# C_2023205EN.01000401.xml

| 12.6.2023 | EN | Official Journal of the European Union | C 205/4 |
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12.6.2023

EN

Official Journal of the European Union

C 205/4

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Judgment of the Court (Fifth Chamber) of 20 April 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — DIGI Communications NV v Nemzeti Média- és Hírközlési Hatóság Hivatala

(Case C-329/21, (1) DIGI Communications)

(Reference for a preliminary ruling - Telecommunications - Electronic communications networks and services - Directive 2002/21/EC (Framework Directive) - Article 4(1) - Directive 2002/20/EC (Authorisation Directive) - Article 7 - Award of rights to use frequencies - Auction procedure - Holding company not registered as a provider of electronic communications services in the Member State concerned - Exclusion from the award procedure - Right of appeal against the award decision)

(2023/C 205/05)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: DIGI Communications NV

Defendant: Nemzeti Média- és Hírközlési Hatóság Hivatala

Intervening party: Magyar Telekom Nyrt.

Operative part of the judgment

| 1. | Article 7 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, 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 selection procedure for the award of rights to use frequencies and the award decision resulting from that procedure are intended to promote and develop effective and undistorted competition, while respecting the principles of equal treatment and proportionality; |
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1.

Article 7 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, 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 selection procedure for the award of rights to use frequencies and the award decision resulting from that procedure are intended to promote and develop effective and undistorted competition, while respecting the principles of equal treatment and proportionality;

| — | the fact that such a procedure includes a stage for examining whether any applications comply with the relevant tender specifications is not contrary to that objective, provided that that procedure, taken as a whole, complies with the requirements and conditions laid down in Article 7 of Directive 2002/20, as amended by Directive 2009/140. |
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the fact that such a procedure includes a stage for examining whether any applications comply with the relevant tender specifications is not contrary to that objective, provided that that procedure, taken as a whole, complies with the requirements and conditions laid down in Article 7 of Directive 2002/20, as amended by Directive 2009/140.

| 2. | Article 4(1) 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, as amended by Directive 2009/140, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,
  must be interpreted as conferring a right of appeal on an undertaking:






  — | which participated, as an applicant, in an auction procedure in the electronic communications sector, conducted by the national regulatory authority of a Member State other than that in which that undertaking is established and carries out its operations, |
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2.

Article 4(1) 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, as amended by Directive 2009/140, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as conferring a right of appeal on an undertaking:

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which participated, as an applicant, in an auction procedure in the electronic communications sector, conducted by the national regulatory authority of a Member State other than that in which that undertaking is established and carries out its operations,

| — | which does not itself provide an electronic communications service on the market of the Member State concerned by that procedure, but fulfils the objective conditions to which the general authorisation, referred to in Article 3(2) of Directive 2002/20, as amended by Directive 2009/140, is subject in that Member State, irrespective of whether it controls, as the case may be, another undertaking which is present on that market, and |
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which does not itself provide an electronic communications service on the market of the Member State concerned by that procedure, but fulfils the objective conditions to which the general authorisation, referred to in Article 3(2) of Directive 2002/20, as amended by Directive 2009/140, is subject in that Member State, irrespective of whether it controls, as the case may be, another undertaking which is present on that market, and

| — | which was the subject of a decision of the national regulatory authority refusing to register its application in the context of that procedure on the ground that it does not satisfy the necessary conditions, that decision having become final following a judicial decision dismissing an action brought against that decision,
  in order to challenge the subsequent decision by which the national regulatory authority in question awarded the contract concerned by the auction procedure to third parties, provided that the appeal brought by that undertaking does not undermine the force of res judicata attaching to the aforementioned judicial decision. |
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which was the subject of a decision of the national regulatory authority refusing to register its application in the context of that procedure on the ground that it does not satisfy the necessary conditions, that decision having become final following a judicial decision dismissing an action brought against that decision,

in order to challenge the subsequent decision by which the national regulatory authority in question awarded the contract concerned by the auction procedure to third parties, provided that the appeal brought by that undertaking does not undermine the force of res judicata attaching to the aforementioned judicial decision.

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(1)  OJ C 357, 6.9.2021.

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