Provisional text
JUDGMENT OF THE COURT (Grand Chamber)
26 February 2026 (*)
Table of contents
I.
Legal context
A.
European Union law
1.
The Authorisation Directive
2.
The Framework Directive
3.
The Competition Directive
4.
Directive 2018/1972
B.
Hungarian law
II.
Background to the action for failure to fulfil obligations
III.
Pre-litigation procedure and procedure before the Court
IV.
The action
A.
Applicability of EU law
1.
Applicability of the EU regulatory framework for electronic communications and the Charter
(a)
Arguments of the parties
(b)
Findings of the Court
(1)
The EU regulatory framework for electronic communications
(2)
The Charter
2.
Applicability ratione temporis of Directive 2018/1972
(a)
Arguments of the parties
(b)
Findings of the Court
B.
Admissibility
1.
Admissibility of the complaints raised in respect of the decisions at issue
(a)
Arguments of the parties
(b)
Findings of the Court
2.
Admissibility of the complaint alleging breach of the principle of sincere cooperation
C.
Substance
1.
The complaints concerning Paragraph 48(7) of the Law on media services and the refusal decision
(a)
The complaint alleging breach of the principle of proportionality
(1)
Arguments of the parties
(2)
Findings of the Court
(i)
The applicability of Article 10 of the Authorisation Directive
(ii)
The scope of Paragraph 48(7)(a) of the Law on media services
(iii)
The breach of the principle of proportionality by Paragraph 48(7) of the Law on media services
(b)
The complaint alleging breach of the principle of non‑discrimination
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
The complaint alleging that the refusal decision was not adopted in good time
(1)
Arguments of the parties
(2)
Findings of the Court
(d)
Conclusion
2.
The complaints concerning the call for tenders at issue and the invalidity decision
(a)
The complaints alleging breach of the principles of transparency and proportionality
(1)
Arguments of the parties
(2)
Findings of the Court
(i)
The grounds for invalidity concerning the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’
(ii)
The ground for invalidity concerning Klubrádió’s business and financial plan
(b)
The complaint alleging that the invalidity decision was not adopted in good time
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
Conclusion
3.
The complaints concerning Paragraph 65(11) of the Law on media services
(a)
Arguments of the parties
(b)
Findings of the Court
(1)
The complaint alleging breach of the principle of non‑discrimination
(2)
The complaint alleging breach of the principle of proportionality
(3)
The complaint alleging infringement of the obligation to ensure effective management of the radio spectrum
(4)
Conclusion
4.
The complaints alleging infringement of Article 11 of the Charter
(a)
Arguments of the parties
(b)
Findings of the Court
Costs
( Failure of a Member State to fulfil obligations – Electronic communications networks and services – Radio spectrum – Directives 2002/20/EC, 2002/21/EC, 2002/77/EC and (EU) 2018/1972 – Individual rights of use – National legislation and administrative decisions depriving a commercial radio station of the possibility of broadcasting content on an analogue terrestrial FM radio frequency – Principles of proportionality, transparency, non-discrimination and good administration – Article 11 of the Charter of Fundamental Rights of the European Union – Freedom of expression and information – Freedom of the media )
In Case C‑92/23
ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 17 February 2023,
European Commission, represented by A. de Gregorio Merino, U. Małecka, L. Malferrari and A. Tokár, acting as Agents,
applicant,
supported by:
Kingdom of Belgium, represented initially by C. Jacob, M. Jacobs, C. Pochet, L. Van den Broeck and M. Van Regemorter, and subsequently by C. Jacob, M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents,
Kingdom of Denmark, represented initially by D. Elkan, J.F. Kronborg and C.A.-S. Maertens, and subsequently by D. Elkan and C.A.-S. Maertens, and finally by C.A-S. Maertens and J. Sandvik Loft, acting as Agents,
Kingdom of the Netherlands, represented by M.K. Bulterman and C.S. Schillemans, acting as Agents,
interveners,
v
Hungary, represented by M.Z. Fehér and G. Koós, acting as Agents, and by G. Trinn, ügyvéd,
defendant,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, T. von Danwitz, Vice-President, K. Jürimäe, C. Lycourgos, M.L. Arastey Sahún (Rapporteur), Presidents of Chambers, S. Rodin, E. Regan, N. Piçarra, D. Gratsias, M. Gavalec, S. Gervasoni, N. Fenger and R. Frendo, Judges,
Advocate General: A. Rantos,
Registrar: I. Illéssy, Administrator,
having regard to the written procedure and further to the hearing on 2 December 2024,
