3. What type of information must be provided in order to be granted the informant reward rewarded by the GVH?
A reward is only granted if the information provided relates to the most serious type of competition law offence, i.e., hardcore cartel conduct, and if the provided information qualifies as indispensable evidence. Based on the Hungarian Competition Act, the reward may only be granted for the provision of two types of information: a) written evidence qualifying as indispensable in connection with a hardcore cartel and b) under certain conditions, information qualifying as indispensable for obtaining a judicial warrant to conduct unannounced inspections.
It must be emphasised that the mere provision of evidence about a cartel does not automatically result in the granting of the informant reward; the GVH only grants the reward for ‘written evidence qualifying as indispensable’. Practically, these are pieces of evidence qualifying as ‘documents’ specified by Act CL of 2016 on General Rules of Administrative Proceedings (hereinafter GRAP Act), i.e., objects that carry recorded data of any kind. Such evidence must qualify as indispensable for proving the infringement. This usually means that the informant must share ‘internal information’ relating to the cartel in question; it is not sufficient to disclose general signs referring to the cartel activity. As a general rule, a reward may be offered if the informant reveals evidence that can be connected to the elements of the relevant statutory provisions of the hardcore cartel (e.g., undertakings being parties to the cartel, anticompetitive conduct); it is not sufficient to provide evidence that merely helps to identify factors that are relevant when it comes to the setting of the fine.
Based on the above, the informant may be entitled to receive a reward for disclosing the agreement establishing the cartel, submitting written correspondence exchanged in the course of the operation of the cartel or, in a competition supervision proceeding already launched, for providing documents proving that further participants – unknown for the GVH until that time – were also involved in the cartel, or that the cartel was set up at an earlier date than that known to the GVH or that it covered other product groups as well. However, there are no grounds for a reward if the evidence is relevant in terms of the threats to competition, the impact of the infringement on the market, or the attitude of the undertaking committing the infringement towards its practice.
Whether or not the evidence possessed by a potential informant qualifies as indispensable evidence is assessed on a case-by-case basis. Although the indispensable nature of a piece evidence can only be assessed in light of the entire proceeding, all of the evidence and the decision on the merits of the case containing the legal qualification, the Hungarian Competition Act enables the potential informant to contact the GVH (without revealing his or her identity) to inquire about whether a certain document or piece of information is likely to qualify as indispensable evidence (for details see also the answers given to questions 8 and 9).
In addition to the above, indispensable evidence also includes information – including oral information – based on which the court issues a warrant to conduct an unannounced inspection pursuant to Article 65/A of the Hungarian Competition Act in the course of which the GVH takes possession of written evidence that in accordance with the above qualifies as indispensable.
In the fight against cartels, unannounced inspections (so-called dawn-raids) pursuant to Article 65/A of the Hungarian Competition Act are of key importance. Within the framework of these dawn-raids, with a view to finding means of proof concerning the infringement or concentration under investigation, the case handler of the GVH may search any premises, vehicle or data storage device and enter such premises under his/her own authority, against the will of the owner (possessor) or any other person present, and may open any sealed-off area, building or premises for this purpose and may make copies of the data and documents stored on the data storage devices found at the location. Under certain conditions, unannounced inspections may also be held at the real estate, vehicles or data storage devices serving or used for private purposes. In cartel proceedings, unannounced inspections are of key importance since the GVH may obtain the majority of the evidence necessary for proving the existence of a cartel this way. Dawn-raids held by the GVH are subject to judicial authorisation that can only be obtained if the GVH is in the possession of adequate information about a cartel. It is for this reason that the Hungarian Competition Act prescribes that the informant is not only entitled to the reward if he or she submits to the GVH indispensable written evidence directly concerning the cartel, but also if he or she provides the GVH with other information (even orally) with the help of which the GVH is able to substantiate its request for the authorisation of an unannounced inspection, provided that the unannounced inspection proves to be successful, i.e. the GVH finds indispensable written evidence in connection with the cartel in the course of the unannounced inspection.
As for indispensability, it has to be emphasised that in the course of the proceeding of the GVH the same evidence may emerge from several sources, or a certain relevant fact may be supported by several pieces of evidence. It is for this reason that the Hungarian Competition Act contains, for the benefit of the informant, the rule of sequence. According to this rule, the evidence provided by the informant qualifies as indispensable even if it can be replaced by other evidence that the GVH becomes aware of at a later date.