Legislative System

As a member state of the European Union, Hungary’s legislative system consists of two levels: the EU level and the national level. EU law applies either directly or through implementation by a national legislative instrument. The national level comprises the following legislative instruments:

• the Fundamental Act of Hungary, being the constitution of Hungary;
• acts adopted by the legislative branch, the Hungarian Parliament;
• decrees adopted by the government and the Governor of the National Bank of Hungary;
• decrees adopted by the ministers of the government;
• decrees adopted by the chairperson of autonomous regulatory agencies; and
• municipal decrees relating to local affairs of society.

The fundamental rule that governs legislation is that no legislative instrument may contradict another legislative instrument which is superior to it based on the above-described order of precedence.

Role of the Courts

Hungary has a four-tiered judicial system, where, depending on its complexity, a case may be tried at first instance either in the district court (járásbíróság) or the regional court (törvényszék). The regional court also hears appeals of cases tried in the district court, while the high court (ítélőtábla) may only act as court of appeal. The highest court in Hungary is the supreme court (Kúria), which only hears appeals of great importance and is also vested with the power of issuing statutory interpretations that are binding on lower courts (see below). Constitutional matters, such as unconstitutional court decisions and (both prior to and post-enactment) legislative instruments are reviewed by the Constitutional Court of Hungary (Alkotmánybíróság). Decisions of the Constitutional Court of Hungary are binding on the ordinary courts, the legislative branch and the executive branch. 

Civil Law Jurisdiction

Being a civil law jurisdiction, codified sets of statutory rules are the primary sources of law in Hungary and have, therefore, a greater significance than case law. Accordingly, the powers of the Hungarian courts were limited to interpreting legislative instruments enacted either by the legislative or the executive branch. Although ruling courts tended to adjudicate in line with the relevant decisions of higher courts, until recently, they were not required legally to do so, which sometimes resulted in confusing or in many cases, even contradicting judgments, creating, in certain areas, inconsistent court practice. On rare occasions, inconsistencies in areas of great interest (such as corporate law) have been resolved by the legislator amending the legal provision that allowed different interpretations by courts.

A recent amendment to the Code of Civil Procedure made a significant step towards a more consistent court practice by stipulating that the judgments of the supreme court that are published in the Register of Court Decisions (Bírósági Határozatok Gyűjteménye), may not be contradicted in questions of law unless the ruling court provides sufficient reasons in its own decision as to why the case in question demanded deviation.

As a consequence, investors contemplating making investments in Hungary are advised to seek legal advice not only on general statutory rules, but also on the case law of the Hungarian supreme court that might apply to their matter.

Investments in a Hungarian entity may be subject to sector-specific clearances (such as approvals by the National Bank of Hungary or the Hungarian Energy and Public Utility Regulatory Authority) where additional scrutiny is necessitated by the fact that an investment is made into a regulated target or clearances that are necessitated by other factors (eg, market concentration and foreign investment in certain industries).

In an attempt to monitor foreign investment, there are two relatively new and separate regulatory frameworks that need to be considered by investors when contemplating making an investment in, or acquisition of, a Hungarian company that pursues certain critical or strategic activities. These FDI regimes apply alongside and not instead of the sector-specific approval requirements or merger control clearances.

In 2018, before the EU FDI regulation was passed, the Hungarian Parliament implemented its first FDI screening regime by enacting Act LVII of 2018 (the “2018 FDI Act”) seeking to protect national security by overseeing certain investments into Hungarian companies that pursue activities of critical infrastructure (eg, energy, water or defence), critical technology and dual-use items (eg, artificial intelligence, nuclear technologies and nanotechnologies).

This was then supplemented by the second FDI screening regime aiming at protecting the pandemic-weakened Hungarian economy. This second screening regime was introduced by a government decree in May 2020, which was soon replaced by Act LVIII of 2020 (the “2020 FDI Act”). Although the 2020 FDI Act was first meant to be temporary, there are signs that it remains in force permanently, and the two FDI regimes will continue to coexist.

A governmental decree (Governmental Decree 561/2022), which was adopted in the last days of 2022, has broadened the scope of the 2020 FDI regime for the duration of the state of danger that has been introduced by the Hungarian government due to the crisis in Ukraine. According to the currently applicable rules, the state of danger will remain in force until the end of May 2023, but it may be extended by a governmental decision any time before that. For further information on this, please see 7.3 Remedies and Commitments.

Investors are advised to be particularly careful when dealing with 2020 FDI Act-related matters as it has an exceptionally broad scope which has triggered filings in cases that usually do not fall under the scope of similar laws.

Similarly, a careful approach to the 2018 FDI Act-implemented regime is also advisable. It is true that the applicability of the 2018 FDI Act is rather limited as it may only be triggered by investments in the above-listed, very specific industries that have traditionally been under governmental scrutiny. It is worth noting, however, that the 2018 FDI Act may also apply to the formation of a new company in Hungary and even to the adoption of a new activity by an existing Hungarian company that is controlled by a foreign investor. Typically, neither of these actions would come to mind when assessing regulatory requirements in connection with dealings in Hungary.

As the two FDI screening regimes are administered by different ministers, a single investment may require filings under both regimes.

Please see 7. Foreign Investment/National Security for a more detailed explanation of the regulatory framework for FDI in Hungary.

The year 2022 saw an exacerbation of the trends that dominated the political and economic climate in 2021 in Europe and therefore in Hungary too. The disruption in supply chains, workforce shortages, volatility in business activity, a surge in energy prices due to reduced supplies and resulting inflation that shaped the COVID years have become acute because of Russia’s invasion of Ukraine.

In Hungary, there has been a modest slowdown of overall deal activity in anticipation of a drop in economic growth or even a recession. Clients seem keen on closing pending deals as soon as possible and seem to adopt a more cautious approach when it comes to new investment opportunities. In addition to trends that have been weighing down the European economy, Hungary is also facing a specific set of circumstances, the most pressing of which is the depreciation of the Hungarian forint against the euro and the US dollar.

