Hungarian update

Sept 20, 2018 | Insight

In recent years, the Hungarian Competition Authority (HCA) has seemingly aimed to foster cooperation between itself and market participants. Recent case law shows that the HCA strives for cooperation even when market participants allegedly commit grave infringements of the competition rules. Market participants are advised to harness this tendency and the HCA’s willingness to reach decisions more efficiently.

AIRBNB’S PRICE COMMUNICATION UNDERTAKINGS

The HCA recently refrained from establishing an infringement by Airbnb, which undertook to amend the way in which it communicates prices to consumers as a commitment measure. The HCA had initiated the proceeding due to the allegation that Airbnb had misled consumers navigating and reserving accommodation on its website. The underlying issue concerned the incomplete communication of fees and costs.

Airbnb undertook to ensure that:

• the prices which consumers see (after entering their travel dates) include all costs and fees; and
• prior to entering this data, consumers will be notified that the prices may not include all such cost items.

The HCA did not establish an infringement due to the above measures. The Airbnb case shows that the HCA is especially willing to cooperate with market participants to ensure that reasonable solutions are implemented for certain issues.

NETPINCER

The HCA also initiated an inquiry into agreements between Netpincer, one of the largest food delivery sites in Hungary, and the catering businesses and restaurants whose offerings are aggregated on the site.

The issue revolved around a clause in the agreements which ensured that the restaurants offered the same prices and conditions on Netpincer as on their own websites. The HCA found that this had led to a market where prices were identical across all sales channels.

Netpincer undertook to amend the agreements so that the clause did not cover offline sales channels (orders made by phone) and the occasional promotion. As a result, the HCA did not establish an infringement.

KOMETA’S HEALTHY EATING CAMPAIGN

The HCA launched an inquiry into food and meat products manufacturer Kometa’s practices relating to healthy eating campaigns. The HCA wanted to determine whether some of Kometa’s claims in its ads and promotional campaigns – which had, among other things, asserted that high meat content and the absence of certain additives would ensure that a product was healthy – qualified as an infringement of the consumer protection rules.

Following a protracted investigation, the HCA accepted Kometa’s complex commitment proposal, which included the following measures:

• the establishment of a website allowing consumers to fully understand dietary needs and the concept of healthy eating;
• the launch of a related communications campaign, including TV ads; and
• the implementation of a compliance programme.

The HCA once again rewarded the investigated undertaking’s proposal to cooperate, especially as:

• the measures had already been proposed during the first, investigative phase of the proceedings; and
• the investigated practice had ceased.

Among other things, the HCA noted that the above commitments involved valuable informational benefits for consumers and once again refrained from establishing an infringement.

GOOGLE COMMITMENTS

The HCA recently investigated Google’s communication practices regarding its data processing activities connected with the Allo chatclients app. The investigation was aimed not at analysing compliance with data protection applications, but rather at establishing whether consumers had received the information necessary to understand the business model of Allo (and Google) and make an informed transactional decision. The essence of Google’s business model is to process and market the (personal) data of its users through various algorithms rather than sell the various Google applications (including Allo) and services for money.

While the HCA originally saw no reason to terminate the proceedings and sought to establish an infringement in this respect, it eventually waived the fine on the basis of Google’s commitments. The HCA found that the potential violation of the law could be efficiently remedied by the commitment package, which guaranteed the protection of public interest.

The commitments included the establishment of a separate page on Allo’s data processing and sending a hyperlink to this page within the app to its users in Hungary. In addition, Google must publish a one-day graphical educational banner on its YouTube channel highlighting that it collects and processes consumers’ personal data and recommending that consumers review their privacy policies and settings.

The HCA outlined that Google’s commitment package constituted a substantive effort and the allocation of substantial resources, which was one of the main factors why it had accepted the commitments.

THOUGHTS

The above decisions – together with the HCA’s respective guidelines – indicate that it is interested in ensuring that consumer benefits are attained in the easiest way possible during an official investigation. The preservation of the HCA’s resources plays a major role in its decision making; therefore, undertakings should decide whether they intend to propose commitments during the investigation phase. Based on these recent cases, if consumers are compensated and the commitment proposal is reasonable, undertakings may expect a positive response from the HCA.

If commitments are not an option, the HCA will still reward a company’s cooperation and its willingness to compensate consumers with significantly lower fines. However, in such cases, the establishment of an infringement (and the imposition of a reduced fine) cannot be avoided. Nonetheless, it may still be worth it for companies seeking a win-win situation for all parties.