Provisional text
JUDGMENT OF THE COURT (Second Chamber)
12 March 2026 (*)
( Reference for a preliminary ruling – Approximation of laws – Telecommunications sector – Directive
(EU) 2018/1972 – European Electronic Communications Code – First subparagraph of Article 105(4) – Right of end-users to terminate their contact without further costs due to modifications unilaterally proposed by a provider of electronic communication services – Exceptions – Modifications directly imposed by EU law or national law )
In Case C‑514/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Supreme Court, Hungary), made by decision of 26 June 2024, received at the Court on 24 July 2024, in the proceedings
Magyar Telekom Nyrt.
v
Nemzeti Média- és Hírközlési Hatóság Elnöke,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec (Rapporteur) and Z. Csehi, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: I. Illéssy, Administrator,
having regard to the written procedure and further to the hearing on 26 June 2025,
after considering the observations submitted on behalf of:
–        Magyar Telekom Nyrt., by V. Brengel, Gy. V. Radics, ügyvédek, M.L. Keresztury and B. Modok,
–        the Hungarian Government, by D. Csoknyai and Z. Fehér, acting as Agents,
–        Ireland, by M. Browne, Chief State Solicitor, S. Finnegan and A. Joyce, acting as Agents, and by B. Quigley, Senior Counsel, and S. Brittain, Barrister-at-Law,
–        the Finnish Government, by M. Pere, acting as Agent,
–        the European Commission, by V. Bottka, G. Conte and O. Gariazzo, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 18 September 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of the first subparagraph of Article 105(4) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).
2        The request has been made in proceedings between Magyar Telekom Nyrt., a provider of electronic communications services, and the Nemzeti Média- és Hírközlési Hatóság Elnöke (President of the National Media and Communications Office; ‘President of the NMHH’) concerning a decision by which the latter require it, in particular, to
modify their subscription contracts concluded with end-users that included an option for the tariff known as the ‘zero tariff’.
Legal context
European Union law
Regulation (EU) 2015/2120
3        Article 1 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ 2015 L 310, p. 1), entitled ‘Subject matter and scope’, provides in paragraph 1.
‘This Regulation establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights.’
4        Article 3 of that regulation, entitled ‘Safeguarding of open internet access’, provides, in paragraphs 1 to 3 thereof:
‘1.      End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service.
…
2.      Agreements between providers of internet access services and end-users on commercial and technical conditions and the characteristics of internet access services such as price, data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the rights of end-users laid down in paragraph 1.
3.      Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.
The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.
Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to:
(a)      comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers;
(b)      preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users;
(c)      prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.’
Regulation (EU) 2018/1971
5        Recital 5 of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ 2018 L 321, p. 1) states:
‘[The Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office)] were established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council [of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ 2009 L 337, p. 1)]. BEREC replaced the [European Regulators Group for Electronic Communications Networks and Services (ERG)] and was intended to contribute, on one hand, to the development and, on the other, to the better functioning, of the internal market for electronic communications networks and services by aiming to ensure the consistent implementation of the regulatory framework for electronic communications. BEREC acts as a forum for cooperation among [national regulatory authorities (NRAs)] and between NRAs and the [European] Commission in the exercise of the full range of their responsibilities under the Union regulatory framework. BEREC was established to provide expertise and to act independently and transparently.’
6        Article 3 of Regulation 2018/1971, entitled ‘Objectives of BEREC’, provides in paragraph 2:
‘BEREC shall pursue the objectives set out in Article 3 of Directive (EU) 2018/1972. In particular, BEREC shall aim to ensure the consistent implementation of the regulatory framework for electronic communications within the scope referred to in paragraph 1 of this Article.’
