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23.12.2011 Official
Journal
of
the
European
Union L
343/77
COMMISSION IMPLEMENTING DECISION
of 16 December 2011
exempting certain financial services in the postal sector in Hungary from the application of
Directive 2004/17/EC of the European Parliament and of the Council coordinating the
procurement procedures of entities operating in the water, energy, transport and postal services
sector
(notified under document C(2011) 9197)
(Only the Hungarian text is authentic)
(Text with EEA relevance)
(2011/875/EU)
THE EUROPEAN COMMISSION,
2. Account services and related payment services
proposed to be provided in the future
Having regard to the Treaty on the Functioning of the European
Union,
2.1. Services enabling cash to be placed on a payment
account as well as all the operations required for
Having regard to Directive 2004/17/EC of the European
operating a payment account,
Parliament and of the Council of 31 March 2004 coordinating
the procurement procedures of entities operating in the water,
energy, transport and postal services sectors ( 1 ), and in particular
2.2. Services enabling cash withdrawals from a payment
Article 30(5) and (6) thereof,
account as well as all the operations required for
operating a payment account,
Having regard to the request submitted by post, by Magyar
Posta, received on 24 June 2011,
2.3. Execution of payment transactions between
payment accounts,
Whereas:
2.4. Issue of card-substitute payment instruments.
I. FACTS
(1) On
24
June
2011,
the
Commission
received
a
request
Services performed on behalf of others
pursuant to Article 30(5) of Directive 2004/17/EC, trans
mitted to the Commission by post. The Commission
3.1. Intermediation of current accounts and the related
requested additional information to the applicant and
products and services (retail and corporate bank
to the Hungarian Competition Authority, by e-mails of
account services offered on behalf of credit insti
8 August 2011. The respective replies were received on
tutions, including the accepting and forwarding of
2 September and on 15 September 2011. The request
payment orders for execution, and the inter
submitted by Magyar Posta (in the following referred to
mediation of sight deposits and fixed term
as ‘Posta’) concerns various financial services provided by
deposits connected to a bank account),
Posta, and consists of two parts, namely: payment
services and services performed on behalf of other
financial institutions. In their turn, each part concerns
3.2. Credit intermediation performed on behalf of credit
various financial services that have been grouped under
institutions,
the following headings, as defined by Posta:
3.3. Intermediation and acceptance of payment cards
Payment services
performed on behalf of credit institutions (credit
cards, debit cards, bank card acceptance and POS
1. Existing
own
services:
terminals),
1.1. Services enabling cash to be placed on a payment
account (bill payments and express bill payments),
3.4. Intermediation of investments and special purpose
savings on behalf of others:
1.2. Services enabling cash withdrawals from a payment
account: (cash delivery service and pension payment
(a) sales of financial instruments (government
service),
securities, investment funds and other securities);
1.3. Money transfer services (domestic money order,
international money order and Western Union
(b) intermediation of home savings products.
money order — performed on behalf of others),
3.5. Intermediation of insurance products: (life insurance
( 1 ) OJ L 134, 30.4.2004, p. 1.
and non-life insurance)