All these have led the government to step in and adopt increasingly interventionalist measures that at times seem contradictory and have in certain cases produced opposite effects. Among the most important measures were, the adoption of price caps on certain goods (staple foods and fuel) to counterbalance price increases and inflation, a scale back of utility cost subsidies, imposing “extra profit” taxes on financial institutions, airlines, energy companies and pharmaceutical companies, revoking simplified tax schemes favoured by SMEs to reduce the state budget deficit and increasing the base reference rate of the National Bank of Hungary to counter the rapid depreciation of the Hungarian forint.

In an attempt to prevent a drop in investment appetite, the government has continued to encourage business activity and transactions. Recent legislative changes are aiming at providing a transparent, clear and flexible legal framework in areas affecting businesses the most (eg, the new Legal Person Registration Act and changes made to the Competition Act) and regulators have continued supporting investors doing transactions in Hungary with relatively speedy and seamless approval processes. This is also true for approval processes under the 2020 FDI regime. While the 2020 FDI Act was and still is a controversial piece of legislation due to a number of ambiguous provisions and a tight-lipped regulator failing to issue meaningful guidelines or commentary and also considering that its exceptionally wide scope captures the majority of business dealings in Hungary, the number of rejections remains comfortably small.

Despite all that, however, the base reference rate increase drove interest rates up, which will ultimately make deal financing more expensive. As businesses in a variety of sectors remain seriously exposed to the negative effects of the current economic situation, many of these sectors will likely become great divestment opportunities for opportunistic buyers in the short to medium term. Declining valuation levels could lead to bargain hunting, especially within the PV/VC sector whose players are actively looking for attractively priced and valued targets. Also, it is anticipated that there will be an increase in business failures and, as a result, divestitures of insolvent and struggling businesses and assets.

Despite a minor decrease in overall deal activity due to the current armed conflict in Ukraine, Hungary remains a popular investment destination in the Central and Eastern European (CEE) region for private M&A transactions, amongst which share deals and asset deals are commonly seen. Even though the practicality of a share purchase makes it the most popular acquisition method in Hungary, an asset purchase can provide convenient solutions in specific situations (such as a spin-off, distressed sale, downsizing or sale of a business line) and can also be more advantageous if the target company is in financial distress. The business decision on how to structure a transaction should always be examined on a case-by-case basis. Factors affecting the parties’ choice of deal structure in Hungary are similar to what an investor can see elsewhere in Europe.

Transactions in the Hungarian market are mainly carried out through negotiated sale and purchase agreements, but in an increasing number of cases, sellers are setting up an auction sale process for selected potential buyers, to maximise the target’s value. Act V of 2013 on the Hungarian Civil Code (“Hungarian Civil Code”) provides the general framework for auctions of any kind of asset; however, sellers have relative freedom to determine the auction’s specific rules and procedures.

In terms of structuring consideration, cash deals are most typical and there is less of a tendency towards paper consideration (eg, loan stock). Locked-box purchase price mechanisms have recently surpassed the more traditional completion accounts adjustment structures, save for transactions where founders of VC and PE-backed tech companies exit the company by selling their stakes to a strategic investor, in which case the latter has remained more common.

Hungary’s principal source of legislation governing M&A transactions is Book Three (Legal Persons) of the Hungarian Civil Code, which sets out the general rules applicable to all types of legal persons, including high-level rules on the transformation, merger and demerger of legal persons.

The detailed provisions constituting the legal framework for transactions implemented by way of mergers and demergers are set out in Act CLXXVI of 2013 on the transformation, merger and division of legal entities (“Transformations Act”). In the case of a company participating in a merger that is not domiciled in Hungary, but in another Member State of the European Union, in addition to the provisions of the Hungarian Civil Code and the Transformation Act, the provisions of Act CXXIV of 2021 (“Cross-Border Mergers Act”) are also applicable.

The procedural aspects of registering corporate changes in relation to M&A deals in Hungary are set out in in Act V of 2006 on Public Company Information, Company Registration and Winding-up Proceedings (“Companies Registration Act”), including setting out the specific documents to be submitted to the competent court of registry to register an acquisition or a merger/demerger. From 1 July 2023, Act XCII of 2021 on the registry and registration process of legal persons (“Legal Person Registration Act”) will replace the Companies Registration Act and will completely reform the rules on the registration process of legal persons. One of the most significant changes will be the consolidation of the separate registers of the various types of legal persons into a unified register, which will include all types of legal entities. This is anticipated to have the effect of standardising procedural rules, expediting registration procedures, eliminating the differences in judicial practices, and further reducing administrative burdens for clients.

Other than foreign ownership screening requirements (see 7. Foreign Investment/National Security) and merger control approval (see 6. Antitrust/Competition), which can be applicable to a transaction regardless of the industry or sector concerned, special rules may apply to companies operating in certain regulated industries, such as media and financial, investment, insurance, energy or capital market sectors. The merger and demerger of such companies may also require the prior approval of the competent regulatory authorities.

There are two sets of corporate governance rules in the Hungarian Civil Code, which is the main source of legislation in this respect. The first set of rules, setting out governance rules and principles in general, apply to all company forms, while the second set of rules only apply to certain specific company forms.

Legal entity forms

Private companies (Kft or Zrt)

The most common company forms for investments in Hungary are the Kft (limited liability company) and the Zrt (private company limited by shares). These two company forms are very similar in terms of internal organisational structure and operation. The most significant difference is that the registered capital of a Kft is divided into quotas, while the registered capital of a Zrt is divided into shares.

A Kft has long been the most popular company form in Hungary, mostly because (i) it can be set up quickly, within a day in certain cases, (ii) its capital requirement and operation costs are lower than that of a Zrt, and (iii) members of a Kft have greater flexibility as to how they want to structure the governance of their Kft than shareholders do in a Zrt.

