The Franchise Law Review - Edition 5
Péter Rippel-Szabó
Bettina Kövecses
Siegler Bird & Bird Ügyvédi Iroda
Franchising in Hungary is a common business model and enjoys continuously growing popularity. In aggregate, around 300–350 franchise networks operate in Hungary, the number of franchisees is approximately 20,000, and around 100,000 employees (including suppliers) work in the franchise sector. The vast majority of franchise networks are active in the retail, services and hospitality industries.2
Hungary's membership status in the EU since 2004 has contributed to the growth of the number of foreign franchisors. According to publicly available data3 there are currently approximately 76 foreign franchise networks with more than 1,000 units in Hungary. Most of them are from the United States (20) and Germany (14). Some well-known franchisors are present in the country (e.g., McDonald's, Nordsee, Dallmayr, BioTechUSA, Kodak and Hertz). Famous Hungarian franchises include Fornetti (food), Diego (decor), Duna House (real estate) and Coop (retail).
The Hungarian Franchise Association (HFA) was established in 1991 and currently has approximately 60 members. The HFA, working to the European Code of Ethics for Franchising and its own Code of Ethics,4 supervises the operation of franchise networks and represents and promotes the Hungarian franchise sector and its own members. The HFA has acceded to the European Franchise Federation and the World Franchise Council.
To date, no government report has been prepared on franchising in the Hungarian market, but a brief overview of the local franchise market in English is accessible on the HFA's official website5 and the HFA, from time to time, issues short summaries on the status of its members and franchising in general.
II MARKET ENTRY
i Restrictions
As a general rule, no restrictions apply and no approval is required by foreign franchisors to enter the Hungarian market. However, if a foreign franchisor pursues economic activity in Hungary, it might be required to set up a local company (see Section V.i); setting up such a company follows the general rules of company formation (see Section IV.iii).
There is no general restriction on a foreign entity granting a master franchise or development rights to a local entity, although the parties to franchise agreements must comply with the provisions of competition law (see Section VI.v) and some specific sectoral rules may also affect the establishment of a master franchise relationship.
There is no general restriction on foreign franchisors owning equity in a local business. EU- and EEA-based individuals and entities, and entities that enjoy the same treatment on the basis of an international treaty, can acquire title of ownership to Hungarian non-agricultural real estate under the same conditions as Hungarian nationals. Other foreign individuals or entities may acquire Hungarian non-agricultural real estate if they obtain a permit granted by the county or metropolitan government office; however, no foreign party, whether a private individual or company, may acquire title or any other right to Hungarian agricultural land or protected natural areas. The same restriction applies to acquisitions by Hungarian subsidiaries owned by foreign investors.
ii Foreign exchange and tax
No withholding tax is levied in Hungary on dividends. However, cross-border franchising can face value added tax (VAT) issues (e.g., when offsetting marketing and other services fees against franchising fees in the form of a discount).
III INTELLECTUAL PROPERTY
i Brand search
The Hungarian Intellectual Property Office (HIPO) maintains an online database of all Hungarian and Community-registered intellectual property (IP) rights, such as trademarks, patents and design rights. Before considering the use of a sign or device as a brand identifier conducting a search in the HIPO database is recommended. To avoid the risk of future opposition or cancellation of a trademark the search should cover not only the identical, but also the possible similar versions of the proposed sign to avoid any conflict with earlier registered rights. When considering the scope of the search, special attention must be paid to the goods and services for which the sign or design is to be used. Although the existence of a company name does not hinder the registration of a similar or identical sign as a trademark, a preliminary assessment should include a search of the company register for any commercial and company names that have been in the market for a long time and may cause problems in the future. The principal data on Hungarian companies, including company names, is freely accessible through the online company registry. An online presence may be identified by searching in the official .hu (dot hu) domain registry operated by the Council of Hungarian Internet Providers. As the Hungarian language uses accented letterforms (á, é, í, ó, ö, ő, ú, ü, ű) and such use is also allowed in domain names, a search for variations is strongly recommended to avoid cybersquatting.
ii Brand protection
A Hungarian trademark is obtained through registration with the HIPO. A sign can be registered as a Hungarian trademark, a European Union trademark (EUTM) or as an international trademark designating Hungary under the Madrid Agreement of 1891 Concerning the International Registration of Marks and the Madrid Protocol of 1989. The use of a sign does not create trademark protection in Hungary; a trademark must be registered. Trademark protection may generally be granted for any sign that can be represented graphically and is capable of distinguishing goods or services from those of other undertakings (origin-indicating function). A sign is excluded from trademark protection if it is devoid of any distinctive character. The procedure for registration of a trademark begins with the filing of a trademark application with the HIPO or the European Union Intellectual Property Office (EUIPO); registration is granted for 10 years and may be renewed without limitation.
