Opinion of the Advocate General — ECLI:EU:C:2026:96
Date: 2026-02-12
Language of the case: Hungarian

Summary C-658/24 – 1 
Case C-658/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 October 2024 
Referring court: 
Győri Törvényszék (Győr High Court, Hungary) 
Date of the decision to refer: 
23 September 2024 
Applicant: 
Penny Market Kft. 
Defendant: 
Komárom-Esztergom Vármegyei Kormányhivatal (Komárom-
Esztergom County Government Office) 
  
Subject matter of the main proceedings 
Judicial review proceedings seeking the annulment of a decision imposing a fine 
in relation to consumer protection. 
Subject matter and legal basis of the request 
Conformity with Articles 49 and 56 TFEU, read together with Article 16(1) of 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market, and with Regulation (EU) 
No 1308/2013 of the European Parliament and of the Council of 17 December 
2013 establishing a common organisation of the markets in agricultural products 
and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) 
No 1037/2001 and (EC) No 1234/2007 (‘the CMO Regulation’), of national 
legislation which, invoking a situation of emergency, obliges retailers in the food 
sector with an annual turnover in excess of HUF 1 000 million to apply, in respect 
of certain categories of products, for a specified period of time, a gross retail sale 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/24 
 
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price lower, by at least 15 %, than the lowest gross retail sale price they have 
applied in the preceding thirty days and which, where that obligation is not 
complied with, requires a fine to be levied. 
Legal basis of the request for a preliminary ruling: Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Must Articles 49 and 56 TFEU, together with Article 16(1) of Directive 
2006/123/EC on services in the internal market, be interpreted as permitting 
national legislation which, invoking a situation of emergency, obliges 
exclusively retailers in the food sector with an annual turnover in excess of 
HUF 1 000 million to apply, in respect of certain categories of products, for 
a specified period of time, a gross retail sale price lower, by at least 15 %, 
than the lowest gross retail sale price they have applied in the preceding 
thirty days and which, where that obligation is not complied with, provides 
that a fine should be levied on a mandatory basis? 
2. Must Regulation (EU) No 1308/2013 of the European Parliament and of the 
Council of 17 December 2013 establishing a common organisation of the 
markets in agricultural products and repealing Council Regulations (EEC) 
No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 
be interpreted as permitting national legislation which, invoking a situation 
of emergency, obliges exclusively retailers in the food sector with an annual 
turnover in excess of HUF 1 000 million to apply, in respect of certain 
categories of products, for a specified period of time, a gross retail sale price 
lower, by at least 15 %, than the lowest gross retail sale price they have 
applied in the preceding thirty days and which, where that obligation is not 
complied with, provides that a fine should be levied on a mandatory basis? 
Provisions of European Union law relied on 
– Articles 49 and 56 TFEU 
– Recital 172 and Articles 83(5) and 219(1) of the CMO Regulation 
– Article 16(1) of Directive 2006/123/EC on services in the internal market 
Provisions of national law relied on 
– A védelmi és biztonsági tevékenységek összehangolásáról szóló 2021. évi 
XCIII. törvény (Law XCIII of 2021 on the coordination of defence and security 
activities), Paragraphs 80 and 81(1) 
– A háborús élelmiszerár-infláció csökkentése érdekében szükséges 
intézkedésekről szóló 162/2023. (V. 5.) Korm. rendelet (Government Decree 
PENNY MARKET 
 
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162/2023 of 5 May on measures necessary to reduce food price inflation in a 
context of war; ‘the Government Decree’) 
Paragraph 1(2)(2) of the Government Decree: 
‘[For the purposes of this decree,] the term ‘trader’ shall mean a trader whose 
principal activity is classified as ‘4711 – Retail sale in non-specialised stores with 
food, beverages or tobacco predominating’ in the statistical classification of 
economic activities and whose net turnover, in accordance with A 
kiskereskedelmi adóról szóló 2020. évi XLV. törvény (Law XLV of 2020 on tax 
on the retail trade) exceeded HUF 1 000 million in 2021.’ 
