Opinion of the Advocate General — ECLI:EU:C:2022:822
Date: 2022-10-20
Language of the case: Hungarian
Subject matter: Telecommunications;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-329/21 – 1 
Case C-329/21 
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: 
26 May 2021 
Referring court:  
Fővárosi Törvényszék (Budapest High Court, Hungary) 
Date of the decision to refer: 
18 May 2021 
Applicant:  
DIGI Communications NV 
Defendant:  
Nemzeti Média- és Hírközlési Hatóság Hivatala (Office of the 
National Media and Communications Authority, Hungary) 
  
Subject matter of the main proceedings 
Administrative-law action in the field of communications 
Subject matter and legal basis of the request for a preliminary ruling 
In the main proceedings, the preliminary question that arises is whether the 
applicant has the right of appeal provided for in Article 4(1) of Directive 
2002/21/EC against the decision announcing the outcome of the auction procedure 
when it is not an addressee of that decision. The purpose of the request is to 
determine whether the applicant is a competitor of the addressees or an 
undertaking affected by the decision. 
The legal basis for the request is Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-329/21 
 
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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) 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? 
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), 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? 
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 
DIGI COMMUNICATIONS 
 
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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? 
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 
– 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?’ 
Provisions of EU law relied upon 
– Articles 4(1) and 8(2) 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). 
– 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). 
– Article 47 of the Charter of Fundamental Rights of the European Union. 
Provisions of national law relied upon 
Law I of 2017 on the Code on Administrative Litigation 
‘Article 17 The following shall have the right to institute an action: 
a) any person whose right or legitimate interest is directly affected by the 
administrative activity’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-329/21 
 
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‘Article 88 [Dismissing the claim] 
(1) The court shall dismiss the claim if 
[…] 
b) the applicant cannot be held to have suffered a direct injury to a right or 
legitimate interest.’ 
Case-law relied upon 
– Judgment of 21 February 2008, Tele2 Telecommunication (C-426/05, 
EU:C:2008:103). 
– Judgment of 24 April 2018, Arcor (C-55/06, EU:C:2008:244). 
– Judgment of 22 January 2015, T-Mobile Austria (C-282/13, EU:C:2015:24). 
– Judgment of 19 May 2009, Assitur (C-538/07, EU:C:2009:317). 
– Judgment of 17 May 2018, Specializuotas transportas 
(C-531/16,EU:C:2018:324). 
– Judgment of 27 April 2017, Akzo Nobel and Others v Commission 
(C-516/15 P, EU:C:2017:314). 
Brief description of the facts and the main proceedings 
1 On 18 July 2019 the Nemzeti Média- és Hírközlési Hatóság (National Media and 
Communications Authority, ‘the Authority’) launched a procedure to auction 
rights to use radio frequencies for additional wireless broadband services in 
support of the roll-out of 5G (‘the Auction Procedure’) and published the 
documentation containing the detailed rules for the auction (‘the Documentation’). 
2 DIGI Communications NV (‘the applicant’) is a commercial holding company 
registered in the Netherlands which is not registered as an electronic 
communications services provider in Hungary. The applicant applied to take part 
in the Auction Procedure, but its application was declared formally invalid by the 
Authority on the grounds that the applicant had abused its right to take part in the 
Auction Procedure, engaged in conduct designed to evade the procedure, and 
sought to deceive the Authority. The Authority considered that the applicant had 
submitted an application purely because, if DIGI Távközlési és Szolgáltató 
Korlátolt Felelősségű Társaság (‘DIGI Kft’) – an undertaking under its control 
which is registered in Hungary and provides electronic communications services 
in that country – had applied, it would have been excluded under the rules in the 
Documentation. For this reason, by a final decision the Authority refused to allow 
the applicant to register for the auction and concluded that the applicant had 
DIGI COMMUNICATIONS 
 