However, most foreign investors struggle with understanding the concept of the “quota” as it is not unitised and, therefore, the ownership of a quota is only evidenced by an entry in the register of the members, but no security or certificate will be issued for the investor in exchange for its investment.

Public Companies (Nyrt)

There is only a single type of publicly traded company form available in Hungary: the Nyrt (public company limited by shares). Setting up an Nyrt is a two-step process; first a Zrt must be established, and then that Zrt can be transformed into an Nyrt by a shareholders’ resolution and by introducing its shares to the stock exchange.

The relationship between the company and its minority shareholders is governed by the Hungarian Civil Code. Generally, the shareholders’ meeting decides with the simple majority of votes, however a company may deviate from these rules and set higher thresholds as long as it does not violate the rights of the minority shareholders.

The Hungarian Civil Code recognises minority protection rights for shareholders holding at least 5% of the voting rights in Zrts and Kfts and for shareholders holding at least 1% of voting rights in Nyrts. These minority rights are as follows: (i) requesting the convening of the shareholders’ meeting; (ii) requesting that an agenda item not included on the agenda is discussed; (iii) requesting special audits of the last financial statements of the company or any economic event in connection with the actions of the company’s management in the previous two years; (iv) initiating the enforcement of claims on behalf of, and for the benefit of, the company against the members of the company, members of the company’s supervisory board, the company’s executive officers, or the company’s auditor. There are also certain decisions that can only be passed by a three-quarter majority of the votes (eg, changing the form of the company or decreasing the company’s registered capital) and a decision on amending the articles of association that changes rights of one or more shareholders to the detriment of such shareholder(s), may be vetoed by such shareholder(s).

No different or additional rights for institutional investors and other shareholder groups are set out in the Hungarian Civil Code, however as companies may deviate from the rules set out in the Hungarian Civil Code, it is common that certain protective rights (eg, transfer restrictions, drag along, tag along or veto rights) are implemented at the level of the target company to protect the institutional investor’s investment.

Disclosure obligations apply to both listed companies and, in certain cases, companies that are not listed on any markets, and their investors.

Any investor acquiring more than 5% of voting rights in a listed company must disclose this to the target company and the National Bank of Hungary within two calendar days of the acquisition. The target company is required to publish the same information within two calendar days. In share buyback transactions the disclosure must be made by the company itself.

The disclosure obligation extends to the purchase of financial instruments that entitles its holder to acquire voting rights in the company at the holder’s discretion, such as an option for shares or share futures. The investor and the company are required to make similar disclosures when the investor exceeds or falls below 5% or other thresholds prescribed by law (eg, 10%, 15%, etc).

The FDI screening regime requires foreign investors to report investments in certain sectors to the competent minister.

Please see 7. Foreign Investment/National Security and 8.1 Other Regimes for a more detailed discussion of the FDI screening regimes in Hungary.

Hungarian companies have had a tendency to rely on debt financing provided usually by banks and other financial institutions, while capital markets, especially equity markets, were rarely used.

However, mostly because of the current armed conflict in Ukraine and the various direct and indirect consequences thereof, such as the skyrocketing inflation and the depreciation of the Hungarian Forint against traditionally strong currencies, eg – USD or EUR, the National Bank of Hungary has recently taken an interventionist approach which has had a detrimental effect on traditional bank financing.

The current base reference rate of the National Bank of Hungary is the highest in a decade, which has resulted in corporate loans being offered to market players on considerably less favourable terms than before. This incentivises market players to seek financing on equity capital markets even if this form of financing is already more popular in Hungary than in any other CEE country. Further, market trends associated with the current high interest rate environment, such as rising numbers of non-performing loans and tightening credit supply also stimulate Hungarian companies to go public.

Besides the prime market of the Budapest Stock Exchange (BSE), Hungarian companies now have multiple trading venues to choose from, such as the Xtend market that primarily targets small and medium-sized enterprises. Listing and prospectus requirements, as well as reporting obligations of the BSE Xtend market, are not as stringent as those of the BSE prime market, therefore, the number of companies that may be eligible for being listed on this venue is considerably higher than those eligible for being listed on the BSE prime market.

The Hungarian Civil Code sets out the fundamental rules governing securities issued in Hungary, such as method of creation (printed or dematerialised), the essential content requirements and the main rules of security transfers. Additional rules may also apply in terms of certain specific securities, such as bonds, investment units and promissory notes, which are set out in various statutory instruments, such as the Capital Market Act (2001), the Invest Management Firm Act (2014) and the Promissory Note Act (2017).

Certain instruments of the EU capital-markets legislation, like the Prospectus Regulation and the Market Abuse Regulation (MAR) are directly applicable in Hungary, while others, such as the UCITS Directive and the AIFM Directive, regulating the establishment and operation of investment funds, apply through national laws implementing EU law.

The Prospectus Regulation distinguishes between public issuances of securities based on whether the obligation to publish a prospectus applies. Main exemptions include (i) offers of securities aiming exclusively at qualified investors, (ii) offers of securities aiming at fewer than 150 persons other than qualified investors and (iii) the case where offered securities represent less than 20% of the securities already admitted to trading on the same regulated market during a 12-month period. Despite not being regulated under the Prospectus Regulation, private placement is also available under Hungarian law.

Depending on which trading venue the security is offered, either a prospectus or an information document is required to be prepared. The prospectus is a considerably longer document than the information document, and the preparation of a prospectus is a time-consuming exercise, which often takes months to complete. The prospectus is also subject to the approval of the National Bank of Hungary as opposed to the information document which can be prepared in a concise format and is only subject to the approval of the BSE. The various BSE trading venues may provide for further listing and exchange requirements to be complied with, which are publicly available at https://bse.hu/Products-and-Services/Rules-and-Regulations/BSE-Rules.

Rules on operation and establishment of investment funds are primarily set out in national laws implementing the AIFMD and the UCITS Directives. These Directives distinguish between investment funds based in an EU member state and in a third country by providing for a certain set of rules and requirements that are only applicable to third country investment funds. Such rules and requirements have been implemented and are still applicable in Hungary, but the authors are not aware of any Hungarian laws imposing further requirements on foreign investors structured as investment funds.