Design protection grants legal protection for the appearance of a product. Design protection is granted for any design that is new on a worldwide level and has individual character, and for which there are no grounds for refusal that exclude it from protection. Design protection can be obtained by filing a design application with the HIPO, with the EUIPO or by filing an international application under the Hague Agreement Concerning the International Deposit of Industrial Designs.
Under the Hungarian .hu top-level domain, domain names may be registered according to the Domain Registration Rules and Procedures of the Council of Hungarian Internet Providers.
A licence for the use of a trademark or design must be given in writing, and to gain effect against third parties, it must be registered with the relevant registry (i.e., the HIPO or the EUIPO).
iii Enforcement
The trademark owner (or licensee) can prevent any third party from using a sign without the proprietor's consent in the course of trade. The Trademark Act6 contains examples of use that can be objected to: (1) using the trademark on the goods or on packaging thereof, (2) putting on the market or offering for sale the goods under the trademark or stocking them for such purposes, (3) offering or supplying services under the trademark, (4) importing or exporting the goods under the trademark, and (5) using the trademark in business correspondence and in advertising.
Under the Design Act,7 design protection confers on its holder the exclusive right to exploit the design. The holder of the design protection is entitled to prevent any person not having the holder's consent from exploiting the design. Exploitation covers in particular the making, using, putting on the market, offering for sale, importation and exportation of the product embodying the design, as well as the stocking thereof for such purposes.
The trademark proprietor or the holder of a design right is entitled to start proceedings to stop infringement of such a right. A licensee recorded in the Trademark or Design Register may also commence infringement proceedings in his or her own name if he or she provided the right holder with an opportunity to take appropriate actions against infringement, but the right holder has failed to take actions. The civil law sanctions are (1) establishment of infringement by the court; (2) permanent injunction to cease infringing activity or any activities directly threatening to infringe as well as desist from doing so in the future; (3) providing information about the persons who participated in the production and distribution of the goods concerned by the infringement, and about the business relations created for the dissemination of such goods; (4) public apology; (5) recovery of unjust enrichment; and (6) seizure, transfer, recall and definite removal from the channels of commerce; destruction of the infringing products and the packaging thereof, as well as the means and materials exclusively or principally used for infringement. These sanctions can be claimed regardless of whether the infringer acted in good or bad faith. The trademark or design owner (or licensee) can also claim compensation for damage (in the amount exceeding the unjust enrichment), but for such a claim the general provisions of the Civil Code8 would apply, requiring the culpability of the infringer to be proven as well.
General civil law applies in relation to questions that are not regulated by the Trademark or Design Acts. Under the Civil Code individual rights enjoy protection. Individual rights include (1) the right to bear a name, (2) protection of goodwill, (3) business secrets and (4) know-how. Under the Civil Code a remedy – an award (lump sum) – for the infringement of individual rights can also apply. For the application of this remedy, it is not necessary to prove the amount of damage or the culpability of the infringer, only the fact of the infringement.
iv Data protection, cybercrime, social media and e-commerce
The Data Protection Act9 does not set out specific restrictions on the transfer of personal data within the European Economic Area (EEA) and to Switzerland. Outside the EEA and Switzerland personal data can only be transferred to data controllers or technical data processors pursuing data processing or technical data processing activities if (1) the data subject has given explicit consent; or (2) the legal basis of data processing specified in the Data Protection Act is satisfied and an adequate level of protection of the personal data in the third country is ensured during the processing or technical processing of the transferred data.
The E-Commerce Act,10 in full harmonisation with the related EU laws, regulates (1) the service provider's obligations on the provision of data, (2) the service provider's liability, (3) the conclusion of contracts via electronic means, (4) notice and takedown proceedings and (5) the rules concerning electronic advertisements. Crimes in relation to cybercrimes and franchising under the Criminal Code11 may include the circumvention of protective technologies or technologies protecting information systems, as well as violation of information systems or data.
There is no specific law on social media. This area is primarily regulated by the general provisions of civil law as well as the Data Protection and E-Commerce Acts.