7        Article 4 of the regulation, entitled ‘Regulatory tasks of BEREC’, provides in paragraphs 1 and 4:
‘1.      BEREC shall have the following regulatory tasks:
…
(d)      to issue guidelines on the implementation of the Union regulatory framework for electronic communications, in particular, as referred to in Regulations (EU) No 531/2012 [of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ 2012 L 172, p.10),] and [2015/2120] and Directive [2018/1972], on:
…
(e)      to issue other guidelines ensuring the consistent implementation of the regulatory framework for electronic communications and consistent regulatory decisions by the NRAs, on its own initiative or upon the request of an NRA, the European Parliament, the Council [of the European Union] or the Commission, in particular for regulatory issues affecting a significant number of Member States or with a cross-border element;
…
4.      Without prejudice to compliance with relevant Union law, NRAs and the Commission shall take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC with the aim of ensuring the consistent implementation of the regulatory framework for electronic communications within the scope referred to in Article 3(1).
Where an NRA deviates from the guidelines referred to in point (e) of paragraph 1, it shall provide the reasons therefor.’
Directive 2018/1972
8        Recital 275 of Directive 2018/1972 states:
‘Any changes to the contractual conditions proposed by providers of publicly available electronic communications services other than number-independent interpersonal communications services, which are not to the benefit of the end-user, for example in relation to charges, tariffs, data volume limitations, data speeds, coverage, or the processing of personal data, should give rise to the right of the end-user to terminate the contract without incurring any costs, even if they are combined with some beneficial changes. Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless each change is, in itself, beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes, such as new contract information requirements imposed by Union or national law. Whether a change is exclusively to the benefit of the end-user should be assessed on the basis of objective criteria. The end-user’s right to terminate the contract should be excluded only if the provider is able to demonstrate that all contract changes are exclusively to the benefit of the end-user or are of a purely administrative nature without any negative effect on the end-user.’
9        Article 3 of that directive, ‘General objectives’, provides in paragraph 2(d) thereof:
‘In the context of this Directive, the [NRAs] and other competent authorities as well as BEREC, the Commission and the Member
States shall pursue each of the following general objectives, which are not listed in order of priority:
…
(d)      promote the interests of the citizens of the Union, by ensuring connectivity and the widespread availability and take-up of very high capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for [end-users] through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular [end-users] with disabilities, elderly [end-users] and [end-users] with special social needs, and choice and equivalent access for [end-users] with disabilities.’
10      Article 10 of that directive, entitled ‘Participation of [NRAs] in BEREC’ provides:
‘1.      Member
States shall ensure that the goals of BEREC of promoting greater regulatory coordination and consistency are actively supported by their respective [NRAs].
2.      Member
States shall ensure that [NRAs] take utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting their own decisions for their national markets.’
11      Article 105 of that directive, entitled ‘Contract duration and termination’, provides in paragraph 4 thereof:
‘End-users shall have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services other than number-independent interpersonal communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law.
Providers shall notify end-users at least one month in advance of any change in the contractual conditions, and shall simultaneously inform them of their right to terminate the contract without incurring any further costs if they do not accept the new conditions. The right to terminate the contract shall be exercisable within one month after notification. Member
States may extend that period by up to three months. Member
States shall ensure that notification is made in a clear and comprehensible manner on a durable medium.’
Hungarian law
12      Paragraph 132 of the az elektronikus hírközlésről szóló 2003. Évi C. törvény (Law C of 2003 on Electronic Communications), in the version applicable to the dispute in the main proceedings (‘Law 2003/100’) provides in paragraphs 5 and 6 thereof:
‘(5)      Subscribers may terminate their subscription contract with immediate effect and without further legal consequences within 45 days of receipt of notification of a unilateral modification of the contract by the provider of publicly available electronic communications services.
(6)      The subscriber is not entitled to terminate the subscription contract pursuant to paragraph 5 if the modification:
(a)      entails a change in the subscription contract or the conditions of use of the service which are exclusively for the benefit of the subscriber,
(b)      is purely administrative in nature and does not have a negative effect for the subscriber, or
(c)      is based strictly on an amendment of a legal rule or on an administrative or judicial decision.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
13      Magyar Telekom is an undertaking which operates in the information and communications technology sector. That undertaking offers end-users, for certain of its internet access packages, a tariff option known as a ‘zero tariff’, by virtue of which it does not count the data volume included in those packages, the data consumed by the use of certain applications and/or certain specific services.