Merger Control Regime

Legislation and regulator

The Hungarian merger control regime is established by the Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices (“Competition Act”). Basic procedural rules for administrative proceedings (including merger review) are set out in the Act CL of 2016 on the General Public Administration Procedures together with the special rules in the Competition Act. The rules of the judicial review of merger control decisions are defined by Act I of 2017 on the Code of Administrative Litigation.

Hungarian merger control rules are enforced by the Hungarian Competition Authority (GVH), which is considered to be among the more business-oriented competition offices in the European Union with state-of-the-art infrastructure and easily approachable, English-speaking staff and decision makers. The merger control process in Hungary was significantly streamlined in the past few years. This was a combined result of legislative reforms, the introduction of a new type of fast-track procedure, and higher thresholds for notification, as well as the reduction of the administrative burden on companies. The fast-track procedure for straightforward mergers with no effects on competition reduced the length of the process to a mere four-to-eight days’ period. The speedy approval process is also the result of the applicants’ willingness to participate in a pre-notification meeting with the GVH, where the authority’s investigators provide feedback on a draft of the notification form allowing adjustments before submission and thereby paving the way for a seamless approval process.

Transactions subject to merger control

The following transactions are subject to merger clearance:

• acquisition of sole or joint control over the whole or a part of previously independent undertakings;
• merger of two or more previously independent undertakings; and
• creation of a full-function joint venture.

Control is defined as acquisition of over 50% of voting rights in the target company, the power to appoint, elect or dismiss the majority of the executive officers of the target, or the ability to exert decisive influence over the decisions of the target (either by virtue of contractual arrangements or de facto).

Notification thresholds

The GVH must be notified of the transaction if:

• the combined Hungarian net turnover of all parties (ie, the acquirer or acquirers and the target company) exceeds HUF20 billion in the previous financial year; and
• the individual Hungarian net turnover of each of at least two parties exceeds HUF1.5 billion in the previous financial year (“first set of thresholds”); or
• the concentration may lead to a significant lessening of competition on the relevant market and the combined Hungarian net turnover of all parties exceeds HUF5 billion (“second set of thresholds”).

Specific rules apply to the calculation of thresholds for mergers including in respect of insurance companies, credit institutions, financial enterprises or investment companies, which are largely in line with those set out in the European Union’s Jurisdictional Notice.

Mergers that meet the EU merger control filing thresholds will be assessed by the Commission in line with the “one-stop shop” principle.

Foreign-to-foreign mergers are also subject to Hungarian merger control review if they meet the local merger control filing thresholds.

Notification, review and clearance timetable

Filing is mandatory in case of mergers reaching the first set of thresholds and voluntary in case of reaching the second set of thresholds. An application for clearance is submitted using the filing form that may be downloaded from the GVH’s website and is available in both Hungarian and English. Typically, the application is the acquirer’s responsibility. It is strongly advisable to engage in a pre-notification discussion with the GVH prior to submission.

There is no deadline for filing, but the merger cannot be implemented prior to clearance by the GVH. There are no specific sanctions for not filing per se, but severe sanctions, including suspension or reversion of all integration steps and financial penalties apply for closing before clearance. The GVH may investigate transactions reaching the second set of thresholds for six months after closing in the absence of notification.

In straightforward, non-problematic cases the GVH closes the procedure and acknowledges the transaction within eight days of receipt of the notification (provided that no additional information is requested) by issuing an administrative certificate (fast-track procedure). If this is not the case, the GVH opens the investigation phase.

If the investigation enters Phase I, the waiting period is 30 days, while Phase II lasts an additional three months. The GVH may extend its review by a maximum of 20 days in Phase I, and two months in Phase II. The clock also stops until information requests are complied with. If the GVH fails to issue its decision within the applicable waiting period, its approval is deemed to be granted. The GVH uses the “significant impediment to effective competition” (SIEC) test for its assessment of mergers and will clear transactions that do not result in an SIEC, particularly by creating or intensifying a dominant position on the relevant market.

Exemptions under notifications

A special “public interest exemption” exists under the Hungarian competition regime, which permits the government to qualify a merger as “strategic” and exempt it from the merger control filing requirement. Although, in theory, this exemption can apply to FDIs as well, based on the publicly available decisions of the GVH, it rather exempts local transactions of great significance.

Irrespective of the notification thresholds, a temporary acquisition for the purpose of resale does not need to be notified in cases where certain types of financial companies and investment funds acquire assets or shares of another undertaking if the resale is carried out within a one-year period.

Approval of other authorities

There are special sectors where the approval of other authorities is necessary in addition to merger review by the GVH, for instance, the approval of the National Bank of Hungary or the Hungarian Energy and Public Utility Regulatory Authority. These approvals are required to close the transaction, but the GVH may conclude the merger review proceeding independently from these. The approval of the National Media and Infocommunications’ Media Council (“Media Council”) for certain transactions involving media companies is however mandatory prior to the merger notification. Please refer to 8.1 Other Regimes for further information on this.

For a substantive merger analysis, the GVH, besides the SIEC test, assesses unilateral and co-ordinated effects in horizontal, vertical and conglomerate mergers including portfolio effects, by weighing pro- and anti-competitive aspects, in particular: structure and characteristics of the relevant markets, actual and potential competitive pressure, presumed competitive effects, sourcing and sale opportunities, costs, risks and conditions of market entry and exit, market position and business strategy of the parties and effects on suppliers and other partners.

The GVH also takes into account economic efficiencies. In practice, efficiencies are expected to be specific to the transaction and to bring along quantifiable consumer benefit (the sooner the benefits are predicted to arise, the larger weight they carry in the assessment).