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L 343/78
EN
Official Journal of the European Union
23.12.2011
(2) According
to
the
application
( 2 ) the network of the Posta
aiming at liberalising establishment and provision of
consists of more than 2 600 permanent postal outlets.
services in this sector
( 5 ). In respect of payment
However, not all services listed in the application are
services, it is noted that Hungary, transposed fully and
provided by all outlets ( 3 ). The total number of credit
timely, Directive 2007/64/EC on Payment Services
institutions branches currently operating on the
through Act LXXXV/2009 on the Pursuit of the
territory of Hungary is of 4 605. According to Giro
Business of Payment Services.
Zrt, OTP bank is the largest with 809 branches,
followed by K&H Bank Zrt. (377 branches), CIB Bank
Zrt. (218 branches), Reiffeisen Bank Zrt. (180 branches)
and Erste Bank Hungary Nyrt. (145 branches). The eighth
(6) Hungary
has
implemented
Union
legislation
regarding
largest banks of the credit institutions sector each have
liberalisation of capital movements and freedom to
over 100 branches, plus there are 22 small and medium-
provide services and the relevant legislation on the
sized banks, 10 branches of credit institutions and 138
liberalisation of financial markets. Moreover, Hungary
credit institutions set up as cooperatives with the larger
satisfied the requirements set out in the Financial
one operating a network of 20-40 branches. In inter
Services Action Plan. The Hungarian market of credit
national comparison, using data of 2007 ECB Blue
institutions and payment services is well regulated.
Book ( 4 ), this places Hungary in the middle of the
According to Act CXII: 1996 on credit institutions and
range in terms of per capita number of branches.
financial enterprises (the Banking Act), financial services
and auxiliary activities are subject to authorisation.
According to Act CXXXVII/2007 on investments firms
II. LEGAL FRAMEWORK
and commodity dealers and on the regulations governing
their activities, investment services may be performed by
(3)
It should be recalled that, in accordance with point (c) of
investments firms and credit institutions only. Act
Article 6(2) of Directive 2004/17/EC, the provision of
LX/2003 on insurance companies and insurance
financial services as defined in the fourth indent of said
business provides that insurance activities may be
point (c) are covered by that Directive only to the extent
performed by insurance companies only. The Posta is
that such services are provided by entities which also
authorised to pursue the financial services subject to
provide postal services within the meaning of point (b)
this application by the Hungarian Financial Supervisory
of that provision. Posta is the only contracting entity in
Authority. Any institution that is able to meet the
Hungary which offers the services concerned by this
provisions regarding prudent operation and effective
Decision.
supervision could be authorised to carry out these
services. The pursuit of financial services or activities
auxiliary to financial services, as well as investment
(4) Article
30
of
Directive
2004/17/EC
provides
that
services and insurance services is open also to non-
contracts intended to enable the performance of one of
resident companies, through their branches, provided
the activities to which the Directive applies shall not be
that they are authorised by the competent supervisory
subject to the Directive if, in the Member State in which
authority in the country of establishment. The
it is carried out, the activity is directly exposed to
requirement to have a Hungarian branch does not
competition on markets to which access is not restricted.
apply to financial institutions established in any EEA
Direct exposure to competition is assessed on the basis
Member State, as these institutions may provide their
of objective criteria, taking account of the specific char
services cross border.
acteristics of the sector concerned. Access is deemed to
be unrestricted if the Member State has implemented and
applied the relevant Community legislation opening a
given sector or a part of it. Where no relevant
Community legislation is listed in the Directive’s Annex
(7)
Having due regard o the facts set out in recitals 5 and 6
XI, as is the case in respect of the services concerned by
above, it can be assumed that, the condition set out in
this Decision, then Article 30(3), second subparagraph
Article 30(3) relating to free access to the market can be
requires that it ‘must be demonstrated that access to
taken to be met.
the market in question is free de facto and de jure’.
(5) Regarding
financial
services,
it
should
be
recalled
that
a (8) Direct
exposure
to
competition
in
a
particular
market
large body of legislation has been adopted at Union level
should be evaluated on the basis of various criteria,
none of which are, per se, decisive. In respect of the
markets concerned by this Decision, the market share
( 2 ) See application, p. 11.
of the main players on a given market constitutes one
( 3 ) For example, from among the payment services, international postal
money orders service is provided in only 328 postal outlets and
criterion which should be taken into account. Other
Western Union money transfer service provided as intermediary at
criteria considered may be the degree of concentration
1 024 postal outlets. From among services provided on behalf of
on those markets and/or the customer switching. As the
others, intermediation of Posta credit card, intermediation of
conditions vary for the different activities that are
investment bonds and certain insurance products are offered only
at 343 locations, the current account products of OTP Bank for
retail customers is offered at 244 postal outlets while corporate
( 5 ) Directive 2007/64/EC of the European Parliament and of the
credit at only offered in only 45 locations.
Council of 13 November 2007 on payment services in the
( 4 ) European Central Bank: ‘Payment and securities settlement systems
internal market amending Directives 97/7/EC, 2002/65/EC,
in the European Union: non-euro-area countries — Hungary’,
2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ
August 2007.
L 319, 5.12.2007, p. 1).