14      By a decision of 6 September 2022 (‘the decision of the NMHH’), the NMHH found that that undertaking was not complying with the provisions of Article 3(3) of Regulation 2015/2120, since, in the context of the application of that tariff option, it did not treat all internet traffic equally and without discrimination.
In that decision, the NMHH instructed Magyar Telekom to cease, no later than 15 November 2022,
offering any package containing that tariff option, and to modify, no later than 31 March 2023, any individual subscription contracts which included that tariff, in order to remove any reference to that tariff option.
15      In that decision, the NMHH emphasised that, since the need to modify the contracts of the subscribers concerned arose from the incompatibility of Magyar Telekom’s practice with that Article 3(3)
of Regulation 2015/2120, the unilateral modification of those contracts to the detriment of subscribers gave those subscribers the right to terminate those contracts, in accordance with Paragraph 132(5) of Law 2003/100, which transposed the first subparagraph of Article 105(4) of Directive 2018/1972 into Hungarian law. In that regard, the exception provided for in Paragraph 132(6)(c) of Law 2003/100, which transposes the third exception provided for in the last part of the last sentence of the first subparagraph of Article 105(4) of Directive 2018/1972, is inapplicable.
16      By a decision of 27 October 2022 (‘the decision of the President of the NMHH’), the President of the NMHH, hearing an appeal by Magyar Telekom, confirmed the decision of the NMHH.
17      In that decision of 27 October 2022, the President of the NMHH observed that, in the judgments of 2 September 2021, Vodafone (C‑854/19, EU:C:2021:675), of 2 September 2021, Vodafone (C‑5/20, EU:C:2021:676), and of 2 September 2021, Telekom Deutschland (C‑34/20, EU:C:2021:677), the Court had held that the ‘zero tariff’ tariff option was incompatible with the obligations under Article 3(3) of Regulation 2015/2120. Accordingly, the obligation of Magyar Telekom to modify the individual subscription contracts in force flowed from that provision, the correct interpretation of which had been given by the Court in those judgments.
18      In that decision, the President of the NMHH stressed that, following the delivery of those judgments, Magyar Telekom was required voluntarily to cease to offer and use such a tariff option, and that the aim of the decision of the NMHH was to ensure that Regulation 2015/2120 was applied by Magyar Telekom in accordance with those judgments, the guidance in respect of which was
included in the BEREC Guidelines on the implementation of the open internet regulation of 9 June 2022 (BoR (22) 81; ‘the 2022 BEREC Guidelines’).
19      Although, in the preceding BEREC guidelines on the Implementation by National Regulators of European Net Neutrality Rules of 30 August 2016 (BoR (16) 127; ‘the 2016 BEREC guidelines’) the provisions of Regulation 2015/2120 had been interpreted as permitting certain ‘zero tariff’ tariff options, following the delivery of the judgment of 15 September 2020, Telenor Magyarország (C‑807/18 and C‑39/19, EU:C:2020:708), and the judgments referred to in paragraph 17 of the present judgment, BEREC adopted the 2022 BEREC guidelines in which those provisions were interpreted as not permitting such tariff options.
20      In its action against the decision of the President
of the NMHH, lodged with the Fővárosi Törvényszék (Budapest High Court, Hungary), Magyar Telekom claimed that it had no obligation to implement those judgments, that its practice had been developed on the basis of the 2016 BEREC guidelines and that it was under no obligation to modify its contracts under the 2022 BEREC guidelines, which were addressed to the NRAs. In the opinion of Magyar Telekom, that decision should be regarded as being a matter of ‘national law’, within the meaning of Article 105(4) of Directive 2018/1972, which directly required it to modify those contracts.
21      The Fővárosi Törvényszék (Budapest High Court) dismissed the action brought by Magyar Telekom.
22      That court recalled that Paragraph 132(6)(c) of Law 2003/100 sets out an exception, the wording of which clearly referred to an amendment directly imposed by a rule of EU law or of national law which applied
solely to acts of EU law, as defined in Article 288 TFEU, as well as national legislative acts.
