New shares of AutoWallis have been listed on the stock exchange: Kapolyi Law Firm acted as legal advisor to the entire issue

On 24 November, shares from the public transaction of the AutoWallis Group were listed on the Budapest Stock Exchange in the BSE Premium category at a ceremony with the ringing of the Budapest Stock Exchange bell. We are very pleased that Kapolyi Law Firm was able to act as legal advisor in the preparation of the HUF 10 billion share issue and the listing of the new shares on the stock exchange, which is unique in the Hungarian securities market as shown by the double oversubscription. Our law firm has been supporting AutoWallis as legal advisors for years, in our cooperation, this issue is also an outstanding one in terms of capital market history.

Further details on the listing of AutoWallis Plc’s new shares can be found here.

Share issue of AutoWallis Nyrt., assisted by Kapolyi Law Firm as legal advisor, closed with double oversubscription

The public issue of shares listed in the Premium category of the Budapest Stock Exchange by AutoWallis Nyrt. closed on 9 November with a huge interest, far exceeding preliminary expectations, with Kapolyi Law Firm acting as legal advisor in the preparation and execution of the issue. The huge success is also demonstrated by the fact that the retail subscription and the institutional auction received subscription requests up to 17 billion HUF, compared to the previous plan of 6-8 billion HUF. The issue is of particular significance for the Hungarian capital market as a whole, as there has not been a retail share subscription of this size on the Budapest Stock Exchange for more than 10 years.

Kapolyi Law Firm is proud to be part of such a success story as the legal advisor to the issuer and to provide further legal support to AutoWallis Group in its growth strategy to become the leading car and mobility provider in the Central and Eastern European region.

Click here for more information about the share issue of AutoWallis Nyrt., which ended with more than double oversubscription.

 

Kapolyi Law Firm prepared the legal background of the public share issue of AutoWallis Nyrt.

Kapolyi Law Firm prepared the legal background of the public share issue of AutoWallis Nyrt.

Kapolyi Law Firm, a leading law firm in capital markets, acted as legal advisor in one of the most exciting stock market success stories of recent years. AutoWallis Nyrt., a company listed in the Premium category of the Budapest Stock Exchange, plans to raise funds in the range of HUF 6-8 billion. Kapolyi Law Firm will act as a legal expert for the company’s retail share sale from 25 October to 9 November and the institutional share sale from 2 to 9 November. The car company, listed on the Hungarian stock exchange, presented the terms and conditions of the fundraising and its strategic objectives at a press conference on 14 October. Our law firm participated in the event as a partner.

For more details about the share issue and the growth strategy of AutoWallis Nyrt. click here.

 

Two experts from Kapolyi Law Firm gave a presentation in connection with the Growth Bond Programme of the National Bank of Hungary at the ELITE workshop of Budapest Stock Exchange

Two experts from Kapolyi Law Firm gave a presentation in connection with the Growth Bond Programme of the National Bank of Hungary at the ELITE workshop of Budapest Stock Exchange

On 6 October, the Budapest Stock Exchange organised ELITE workshop, an international corporate development training with the participation of nearly twenty companies, the main topic thereof was financing. The event featured presentations by representatives of renowned companies and institutions such as Deloitte, Hiventures, the National Bank of Hungary, Széchenyi Funds and Budapest Bank. Kapolyi Law Firm was represented by dr. Viktor Krezinger, partner and head as well as dr. Ádám Imre Menyhárt, member of the capital markets practice group. They gave a presentation on the legal requirements and conditions for bond issue inside and outside of the Growth Bond Programme of the National Bank of Hungary.

Kapolyi Law Firm participated as legal advisor in the successful green bond issuance of Wing Real Estate Development and Investment Ltd.

Wing has issued green bonds worth around HUF 25.3 billion under the Hungarian National Bank’s Funding for Growth Scheme (FGS). One of Hungary’s largest real estate developers and investors committed to environmentally friendly solutions, will use the funds raised from the 10-year bonds, with a fixed annual interest rate of 3 percent, exclusively for environmentally friendly developments. Kapolyi Law Firm provided full legal support for the successful bond issuance carried out on 20 September 2021, including the preparation of the Information Memorandum, the smooth execution of the issuance process and the registration of the green bonds on the BSE Xbond market.

Further details on the Wing Green Bond issuance can be found here.

