Hungary

Status

Adopted

Explanatory note re status

The legislative process of the Omnibus Directive into Hungarian law has been completed by introducing amendments to the following legislation:

• Act 155 of 1997 on Consumer Protection (the “Consumer Protection Act”; in Hungarian: 1997. évi CLV. törvény a fogyasztóvédelemről)
• Government Decree No. 45/2014. (II.26.) on detailed rules regarding contracts between consumers and businesses (the “45/2014 Government Decree”; in Hungarian: 45/2014. (II. 26.) Korm. rendelet a a fogyasztó és a vállalkozás közötti szerződések részletes szabályairól szóló)
• Act 47 of 2008 on the Prohibition of Unfair Business-to-Consumer Practices (the “Act on Unfair Commercial Practices”; in Hungarian: a fogyasztókkal szembeni tisztességtelen kereskedelmi gyakorlat tilalmáról szóló 2008. évi XLVII. törvény)
• Joint Decree No. 4/2009 (I. 30.) of the Minister of National Development and Economy and the Minister of Social Affairs and Labour on the detailed rules for the indication of the selling price and unit price of products and the fees for services (the "4/2009 Joint Decree"; in Hungarian: Nemzeti Fejlesztési és gazdasági miniszter és a Szociális és munkaügyi miniszter együttes 4/2009. (I. 30.) rendelete a termékek eladási ára és egységára, továbbá a szolgáltatások díja feltüntetésének részletes szabályairól)
• Government Decree No. 373/2021. (VI. 30.) on detailed rules for contracts between consumers and businesses for the sale of goods, supply of digital content and provision of digital services (the “373/2021 Government Decree”; in Hungarian: 373/2021. (VI. 30.) Korm. rendelet a fogyasztó és vállalkozás közötti, az áruk adásvételére, valamint a digitális tartalom szolgáltatására és digitális szolgáltatások nyújtására irányuló szerződések részletes szabályairól)

As required by the Omnibus Directive, the new rules have come into force on 28 May 2022.

Implementation Act

Act 136 of 2020 on the amendment of certain acts relating to consumer protection made amendments on the Consumer Protection Act, and on the Act on Unfair Commercial Practices; and

Government Decree No. 712/2020. (XII.30.) on the amendment of certain government decree relating to consumer protection made amendments on Government Decree No. 45/2014. (II.26.) on detailed rules regarding contracts between consumers and businesses.

Decree No. 48/2020 (XII. 11.) of the Minister for Innovation and Technology on the detailed rules for the indication of the selling price and unit price of products and the fees for services amending Joint Decree No 4/2009 (I. 30.) of the Minister of National Development and Economy and the Minister of Social Affairs and Labour on the detailed rules for the indication of the selling price and unit price of products and the fees for services

Government Decree No. 373/2021 (VI. 30.) on the detailed rules for contracts between consumers and businesses regarding the sale of goods, supply of digital content and provision of digital services

(Envisaged) Implementation Date

As required by the Omnibus Directive, the new rules have entered into force on 28 May 2022.

Approach to implementation

Amendments to existing legislation (see "Implementation Act").

Next steps

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A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

According to Art. 47 of the Consumer Protection Act, the consumer protection authority may impose the following sanctions taking into consideration material circumstances, in particular, the sphere and gravity of the infringement, the duration of the illegal conduct and any recidivism where applicable, and also the gain achieved by the infringement, and in accordance with the principle of proportionality:

• cease and desist;
• order the business entity in question to terminate within the prescribed time limit the deficiencies and disparities exposed;
• prohibit, restrict or impose conditions regarding the supply and offering of goods until the infringement is eliminated;
• seize the property referred to in the Act on Penalizing Administrative Infractions, and have it destroyed at the expense of the infringing business entity;
• order the temporary closure of the commercial establishment affected for the period until the infringement is eliminated, where deemed necessary for the protection of human lives, health, physical integrity, or for the prevention of dangers posing significant threats to a broad range of consumers;
• prohibit the sale of alcoholic beverages, tobacco products, and sex products in connection with any infringement of the provisions under 16/A (1)-(3) for a maximum period of one year from the effective date of the infringement, and in the event of any repeated offense, may order the temporary closure of the establishment affected for a maximum period of thirty days; and
• impose a consumer protection fine (see C. VIII. for details).