The decision of the President of the NMHH however, taken in an individual case, is not a legislative or regulatory act, having been adopted by an administrative authority in the exercise of its powers to apply the law and, hence, that decision was not covered by the exception provided for in that provision.
Changes in the interpretation or application of the law cannot be treated as equivalent to legislative or regulatory changes.
23      In its appeal on a point of law brought before the
Kúria (Supreme Court, Hungary) which is the referring court, Magyar Telekom submits that the Fővárosi Törvényszék (Budapest High Court) incorrectly interpreted the relationship between recital 275 and the first subparagraph of Article 105(4) of Directive 2018/1972, in considering that the term ‘regulatory’, which appears in the second sentence of that recital, could not cover a decision adopted in the context of the exercise of powers of applying the law.
24      According to Magyar Telekom, the exception to end-users’ right of termination of subscription contracts due to the unilateral modification of those contracts by the provider concerned applies not only in a situation where those modifications are directly imposed by legislative acts of the European Union or of a Member State, but also where they are imposed by EU law or national law understood in a wider sense.
25      The referring court considers that it requires clarification from the Court as to the interpretation of the first subparagraph of Article 105(4) of Directive 2018/1972 in order to be able to give its judgment, given that it must decide whether end-users have the right to terminate their contracts without further costs due to the modification of the contractual conditions proposed by Magyar Telekom, as that provision excludes that right of termination without further costs where the modifications proposed ‘are directly imposed by Union or national law’.
26      That court recalls that, by virtue of the mechanism established by Directive 2018/1972, BEREC is responsible for harmonising the interpretation of the provisions of Regulation 2015/2120 at EU level for the NRAs. The 2016 BEREC guidelines, however, created a legitimate expectation for Magyar Telekom.
On the basis of those guidelines, Magyar Telekom was not in a position to anticipate the practice that should have been followed according to the judgments of the Court referred to in paragraph 17 of the present judgment and with which the decision of the NMHH complied after that practice was set out in the 2022 BEREC guidelines.
27      In the opinion of that court, the fact that the judgments of the Court were necessarily followed by the BEREC guidelines, which were, in turn, necessarily followed by the NRA decisions, thus complying with the interpretation of the provisions of Regulation 2015/2120 upheld by the Court, suggests that such a process is characterised as having a ‘regulatory aspect’, which could not be regarded as a mere application of the law.
28      In those circumstances, the Kúria (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      May a judgment of the Court of Justice be regarded as equivalent to a directly binding provision of EU law, for the purposes of Article 105(4) of
Directive [2018/1972], or rather must it be regarded as an interpretation of the law which does not constitute an amendment of earlier legislation from the perspective of Article 105(4) …?
(2)      May the [2016 BEREC Guidelines], as replaced, in so far as is relevant to the present dispute, by the [2022 BEREC Guidelines], be regarded – in the light, in particular, of Article 10(2) of [Directive 2018/1972] and Article 4(4) of Regulation [2018/1971] – as being part of EU law or directly binding provisions of EU law [which directly require a modification of contractual conditions] and, as such, as constituting an amendment of legislation which justifies the application of the exception laid down in Article 105(4) of [Directive 2018/1972,] or rather are they simply an interpretation of the law – particularly since they apply a judgment of the Court of Justice – which does not constitute an amendment of earlier legislation from the perspective of Article 105(4) …?
(3)      If the application of the exception laid down in Article 105(4) of Directive [2018/1972] [does not have a legal basis in] a judgment of the Court of Justice or by the 2022 BEREC Guidelines, may a decision of a [NRA, based on the 2022 BEREC Guidelines, as amended following the judgment of the Court of Justice,] which applies, in respect of a supplier of electronic communications services, an amended judicial criterion in relation to Article 3(3) of Regulation [2015/2120]
be considered to constitute a directly binding provision of national law [requiring a modification of the contractual conditions] for the purposes of Article 105(4) of
[Directive 2018/1972], regard being had to the fact that the provision of Regulation 2015/2120 remains the same and was not amended during the material time for the purposes of the dispute?’