Financial compensation for long-continued civil procedures

author: dr. József ANTAL

The excessive length of civil procedures is not a Hungarian nor a new problem.  This issue arises from several causes, so the solution shall involve more elements as well.  One way of accelerating the process is the modernization of the procedural code, which the new Code of Civil Procedure has attempted to achieve – although the result is not yet completely clear.  A further way is to sanction if a court is simply slow despite the rules that allow the reasonable duration of a litigation matter.  This is the purpose of Act XCIV of 2021 adopted at the end of June on the enforcement of financial compensation in connection with long-lasting civil litigation procedures (hereinafter referred to as „ Pevtv”).

The excessive length of civil lawsuits obviously arises as a problem because, in a specific case, it may cause a harm to the interests of a party, who would therefore seek legal remedy and / or request a financial compensation.  Such cases have existed so far, for example in the practice of the European Court of Human Rights (ECHR).  However, this is not a system-wide solution for the problem.

By sanctioning the slowness of a civil lawsuit, the Pevtv can force the judicial organization to work even more efficiently.  The Pevtv can also give the party affected by a still long-continued civil litigation an opportunity for a compensation that can be enforced in a relatively simple manner.

My aim here is not to present the details of the Pevtv and the various methods of calculation and possible interpretation problems, but to describe the essential provisions of this new Act.

The point of the Pevtv is that a party is entitled to financial compensation if the total length of a civil lawsuit, or the length of a specific stage of the process, exceeds the duration determined by the legislator as the maximum limit of the reasonable duration of the lawsuit or that of the relevant stage of the process.

The scope of the Pevtv extends exclusively to civil litigation matters (including payment order procedures turning into litigation).  The Pevtv excludes criminal procedures.

The court procedure lasts until the day of the communication of the final and binding decision closing the procedure – including here the judgement rendered in extraordinary judicial review procedures.  (This means that, if such review procedure is decided on the merits by a judgment, the duration of the extraordinary review phase shall also be taken into account when calculating the duration of the litigation.)

The total length of the procedure also includes the duration of any repeated procedure as well as that of an allowed retrial procedure.  It can be expected mostly in the case of repeated procedures and retrials that the – otherwise sufficiently generously set – maximum acceptable time would be exceeded.

The Pevtv specifies the reasonable duration of a civil lawsuit, beyond which “the cash register may ring”.  The main rule for the entire duration of a civil lawsuit is sixty months (five years), and for each stage of the procedure it is the following: first instance – thirty months; first instance beginning with an order for payment – thirty-six months; second instance – eighteen months; and extraordinary judicial review – twelve months.

The maximum limit of the entire reasonable duration is shorter – thirty-six months (3 years) – in lawsuits regarding personal status, in lawsuits for the maintenance of a minor child, in press rectification lawsuits and, in labour lawsuits; furthermore, the maximum boundary of the reasonable duration for each stage of such procedures is shorter, as well. However, this list could be supplemented by other cases to be dealt with quickly.  Additionally, thirty-six months still seems too much in cases that do require a quick adjudication.

The court adjudging the claim for financial compensation may deviate in both directions from the above limits based on a well-reasoned decision (subject to certain limitations).  This may be necessary for the appropriate individualisation of the cases.

We already know when the financial compensation may be due; yet we do not know how much that is exactly.  The answer to this basic question is given by a government decree also adopted at the end of June (372/2021): “at the start”, the daily amount of financial compensation will be fixed at four hundred forints per day. Therefore, after a full year of delay, a maximum of HUF 146,000 can be paid.

An extremely important question is how well this government decree has “shot” the appropriate level of the financial compensation. If it is too low, there will be no real compensation nor will it push the courts towards greater efficiency.  If it is too high, it can lead to an undue burdening of the judicial budget and even to malignant, profitable cases. In my opinion, the daily HUF 400 compensation is too low, to say at least, so the new legal institution will not have any significant effect at all. As in the case of legal assistance (which many would need), there is a good chance that the lawyer’s fee will take away the full financial compensation granted, even when somebody has a very fair fee agreement. Because no one should expect at this moment that the courts are about to start awarding realistic lawyers’ fees to the winner, especially in non-litigious procedures – which has not really been seen before so far, not even in cases between private parties (and in this case we are talking about cases against national courts and ultimately the state budget).

Of course, the success of the Pevtv would – in theory – depend on other factors.  For example, it is a question whether a judge who is recurrently slow should expect consequences.  In case the answer is no, and particularly if the amount of the compensation is also set too low in the government decree, the whole new compensation system will not make much sense in practice.