The amendment of the Consumer Protection Act (Art. 47 (5)) sets out the criteria to be taken into account when determining the legal consequences, such as:

• the nature, gravity, scale, and duration of the infringement, the number of consumers affected by the infringement, the scope of the harm to their interests, the extent of the infringing conduct;
• measures taken by the business entity to reduce or compensate for the damage suffered by consumers;
• any previous infringement committed by the business entity;
• the financial benefits gained or losses avoided by the business entity as a result of the infringement, if available;
• the value of the goods involved in the infringement; and
• other mitigating or aggravating circumstances of the case.

Furthermore, Hungary has made use of the possibility provided for in the Directive to limit penalties to cases where the contractual terms are expressly defined as unfair in all circumstances in national law or where a seller or supplier continues to use contractual terms that have been found to be unfair in a final decision in a class action brought by a consumer association.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

According to Art. 2/A of the 4/2009 Joint Decree, the following rules apply to price reductions:

• If the trader announces the price reduction, it must include the prior price applied by the trader for a determined period before the price reduction.
• The prior price means the lowest price applied by the trader during a period not shorter than thirty days before the price reduction is applied.
• When the price reduction is progressively increased, the previous price is the price before the first application of the price reduction.
• The above does not apply to products that are perishable or have a short shelf life.
• If the product has been on the market for less than thirty days concerning the period specified in the second point, the previous price shall be the lowest price applied by the trader during a period that cannot be shorter than fifteen days preceding the application of the price reduction.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

According to the Act on Unfair Commercial Practices, the failure to indicate prices properly is regarded as a "misleading omission".

According to Art. 47 of the Consumer Protection Act, the Consumer Protection Authority may impose fines if the rules on price indications are infringed. (see C. VIII. for details)

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

According to the interpretive provisions of 373/2021 Government Decree, "goods containing digital elements" are also considered products. Goods containing digital elements are defined: movable items that incorporate or are connected to digital content or digital service in such a way that, in the absence of the digital content or digital service concerned, the goods would not be able to fulfil their functions.

373/2021 Government Decree regulates specific elements of contracts between consumers and businesses where an undertaking provides or undertakes to provide digital content or services to the consumer, and the consumer pays or agrees to pay the purchase price. Chapter III. of the 373/2021 Government Decree regulates the following aspects of the contract:

• fulfilment of obligation in conformity with the contract;
• defective performance of the contract;
• warranty for material defects;
• obligations of the undertaking in the event of termination of the contract;
• obligations of the consumer in the event of termination of the contract; and
• modification of the digital content or digital service.

Furthermore, 373/2021 Government Decree regulates specific requirements for the fulfilment of conformity-obligations with respect to contracts concerning goods containing digital elements. The rules specify that companies must notify consumers on updates for the digital products or services.

The 373/2021 Government Decree also provides exceptions where, even though the subject of the contract contains a digital element, the Decree does not apply. For example, health care contracts, financial services contracts, or digital content provided by a public body.

Besides the 373/2021 Government Decree, the Hungarian Civil Code applies to digital services and digital content.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Ranking is defined in Art. 2 j) of the Act on Unfair Commercial Practices.

Pursuant to Art. 11/A of the 45/2014 Government Decree, the trader must inform the consumer in a clear and comprehensible manner, of the following:

general information of the online interface, on the main parameters determining the ranking of products displayed to the consumer as a result of its search query, and the relative importance of these parameters among the other parameters.

The Act on Unfair Commercial Practices states that providing search results based on a consumer's online search query, without explicitly disclosing paid advertising or payment specifically targeted at ranking products higher in search results, constitutes an unfair commercial practice.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Pursuant to Art. 11/A of the 45/2014 Government Decree, the trader must inform the consumer in a clear and comprehensible manner:

• that the third party offering goods, services, or digital content is a trader (based on a declaration made by the third party to the online market service provider); or
• that the contract is not a consumer contract, and the consumer does not have consumer rights, if the third party offering the goods, services, or digital content is not a trader; or
• about the division of the contractual obligations between the third party offering goods, services, or digital content and the online market service provider; and that the division of the contractual obligations does not affect the contractual obligations of the online market service provider or the third party trader.