The GVH may prohibit transactions or impose structural or behavioural remedies. If a transaction’s projected anti-competitive effects can be prevented by imposing structural or behavioural remedies, the GVH can clear the merger subject to appropriate remedies. Usually, the GVH prefers structural remedies because of these are easier to monitor.

Timing and conditions are imposed on a case-by-case basis. However, all remedies must comply with some basic requirements: they must be capable of removing competition concerns, must be proposed by the parties, and be exact, consistent and verifiable. Commitments are normally subject to market testing and the GVH also holds hearings to discuss proposed remedies.

The GVH may prohibit transactions or require undertakings to remedy the competition law concerns.

The GVH’s decision is subject to judicial review, which may be launched within 30 days of receipt of the GVH’s decision. The first instance court decision may be subject to appeal to the supreme court.

There are currently two FDI screening regimes that may be triggered by an investment into a Hungarian company (see 1.2 Regulatory Framework for FDI). An foreign investment falling under the scope of either or both FDI regimes cannot be completed without the prior acknowledgement of the competent minister. The 2018 FDI screening regime is overseen by the minister responsible for the civil national security services (currently the Minister of the Prime Minister’s Cabinet Office) while the 2020 FDI screening regime is overseen by the minister responsible for domestic economy (currently the Minister for Economic Development).

It is worth noting that transactions, such as bond purchases, obtaining usufruct rights or obtaining the right to operate or use assets, that usually fall outside the scope of similar FDI screening laws, may trigger the application of one of the two Hungarian FDI screening regimes.

Exemptions are narrowly defined under both FDI screening regimes and only apply to certain specific cases, eg – where a Hungarian entity is a subsidiary of the target company and the foreign investor already has a controlling interest in the target company prior to the transaction.

As legal representation is mandatory in proceedings under the 2020 FDI Act, notifications are prepared with the assistance of, and filed by, a legal counsel. Although neither FDI screening regime contains an exhaustive list of documents to be submitted, as a general rule, (i) the official Hungarian translation of the transaction documentation (investment agreements/SHAs and SPAs), and (ii) any document suitable for determining, in a transparent manner, the ownership structure of the foreign investor must be submitted.

The competent minister has 60 days (with a possible 60-day extension) under the 2018 FDI Act and 45 business days (with a possible 15-day extension) under the 2020 FDI Act to come to a decision on the FDI notification.

To determine whether a transaction may fall under the scope of either FDI screening regime, the following questions must be asked:

• does the target company fall under the scope of either FDI screening regime;
• does the investor qualify as a foreign investor under either FDI screening regime; and
• are the necessary monetary thresholds met?

If the answer is yes to each question, the relevant investment will fall under the scope of either or both FDI screening regimes.

Target Company

The focus of the analysis under both FDI screening regimes shall be on the business activities the target company is engaged in.

The 2020 FDI Act lists the NACE codes of the business activities which trigger the application of the 2020 FDI Act. If any of such NACE codes is indicated in the Hungarian company register as a business activity of the target company, the 2020 FDI Act applies, regardless of whether the target actually pursues this activity.

The 2018 FDI Act takes a rather complex approach in this regard as the list of the relevant activities keeps changing. Therefore, changes in the target company’s business activities are to be kept record of to verify in advance whether a notification is required under the 2018 FDI screening regime.

Foreign Investor

Under both FDI screening regimes, the investment shall be made by a foreign investor for either of the FDI screening regimes to apply.

A (natural or legal) person qualifies as foreign investor under both FDI screening regimes if:

• it is a company incorporated in, or a citizen of a country outside of, the EU, the EEA and Switzerland (“Third Country”); or
• it is a company incorporated in Hungary, the EU, EEA or Switzerland in which a Third Country citizen or company has a controlling interest.

Although EU, EEA and Swiss investors do not qualify as foreign investors, but their investments may also be subject to FDI screening under the 2020 FDI Act if (i) the value of such investment reaches a monetary threshold of HUF350 million (approximately EUR 0.9 million) and (ii) such investor acquires a controlling, usually over 50%, interest in the target company.

Thresholds

If the foreign investor, directly or indirectly, acquires at least a 25% stake in the target company, if formed as a private company, or at least a 10% stake in the target company if formed as a publicly traded company, the 2018 FDI Act applies.

The 2020 FDI Act applies if a foreign investor, directly or indirectly, acquires 10% stake in the target company.

Both FDI screening regimes are triggered by investments in a less than 25% stake in a target company that is formed as a private company if this results in the combined shareholding of the foreign investors reaching a 25% threshold. Neither FDI regime differentiates among partnerships, joint ventures or government-affiliated investments.

Governmental Decree 561/2022

Governmental Decree 561/2022 has broadened the scope of the 2020 FDI regime by extending its applicability to acquisitions of Hungarian companies providing certain financial services, such as monetary intermediation, leasing and credit granting and by lowering the otherwise applicable 10% threshold to 5% and 3% depending on whether the target company is formed as a private company or a public company. Rules set out in Decree 561/2022 apply temporarily until the end of May 2023, but, based on previous actions of the Hungarian government with regard to similar laws, is expected to be extended before that time.

The relevant FDI Acts are silent on the matter of remedies and commitments, and decisions of the competent authorities in FDI screening procedures are confidential. There is no official guidance as to the competent authorities’ approach regarding remedies or other commitments either. Therefore, the authors are not aware of any occasion when any remedy or commitment has been requested or required by the competent authorities. The 2020 FDI Act (that applies to a much higher number of transactions than the 2018 FDI Act) was adopted relatively swiftly, along with other COVID-related legislation that was drafted and enacted in a hurry. The competent ministries have made some attempts at providing guidance to the addressees on some of the more ambiguous parts of the 2020 FDI Act, however, insight into which factors are considered during the approval process have not been issued so far.

The Decision and the Right to Appeal

The competent authorities (ministries) may prohibit an investment under both FDI regimes. The immediate legal consequence is that the transaction becomes null and void if, despite the parties’ decision to move forward with a transaction, the director of the target company is obligated by law to prevent the investor from exercising its voting rights in the company (or admitting the investor in the share register).