In fact, despite the noble intention of the legislator, it is possible that the Pevtv will introduce or institutionalize a semi-new legal institution that will have little or no practical effect relevant to the legislature’s real aim; while courts will attempt to avoid potential delays to the detriment of the parties and their legal representatives.

The essence of the Pevtv can be seen from the above, I would like to highlight some further important details.

It will still be possible to go to the ECHR with a claim based on the excessive slowness of a civil lawsuit, but the Pevtv seeks to manage that it will not be possible to make money in both ways (in Hungary based on the new act and before the ECHR) for the same excess.

The claim for financial compensation will be enforceable against the court of first instance (in case of a district court, against the competent tribunal), so not directly against the state.

According to the Pevtv the enforcement will take place in non-litigious civil proceedings solely on the basis of documents, even in connection with ongoing litigation procedures, and in rapid proceedings with very strict deadlines (in some cases a few months, up to half a year).

According to the Pevtv, it will be ensured that the court(s) affected by the delay will not take part in the compensation procedure, so there will be no need for a separate (time-consuming) exclusion procedure.

In non-litigious proceedings, the duties will only have to be paid by the applicant in arrears if the application fails.

The new Act and the related government decree, will enter into force on 1 January 2022 and shall be applied to the ongoing cases as well.

Otherwise, in addition to, or instead of, the compensation under the Pevtv, there will still be no obstacle of making a pecuniary claim on other possible grounds (grievance fee, damages caused by a court) if their relevant statutory preconditions are met in the given case.

The success of Pevtv – namely, whether if it is be able to speed up civil litigation procedures and compensate those harmed by delays – is very doubtful from the outset, with the daily amount of the compensation being too low. But success will also depend to a large extent on the attitude of the civil courts that decide on the compensation. What will be considered as the protection of the “honour of the uniform”: granting the financial compensation, whenever possible, or the denial of the slowness, and therefore the refusal of the compensation as well, whenever possible? It will be revealed soon.

A new ESOP arrangement on the horizon

The Employee Stock Ownership Plan (ESOP) for managing financial assets available under the so-called remuneration policy was introduced by the amendment in 2015 to the Act of 1992 on the Employee Stock Ownership Plan. As part of the general provisions, the amendment stipulates that for a financial institution, an insurance undertaking, an investment firm, and for a legal person that is authorised to market securities issued by or with a majority influence on a regulated market in a Member State of the European Union ESOP can only be initiated for the management of financial assets that may be acquired under a remuneration policy.

This was amended by the Act CI of 2021 on Certain Asset Management Issues and Amending Certain Laws to Strengthen the Coherence of the Legal System, adopted on 15 June 2021. It created the legal framework for the so-called Special Employee Stock Ownership Plan (SESOP). Accordingly, these organisations may only initiate ESOP to manage financial assets available under the SESOP or a remuneration policy.

SESOP provides an opportunity to acquire ownership based on certain rules of ESOP, but specifically different from it, in order to acquire participations (shares or business shares) of a limited liability company or private company limited by shares by the company’s employees or members of its supervisory board or board of directors.

According to the Act, the SESOP is created on the basis of the employees’ initiative and programme launch (as opposed to an ESOP, which is initiated by the company). Therefore, while several parts of the general normative material governing ESOPs apply to the SESOP, the current rules governing the ESOP for the management of financial assets available under the remuneration policy are excluded one-to-one.

An organising committee should be set up to establish a SESOP; the inaugural general meeting will adopt the articles of association and elect the body responsible for operations as well as the executive officers. At the general meeting, participants have voting rights in proportion to their payments (in the absence of a payment, in equal proportions).

The company concerned may make a non-refundable contribution to the operation of the SESOP in order to acquire the shares. An interesting possibility is that in addition to establishing the SESOP organisation, employees can also establish a trust foundation under the Asset Management foundation Act to manage SESOP. In this case, at least HUF 10 million of SESOP assets must be transferred to the foundation managing the same in trust. Such a foundation may manage more than one SESOP.

The number of participants in the SESOP may not be increased after the establishment of the organisation, and, as a rule, membership in the sorganisation may not be terminated, except in the case of transfer. A company can operate multiple SESOPs at the same time. In the event of a participant’s death, the membership share may be inherited, and only one death beneficiary may be nominated, in the absence of which a new participant may become a member.

