30-CE /00-36 COUNTRY REPORT HUNGARY. Jean ALBERT Team Leader

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1 30-CE /00-36 IMPLEMENTED BY FOR ENTERPRISE AND INDUSTRY DG STUDY ON POSSIBLE NATIONAL LEGAL OBSTACLES TO FULL RECOGNITION OF ELECTRONIC PROCESSING OF PERFORMANCE INFORMATION ON CONSTRUCTION PRODUCTS (UNDER THE CONSTRUCTION PRODUCTS REGULATION), NOTABLY WITHIN THE REGIMES OF CIVIL LIABILITY AND EVIDENTIARY VALUE Jean ALBERT Team Leader COUNTRY REPORT HUNGARY Submitted by Ákos Süle, Attorney at Law Country Expert December

2 1. CHAPTER 1: Introduction Summary of the regulation implementing Directive 89/106/EEC Summary of the changes that are taking place following the adoption of the CPR Current system Change proposed or implemented (including repealing of Directive 89/106/EEC transposing legislation CHAPTER 2: Legal context in which the DoP may be relevant Presentation of the type of legal contexts in which the DoP may be relevant (i.e. authorizations, liability, procedure and evidentiary rules) Summary of construction products liability Statute of limitations in the area of construction products liability Summary of the rules relating to authorizations pertaining to the use of construction products Administrative bodies that may require the DoP Presentation, role, function and competence of these bodies Link with the field of construction products Context in which these bodies might need access to the DoPs (including reference to rules and examples) Judicial bodies that may require the DoP Presentation, role function and competence of these bodies Link with the field of construction products Context in which these bodies might need access to the DoPs (including reference to rules and examples) Insurance organisations Role of insurance organisations in the construction products industry Context in which these organizations might need access to the DoPs CHAPTER 3: Electronic/digital provision of the DoPs before administrative and judicial bodies Provision of electronic documents to administrative bodies Admissibility of electronic documents (including reference to rules and summary of case examples) Weight of admissible electronic documents (including reference to rules and summary of case examples) Authentication and integrity requirements (including those on preservation) Provision of electronic documents to judicial bodies Admissibility of electronic/digital evidence (including reference to rules and summary of case examples) Weight of admissible electronic/digital evidence (including reference to rules and summary of case examples) Authentication and integrity requirements (including those on preservation) CHAPTER 4: Case Study Conclusion Use of electronic means to provide DoPs before administrative bodies Use of electronic means to provide DoPs before judicial bodies

3 1. CHAPTER 1: Introduction 1.1. Summary of the regulation implementing Directive 89/106/EEC The European Directive 89/106/CEE or construction products directive (CPD) is a European Directive effective from 27 December 1988 and remains in force until 30 June In Hungary the directive has been transposed with the Building Act (in Hungarian: Az épített környezet alakításáról és védelméről szóló évi LXXVIII. törvény; link to the Hungarian version: ). Beside the Hungarian Building Act partly implementing the regulation, the additional joint Ministry decree (in Hungarian: Az építési termékek műszaki követelményeinek, megfelelőség igazolásának, valamint forgalomba hozatalának és felhasználásának részletes szabályairól szóló 3/2003. (I. 25.) BM-GKM-KvVM együttes rendelet; link: about certain requirements about construction products also implemented the CPD. Both according to the currently valid (89/106/EEC based) regulations and according to subsequent modifications, the basic requirements for buildings are defined in part IV. of Hungarian building code (so called OTÉK = 253/1997. (XII.20.) Korm. rendelet az országos településrendezési és építési követelményekről; link: as detailed in both CPD annex no. 1. and CPR annex no. 1. The newly modified OTÉK regulation under 56/B contains the seventh basic requirement newly introduced along with the CPR. The Regulation of Construction Products has entered into force for which the Directive will be soon repealed. Since the entry into force of the CPR is only partial (Art 68 CPR) the Directive still has part of its validity. On 1 July the CPR will be fully implemented and the Directive will no longer apply. 3