IV FRANCHISE LAW
i Legislation
In the absence of a dedicated franchise act, franchises are subject to the same laws – primarily the Civil Code12 – that govern other businesses. The general rules of civil and contractual law as well as the Civil Code's specific chapter on franchise agreements (in the wording of the Civil Code, 'agreements on the lease of rights') apply to franchises in Hungary. According to the definition of the Civil Code, the lessor (i.e., the franchisor), in exchange for remuneration, licenses its copyright, IP rights and know-how to the lessee (i.e., the franchisee), whereas the franchisee manufactures and sells products or provides and sells services through the use of the franchisor's rights. This definition does not include any reference to the licensing of trademarks and focuses on service and distribution franchises instead of the most common commercial franchises. The Civil Code also includes provisions on (1) the licensing of copyright, IP rights and protected know-how, (2) the franchisor's supply obligation, (3) the protection of the good reputation of the franchise network, (4) the franchisor's instruction and supervisory rights, and (5) rules on the termination of contracts concluded for an indefinite period. Because of the Civil Code's dispositive nature the parties may deviate from these provisions in their agreements. Since the focus of the franchise agreement in the Civil Code is rather one-sided and the provisions are not comprehensive, the parties, using the freedom-of-contract principle, usually exclude the application of the provisions of the Civil Code on franchise agreements.13
The Civil Code entered into force as of 15 March 2014 and replaced the previous Civil Code.14 The rules of the previous Civil Code apply to agreements that were in place on 15 March 2014 and statements and declarations made concerning such agreements. Nonetheless, the parties may agree to apply the provisions of the current Civil Code to their contract even if the contract was entered into before 15 March 2014.
Franchise agreements must be in compliance with the Competition Act.15 In the absence of a special block exemption regulation on franchises, the Block Exemption Regulation16 sets out the criteria as to how franchise agreements may be exempted from the prohibitions relating to the restriction of competition.
In relation to IP rights, the provisions of the Trademark Act, Copyright Act17 and Patent Act18 may apply to franchise agreements.
Although they are not binding legislation, the Code of Ethics and the HFA guidelines19 have been considered by courts in civil proceedings on an increasing number of occasions. Additionally, these regulations may also serve as a basis for assessing whether the parties to a franchise agreement acted in good faith and according to the applicable standard of conduct in a particular situation.
ii Pre-contractual disclosure
Under the rules of Hungarian civil law, contracts must be concluded on the basis of mutual agreement by the parties. The parties must agree on all material details. There is no need to agree on details that are regulated by law. However, the Civil Code does not define the term 'material details'. According to the standard practice and the HFA's Code of Ethics, in the case of franchise agreements material details include: the licensing of know-how, commercial appearance, trademarks, the franchisee fee and royalties to be paid, and duration and termination of contract (see Section IV.iv).
The Civil Code recognises the doctrine of culpa in contrahendo. Under this principle the parties are obliged to (1) cooperate during the conclusion of the franchise agreement, (2) respect each other's rightful interests and (3) before the conclusion of the franchise agreement inform each other regarding all essential circumstances in relation to the proposed contract. There is no explicit statutory provision on the formal requirements of the pre-contractual information duty concerning franchise agreements.
Under Hungarian law, a franchisor may be exposed to a damages claim in tort over pre-contractual statements if the franchisee is able to prove that (1) the franchisor unlawfully concealed or misrepresented essential circumstances prior to entering into the franchise agreement (breach of duty); (2) the franchisee incurred damage (damage); (3) the damage was incurred by the franchisee because of the concealment or misrepresentation of essential circumstances (causal link); and (4) the franchisor is not able to excuse itself by proving that it proceeded as generally expected under the given circumstances (i.e., acted according to the applicable standard of conduct in the particular situation). However, neither party may be held liable for not entering into the agreement.
It is generally accepted practice that, to protect their business interest and trade secrets, franchisors require franchisees to sign a non-disclosure agreement before the franchisor delivers the draft of the franchise agreement.
iii Registration
There are no specific registration requirements for franchises. However, there are registration requirements that may have an impact on franchising:
a for the purpose of pursuing economic activities in Hungary, everyone can freely establish a company. Companies are registered by registry courts;
b before a newly established company can be registered by the competent registry court and its tax number issued, a preliminary tax registration procedure is completed by the tax authority;
c after their registration by the registry court, companies are obliged to apply for registration at the competent chamber of commerce and industry within five days; and
d if the franchisor or the franchisee pursues a specific activity, additional registration (e.g., at chambers or authorities) may be required.
iv Mandatory clauses
Under Hungarian law, there are no specific mandatory statutory clauses to be included in franchise agreements. According to the general contractual rules, the parties must agree on all material details of the contract, otherwise it may be invalid or unenforceable. The Civil Code regulates some of the basic content of franchise agreements (see Section IV.i). However, parties may deviate from or even exclude these statutory provisions and agree on additional contractual provisions.