The plan may be operated for a fixed period of at least ten years, after which the participations acquired by the implementing body or the value thereof must be transferred to the participants, and the implementing body must be dissolved.

The asset management method chosen by the SESOP at the time of its formation cannot be changed during the fixed period.

According to the Act, the organisation distributes the assets in stages: first, it transfers the participations at its disposal to the participants or attempts to sell participations to them. In the event of an unsuccessful sale, in the alternative, the company is entitled to purchase the participations from the organisation. If this also fails, the organisation attempts to sell the participations on the market in the third stage. If the market sale was also unsuccessful, covered assets must be accepted by the eligible participants even if they have previously requested the value thereof.

The above-mentioned closing general meeting is convened by the SESOP’s operational body to decide on the dissolution of the SESOP without a legal successor, for example, if the SESOP’s term of operation has expired or the company dissolved without a successor or the number of participants fell below ten and are not replaced.

The SESOP differs from the existing remuneration policy-based ESOP in the following main features:

– the plan lasts for a pre-defined period,

– the number of participants may not be increased after the foundation of the organisation,

– the company may provide support for the operation of the organisation,

– the establishment of the SESOP does not require the approval of the company concerned,

– the SESOP may carry out other economic activities only on a limited basis, in the form of bond issuance and the purchase of government securities, and may not (usually) alienate the acquired assets before the closing general meeting,

– the sources of the acquisition of participations by the SESOP organisation are freely chosen,

– participants may acquire participations only after the expiry of the fixed term of the plan,

– participants may request consideration for the participations instead of acquiring them, provided that the organisation is able to sell them.

In connection with the amendment of the Act XLIV of 1992 on the Employee Stock Ownership Plan, it was also necessary to amend the Act on Duties, the Personal Income Tax Act and the Corporate Tax Act, which are also covered by the Act.

The new provisions will enter into force on 13 July 2021.

News on Crowdfunding

And what news: in our previous article we reported on the preparatory phase yet, however, on 7 October 2020 the EU has adopted its regulation on Crowdfunding service providers[1], which, due to its regulatory nature, must be directly applicable by all Member States from 10 November 2021.

  1. Uniform regulation at EU level

The Regulation, as planned originally, creates a single and uniform set of rules for crowdfunding providers and services at the EU level. While, pursuant to some previous concepts, national and EU rules would have co-existed, clause (76) of the Regulation’s explanatory part states that fragmented national provisions will be replaced by the common Regulation rules, providing transitional period until 10 November 2022 for the already authorized service providers  to convert their national licences into authorizations under the Regulation.[2] Another important change is that the authorizing authority shall be, instead of the ESMA, the financial supervisory authority of the Member State, where the service provider is established,[3] holding also all dedicated supervisory power related to the service.[4] ESMA’s roles include the registration of service providers,[5] the drafting of regulatory technical standards, close cooperation with the local financial authorities,[6] as well as the collection and publication of statistics related to the activity, among others.

  1. The most important provisions of the Regulation
  • crowdfunding activity means a publicly accessible internet-based information system (platform), operated or managed by the crowdfunding service provider;
  • crowdfunding service means the matching of business funding interests of investors and project owners through the use of a crowdfunding platform and which consists of any of the following activities (a) the facilitation of granting of loans and/or (b) the placing without a firm commitment of transferable securities and admitted instruments for crowdfunding purposes issued by project owners or a special purpose vehicle, and the reception and transmission of client orders in this regard;
  • client means any prospective or actual investor or project owner to whom a crowdfunding service provider provides, or intends to provide, crowdfunding services;
  • project owner means any natural or legal person who seeks funding through a crowdfunding platform;
  • investor means any natural or legal person who, through a crowdfunding platform, grants loans or acquires transferable securities or admitted instruments for crowdfunding purposes;[7]
  • crowdfunding service providers shall not have any participation in any crowdfunding offer on their platforms.[8] Crowdfunding service providers shall not accept as project owners in relation to the crowdfunding services offered on their platform any of the following: (a) their shareholders holding 20 %, or more, of share capital or voting rights; (b) their managers or employees; (c) any natural or legal person linked to those shareholders, managers or employees by control as defined in point (35)(b) of Article 4(1) of Directive 2014/65/EU.[9]