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EN
23.12.2011 Official
Journal
of
the
European
Union L
343/79
concerned by this Decision, the examination of the
(15) The
payment
methods
offered
by
the
banks
are
generally
competitive situation should take into account the
more attractive than the paper based and/or cash based
different situations on different markets.
ones, and are generally available. According to GfK
Hungaria ( 6 ), the number of users of online banking
services has increased by 200 000 by the end of 2010
compared to the year before and it reached 1 million
(9) Although
narrower
or
a
broader
market
definition
might
users, with a growth rate getting higher. At the same
be envisaged in certain cases, the precise definition of the
time, according to the same source, the number of
relevant market can be left open for the purposes of this
those who prefer to do their banking in person is
Decision as far as a number of the services listed in the
declining — one fourth of all clients no longer go to
request submitted by Posta are concerned to the extent
the bank braches to do banking.
that the result of the analysis remains the same whether
it is based on a narrow or a broader definition.
(16) The product market as defined by the applicant is the
(10) This Decision is without prejudice to the application of
payment services market provided by credit institutions
the rules on competition.
and other payment services providers, while the
respective geographical market is considered to be
nation-wide. The Hungarian Competition Authority
(GVH) indicated that although it does not have all
III. ASSESSMENT
information and data at their disposal in order to be
able to properly and precisely define the product
Payment services
market, the relevant product market definition provided
(11) The
application
lists
two
distinct
categories
of
payment
by the applicant ‘is likely to be acceptable’. As far as the
services, namely: (A) existing services; and (B) services
geographical market is concerned, under the same
which are planned for introduction in 2012. For the
disclaimer as above, GVH indicated that ‘it is not aware
purposes of the assessment pertaining to this Decision,
of any evidence on which the geographical market
only the existing services will be taken into account, as
should not be the whole territory of Hungary’.
there is no material evidence of the effects which the
planned services would have, if and once introduced.
(17) No
further
distinction
of
the
payment
services
market
into separate retail and wholesale product markets will
(12) The
existing
payment
services
performed
by
Posta
are
services enabling cash to be placed on a payment
be made for the purposes of this Decision, as the result
account and services enabling cash withdrawals from a
of the analysis remains largely the same whether it is
bank account, whereby Posta acts as an intermediary, and
based on a narrow or a broader definition.
money transfer services (domestic and international
money order services of its own right, as well as
Western Union money order services acting as inter
mediary).
(18) The Hungarian Competition Authorities referring to the
degree of concentration of the payment market states
that, presumably, ‘the 5-6 major banks, together with
Magyar Posta have a very high combined market share
(13) The aim of the present Decision is to establish whether
in case of retail payment services, and possibly cover
the services offered by Posta are exposed to such a level
most of the market. The wholesale market might
of competition (on markets to which access is free) that
presumably be less concentrated due to the presence of
this will ensure that, also in the absence of the discipline
several other financial institutions’.
brought about by the detailed procurement rules set out
in Directive 2004/17/EC, Posta’s procurement for the
pursuit of the activities concerned here will be carried
out in a transparent, non-discriminatory manner based
on criteria allowing it to identify the solution which
Services enabling cash to be placed on a payment account (bill
overall is the economically most advantageous one. For
payments and express bill payments)
this purpose it is therefore necessary to examine whether
the banks and other financial institutions have the possi
(19) These
services
allow
customers
to
make
payments
for
a
bility to exercise competitive pressure on Posta.
service or good purchased. They are used by private
persons for discharging payment obligations and are
particularly used for making payments for public
utilities services, telecommunications, financial services,
(14) The main competitors of the Posta in the market for
insurance services, home delivery services, payment of
payment services are the banks and other financial insti
taxes, etc.
tutions that are not covered by the provisions of the
Directive 2004/17/EC, as they are not contracting
( 6 ) GfK Hungaria: ‘Internet banking continues to gain ground’,
entities in the sense of the directive and/or they do not
3 November 2010: http://www.gfk.com/imperia/md/content/gfk_
provide financial services together with postal services.
hungaria/pdf/press_h/2010/press_2010_11_03_h.pdf

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L 343/80
EN
Official Journal of the European Union
23.12.2011
(20) The
main
factor
for
determining
the
relevant
product
switch, at any time between postal cash delivery to bank
market is to establish the scope of substitute products,
transfer, by making a simple request to the Central
which means the alternative means that a client would
Administration of National Pension Insurance.
have for discharging payment obligations. Consequently,
the applicant considers that the relevant product market
covers cash deposits made to bank accounts in banks, or
through ATMs ( 7 ), card payments and transfers between
(25) The
Hungarian State, through the National Bank is
bank accounts (simple transfers and automatic debit
pursuing a policy aimed at reducing the volume of
transfers).
cash transactions and encouraging the development of
electronic payment methods and related infrastructure.
Corporate entities are required to make payments
through payment accounts and the wages of public
servants are paid into bank accounts. According to a
(21) As
regards
switching
between
payment
methods,
the
recent study (
Hungarian Competition Authority (GVH) confirmed

10 ) undertaken by the Hungarian National
Bank, currently half of the pensions initiated by the state
that ‘the major utilities and other service providers tend
are made by other means than postal payments, and
to offer various payment methods to their customers
according to the application (
with a possibility to easily switch among these. There

11 ), both the number and
total value of pensions paid through Posta were steadily
also seem to be a trend of persuading customers to
decreasing in the last years.
use electronic payment methods instead of paper and
cash based ones’. In this context the increased use of
online banking is to be noted. However, as indicated in
recital 9 above, the exact definition can be left open for
the purposes of the present Decision.
(26) For
the
above
reasons,
transfer
of
payment
between