The HFA's Code of Ethics, which does not constitute a mandatory legislative act, is often considered by courts as a guideline for assessing the fulfilment of the duty of good faith. It sets out minimum requirements to be included in franchise agreements. These are (1) the franchisor's and the franchisee's rights and obligations; (2) the description of goods and services to be provided to the franchisee; (3) the term of the agreement, which must be sufficiently long to enable the franchisee to achieve a return on its initial investments; (4) provisions on renewal of the agreement; (5) conditions under which the franchisee may sell or assign the business being subject to the franchise agreement and the franchisor's related rights; (6) the advantages on the franchisee's side resulting from the use of the business name, trademarks, signs, images and other marks of the franchisors; (7) the franchisor's rights to adapt new or changed methods with regard to the franchise system; (8) termination of the agreement; and (9) conditions for post-contractual mechanisms concerning goods, real estate etc. that belong to the franchisor or third parties.
v Guarantees and protection
The franchisor may request guarantees or other types of securities from the franchisee. Those securities are regulated in the Civil Code. The parties to the franchising agreements usually rely on suretyship, security deposit, liens, bank guarantee, contractual penalty or purchase options. Under the Civil Code, in line with the protection of the good reputation of products and services subject to franchise agreements, each party is obliged to protect the good reputation of the franchise network.
Guarantees provided to the franchisor by the franchisee are enforceable. To ensure proper enforcement, the guarantee should be properly drafted. It is also recommended that the scope of the franchisee's collateral commitments cover the franchisee's breach of its contractual obligations towards suppliers.
V TAX
i Franchisor tax liabilities
Generally, the position of a foreign franchisor will most likely not constitute a permanent establishment in Hungary. Thus, there will be no tax liabilities for the franchisor in Hungary. However, if there is a permanent establishment or a branch office or a commercial representative office established by the franchisor, general tax liability will arise as described below.
Foreign entrepreneurs may conduct their business in Hungary by opening a branch office in the country. Such a branch office is a separate organisational unit of the foreign business association without legal personality registered by the Hungarian court of registration. Through their branch offices, foreign businesses are entitled to carry out permanent business activities in Hungary and are represented towards the authorities and third parties by their branch offices.
A commercial representative office is a unit of a foreign company without a legal personality, which can operate from the time it is registered in the company register. The scope of activities of commercial representative offices is limited to mediating and preparing contracts and carrying out information, advertising and propaganda activities on behalf of the foreign company.
If the franchisor is a Hungarian entity, there are advantageous tax allowances in connection with the franchising fee if it qualifies as a royalty. Provided that certain conditions are fulfilled, 50 per cent of the revenues accounted as royalties may reduce the tax base.
ii Franchisee tax liabilities
Taxpayers with Hungarian residence have tax-paying obligations for their income originating both from Hungary and abroad. Non-resident businesses are only taxable on activities conducted in Hungary.
Corporate tax is 10 per cent of the positive tax base up to 500 million forints, and 19 per cent of the remaining portion of the tax base.
Companies are required to file a corporate tax return every year (for each business year). Generally, the financial year is identical to the calendar year, but companies may use a different financial year and, in relation to this, a tax year different from the calendar year.
Business associations are required to file their corporate tax returns and pay corporate tax by 31 May following the tax year. If the taxpayer opts for a different tax year, the filing and payment deadline is the last day of the fifth month after the last day of the financial year.
Besides corporate income tax, general VAT rules apply to the franchise business as well. Currently, with some exceptions, the VAT rate is 27 per cent.
iii Tax-efficient structures
Numerous structuring solutions are favoured. Because of the deduction from the corporate income tax base of 50 per cent of received royalties, a franchisor set-up in Hungary is definitely an option to be considered.
VI IMPACT OF GENERAL LAW
i Good faith and guarantees
According to the general principles of civil law, in the course of exercising civil rights and fulfilling such obligations, the parties must act in good faith and cooperate with each other. Unless stricter requirements are prescribed by law, the parties must act according to the generally applicable standard of conduct in the particular situation (i.e., during the conclusion, fulfilment and termination of franchise agreements). Compliance with the standards of good faith and cooperation is especially required in the case of long-term relationships (such as franchise agreements) and during the fulfilment of requirements concerning the provision of information. The duty of good faith is further specified in some provisions of the Civil Code (e.g., in relation to breach of contract). Upon the incurrence of any damage, the person incurring the damage may claim damages, if all relevant prerequisites are met (see Section IV.ii). Courts and arbitration tribunals rarely decide on a case expressly and exclusively on the basis of a violation of the duty of good faith under the Civil Code.
ii Agency distributor model
Under Hungarian law franchisors or franchisees are not treated as agents or distributors.
Under the provisions of the Civil Code on agency agreements agents intermediate in sale, purchase or other agreements in exchange for a fee. Under the main rule, agents may not enter into agreements on behalf of the principal. In the case of long-term agency arrangements, however, agents are entitled to conclude agreements on behalf of their principal. In any scenario, agents are only entitled to the agency fee; the economic results of the agreements concluded by the agents exclusively benefit the principal. The Civil Code expressly sets out that franchisees proceed under their own name and at their own risk.