after hearing the Opinion of the Advocate General at the sitting on 3 April 2025,
gives the following
Judgment
1        By its application, the European Commission asks the Court to declare that Hungary:
–        has failed to fulfil its obligations under (i) Articles 5, 7 and 10 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) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Authorisation Directive’), (ii) Article 4(2) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21) (‘the Competition Directive’), (iii) Article 9 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) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140 (‘the Framework Directive’), (iv) the principles of proportionality, non-discrimination and sincere cooperation, and (v) Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), on account of:
–        the adoption by the Médiatanács (Media Council, Hungary), on 8 September 2020, of Decision No 830/2020 (IX. 8) by which it refused to renew Klubrádió’s rights to use the radio spectrum,
–        the adoption of Paragraph 48(7) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. törvény (Law CLXXXV of 2010 on media services and mass media communications (Magyar Közlöny 2010/202.) (‘the Law on media services’)), which, in the event of a repeated infringement, automatically precludes the renewal of rights to use the radio spectrum for broadcasting, even where the infringement is not particularly serious and is of a purely formal nature, and
–        the ensuing discriminatory and disproportionate impossibility for Klubrádió to pursue its activities in the broadcasting sector;
–        has failed fulfil its obligations under Articles 8 and 9 of the Framework Directive, Article 5(3) of the Authorisation Directive and the principle of good administration on account of:
–        the failure to adopt, within the six-week period laid down in Article 5(3) of the Authorisation Directive, a decision on Klubrádió’s application for the renewal of its rights to use the radio spectrum, and
–        the failure to organise a procedure to allocate the radio frequency previously used by Klubrádió in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights of use;
–        has failed to fulfil its obligations under Article 5(2) of the Authorisation Directive, Article 45 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) and Article 11 of the Charter, on account of the fact that the Media Council, in the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz, which it published on 4 November 2020, and in Decision No 180/2021 (III. 10.), which it delivered on 10 March 2021, imposed disproportionate conditions on the allocation of rights to use the radio spectrum, failed to determine in advance the criteria for allocating those rights, did not provide for any discretion as regards the assessment of the seriousness and relevance of errors in the applications submitted which might entail exclusion of the applicants, and disregarded how minor the errors were; and
–        has failed to fulfil its obligations under Article 45(1) of Directive 2018/1972 and under the principles of proportionality and non-discrimination on account of the adoption of Paragraph 65(11) of the Law on media services, which precludes a media service provider from applying for temporary rights of use where its rights of use have not previously been renewed, while affording that possibility to service providers whose rights of use have already been renewed once, without justifying that difference in treatment, even though the reasons precluding that renewal do not prevent new rights of use from being allocated.
I.      Legal context
A.      European Union law
2        The regulatory framework common to electronic communications services, electronic communications networks and associated facilities and services, which was in force until 21 December 2020, consisted of the Framework Directive and four specific directives – including the Authorisation Directive – which were supplemented by the Competition Directive. The Framework Directive and the Authorisation Directive were repealed by Directive 2018/1972 (together with the Competition Directive, ‘the EU regulatory framework for electronic communications’).
1.      The Authorisation Directive
3        Article 5 of the Authorisation Directive provided:
‘…
2.      Where it is necessary to grant individual rights of use for radio frequencies and numbers, Member States shall grant such rights, upon request, to any undertaking for the provision of networks or services under the general authorisation referred to in Article 3, subject to the provisions of Articles 6, 7 and 11(1)(c) of this Directive and any other rules ensuring the efficient use of those resources in accordance with Directive [2002/21].
Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law, the rights of use for radio frequencies and numbers shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and, in the case of radio frequencies, in accordance with the provisions of Article 9 of Directive [2002/21]. An exception to the requirement of open procedures may apply in cases where the granting of individual rights of use of radio frequencies to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as defined by Member States in conformity with Community law.
…
3.      Decisions on the granting of rights of use shall be taken, communicated and made public as soon as possible after receipt of the complete application by the national regulatory authority, within three weeks in the case of numbers that have been allocated for specific purposes within the national numbering plan and within six weeks in the case of radio frequencies that have been allocated to be used by electronic communications services within the national frequency plan. The latter time limit shall be without prejudice to any applicable international agreements relating to the use of radio frequencies or of orbital positions.
…’
4        Article 7 of the Authorisation Directive was worded as follows:
‘…
3.      Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non-discriminatory and proportionate. Any such selection criteria must give due weight to the achievement of the objectives of Article 8 of Directive [2002/21] and of the requirements of Article 9 of that Directive.
4.      Where competitive or comparative selection procedures are to be used, Member States may extend the maximum period of six weeks referred to in Article 5(3) for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months.
…’
5        Article 10 of the Authorisation Directive provided:
‘1.      National regulatory authorities shall monitor and supervise compliance with the conditions of the general authorisation or of rights of use and with the specific obligations referred to in Article 6(2), in accordance with Article 11.
…
3.      The relevant authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance.
…
5.      In cases of serious or repeated breaches of the conditions of the general authorisation or of the rights of use, or specific obligations referred to in Article 6(2), where measures aimed at ensuring compliance as referred to in paragraph 3 of this Article have failed, national regulatory authorities may prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw rights of use. Sanctions and penalties which are effective, proportionate and dissuasive may be applied to cover the period of any breach, even if the breach has subsequently been rectified.
…’
2.      The Framework Directive
6        According to Recital 5 of the Framework Directive:
‘The convergence of the telecommunications, media and information technology sectors means all transmission networks and services should be covered by a single regulatory framework. That regulatory framework consists of this Directive and four specific Directives: Directive [2002/20], Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) [(OJ 2002 L 108, p. 7)], Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) [(OJ 2002 L 108, p. 51)], [and] Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector [(OJ 1998 L 24, p. 1)] (hereinafter referred to as “the Specific Directives”). It is necessary to separate the regulation of transmission from the regulation of content. This framework does not therefore cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is therefore without prejudice to measures taken at Community or national level in respect of such services, in compliance with Community law, in order to promote cultural and linguistic diversity and to ensure the defence of media pluralism. The content of television programmes is covered by Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [(OJ 1989 L 298, p. 23)]. The separation between the regulation of transmission and the regulation of content does not prejudice the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection.’
7        Article 1 of the Framework Directive provided:
‘1.      This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services, and certain aspects of terminal equipment to facilitate access for disabled users. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community.
2.      This Directive as well as the Specific Directives are without prejudice to obligations imposed by national law in accordance with Community law or by Community law in respect of services provided using electronic communications networks and services.
3.      This Directive as well as the Specific Directives are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy.
…’
8        Article 2 of that directive provided:
‘For the purposes of this Directive:
(a)      “electronic communications network” means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
…
(c)      “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC [of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18)], which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
…’
9        Article 8 of the Framework Directive provided:
‘1.      Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.
…
National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism.
2.      The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia:
(a)      ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality;
…
(d)      encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.
…’
10      According to Article 9(1) of that directive:
‘Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory in accordance with Articles 8 and 8a. They shall ensure that spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria.
…’
3.      The Competition Directive
11      Article 4 of the Competition Directive provides:
‘Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law:
1.      Member States shall not grant exclusive or special rights of use of radio frequencies for the provision of electronic communications services.
2.      The assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria.’
4.      Directive 2018/1972
12      According to recital 1 of Directive 2018/1972:
‘Directives [2002/20 and 2002/21] have been substantially amended. Since further amendments are to be made, those Directives should be recast in the interests of clarity.’