payment accounts (simple transfer and group transfers),
cash withdrawals with bank cards at ATMs and POS ( 12 )
terminals, and cash withdrawals at bank tellers are
considered the relevant product market for services
(22) Posta
market
share
for
services
enabling
cash
to
be
places
enabling cash withdrawals from a payment account.
on a payment account, calculated as a percentage of the
total market as defined, represented ( 8 ) 3,91 % in 2007,
3,88 % in 2008 and 4,14 % in 2009. In terms of both
volume and value, is to be noted that the number of
(27) In case of the above services, for the purposes of
Posta transactions and their value decreased in 2009
payment made to persons with bank account,
compared to previous two years ( 9 ).
payments between payment accounts (simple trans
actions and group transfers where payments are made
from a single account to several persons) could be
considered substitute products. Here as well, the exact
definition can be left open for the purposes of the
(23) For
the
purposes
of
this
Decision,
and
without
prejudice
present Decision.
to the competition law, these factors should be taken as
an indication of direct exposure of Posta’s activity to
competition.
(28) Posta’s
market
share
for
services
enabling
cash
with
drawals from a payment account, calculated as a
percentage of the total substitute service, represented ( 13 )
2,44 % in 2007, 2,49 % in 2008 and 2,61 % in 2009. In
Services enabling cash withdrawals from a payment account
terms of both volume and value, is to be noted that the
(24) The
characteristics
of
services
enabling
cash
withdrawals
number of Posta transactions and their total value had a
are that the account holder authorises payment from his
decreasing trend in the last three years for which data are
payment account to the order of a third party. The scope
available, namely 2007, 2008 and 2009 ( 14 ).
of such services presently includes cash delivery and
pension payment service. The main drawees are the
State Treasury and the municipal governments using
this scheme for payment of family allowances, social
(29) For
the
purposes
of
this
Decision,
and
without
prejudice
benefits unemployment benefits, etc. For payments
to the competition law, these factors should be taken as
made by the government, the payee has the option to
an indication of direct exposure of Posta’s activity to
have the amounts credited to a bank account or to
competition.
receive it by means of postal delivery. In case of
pension payment, the recipients have also the possibility
( 10 ) Hungarian National Bank: ‘Nothing is free: a survey of the social
to have part of the amount credited to their account and
costs of the main payment instruments in Hungary’, by Dr Aniko
the other part delivered in cash. It is also possible to
Turjan, EVA Diveki, EVA Keszy-Harmath, Gergely Koczan, Kristof
Takacs, Occasional Paper 93, 2011.
( 11 ) See pages 35 and 36 of the application.
( 7 ) ATM — abbreviation for automated teller machine.
( 12 ) POS — abbreviation for point of sale.
( 8 ) Relevant market shares where calculated by rapport to the total
( 13 ) Relevant market shares where calculated by rapport to the total
value of transactions. Please see page 34 of the application.
value of transactions. Please see page 36 of the application.
( 9 ) See page 32 of the application.
( 14 ) See pages 35 and 36 of the application.

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EN
23.12.2011 Official
Journal
of
the
European
Union L
343/81
Money transfer services
(38) The financial products and services offered by Posta as
intermediary are provided by Erste Bank and OTP Bank.
(30) The
money
transfer
service
provided
by
the
Posta
is
Posta is also offering deposit products on its own name.
generally used for payments made between private
persons. The respective services are domestic money
orders and international money orders provided in the
Posta’s own right and Western Union money transfer
(39) Previous Commission practice
( 15 ) make distinction
which are available domestically and internationally,
between retail banking and corporate banking. Retail
offering a real-time method for sending money.
banking is defined as all banking services to private indi
viduals and very small enterprises, while corporate
banking generally comprises banking services to large
(31) For
domestic
transfers,
both
in
Posta’s
own
right
and
on
corporate customers and small and medium enterprises.
behalf of Western Union, the applicant considers that
However, in previous decisions ( 16 ) related to the retail
transaction between payment accounts are substitutes
banking sector, the Commission left open whether indi
for money transfers in case the payee has a payment
vidual retail banking products represent separate product
account. Consequently the market of payments made in
markets or whether several retail banking products may
Hungary between accounts could be considered the
form part of a single relevant product market.
relevant product market for domestic money transfers,
although the exact definition can be left open.
(40) The
relevant
product
market
needs
to
be
distinguished
according to the stage in the distribution chain (upstream
(32) Calculated accordingly the market shares of the Posta
— provision of current accounts and related products
were of less than 1 % in 2007, 2008 and 2009.
and services or downstream — intermediation of
current accounts and related products and services). For
the activity of intermediation of retail payment accounts,
the relevant product market could be considered as the
(33) In
case
of
international
money
transfers,
the
activities
market for intermediation of retail current accounts and
undertaken by Posta and Western Union were considered
deposit products. For the activity of intermediation of
close substitutes. Moreover the payments through
corporate payment accounts, the relevant product
payment accounts are considered substitutable products,
market could be considered as the market for inter
therefore the cross border payments between payment
mediation for corporate current accounts and deposit
accounts is considered the relevant product market by
products. However, in accordance with recital 9 of this
the applicant. However, the exact definition of the
Decision, it is not necessary to define the relevant
relevant market can be left open.
market.
(34) The
Posta’s
market
share
calculated
on
this
basis
is
of
0,5 % in 2007, 2008 and in 2009.
(41) The
applicant
defines
the
geographical
market
as
the
entire territory of Hungary. The Hungarian Competition
Authority (GVH) confirmed that ‘for the purpose of the
present case, all the financial institutions present in
(35) For
the
purposes
of
this
Decision,
and
without
prejudice
Hungary perform their activities nation-wide; there are
to the competition law, these factors should be taken as
no signs of regional deviation in any aspects of the
an indication of direct exposure of Posta’s activity to
financial services provision’. Moreover, previous
competition.
Commission practice
( 17 ) in connection to financial
markets considered the relevant geographical market to
be national in scope due to different competitive
Services performed on behalf of others
conditions within individual Member States and the
importance of a network of branches.
(36) The
application
for
exemption
pertains
also
to
certain
activities of Posta, performed on behalf of others, in
connection with certain financial services, where Posta
acts as an intermediary.
(42) The market shares of Posta, calculated on the basis of the
above consideration are as follows: for the retail current
accounts and deposits: 1,45 % in 2007, 1,38 % in 2008
and 1,51 % in 2009, while on the market for corporate
Intermediation of current accounts and the related products and
current account and deposits Posta market shares were
services
negligible (0 %) in 2007, 2008 and 2009. These figures
indicate that market shares for the intermediation of
(37) The
application
for
exemption
covers
the
intermediation
these financial services are also low
of current accounts and the related products and services,
namely: retail and corporate bank account services
offered on behalf of credit institutions, including the
( 15 ) Case COMP/M.5384 — BNP Paribas/Fortis, p. 3.
accepting and forwarding of payment orders for
( 16 ) Case COMP/M.4844, Fortis: ABN AMRO Assets.
( 17 ) Case COMP/M.2225 Fortis/ASR, p. 3, COMP/M.5075Vienna
execution, and the intermediation of sight deposits and
Insurance Group/Erste Bank Versicherungssparte, and
fixed term deposits connected to a bank account.
COMP/M.5384- BNP Paribas/Fortis, p. 15.