Crowdfunding service providers that accept as investors in the crowdfunding projects offered on their crowdfunding platform any of the above referred persons shall fully disclose on their website the fact that they accept such persons as investors, including information on the specific crowdfunding projects invested in, and shall ensure that such investments are made under the same conditions as those of other investors and that those persons do not enjoy any preferential treatment or privileged access to information;

  • the Regulation distinguishes between sophisticated and non-sophisticated investors: sophisticated investor means any natural or legal person who is a professional client by virtue of point (1), (2), (3) or (4) of Section I of Annex II to Directive 2014/65/EU or any natural or legal person who has the approval of the crowdfunding service provider to be treated as a sophisticated investor in accordance with the criteria and the procedure laid down in Annex II to this Regulation. Non-sophisticated investor means an investor who is not a sophisticated investor;[10]
  • financial products traded on crowdfunding platforms are not identical either in type or in risk to traditional investment or savings products. The Regulation therefore requires service providers to subject their prospective non-sophisticated investors to an entry-level knowledge test in order to identify and understand the higher risks associated with crowdfunding Providers should explicitly warn prospective non-sophisticated investors with insufficient knowledge, skills or experience that the crowdfunding service they provide may not be suitable for them. Crowdfunding service providers may only accept investments from non-sophisticated investors who have explicitly acknowledged that they have red and understood these warnings;[11]
  • as there is a significant risk that non-sophisticated investors will lose most, or even all amounts, originally invested, their excessive exposure to such projects should be avoided. The Regulation therefore provides for that in each case, when the non-sophisticated investor’s targeted investment exceeds a certain limit, set out in the Regulation, the crowdfunding service provider – among others – shall ensure that such investor receives a risk warning, and provides explicit consent to the crowdfunding service provider;[12]
  • however, the Regulation also states explicitly that “Prospective non-sophisticated investors and non-sophisticated investors shall not be prevented from investing in crowdfunding projects”[13] by which it places the responsibility for the risk of any particular investment primarily on the investor;
  • the service provider shall provide for a pre-contractual reflection period, during which the prospective non-sophisticated investor may, at any time, revoke his or her offer to invest or expression of interest in the crowdfunding offer without giving a reason and without incurring a penalty. This reflection period shall start at the date of the offer to invest, or the expression of interest by the prospective non-sophisticated investor, and shall expire after four calendar days;[14]
  • service providers shall provide prospective investors with a key investment information sheet drawn up by the project owner for each crowdfunding offer. The key investment information sheet shall be drafted in at least one of the official languages of the Member State, whose competent supervisory authority granted the authorization in accordance with Article 12, or in another language accepted by the authority;[15]
  • crowdfunding may be provided in the form of cross-border services;[16]
  • service providers shall have in place, continuously, prudential safeguards, equal to an amount of at least the higher of the following: (a) EUR 25 000; and (b) one quarter of the fixed overheads of the preceding year, reviewed annually;[17]
  • the authorizing supervisory authority has wide and extensive powers of control over the activities of the crowdfunding service providers.[18] The sanctions can range from the suspension of the financing offer announced by the project owner for several days, through the imposition of a fine, to the revocation of the license, granted to the service provider. In the latter case, the authority shall even have the power, with the consent of the clients and the accepting, other crowdfunding service providers, to transfer existing contracts to another crowdfunding service providers.[19]
  1. The Hungarian regulation

It is further encouraging that Act LVIII of 2021 on the amendments to the law related to the regulation of covered bonds and other legal harmonization measures affecting the financial intermediation system, which bring the above into line with Hungarian legislation has already been published on 28 May 2021 in the Hungarian Gazette No. 98.

The amendment of the law follows the path paved by the Decree: the crowfunding service is defined as independent activity to be performed under the Capital Markets Act, which is not subject to either the Act on the Investment Firms and Commodity Exchange Service Providers, or the Credit Institutions Act. For those who intends to provide the services from a Hungarian headquarter, the authorizing and supervisory authority shall be the National Bank of Hungary.

