Hungary introduces in new bill rules to the Competition Act on undertakings having fundamental importance
The bill forsees the introduction of Article 22/A:
(1) The Competition Authority may, taking into account the criteria set out in paragraph (2), determine in a competition supervision procedure that an undertaking is of fundamental importance for competition and consumers across markets (hereinafter referred to as a "fundamental undertaking").
(2) In order to qualify as a fundamental undertaking, the following shall be examined in particular
(a) its market share,
(b) its financial strength or access to other resources,
(c) its vertical integration or its activities in otherwise related markets,
(d) its access to competitively relevant information,
(e) the essential importance for consumers or the economy of the services it provides or the goods it produces or distributes; or
(f) any activity which is relevant to third parties or consumers in order to gain access to supply and sales markets, whereby it can influence the business of third parties.
The bill also makes it clear that the rules on competition supervision procedures apply, so there will be the possibility of court review. The GVH has three month to decide a case under Article 22/A. During an investigation the investigator might order interim measures which can be reviewed by the Competition Council.
The Competition Council can impose several obligations on undertakings deemed to be fundamental.
In its decision adopted in the procedure pursuant to Article 22/A (1), the acting Competition Council
(a) may prohibit an undertaking of fundamental importance
(aa) to treat its own offer more favourably than that of its competitors,
(ab) to use for its own purposes data collected from its customers without their explicit consent, or to combine data collected by it with data from other sources relevant for competition without the explicit consent of the parties concerned,
(ac) to impede the interoperability of products and services or the portability of data,
(b) impose an information obligation on an undertaking of significant importance to provide information on the performance, quality or success of the service it provides to its customers,
(c) where the fundamental undertaking is unable to perform its functions or is in a situation where it is in imminent danger of being unable to meet its obligations, to maintain or restore the level of operations necessary to ensure security of supply, taking into account the principle of gradual reduction,
(ca) may require the owners of the essential undertaking to sell all or part of the essential undertaking,
(cb) may require the assets necessary for the continuous and secure supply, trade and production of the essential services to be transferred to a designated service provider for operation at a cost-based charge and to provide the records and data necessary for the exercise of the activity,
(cc) initiate the election or appointment of another person to a senior position in the management body of the essential undertaking having management powers,
(cd) suspend the voting rights attached to ownership interests,
(ce) require the transfer of ownership interests to other owners,
(cf) require the board of directors to convene a general meeting and to call upon it to discuss specific items on the agenda and to take specific decisions.