A decision on the prohibition of the transaction may be challenged through a non-contentious administrative procedure on the grounds that the substantive procedural rules have been violated or that the findings or the reasoning of the competent authority’s decision contains flaws. The court, however is not permitted to amend the prohibiting decision. It may only order that the FDI screening is repeated.

Criteria for a Prohibiting Decision

Under the 2018 FDI Act, an investment may be prohibited if it poses a threat to the national security, whereas the 2020 FDI Act contains an exhaustive list of those circumstances which, if present (either one or more), the ministry may prohibit the investment. Such circumstances include, the foreign investor being directly or indirectly controlled by a third country government, the foreign investor has already been involved in activities affecting security or public order in a Member State or there is a serious risk that the foreign investor engages in illegal or criminal activities.

Non-compliance

Non-compliance with the minister’s decision in any of the FDI regimes or failure to notify the minister when required, may result in fines and an ex-post procedure once the authorities discover the non-compliance. An ex-post FDI screening may only be initiated in the five years since the investment and in the 18-month period from the date the minister became aware of the non-compliance under the 2018 FDI Act and six-month period from the date the minister became aware of the non-compliance under the 2020 FDI Act. Should the minister render an ex-post prohibition under the 2020 FDI Act, the investor will have 30 days to dispose of its ownership interest in the target company, with the Hungarian state having a pre-emption right on such disposal.

The maximum amount of fine that may be imposed under the 2018 FDI screening regime is HUF10 million (EUR25,000), while the 2020 FDI screening regime allows for a fine of up to two times the total transaction (investment) value, but minimum 1% of the annual net turnover of the target company in the preceding financial year.

Special rules apply to companies engaged in certain regulated sectors, most notably the financial, energy and media sectors (see 3.2 Regulation of Domestic M&A Transactions). Completing a transaction involving companies operating in such sectors may also require the prior approval of the competent regulatory bodies, setting further preconditions and documentation requirements. The competent authorities for these sectors include the National Bank of Hungary, Hungarian Energy and Public Utility Regulatory Authority (MEKH), and the National Media and Infocommunications Authority, respectively. Further special rules may be applicable to companies operating in certain other regulated industries, such as insurance, mining or capital market sectors.

Investment Control in the Financial Sector

Companies operating in the financial sector such as banks, payment service providers, and investment firms, are subject to specific restrictions in terms of their ownership structure. Any investor who intends to acquire a holding in an undertaking operating in the financial sector which represents 10% or more of the capital or of the voting rights must apply for the approval of the National Bank of Hungary. Similar requirements apply to exceeding the threshold of 20%, 33% and 50%.

Although the requirements are different for each sub-sector within the financial sectors, generally, investors in any kind of financial services firm are required to verify their good business reputation. In the assessment of the investor’s reputation, the regulator may request documents regarding its ownership status or information on present or past business endeavours.

Investment Control in the Energy Sector

The MEKH’s prior approval is required for an acquisition of voting rights or influence to control voting rights reaching a 5%, 20%, 25%, 33%, 50%, 75% or 90% threshold, or a 100% acquisition of a natural gas, electricity or district heating licensee. In case the acquisition of ownership interests or voting rights in a natural gas or electricity public limited company licensee reaches or exceeds:

• a 5%, 10%, 15%, 20% threshold, the MEKH’s acknowledgement must be requested immediately after completion;
• a 25%, 33%, 50%, 75% threshold, the MEKH’s prior approval must be requested; or
• a 40%, 45%, 80%, 85%, 90% and every 1% above 90%, the acknowledgement of the MEKH must be requested immediately after completion (in addition to its prior approval in the previous item),

Further, the transfer or other disposal of fundamental assets of a natural gas or electricity licensee, or the outsourcing of a substantial part of its licensed activity, are also subject to the HEA’s prior approval.

In the absence of the prior approval or the acknowledgement of the MEKH, the acquiring party will not be able to exercise voting rights in the company (but will be able to receive dividends) and may not be entered into the register of shareholders. Furthermore, the MEKH may fine the licensee and/or the person acquiring influence therein.

Certain exemptions may apply if the target company is an electricity licensee, a combined micro power plant licensee, or a natural gas licensee. However, even if an exemption from the prior approval applies (which should be checked on a case-by-case basis) the MEKH must be notified within 30 days of the acquisition of ownership interests or voting rights. In the absence of such notification, the MEKH may impose a fine.

Investment Control in the Media Sector

The Media Council’s approval is required for mergers and acquisitions where at least two of the company groups involved in the concentration bear editorial responsibility and the primary objective of which is to distribute media content to the general public via an electronic communications network or a printed press product. In such cases the GVH suspends the merger control procedure until the Media Council’s approval is granted. The Media Council issues its decision within 120 days and if no decision is issued, the approval is deemed to have been granted. The Media Council’s rejection to approve the transaction is binding on the GVH which then cannot approve the concentration.

The following main taxes apply to businesses in Hungary.

Corporate Income Tax

Companies that are resident in Hungary for tax purposes are subject to corporate income tax on their worldwide income. Companies that operate in Hungary without being resident in Hungary for tax purposes are subject to corporate income tax on their Hungarian source income.

The calculation of the corporate income tax is, in general, based on the accounting pre-tax profit, modified by certain tax base adjustment items. The corporate income tax rate is 9%.

Value-Added Tax

Hungary’s value-added tax regulation is based on the EU Value-Added Tax Directive. The standard value-added tax rate is 27%. Reduced rates of 18% and 5% apply to certain goods and services.

Local Business Tax

Local municipalities levy local business tax on companies having their seat or tax-permanent establishment in the territory of the respective municipality. The basis of the local business tax is the accounting net sales revenue, modified by certain tax base adjusting items. The rate of the local business tax varies between 0-2%, depending on the regulations of the different municipalities.