The amendment to the laws, implementing the crowdfunding services will enter into force on 10 November 2021.[20] The main provisions are as follows:

  • Capital Markets Act:
  • in the Hungarian legal system, the provisions of Act CXX of 2001 on the Capital Markets Act (Tpt.) shall apply to the crowdfunding service;[21]
  • devotes the full Part Eighth/A. to the rules on crowdfunding, in which it states, inter alia, that “provision of credit that may be mediated within the framework of Crowdfunding as defined in Regulation (EU) 2020/1503 of the European Parliament and of the Council, shall be construed as lending as defined in Section (40) (b) (ba) of Article 6 (1) of the Hpt.”[22] In addition, it is specified that “The project owner and its executive person shall be jointly and severally liable for the accuracy and completeness of the information precluding a different interpretation contained in the key investment information sheet set forth in Article 23 of Regulation (EU) 2020/1503 of the European Parliament and of the Council[23]
  • Article 400 of Tpt. is supplemented with applicable measures and sanctions related to violations of legislation detected by the Supervisory Authority (the National Bank of Hungary) in connection with the crowdfunding service;[24]
  • according to the new paragraph (9) of Article 405 of the Tpt. “The maximum fine that may be imposed in the event of a breach of the obligation to provide a crowdfunding service amounts to
  1. twice of the profit arising from the infringement, if the profit can be quantified,
  2. b) if the profit cannot be quantified, then
  3. ba) in the case of a legal person, up to HUF 179,010,000 or up to 5% of the previous total annual turnover according stated in the last available financial statements approved by the decision-making body; if the legal entity is a parent company or a subsidiary of a parent company that is required to prepare consolidated financial statements under the accounting legislation, then the annual turnover to be taken into account is the annual turnover according to the latest consolidated accounts approved by the decision-making body of the parent company or the corresponding revenue according to the accounting legislation,
  4. bb) in the case of a private person, a maximum of HUF 179,010,000.
  • Act CXXXVIII of 2007 on Investment Firms and Commodity Exchange Service Providers and the Rules on the Activities they may carry out (Bszt.):
  • the amendment to the law states that Community funding service providers defined in Section (1) (e) of Article 2 of the Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 are not subject to the Bszt.[25]
  • Act CXXXIX of 2013 on the National Bank of Hungary (MNBtv.):
  • The following par. (37) is added to Article 40 of the MNBtv.: “Within the scope of its tasks specified in Section (1) (h) of Article 39 the National Bank of Hungary shall perform the tasks related to the implementation of Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937”;
  • the amendment to the law further states that (This Act) “ together with the Act CXX of 2001 on the Capital Market and Act CCXXXVII of 2013 on Credit Institutions and Financial Undertakings lays down the necessary provisions for the implementation of Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937[26]
  • Amendment of Act CCXXXVII of 2013 on Credit Institutions and Financial Undertakings. law
  • The following Section 6a is added to Article 6 of Act CCXXXVII of 2013 on Credit Institutions and Financial Undertakings (Hpt.): “(6a) Community funding services as defined in Regulation (EU) 2020/1503 of the European Parliament and of the Council shall not constitute financial intermediation.[27]
  1. Conclusions

Two obvious conclusions can be drawn from the above, at least: (i) the fact that those service providers already present in EU Member States are entitled to convert their current, national authorisations to licenses granted under the Regulation and, to provide the services as cross-border activity in the designated/authorized Member States paves the way to the full European market. This offers huge growth opportunity for the already licensed and experienced service providers, which will certainly be exploited. (ii) On the other hand, the one-year transition period between November 2021 and November 2022 provides opportunity for those wishing to launch their service now to obtain their license in order to follow in the footsteps of those before them. Whatever happens, the forthcoming years will certainly be exciting in terms of crowdfunding, and we can only hope that the outcome of the competition will be positive for all parties.

[1] REGULATION (EU) 2020/1503 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 7 October 2020 on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937

 [2]„(76) In the interest of legal certainty and in view of the replacement of national rules by the rules set out in this Regulation insofar as types of crowdfunding services are concerned which are now included within the scope of this Regulation, it is appropriate to make transitional arrangements allowing persons providing such crowdfunding services in accordance with national law preceding this Regulation to adapt their business activities to this Regulation and to have sufficient time to apply for an authorisation thereunder. Such persons should therefore be able to continue to provide crowdfunding services that are included within the scope of this Regulation in accordance with the applicable national law until 10 November 2022. During that transitional period, Member States can put in place special procedures to enable legal persons, which have been authorised under national law to provide crowdfunding services included within the scope of this Regulation, to convert their national authorisations into authorisations under this Regulation, provided that the crowdfunding service providers meet the requirements set out in this Regulation.