The Civil Code also contains specific regulations on distribution agreements; such agreements, however, solely relate to the purchase and selling of goods. The supplier is only entitled to instruct the distributor on the appropriate distribution of the goods. So, although retail franchises usually have some common features with distribution agreements, distribution and franchise agreements have some significantly different features in practice. In comparison with distribution agreements, franchise agreements constitute a closer cooperation of the parties. In the case of distribution agreements, the manufacturer does not instruct and closely monitor the distributors and does not provide extensive support to the distributors.
iii Employment law
Courts do not treat franchisees as employees and to date there is no case law from the Hungarian Supreme Court dealing with this issue. Considering the basic features of the employment relationship under the Labour Code20 (e.g., employees can only be individuals, not undertakings or private entrepreneurs; work must be performed in accordance with the employer's instructions; employees must arrive at work on time, in a condition fit for work, perform work during working hours and cooperate with fellow workers) and the standard practices of franchise agreements, it is very unlikely that franchisees will be considered employees by Hungarian courts.
iv Consumer protection
Under the Civil Code and the Consumer Protection Act21 the term 'consumer' means a private individual (i.e., a natural person) who is a party to a contract concluded for reasons other than the person's economic or professional activity. As franchise agreements necessarily relate to the franchisee's economic and professional activity, franchisees cannot be treated as consumers.
v Competition law
The Competition Act, in full harmonisation with Article 101 of the TFEU and further related EU regulations, sets out that (1) agreements; (2) concerted practices between undertakings; and (3) decisions by social organisations of undertakings, public corporations, associations or other similar organisations that have as their object or potential or actual effect the prevention, restriction or distortion of competition are prohibited. Under this prohibition, franchise agreements, in the vast majority of cases, constitute vertical restrictions of competition as they are concluded between undertakings from different levels of the value chain. However, franchise agreements may fall within the scope of statutory exemptions:
a agreements concluded by undertakings that are not independent of each other do not qualify as agreements restricting competition. However, as the independence of the franchisee is an essential feature of franchising, this exemption cannot be applied to franchise agreements;
b franchise agreements of minor importance are not prohibited, unless the agreements relate to price-fixing or market sharing. A franchise agreement is of minor importance if the joint market share of the participating undertakings and undertakings that are not independent from them does not exceed 10 per cent of the relevant market;
c if franchise agreements are in compliance with the provisions of the Block Exemption Regulation, they are automatically exempted from the prohibitions on the restriction of competition. The block exemption does not apply to agreements in which, by the cumulative effect of those agreements and similar other agreements on the relevant market, the requirements of general exemptions are not satisfied; and
d the prohibition of restriction of competition may also be inapplicable if the franchise agreement fulfils the criteria for general exemption under the Competition Act.
The Block Exemption Regulation applies to vertical agreements entered into between an association of undertakings and its members, or between such an association and its suppliers, if all its members are retailers of goods and if no individual member of the association, together with its connected undertakings, has a total annual turnover exceeding the sum of Hungarian forints equalling €50 million. The exemption also applies to the licensing of IP rights provided that these provisions (1) do not constitute the primary object of the franchise agreement; (2) are directly related to the use, sale or resale of goods or services by the franchisee or its customers; and (3) do not contain restrictions of competition having the same object as vertical restraints that are not exempted under the Block Exemption Regulation. The exemption, however, applies only if the franchise agreement does not contain mutual vertical restrictions and the franchisor is not a competitor to the franchisee concerning the production of goods or the provision of services. Finally, to be exempted, the market share of both the franchisor and the franchisee may not exceed 30 per cent on the relevant market.
Franchise agreements may not be granted exemption from the prohibition if the objective is the limitation or restriction of (1) the franchisee's ability to determine its sale price; (2) the territory or clientele in or to which the product or service can be sold; (3) the active or passive sale at the retail level of a selective distribution system; (4) the cross-supply among distributors of a selective distribution system; or (5) the sale of components as spare parts, if the agreement was concluded between the supplier and the person who incorporates the spare parts (specific exemptions may apply in some cases).
No exemption may be granted for (1) any direct or indirect non-compete obligation, the duration of which is indefinite or exceeds five years; (2) any direct or indirect obligation causing the franchisee, after termination of the agreement, not to manufacture, purchase, sell or resell goods or services (specific exemptions may apply); (3) any direct or indirect obligation causing the franchisee as a member of a selective distribution system not to sell the brands of particular competing suppliers.