Innovation Contribution

The base of the innovation contribution is identical to the local business tax base. The rate of the innovation contribution is 0.3%. Tax exemption applies to newly established companies and micro or small-size businesses.

Transfer Tax

Acquisition of Hungarian real property, or certain rights to such properties, or shares of companies qualifying as Hungarian real estate holding entities may be subject to transfer tax, on the basis of the fair market value of the real property, at a rate of 4% up to a fair market value of HUF1 billion and 2% with respect to that part of the fair market value that exceeds the HUF1 billion threshold, but a maximum of HUF200 million per real property.

Building Tax and Land Tax

Municipalities are entitled to levy tax on building owners and owners of lands in their territories.

Other Taxes

Beside the above main taxes, special taxes are levied on companies engaged in certain businesses or operating in certain industries (eg, environmental tax, “Robin Hood Tax”, excise tax, extra profit tax, etc).

Hungary does not levy withholding tax on dividend, interest, royalty, or management fee payments from Hungarian to non-Hungarian corporate entities.

Hungary’s tax regulation allows relatively wide space for the tax efficient operation of businesses. Beyond the withholding tax exemption that applies to dividend, interest and royalty payments from Hungarian taxpayers to non-Hungarian corporate recipients, Hungarian taxpayers are subject to tax exemption on their dividend revenues. Furthermore, tax exemption on capital gains realised on the sale of shares is also accessible for Hungarian taxpayers if certain conditions are met.

Expenditures incurred in relation to the business activity, such as depreciation, interest, and royalty payments, are in general deductible from the corporate income tax base, with certain limitations. Limited tax loss carry-forward rules also allow businesses to set off their future profits with their losses they suffered in the past.

Tax consolidation is also possible, both in terms of corporate income tax and VAT.

Capital gain derived by a non-Hungarian tax resident investor from the sale of shares in a Hungarian entity or sale of assets located in Hungary is not taxable in Hungary unless the shares or assets are attributable to a Hungarian tax-permanent establishment of the non-Hungarian investor.

Special rules may apply to the sale of Hungarian real properties. In such cases, if the regulation of the relevant double tax treaty allows, or in the absence of such applicable double tax treaty, profit realised from the sale of the Hungarian real property may be subject to corporate income tax in Hungary. This corporate income tax regulation also applies to the sale of shares in an entity that has more than 75% of its assets invested in Hungarian real estate.

Domestic general anti-abuse regulation (GAAR) in Hungary enables the Hungarian tax authorities to requalify a transaction for tax purposes, if the purpose of the transaction is the abuse or evasion of tax rules. In addition to the GAAR, several specific limitations have been introduced to prevent tax evasion and aggressive tax planning.

Such limitations include, among others, the “thin cap” rules, the “CFC” rules, the “anti-hybrid” rules, as well as the transfer pricing rules.

The “thin cap” rules basically disallow the deduction, from the corporate income tax base, the financial costs exceeding 30% of the EBITDA or HUF939 million.

“CFC” rules aim to prevent tax-base erosion arising from the payments made by Hungarian taxpayers to non-Hungarian “controlled foreign companies” as well as to ensure the proper taxation of incomes that Hungarian taxpayers receive from “controlled foreign companies”.

Driven by similar purposes, “anti-hybrid” rules aim to prevent tax leakage in cross-border transactions. Hungarian “anti-hybrid” regulation covers several cross-border transactions that may lead to tax base erosion due to the different tax treatment of the cross-border transaction in the respective jurisdictions.

Transfer pricing rules in Hungary follow the OECD guidelines, specifically that transactions between associated enterprises shall be considered, for tax purposes, as occurring on an arm’s length basis – ie, at the price that unrelated parties apply or would apply in an equivalent transaction. If the price applied by affiliated entities differs from the arm’s length price, then the Hungarian tax authority may adjust the tax base to reflect the arm’s length price. In general, associated enterprises are required to prepare separate documentation that shows how the arm’s length price specific to their transaction has been determined.

Hungary has a rather employer friendly legislative framework in the European Union which contributes to marketing the Hungarian labour force as well-trained, relatively cheap and flexible, thereby trying to bolster Hungary’s competitiveness. This approach is somewhat counterbalanced by the Hungarian labour courts that are consistent in being more lenient with employees.

The most important labour law rules are set out in Act I of 2012 on the Labour Code (“Hungarian Labour Code”) which is applicable if the employee habitually works in Hungary. The Hungarian legislators adopted a major revision of the Hungarian Labour Code, which applies from 1 January 2023, and amends various material provisions, such as rules on termination, amendment of employment agreements, leave entitlements and an employer’s information obligations. It also implements certain EU Directives to promote transparent and predictable working conditions and to ensure work-life balance.

The basic terms of employment must be agreed in a written employment agreement. In addition, it is typical that various internal policies of the employer also apply to the employees’ employment (eg, code of conduct, bonus policy and remote working policy).

Besides standard employment relationships, there are certain special forms of employment such as temporary agency work, telework, fixed-term employment and employment of executives.

Hungarian health and safety (H&S) regulations prescribe various obligations for the employers including providing information on H&S to employees, securing a healthy and safe work environment and conducting risk assessments.

Employees are entitled to represent themselves via trade unions or works councils. Trade unions and employers may conclude collective bargaining agreements. Except for some specific industry sectors, employees rarely take advantage of these opportunities.

Employees are also protected in many ways by the Hungarian Labour Code which includes setting out a mandatory notice period of 30 days for termination of employment, granting a minimum of 20 working days annual leave and limiting overtime at 250 hours per year (with certain exceptions).

Employment of third-country nationals (ie, except EU/EEA citizens) is typically subject to a work permit or residence permit for employment.

The most common form of compensation is cash coupled with certain other employee benefits (see below). Employee equity compensation is less commonly applied, however with the appearance of an increasing number of start-up companies, ESOP arrangements are spreading fast, while the introduction of a regulated employee participation scheme (the “MRP”) and the possibility of incentivising employees through the ownership of shares of the employer (or members of its group) has gained popularity in among Hungary’s blue-chip companies.