(77) Crowdfunding service providers who have failed to obtain authorisation in accordance with this Regulation by 10 November 2022 should not issue any new crowdfunding offers after that date. To avoid a situation whereby the raising of target capital in relation to a particular crowdfunding project is not completed by 10 November 2022, the calls for funding should be closed by that date. However, after 10 November 2022 servicing of the existing contracts, including collecting and transferring receivables, providing asset safekeeping services or processing corporate actions, can continue in accordance with the applicable national law.” as well as Article 3. clause (1).

[3] Article 12. clause (1).

[4] Article 15.

[5] Article 14.

[6] Article 32.

[7] to points (i)-(v): Article 2

[8] Article 8 (1)

[9] Article 8 (2): DIRECTIVE 2014/65/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) (Text with EEA relevance)

(35) ‘close links’ means a situation in which two or more natural or legal persons are linked by:

(a) participation in the form of ownership, direct or by way of control, of 20 % or more of the voting rights or capital of an undertaking;

(b) ‘control’ which means the relationship between a parent undertaking and a subsidiary, in all the cases referred to in Article 22(1) and (2) of Directive 2013/34/EU, or a similar relationship between any natural or legal person and an undertaking, any subsidiary undertaking of a subsidiary undertaking also being considered to be a subsidiary of the parent undertaking which is at the head of those undertakings;

(c) a permanent link of both or all of them to the same person by a control relationship;

[10] Article 2

[11] Article 21, in particular par. (4)

[12] Article 21 (7)

[13] Article 21(6), second sentence

[14] Article 22 (2) and (3)

[15] Article 23

[16] Article 18

[17] Article 11 (the latter must include the amount of credit management costs for a period of three months if the Community funding service provider also mediates lending)

[18] Article 30 (2)

[19]Article 30 (2) (i) (if the licence of a Community funding service provider has been withdrawn pursuant to point (c) of the first subparagraph of Article 17 (1) of the Regulation)

[20] Article 139. (2) of the bill T/15973

[21] Article 24.: the new par. 78a. and 78b of Articles 1/B. and 5 (1) of the Tpt.

[22] Article 26.: according to Article 296/A. of the Tpt. and clause 40 of Article 6 (1) of the Hpt.: provision of credit and loans

  1. b) lending of loan: […] ba) making available an amount on the basis of a credit or loan agreement concluded between the creditor and the debtor that the debtor is obliged to repay on the date specified in the contract, with or without interest,

[23] Article 296/B. (1) of the Tpt.

[24] Article 30.: Article 400. (3b) of the Tpt. (in line with Article 30. (2) of the Regulation)

[25] Article 46. (2): new clause m) of Article 2. of the Bszt.

[26] Article 88.: new par. 22. of Article 185/A. of the MNBtv.

[27] Article 90.§.

Panel discussion with dr. József Kapolyi at the Legal Fest Arsboni Stories about his experience of professionalism, perseverance and legal career paths

This year, the founder and head of our law firm, dr. József Kapolyi was one of the guests at a panel discussion of the Legal Fest organized by Arsboni between 10 and 14 May, where recognized executives in the legal profession shared their experiences, opinions on their field of expertise, the operation of legal representations, law firms, career paths and opportunities.

The other guests were dr. Zoltán Novák, Taylor Wessing’s partner and dr. György Viktor Radics, DLA Piper’s Hungarian partner and head of the dispute resolution group. The head of our firm, dr. József Kapolyi, shared his experiences and advice on professionalism, decisions, perseverance, ambition, entrepreneurship, and his legal career at the panel discussion. Among other things, he talked about how he got a career in the field of law, started his professional career as a lawyer, and how he built and made his own law firm, Kapolyi Law Firm, successful.

Information on a newly introduced restructuring procedure to prevent insolvency

The bill on restructuring and amending certain laws for the purpose of legal harmonization was prepared to transpose the content of the Titles I-II of Directive 2019/1023/EU into the Hungarian law. The Directive aims to increase the competitiveness of the Member States and the EU, which the Directive aims to achieve in two phases: restructuring of the legal persons in financial difficulty but not insolvent yet, and the debt settlement and debt relief proceedings of insolvent self-employed individuals. The proposal concentrates exclusively on the fulfilment of the first step (the rules of the debt settlement of private individuals are covered by Act CV of 2015 on the debt settlement for natural persons, so that in their case the provisions of the Directive are transposed by amending this Act).).