13      Article 2(4) of Directive 2018/1972 is worded as follows:
‘For the purposes of this Directive:
…
(4)      “electronic communications service” means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:
(a)      an “internet access service” …;
(b)      interpersonal communications service; and
(c)      services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting’.
14      Article 45 of that directive provides:
‘1.      Taking due account of the fact that radio spectrum is a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio spectrum for electronic communications networks and services in their territory in accordance with Articles 3 and 4. They shall ensure that the allocation of, the issuing of general authorisations in respect of, and the granting of individual rights of use for radio spectrum for electronic communications networks and services by competent authorities are based on objective, transparent, pro-competitive, non-discriminatory and proportionate criteria.
…
2.      Member States shall promote the harmonisation of use of radio spectrum by electronic communications networks and services across the [European] Union, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as competition, economies of scale and interoperability of networks and services. In doing so, they shall act in accordance with Article 4 of this Directive and with Decision No 676/2002/EC [of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ 2002 L 108, p. 1)], inter alia, by:
…
(c)      ensuring predictability and consistency in the granting, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments;
…
(g)      applying rules for the granting, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are clearly and transparently laid down in order to guarantee regulatory certainty, consistency and predictability;
…’
15      Article 48(3) of that directive provides:
‘An exception to the requirement of open procedures may apply where the granting of individual rights of use for radio spectrum to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as laid down by Member States in accordance with Union law.’
16      The first subparagraph of Article 124(1) of that directive is worded as follows:
‘Member States shall adopt and publish, by 21 December 2020, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.’
17      According to Article 125 of Directive 2018/1972:
‘Directives [2002/20 and 2002/21] are repealed with effect from 21 December 2020, without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law and the dates of application of the Directives set out in Annex XII, Part B.
…
References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XIII.’
B.      Hungarian law
18      Paragraph 22(8) of the Law on media services, in the version applicable on the date of adoption by the Media Council of Decision No 354/2017 (IV. 19.) (‘Decision No 354/2017’) and Decision No 1224/2017 (XI. 14.) (‘Decision No 1224/2017’), provided:
‘Media service providers shall be required, each month, to provide to the Media Council data allowing compliance with broadcasting quotas to be monitored. …’
19      Paragraph 22(8) of the Law on media services, in the version currently in force, states:
‘It shall be the responsibility of linear media service providers, each month and no later than the last day of the month following the month in question, and on-demand media service providers, no later than 31 January of the year following the reference year, to provide to the Media Council data allowing compliance with broadcasting quotas to be monitored …’
20      Paragraph 48 of that law is worded as follows:
‘1.      Unless otherwise provided for in this Law, an analogue linear media service using limited State resources may be provided on the basis of an administrative contract awarded in the context of a call for tenders launched and organised by the Media Council.
…
5.      The right to provide analogue linear media services using limited State resources shall be valid for a maximum period of ten
years as regards broadcasting and ten
years as regards audiovisual media services. Upon expiry, that right may be renewed once without a call for tenders, on a proposal from the media service provider, for a maximum period of seven years, provided that the contracts for the provision of audiovisual media services expire on the date prescribed in Paragraph 38(1) of the a műsorterjesztés és a digitális átállás szabályairól szóló 2007. évi LXXIV. törvény [(Law LXXIV of 2007 laying down rules on broadcasting and digital transition) (Magyar Közlöny 2007/80.)].
… The renewal proposal shall be notified to the Media Council fourteen months before the date of expiry. In the event of non-compliance with that time limit, no renewal shall be granted. In the context of the exercise of property rights on behalf of the State, the Media Council shall inform the media service provider that the right in question will be renewed, or that it will not be renewed, no earlier than six months and no later than four months before the expiry of the rights. The media service provider shall not be entitled to have its right to provide media services renewed and the renewal proposal shall not entail any obligation for the Media Council to conclude a contract.