4 The Hungarian Trade Licensing Office (in Hungarian: Magyar Kereskedelmi Engedélyezési Hivatal; link: has been appointed by the Government by a decree (in Hungarian: 320/2010. (XII. 27.) Korm. rendelet a Magyar Kereskedelmi Engedélyezési Hivatalról és a területi mérésügyi és műszaki biztonsági hatóságokról; link: to fulfil all duties in the course of repealing the CPD, as laid down in Art 29(1), Art 39 and Annex V of the CPD, i.e. tasks being a Technical Assessment Body (TAB) and of appointing and registering bodies authorised to carry out third-party tasks in the process of assessment and verification of constancy of performance under the CPD ( notified bodies ) Summary of the changes that are taking place following the adoption of the CPR The CPR lays down harmonized conditions for the marketing of construction products and will govern the production and distribution of materials and products in the construction industry for the near future with a focus on small and micro-enterprises, to protect the health of workers, consumer protection, the protection of the environment. The road to the approval of the CPR began in 2006 and ended with its publication in 2011, however, entered into force only those items that relate to the bodies notifies, while the articles of interest especially to Manufacturers and Distributors will apply from July The main changes introduced by the CPR are as follows: - the Construction Products Regulation has added to the existing six essential requirements (ER) for construction products (under the CPD regime) another one: the requirement of sustainable use of natural resources; these are now called jointly basic works requirements (BWR); - amended marketing rules; - the requirements for the marketing of consruction products have been changed; - a instead of the certificate of compliance, the producer s declaration of performance is necessary; 4

5 - instead of the assessment of the compliance, the assessment and checking of the consistence of the product s performance is necessary; - the meaning of the CE marking has been modified; - Product Contact Points will be set up. The key concept of the new CPR is the declaration of performance (DoP), the Manufacturers will be required to present from 1 July 2013 and contains reliable and easily manageable by users: - It is mandatory for all products covered by a hen - It must contain information on the expected use - Must contain the essential characteristics of the relevant intended use - It must include the performance of at least one of the essential characteristics. Another change introduced by the new Regulation is the change of the old systems of attestation of conformity (AoC in the CPD), which have, in fact, become systems of monitoring and evaluation of the consistency of the declared performance (AVCP of CPR) Furthermore, the CPR introduced a legal basis to simplify procedures (WT, WFT, cascading, shared ITT) included to avoid testing and unnecessary expenses. Articles 36, 37 and 38 introduce specific measures to compensate for the disadvantages of small and medium-sized enterprises. - Basic Requirements The CPR now refers to these as basic works requirements, or BWRs. The same six aspects as for the CPD are still there, but a seventh is added, the sustainable use of natural resources. Manufacturers and certification and assessment bodies will have to consider whether the construction works and the materials make sustainable use of natural resources. Issues such as how durable, recyclable and environmentally friendly materials are, may be the subject for a legal declaration. - Requirements of Marketing 5

6 Construction products could be marketed under the CPD if they were in compliance with any of the following: 1. produced according to a harmonized European standard, 2. has a European technical approval (ETA), 3. has a Hungarian national construction certificate (ÉME, see also The CPR will mix up the latter two, so construction products can be marketed in the future only if: 1. the product has been produced according to a harmonized European standard, or 2. the marketer of the construction product issues the unique European Assessment Document for the product, including the analysed qualities. - Declaration of Performance This was a Declaration of Conformity under the CPD by the manufacturer, declaring the product and which technical specification it conformed to. The CPR adds more detailed requirements to the document, important actual performance values and provides a template in Annex III. The new format requires more information, which improves traceability and identification of the relevant products and manufacturer. - Supply of the Declaration The CPD did not consider the use of electronic media. The CPR clarifies that the document may be in paper form, electronic form or even presented on a website. It must be supplied in the language required by the Member State in which it is sold. - Application of the CE Marking. The CPR clarifies that the year code applied with the CE mark is the year in which it was first affixed, and so it does not change every year. - Exception to the Requirement for CE Marking The CPD accepted that products that were individual and not made in series, could be exempt from full CE requirements. 6

7 The CPR adds further clarity here by referring to: Custom made products in response to a specific order, when installed by the manufacture On-site manufacture traditional, heritage type conservation projects. Basically if the construction operation is bespoke, or carried out on site, then CE marking requirements may not apply. For example a joiner creating a replacement window in a strategy home would not require CE marking for this item of work. - Product Contact Points (CPR) This is a new concept which comes in turn from the Regulation on Mutual Recognition of Goods. Each Member State must establish Product Contact Points in their territory with the aim of providing information and advice free of charge to economic operators and competent authorities in other Member States about a possible requirement for prior authorization under the laws of their Member States and provide information about the remedies available in the event of a dispute between a competent authority and an economic operator Current system The current system of construction products is regulated through applying the CPD regime and partially that of the CPR. Since the CPD was implemented in Hungarian legislation, the CE-marking has been in some cases mandatory in Hungary. Affixing of the CE marking is mandatory if there is a valid harmonized European standard or European Technical Approval for the given construction product and the product has been duly evaluated according to the defined processes and has satisfied all legal regulations. Where there is no harmonized technical specification, affixing of the CE marking is expressly prohibited. In Hungary we currently do not have any specific law relative to the application of the new Regulation as it is directly applicable. Accordingly, up to date a written form for the certificate of conformity is still necessary. 7