According to Art. 7 para. 5 of the Act on Unfair Commercial Practices, whether the third party offering goods, services, or digital content is a trader, is a relevant information in the case of an invitation to purchase. A failure to provide clear and comprehensible information on the matter constitutes a "misleading by omission" commercial practice.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Hungary has not used the option to introduce new regulations with respect to doorstep selling and commercial excursions. However, the Act on Unfair Commercial Practices prohibits aggressive commercial practices. In general, a trader can be held liable for damages resulting from unfair commercial practices.

According to Art. 8 (1) of the Act on Unfair Commercial Practices, a commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence for exploiting a position of power in relation to the consumer so as to apply pressure, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct and the consumer’s ability to make an informed decision with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.

(2) In determining whether a commercial practice is aggressive, account shall be taken of:

a) the timing, location, nature or persistence of the commercial practice;

b) the use of threatening, frightening or abusive language or behavior in commercial practices;

c) the exploitation by the trader acting in commercial practices of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgement, of which the trader is aware, to influence the consumer’s decision with regard to the product;

d) any onerous or disproportionate non-contractual barriers imposed by the trader acting in commercial practices where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; or

e) any threat to take any action that cannot legally be taken.

V. What transparency obligations must traders who publish consumer reviews now comply with?

If the trader provides access to consumer reviews of products, information on whether and how the trader ensures that the published reviews are from consumers who have used or purchased the product should be considered relevant. According to the Act on Unfair Commercial Practices, the failure to provide such information constitutes a "misleading by omission" commercial practice.

According to the Act on Unfair Commercial Practices, the following constitute unfair commercial practices:

• Claiming that product reviews have been submitted by consumers who have used or purchased the product, without taking reasonable and proportionate steps to verify that the reviews come from such consumers; and
• Submitting false consumer reviews or recommendations or instructing another legal or natural person to do so, in order to promote products, or presenting false consumer reviews or recommendations on social media.

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

According to Art. 6 para. 2 c) of the Act on Unfair Commercial Practices, the commercial practice whereby goods are marketed in one Member State as being identical to goods marketed in another Member State, while such goods have significant differences in the composition or characteristics unless justified by legitimate and objective factors, is unfair. (If, taking into account all the factual circumstances, it causes the consumers to take a transactional decision that they would not have taken or they are likely to take otherwise).

The amount of the fine shall be between HUF 15,000 (approx EUR 40) and up to 5 percent of the annual net sales revenue or a maximum of HUF 500,000,000 for multinational companies. If the infringement concerns the lives, health, and physical integrity of a broad range of consumers, or if it results in substantial financial injury to a broad range of consumers, up to HUF 2,000,000,000. (approx. EUR 5,500,000)

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

According to Art. 9 of the Act on Unfair Commercial Practices, traders directly connected with the promotion, sale or supply of goods to which the commercial practice in question pertains are liable for any violation of the prohibition of unfair commercial practices. According to Art. 10 of the Act on Unfair Commercial Policies, the Consumer Protection Authority shall have jurisdiction in connection with any infringement of the provisions relating to the prohibition of unfair commercial practices. There are three exceptions to this: (i) the Act on the National Bank of Hungary, if the commercial practices in question relate to such activities of the trader that is conferred under its competence; (ii) the Act on the Hungarian Competition Authority in connection with infringements if the commercial practices in question exert material influence upon competition; and (iii) the Acts on Food Chain Supervisory Authority in cases of misleading commercial practices in relation to food chain products.

The Consumer Protection Authority acts on request or on its own initiative to investigate the market conduct of a trader from a consumer protection perspective. The consumer's individual case is, however, resolved by the arbitration board. Consumers can also enforce their rights by bringing a civil action. No changes have been introduced in the Hungarian Code of Civil Procedure. Pursuant to current Hungarian law, traders can be held liable for damages resulting from unfair commercial practices.

Furthermore, according to Art. 38 of the Consumer Protection Act, the Consumer Protection Authority or the associations for the protection of consumers’ interests may file for civil action on behalf of consumers against any person who was found guilty by definitive decision of the consumer protection authority of any violation of the consumer protection regulations, where such illegal action affects a wide range of - personally unknown - consumers whose general identity, however, can be established relying on the circumstances of the infringement.

Proceedings may not be opened after a period of three years following the time of the act of commercial practices.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

According to Art. 47 of the Consumer Protection Act, the Consumer Protection Authority may impose a consumer protection fine.