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forfeited its status as a party to the Auction Procedure. The applicant lodged an 
action against this decision, but its action was dismissed at first instance by the 
referring court and at second instance, in a final judgment, by the Kúria (Supreme 
Court). 
3 The applicant commenced an administrative-law action for the annulment of the 
decision of the Authority announcing the outcome of the Auction Procedure; the 
action constitutes the main proceedings pending before the referring court. 
Main arguments of the parties to the main proceedings 
4 The applicant maintains that, under Article 4(1) of the framework directive, it has 
standing to bring an action against the decision announcing the outcome of the 
Auction Procedure. In its view, it is an effective competitor of the undertakings 
which acquired rights of use of frequencies in the Auction Procedure given, first, 
that, along with DIGI Kft, it belongs to a group of undertakings that is present in 
the market as a service provider and, secondly, that it sought to take part in the 
Auction Procedure as a potential competitor, as it is entitled to do under the 
fundamental principle of the freedom to provide services. In any event, in its view, 
in order to be recognised as an interested party it is not necessary to be a 
competitor, since it is sufficient for that purpose that its position in the market is 
potentially affected by the Authority’s decision. It maintains that its direct 
legitimate economic interest is affected by the fact that the Authority frustrated its 
participation in the auction on the basis of illegal Documentation and a procedure 
that was contrary to law. It rejects the suggestion that it is required to provide 
evidence to show that its interest has been adversely affected, since the fact that it 
paid the registration fee and submitted a bid demonstrates that it was genuinely 
seeking to obtain the frequencies. In its view, the fact that it was denied 
registration and was not a party to the procedure completely prevented it from 
exercising its right to an effective remedy. Because it was not a party, it also lost 
its right to appeal against the decision that brought the auction procedure to an end 
since, in its view, a legal challenge against the Documentation can only be 
brought in conjunction with a challenge to the decision announcing the conclusion 
of the procedure. 
5 The Authority denies that the applicant has standing to bring an action, on the 
grounds that it ceased to be a party when it was excluded from the Auction 
Procedure, and therefore the decision and the judgment in the main proceedings 
cannot affect its legal status. It emphasises that the statement by the applicant that 
it has no specific plans to enter the Hungarian market also excludes it from being 
a competitor. Moreover, there are public documents which show that the applicant 
is not even present in the services market in the Member State in which it is 
established. In its view, the market position of DIGI Kft. cannot be taken into 
consideration in this regard. 
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Brief statement of the reasons for the request for a preliminary ruling 
6 Since the framework directive does not define the concept of ‘interested party’, 
the concept needs to be examined in the light of the case-law of the Court of 
Justice. In Tele2 Telecommunication, Arcor and T-Mobile Austria, the Court of 
Justice examined three requirements for determining whether an undertaking was 
an interested party for the purposes of Article 4(1) of the framework directive and 
whether it had a right of appeal against the contested decision in the case in 
question. 
7 Those three requirements, which require an additional interpretation in the 
proceedings before the referring court, are, first, that the undertaking in question 
must be an undertaking that provides electronic communications networks or 
services and is a competitor of the undertaking or undertakings to which the 
authority’s decision is addressed; secondly, that the national regulatory authority 
must have adopted the decision in the context of a procedure intended to 
safeguard competition; and thirdly, that the decision in question has or is likely to 
have an impact on the position in the market of the first undertaking. 
8 The purpose of the first question referred is to clarify whether an undertaking 
qualifies as a competitor where another member of the business group controlled 
by the undertaking that is seeking to lodge the action is a provider of electronic 
communications services in the relevant market, but the applicant itself does not 
provide such services and has an infrastructure only through its Hungarian 
subsidiary. 
9 The question also arises whether, in order to determine whether the undertaking is 
a competitor, it is necessary to examine the extent to which the applicant and the 
undertaking under its control form an economic unit. The principle set out in 
paragraph 31 of the judgment of the Court of Justice in Assitur – which establishes 
that groups of undertakings can have different forms and objectives which do not 
