# C_2014194EN.01000302.xml

| 24.6.2014 | EN | Official Journal of the European Union | C 194/3 |
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24.6.2014

EN

Official Journal of the European Union

C 194/3

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Judgment of the Court (Second Chamber) of 30 April 2014 (request for a preliminary ruling from the Fővárosi Törvényszék (formerly Fővárosi Bíróság) — Hungary) — UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

(Case C-475/12) (1)

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((Telecommunications sector - Electronic communications networks and services - Freedom to provide services - Article 56 TFEU - Directive 2002/21/EC - Cross-border provision of a package of radio and television programmes - Conditional access - Competence of the national regulatory authorities - Registration - Requirement of establishment))

2014/C 194/04

Language of the case: Hungarian

Referring court

Referring court

Fővárosi Törvényszék (formerly Fővárosi Bíróság)

Parties to the main proceedings

Parties to the main proceedings

Applicant: UPC DTH Sàrl

Applicant:

Defendant: Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

Defendant:

Re:

Re:

Request for a preliminary ruling — Fővárosi Törvényszék (formerly Fővárosi Bíróság) — Interpretation of Article 56 TFEU and Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37) — Company established in a Member State engaged in the marketing of a package of radio and television broadcast services by satellite and supplying services to customers established in other Member States of the Union — National legislation of the Member State of the recipients of the service which allows it to be supplied only to undertakings established on its territory — Competence of the national regulatory authorities of the Member State of the recipients of the supply

Operative part of the judgment

Operative part of the judgment

| 1) | Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite falls within the definition of ‘electronic communications service’ within the meaning of that provision.
  The fact that that service includes a conditional access system within the meaning of Article 2(ea) and (f) of Directive 2002/21, as amended by Directive 2009/140, is irrelevant in that regard.
  An operator supplying a service such as that at issue in the main proceedings must be regarded as a provider of electronic communications services under Directive 2002/21, as amended by Directive 2009/140. |
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1)

Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite falls within the definition of ‘electronic communications service’ within the meaning of that provision.

The fact that that service includes a conditional access system within the meaning of Article 2(ea) and (f) of Directive 2002/21, as amended by Directive 2009/140, is irrelevant in that regard.

An operator supplying a service such as that at issue in the main proceedings must be regarded as a provider of electronic communications services under Directive 2002/21, as amended by Directive 2009/140.

| 2) | In circumstances such as those at issue in the main proceedings, a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services and is retransmitted by satellite constitutes a provision of services for the purposes of Article 56 TFEU. |
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2)

In circumstances such as those at issue in the main proceedings, a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services and is retransmitted by satellite constitutes a provision of services for the purposes of Article 56 TFEU.

| 3) | Surveillance proceedings relating to electronic communications services, such as that at issue in the main proceedings, will be subject to the authorities of the Member State in which the recipients of those services are resident. |
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3)

Surveillance proceedings relating to electronic communications services, such as that at issue in the main proceedings, will be subject to the authorities of the Member State in which the recipients of those services are resident.

| 4) | Article 56 TFEU must be interpreted as meaning that:






  — | Member States are not precluded from requiring undertakings which supply electronic communications services, such as that at issue in the main proceedings, in their territory to register those services, provided that Member States act in compliance with the requirements set out in Article 3 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140; and |
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4)

Article 56 TFEU must be interpreted as meaning that:

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Member States are not precluded from requiring undertakings which supply electronic communications services, such as that at issue in the main proceedings, in their territory to register those services, provided that Member States act in compliance with the requirements set out in Article 3 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140; and

| — | on the other hand, undertakings wishing to supply electronic communications services, such as that at issue in the main proceedings, in a Member State other than that in which they are established cannot be required to establish in that State a branch or a legal entity separate from that located in the Member State of transmission. |
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on the other hand, undertakings wishing to supply electronic communications services, such as that at issue in the main proceedings, in a Member State other than that in which they are established cannot be required to establish in that State a branch or a legal entity separate from that located in the Member State of transmission.

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(1)  OJ C 26, 26.1.2013.

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