Curia decided: currently known platform-based food delivery is not an employment relationship, but legal safety net would be needed according to labour law expert

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The Curia has not classified platform-based, self-employed food delivery as employment relationship in a case that has also raised public concern, which means that in Hungary so-called platform workers are excluded from the labour law protection. According to Kapolyi Law Firm’s expert, it is reasonable that not all forms of employment are necessarily employment, but there is a need for an intermediate category or legal safety net to manage the inequality between dominant large companies and self-employed workers.

In its final judgment in December, the Curia did not classify food deliveries as an employment relationship. According to the Supreme Court, no broad right of instruction and control necessary for the classification of an employment relationship existed, since, for example, in the case before the court, the courier could refuse to do the job in question and there was no hierarchical relationship or interdependence. (For details of the Curia’s decision, see “Background: this is why the Curia ruled as it did”.) According to Dr. Zsófia Somlóvári, labour law expert at Kapolyi Law Firm, the decision is particularly important because Hungarian labour courts could previously reclassify hidden employment relationships on the basis of such characteristics, however, after the decision of the Curia, this cannot be done in the future in the case of similar facts.

According to the labour law expert, platform employment is a new area that mixes labour law and business-based employment. For example, food delivery workers take on a task through an app, but using branding elements defined by the employer, they are now working in an “independent” entrepreneurial capacity. The expert points out, however, that in many cases, food delivery and similar workers are heavily dependent on their employers, yet are not protected against them. A common view in the legal literature is that this form of employment is essentially a form of employment bypass: some schemes take advantage of the fact that many people work regularly of their own volition and in fact for more hours than labour law would allow, due to competition between colleagues, for example.

Nevertheless, Kapolyi Law Firm’s expert believes that it is not necessary to exclude all forms of employment from the umbrella of agency/entrepreneurial/contractual relationships, even if they are even slightly similar to employment, as this would also reduce the choice of the employees. Rather, a safety net would be necessarily developed in order to manage the inequality between dominant large companies and self-employed workers. This could include, for example, a fixed minimum hourly rate or the creation of an ‘intermediate’ category that assesses the dominance of the parties vis-à-vis each other. Few would argue that in such a case the self-employed person has no real bargaining power vis-à-vis his large business client, therefore he cannot raise the price of his service, for example. Moreover, there is no possibility of collective redress, even though they work in masse for the same employer in, essentially, the same structure, since only employees can form trade unions.

Background: this is why the Curia ruled as it did

The Curia made its decision with reference to Act I of 2012 on the Labour Code (hereinafter referred to as „Labour Code”). In the case, the Court had to examine whether there was a broad right of instruction and control, including the place, time, and manner of work, which would justify a subordinated and superior hierarchy between the employee and the employer, Kapolyi Law Firm’s lawyer recalls. The Curia, however, found that the circumstances assessed jointly in the present case, do not constitute qualifying features on the basis of which an employment relationship could be established:

  • According to the Labour Code, the fact that the employer supervises and determines the way food delivery workers perform their duties (e.g. wearing a corporate identity) and that it expects them to accept a delivery within 75 seconds does not constitute a broad employer instruction, since if the courier does not accept the task, he is not obliged to perform the work.
  • Although the principal is not deprived of the right to give instructions, even in the case of a contract for work, in the present case the instructions did not cover all the phases and elements of the work. The food delivery worker received the tasks through an application, which in itself does not justify subordinated and superior hierarchy. In addition, the food delivery worker decided for himself whether and how much active time he would take, allocated his own time when taking on tasks, and this was not monitored or accounted for by anyone. According to Dr Zsófia Somlóvári, Hungarian labour law does not recognise any type of employment relationship in which the number of working hours is exclusively adapted to the needs of the employee, i.e. there is no fixed working time, even in case of a working time frame or flexible working hours.
  • In the Curia’s view, the proof of performance was the verification that the delivery had taken place.
  • A further objection to the employment relationship was that the element of employment in the organisation was missing, no hierarchical relationship or interdependence existed, which could be a qualifying element of an employment relationship.
  • The principal settled with the food delivery worker on a fortnightly basis, and the remuneration was partly based on the remuneration for the tasks undertaken and completed, and partly on an hourly rate, but the remuneration was neither fixed nor capped by the parties. The Curia did not consider this regular remuneration as a basis for establishing the existence of an employment relationship either, since regular remuneration is also common in long-term agency relationships. This is the case, for example, of a fixed monthly fee paid in return for invoices to be paid on a continuous basis and for services rendered.
  • Lastly, the food delivery worker carried out the activity using his own means, and the resources strictly necessary for the performance of his tasks were not provided by the principal.

An old-new in rem legal institution in the Hungarian Civil Code: the right of construction

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A new draft legislative act, which is still under discussion, aiming to amend certain laws “in order to increase the competitiveness of the economy”, has recently been published for public consultation; the backbone thereof are proposals to amend the Civil Code in force. The main points of this draft concerning the Civil Code include inter alia, the introduction of more detailed rules on subordinated lien in order to clarify the legal position of the assignee, the introduction of a new, special case of separation, known as “detachment”, as well as the intention to introduce or reintroduce the law on the right of construction into the Hungarian legal system. In this article, we would like to highlight the latter legal institution, which has already been part of the Hungarian legal system once, and to present its planned regulation as well as its possible practical effects on economic life.

The concept and characteristics of the right of construction

The right to construct, as defined in the draft legislation, entitles the holder to construct or exploit a building on or under the surface of immovable property, whereby it is entitled to construct a building, to use the immovable property for this purpose, to occupy, use or collect the proceeds of the constructed or existing building. The right to construct shall extend to the building erected or exploited thereunder and to its components too.

The right to construct is a marketable and transferable right, it may be subject to succession, and held simultaneously and jointly by several holders, subject to the rules governing common ownership. The right to construct may be encumbered by a lien registering it in the Land Registry, nevertheless, it is important to stress that it is not equivalent to a mortgage on the property.

According to the proposal, the right to construct can be created by a written contract for a fixed term and requires, in addition to the contract, the registration of this right in the Land Registry in favour of the holder. The proposal provides the possibility for the owner of the immovable property to establish the right to construct in his own name as holder of the right and to pledge it independently.

It is important to highlight that the right to construct will cease to exist if it has not been exercised by the holder for fifteen years or if it has been established for more than fifty years, after fifty years have elapsed from the date of its establishment.