…
7.      The right shall not be renewed:
(a)      if, by final decision of the Media Council, the media service provider has been found to have committed repeated or serious infringements of the contract or of the provisions of the a sajtószabadságról és a médiatartalmak alapvető szabályairól szóló 2010. évi CIV. törvény [(Law CIV of 2010 on freedom of the press and the fundamental rules on media content) (Magyar Közlöny 2010/170.) (“the Law on freedom of the press”)] or of this Law, or
(b)      if, at the time of submission or examination of the proposal, the media service provider is in arrears in payment of the media services fee.
…’
21      Paragraph 55(1) of the Law on media services provides:
‘Any undertaking may participate in the tendering procedure provided that:
(a)      it is not in arrears in payment of any customs debt or debt in respect of social security contributions outstanding for more than 60
days, of any outstanding tax debt recorded in the registers of the central tax authorities, or of any outstanding payment obligation owed to a specialised State fund, unless the creditor has suspended payment in writing;
(b)      it is not the subject of winding-up proceedings, liquidation proceedings on account of insolvency, voluntary liquidation proceedings or any other proceedings for its dissolution; and
(c)      during the five years preceding publication of the call for tenders,
(ca)      it has not been the subject of any final administrative decision finding that it committed a serious infringement resulting in non-compliance with the administrative contract, or
(cb)      the Media Council did not terminate its administrative contract;
(d)      it does not owe any outstanding debt to the Media Council.’
22      Under Paragraph 59 of that law:
‘1.      When examining the substantive validity of the tender, the Media Council shall evaluate the tender submitted by the applicant registered to participate in the call for tenders as a whole, having regard to each of its components, and shall examine its merits.
…
3.      The tender shall be invalid on substantive grounds
…
(c)      if, on account of its lack of foundation, the tender is not suitable for attaining the objectives set out in this Law or in the call for tenders, or
…’
23      According to Paragraph 63 of that law:
‘1.      When the decision referred to in Paragraph 62(1)(b) is notified to the successful tenderer, the Media Council shall, of its own motion, initiate an administrative procedure with a view to concluding an administrative contract with that tenderer. The time limit for completing that administrative procedure shall be 45
days.
…
12.      The media service provider shall have the right and the obligation to broadcast programmes in accordance with the terms of the administrative contract, using its own network, equipment and facilities or by having recourse to the (broadcasting) services of an electronic communications service provider. Authorisation to provide telecommunications services shall not be required for broadcasting and dissemination activities carried out by the media service provider using its own equipment, without prejudice to authorisations that must be obtained pursuant to other legislative or regulatory provisions.
…’
24      Paragraph 65 of the Law on media services provides:
‘1.      On application, the Media Council may, in the light of considerations relating to the media market and to media policy, conclude a temporary administrative contract for a maximum term of 180
days in order to exploit opportunities for the provision of media services:
…
(c)      in respect of which [the Nemzeti Média- és Hírközlési Hatóság (National Media and Infocommunications Authority, Hungary) (“the NMHH”)] has demonstrated that it is possible to provide media services without causing interference to others and without breaching international standards.
…
11.      If the right to provide linear radio media services expires after having already been renewed once by the Media Council, and if the tendering procedure concerning opportunities to provide media services has already been launched, the Media Council may, potentially on several occasions, conclude with the media service provider which previously held that right, and on application by that provider, a temporary administrative contract for a maximum term of 60
days. On the basis of the present subparagraph, a temporary administrative contract may be concluded only until the tendering procedure has been closed or, if the order terminating the tendering procedure is the subject of an administrative appeal, until a final decision has been taken on that appeal. The temporary administrative contract shall come to an end on the date on which the administrative contract with the successful tenderer is concluded.
…’
25      Paragraph 66(4) of that law provides:
‘A linear community media service shall:
…
(g)      broadcast programmes meeting the public service objectives referred to in Paragraph 83 during more than two-thirds of its weekly broadcasting time, including news programmes concerning the target community, political news programmes, cultural programmes and other similar content which is not primarily intended for a specific community;
(h)      in the case of a radio media service, devote at least 50% of its annual broadcasting time for musical programmes to Hungarian musical programmes.’