8 Change proposed or implemented (including repealing of Directive 89/106/EEC transposing legislation a) The joint Ministry decree about certain requirements about construction products (in Hungarian: Az építési termékek műszaki követelményeinek, megfelelőség igazolásának, valamint forgalomba hozatalának és felhasználásának részletes szabályairól szóló 3/2003. (I. 25.) BM-GKM-KvVM együttes rendelet) will not be effective from 1 July 2013 due to the entering in force of the CPR. b) An act (in Hungarian: évi CLVII. törvény a településfejlesztéssel, a településrendezéssel és az építésüggyel összefüggő egyes törvények módosításáról; link: ) amended the Building act. Pursuant to Article 49 of this act, the new Article 41 of the Building Act will be as follows: a. Construction products can be planned or built in a building only if the basic works requirements for buildings are met. b. Construction products are eligible for planning / building in if the content of the DoP pursuant to Article 4 of the CPR meet the criteria of the required technical aspects or if the documents pursuant to Article 37 and 38 CPR are accessible and their contents justify the conformity with the required technical aspects or if the construction products meet criteria set by another law. c. It is confirmed that also the act about the assessment and control of the steadiness of performance of construction products shall be applied. This act is the Act on Notifying Authorities (in Hungarian: évi CXXXIII. törvény a megfelelőségértékelő szervezetek tevékenységéről; link: This act will not be modified as of 1 July c) Besides, the above amending act also authorized the Government of Hungary to pass detailed laws regarding the proof of performance, their planning and building into buildings. d) Such a Government Decree was issued last year to amend several laws (in Hungarian: 322/2012. (XI. 16.) Korm. rendelet az építésüggyel összefüggő egyes kormányrendeletek módosításáról). It amends the Government Decree on 8

9 Building Works (191/2009. (IX. 15.) Korm. rendelet az építőipari kivitelezési tevékenységről; link: and states the filing of the DoP with the Building Authority is the burden of the main contractor (Article 12(2)h) of latter law). Henceforth, the checking of the existence of the DoP is the duty of the building works controller (in Hungarian: építési műszaki ellenőr) during the building (Article 16(3)j) of latter law). e) The Government Decree on Building Supervision (312/2012. (XI. 8.) Korm. rendelet az építésügyi és építésfelügyeleti hatósági eljárásokról és ellenőrzésekről, valamint az építésügyi hatósági szolgáltatásról; link: also contains relevant rules on the DoP, e.g. lists buildings that do not need a building permit when having a DoP (certain temporary buildings, not exceeding 180 days or building park/sports facility objects). 2. CHAPTER 2: Legal context in which the DoP may be relevant 2.1. Presentation of the type of legal contexts in which the DoP may be relevant (i.e. authorizations, liability, procedure and evidentiary rules) Probably the most important aspect of the DoP is the building permit procedure or the lack thereof, since with the DoP not all buildings need to have a permit (see above). Certainly, liability, authorization and procedure, evidentiary rules will be also detailed below. Besides, the DoP might also be relevant for several reasons: - Importation and Distribution of Products One of the main areas in which the DoP appears relevant is in the importation and distribution of products. Both the importer as well as the distributor must in fact verify that the product which they are importing or commercialising has a DoP which ascertains the quality of the product and which describes it. Articles 14 and 15 of the CPR describe the responsibility of the entrepreneurs of the construction distribution. These articles explain the obligatory requirement of the DoP in particular article 14 states that when a construction product is put on the market the 9

10 distributors must respect the regulation with upmost attention given to respecting the rules. The distributors have to ensure that the importer and the manufacturer have satisfied the requirements of article 11 Obligation for the manufacturer, paragraph 4 (any elements required for identifying the product) and 5 (registered trade name or registered brand, with a unique address in which the manufacturer can be contacted), and article 13 Obligations of the importers, paragraph 3 (name of the product, registered trade name or registered brand and a unique address in which the manufacturer can be contacted). - Consumer Protection The Government Decree on Market Control Procedure (in Hungarian: 6/2013. (I. 18.) Korm. rendelet a piacfelügyeleti tevékenység részletes szabályairól; link: implemented the provisions of EC Directive 95/2001/EC on General Product Safety. The National Consumer Protection Authority and further product-specific consumer protection authorities ensure compliance with the product safety provisions under the Product Safety Decree. When product safety rules are breached, the consumer protection authorities are entitled to ban or restrict the release of a product, withdraw it from the market or recall it. These consumer protection authorities make available to the public information regarding products found to be dangerous to health or safety. - Investigation of Construction Products Both 41. of the building law Étv. (1997. évi LXXVIII. törvény az épített környezet alakításáról és védelméről; link: and the annex 8. section of the building process code (312/2012. (XI. 8.) Korm. rendelet az építésügyi és építésfelügyeleti hatósági eljárásokról és ellenőrzésekről, valamint az építésügyi hatósági szolgáltatásról; link: contain regulations where it is laid down that the authorities must investigate whether the proposed building satisfies the basic requirements. During this investigation, the authorities must 10