As mentioned above, the right to construct is a transferable right of pecuniary value, whereby it should be stressed that the transfer or encumbrance of the immovable property subject to the right to construct does not affect the existence of the right to construct, nor does the transfer or encumbrance of the right to construct affect the ownership of the immovable property. Likewise, it can be stated that the lien on the right to construct does not restrict the transfer of the property concerned or the encumbrance thereof by security rights.

Unless otherwise agreed by the parties, which is provided for by the draft legislation under the rules on the separate ownership of buildings and land, a building constructed under the right to construct remains the component of the concerned immovable property even if the owner thereof and the holder of the right to construct are different persons, therefore the construction does not automatically create an independent ownership right in respect of the building.

The detailed content and scope of the right to construct can be freely determined by the parties concerned within the framework of the legislation (including in particular the provisions of building law and land registration, such as local building regulations and building capacity), but it should be stressed that, under the proposed law, the creation and registration of this right does not in itself presuppose the existence of a building permit.

This legal instrument may be established free of charge, or for a consideration, as freely agreed by the parties. In the latter case, the holder of the right to construct is obliged to pay a one-off and/or periodic fee, the so-called construction fee, the amount and due date of which must be specified by the parties in the contract establishing this right.

Naturally, the above rules also give rise to the relevant amendment of several laws, including the Law on the Land Registry, which, if adopted, will add the right to construct to the list of rights that can be registered in the Land Registry.

This legal instrument is mainly comparable to the usufruct right, but it provides the holder of right with a stronger basis and right, because, in addition to the right of free use and exploitation granted by the usufruct right too, it also provides the right of free disposal of the buildings and their components that are created under this right. As mentioned above, the right to construct is a transferable, encumberable right, which is an additional right compared to the possibilities provided by law in relation to the usufruct right.

The practical and economic importance of the right to construct

After reviewing the rules of the draft legislation, it is worth examining the potential impact of this old-new legal instrument on economic life.

According to the explanatory memorandum attached to the proposal, the problems emerging in connection with the financing of investments related to the construction of some buildings and technical installations are an obstacle to economic growth and competitiveness. The difficulty arises from the fact that the building, structure, work, or superstructure to be constructed in the future cannot be mortgaged or accepted as collateral for a loan that could be encumbered by such a right and cannot, therefore, serve as adequate collateral for the financing needed to carry out the project.

The proposing ministry cites solar power plant investments as a typical example, since, in these cases, not only the asset to be installed and built on, but also the power plant license and the long-term take-over guarantee, that are linked to the land, are included in the value of the investment.

The reintroduction of the right to construct into Hungarian law would provide a much simpler basis for financing such investments than the systems currently in use. As in the case of renewable energy investments, the right of construction could play an essential role in facilitating the financing of construction works on, under, or even over public land (e.g. underpasses, bridges, underground car parks, tunnels), which could also stimulate economic activity. The timeliness of the introduction of this legal institution is further justified by the fact that, at the same time, a complete renewal of the land registration law is underway, which provides an appropriate basis and opportunity for the reintegration of the right to construct into our legal system.

We attended the IBA Annual Professional Conference in Miami

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We continue to build our international relationships at the International Bar Association (IBA) Annual Professional Conference in Miami, where we expand and update our knowledge by attending presentations and workshops on corporate law, M&A and dispute resolution, among other topics. Our law firm will be represented at this international event by the founder and head of the firm, József Kapolyi.

Workers may be replaced from Asia: will there be wage tension and fluctuation in Hungary?

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It has become easier to recruit workers from third countries, including from Asia, through certified temporary-work agencies. In addition to the fact that labour shortages in some sectors and the uncertain economic outlook make it increasingly advantageous for employers to hire workers, the new regulation may also have negative consequences for the labour market: wage tension and fluctuation may increase due to third-country workers.

At the end of June, a new government decree[1] came into force which makes it far easier for temporary-work agencies to recruit employers not only from neighbouring countries but also from the Asian region. The new regulation could further stimulate the temporary-work agency market, while employers facing a shortage of human resources will be able to access labour force more easily and flexibly. However, the new regulation may not only provide some relief from labour shortages, but also raise new problems.

Temporary agency work has many advantages, one of the most important is that the various administrative burdens of employment are not borne by the user enterprise (i.e. the „borrowing company”), but by the temporary-work agency. The Regulation sets out the conditions for registration as a certified temporary-work agency, which are stricter than those for „normal” temporary-work agency, nevertheless, the legislation is short again of eliminating or solving a number of problems. A recent case in Curia has once again highlighted that the Labour Code[2], in force since 2012, does not in practice protect temporary agency workers, since it considers the temporary-work agency as the employer, who can dismiss the employee at any time without justification. Therefore, if the temporary agency work is terminated, the temporary-work agency (i.e. the lender of work force) can rely on this circumstance alone to terminate the employment relationship with the temporary agency worker. Nevertheless, it is precisely this possibility that makes temporary agency work attractive for employers.

In the increasingly uncertain economic climate, this type of employment may become even more popular in the future, as the user enterprise (i.e. the hirer of work force) has the flexibility to adapt the number of workers to its current needs and, in the event of redundancies, temporary agency workers will be the first to be laid off. The Hungarian legislation limits the maximum duration of temporary agency work up to 5 years, which is nowadays no longer considered a short period spent in one workplace and is close to the average of 8.9[3] years spent by workplace in Hungary. On this basis, it can be stated that temporary agency work is not tending towards short-term, temporary employment. If the user enterprise (i.e. the hirer of work force) is satisfied with the employer, he can employ him for long term with slight labour law guarantees, while he can dismiss him at any time without giving any reason.

Question marks around wage tension, fluctuation, and collective disputes

While the new legislation could benefit companies in many ways, it also raises many questions about its implications. On the one hand, it could lead to wage tensions between workers due to lower pay requirements by third-country workers. The fluctuation is also a question: in sectors where there has already been high fluctuation of workers, could this problem be solved by hiring third-country nationals or, on the contrary, could the tension between workers in different employment relationships lead to an increase the number of leaving workers employed in employment relationship. Inappropriate use of temporary agency work could therefore lead to more workers leaving by the end of the year than can be replaced by temporary agency workers, while recruitment continues. Another potential source of tension is that third-country workers will obviously not be aware of the cornerstones of national labour law or may simply be dismissed in the event of conspiracy. This in turn could lead to the erosion of the working conditions and labour law guarantees that workers have fought for or that have been established by judicial practice.