Reasonable and necessary contractual clauses on exclusivity and full line forcing, which are essential features of most franchise agreements, may usually be exempted from the prohibition of the restriction of competition, if the parties comply with the statutory provisions and the case law of the Hungarian Competition Authority (see Section VI.vi). Any agreement or practice to fix prices is, in the vast majority of the cases, prohibited and cannot be exempted. It is important to note that compliance with competition law must be assessed by the parties themselves. Improper formulation of franchise agreements may entail significant legal risks, therefore it is strongly recommended that franchisors and franchisees seek proper legal advice and prepare an economic analysis on a case-by-case basis.
vi Restrictive covenants
Generally, all non-compete and other restrictive covenants that fall within the scope of hardcore or excluded restrictions, or do not fulfil the requirements under the Block Exemption Regulation, may not be enforced. In addition, all clauses that unnecessarily and unreasonably narrow the scope of the franchisees' freedom to set (reselling) prices and make decisions as to where to purchase the goods subject to the franchise agreement restrict the competition.22 Thus, franchise agreements may be exempted under the Block Exemption Regulation, or the general exemption, if they contain only restrictive provisions that are in compliance with the principles of franchising and necessary for the protection and operation of the licensed know-how.
Therefore, the parties are advised to (1) continuously supervise the compliance of the franchise agreement with the provisions of competition law; and (2) avoid any clauses that unnecessarily and unreasonably restrict or have an objective to restrict the competition. Non-compete and other restrictive covenants may be enforced by incorporating appropriate clauses into the franchise agreements.
vii Termination
Under the Civil Code, the parties may freely determine the rules regarding the termination of contracts entered into for both a definite and an indefinite period. Franchise agreements may be terminated by the mutual consent of the parties or by one of the parties giving notice of termination. If the contract is terminated with immediate effect, it ceases to exist upon the time of delivering of the notice. Otherwise the agreement terminates at the end of the notice period.
The Civil Code sets forth specific rules with regard to the termination of franchise agreements concluded for an indefinite period, from which the parties may deviate by mutual consent. Franchise agreements concluded for an indefinite period may be terminated any time, effective as of the last the day of the calendar month concerned. The termination period is one month in the first year of the agreement, two months in the second year, three months in the third and following years. Upon the termination of the franchise agreement, all rights of the franchisee relating to copyright, IP rights or protected know-how cease to exist. The Civil Code contains no provisions on the termination of franchise agreements concluded for a definite period; nonetheless, the parties, under the principle of freedom of contract, will be entitled to enter into a franchisee agreement for a definite period and regulate the termination of such a contract.
If agreed by the parties, the franchisor may take over the franchisee's business after the termination of the franchising agreement.
viii Anti-corruption and anti-terrorism regulation
If the services set forth in the franchise agreement fall within the scope of the Anti-Money Laundering and Anti-Terrorism Act,23 the service provider must comply with the general provisions on customer due diligence measures, reporting obligations and preparation and application of internal regulations. The Anti-Money Laundering and Anti-Terrorism Act does not provide for any specific franchise-related regulations.
ix Dispute resolution
In practice, parties to franchise agreements tend to opt for litigation via local courts and arbitration tribunals. While mediation is a recognised form of alternative dispute resolution, it is not mandatory under Hungarian law and parties are usually reluctant to choose this way of solving their disputes. There is no specific procedure or industry practice for franchising disputes; neither does the HFA offer mediation or arbitration rules or services. However, the HFA, upon request by HFA members, may play a conciliatory role in disputes arising between members.24
Under the Code of Civil Proceedings25 business entities (i.e., franchisors and franchisees), before filing a claim with ordinary courts, are obliged to try to resolve the dispute out of court.
A request for a preliminary injunction (PI) may not be submitted before the claims on the merits of the case are filed with the court – except for matters concerning IP rights. It must be proved that the PI is necessary (1) to prevent the occurrence of imminent damage; (2) to preserve the situation that is the subject of the proceeding (status quo); or (3) for special legal protection of the applicant. Regardless of which of these grounds is referred to, there is an additional general precondition to be fulfilled: the disadvantages caused by the PI should not exceed the advantages achieved thereby. So, it is possible to obtain a PI to prevent a former franchisee from continuing to trade in breach of a non-compete provision or from using the franchisor's trademarks or other IP rights. The court decides on the PI 'without delay'; the law does not set out a mandatory deadline. Issuance of a PI usually takes three to six weeks.
Local courts recognise and uphold foreign choice of law or jurisdiction clauses, if the clauses are in compliance with relevant Hungarian laws. Ordinary court proceedings, including first and second instances, may last for several years, arbitration proceedings are usually shorter.