11 check the plans if the appropriate construction products used in the various structural components. The construction products are usually directly not subject to investigation as the regulations mostly pose requirements for the building or for the structure. Some legislative exceptions (mostly fire protection, building energy conservation or health preservation related), however, do exist where the construction product itself is the subject of a requirement. In these later cases the authorities must also check whether the plans contain construction products that have performance characteristics that satisfy these requirements Summary of construction products liability Until 1 July 2013 the construction products should comply with specific standards, the certificate of conformity should be checked by the end of the construction. Under the new system with the declarations of performance, the producers will be given a bigger freedom as they will be able to market a greater range of products as per different qualities. The architects responsibility will be elevated inasmuch as the minimal product requirements should be set on the plan. Council Directive 85/374/EEC concerning liability for defective products has been fully implemented into the Product Liability Act (in Hungarian: évi X. törvény a termékfelelősségről; link: The Product Liability Act governs producers and importers objective liability for damage caused by defective products. Such damage may consist of damage to a person s health or damage to another object designed for private use and consumption and used for that purpose. Under the Product Liability Act, the producer is liable only for damages in excess of the equivalent of 500. The Hungarian Product Liability Act provides that the claimant needs to prove the defect, the damage caused and causation; otherwise, the burden of proof is on the producer/importer. If the producer or importer is impossible to identify, the seller will be regarded as the producer until the identity of the producer or importer can be established. The injured party may choose to claim damages on the basis of the Product Liability Act or on the basis of the general warranty rules and the rules on compensation for damages 11

12 under the Hungarian Civil Code. Civil claims are usually based on the general warranty and compensation rules of the Hungarian Civil Code rather than the Product Liability Act. The Hungarian Civil Code (in Hungarian: évi IV. törvény a Polgári Törvénykönyvről; link: says that a person who causes damage to another person in violation of the law shall be liable for such damage; he shall be relieved of liability if he is able to prove that he has acted in a manner that can generally be expected in the given situation (Article 339(1)). The Civil Code also contains the main rules of warranty: (1) On the basis of a contract in which the parties owe mutual services to one another, lack of conformity occurs on the part of the obligor if the goods provided do not, at the time of performance, correspond to the requirements stipulated by law or by the contract. (2) Any lack of conformity resulting from incorrect installation of the consumer goods shall be deemed to be equivalent to lack of conformity of the goods if installation forms part of the contract of sale of the goods and the goods were installed by the obligor or under his responsibility. This shall apply equally if the product, intended to be installed by the consumer, is installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions. Any clause of a consumer contract that deviates from these provisions to the detriment of the consumer shall be null and void. (3) The obligor shall be subject to liability for lack of conformity (implied warranty) (Article 305). Besides, there are special warranty obligations for some goods, i.e. for new flats (in Hungarian: 181/2003. (XI. 5.) Korm. rendelet a lakásépítéssel kapcsolatos kötelező jótállásról; link: and for building materials (in Hungarian: 11/1985. (VI. 22.) ÉVM-IpM-KM-MÉM-BkM rendelet egyes épületszerkezetek és azok létrehozásánál felhasználásra kerülő termékek kötelező alkalmassági idejéről; link: however, these will not be changed due to the CPR. On the basis of declarations or certificates of conformity released under the directive 89/106/CEE, before 1 July 2013 it will be possible for the manufacturers to draw up a DoP assuming the responsibility for the conformity of the construction products with the declared performance. 12

13 It seems that not just the manufacturers and the importers will be responsible but also distributors. If the distributors think that the construction product does not conform to the declaration of performance or does not conform to other requirements, they have to wait that the product will meet the requirements before allowing the product to be made available to the market. The distributor has to guarantee the perfect conservation of the product, even during its transport Statute of limitations in the area of construction products liability The product liability runs up to10 years from the date the product was put on the market, except if a court procedure has been initiated meanwhile. The general Civil Code liability runs up to five years in total. The general Civil Code warranty runs up to six month from discovering the fault but if no fault is discovered within three years, the warranty lapses even with products designed for a long period, such as construction products. The special warranty for new flats is three years. For certain building parts, special warranty periods are five or ten years. Longer warranty periods can be agreed upon Summary of the rules relating to authorizations pertaining to the use of construction products Certain horizontal aspects have already national rules as per the use, e.g. fire protection (see the decree in Hungarian: 28/2011 (IX. 6.) BM rendelet (OTSZ); link: and requirements about energy usage (in Hungarian: 7/2006 (V. 24.) TNM rendelet; link: however, there are no mandatory vertical requirements as per the use of construction products in Hungary yet. The works have begun to set up such requirements, following the 35 product categories set by the CPR. According to our latest information, these works involve the Hungarian Construction Material Industry Association. 13

