition supervision procedure, it suspended the investigation and gave the defendant of the present case time to work out the conditions for allowing repairers into its network. The plaintiff sued the defendant in 2007 claiming damages based on art.11 of the HCA and art.101 TFEU (art. 81 EC at the time). The court of first instance dismissed the case and the plaintiff appealed to the High Court of Budapest. The GVH intervened in the case at first instance as amicus curiae. The High Court of Budapest dismissed the case22 based on the fact that the conduct of the defendant constituted unilateral conduct and therefore art.11 of HCA was not applicable. In its judgement the Curia stated that the courts are in general not bound by the decisions of the GVH, save for cases where the legal dispute involves a decision which was initiated due to the proceedings before the court.

X. and Others v Y. and Z. (11.G.20.504/2006./18)

One of the defendants (Z) was the sole importer of certain cars to Hungary. It concluded agreements with the plaintiffs for them to could sell new cars and spare parts. After a merger, the defendant was liquidated and in 2001 and 2002 another defendant (Z) became the new Hungarian importer of the cars and set up a new distribution network. The plaintiffs sued for damages of approximately HUF1.1 billion. The plaintiffs argued that the agreement between the two defendants was contrary to art.11 of the HCA and furthermore constituted an abuse of dominant position according to art.21 of the HCA. The aim of the defendants was to exclude the plaintiffs from the market. The court ruled that it had no competence to review the claims based on arts 11 and 21 of the HCA. This judgement is one of the judgements, where the courts expressed their views that they cannot apply the articles of the HCA regarding abuses of dominant positions and anticompetitive agreements. This problem was solved by the 2005 amendment of the HCA, although the majority position shared in academic literature is that prior to 2005 it should have been possible to enforce the HCA provisions.

X. v Y. (Gf.II.30.441/2010/2)
The dispute between the plaintiff and the defendant concerned a dispute regarding the rent for an office of the local municipality rented by an insurance provider. In the course of the legal dispute the defendant invoked among others art.11 of the HCA. The court (High Court of Szeged) decided the case based on another legal basis, therefore it did not rule on the competition issues raised by the parties.

19 20

X. v Y and Others (14.Gf.40.521/2011/9). Decision of the GVH VJ-27/2003/16. For a discussion of the case see Tihamr Tth and rpd Hargita, God Forbid Bid-Riggers: Developments under the Hungarian Competition Act (2005) 28 World Comp. 205. 21 X. v Y. and Others 14.Gf.40.088/2012/11. 22 X. v Y. Gfv.IX.30.152/2011/10.

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140 Global Competition Litigation Review

X. v Y. (17.G. 41.386/2007/13)
The legal dispute concerned a leasing agreement. The agreement related to the lease of a truck. The agreement referred to general terms and conditions which were applicable between the parties. The lessordefendantterminated the contract due to default on payment by the plaintiff. The lesseeplaintiffargued that some of the clauses of the general terms and conditions were null and void. One of the arguments raised was that the disputed clauses were contrary to art.21 of the HCA, since the clauses resulted in an unjustified advantage to the defendant. The judge, after citing art.21 a) of the HCA stated that in order to decide on the case she had to elaborate the content of the contracts, but subsequently failed to raise any competition issues. The judgment only considered other legal rules and referred several times to the fact that the clauses were not unfair.

which were weaker the party in the contractual relationship. The defendant argued that there was no dominant position and that the plaintiff had misinterpreted the legal provision. The court did not deal with the legal arguments regarding the HCA and on appeal the issue was not raised again.

X. v Y. (16.G.40.060/2007/43)
This case concerned a legal dispute regarding a distant selling contract (telesales). The defendant entrusted the plaintiff to carry out telesales services. According to the plaintiff, the defendant did not pay for some of the services in the sum of more than HUF20 million. Accordingly, the plaintiff terminated the contract. In the judgement the court cited art.21 of the HCA. The court relying on art.88/B of the HCA submitted the relevant facts to the GVH. The latter in its answers emphasised that in its view there was most probably no dominant position on the market. This view was accepted by the court, which ruled in favour of the plaintiff, namely that there was no abuse of a dominant position. The higher courts didnt deal with the issue during appeal.