When appropriately applied, temporary agency work can not only help employers to reduce the costs of the labour organisation, but also provide great flexibility. However, to make an effective use of all this, employers would need to consider proper preparation, HR management and other factors. At the same time, it is already clear that the current regulation of temporary agency work puts employers in a more advantageous position vis-à-vis workers who are not protected by guarantee-provisions. Thus, currently, both temporary-work agencies and user enterprises face less risk than in the case of a ‘normal’ employment relationship when it comes to the legality of employer’s measures affecting temporary agency workers, such as termination of employment, for example.

[1] Government Decree 226/2022 on the registration and activity of certified temporary-work agencies

[2] Act I of 2012 on the Labour Code – “Labour Code”

[3]statistic of OECD, 2020 (https://stats.oecd.org/Index.aspx?QueryId=29561)

 

The Helikon Terrace on the shores of Lake Balaton is progressing well, Kapolyi Law Firm is the legal advisor of the investor

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One of Keszthely’s new high quality residential projects, Helikon Terasz, has reached the construction stage and held a ceremony with the participation of the contracted buyers in mid-May. Work is progressing according to plan, the first phase of the project is expected to be handed over in the first quarter of 2023. As legal advisors of the investor Blue Corso Zrt., we are proud that Kapolyi Law Firm, with the support of our real estate and construction law team, can be part of the 21st century smart home project envisioned for the Balaton shore!

New EU regulation will restrict accommodation portals from summer

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From 1 June, a new EU regulation will come into force that, among others, restricts online accommodation providers from entering into agreements that require hotels to advertise their rooms at the best price with them. The regulation does not only concern the tourism sector, since it deals with restrictive agreements between suppliers and buyers, in general.

As revealed in the summary provided by Kapolyi Law Firm, a new EU regulation on restrictive agreements between suppliers and buyers will enter into force on 1 June. According to Dr. Zoltán Bánki, attorney-at-law in association with the Law Firm, the new rules confirm that not only companies above the market share threshold of 30 % need to act with due care when entering into agreements restricting competition, but also smaller ones. Under the new rules, irrespective of the market shares, a restriction of sales of services or products of the buyer through its own website is allowed only in exceptional cases. As the summer approaches, the focus of interest will be on large online accommodation portals and their partners (among them on hotels, in particular), Kapolyi Law Firm points out that the Regulation applies not only to the online but also to the offline world. The amendment was necessary mainly because online commerce has undergone significant changes in the recent years and new responses have had to be found to the problems that have arisen. The change is particularly important and forward-looking for the large accommodation intermediary sites as the summer and the peak season in tourism approach and could lead to a significant change in the already established practices between hotels and intermediary sites.

Online sales: own online stores and websites can be restricted only in exceptional cases

Under the new rules, if the buyer is active merely at the retail level, restrictions on the operation of its own website and online store is allowed only in exceptional cases, irrespective of the degree of the parties’ market share. Exceptions may be made if it can be proved that the restriction is proportionate and allow consumers a fair share of the benefits resulting from the enhanced efficiency. The new rules also clarify in which cases agreements may prohibit the buyer’s advertisement from appearing on price comparison sites or search engines. As a general rule, the use of an advertising channel can be restricted if the parties’ market share is below 30% and the agreement does not entirely prohibit the buyer from advertising on a particular online advertising channel (for example, on price comparison sites).

Exceptional exemption from the prohibition

Agreements undesired under the new rules may only be exempted from the prohibition of restrictive agreements if these allow consumers a fair share of the benefits resulting from enhanced efficiency and, the restriction remains proportional, as noted by Dr. Zoltán Bánki, an expert at Kapolyi Law Firm. However, the companies concluding such agreements always need to be able to prove that these conditions are met simultaneously, otherwise the competition authority may find an infringement. This risk requires a high degree of caution also in the case of restrictive agreements between supplier and buyer.

Background: three distribution systems, franchise systems

The new rules take into account the characteristics of each distribution system and, accordingly, distinguish between three systems, namely, between selective distribution system (where the supplier sells only to distributors selected on the basis of specified criteria, and these distributors do not sell to distributors not selected by the supplier within the territory of the selective distribution system ), exclusive distribution system (where the supplier allocates a territory or a group of customers exclusively to itself or to a maximum of five buyers and restricts all its other buyers from targeting this territory or this customer group), and free distribution system (which is neither a selective distribution system nor an exclusive distribution system).

The new rules cover the competition aspects of franchising as well. Accordingly, restrictive clauses in franchise agreements must be assessed on the basis of the rules of the distribution system that most closely corresponds to the franchise agreement in question.

 

Accidents at work while working from home?

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  1. Introduction

The spread of working from home (home office) in the light of the pandemic has led to particular attention being paid to the development of legislation and judicial practice related to home office. There are two main directions in the Hungarian legal literature regarding the treatment of home office under Hungarian labour law: one approach is that the rules of the Act I of 2012 on the Hungarian Labour Code on teleworking provide adequate guidance as to the rights and obligations of the parties in practice, while the other approach is that home office is widely used in practice even outside the cases of telework (and under different conditions), and that there is greater uncertainty in legal issues concerning precisely those cases outside of the scope of telework. Real company practices show the validity of the approach that the rules on telework do not cover all cases of home office.

The focus on the legal problems of the home office has been highlighted as well in recent weeks by a highly publicised social security case in Germany. The key issue in the case was the extent to which an accident in home office could be considered as an accident at work (according to Hungarian terminology). In the case of home office, the distinction between journeys on duty, journeys relevant in the context of an accident in commute and journeys outside the scope of accident insurance can become quite complicated, which may have significant consequences on the entitlement to benefits under accident insurance. In addition, it may also raise a question as to what the consequences of the approach taken in this case, if followed in Hungary, might be in terms of occupational safety.

  1. The famous German case

In 2018, a case received considerable press coverage in which an employee working from home office suffered a fracture of the thoracic vertebrae, when he fell down the spiral staircase leading to the third floor of his home, where his workroom was located, immediately after he set off to begin his work from the bathroom on the fourth floor. The employee requested from the social security body to recognize his accident as an accident at work, but the latter refused to do so.