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L 343/82
EN
Official Journal of the European Union
23.12.2011
(43) The rest of the market is shared between other banks and
credit products (with no collateral requirements, either
financial institutions which are not subject to the
movable, nor real estate) provided by Erste Bank to
provisions of Directive 2004/17/EC.
retail customers, while in the corporate sector, Posta
offers a product of Magyar Fejlesztesi Bank, acting as a
multiple special service intermediary.
(44) In
its
inquiry
on
the
retail
banking
of
2009
( 18 ) the
Hungarian Competition Authority (GVH) found that
there are no major obstacles to account switching in
(49) The
services
concerned
here
can
be
subdivided
in
many
Hungary, and moreover, it was observed that the level
different ways, according to factors such as the purposes
of current account switching is one of the highest when
for which a credit is taken or the typical customer
compared to the rest of EU Member State.
(consumers, SMEs, larger undertakings or public adminis
tration). Therefore, retail credit intermediation and
corporate credit intermediation could be considered as
separate product markets.
(45) The
advantages
of
Posta’s
extensive
network
are
counter
balanced by the growth in importance of online banking.
(50) The
product
market
of
retail
credit
intermediation
is
defined by the applicant as the market of unrestricted
(46) According
to
a
survey
( 19 ) of factors influencing the
mortgage loans and personal loans, both in Hungarian
selection of a bank, by customers, the most important
Forint and foreign currencies. This is not contradicted by
factors were found to be reliability and confidence,
previous Commission practice
( 21 ) whereby the
proximity and accessibility (including the availability of
Commission left open whether individual retail banking
means to withdraw cash) and the quality of service. These
products represents separate relevant product markets or
conclusions were also confirmed by the results of the
whether several retail banking products may form part of
survey ( 20 ) on financial services and current account
a single relevant product market.
services. According to this source, the most important
aspect when choosing a bank is the cost and reputation,
while easy access (i.a. extensive network) appears to be
less important. Furthermore, the spectrum of banking
(51) In the corporate sector, the Posta is offering only one
services, namely the availability of a broad range of
type of corporate credit product. This product is offered
banking services, and the high quality of service was
typically by other financial institutions (i.e. savings coop
also considered important. Given the above, although
eratives). The Posta offers this product in 45 designated
Posta has an extensive network, there are other criteria
locations and not throughout its entire network. The
which were labelled as significant by customers (repu
relevant product market for the corporate sector is
tation as a bank, banking services, quality of service)
considered by the applicant to include SMEs loans
which play a counterbalancing role in choosing a bank.
offered by credit institutions. However, as indicated in
Customers whose needs include a broad range of services
recital 9 above, the exact market definition can be left
would therefore be reticent to consider choosing or
open, for the purposes of this Decision.
changing to a postal account not offering the accustomed
range of services.
(52) The geographical market is the entire territory of
Hungary, virtually for the same reasons as stated in
(47) For
the
purposes
of
this
Decision,
and
without
prejudice
recital 41.
to the competition law, these factors should be taken as
an indication of direct exposure of Posta’s activity to
competition.
(53) Posta
market
shares
in
the
market
of
retail
credit
as
defined was less than 0,5 % in 2007, 2008 and 2009,
while the market shares in the market of corporate credit
Credit intermediation
is negligible (0 %) in the same years. The available data
shows that the Posta market shares in these markets
(48) This activity represents the intermediation of credit
narrowly defined are so small that on a market more
provided by third parties, with the Posta acting as a
broadly defined Posta will have even smaller market
multiple special services intermediary. Posta is offering
shares.
( 18 ) Switching in case of certain financial products for retail and small
entrepreneurial clients — Sector Inquiry — final report, 5 February
(54) The
rest
of
the
market
is
shared
between
other
banks
and
2009, GVH — Hungarian Competition Authority. GVH performed
this study on bank switching for the period 2002-2006.
financial institutions — which are not subject to the
( 19 ) Switching in case of certain financial products for retail and small
provisions of the Utilities directive. The cumulated
entrepreneurial clients — Sector Inquiry — final report, 5 February
market shares ( 22 ) of the first three competitors in
2009, GVH — Hungarian Competition Authority, and the related
2007, 2008 and 2009 were as follows: 52,54 %,
background study ‘Information and experience related to switching
between banks’ summary analysis of the customer market, Millward
Brown, September 2006.
( 21 ) Case COMP/M.4844, Fortis/ABN AMRO Assets.
( 20 ) Ipsos: Financial services, current account services, summary of the
( 22 ) According to the supplementary information provided by the
survey of retail customers, January 2009.
applicant in its letter of 2 September 2011.