Under Hungarian contractual law, the party breaching the contract may be held liable for damages. The franchisor or the franchisee is not liable for the damage caused, if it is able to prove that (1) the circumstances causing the damage were out of its control, (2) the circumstances were not foreseeable by it at the date of the conclusion of the agreement, and (3) it was not obliged to prevent such circumstances or damage. The consequential damage and lost profit must only be reimbursed if the injured party is able to prove that the potential damage could be foreseen at the time of entering into the franchise contract. If the damage was caused wilfully, the full amount of damages must be reimbursed. The person incurring the damage has the obligation to mitigate damages and the party causing the damage would not be held liable for that portion of damages that could have been avoided by the person incurring the damage.
Litigation costs are allocated proportionally between the parties depending on the outcome of the litigation. These costs are not statutorily capped; however, excessive attorney fees and court costs may be reduced by the court. Enforcement of judgments and awards follows the common rules of enforcement under Hungarian law. Hungarian courts readily recognise foreign arbitral awards from other member countries of the New York Convention,26 though violation of Hungarian public order may serve as grounds for refusal.
VII CURRENT DEVELOPMENTS
Because of its strategic geographical location, its EU membership status, its relatively cheap and skilled workforce, and low investment requirements, Hungary is likely to remain a target country for foreign franchisors and there are no current developments that would deter foreign franchisors from entering the Hungarian market. The Civil Code entered into force on 15 March 2014 and it contains specific provisions on franchise agreements. These provisions may serve as guidance for franchisors when entering into contracts with franchisees. The parties, however,usually exclude the application of the provisions of the Civil Code on franchise agreements for practical reasons. The Civil Code replaced not only the previous Civil Code, but also the previous Companies Act, and modified several laws. As a result, local franchisors and franchisees, if they have not yet done so under the transition period provided by the new law, may need to adapt their current business model to comply with the new legislation.
1 Péter Rippel-Szabó and Bettina Kövecses are associates at Knight Bird & Bird Iroda.
2 Source: Hungarian Franchise Association, 'Franchising in Hungary', accessible at www.franchise.hu/English/Franchising+in+Hungary (last accessed 12 November 2016).
3 Source: official website of the Hungarian Franchise Association, accessible at www.franchise.hu (last accessed 12 November 2016).
4 The Code of Ethics is accessible at www.franchise.hu/Etikai+k%C3%B3dex.
5 See footnote 2.
6 Act XI of 1997 on the protection of trademarks and geographical indications.
7 Act XLVIII of 2001 on the legal protection of designs.
8 Act V of 2013 on the Civil Code.
9 Act CXII of 2011 on informational self-determination and freedom of information.
10 Act CVIII of 2001 on certain issues of electronic commerce services and information society services.
11 Act C of 2012 on the Criminal Code.
12 Act V of 2013 on the Civil Code.
13 In the summer of 2016, a draft amendment of the new Civil Code was accepted by the parliament. The original conception of this draft amendment intended to take out all franchise rules from the Civil Code on the basis that the rules of the Civil Code cannot contribute to the growing importance of franchise agreements in relation to small and medium-sized companies, and in relation to the Hungarian national economy. Ultimately, the accepted version of the amendment did not modify the current provisions on franchise agreements.
14 Act IV of 1959 on the Civil Code.
15 Act LVII of 1996 on the prohibition of unfair and restrictive market practices.
16 Government Decree No. 205/2011 (X.7) on the exemption for certain groups of vertical agreements from the prohibition of restriction of competition.
17 Act LXXVI of 1999 on copyright.
18 Act XXXIII of 1995 on the protection of inventions by patents.
19 The guidelines are accessible at www.franchise.hu/Ir%C3%A1nyelvek (last accessed 12 November 2016).
20 Act I of 2012 on the Labour Code.
21 Act CLV of 1997 on consumer protection.
22 Position statements 2006 of the Competition Council of the Hungarian Competition Authority; Section 11.26 (Vj-171/2002). Pursuant to the Competition Council, the safeguarding of competition within a given brand where only a handful of competitors are present is especially important. The position statements reflect the Competition Council's law interpretation with regard to the Competition Act.
23 Act CXXXVI of 2007 on the prevention of money laundering and terrorism.
24 Article 4.6 of the statutes of the HFA. The HFA statutes are accessible only in Hungarian at www.franchise.hu/Alapszab%C3%A1ly (last accessed 12 November 2016).
25 Act III of 1952 on the Code of Civil Proceedings.
26 United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Awards, implemented into Hungarian law by Law Decree No. 25 of 1962.
The Franchise Law Review
Editor's Preface
What is Franchising?