Base salary must be specified in a written employment agreement. Statutory minimum gross base salary in 2022 for a full-time employee is approximately EUR580 per month and approximately EUR740 per month for employees working in positions requiring at least a secondary school graduation certificate. As a general rule, the employer must deduct and pay social security contribution and personal income tax from the gross salary of the employees.

The most common non-mandatory employee benefits are: company car, recreational vouchers, supplementary pension scheme and private healthcare services.

Various incentive and bonus schemes are common means of motivation and retention of key employees.

In the case of certain transactions; eg, asset deals, typically, the transfer of undertakings (TUPE transfer) occurs and affected employees transfer to the new employer by virtue of law. In this case the transferee employer must pay the same salary and benefits as the transferor employer.

Change-of-control transactions do not trigger any change in the status of employees, as the employer (target company) remains the same. The transaction parties may agree in the transaction documents that the acquiring group must honour certain commitments of the seller group made to the target’s employees.

TUPE rules are typically triggered by business/asset/portfolio transfer deals, where the employees transfer together with the business transferring from the seller to the purchaser as a going concern, or together with the portfolio or assets (where assets are not transferred as part of a business), based on the assumption that the employees pertain to the assets or portfolio of that transfer. Employees and the works council (if any) must be informed about the TUPE transfer prior to such transfer. This is a notification obligation only, and employees or employee representation bodies do not have the right to veto or prevent the transfer. Subject to certain conditions, the transferor employer’s collective bargaining agreements must be maintained and applied by the transferee employer for one year following the TUPE transfer, however, this is not a condition precedent to the transfer.

Employees may terminate their employment relationship in the event a material adverse change occurs in their employment relationship as a result of the transfer. These employees may be entitled to statutory severance pay and paid garden leave.

Under the 2020 FDI, sectors of strategic importance include numerous IP-heavy sectors such as pharmaceutical production, medical device manufacture, the communication sector (filmmaking, publishing etc) and information technology services. However, as there is no publicly available guidance as to the method the competent authorities apply when reviewing FDI screening notifications, it is not clear whether IP is considered an important aspect by the competent authorities under the Hungarian FDI screening regimes.

There is a strong intellectual property regime in place in Hungary, offering protection to all major intellectual property rights (“IP rights”): patents, utility models, trademarks, geographical indications, copyright, designs, trade secrets, know-how and supplementary protection certificates.

Patents, utility models, trademarks, geographical indications and designs can be registered at national level, with the Hungarian Intellectual Property Office (the SZTNA).

Registration or other formalities are not required for the existence or enforceability of copyright protection. However, the SZTNA offers a voluntary registration system for copyright and related rights. This voluntary registration system does not grant copyright or any other title of protection but offers evidence that works registered with the SZTNA exist and their author is identifiable.

Enforcement

IP rights can be enforced through the Hungarian courts. Upon infringement of IP rights, the owner/author or the authorised user may seek judicial enforcement by means of a civil complaint for infringement and/or a request for a preliminary injunction. The main civil remedies are establishing the infringement, cease and desist order, seizure or destruction of the infringing products, restitution of unjust enrichment and damages claim. In certain cases, IP infringers are prosecuted in criminal proceedings.

Alternatively, rights-holders may request the competent customs authorities, by filing an application for action (AFA), to take action against certain goods suspected of infringing IP rights. The legal framework of customs enforcement based on an AFA is regulated both at the EU and national levels and can be based on national and/or European Union IP rights.

Another legal tool for rights-holders is the notice and takedown procedure to remove infringing content from the internet. This procedure is set out in Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and in Act CVIII of 2001 on certain issues of electronic commerce services and information society services. According to this procedure, any rights-holder whose copyrights or trademark rights have been infringed by information made accessible online by an intermediary service provider, can request the removal of such information.

Limitations

In certain cases, a compulsory licence can be requested for patents. For example, if a patent has not been used/licensed or prepared for use to satisfy domestic demand, a compulsory licence could be granted upon request. Furthermore, the SZTNA can grant a public health compulsory licence to meet domestic needs in a public-health emergency.

Relevant Data Protection Laws and Regulations in Place

Data protection issues are regulated in general by Regulation (EU) 2016/679 (GDPR) and Act CXII of 2011 on the Right to Informational Self-Determination and on the Freedom of Information, the latter of which applies in areas that fall outside the scope of the GDPR or where Member State deviations are permitted by the GDPR. In addition, there are several sectoral laws that are relevant for data protection compliance, such as laws regulating the area of e-commerce, advertising, healthcare, security services and CCTV monitoring, employment, telecommunication, banking etc.

Extra-territorial Scope of Data Protection Laws

The GDPR may apply to companies even without a business presence in Hungary if the company targets anyone in the territory of the EEA with its services or monitors their behaviour. Each sectoral law complementing the application of GDPR has its own scope of application, but many times they include a similar scope as outlined in the case of GDPR. For example, the relevant sectoral laws are applicable to all businesses that target Hungary with their information society services, telecommunication services, healthcare services and security services, irrespective of their place of establishment.

Enforcement

GDPR violations are subject to a two-tier administrative fine, the higher tier being fines up to EUR20 million, or up to 4% of the total worldwide annual turnover of the company in the preceding financial year. The Hungarian data protection authority decides on the amount of the fine, in its discretion, by taking into account the circumstances of the case, such as the gravity, the intentional or negligent character of the violation, actions taken to mitigate the damage caused, relevant previous infringements by the same company, etc. The fines imposed by the Hungarian data protection authority range from a couple of hundred euros to a couple of hundred thousand euros. The highest fine to date was EUR615,000. Most of the time the authority’s action is triggered by complaints from the concerned individuals. About 50-60 cases annually end with a fine imposed. The Hungarian data protection authority normally takes into account the sectoral laws when deciding on a case and interprets them in light of the GDPR.

There are no important issues not already covered in this article.