Paragraph 2(1) to (2a) of the Government Decree: 
‘(1) With regard to products in the categories listed in Annex 1 (‘product 
categories with a mandatory discount’) and the groups of products listed in 
Annex 2, traders shall, from 1 June 2023 to 30 June 2024, be obliged to apply a 
price reduction – in all stores (or, in the case of distance selling, on each platform 
on which that activity is carried on). 
(2) In the case of the product categories listed in Annex 1, for the duration of the 
price reduction described in subparagraph 1, traders shall – in the promotional 
period and, from the end of that period, recurrently – in respect of at least one 
product, to be chosen by the trader in each promotional period from each of the 
product categories with a mandatory discount (‘discounted product’), apply a 
gross retail sale price lower, by at least 15 %, than the lowest gross retail sale 
price which they have applied in the thirty days prior to the price reduction 
applied in respect of a given product (‘promotional price’). 
(2a) From 1 August 2023 to 30 June 2024, traders, in addition to applying 
promotional prices in accordance with subparagraph 2, shall, in respect of other 
products from at least two (to be chosen by the trader) of the groups of products 
listed in Annex 2 – in the promotional period and, from the end of that period, 
recurrently – apply a gross retail sale price lower, by at least 15 %, than the 
purchase price.’ 
Paragraph 3(1) of the Government Decree: 
‘Traders shall be obliged 
(a) to trade in the discounted products and 
(b) to put on sale, on a daily basis, at least the average quantity of such 
products sold daily in 2022, such that the needs of customers are met at 
all times.’ 
Paragraph 3/A(1) of the Government Decree: 
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‘Traders shall be obliged 
(a) to trade in those products listed in Annex 2 which they traded in at 
1 June 2023; 
(b) to put on sale, on a daily basis, at least the average quantity of such 
products sold daily in 2022; 
(c) to ensure [sufficient] stocks of the above-mentioned products – where 
necessary, up to double the quantity referred to in point (b) – and that a 
sufficient quantity of them is offered to customers in order to meet 
their needs at all times, avoiding shortages.’ 
Paragraph 5(2) of the Government Decree: 
‘If, when carrying out its checks, the authority discovers that the obligations laid 
down in this decree have not been complied with … 
[…] 
(d) in the event of non-compliance with the obligations laid down in 
Paragraphs 3 and 3/A, 
(da) it shall levy a fine of HUF 500 000, if the shortage does not 
exceed 10 % in each category or group of products; 
(db) it shall levy a fine of HUF 1 million, if the shortage exceeds 
10 % but does not exceed 50 % in each category or group of 
products; 
(dc) it shall levy a find of HUF 2 million, if the shortage exceeds 
50 % in each category or group of products, or, in addition, if the 
trader has not complied with its obligation to meet the needs of 
its customers at all times; 
(e) it may order the trader to cease, temporarily, its activity at the store … 
affected by the infringement, for a period of no less than one day and 
no more than six months.’ 
Annex 1 to the Government Decree lists twenty categories of products with a 
mandatory discount, which include the following: poultry; pork and beef and other 
varieties of meat; meat products; milk; dairy products; bread; pastries; dried pasta; 
flour, sugar; fresh vegetables; fresh fruit; fruit and vegetable juices; prepared 
dishes, spices, condiments; coffee, tea; mineral waters and soft drinks. 
Annex 2 to the Government Decree contains a list of eight groups of products at a 
reduced price, which are essentially the same as the products subject to regulated 
prices that form the subject matter of the case SPAR Magyarország (C-557/23). 
PENNY MARKET 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By a decision of 27 March 2024, the defendant authority issued the applicant [a 
branch of Penny Market in Tatabánya (Hungary)] with a consumer protection fine 
of HUF 4 million, because, during an on-the-spot check, it found that two 
discounted products (apples and a cola drink in a 0.33 litre container) had not been 
put on sale in the store and that, on the day of the check, no sale of those products 
had been made, such that the applicant had infringed Paragraph 3(1) of the 
Government Decree. 