In the subsequent proceedings, the court of first instance emphasized that, in determining whether it was a journey on duty, the most important factor was whether the employee’s activity at the time of the accident were directed towards performing activity for the benefit of his employer and, in this respect, upheld the employee’s claim. The court of appeal, however, concluded that the fact that the employee goes down the stairs from the fourth floor to the third floor of his own apartment cannot be considered as a journey which falls within the scope of an accident in commute. Based on the jurisprudence and legal literature, the court of appeal held that a person employed in home office is never on a journey to and from the place of the insured activity within the house or apartment, the starting point of such a journey is the front door of the building through which the insured person’s home is situated and through which he must pass through in order to be considered an accident in commute. In addition, the court of appeal also found that the journey in question did not constitute a journey on duty. The journey on duty takes place during the performance of the insured activity and as such is part of the insured activity; however, in the present case, at the time of the fall, the employee was on his way to his workplace for the purpose of starting his insured activity, i.e. before he started it. For these reasons, the court of appeal reversed the judgment of the court of first instance and dismissed the claim.

However, the Federal Social Court (Bundessozialgericht, BSG), which ruled on the application for review, confirmed – in agreement with the court of first instance – that, exceptionally, a journey on duty can be established even if the place of residence and the place of work are in the same building. The BSG found that the employee had only taken the stairs in his house to start his daily work in home office and therefore, as a journey on duty, the employee was then performing an activity in the employer’s interest. Therefore, an accident suffered by the employee is considered as an accident at work under the accident insurance rules.

  1. The aftermath of the German social security cases concerning home office

Although the content of the BSG’s judgment is only available up to the extent of the press release[1],the report on the hearing scheduled for the judgment[2] and the first instance judgment is only available from the judgment of the court of appeal, it seems to be clear that the presented German case examined only the social security aspect of the accident. The case did not raise any obligation for the employer to compensate the social security body, nor did it raise any problems of occupational safety or any issue of liability under labour law. This in itself does not mean, of course, that the classification of an accident in the light of social security rules might not entail risks for the employer in a given case.

However, the judgement of the BSG is not without precedent. In a previous case concerning an accident, which occurred during home office, the BSG ruled that a journey begun for the purpose of carrying out an insured activity and forming part of the insured activity is a journey on duty and therefore must be considered the same as work at the business premises. The difference between journeys relevant in the context of an accident in commute and a journey on duty is that the latter is made directly in the interests of the undertaking. The BSG has also confirmed that the rules on journeys on duty should also be applied accordingly for journeys from the area of personal life to the place of work in the same house. However, in the case of working from home, only those premises are considered to be workplaces where a workplace is permanently established within the building on the basis of an individual employment contract and where the employees are regularly engaged in work activities.

As a result of the recent decision, a journey to reach the workroom within the home is considered a journey on duty not only if the employee has already started his daily work before the journey, but also if it is essential for starting the daily work.

In the summer of 2021, the German legislator supplemented the legislation on accident insurance under social security by rules relevant in terms of home office: under the newly introduced rules, if the insured activity is carried out in the home of the insured person or elsewhere, the accident insurance covers in the same extent as for activities carried out in business premises. The statement of reasons points out that accident insurance covers the journey on duty (for example, the way to a printer in another room) equally for work carried out both inside and outside the company premises. In case of home office, the new German rules extend accident insurance to cover those trips during which the insured leaves his workroom in order to meet daily physiological needs in his own household, for which he would temporarily leave the office of company premises as well (in particular to take liquids, food or to use the toilet).

  1. Assessment of the case in the light of the Hungarian legislation in force

In Hungary, the concept of accident at work and, as one of its cases, the concept of accident in commute is currently defined in Section 52 (1) of Act LXXXIII of 1997 on the Services of the Compulsory Health Insurance System: an accident at work is an accident which occurs to the insured person during or in connection with work in the course of his employment. An accident that the insured person suffers while travelling to work or from there to his home (accommodation) is also considered as an accident at work (hereinafter referred to as “accident in commute”).

In the 1980s, the Hungarian courts issued decisions on the concept of an accident in commute which are equivalent to the reasoning of the German court of appeal on the concept of an accident in commute. According to these judgments, if an employee on his way to work slips and falls on the public space when stepping out of the garden gate of his apartment, it qualifies as an accident in commute.[3] However, it is not an accident in commute if the worker slips and falls on the pavement of the plot of his home.[4] In 2017, the Curia[5] also ruled that an accident suffered by an employee on the stairs of the main entrance of a building on the premises of the employer is an accident at work, since the use of the stairs is linked to the taking up of work and the accident occurs in the context of the employment relationship, provided that the employee’s workplace is in the building, the employee arrives at the premises to take up work and the main entrance of the building must be approached by stairs.[6] However, there is no public information available on any Hungarian home office case similar to the German case described above. In case the Hungarian courts would also classify the accidents in home office, that the BSG has classified as accidents at work, as accidents at work, the need to clarify the issues of employer liability may also arise.

According to Article 166 (1) of the Labour Code, the employer is obliged to compensate the employee for the damage caused in connection with the employment relationship. In addition to this, according to Article 67 (1) of the Act on Services of the Compulsory Health Insurance System, the employer is obliged to reimburse health insurance benefits incurred as a result of an accident at work (or occupational disease) if the accident (or disease) is the result of his or his agent’s failure to comply with his obligations under the mandatory occupational safety rules, or if he or his employee (member) intentionally caused the accident.

In the absence of judicial practice, the information notice of the Department of Labour Inspection and the Department of Labour Market Regulation of the Ministry of National Economy dated September 6, 2016 on the assessment of teleworking from the point of view of labour protection and labour law[7] may be of particular importance in Hungary. As the title suggests, the information notice sets out the requirements applicable to teleworking under Hungarian labour law, although in practice there are plenty of examples of the application of home office outside the scope of teleworking. According to this information notice, “if teleworking takes place in the employee’s home, not the whole home is considered as workplace, only that area of about 2-4 m2, where the desk, work chair, computer, filing cabinet etc. are located“. According to the information notice, therefore, if the employee is present in a place where he is not carrying out his work or is not present in connection with his work (for example kitchen, washroom, garden), then there is no (organized) work there, and thus it is not teleworking. Thus, the information notice derived the definition of what constitutes a workplace in case of teleworking pursuant to point 5 of Article 87 of Act XCIII of 1993 on Labor Safety not only from the concept of teleworking.

However, since January 1, 2019, according to Section 86/A. (8) of the Act on Labor Safety, in case of teleworking, the workplace is the place determined by the parties in the employment contract where the employee regularly performs his work using information technology or computer equipment. In view of this, in case of teleworking, the spatial scope of the workplace as described in the Ministry’s information notice should be considered to be outdated.