Consideration of the questions referred
29      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether the first subparagraph of Article 105(4) of Directive 2018/1972 must be interpreted as meaning that an end-user has the right to terminate, without further costs, the contract concluded with a provider of electronic communications services where that provider proposes to modify the contract so that it complies with the interpretation, upheld by the Court of Justice of the European Union in a preliminary ruling, of a provision of EU law governing certain aspects of such a contract, or with BEREC guidelines adopted following that judgment, or yet with a decision taken by an NRA in respect of that provider taking into account that ruling and those guidelines.
30      According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part
(judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 8 May 2025, Pielatak, C‑410/23, EU:C:2025:325, paragraph 54 and the case-law cited).
31      The first subparagraph of Article 105(4) of Directive 2018/1972 provides that end-users are to have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly imposed by EU law or national law.
32      According to recital 275 of that directive, any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract without further costs unless each change is, in itself, beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes.
33      It follows from a combined reading of the first subparagraph of Article 105(4) of that directive and
that recital that the third exception, provided for in the last part of the last sentence of the first subparagraph of Article 105(4) applies where the provider proposes to modify the contractual conditions solely in a case where the modifications of those contractual conditions are directly and strictly imposed by the entry into force or the modification of a legislative or regulatory act of EU law or of national law.
34      The general scheme of the first subparagraph of Article 105(4) of Directive 2018/1972 and the purpose of that directive support that interpretation.
35      The first subparagraph of Article 105(4) lays down a general rule according to which a change in the contractual conditions proposed by a provider of publicly available electronic communications services has the effect of conferring on end-users a right to terminate their contract without incurring any further costs. That general rule is accompanied by three exceptions which must be interpreted strictly.
36      A strict interpretation of those exceptions is consistent with the general objective of ensuring a high common level of protection for end-users, referred to in Article 3(2)(d) of Directive 2018/1972. Thus, the first subparagraph of Article 105(4) of that directive must be understood as meaning that, for the purposes of applying the third exception provided for in that provision, it is necessary that the modification of the contractual conditions proposed by the provider concerned be directly and strictly imposed by a change in the EU law or national law which constitutes the relevant legislative or regulatory framework.
37      In the present case, the referring court’s questions concern, first, whether a preliminary ruling delivered by the Court of Justice of the European Union may be regarded as a change in EU law, within the meaning of the preceding paragraph of the present judgment.
38      In that regard, it should be recalled that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court of Justice of the European Union gives to a rule of EU law clarifies and defines, where required, the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. In other words, a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force (judgments of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph 35; of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 63; and of 10 March 2022, Grossmania, C‑177/20, EU:C:2022:175, paragraph 41).
39      It follows that the rule as thus interpreted must in principle be applied by an administrative authority within the sphere of its competences and by a national court even to legal relationships which arose and were formed before the judgment on the request for interpretation was delivered (see, to that effect, judgments of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78,
paragraph 36; 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 186;
of 16 March 2023, Towercast, C‑449/21, EU:C:2023:207, paragraph 56; and of 20 April 2023, Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa), C‑348/22, EU:C:2023:301, paragraph 73).
40      In those circumstances, a judgment given by the Court of Justice by way of a preliminary ruling, ruling in particular on the interpretation of Article 3(3) of Regulation 2015/2120, such as the judgments of 15 September 2020, Telenor Magyarország (C‑807/18 and C‑39/19, EU:C:2020:708); of 2 September 2021, Vodafone (C‑854/19, EU:C:2021:675); of 2 September 2021, Vodafone (C‑5/20, EU:C:2021:676); and of 2 September 2021, Telekom Deutschland (C‑34/20, EU:C:2021:677), cannot be regarded as an amendment to a legislative or regulatory act of EU law capable of directly requiring a provider of electronic communications services to modify the contractual conditions of subscription contracts which it has concluded with end-users.
41      Secondly, as regards the BEREC guidelines, it should be noted that they are neither legislative nor regulatory acts of EU law nor amendments thereto.