26      Paragraph 185 of the Law on media services is worded as follows:
‘1.      The Media Council or the Office [of the NMHH, (“the Office”)] may apply measures having legal consequences to persons who infringe the rules on media administration, in accordance with the provisions of Paragraphs 186 to 189.
2.      When applying measures having legal consequences, the Media Council and the Office shall act in compliance with the principle of equal treatment, having regard to the principles of progressiveness and proportionality; they shall apply the principle of progressiveness according to the seriousness and repeated nature of the infringement and shall impose a measure having legal consequences which is proportionate in the light of all the specific circumstances and the objective pursued by that measure.
…’
27      Paragraph 187 of that law states:
‘1.      In the event of a repeated infringement, the Media Council and the Office shall impose a fine of up to 2 000 000 [Hungarian forints (HUF) (approximately EUR 5 240)] on the person responsible for the infringing entity, according to the seriousness and nature of the infringement and the specific circumstances of the case.
2.      The Media Council and the Office shall decide on the measure having legal consequences having regard, in addition to the assessment criteria laid down in the a közigazgatási szabályszegések szankcióiról szóló 2017. évi CXXV. törvény [(Law CXXV of 2017 on penalties applicable to administrative infringements) (Magyar Közlöny 2017/171.)], and depending on the nature of the infringement, to the seriousness and continuity of the infringement, the harm to interests and personality rights stemming from the infringement, and the effects of the infringement on the market.
…
5.      For the purposes of subparagraphs 1 to 4, an infringement shall be deemed to be a repeated infringement if, within a period of 365
days, the infringer has engaged in the same wrongful conduct – falling within the same legal basis, the same legal provision and the same field – as that found to have been committed by final administrative decision, with the exception of minor infringements. In the event of an infringement of Paragraphs 20 and 21, Paragraph 22(2), Paragraph 22(3), Paragraph 22(5) and Paragraph 22(6), an infringement shall be deemed to be a repeated infringement if, within a period of three years, the infringer has engaged in the same wrongful conduct – falling within the same legal basis, the same legal provision and the same field – as that found to have been committed by final administrative decision, with the exception of minor infringements.
…’
28      Paragraph 187(4) of the Law on media services, in the version applicable on the date of adoption of Decisions Nos 354/2017 and 1224/2017, provided:
‘For the purposes of subparagraphs 1 to 3, an infringement shall be deemed to be a repeated infringement if, within a period of 365
days, the infringer has engaged in the same wrongful conduct – falling within the same legal basis, the same legal provision and the same field – as that found to have been committed by final administrative decision, with the exception of minor infringements. In the event of an infringement of Paragraphs 20 and 21, Paragraph 22(2), Paragraph 22(3), Paragraph 22(5) and Paragraph 22(6), an infringement shall be deemed to be a repeated infringement if, within a period of three years, the infringer has engaged in the same wrongful conduct – falling within the same legal basis, the same legal provision and the same field – as that found to have been committed by final administrative decision.’
II.    Background to the action for failure to fulfil obligations
29      Klubrádió is a Hungarian commercial radio station which, in 1999, began to broadcast its programmes on the frequency 95.3 MHz in the broadcasting area of Budapest (Hungary).
30      On 13 February 2014, the Media Council and Klubrádió terminated the broadcasting contract for that frequency and concluded a contract for the right to provide media services on the frequency 92.9 MHz in the broadcasting area of Budapest (‘the frequency 92.9 MHz’) for the period from 14 February 2014 to 14 February 2021 (‘Klubrádió’s broadcasting contract’). That latter contract was renewable for a period of five years.
31      On 8 November 2019, Klubrádió applied to have the contract renewed under Paragraph 48(5) of the Law on media services.
32      By Decision No 830/2020 (IX. 8) of 8 September 2020, the Media Council refused that application (‘the refusal decision’).
33      The Media Council based its refusal on the fact that, in Decision No 1224/2017, it had found that Klubrádió had infringed the monthly reporting obligation concerning broadcasting quotas, laid down in Paragraph 22(8) of the Law on media services (‘the obligation to transmit data on broadcasting quotas’), that that infringement was not a minor one and that, in accordance with Paragraph 187(4) of that law, in the version applicable on the date of that decision, the infringement in question was a repeated infringement, since Klubrádió had already infringed that obligation within a period of 365
days, as the Media Council had previously found in Decision No 354/2017. The Media Council thus concluded that, pursuant to Paragraph 48(7) of the Law on media services, Klubrádió’s broadcasting contract could not be renewed.