14 2.2. Administrative bodies that may require the DoP Before breaking down the single administrative bodies that may require the DoP, it is important to know how the related procedures work. - Building Construction Permit Under the provisions of the Building Act, a building authority permit (in Hungarian "építési engedély") shall be obtained from the local municipality for the construction, remodelling, expansion, renovation, rehabilitation, improvement, demolition, relocation or modification of the original function of a structure or a section thereof or group of buildings. A building authority permit may be conditional. In order to obtain a permit, an application must be made to the local municipality by submitting the title deeds, the architectural drawings, the structural drawings, and the electrical and mechanical installation drawings. The plans shall comply with the applicable zoning requirements. The building authority will conduct an on-site inspection as part of the permit application evaluation procedure. A fee is charged for the construction permit. The specialized authorities and other organs specified in separate legal regulations and the registered technical experts participate in the permitting procedure and give their approval prior to the issuing of the building authority permit. Hence, written authorizations from the water utility and sewage utilities and eventually nature protection authorities must be obtained. The architectural plans contain the fire protection statement, which must be approved by the Fire Department. These authorizations are normally processed simultaneously with the building permit. When the building is completed and the municipality has been notified, the builder (owner) must arrange for a site inspection. After the on-site inspection, all the inspectors must declare that the building has been completed in compliance with the technical plans or identify any unfinished work. If there is unfinished work, the deadline for completion must be stated in a document. After completion, the authority issues the occupancy permit. - Occupancy Permit 14

15 The developer shall be required to obtain an occupancy permit (in Hungarian használatbavételi engedély ) from the local municipality for all structures and sections thereof for which a building permit was required. Without the occupancy permit the structure may not be used. The application for an occupancy permit must contain declarations from the appropriate specialized authorities, the relevant public utility companies, the chimney sweeper (building engineer) and the construction superintendent. These declarations must state that the structure and the work completed conforms to the building permit, the approved permitting plans and is suitable for proper and safe occupancy. If the application or declarations are in some way deficient a conditional occupancy permit may be granted Presentation, role, function and competence of these bodies The Building Authority on first instance is located at the Municipalities, i.e. locally. It is a governmental administrative body. As detailed above, the Building Authority coordinates the building permit procedure, consults other technical authorities and issues the building permit and also the occupancy permit. Appeal may be lodged against these decisions of the first instance Building Authority. The appeal is adjudged by the second instance Building Authority, at county level. Also, buildings that do not need a building permit, may be controlled by the Building Authority. When these buildings are controlled, the DoP has to be presented to the Building Authority Link with the field of construction products In the first instance procedure, the building permit and the occupancy permit are issued by the Building Authority pursuant to the Building Act. Also, building that do not require permits, are controlled by the Building Authority. Any appeal against the decision of the first instance Building Authority goes to the second instance Building Authority. 15

16 Context in which these bodies might need access to the DoPs (including reference to rules and examples) At the end of the construction works, before the occupancy permit is obtained, the documentation of the building, including the DoP has to be filed with the Building Authority (see Government Decree on Building Works (191/2009. (IX. 15.) Korm. rendelet az építőipari kivitelezési tevékenységről; link: by the main contractor (Article 12(2)h) of latter law). The Building Authority then examines the documentation of the final building. In case of a negative decision of the Building Authority, an appeal may be filed and then, the second instance Building Authority re-examines the documentation of the building, including DoPs, if necessary. The Government Decree on Building Supervision (312/2012. (XI. 8.) Korm. rendelet az építésügyi és építésfelügyeleti hatósági eljárásokról és ellenőrzésekről, valamint az építésügyi hatósági szolgáltatásról; link: lists those buildings that do not need a building permit when having a DoP (certain temporary buildings, not exceeding 180 days or certain building park/sports facility objects) Judicial bodies that may require the DoP Presentation, role function and competence of these bodies The Hungarian judicial system has four levels. State courts include the Curia, the regional courts of appeal, the regional courts, the district courts. Special courts include administrative, military and labour courts. For the purposes of this analysis, civil and administrative courts are important. - District Courts There are 111 district courts in Hungary located in major cities. The district courts proceed only in first instance. District courts shall have jurisdiction in first instance of all 16