Nevertheless, from the point of view of occupational safety requirements related to the workplace, the spatial boundaries between the workplace and the premises referred to in the provision cited are a critical issue. It is interesting to note that the legislation introducing the rules on teleworking amended the Act LXXV of 1996 on Labour Inspection in force at the time to the effect that, for the purposes of this act, the term ‘workplace’ shall have the meaning given in point 5 of Article 87 of the Act on Labor Safety, except […] the residence of a teleworker for the purpose of work or other residential premises provided by him for the purpose of work. However, after the repeal of the Act on Labour Inspection in 2021, there is no clear rule on whether an employee’s place of residence (either the whole or just a room) shall be considered as a workplace, so currently only the above-mentioned information notice of 2016 by the Ministry of National Economy (which is not legislation) regulates to some extent the place of work in home office outside the scope of teleworking, which, however, does not talk about “premises” but about “area”.

The definition of “premises” which is a key concept in the light of the new rule of the Act on Labor Safety applicable since 2019, is not defined in the labour law related legislation. It therefore seems reasonable to define the spatial boundaries of the workplace on the basis of construction regulations. Accordingly, a “premise” is defined as a space bounded by a building structure in all directions and having a walkable surface, excluding unbuilt attics.[8] Article 91/A (7) of Act LXXVIII of 1993 on Residential and Commercial Leases also seems to be in line with the definition, which takes in account the premises commonly found in the dwelling. In the light of this, in a typical case of teleworking, the entire area of a workroom, living room, bedroom, dining room or kitchen may be considered as workplace and it is unlikely that the whole home will be considered as a workplace by the legal practitioners

  1. Conclusions

The practice of the BSG has extended the concept of an accident at work as an insured event for the purposes of accident insurance provided under social security covering travel to the workroom (inside the home), therefore Germany provides accident benefits also for victims working in home office outside the workroom for certain accidents.

The current Hungarian regulation governing teleworking is broadly in line with the practice of the BSG, which defined the workplace in case of home office as the workroom set up for this purpose, however the information notice of 2016 of the Ministry of National Economy defined this area more narrowly, as the Ministry’s interpretation does not necessarily consider the entire workroom in the home of the employee as workplace.

If the Hungarian courts adopt the practice of the BSG in interpreting social security rules that undoubtedly have significant similarities, there may be tension between the rule of the Act on Labor Safety defining the workplace in the case of teleworking and the judicial practice in the light of the recent, famous case of the BSG. In this case, the legislator should specify which of the accidents occurring in home office are covered by the scope of an accident at work under the Act on Services of the Compulsory Health Insurance System, other than those occurring at the workplace in the case of teleworking under the Act on Labor Safety. There is also a need for predictable and enforceable rules on the definition of workplace in cases where working in home office does not constitute teleworking. In this context, it should also be asked whether a community space or office (co-working space, café) is a workplace, if the employee does not work in his home, but in such a community space or office? And in relation to this it shall b defined, how far does the employer’s obligation to monitor working conditions extend, and how far does the employer’s right to monitor extend?

Regardless of whether such a modification in the law happens, the relevant policies in company practice regarding home office should be in any case adapted to the situation (e.g. by stating that, in the absence of a clear legal provision, not the employee’s entire home is considered as workplace, but only a single room classified by the employer as a workplace for occupational safety purposes). This may be necessary because, with such an exclusion, the employer is not liable for the accident occurred at the workplace in home office thus defined [which therefore will not be considered as an accident at work (in commute)] and the employee does not become entitled to accident insurance benefits under the social security scheme, so the employer can reduce its risks both in terms of its liability to compensate employees, its compliance with the rules of the Act on Labor Safety and with regard to the possible liability to pay compensation for accident benefits.

 

[1] https://www.bsg.bund.de/SharedDocs/Pressemitteilungen/DE/2021/2021_37.html (day of download: 14/01/2022). It is less fortunate that, despite (certainly) of the best intentions, it is not certain that the content of the decision will be understandable in the light of press reports without knowing the German rules. See: https://www.theguardian.com/world/2021/dec/09/fall-on-walk-from-bed-to-desk-is-workplace-accident-german-court-rules (day of download: 14/01/2022); https://noizz.hu/szines/egy-nemet-birosag-szerint-munkahelyi-balesetnek-szamit-ha-elesel-az-agyad-es-az/2x56bvs (day of download: 14/01/2022); https://24.hu/fn/gazdasag/2021/12/10/home-office-otthoni-munkavegzes-elesik-munkahelyi-baleset-felelosseg-biztositas/ (day of download: 14/01/2022); https://www.portfolio.hu/short/20211210/home-office-megcsuszott-egy-nemet-ferfi-az-agya-es-az-iroasztala-kozott-munkabalesetert-fizet-a-biztosito-515488 (day of download: 14/01/2022); https://www.penzcentrum.hu/karrier/20211210/kimondta-a-birosag-mukahelyi-balesetnek-szamit-ha-home-office-ban-megserul-valaki-1120136 (day of download: 14/01/2022);  https://telex.hu/kulfold/2021/12/10/otthoni-munkavegzes-munkahelyi-baleset-nemetorszag-agytol-az-asztalig-csigolyatores (day of download: 14/01/2022); https://444.hu/2021/12/10/a-nemet-birosag-szerint-az-agya-es-az-iroasztala-kozott-eleso-ferfi-munkahelyi-balesetet-szenvedett (day of download: 14/01/2022)

[2] https://www.bsg.bund.de/SharedDocs/Verhandlungen/DE/2021/2021_12_08_B_02_U_04_21_R.html (day of download: 14/01/2022)

[3] BH1982.118.

[4] BH1986.480.

[5] The Curia of Hungary is the highest judicial authority of Hungary, formerly known as the Supreme Court of Hungary.

[6] Paragraph 43 of the of the Curia’s No. Mfv.I.10.596/2016/4. judgment of 24 May 2017.

[7] http://www.ommf.gov.hu/letoltes.php?d_id=6956 (day of download: 14/01/2022)

[8] Point 48 of Annex No. 1. of the Gov. Decree 253/1997 on national settlement planning and construction requirements

A short study about crowdfunding by dr. Balázs FERENCZY, the Head of our Banking & Finance Team

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In the early stages of the lifecycle of modern, mostly technology companies, there is no final product, no organization, no go-to-market strategy, no sales; there is only one idea, and from the scarce resources temporarily provided by families or friends, to business angels (angel investors) or venture capital and, in the more mature stage, bank and institutional financing has somehow to be achieved and reached.[1] In essence, this coercion gave birth to community funding, better known as crowdfunding.[2]

With crowdfunding, fund-seeking bidders have the opportunity in case of exiting from the stage of 3F to gather funds from a large number of previously unidentified potential investors for the financing of the start-up phase of their business. The operator of the platform is separated from the group of those seeking and offering resources, and provides its services as an independent revenue-generating activity.