34      On 4 November 2020, the Media Council published the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz (‘the call for tenders at issue’). Klubrádió and two other media service providers, namely Közösségi Rádiózásért Egyesület and LBK Médiaszolgáltató 2020 Kft., submitted applications for that call for tenders.
35      By two decisions of 22 December 2020, the Media Council found that the applications submitted by the latter two providers were invalid on formal grounds.
36      In addition, by Decision No 180/2021 (III. 10.) of 10 March 2021, the Media Council found that Klubrádió’s application was invalid on substantive grounds and, therefore, declared the call for tenders at issue to be unsuccessful (‘the invalidity decision’).
37      That decision was based on three grounds: (i) point III.3 of the form submitted by Klubrádió in its tender
did not contain a description of a programme included in the weekly programming schedule set out in point III.2 of that form; (ii) in relation to another programme, the existence of a five-minute difference between the running time stated in point III.2 of the form and that stated in point III.3 thereof; and (iii) the negative net worth recorded in Klubrádió’s accounts during the five years preceding the date of submission of its application and the inability of that radio station to cover its expenditure with its net turnover alone.
38      According to the Media Council, under the Law on media services and the rules governing the call for tenders at issue, errors in the programming schedule cannot be corrected after the date of submission of that application. It states that the negative net worth would prevent attainment of the objective referred to in point 1.2 of the call for tenders at issue, namely to ensure the presence on the media markets of a radio station the functioning of which is stable and predictable.
39      On 30 March 2021, the Media Council and Közösségi Rádiózásért Egyesület concluded a temporary administrative contract under Paragraph 65 of the Law on media services for the purpose of operating the frequency 92.9 MHz between 3 May and 29 October 2021.
40      Klubrádió brought legal proceedings challenging both the refusal decision and the invalidity decision (together, ‘the decisions at issue’). Each of those decisions was upheld, first by the Fővárosi Törvényszék (Budapest High Court, Hungary) and then by the Kúria (Supreme Court, Hungary). Klubrádió also raised a plea of unconstitutionality before the Alkotmánybíróság (Constitutional Court, Hungary), which that court dismissed.
III. Pre-litigation procedure and procedure before the Court
41      On 22 October 2020, the Commission sent a letter to the Hungarian authorities seeking information on the grounds on which the refusal decision was based and on the applicable Hungarian legislation.
42      In reply to that letter, on 12 November 2020, the Chair of the NMHH stated that Paragraph 48(7) of the Law on media services does not confer any discretion on the Media Council which would allow it to examine, when assessing an application for renewal of the right to provide media services, whether that right may be renewed in the event of a less serious but repeated infringement. It explained that, under the provisions of that law, once it has been established, by a final decision of the Media Council, that the provider concerned committed a repeated infringement or a serious infringement, that right cannot be renewed.
43      On 12 February 2021, the Commission sent a further letter to the Hungarian authorities in which it expressed its concerns about the delays in allocating radio frequencies for broadcasting purposes and about whether the refusal decision complied with EU law, read in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter.
44      In reply to that letter, on 19 February 2021, the Chair of the NMHH stated that there was no legal possibility for Klubrádió, in the situation at hand, to provide media services on a temporary basis. The Chair of the NMHH also reiterated the explanations provided in the reply of 12 November 2020.
45      On 9 June 2021, the Commission, taking the view that the decisions at issue and the national rules underpinning their adoption constituted an infringement of several provisions of the EU regulatory framework for electronic communications and of Article 11 of the Charter, sent a letter of formal notice to Hungary.
46      Hungary replied to that letter by letter of 9 August 2021, in which it argued that the national legislation at issue and the outcome of the two administrative procedures initiated on the basis of that legislation were not contrary to EU law.