The amount of the fine depends on the size of the annual net turnover of the infringing business, and whether it is an SME or not. Furthermore, fines are higher in the case of infringements that harm or endanger the physical integrity or health of a wide range of consumers or cause significant material damage to a wide range of consumers.

The amount of the fine shall be between HUF 15,000 (approx. EUR 40) and up to 5 percent of the annual net sales revenue or a maximum of HUF 500,000,000 for non-SMEs. If the infringement concerns the lives, health, and physical integrity of a broad range of consumers, or if it results in substantial financial injury to a broad range of consumers, up to HUF 2,000,000,000. (approx. EUR 5,500,000)

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services are now subject to the same rules as all other goods and services covered by the Consumer Rights Directive.

Pursuant to Art. 2 c) of the Act on Unfair Commercial Practices, a "product" means any good or service, including immovable property, rights in rem, digital services and digital content, as well as rights and obligations.

For goods with digital elements and digital content and digital services, however, additional information requirements for traders apply which have been implemented in Art. 9 para. 1 h) - i) of 45/2014 Government Decree.

These stipulate that in the case of off-premises and distance contracts, the trader must inform the consumer in a clear and comprehensible manner, before the consumer makes his contractual statement, of the following:

• the functioning of goods, digital content and digital services containing digital elements and the technical protection measures to be applied; and
• the compatibility and interoperability of any relevant goods, digital content and digital services containing digital elements, to the best of the knowledge reasonably expected of the undertaking.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, for contracts concluded between a consumer and a trader these provisions also apply where a trader provides digital content or a digital service recorded on a non-tangible medium or undertakes to provide such service and the consumer in return provides personal data or undertakes to provide such data to the business.

The provisions do not apply if the personal data provided by the consumer is processed by the trader solely for the purpose of enabling the provision of digital content or a digital service or to enable the trader to comply with legal requirements applicable to it and the trader does not process those data for any other purpose.

(Art. 1 (1a) of 45/2014 Government Decree)

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

Pursuant to Art.11 (1) c) of 45/2014. Government Decree, traders must always provide their telephone number to the consumer when concluding a distance or off-premise contract.The obligation to indicate the fax number, on the other hand, is no longer applicable. In addition to the telephone number and the e-mail address, information must be given if the trader also provides contact details for other online means of communication that allow the consumer to store the data on a durable medium (including the date and time of the correspondence), as well as the name, postal address and identification details of the business on whose behalf the trader is acting.

There is a new information obligation in Art.11 para. 1 q) of 45/2014. Government Decree, stating traders must inform the consumers if they have personalised the price of the specific product/service on the basis of automated decision-making.

Pursuant to Art. 16 of 45/2014. Government Decree, if there is only limited space or time to display the information, the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract with the conditions of termination of indeterminate contracts and, in the case of an indefinite contract or a contract including a subscription, the total amount of the consideration including all the costs relating to the billing period must be indicated. However, the trader must still provide the other mandatory information, including the model withdrawal form, in an appropriate manner.

The model withdrawal form and model withdrawal instruction contained in Annex No.1. of the 45/2014 Government Decree were also amended: in the model withdrawal instruction for distance and off premise contracts, the reference to contact or withdrawal by fax is no longer included. Likewise, the fax number is no longer to be indicated in the model withdrawal form. On the other hand, it is now mandatory to indicate the telephone number in the withdrawal instructions, whereas previously this has only been required if a telephone number was in fact available.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

Pursuant to Art. 2 k) of the Act on Unfair Commercial Practices, an online marketplace is a service that provides software, including a website, a part of a website or an application, operated by or on behalf of a trader, through which consumers can enter into a distance contract with other traders or consumers.

Pursuant to Art. 7 (5) f) of the Act on Unfair Commercial Practices, in the case of an invitation to purchase, relevant information for products offered on online marketplaces is, whether or not the third party offering the product is a trader, based on the declaration made by the third party to the online marketplace provider.

According to Art. 11/A of the 45/2014 Government Decree, an operator of an online marketplace must provide the consumer with information in a clear and comprehensible manner, appropriate to the means of distance communication used.