The legislative background of the bill is Government Decree No. 179/2021. (IV. 16.)on reorganisation procedure for emergency situations similar to the restructuring procedure, which aims to restore the financial situation of companies in imminent insolvency under Act XLIX of 1991 on bankruptcy and liquidation proceedings (“Bankruptcy Act”). However, there are also substantial differences between the two procedures.

The purpose of the bill is to ensure that the economic activities of the companies is sustainable even if they struggle with financial difficulties and to avoid bankruptcy or insolvency for these companies. It is worth mentioning that the personal scope of the bill does not cover financial institutions, private entrepreneurs and public bodies, however, capital owners and other third persons are entitled to join the restructuring plan. During the procedure, the court may appoint a restructuring expert at the request of the debtor or the creditors, whose job is to assist the debtor in, among others, communicating with creditors, drafting, voting on and implementing the restructuring plan.

A restructuring procedure may be initiated by any legal person or civil law entity engaged in economic activity, but the bill defines item by item the types of debtors who may not initiate the procedure, furthermore, it strictly stipulates that public burdens related to employment, VAT related to the debtor’s activity and the assets subject to criminal law measures may not be included in the proceedings. The decision on initiating the procedure is taken by the decision-making body of the debtor (the sole member in the case of a single-member company), but the non-litigious procedure may be requested exclusively from the Regional Court of Budapest, as the court with exclusive competence and jurisdiction. Legal representation is obligatory in the procedure. The starting date of the procedure is set by the decision of the debtor’s decision-making body and the closing date is the date of full implementation of the measures adopted in the restructuring plan, or the date of failure. As a basic rule, it is not possible to carry out more than one restructuring at the same time.

A fundamental characteristic of the procedure that it starts as a trust procedure and only turns public if the debtor requests a general moratorium. During the restructuring, a restructuring plan must be drawn up and accepted, which must be suitable for preserving the viability of the debtor and must also be capable of restructuring the company’s debt composition and repayment conditions to bring them into line the debtor’s ability to pay. The restructuring measures are not itemized in the bill but are merely defined in a framework.

The approval of the written restructuring plan, which has been voted by the creditors is referred to the court’s competence according to the bill, which approval has legal effect. It is the court’s duty to examine the formal and legal accuracy of the plan during the procedure and, if they are in order, approve the plan. If the debtor decides to initiate the procedure, the owners have a duty to co-operate to successfully advance the process. Otherwise, if restructuring is unsuccessful, the moratorium is lifted, however, the court will not be entitled to declare the insolvency of the debtor on that basis alone.

The proposal regulates in detail the so-called procedure for granting a so-called moratorium on debt enforcement and the creditors’ rights during the moratorium (the restrictions during the moratorium only apply to creditors involved in the moratorium). The moratorium only refers to claims that have become due before the start of the moratorium, the debtor is obliged to perform all other debts. A general (covering all creditors) or a limited moratorium (covering only creditors who are part of the restructuring) may be ordered, the period of which can be up to four months, which may be extended to a maximum of twelve months in a well-reasoned cases. During the procedure for granting the moratorium or during the moratorium, no liquidation proceedings may be opened against the debtor. The general moratorium is valid from the date of publication, while the limited moratorium is valid from the date of receipt by the debtor of the court’s order granting the moratorium. The court decides whether to grant or terminate the moratorium, as well.

The moratorium on enforcement of claims ensures that creditors may not take enforcement actions against the debtor during the restructuring procedure and that insolvency proceedings may not be initiated against the debtor, either, thus ensuring that the restructuring procedure does not impose an undue risk on the debtor. However, in the creditors’ interests, the moratorium should be ordered for a fixed term only and, in special cases, such as in the event of the debtor foreclosing on collateral or if the moratorium causes the creditor to become insolvent, the moratorium may be terminated before the expiry of the 90-day minimum period.

The bill limits the scope of legal remedies against court decisions and their legal consequences. Thus, of the refusal decisions, only decisions based on discretionary points of law may be appealed. An appeal against an order approving the restructuring plan does not affect the rights and obligations relating to the implementation of the plan until the second instance decision pronounces a modification of the first instance order to such an extent that refusal to approve the plan becomes necessary. No extraordinary remedy is available during the proceeding.

The bill also requires the amendment of Bankruptcy Act and the clarification of the relationship between bankruptcy proceedings and restructuring proceedings, as these proceedings may not be carried out in parallel and the debtor must choose which procedure he wishes to initiate. The bill is expected to enter into force on 1 July 2021.