17 actions which are not delegated under the competence of regional courts by law. Groups may be established at district courts to handle certain types of cases. - Regional courts There are 20 regional courts in Hungary; 19 for the counties and one for Budapest (Budapest-Capital Regional Court). The regional court shall proceed as the first instance court in cases defined by law (Civil Procedure Code and Code of Criminal Procedure) and review appeals lodged against the decisions of district courts and administrative and labour courts in the second instance. - Administrative Courts There are 20 administrative courts located at the seat of regional courts. Administrative courts shall proceed on the first instance in cases reviewing administrative decisions. - Regional Courts of Appeal There are 5 regional courts of appeal in Hungary. The regional court of appeal shall review appeals - in second or third instance - submitted against the decisions of district courts or regional courts and shall proceed in other cases referred to its jurisdiction. - Curia of Hungary The Curia is the highest judicial authority in Hungary. Under the authority of its President it has three departments: criminal, civil and administrative-labour law departments. Each department has various chambers: chambers hearing appellate cases, chambers passing uniformity decisions, chambers issuing decisions on principles, as well as working groups examining judicial practice. Within the framework of the departments, the judges administer justice in chambers consisting of three judges. A chamber adopting uniformity decisions consists of five judges chaired by the head of the section/department concerned, however, in cases requiring the collaboration of several sections/departments, the size of the chamber increases to seven members. The Curia guarantees the uniform application of law. The decisions of the Curia on uniform jurisdiction are binding for other courts. 17

18 The responsibilities of the Curia are the following: examination appeals submitted against the decisions of the regional courts and the regional courts of appeal in defined cases, review of final decisions if these are challenged through an extraordinary appeal, other duties referred to its authority by law. Certainly, civil claims can be also handled by arbitration courts, e.g. the Arbitration Court attached to the Hungarian Chamber of Industry and Commerce or by international ones. Also, before taking a dispute to the court, the parties may try to mediate in a mediation procedure. Since there are no unitary rules for arbitration courts and mediation venues, we will not go into the detail of these alternatives and will deal only with (state) courts Link with the field of construction products If there is a civil lawsuit regarding the quality or any characteristics of the construction products, the claimant can initiate a civil lawsuit before the district or regional court. Whether district or regional court, it shall be decided by the claimed amount in the lawsuit. If the second instance Building Authority s being an administrative body - decision is not favourable, the judicial review of the said second instance decision may be requested from an administrative court. Against the decision of the administrative court, there a further appeal may be lodged to the regional court of appeal. At this point the decision becomes final if it had not become final earlier. After the regional court of appeal s final decision, in restricted cases, an extraordinary appeal may be filed. This appeal will be adjudged by the Curia. As official documentation, evidence and instrument for substantiation procedures all authorities, argument moderating bodies, appointed or freely chosen courts in various processes (civil, penal, administrative, local, medium or high courts etc.) may and will require DoPs during their practices. 18

19 Context in which these bodies might need access to the DoPs (including reference to rules and examples) As seen before, there are typically two kinds of court procedures: civil lawsuits, in many cases originating out of a faulty product/service; and the revision of administrative decisions. In Hungary, the principle of freedom of proof applies according to Article 3 (5) of the Civil Procedure Act 1. This principle entails that the parties in a trial may refer to all the evidence they can access (the principle of free production of evidence) and that the court must evaluate this evidence freely. The judicial bodies might examine the DoP only if any of the parties refer to it as evidence in court proceedings or arbitration tribunals. Due to the principle of freedom of proof, the judicial bodies will not on their own accord access the DoP if any of the parties does not submit, and refer to, the DoP to the court or the arbitration tribunal. The above rules and principles are followed by all courts, including administrative courts Insurance organisations Role of insurance organisations in the construction products industry According to the Building Act (In Hungarian: Az épített környezet alakításáról és védelméről szóló évi LXXVIII. törvény, see Article 38/D.; link: Experts and architects must have an insurance. Besides these obligatory insurances, all other parties may decide to maintain an insurance, e.g. producers of construction products may also have insurances. 1 In Hungarian: évi III: törvény a polgári perrendtartásról 19

20 Be noted that insurances are probably not as wide-spread in Hungary as in some other Member States of the EU Context in which these organizations might need access to the DoPs Having received also feedback from the construction industry, probably the only context in which insurance companies might need access to the DoPs is when insurance companies evaluate insurance claims and need evidence for determining the possible cause of damage. Since the procedures of insurance companies are rather set by by-laws, policies and contracts, and are therefore not unitary, we will discover the details of these procedures. 3. CHAPTER 3: Electronic/digital provision of the DoPs before administrative and judicial bodies 3.1. Provision of electronic documents to administrative bodies Admissibility of electronic documents (including reference to rules and summary of case examples) - Building Permit Electronic documents are admissible in the building permit procedure pursuant to Article 53/A of the Building Act. The building permit procedure can be initiated online and offline and also personally and also by post. When the request is filed in hard copy (personally or by post), the annexes can be filed electronically (CD, pendrive). When filing personally, the administrative clerk will upload the request and its annexes to the central administration system, named ÉTDR system (see: ). The ÉTDR is an electronic administration and documentation system for the support of building procedures. The system was introduced on 1 January