necessarily preclude controlled undertakings from enjoying a certain autonomy in 
the conduct of their commercial policy and their economic activities – together 
with the criteria laid down in paragraphs 27 to 29 of the Court’s judgment in 
Specializuotas transportas can be relevant by analogy in determining the nature of 
the actual, economic and control relationship between the applicant and DIGI Kft. 
10 In the view of the referring court, given that the EU competition cases cited in the 
arguments put forward by the applicant – which concern restrictive agreements – 
address the imputation of liability, they cannot provide the basis for a general 
statement that even where, in legal terms, a group comprises several different 
legal persons, it can be considered a single ‘undertaking’ for competition law 
purposes. 
11 Rather, the objective of Article 4(1) of the framework directive, which is to 
safeguard the rights of an undertaking affected by a decision of the national 
regulatory authority, must be interpreted as applying to the market affected by the 
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decision rather than to the entire group of undertakings. It is for the Court of 
Justice to decide whether, in order for an undertaking to be deemed a competitor 
within the meaning of Article 4(1) of the framework directive, it must be directly 
present in the market, or whether it is enough for it to be present indirectly, via a 
subsidiary. 
12 The referring court also has questions as to whether the mere fact that the 
applicant submitted a bid in the Auction Procedure is sufficient to prove that it 
genuinely intended to enter the market. Given that DIGI Kft. is present in the 
market as a service provider and has invested in the launch of 5G services, it 
would not be reasonable market behaviour for the applicant to seek to enter the 
service provider market in competition with its own subsidiary, given the high 
investment costs entailed. 
13 Having regard to Article 8(2) of the framework directive and Article 7(1)(a) of the 
authorisation directive, the referring court considers that a tender procedure to 
award rights of use of frequencies, such as the Auction Procedure at issue in the 
main proceedings, satisfies the requirement that the national regulatory authority 
must have adopted the decision in the context of a procedure intended to 
safeguard competition. The Auction Procedure in question in the main 
proceedings is a tender procedure in respect of which the Court of Justice has yet 
to interpret Article 4 of the framework directive; hence the need for a reply from 
the Court of Justice to the second question referred. Moreover, the main 
proceedings must also be considered from the standpoint of the appropriateness of 
the Authority’s decision for the attainment of the objective of safeguarding 
competition as far as the applicant is concerned. 
14 It is not clear from an examination of the earlier case-law of the Court of Justice 
(the judgments in Tele2 Telecommunication, Arcor and T-Mobile Austria) whether 
a minimal potential effect on an undertaking’s position in the market is sufficient 
for it to qualify as an affected undertaking within the meaning of Article 4(1) of 
the framework directive, or whether it is necessary to examine the particular 
circumstances of the case, including the specific effects of the decision on the 
market position of the undertaking that is seeking to challenge the decision, and 
the probability that those effects will materialise. In its third question, the referring 
court seeks guidance from the Court of Justice on the level of proof that can be 
required of the applicant as evidence of the effect of the decision on its position in 
the market in order to demonstrate its standing to bring the action. 
15 In Tele2 Telecommunication, the Court of Justice clarified that the rights of parties 
in administrative proceedings do not fall within the scope of the framework 
directive. It can be inferred from this that the existence or extinction of the 
applicant’s right to be a party to the administrative proceedings is not relevant to 
the questions raised in this reference for a preliminary ruling. 
16 With regard to the fourth question referred, the referring court considers that the 
right to an effective remedy guaranteed by Article 47 of the Charter of 
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Fundamental Rights may also be infringed by the fact that operators may, in some 
cases vexatiously, hinder or prevent the implementation of the authority’s 
decisions by bringing legal actions in which they do not have a genuine direct 
legal interest, to the detriment of effective fair competition in the market. An 
interpretation by the Court of Justice is therefore needed in order to ascertain how 
Article 4(1) of the framework directive can most effectively be applied in the light 
of the right to an effective remedy guaranteed by Article 47 of the Charter of 
Fundamental Rights, having regard to the interests of all parties, both the 
addressees of the decision and the undertaking seeking to exercise its right of 
appeal.