In Hungary, the case-law of the HCA is of key importance in clarifying and elaborating on the relevant legislation.
In both of the cases described below, the Hungarian Competition Authority (HCA) analyzed the use of the term “even” in advertisements and it clearly laid down the requirements that need to be complied with in order to avoid unfair commercial practices.
In a case against Erste Bank Hungary Zrt., the HCA defined in what cases using the term “even” should be regarded as an infringement of the rules on commercial communications, in the first place the prohibitions laid down in the Unfair Commercial Practices Act. In that case, Erste Bank claimed the following in its advertisements: “With Erste Joker Credit Card you can even get back 4%!”. The key question in this case was whether Erste Bank committed an infringement by not presenting the conditions of such an offer precisely and clearly enough.
In its decision the HCA held that the term “even” makes it clear to consumers that the discount / bonus / offer cannot be obtained in all circumstances. However, if the promised discount can only be acquired by a very limited, atypical group of consumers, the advertisement must be considered misleading, since it does not provide a real chance of obtaining the given benefit. The same applies if the other conditions of such an offer – which appear separately from the main message – significantly modify the main promise.
The HCA also noted that a case-by-case analysis is required as to whether the use of the term “even” in an advertisement can be regarded as an infringement, and it has to be analyzed in each case whether there is a real chance of fulfilling the promise.
In another recent case the HCA defined a general threshold: the term “even” can only be applied as the main message if the promised discount can be achieved in respect of at least 10% of the given product or service group. However, as emphasized by the HCA, this is just the general rule and the case by case analysis of the real availability of such a discount is till required. This practically means that it must be assessed how (easily and well) the consumer becomes aware of the terms and conditions under which the discount is available and whether there are further relevant conditions limiting the availability of such discount.
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