21 The DoPs form part of the documentation and are filed in the ÉTDR system. Also, the construction code (191/2009. (IX. 15.) Korm. rendelet az építőipari kivitelezésről; link: in 27. section (5) e) requires that all DoPs must be attached to the construction log book as annexes. The construction logs are currently in paper format, the attached DoPs are, as of yet, printed evidences. Since after 1 July 2013 the construction logs will become electronic documentations, the most practical annexes to the electronic logs would be electronic DoPs. The alternative is the simple scanning of the paper DoPs. According to 24. (2) of the building construction code the construction logs serve as primary evidence in all official or judicial processes. There are no related known court decisions relating to the use of the system Weight of admissible electronic documents (including reference to rules and summary of case examples) The electronic documents have the same value as non-electronic ones, since the procedure is electronic but allows some hard copy filing as well. There are no related cases revealed. There are a number of related laws, we could almost say that this area is quite overregulated: évi CXL. törvény (Ket.) a közigazgatási hatósági eljárás és szolgáltatás általános szabályairól: X. fejezet, Elektronikus ügyintézés; link: 83/2012. (IV. 21.) Korm. rendelet a szabályozott elektronikus ügyintézési szolgáltatásokról és az állam által kötelezően nyújtandó szolgáltatásokról; link: 84/2012. (IV. 21.) Korm. rendelet egyes, az elektronikus ügyintézéshez kapcsolódó szervezetek kijelöléséről; link: 85/2012. (IV. 21.) Korm. rendelet az elektronikus ügyintézés részletes szabályairól; link: évi XXXV. törvény az elektronikus aláírásról; link: 78/2010. (III. 25.) Korm. rendelet az elektronikus aláírás közigazgatási használatához kapcsolódó 21

22 követelményekről és az elektronikus kapcsolattartás egyes szabályairól; link: 160/2010. (V. 6.) Korm. rendelet az integrált ügyintézési és tájékoztatási pont kialakításáról, működtetéséről, valamint a működtető és az érintett szervek együttműködésének rendjéről; link: 276/2006. (XII. 23.) Korm. rendelet a Közigazgatási és Elektronikus Közszolgáltatások Központi Hivatala létrehozásáról, feladatairól és hatásköréről; link: 45/2005. (III. 11.) Korm. rendelet a Nemzeti Hírközlési Hatóságnak az elektronikus aláírással kapcsolatos feladat- és hatásköréről, valamint eljárásának részletes szabályairól; link: 335/2005. (XII. 29.) Korm. rendelet a közfeladatot ellátó szervek iratkezelésének általános követelményeiről, link: Authentication and integrity requirements (including those on preservation) Authentication to access ÉTDR online can follow by using the client gateway of the Hungarian Government (in Hungarian: ügyfélkapu, see at or by using secure electronic signature (see in Hungarian: évi XXXV. törvény az elektronikus aláírásról, link: Preservation can be carried out on the storage space of the ÉTDR system. After registration and authentication, all users are assigned a unique storage space in ÉTDR where the documents related to the official filings can be stored. It is also possible to upload the filed from the storage space to the filing system. Besides the request and its annexes, there are other documents that can be stored here: official opinions of technical authorities and other related documents. The storage space can be shared with third persons or even with the Building Authority and technical authorities (e.g. water, sewage, Fire Department). The construction logs must be safeguarded until the end of the guarantee period of the building (up to 35 years). The electronic logs are going to be officially archived. File preservation can be certainly carried out individually as well. 22