Among the main business models for crowdfunding developed until now the reward-based crowdfunding (Kickstarter and Indiegogo, USA), donation-based crowdfunding (Crowdrise, GlobalGiving, USA), interpersonal lending (Lending Club, Prosper), equity-based funding (CrowdCube, or Seedrs, UK) or profit-sharing/revenue sharing solutions shall be mentioned. [3]

In order to determine the legal framework for crowdfunding, some countries began to create their own regulations at national level, while others, on the grounds that it falls within the scope of the already existing regime determining the conditions on providing financial activities, have not regulated the activity at all or they regulated it to a minimal extent, only.

The EU’s draft regulation on crowdfunding fits into this line (the “Draft“)[4], which has been preceded by lengthy preparatory work and multiple consultations with market participants. The Draft has been prepared in the form of a regulation, so that once it enters into force it will be applicable in all Member States without any further legislation.

  1. Background
  • The initiative is part of the so-called Capital Market Union (CMU), which aims to broaden access to finance for innovative companies, start-ups and other unlisted firms, which is – due to structural and information asymmetries prior to the expansion of targeted business – still in difficulty. Financing through predominantly short-term bank loans is expensive, coupled with the fact that the SME and start-up sectors, which were particularly affected by the 2008 crisis, are still struggling to return to pre-crisis financing levels: this leads to a lack of capital, which is a key factor in start-ups’ failure. According to the explanatory memorandum of the Draft, these conditions are even more pronounced in the Member States with less developed banking systems and capital markets. EU regulators see crowdfunding as one of the possible solution for the above highlighted situation, also supported by the technology sector. The structure, in the form already outlined above, aims to provide an opportunity for companies seeking capital/funding and their potential investors to find each other effectively, as projects can be identified through a given platform and can be better assessed by financiers according to their own investment criteria.
  • According to the regulator, crowdfunding has clearly defined itself as one of the most important financial escalators for start-ups in the recent past, as it has proven its ability to fill up the gap between the birth of ideas and the first round investment period provided by business angels („angel investors”)/venture capitals, which is the most important but also the most vulnerable stage of these companies. According to the authors of the Draft, crowdfunding could therefore become an important alternative to financing through unsecured bank lending, which has so far been the only source for financing/funding, resulting in economic growth and new jobs.
  • When the legislators began to create the concept, the EU had no idea about regulation. Numerous stakeholder consultations and expert studies since then have shown that Member States’ regulations on crowdfunding differ significantly due to different business constructions and approaches related thereto: while some Member States apply their current (EU and national-wide) legislation on financial services, others allow crowdfunding providers to be exempted under specific provisions for their business model. At the same time, a large number of Member States have established rules specifically for crowdfunding that service providers must apply when carrying out given activity. However, making crowdfunding, as a technology-based matchmaking platform that allows bidders and investors to match each other, depending on geographical location is not at all in line with the industry’s typically cross-border standards. In addition, the linking of the activity to the legal system of the given country(ies) resulted in market concentrations, which also hindered the possibilities of economies of scale.
  • The Draft seeks to enable cross-border operation of crowdfunding structures for investment/profit-sharing and financing purposes in the single EU market. Its explicit objectives include the proportionate management of risk factors and the promotion of the growth of the internal market for community financial services, thus improving access to alternative sources for start-ups, and the SME sector in general. Reward or grant-based crowdfunding is not included in the scope of the Draft: according to the regulator, these business models are not based on financial products and do not address the information asymmetries arising from such products, therefore they would have an undesirable, disproportionate effect. In addition, EU consumer protection rules (eg.: the Consumer Credit Directive and the Mortgage Credit Directive) must be applied to reward-based crowdfunding activities anyway, with strict provisions on consumer safety.
  1. Some important provisions
  • The regulation aims to create uniform set of rules for crowdfunding at EU level. It does not replace or repeal the rules already adopted by a Member State for this activity. According to the solution proposed by the Draft, the crowdfunding service provider may choose to (i) apply for an authorization from ESMA (see below) under the rules of the Draft, or (ii) to provide its service under the applicable national regulations, (or continue it including cases where related Member State orders the application of MIFID II rules to this activity).
  • In the case of an authorization at EU level, the authorization also covers the provision of services on the basis of the single passporting rule in a given Member State or as a cross-border service in all EU Member States. If the service provider decides to apply EU-level rules, the authorization issued under the relevant Member State regulation will be revoked.
  • In addition to the subject of the regulation, Article 1 of the Draft sets out uniform provisions for the operation, organization, licensing/authorisation and continuous supervision of crowdfunding service providers. Article 2 sets forth that the Regulation shall apply to service providers only who chose to seek authorisation in accordance with Article 10 and 11. Activities are also defined here to that the Regulation shall not apply, such as (i) crowdfunding services that are provided to consumers, as defined in Article 3(a) of Directive 2008/48/EC, (ii) crowdfunding services provided by investment firms as legal persons in accordance with Article 7 of Directive 2014/65/EU and (iii) crowdfunding services that are provided by natural or legal persons in accordance with the already approved national law. It also follows from this rule, that all persons who hold authorization issued under the Regulation will lose their license if they no longer wish to pursue their activities within the scope of the Regulation. Persons carrying out investment-based cross-border crowdfunding activities will have to apply for authorization under Directive 2014/65/EU, while their authorization to provide services under the Regulation will have to be revoked.
  • Article 3 of the Regulation provides for the definitions used in the scope of the Regulation, such as “crowdfunding services“, “crowdfunding platform“, “ crowdfunding service provider“, “ crowdfunding offer“, (etc.). Important: the Regulation will empower the Commission, in its regulatory capacity, to adopt delegated acts to add further technical elements to the definitions set out in Article 3 taking into account market as well as technological developments, and experience.
  • Chapter II sets forth the provision of crowdfunding services (Article 4), effective and prudent management (Article 5) and complaints handling (Article 6). Under these rules, crowdfunding service providers must in all circumstances comply with the organizational requirements imposed on them, while natural persons having the power to manage a crowdfunding service provider must have the appropriate professional experience and skill to carry out their activity.