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EN
23.12.2011 Official
Journal
of
the
European
Union L
343/83
51,39 % and 54,27 % respectively in the retail loans
market is the one consisting of merchants who accept
market and 42,69 %, 47,36 % and 48,07 % respectively
card payments. Another possible card accepting market is
in the corporate loans market.
the one consisting of banks who offer card accepting
services to such merchants. However, as confirmed by
the Hungarian Competition Authority (GVH) ( 25 ), in
case of Posta, considering that the POS devices
(55) For
the
purposes
of
this
Decision,
and
without
prejudice
functions as ATM machines of the two banks, for
to the competition law, the above mentioned factors
which Posta is acting as intermediary, ‘Magyar Posta
should be taken as an indication of direct exposure of
was probably correct to provide data on concentration
Posta’s activity to competition.
based on concentration based on the number of ATM
machines in operation’.
Intermediation and acceptance of payment cards issued by credit
institutions
(62) In
terms
of
geographical
market,
previous
Commission
cases (
(56) The
Posta
offers
credit
cards
issued
by
Erste
Bank
Zrt.

26 ) indicated that the market of payment cards is
This product is a standard credit card, in terms of
still national in scope, although it admitted that there
conditions and services offered.
may be scope for widening the market in the future. In

the present case, the geographical market definition is
considered to be the entire territory of Hungary.
(57) In respect of debit cards, the Posta acts as intermediary
covering corporate and retail bank cards associated with
(63) Between
2007
and
2009,
Posta’s
market
shares
was
of
current accounts. The Posta acts as multiple special
less than 1 % in the credit card market, of less than 3 %
services intermediary, while the service is provided by
in the debit card market and of less than 6 % in the
Erste Bank Hungary Nyrt. The cards offered are
accepting card market as defined by the applicant.
standard debit cards.
(64) According
to
the
Hungarian
Competition
Authority
( 27 ),
(58) In
respect
of
accepting
payment
cards
the
postal
outlets
following a recent study undertaken by the later and the
are equipped with POS terminals enabling cash with
Hungarian National Bank, out of the total number of 24
drawals with bank cards. The applicant argues that
banks issuing debit cards the total market share of the
from the perspective of customers, the same service
top 5 banks in debit card issuing is approximately 82 %.
(obtaining cash) can be obtain by means of cash with
According to the same source the credit card issuing
drawals at a bank teller, or at other POS terminal
market is less concentrated; out of the 18 banks
operated by third parties at locations other than the
issuing credit cards, the top 7 banks have a combined
postal outlets, therefore the products are substitutable.
market share of 68 % of the market. Moreover, according
to the application, the level of concentration as high in
the accepting sector three quarters of the total number of
(59) The
Commission
has,
in
the
past,
distinguished
(
ATMs ware operated by four banks.

