# C_2021357EN.01000601.xml

| 6.9.2021 | EN | Official Journal of the European Union | C 357/6 |
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6.9.2021

EN

Official Journal of the European Union

C 357/6

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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 26 May 2021 — DIGI Communications NV v Nemzeti Média- és Hírközlési Hatóság Hivatala

(Case C-329/21)

(2021/C 357/08)

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

Intervener: Magyar Telekom Nyrt.

Questions referred

| 1. | 1.1 | Can an undertaking be considered a competitor of the undertakings to which a decision of a national regulatory authority falling within the terms of 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 (Framework Directive) (1) is addressed, where the undertaking in question is registered and operates in another Member State and does not itself provide electronic communications services in the market to which the decision refers, but an undertaking under its direct control is present in the relevant market as a service provider and competes in that market with the undertakings to which the decision is addressed? |
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1.

1.1

Can an undertaking be considered a competitor of the undertakings to which a decision of a national regulatory authority falling within the terms of 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 (Framework Directive) (1) is addressed, where the undertaking in question is registered and operates in another Member State and does not itself provide electronic communications services in the market to which the decision refers, but an undertaking under its direct control is present in the relevant market as a service provider and competes in that market with the undertakings to which the decision is addressed?

| 1.2 | In order to reply to question 1.1, is it necessary to examine whether the parent company that wishes to bring the action forms an economic unit with the undertaking under its control which is present as a competitor in the relevant market? |
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1.2

In order to reply to question 1.1, is it necessary to examine whether the parent company that wishes to bring the action forms an economic unit with the undertaking under its control which is present as a competitor in the relevant market?

| 2. | 2.1 | Is an auction of rights to use radio frequencies for additional wireless broadband services in support of the roll-out of 5G conducted by a national regulatory authority, falling within the terms of Article 4(1) of the framework directive and 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 (Authorisation Directive), (2) a procedure intended to safeguard competition? Must the decision of the national regulatory authority announcing the outcome of the auction procedure also be considered a procedure intended to safeguard competition in that regard? |
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2.

2.1

Is an auction of rights to use radio frequencies for additional wireless broadband services in support of the roll-out of 5G conducted by a national regulatory authority, falling within the terms of Article 4(1) of the framework directive and 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 (Authorisation Directive), (2) a procedure intended to safeguard competition? Must the decision of the national regulatory authority announcing the outcome of the auction procedure also be considered a procedure intended to safeguard competition in that regard?

| 2.2 | If the reply from the Court of Justice to question 2.1 is in the affirmative, is the decision’s objective of safeguarding competition affected by the fact that, in a final decision contained in a separate ruling, the national regulatory authority refused to register the bid submitted by the undertaking that is bringing an action, with the result that that undertaking was unable to take part in the auction procedure and was therefore not an addressee of the decision that determined the outcome of that procedure? |
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2.2

If the reply from the Court of Justice to question 2.1 is in the affirmative, is the decision’s objective of safeguarding competition affected by the fact that, in a final decision contained in a separate ruling, the national regulatory authority refused to register the bid submitted by the undertaking that is bringing an action, with the result that that undertaking was unable to take part in the auction procedure and was therefore not an addressee of the decision that determined the outcome of that procedure?

| 3. | 3.1 | Must Article 4(1) of the framework directive, in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as conferring a right of appeal against a decision by a national regulatory authority on an undertaking only where the position of that undertaking in the market:






  (a) | is directly and genuinely affected by the decision; or |
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3.

3.1

Must Article 4(1) of the framework directive, in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as conferring a right of appeal against a decision by a national regulatory authority on an undertaking only where the position of that undertaking in the market:

(a)

is directly and genuinely affected by the decision; or

| (b) | is shown to be highly likely to be affected by the decision; or |
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(b)

is shown to be highly likely to be affected by the decision; or

| (c) | may be directly or indirectly affected by the decision? |
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(c)

may be directly or indirectly affected by the decision?

| 3.2 | Is the fact that the undertaking submitted a bid in the auction procedure, that is to say, that it wished to take part in the procedure but was unable to do so because it did not satisfy the requirements, in itself proof of the effect referred to in question 3.1, or can the court legitimately require the undertaking also to furnish evidence to show that it is affected by the decision? |
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3.2

Is the fact that the undertaking submitted a bid in the auction procedure, that is to say, that it wished to take part in the procedure but was unable to do so because it did not satisfy the requirements, in itself proof of the effect referred to in question 3.1, or can the court legitimately require the undertaking also to furnish evidence to show that it is affected by the decision?

| 4. | In the light of the replies to questions 1 to 3, must Article 4(1) of the framework directive, in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that an undertaking is an electronic communications provider affected by a decision of the national regulatory authority announcing the outcome of an auction of rights to use radio frequencies for additional wireless broadband services in support of the roll-out of 5G, and therefore has a right of appeal, where that undertaking:






  — | does not carry on an economic activity involving the provision of services in the relevant market, but directly controls an undertaking that provides electronic communications services in that market; and |
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4.

In the light of the replies to questions 1 to 3, must Article 4(1) of the framework directive, in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that an undertaking is an electronic communications provider affected by a decision of the national regulatory authority announcing the outcome of an auction of rights to use radio frequencies for additional wireless broadband services in support of the roll-out of 5G, and therefore has a right of appeal, where that undertaking:

—

does not carry on an economic activity involving the provision of services in the relevant market, but directly controls an undertaking that provides electronic communications services in that market; and

| — | was denied registration in the auction procedure by a final decision of the national regulatory authority before the decision on the outcome of the contested auction procedure was adopted, thus preventing the undertaking from subsequently taking part in the procedure? |
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was denied registration in the auction procedure by a final decision of the national regulatory authority before the decision on the outcome of the contested auction procedure was adopted, thus preventing the undertaking from subsequently taking part in the procedure?

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(1)  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).

(2)  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) (OJ 2002 L 108, p. 21).

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