  • In order to eliminate conflicts of interest (Article 7), crowdfunding service providers, by maintaining and operating effective organizational and administrative arrangements, shall take all reasonable steps to avoid that potential conflicts of interest adversely affect the interests of their clients. The service providers are also required to take all necessary steps to identify and prevent conflicts of interest within the organization, including potential conflicts between managers and employees and the persons linked to them by way of exercising control, as well as between customers, in the course of providing services. The rules on outsourcing and safekeeping of clients’ assets are set out in Articles 8 and 9.
  • Chapter III. sets forth the rules for authorization and ongoing supervision. The European Securities and Markets Authority (ESMA) is the supervisory body for crowdfunding service providers in the EU. In particular, Article 10 sets out the obligation related to the authorization of crowdfunding service providers and the conditions for obtaining authorization issued by ESMA. The Article also sets forth the procedure for obtaining the authorization and the cases in which an application may be rejected. Pursuant to Article 11, ESMA shall establish a register of all crowdfunding service providers which shall be updated on a regular basis. Article 12 provides for ongoing supervision of the conduct of the activity by ESMA, while Article 13 sets out the conditions for the withdrawal of an authorisation. ESMA’s additional supervisory powers and competencies are set out in Chapter VI. in detail.
  • Chapter IV. contains provisions on investor protection as well as transparency. For the purposes of Article 14, all information, including marketing communications, from crowdfunding service providers to potential investors and offerors, shall be clear, complete and correct. Article 15 contains, as an important rule, provisions for the prior assessment of the ability of potential customers to bear loss. According to them, the platform is obliged to provide investors with the possibility to simulate their ability to bear loss. Article 16 contains detailed rules in this regard and makes the use of the so-called Key Investment Information Sheet (KIIS) mandatory. Articles 17 and 18 set forth rules on the so called bulletin board and the right of investors to access internal records.
  • Crowdfunding, like any other financial service, can provide space for money laundering and terrorist financing activities. The Regulation therefore provides for appropriate safeguards to prevent and minimize the possibility of such activities. These include, inter alia, the requirement in Article 9 that transfers related to crowdfunding transactions, whether carried out by the platform providers themselves or by third parties, shall be made exclusively through payment service providers authorized under the Payment Service Directive (PSD), as a result of which these transactions fall under the scope of the 4th Anti-Money Laundering Directive (4th AMLD). Crowdfunding service providers are also required to ensure that project owners can accept funding offers or any other payments only through payment service providers authorized under the PSD. Article 10 lays down additional rules on the criminal record of the management in relation to good reputation and anti-money laundering legislation. Article 38 provides that, in order to further reduce the risks related to money laundering and terrorist financing, the Commission shall assess the need for and the extent of involving crowdfunding service providers under the scope of legislations implementing Directive 2015/849 (EU) into the national legislation of each Member State and providing rules on anti-money laundering and terrorist financing, including the definition of such service providers as obliged entities under the Directive.
  1. Domestic panorama
  • The National Bank of Hungary (NBH) issued a number of resolutions on crowdfunding in 2015 and 2016, taking into account EBA’s opinion on lending-type crowdfunding published in February 2015. In the NBH’s view, the various versions of crowdfunding are very similar to the currently regulated financial activities. In the case of crowdfunding, the funding of private and legal persons, the transfer of money and the investment of money may correspond to the activities regulated by the Credit Institutions Act, the Act on investment firms and commodity exchange service providers and on activities they may execute, as well as the Act on collective investment schemes, which can only be pursued with the permission of the central bank or on the basis of a notification. In addition, on 25 October 2019, the MNB’s own fintech strategy was published (https://www.mnb.hu/letoltes/mnb-fintech-strategia-final.pdf), in which the supervision, in view of the fact that the worldwide growing alternative financing solutions are not regulated in Hungary, – proposes the creation of a specific regulatory framework for crowdfunding.
  • Hungary’s Fintech Strategy (https://digitalisjoletprogram.hu/hu/tartalom/magyarorszag-fintech-strategiaja) also treats the development of domestic regulations on crowdfunding as a priority goal. We agree with the statement published in the article „Crowdfunding, or how could Hungarian start-ups get funds in an innovative way?” of Péter Fáykiss – Dr. Ágnes Hajzer – Benjámin Nagy (the authors are employees of the National Bank of Hungary) according to which the creation of a legal framework for crowdfunding at national level would make a significant contribution to supporting the funding of the SME sector and facilitating access to finance for FinTech companies, and to strengthening investor confidence in alternative forms of financing.
  • The Regulation is expected to enter into force in Q4 2021, Q1 2022, and it would be worth for Hungary to consider joining the leading group until then. The statistics from France might serve as good example for the growth of this market: while in 2011 these type of sources amounted up to 7,9M EUR only, in 2015 this figure was already 169M EUR, and in 2019 it reached 1,4Bln EUR. Based on these figures it is obvious, that a licensed crowdfunding site, which functions well since years, intending to step under the scope of the Regulation in order to operate on the EU level for economies of scale purposes holds mile advantage compared to those who are in their wings trial and error phase. A local Hungarian crowdfunding legislation could therefore become an important station in the journey to join the EU crowdfunding market.

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[1]Source: Péter Fáykiss – Dr. Ágnes Hajzer – Benjámin Nagy (the authors are experts of the National Bank of Hungary): Crowdfunding, or how could Hungarian start-ups get funds in an innovative way?

[2] Figure: The New Ways to Raise Capital: An Exploratory Study of Crowdfunding by Matteo Rossi (DEMM Department, University of Sannio, Benevento, Italy)(International Journal of Financial Research Vol. 5. No. 2; 2014)

[3]Source: Dr. Andrea Szikora (Regulatory expert of the National Bank of Hungary): Development of financial technology and Crowdfunding (National Bank of Hungary)

[4] https://eur-lex.europa.eu/legal-content/HU/TXT/HTML/?uri=CELEX:52018PC0113&from=HU

The pandemic may accelerate the spread of electronic procedures in Hungary

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dr. Dániel Endre NAGY

The pandemic brought significant changes both in the everyday and work lives of people: the use of home office became widespread, while communication is conducted through phone, emails and video conferences. Concurrently for official matters, such as signing contracts and doing banking administration, a person’s signature and personal presence are often essential. According to Kapolyi Law Firm, the current situation will have a substantial impact on the spread of electronic signatures.