Thereafter the operator must provide information about:

• the main parameters for determining the ranking presented to the user;
• whether the third party offering their goods, services or digital product is a trader or not;
• the non-applicability of consumer protection law if the third party offering the goods, services or digital product is not a trader; and
• where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital product and the operator of the online marketplace.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

Pursuant to Art. 23 (6) of the 45/2014 Government Decree, in the event of withdrawal or termination by the consumer, the trader shall refrain from using any content other than personal data generated by the consumer in the course of using digital content or digital services provided or created by the trader, unless such content:

a) has no use outside the context of the relevant digital content or digital services;

b) is related exclusively to the activity of the consumer when using the relevant digital content or the digital service;

c) has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or

d) was created by the consumer together with others, provided that other consumers can continue to use the content.

The trader must - upon request - also provide the consumer with the content provided or created by the consumer (unless one of the the first three exceptions mentioned above applies), which must be done free of charge, within a reasonable period of time and in a common and machine-readable format.

The consumer has the right to download digital content free of charge, without restriction, within a reasonable time, in a commonly used and machine-readable format.

The relevant changes are included in Art. 23 (6) - (8) of the 45/2014 Government Decree.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

Pursuant to Art. 29 (1) a) and m) of the 45/2014 Government Decree, consumers may not exercise their right of withdrawal or termination,

• in the case of a contract for the provision of a service, after full performance of the service, but where the contract imposes a payment obligation on the consumer, only if performance has begun with the consumer's express prior consent and the consumer's knowledge that he/she will lose his/her right of withdrawal once the business has performed the contract in full;
• in respect of digital content supplied on a non-tangible medium, where the business has begun performance with the consumer's express prior consent and the consumer has, at the same time as giving that consent, acknowledged that he/she will lose his/her right of withdrawal once performance has begun and the trader/business has sent the consumer a confirmation.

VII. What penalties can be imposed for infringements of consumer rights?

Pursuant to Art. 47 (1) of the Consumer Protection Act, if the Consumer Protection Authority finds that there has been a breach of consumer protection provisions, it may, taking into account the relevant circumstances of the case and having regard to the requirement of proportionality, impose the following legal consequences:

• terminate the infringing conduct;
• prohibit the continuation of the infringing conduct;
• order the business to remedy the breaches by setting a time limit within which the breaches must be remedied;
• impose conditions or prohibit the marketing of the goods until the lawful situation has been remedied or sale of the goods;
• confiscate the goods and destroy them at the expense of the business which committed the infringement;
• order the temporary closure of the business affected by the infringement;
• prohibit the marketing of certain goods for a period not exceeding one year or in case of repetitive infringments, the temporary closure of business premises for a period not exceeding 30 days; or
• impose a consumer protection fine.

The amount of the consumer protection fine depends on a number of different factors and is determined by the competent authority after examining all the circumstances of the case, but in general it can range from HUF 15,000 to HUF 2,000,000,000 (approx. EUR 40 to EUR 5,500,000)

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b para. 2 Unfair Contract Terms Directive: Hungary has made use of the optional limitation of penalties for infringements of consumer rights related to consumer contracts.
• Art. 6a No. 3 to 5 Price Indication Directive: Hungary has made use of the option to exempt certain products or practices from the obligation to indicate the prior price when announcing a price reduction.
• Art. 3 para. 5 Unfair Commercial Practices Directive: Hungary has made use of the option to regulate new obligations for consumer protection against unfair practices in commercial excursions.
• Art. 11a Unfair Commercial Practices Directive: Hungary has determined the conditions for the application and the effects of remedies for consumers harmed by unfair commercial practices.
• Art. 13 Unfair Commercial Practices Directive: Hungary has laid down the rules on penalties applicable for the infringement of consumer rights by unfair commercial practices.
• Art. 6a para. 2 Consumer Rights Directive: Hungary has made use of the option to regulate additional information obligations for online marketplace operators.
• Art. 9 para. 1a Consumer Rights Directive: No use was made of the option to extend the withdrawal period for consumer contracts concluded on occasion of doorstep selling or commercial excursions to 30 days.
• Art. 16 para. 2 Consumer Rights Directive: No use was made of the option to derogate from some of the exceptions from the right of withdrawal set out in Art. 16, para. 1 for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 para. 3 Consumer Rights Directive: Hungary has made use of the option to provide that in the case of service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent.
• Art. 24 Consumer Rights Directive: Hungary has not made use of the option to regulate higher maximum fines than the ones provided for in the Directive.

Noteworthy points arising from legislative changes

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