2 With regard to the apples, the applicant claims that there were delays on the part 
of the suppliers and that, on the day of the check, the average quantity of that 
product sold daily in 2022 was sold. It submits that the defendant should have 
examined the sales for the entire day and should not have based its conclusions on 
a particular point in time. It notes that, in the category of mineral waters and soft 
drinks, there was a replacement product available to consumers. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 On 24 May 2022, the Hungarian Government declared a state of emergency – 
which remains in force – in view of the war in Ukraine. In the context of that 
special legal regime, the Government passed the Government Decree, which 
entered into force on 6 May 2023, in order to deal with the high rate of inflation 
caused by the war. 
4 According to the referring court, the legislation at issue restricts the freedom to 
provide services. First of all, the provisions relating to the freedom to provide 
services are applicable, since, on the one hand, the activity carried on by the 
applicant – the retail sale of food – is an activity of a commercial character within 
the meaning of Article 57 TFEU, second paragraph, point (b). On the other hand, 
Article 56, first paragraph, could apply, since the applicant belongs to the German 
group REWE and, therefore, its owners are not established in the same Member 
State (Hungary) as the persons for whom its services are intended. 
5 The legislation at issue clearly restricts the freedom to provide services, since 
traders whose businesses do not have Hungarian owners cannot freely determine 
the price of certain products, but rather the Government Decree obliges them to 
apply a predetermined gross retail sale price. Consequently, the conditions under 
which the service is provided are not the same for [those owners] in the different 
Member States of the European Union. The provision of the service in Hungary 
obliges them to incur additional costs and to adapt, on a mandatory basis, to the 
Hungarian legislation. The Government Decree sanctions the infringement of that 
legislation with a fine of several million forints for each product. 
6 With regard to the restriction on the freedom to provide services, the referring 
court makes reference to the judgments of 30 May 2024, Amazon Services Europe 
(C-665/22), paragraph 58, and of 2 March 2023, Recreatieprojecten Zeeland and 
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Others (C-695/21), paragraph 18. It also notes the following case-law of the Court 
of Justice of the European Union regarding the freedom to provide services: 
judgments of 31 March 1993, Kraus (C-19/92), paragraph 32; of 3 March 2020, 
Google Ireland (C-482/18), paragraph 26; of 18 June 2019, Austria v Germany 
(C-591/17), paragraph 139; and of 3 December 2020, BONVER WIN (C-311/19), 
paragraph 18. 
7 Freedom of establishment may also apply in the present case, since it concerns the 
pursuit of activities on a self-employed basis. 
8 Moreover, the legislation at issue infringes the principle of non-discrimination 
established in Article 16(1)(a) of Directive 2006/123. The Government Decree 
affects traders whose net turnover exceeded HUF 1 000 million in 2021. While the 
above-mentioned requirement does not, at first glance, imply discrimination with 
regard to nationality or the Member State of establishment, it results in indirect 
discrimination, since the companies involved in the retail sale of food with a 
turnover of less than HUF 1 000 million are all companies with Hungarian 
owners. However, it is also true that, in 2021, there were traders with a net 
turnover in excess of HUF 1 000 million whose businesses were Hungarian-
owned. In short: all of the traders who were not affected by the restrictive 
provision had Hungarian-owned businesses, while the provision in question 
concerned all traders whose businesses were not Hungarian-owned. 
9 The requirement relating to continuity also gives rise to indirect discrimination, 
because the Government Decree requires the needs of customers to be met at all 
times, which, in the case-law, is interpreted to mean that the daily quantity of the 
discounted products prescribed by that decree must be present in the sales area of 
the store at all times and continuously, and that delays and problems caused by 
suppliers do not constitute exempting circumstances. That requirement is, 
therefore, much more disadvantageous for traders whose businesses do not have 
Hungarian owners than it is for those [whose businesses] are Hungarian-owned, 
because the former have many more non-Hungarian suppliers and cannot react so 
easily to problems created by those suppliers. Failure to comply with the 
requirement relating to continuity is reflected in both the number and in the 
amounts of the fines levied: fines are levied more often on traders whose 
businesses are not Hungarian-owned and the amounts of those fines greatly 
exceed those of the fines levied on Hungarian-owned companies. 