X. v Y. (Gfv.IX.30.349/2008/4)
The legal dispute in the case concerned an agreement where two companies had co-operated in a procurement, agreeing that if one of the companies should win, then the other would contract the unsuccessful party. This never happened, but the company offered to pay half of the agreed value to the other party. The plaintiff sued the defendant arguing that the agreement was null and void. The case reached the Curia in 2008 and one of the arguments in the reasoning of the court was that the agreement was contrary to art.11 of the HCA, since it was anticompetitive by object. There was no further elaboration on the issue in the case.

X. v Y. and Other (Gf.I.30.146/2011/2)

This case concerned an agreement between two defendants and a plaintiff. The defendants provided funeral services and also pursued related activities, such as selling goods related to funerals. The agreement concluded between the plaintiff and the first defendant (Y) also included a non-compete clause which stated that for ten years after the termination of the contract the defendant could not carry out any similar activity. The defendants invoked art.11 of the HCA and argued that the contract was null and void, because it contravened that provision. The High Court of Szeged ruled that the prohibition of cartels cannot be used by parties to a contract to protect themselves from the other party. The nullity of an agreement based on the cartel prohibition can only be invoked by a competitor, but not by those who are in a contractual relationship. The High Court of Szeged also agreed with the lower court that a contract between a trustee and a principal cannot be treated as an agreement between independent undertakings.

X. v Y. (Gfv.X.30.494/2007/3.)
The case concerned a claim regarding a decision between two companies wishing to merge. The plaintiff asked the court to annul the decision of the legal predecessor of the defendant by which it decided on the merger with the defendant. The plaintiff argued inter alia that the decision was contrary to art.11 of the HCA.23 The courts at first and second instance ruled that art.11 was not applicable in the case, since it was a merger between companies subject to common decisive influence. The Curia did not directly deal with the issue, but upheld the judgement of the High Court of Szeged.

X. v Y. (Gfv.IX.30.280/2011/4)
The plaintiff and the defendant concluded a cooperation agreement in 2003. In 2008 the defendant wished to revise the scope for cooperation, but the plaintiff did not agree with the proposed solution. After a short period the plaintiff sued the defendant. The High Court of Budapest ruled that the HCA act was applicable in the legal dispute and that at the time when the two parties concluded the agreement, the plaintiff was in a dominant position. The defendant could only rely on the plaintiffs service to carry out its activity. The cooperation agreement included

X. v Y. (15.G.40441/2006/26)
The case concerned a legal dispute regarding the provision of credit. The defendant was offering credit on the market for the purpose of buying cars. The defendant used a contract form which included general terms and conditions. The plaintiff asked the court to annul the contract, since it was unfair. One of the arguments raised however, was that the defendant had a dominant position, since it had a much stronger position than its consumers,
23

They also argued some merger control related issues, e.g. that there was no notification to the GVH.