23 ) two
main payment card related activities: first the issuing of
cards to individuals and companies and secondly the
‘acquiring’ of merchants for card payment acceptance.
(65) In
view
of
the
low
market
shares
of
Posta
and
the
Moreover, within the activity of payment card issuing,
presence of other banks and financial institutions,
the Commission has in previous decisions ( 24 ) discussed
which bring competitive pressure on Posta’s activity we
the possibility of distinguishing between different types
can conclude that for the purposes of this Decision, and
of cards, but eventually the exact definition was left open.
without prejudice to the competition law, these factors
should be taken as an indication of direct exposure of
Posta’s activity to competition.
(60) For
the
purposes
of
this
Decision,
and
without
prejudice
to the competition law, three product markets will be
taken into consideration, namely, the credit card
Intermediation of investments and special purpose savings on
market, the debit card market and the accepting of cards.
behalf of others
(66) This category of services covers the sale of financial
instruments and the marketing of special investments
(61) As regards, the card accepting market, the product
products. The financial instruments offered are
market defined by the applicant is not the market that
government securities, investment funds of Erste Befek
was generally defined in previous Commission decisions
tetesi Zrt, other securities and a special home savings
mentioned in recital 59. The ‘original’ card accepting
( 25 ) GVH response of 15 September 2011 to Commission letter of
( 23 ) Case COMP/M.5241, American Express/Fortis/Alpha Card.
request for information of 8 August 2011.
( 24 ) Case COMP/M.3894 Unicredito/HVB; COMP/M.2567 Nordbanken/
( 26 ) Case COMP/M.3740, Barclays Bank/Foereningssparbanken/JV and
Postgirot; COMP/M.3740 Barclays Bank/Foerenngssparbanken/JV,
COMP/M.2567 Nordbanken/Postgirot.
COMP/M.4844 Fortis/ABN AMRO Assets, COMP/M.5241
( 27 ) GVH response of 15 September 2011 to Commission letter of
American Express/Fortis/Alpha Card.
request for information of 8 August 2011.

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L 343/84
EN
Official Journal of the European Union
23.12.2011
arrangement on behalf of Fundamenta Lakaskassza Zrt.
health, property, general civil liability, casualty, litigation,
and OTP Lakastakarekpenztar Zrt., acting as inter
working accidents and credit insurance ( 33 ). However,
mediary.
supply side considerations could lead to broader
product markets. For the purposes of this Decision the
exact product market definition can be left open.
(67) In
previous
cases,
the
Commission
has
left
open
the
question whether each of these services might constitute
separate product markets ( 28 ). The definition will be left
(73) The Commission has in the past also analysed the
open in this case as the services provided by Posta as an
distribution of insurance products and confirmed that
intermediary do not raise competition concerns,
the relevant market for either non-life or life insurance
regardless of the alternative market definition considered.
distribution would comprise all outward (i.e. third party
or non-owned) distribution channels, such as brokers,
agents and other intermediaries ( 34 ). However, for the
(68) As
regards geographical scope, the Commission has
purposes of this Decision the exact product market defi
considered (
nition can be left open.

29 ) that most of the market segments are

international in scope, but some of them have been
analysed from a national perspective ( 30 ). The exact
geographical market definition will be left open, and in
(74) In
respect
of
geographical
market,
the
Commission
in
its
the present case the geographical market will be
previous decisions ( 35 ) has defined the markets for life
considered the territory of Hungary.
insurance as being national in scope due to national
distribution channels, the established market structure,
fiscal constraints and different regulatory systems. The
(69) Between
2007
and
2009,
Posta’s
market
share
was
of
same approach will be used in the present case and the
less than 4 % in the market of government securities,
geographical market will be considered the entire
between 3 % and 9 % in the market of investment
territory of Hungary.
units, of less than 2 % in the market for bonds and of
less than 4
% in the market of home savings
arrangements.
(75) Between
2007
and
2009,
Posta’s
market
share
was
of
less than 5 % ( 36 ) in the market of life insurance products,
and of less than 1 % ( 37 ) for non-life insurance products.
These figures indicate that market shares for the inter
(70) For
the
purposes
of
this
Decision,
and
without
prejudice
mediation of insurance are also low.
to the competition law, these factors should be taken as
an indication of direct exposure to competition of Posta’s
activity in the investment market.
(76) In the same years, the combined market shares of the
first three competitors was of 52,29 %, 51,08 % and
50,1 % respectively in the market of life insurance
Intermediation of insurance products
products, and of 54,84
%, 52,56
% and 51,66
%
respectively in the market of non-life insurance products.
(71) Posta
offers
life
insurance
on
behalf
of
Magyar
Posta
Eletbiztosito Zrt. and non-life insurance on behalf of
Magyar Posta Biztosito Zrt.
(77) For
the
purposes
of
this
Decision,
and
without
prejudice
to the competition law, these factors should be taken as
an indication of direct exposure to competition of Posta’s
(72) In
its
previous
decisions
( 31 ), the Commission has distin
activity in the insurance market.
guished between three broad categories of types of
insurances, namely: life insurance, non-life insurance
and reinsurance. Moreover, it was observed that, from
IV. CONCLUSIONS
the demand side, life and non-life insurance can be
further divided into as many individual product
(78) In
view
of
the
factors
examined
in
recitals
11
to
77,
the
markets as there are different kinds of risks covered. In
condition of direct exposure to competition laid down in
relation to life insurance the Commission has considered
Article 30(1) of Directive 2004/17/EC should be
in previous decisions the following segmentations: life-
considered to be met in Hungary for the following
individual, life-group and unit linked, or, alternatively,
activities:
individual protection, group protection, personal
pension, group pensions, savings and investments ( 32 ).
In relation to non-life insurance the Commission has
(a) services enabling cash to be placed on a payment
previously considered, inter alia, motor, fire, transport,
account;
( 28 ) Case COMP/M.3894, Unicredito/HVB, Case COMP/M.5384 BNP
( 33 )
Case COMP/M.4284, Axa/Winterthur, Case COMP/M.4701
Paribas/Fortis.
Generali/PPF Insurance Business, Case COMP/M.2676 Sampo/
( 29 ) Case COMP/M.2225, Fortis/ASR, COMP/M.1172, Fortis
Vama/IF Holding/JV.
AG/Generale Bank.
( 34 ) Case COMP/M.4284 AXA/Winterthur, Case COMP/M.4844
( 30 ) Case COMP/M.4155, BNP Paribas/BNL.
Fortis/ABN AMRO Assets.
( 31 ) Case COMP:M.4284, AXA/Winterhur, Case COMP/M.5384 BNP
( 35 ) Case COMP/M.5075 Vienna Insurance Group/Erste Bank Versiche
Paribas/Fortis.
rungssparte; COMP/M.4844 Fortis/ABN AMRO Assets.
( 32 ) Case COMP/4047 Aviva/Ark life, Case COMP/M.4284 Axa/
( 36 ) Market share calculated on the basis of premium revenues.
Winterthur, Case COMP/M.4701 Generali/PPF Insurance Business.
( 37 ) Market share calculated on the basis of premium revenues.