Franchising as Part of an International Multichannel Strategy
The Regulation of Franchising around the World
Sustaining Relationships
Tax Considerations
Trade Secrets and Franchising
Franchisees as Consumers
Resolving International Franchise Disputes
E-Commerce and Franchising
The Competition Law of the European Union
The Impact of Brexit on Franchising
Editor's Global Overview
Africa Overview
GCC Overview
Dispute Resolution Appendix
Other chapters on Hungary
The Acquisition and Leveraged Finance Review
The Banking Regulation Review
The Consumer Finance Law Review
The Executive Remuneration Review
The Insolvency Review
The International Arbitration Review
The Mergers & Acquisitions Review
The Privacy, Data Protection and Cybersecurity Law Review
The Private Wealth & Private Client Review
The Sports Law Review
All titles on Hungary
The Shareholder Rights and Activism Review Edition 3
Editor Francis J Aquila
Over the years since the financial crisis, shareholder activism has been on the rise around the world. As both shareholder activists, and the companies they target, become more geographically diverse, it is increasingly important for legal and corporate practitioners to understand the legal framework and emerging trends of shareholder activism in the various international jurisdictions facing activism. The Shareholder Rights and Activism Review is designed as a primer on these aspects of shareholder activism in such jurisdictions.
The Corporate Governance Review Edition 9
Editor Willem J L Calkoen
NautaDutilh
In this ninth edition, we can see that corporate governance is becoming a more vital and all-encompassing topic with each year that passes. We all realise that the modern corporation is one of the most ingenious concepts ever devised. Our lives are dominated by corporations. We eat and breathe through them, we travel with them, we are entertained by them, most of us work for them. Most corporations aim to add value to society, and they very often do. Some, however, are exploiting, polluting, poisoning and impoverishing us…
The Mergers & Acquisitions Review Edition 12
Editor Mark Zerdin
Despite a slight decrease in overall activity compared with 2016, 2017 was a strong year for global M&A activity as, for the fourth consecutive year, global deal-making activity exceeded US$3 trillion with announced transaction volumes reaching US$3.7 trillion. Even though 2017 did not replicate the record-breaking number of mega-deals in 2015 nor the high volume seen in 2016, market participants in a number of sectors took advantage of continued access to cheap capital globally to engage in M&A activity.
The Restructuring Review Edition 11
Editor Christopher Mallon
The global economic upswing, which began in 2016, continues to strengthen with global GDP growth reaching 3.9 per cent in the second quarter of 2018 and expected to increase further in the second half of 2018. World trade growth accelerated by 4.7 per cent in 2017, following trade growth of only 1.8 per cent in 2016. This is largely driven by cyclical improvements and an increase in investment growth in developed economies.
The Private Equity Review Edition 8
Editor Stephen L Ritchie
Private equity professionals need practical and informed guidance from local practitioners about how to raise money and close deals in multiple jurisdictions. This review has been prepared with this need in mind. It contains contributions from leading private equity practitioners in 25 different countries, with observations and advice on private equity deal-making and fundraising in their respective jurisdictions.
The Securities Litigation Review Edition 5
Editor William Savitt
The Securities Litigation Review is a guided introduction to the international varieties of enforcing rights related to the issuance and exchange of publicly traded securities. Unlike most of its sister international surveys, this review focuses on litigation – how rights are created and vindicated against the backdrop of courtroom proceedings.
The Franchise Law Review Edition 6
Editor Mark Abell
Bird & Bird LLP
This book provides an introduction to the basic elements of international franchising and an overview of the way that it is regulated in 37 jurisdictions. It seeks to provide the reader with a high-level understanding of the challenges involved in international franchising in the first section, and then, in the second section, explains how these basic themes are reflected in the regulatory environment within each of the countries covered.
The Insolvency Review Edition 6
Editor Donald S Bernstein
This volume offers an in-depth review of market conditions and insolvency case developments in key countries around the world. A debt of gratitude is owed to the outstanding professionals the world over who dedicated their time and talents to this book. This book is a significant undertaking because of the current coverage of developments we seek to provide. As always, the hope is that this year's volume will help all of us, authors and readers alike, reflect on the larger picture, keeping our eye on likely, as well as necessary, developments, both on the near and distant horizons.
The Asset Management Review Edition 7
Editor Paul Dickson
While the global financial crisis of 2007 and 2008 may feel like an increasingly distant memory, its effects continue to be felt across the whole of the financial world. Despite significant improvements in the global economic landscape in the intervening years, global growth has been hampered in recent years by various geopolitical factors, including political uncertainty resulting from the change in administration in the US in 2016 and the rise of populist movements in Europe. The world of asset management is increasingly complex, but it is hoped that this edition will be a useful and practical companion as we face the challenges and opportunities of the coming year.
The Merger Control Review Edition 9
Editor Ilene Knable Gotts
Pre-merger competition review has advanced significantly since its creation in 1976 in the United States. As this book evidences, today almost all competition authorities have a notification process in place – with most requiring pre-merger notification for transactions that meet certain prescribed minimum thresholds.