While restrictions imposed as a result of the coronavirus pandemic make it difficult to conduct official matters, they also highlight that it is necessary to consider how to facilitate the electronic signing of contracts and other written declarations. Kapolyi Law Firm emphasises that electronic signatures have several advantages: they are subject to the same laws throughout the EU and signatures made in any Member State are mandatorily recognized in other Member States. Documents signed electronically have the same probative value as a traditional signature and have the same effect as paper-based documents. According to Dr. Dániel Nagy, senior attorney at Kapolyi Law Firm, with the exception of a few sectors, the use of electronic signatures by the general population is limited and is currently not wide-spread in the corporate segment either. However, since 2016 Hungarian legislation provided for the possibility of signing various written legal documents electronically. According to the law, if a condition for the validity of a specific legal declaration is for it to be made in writing, this requirement is satisfied by doing so electronically, provided that the document is signed by the parties with an electronic signature with enhanced safety features. According to Dr. Dániel Nagy, there are four conditions for an electronic signature to be considered as having enhanced security features. One of the conditions is that the digital signature is linked exclusively and uniquely to the signatory person only. Secondly, it must be suitable for identification of the signatory. Thirdly it creates the signature in a way that only the signing person has access to the data required for creation. Additionally, it is linked to the signed data in a way that all subsequent changes made can be traced, and therefore the document cannot be modified or altered after its signing.

The spread of electronic signatures may also be facilitated through the issuing of new identification documents (e-IDs), which allow natural persons to access the benefits provided by e-signatures faster and easier than ever before. Dr. Dániel Nagy highlighted that if the e-ID has an electronic signature function, private and official documents may be signed electronically with a card reader, even at home. It is important to note that this option has not entirely replaced the work of companies providing authentication services, as functions belonging to e-IDs are limited in several respects. As such, it cannot be used for representing a company as an employee and it has a transaction limit (up to HUF 50 million). Therefore, the e-ID is suitable for electronic signatures if there is no need to provide information about the company or if it is not used to make a legal statement for practising employee rights. Overall, electronic signatures have several advantages and the necessary technical conditions are present. In the current pandemic situation, it may be an important tool for parties to sign a contract without any personal contact or to make a unilateral declaration electronically (such as a power of attorney or a unilateral termination of a contract).

Competition law in the age of Coronavirus: state-owned venture capital and private equity funds may acquire companies more easily

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author: dr. Katinka TÖLGYES

Significant relief was granted to directly or indirectly state-owned venture capital and private equity funds which, individually or jointly with another company, acquire management rights in a company for investment protection purposes. During the period of the emergency, for transactions in which the acquired company was in a difficult situation as a result of the pandemic, there is no need to notify and gain approval from the Hungarian Competition Authority (GVH). The pandemic will result in several changes in the economy and market structure, raising several issues in competition law, such as the prohibition of the abuse of a dominant position or significant market power or the authorization of mergers. Kapolyi Law Firm’s competition law expert summarised the most important information and what measures may be expected from the authorities.

As a result of the pandemic, customer and consumer needs are changing so rapidly and drastically in several sectors, that adapting to them poses serious challenges for most companies. The necessity of the changes affects nearly all economic actors to a certain extent, given the effects of the pandemic, and the legal regulations and amendments aimed at preventing and managing it. Furthermore, with regards to the method of adaptation – taking into account the necessary epidemiological measures – companies are not entirely free to choose and implement their own measures (e.g.: the opening of commercial catering units is restricted, and the holding of certain events is prohibited). Many businesses will therefore not be able to cope with the challenges posed by the pandemic and the ensuing expected economic recession, or will find it far more difficult to do so. Concurrently, there will be some who will be able to prepare for the forthcoming period, by maintaining their previous position or even strengthen it, increasing their market share. According to Dr. Katinka Tölgyes, Kapolyi Law Firm’s competition law expert, this is likely to affect market structures, which will presumably become more concentrated for a while. The market position of a company may change with respect to its competitors or suppliers. This means that with the marginalization or even disappearance of competitors, companies in a weaker position may become dominant, or companies in a dominant position may find themselves in an even more favourable position. Additionally, the market power of companies in relation to suppliers may strengthen, or significant market power may shift to companies that previously did not have any. Kapolyi Law Firm’s competition law expert highlights the fact that neither competition nor commercial law prohibits a dominant position and significant market power, but the laws sanction their abuse. Therefore, businesses which are more successful than others in coping with the current economic crisis must be careful not to violate regulations. As consumers may be more vulnerable to the negative externalities of market abuse in the current pandemic situation and the forthcoming economic recession, the Hungarian Competition Authority can be expected to be more stringent.

Dr. Katinka Tölgyes emphasises that a further consequence of the changes in the market structure, and a presumed concentration is an increase in the number of mergers and acquisitions of companies. This is because businesses in a difficult situation are less likely to be able to maintain their independence, and for more successful enterprises, acquiring a company may entail a new business opportunity. When certain revenue thresholds are met, mergers must be approved by the GVH, in the absence of which the merger may not be executed. The GVH may also make its approval subject to conditions (e.g.: the sale of a certain part of the business within a specified period of time). However, per the Competition Act, it is also possible for the GVH to authorise the execution of a merger prior to the completion of the authorization procedure upon a separate application, if this is necessary to preserve the value of an investment. Given the impending economic recession, it is expected that the number of these applications will likely increase, as maintaining the survival and viability of distressed, therefore acquirable companies, and protecting the investment of acquiring businesses, will justify the submission of applications more frequently than in a prosperous economic period. In an earlier communication, the GVH asked companies to consider postponing the notification of planned mergers. The authority also highlighted that given current circumstances, it is more difficult for the GVH to collect information (e.g.: from competitors, suppliers) that may be necessary to assess the merger, which may result in complications for involved parties.

Dr. Katinka Tölgyes emphasises that concurrently, the Government exempted certain enterprises from their notification and authorisation obligations in view of the emergency situation. Therefore, by derogating from the provisions of the Competition Act, and in accordance with the Government Decree’s provisions for specific credit, capital and warranty products within the framework of the Economic Protection Action Plan, the GVH does not have to be notified about mergers involving, a directly or indirectly state-owned venture capital or a private equity fund which are executed through a financing transaction necessitated by the pandemic, through a capital program set up for that purpose. The same applies for directly or indirectly state-owned venture capital and private equity funds which, individually or jointly with another company, acquire management rights in a company for investment protection purposes. However, this only applies until the cessation of the emergency period.