10 Furthermore, according to the referring court, the application of the legislation at 
issue gives rise to indirect discrimination, because the authorities responsible for 
consumer protection only check and sanction the stores of traders whose 
businesses are not Hungarian-owned, while, in the case of traders whose 
businesses are Hungarian-owned, either [their stores] are not subjected to such 
checks or the checks are of little significance or conclude without any sanction 
being imposed. 
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11 Regarding the possibility of the restriction being justified, the referring court 
refers to the case-law of the Court of Justice, which indicates that national 
measures liable to hinder or make less attractive the exercise of fundamental 
freedoms guaranteed by the Treaty must fulfil four conditions: they must be 
applied in a non-discriminatory manner; they must be justified by imperative 
requirements in the general interest; they must be suitable for securing the 
attainment of the objective which they pursue; and they must not go beyond what 
is necessary in order to attain it. 
12 With regard to imperative requirements in the general interest, the referring court 
observes that the imposition of mandatory discounts has nothing to do with the 
prevention, management or elimination of the event that triggered the state of 
emergency, which could constitute a legitimate objective in accordance with Law 
XCIII of 2021 on the coordination of defence and security activities, since the 
armed conflict in Ukraine can neither be managed nor eliminated by allowing 
customers to purchase certain products (for examples, the apples and soft drinks at 
issue in these proceedings) in the shops at reduced prices. 
13 The above-mentioned law also mentions the prevention or elimination of the 
adverse effects of the event that triggered the state of emergency as a legitimate 
aim, which, where applicable, could be a valid imperative requirement in the 
general interest, if the purpose of the Government Decree is to prevent or 
eliminate a strong inflationary effect. Inflation did indeed trend downwards after 
the introduction of the mandatory discounts. Nevertheless, it has not been proven 
that that was due solely to the introduction of those discounts, nor, alternatively, to 
products being put on sale at regulated prices, [a system that was] in force until 
1 August 2023. 
14 The referring court casts doubt on the suitability of the legislation at issue for 
attaining the [stated] objective (lowering inflation), since that legislation would 
have been suitable for attaining such an objective [only] if all members of the 
population had benefited equally from the advantages offered by the mandatory 
discounts. However, that is not what happened, because there are towns (usually 
the smallest) in which there are only shops run by traders with a turnover of less 
than HUF 1 000 million, to which the legislation at issue does not apply. 
Therefore, the inhabitants of the smallest towns, who are the most exposed to 
inflationary pressures, could not benefit from the advantages offered by that 
legislation, unless they travelled to a town in which there was a shop run by a 
trader with a net turnover in excess of HUF 1 000 million. 
15 With the legislation at issue, the legislature also went beyond what was necessary 
to attain the objective pursued, since it also included non-basic foods in the scope 
of the mandatory discounts (for example, yoghurt, pastries, cheese, fruit juices, 
vegetable juices, prepared dishes, spices, condiments, coffee, tea, mineral waters 
and soft drinks), for which the introduction of reduced prices was not justified. 
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16 With regard to the CMO Regulation, the referring court – citing paragraphs 35 to 
37 of the judgment of 11 March 2021, Commission v Hungary (Profit margins) 
(C-400/19) – observes that the Government Decree is incompatible with fair 
competition, which is one of the components of the CMO Regulation, because the 
obligation to put certain agricultural products on sale at mandated lower retail 
prices and, moreover, in particular quantities prevents traders from determining, 
freely, on the basis of financial considerations based on fair competition, their sale 
prices and the quantities they wish to sell. 
17 With regard to the justification of the provisions that deviate from the objectives 
of the CMO Regulation, the referring court proposes, in essence, to apply, mutatis 
mutandis, paragraphs 46 and 47 of the judgment of 12 September 2024, SPAR 
Magyarország (C-557/23), in the event that the disturbance of the supply chain 
goes beyond what is necessary to attain the objectives pursued by the Government 
Decree.