23 3.2. Provision of electronic documents to judicial bodies Admissibility of electronic/digital evidence (including reference to rules and summary of case examples) - Civil Law Claims Since 1 January 2013, electronic documents are in civil court procedures admissible with certain restrictions (see Article 394/B of the Civil Procedure Act, link: Electronic procedure is only available for cases that are initiated at regional courts on first instance, practically, as far as civil claims go, this means that the claimed amount has to be at least 30 Million HUF (ca. EUR ) which is in many cases fulfilled when it comes to construction product related claims or e.g. the claim has to relate to international transport. Authentication follows and documents can be filed using the client gateway of the Hungarian Government (in Hungarian: ügyfélkapu). There are obligatory forms to be used for filings, however, the annexes an be in the following file format: doc, odt, pdf. All enclosed files need further legalization and authentication, via a secure digital signature, hence the after legalization, the new file formats can be es2 or dosszie or electronically signed pdf (PAdES) files and these can be ultimately filed as enclosures. - Judicial Revision of Administrative Decisions Unfortunately the judicial review of second instance building permit related administrative decisions is not an electronic procedure. Accordingly, the administrative court adjudging an appeal against the decision of a second instance Building Authority, cannot accept electronic or digital evidence (neither on CD). As a consequence, when it comes to filing/proving the content of a DoP, it has to be filed in hard copy as the rest of the documents. Since the electronic civil procedure is very new in Hungary, hopefully, after an intermediary period, it will be introduced also to administrative court procedures. 23

24 Weight of admissible electronic/digital evidence (including reference to rules and summary of case examples) The electronic documents have the same value as non-electronic ones Authentication and integrity requirements (including those on preservation) Authentication follows and documents can be filed using the client gateway of the Hungarian Government (in Hungarian: ügyfélkapu). Preservation can be carried individually, e.g. by using commercial service providers related to the secure electronic signature; this way saving and archiving the electronically legalized filings and enclosures. Unfortunately the storage space on the gateway of the Hungarian Government (in Hungarian: ügyfélkapu) has very limited storage capacity and is in practice not satisfactory for preserving documents. 4. CHAPTER 4: Case Study CASE STUDY Manufacturers X and Z have supplied with the construction products the reference number for the DoPs and the Internet address ( Website ) where the DoPs can be found. Manufacturer Y has placed on the construction products QR codes that contain the content of the DoP and Website where the DoPs can also be found. The Builder goes to the Websites of Manufactures X and Z, inputs the reference number for the DoP on the Website and a DoP appears. It can be downloaded the form of PDF or similar files, is readable and contains the information required by the CPR. The Builder downloads the DoPs onto his computer and archives it. The Builder uses his smartphone to read Manufacturer Y s QR Codes, enabling him to view the DoPs contents. He downloads the DoPs contents onto his smartphone. The information contained in the QR Codes is readable and reflect the information required by the CPR. 24

25 Hypothesis 1 A couple of years later a claim is brought up having a bearing with the factual performance of a construction product. The Builder seeks to produce a digital medium (memory stick, cd, smartphone) containing the content of the relevant DoPs (bearing in mind that for a building there might by hundreds of DoPs) before a court (administrative or civil). Question: What type of digital medium, if any, is accepted by the Courts to be used in Court? Answer: In court procedures about civil law claims exceeding HUF 30 Million or otherwise falling into the competence of the regional courts on first instance electronic files are filed by the attorney at law after legalization, authorization of the attorney at law. The file formats accepted are pdf, doc and odt. The method of filing is online. No electronic procedure is available in other court procedures: e.g. civil law claims under HUF 30 M or otherwise initiated before a district court or judicial review procedures of administrative decisions by administrative court. In this case the DoPs have to be printed and filed in hard copy. Question: Would the content of the digital medium produced be accepted as evidence of the DoPs (please describe in detail in which circumstances and under which conditions (citing relevant rules or case examples), if any, the digital medium would or would not be accepted as evidence)? Answer: Electronic filing would be accepted when the regional courts proceed on first instance, e.g. when the claimed amount is at least 30 Million HUF (ca. EUR ) in a civil law lawsuit or it is related to international transport. 25

26 Other digital medium such as CD-ROMs, DVDs, CD-ROMs, USB-sticks, magnet discs are not accepted. In other procedures, no digital medium is accepted. Question: Would the content of the digital medium produced be accepted as evidence of the content of the DoPs (please describe in detail in which circumstances and under which conditions (citing relevant rules or case examples), if any, the digital medium would or would not be accepted as evidence of the content of the DoPs)? Answer: If the procedure is using the electronic means, e-filing, then the digital files (in pdf or similar format) may be filed with the court. In this case they would be accepted as evidence. If the counterpart does not contest the evidence, it would be accepted by the court. Question: Would this be given the same weight as other types of evidence? Answer: It depends, if it is contested then not. If contested, probably the judge would rather believe a legalized document or a witness statement contradicting the version of the DoP filed by one of the parties. However, it is the court who decides and weighs evidences and the DoP may be accepted as evidence even without legalization (as a simple hard copy or copy of the original DoP). Question: Would the Court accept the DoP information from the Websites as evidence of the DoPs (please describe in detail in which circumstances and under which conditions (citing relevant rules or case examples), if any, the Website addresses would or would not be accepted as evidence of the DoPs)? 26