The commentators will certainly qualify the following court judgments as landmark rulings since by these judgments the courts shed light on crucial and highly controversial aspects of competition law.
In the MIF case the Hungarian Competition Authority (HCA), after lengthy investigation, in 2010 imposed fines totalling EUR 6.5 million on the most significant market players of the banking sector plus on Visa and MasterCard because between 1997 and 2008 the banks fixed by agreement the multilateral interchange fee (MIF), and the card companies actively facilitated the conclusion of this agreement. In its decision the HCA established that the banks and the card companies violated Article 101 TFEU and Article 11 of the Hungarian Competition Act. The HCA found infringement “by object”. The Budapest-Capital Administrative Court upheld the decision of the HCA. At second instance, in March 2017, the Budapest-Capital Regional Court annulled the judgment rendered at first instance and the decision of the HCA as well. The Court concluded that the MIF agreement could not be qualified as restrictive of competition by object since the restrictions in question had not “by their very nature” the potential of restricting competition. As a consequence, the Court ordered the Authority to examine the effects of the agreement. The Court identified important circumstances which are relevant when distinguishing between restriction by object and restriction by effect.
The second case where we have successfully represented our client also concerned the financial sector. In 2011 the HCA initiated investigation against 12 banks because they restricted competition during the implementation of the so called early FX full repayment scheme devised by the Parliament. In 2013 the HCA delivered its decision by which declared infringement of competition laws – Article 101 TFEU and Article 11 of the Hungarian Competition Act) – and imposed almost HUF 10 billion fine on the banks. According to the decision the banks agreed not to offer HUF loans to consumers with which they could have repaid the FX loans in order to realize the benefit granted by the statutory early repayment scheme. The HCA qualified this behavior as output restriction. The banks brought an action asking the administrative court to review the decision. After the court of first instance and the court of appeal had found the claims unfounded the banks petitioned for the review to the Supreme Court (Kúria). The Supreme Court with its final judgment delivered on 13 December, 2016 quashed the judgments of both courts, plus the fine imposed by the HCA, and ordered the HCA to repeat the procedure. The judgment of the Supreme Court made it clear that the procedure of the HCA does not meet the requirements that flow from Article 6 of the European Convention on Human Rights therefore the courts have to fully review the decisions of the HCA which means that the establishment of the facts of the case is also subject to full court review. During this review the standard of proof the courts have to apply is the so-called “beyond any reasonable doubt” evidentiary standard. In that specific case, when some facts are unambiguously established and the court has to determine those consequent facts that can be derived from the proved facts, the meaning of full review is that the court has to compare the inferences the parties draw from the established facts, thus the court has to weigh the explanations, scenarios presented by the plaintiff against the reasoning of the decision of the HCA, and must choose the more reasonable one. In addition to these procedural issues the Supreme Court declared that precise and correct determination of the relevant market is indispensable in cartel cases as well if the calculation of the fine is based on the turnover of the parties realized on the relevant market. Finally, the Supreme Court emphasized that the HCA cannot alter the reasoning of its decision during the lawsuit.
The third important win concerned a case where the HCA used anonym witnesses in proving a market sharing cartel. The use of this type of proof severely restrains the possibilities of the defense therefore adequate and effective procedural safeguards should be put in place. In this specific case the court of appeal declared that the procedure of the HCA was unlawful because the HCA was unwilling to examine de facto whether such protection of the witnesses was well-founded, failed to record the depositions of the witnesses word-for-word, and had not given the parties the chance to indirectly – i.e. in writing, after reviewing the minutes of the hearing – interrogate the anonym witnesses. Without these procedural tools the investigation cannot be fair, equality of arms do not become real, consequently the evidence obtained this way must be ignored in the lawsuit.