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EN
23.12.2011 Official
Journal
of
the
European
Union L
343/85
(b) services enabling cash withdrawals from a payment
Hungarian Competition Authority. It may be revised,
account;
should significant changes in the legal or factual
situation mean that the conditions for the applicability
(c) money transfer services;
of Article 30(1) of Directive 2004/17/EC are no longer
met.
(d) intermediation of current accounts and the related
products and services;
(82) The
measures provided for in this Decision are in
accordance with the opinion of the Advisory
Committee for Public Contracts,
(e) credit intermediation;
HAS ADOPTED THIS DECISION:
(f) intermediation and acceptance of payment cards
issued by credit institutions;
Article 1
(g) intermediation of investments and special purpose
Directive 2004/17/EC shall not apply to contracts awarded by
savings on behalf of others;
contracting entities and intended to enable the following
services to be carried out in Hungary:
(h) intermediation of insurance products.
(a) services enabling cash to be placed on a payment account;
(79) Since the condition of unrestricted access to the market
is also met, Directive 2004/17/EC should not apply when
(b) services enabling cash withdrawals from a payment account;
contracting entities award contracts intended to enable
the services listed in recital 78 to be carried out in
(c) money transfer services;
Hungary, nor when design contests are organised for
the pursuit of such an activity in Hungary.
(d) intermediation of current accounts and the related products
and services;
(80) The
financial
services
carried
out
by
Posta
are
auxiliary
to
postal services as per Article 6(2)(b) of Directive
2004/17/EC. The postal services carried out by the
(e) credit intermediation;
Posta are not subject to this exemption request,
therefore for these activities the provisions of Directive
(f) intermediation and acceptance of payment cards issued by
2004/17/EC continue to apply. In this context, it is
credit institutions;
recalled that procurement contracts covering several
activities shall be treated in accordance with Article 9
of Directive 2004/17/EC. This means that, when a
(g) intermediation of investments and special purpose savings
contracting entity is engaged in ‘mixed’ procurement,
on behalf of others;
that is procurement used to support the performance
of both, activities exempted from the application of
(h) intermediation of insurance products.
Directive 2004/17/EC and activities not exempted,
regard shall be had to the activities for which the
contract is principally intended. In the event of such
Article 2
mixed procurement, where the purpose is principally to
support postal activities, the provision of Directive
This Decision is addressed to the Republic of Hungary in
2004/17/EC shall apply. If it is objectively impossible
accordance to the Treaties.
to determine for which activity the contract is principally
intended, the contract shall be awarded in accordance
with the rules referred to in paragraphs 2 and 3 of
Done at Brussels, 16 December 2011.
Article 9 of Directive 2004/17/EC.
For the Commission
(81) This Decision is based on the legal and factual situation
as of July to October 2011 as it appears from the
Michel BARNIER
information submitted by Magyar Posta, and the
Member of the Commission

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