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141 an exclusivity clause for seven years. The seven years for the exclusivity was justified according to the court, due to the fact that it was a manifestation of the states will (the company was state owned) and also due to the existing cooperation agreement. The contract would only be void if there was no economic justification for it, but according to the court, this was not the case. The defendant contested the courts judgement before the Curia. The defendant also argued that even though it also invoked art.102 TFEU, neither of the courts dealt with the applicability of the EU law provisions. The Curia sided with the defendant and ruled that the behaviour of the plaintiff was objectively justified, since it would only be contrary to art.21 HCA if it were impossible to raise an economic justification for the fact that the conditions of the agreement could only be amended by an agreement and that there is no right to terminate the contract. The Curia also stressed that in an abuse case the standard is whether there is a reasonable economic justification for the behaviour or not. According to the court, a contract which is in the interest of both parties is always justified. The court also ruled that an exclusivity clause for seven years was not contrary to the competition provisions, since the long period was in the interest of both parties. The Curia also dealt with the question whether art.102 TFEU was applicable or not. The Curia stated that, since there was no violation of art.21 of the HCA, there could be no violation of art.102 TFEU, since without an abuse, there could be no effect on the trade between member states. elaborated above, neither the parties, nor the courts wasted time on arguments related to competition law. Even where the parties claimed that there might be an infringement, the arguments were only substantiated to a limited extent, at the same time, the court did not waste ink on the assessment of arguments either. One could say that there was not a single private action which had stood the chance of succeeding. Based on the evaluated case law, the reasons for this are mainly rooted in the lack of understanding of competition law and therefore competition issues are raised in cases lacking merit.25 We only looked at the final judgements in the present article, but many courts of first instance were clearly wrong as to the aims or the substance of the competition law provisions. Thus, when even the most important principles of competition law are not understood or applied, how could one expect from either the parties or the courts to follow the very sophisticated case law of the European Court of Justice and the General Court? We must however highlight that the courts dealing with appeals against the decisions of the GVH are following the case law of the ECJ in their judgements and are more and more willing to undertake their own analysis in case the GVHs decision must be assessed. This is partly due to their 20+ years of experience in reviewing GVH decisions, furthermore, the effects of the Menarini judgement26 may also be observed in these cases. Although the number of cases is growing, there are still only a few of them. Most of the cases discussed above are atypical competition cases. The typical situation was that one of the parties invoked the provisions of the HCA in order to add one more legal argument to the case. The result is that most of the references to the HCA had no merit. It is also very interesting to see how peculiar some of the judgements are when it comes to the application of competition law. Most courtseven if there was some merit in the argument -dealt with the competition law issues in only a few sentences. The arguments were nowhere close to those we are used to in judgments of the UK Competition Appeal Tribunal or the US courts. In case of a follow-on actions, the courts have to decide on the basis of a decision of the GVH. But in these cases the courts have no prior assessment of the facts and the behaviour investigated by the GVH. The reasoning in the judgements regarding the provisions of the HCA are unsatisfactory from a legal point of view. On many occasions, the courts demonstrated minimal understanding of the aims of the competition provisions and referred to the HCA in a way which would appear to contradict the traditional interpretation of those provisions both under national law and EU law. As regards EU law, we have to highlight that basically the courts did not apply or consider the application of arts 101 or 102 TFEU, although in cases where the trade

X. v Y. (3.P.28.665/2005/82)
This case concerned a trademark dispute. The defendant invoked art.21 of the HCA, but the court decided the case on other legal grounds and did not touch upon the application of the HCA.

X. v Y. (Gf.II.20.341/2010/6.)
The case concerned a legal dispute between the owners of a company. One of the parties on appeal invoked art.21 of the HCA, but the High Court of Szeged ruled that the case should be decided based on company law and not art.21 of the HCA.

Conclusions and final remarks

As described by Nagy in 2009, private enforcement is highly underdeveloped in Hungary; in this regard there is no divergence between different industries.24 In principle there is nothing in Hungarian law which would prevent many more private actions, nevertheless the reality is that there are no cases are based on solid arguments rooted in competition law. In the cases
24 25

Nagy, The Judicial Application of Competition Law in Hungary. There are several other practical reasons for the lack of cases, namely that many serious infringements are settled before it comes to a judgement or because there are no law firms specialised on representing plaintiffs in competition cases. 26 A. Menarini Diagnostics Srl v Italy , 43509/08 European Court of Human Rights.

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142 Global Competition Litigation Review between member states is affected (as in many of the cases discussed), there would have been an obligation to do so. All of the above cases were decided in the last five years. Taking into account that Hungary introduced its first modern competition act in 199027 and therefore we have 23 years of practice in applying the rules on competition, the situation of private enforcement is highly underdeveloped. Taking also into account the aims of the draft directive of the European Commission, namely that there shall be more damages actions,28 it will not suffice to create an appropriate legal framework. There is a lot to be done also regarding the promotion of competition culture and the raising of awareness of those who suffer harm due to infringements of competition rules. The climate has to change in order to increase the cases of private enforcement.

27 28

See e.g. Jzsef Srai, Hungarian competition law developments in the last decade and follow-up [2007] Revue Lamy de la Concurrence. See also European Commission, Commission Staff Working Document (2013), para.200.

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