42      Certainly, according to Article 4(4) of Regulation 2018/1971, the NRAs and the Commission ‘shall take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC’. Similarly, under Article 10(2) of Directive 2018/1972, Member States are to ensure that NRAs ‘take utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting their own decisions for their national markets’.
43      However, those acts are not legally binding and do not form part of a process of developing EU legislation on electronic communications. BEREC’s sole function is to act as a forum for cooperation among NRAs and between NRAs and the Commission with a view to ensuring the consistent implementation of the regulatory framework for electronic communications, as is apparent from Article 3(2) of Regulation 2018/1971, read in the light of recital 5 of that regulation (judgment of 17 January 2023, Spain v Commission, C‑632/20 P, EU:C:2023:28, paragraph 85).
44      It follows that BEREC guidelines, such as the 2022 BEREC guidelines, which state, contrary to the 2016 BEREC guidelines, that Article 3(3) of Regulation 2015/2120 does not authorise ‘zero tariff’ tariff options, cannot be regarded as directly requiring a provider of electronic communications services to modify contractual conditions, within the meaning of the first subparagraph of Article 105(4) of Directive 2018/1972.
45      Thirdly, as regards whether that is nevertheless the case with a decision adopted by an NRA, it should be noted that, in its request for a preliminary ruling, the referring court states that the dispute in the main proceedings concerns a decision which the President of the NMHH has taken in the context of his powers of administrative review so that its addressee, the electronic communications services
provider
Magyar Telekom, complies with its obligations under Article 3(3) of Regulation 2015/2120, as interpreted by the Court.
46      Such a decision is not of a legislative nature because, in adopting it, an NRA merely interprets and applies that provision, which is part of the EU legislation on electronic communications,
to a particular case.
47      It follows that a decision adopted by an NRA, in the exercise of its powers of administrative review, in respect of a provider of electronic communications services so that that provider complies with its obligations under a provision of EU law, which falls within the scope of the legislation on electronic communications, cannot be regarded as directly requiring that provider to modify contractual conditions, within the meaning of the first subparagraph of Article 105(4) of Directive 2018/1972.
48      Moreover, it must be borne in mind that, under the second paragraph of Article 288 TFEU, a regulation ‘is binding in its entirety and directly applicable in all Member States’ and that, according to settled case-law, under that provision, by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application (judgment of 16 January 2024, Österreichische Datenschutzbehörde, C‑33/22, EU:C:2024:46, paragraph 60 and the case-law cited).
49      Admittedly, some of those provisions may necessitate, for their implementation, the adoption of measures of application by the Member States (judgment of 15 June 2021, Facebook Ireland and Others, C‑645/19, EU:C:2021:483, paragraph 110 and the case-law cited). However, in the present case, the referring court does not refer to such national implementing measures in its request for a preliminary ruling and, ultimately, it does not follow from Article 3(3) of Regulation 2015/2120 that the adoption of such national implementing measures is necessary for the implementation of that provision.
50      In the light of the foregoing considerations, the answer to the questions referred is that the first subparagraph of Article 105(4) of Directive 2018/1972 must be interpreted as meaning that an end-user has the right to terminate, without further costs, the contract he or she concluded with a provider of electronic communications services where that provider proposes to modify the contract so that it complies with the interpretation given by the Court of Justice of the European Union in a preliminary ruling, of a provision of EU law governing certain aspects of such a contract, or with BEREC guidelines adopted following that judgment, or yet with a decision taken by an NRA in respect of that provider taking into account that ruling and those guidelines.
Costs
51      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
The first subparagraph of Article 105(4) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code
is to be interpreted as meaning that an end-user has the right to terminate, without further costs, the contract he or she concluded with a provider of electronic communications services where that provider proposes to modify the contract so that it complies with the interpretation given by the Court of Justice of the European Union in a preliminary ruling, of a provision of EU law governing certain aspects of such a contract, or with BEREC guidelines adopted following that judgment, or yet with a decision taken by an NRA in respect of that provider taking into account that ruling and those guidelines.
[Signatures]
*      Language of the case: Hungarian.