47      On 21 December 2021, the Commission issued a reasoned opinion in which, in the first place, it found that Hungary had failed to fulfil its obligations under Articles 5, 7 and 10 of the Authorisation Directive, Article 4(2) of the Competition Directive, Article 5(2) and Article 9 of the Framework Directive, the principles of proportionality, non-discrimination and sincere cooperation, and Article 11 of the Charter. It stated that those failures stem from (i) the adoption of the refusal decision by the Media Council, (ii) if the Media Council’s interpretation of Hungarian law is correct, the adoption of a law which, in the event of a repeated infringement, automatically precludes the renewal of rights to use the radio spectrum, even where the infringement at issue is not particularly serious and is of a purely formal nature, (iii) the failure to provide the information requested by the Commission in order to determine whether the refusal of Klubrádió’s application for renewal was consistent with the principle of non-discrimination, and (iv) the ensuing discriminatory and disproportionate impossibility for that radio station to pursue its activities in the broadcasting sector.
48      In the second place, the Commission took the view that, on account of (i) the failure to adopt, within the six-week period laid down in the Authorisation Directive, a decision on Klubrádió’s application for the renewal of its rights to use the radio spectrum, (ii) the failure to organise a procedure to allocate the radio frequency previously used by Klubrádió in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights of use, and (iii) the suspension of the allocation procedure on the ground that Klubrádió had exercised its right of appeal, Hungary had infringed Articles 4, 8 and 9 of the Framework Directive, Article 5(3) of the Authorisation Directive and the principle of good administration.
49      In the third place, the Commission stated that, owing to the fact that the Media Council had imposed disproportionate conditions on the allocation of rights to use the radio spectrum, that it had failed to determine in advance the criteria for allocating those rights, that it had not provided for any discretion enabling an assessment to be carried out of the seriousness and relevance of errors potentially affecting the files submitted by the applicants, which might entail their exclusion, and that it had disregarded how minor the errors affecting Klubrádió’s tender were, Hungary had infringed Article 5(2) of the Authorisation Directive, Article 45 of Directive 2018/1972 and Article 11 of the Charter.
50      In the fourth place, the Commission submitted that, by precluding media service providers whose rights to use radio frequencies have not been renewed from concluding a temporary administrative contract for the purpose of operating a radio frequency, while affording that possibility to service providers whose rights to use radio frequencies have already been renewed once, and by failing to justify that difference in treatment, Hungary had infringed Article 45(1) of Directive 2018/1972 and the principles of proportionality and non-discrimination.
51      The Commission called on Hungary to comply with the reasoned opinion within two months of the date of receipt thereof.
52      Hungary replied to that reasoned opinion on 2 February 2022, stating that the provisions and principles of EU law relied on by the Commission did not apply in the present case and claiming that neither the applicable rules of Hungarian law nor the decisions at issue infringed EU law.
53      Unconvinced by Hungary’s reply, the Commission decided to bring the present action.
54      By decisions of the President of the Court of 17 August 2023, the Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands were granted leave to intervene in support of the form of order sought by the Commission.
IV.    The action
A.      Applicability of EU law
1.      Applicability of the EU regulatory framework for electronic communications and the Charter
(a)    Arguments of the parties
55      Hungary submits, in the first place, that the EU regulatory framework for electronic communications does not apply either to the decisions at issue or to the procedures giving rise to their adoption, since those procedures and decisions are concerned not with the allocation of rights to use radio frequencies, but with the right to provide media services.
56      In that regard, first of all, Hungary relies on recital 5, Article 1(2) and (3) and Article 2(a) and (c) of the Framework Directive, which it claims reflect the distinction between, on the one hand, the right to provide media services, which relates to the supply of content and falls within the scope of media law, and, on the other hand, the right to use radio frequencies, which relates to the allocation of radio frequencies in connection with the right to provide media services and falls within the scope of the rules on electronic communications. It follows from that recital and those articles that the provision of media services and, consequently, the related authorisations and procedures are excluded from the scope of the EU regulatory framework for electronic communications.
57      Against that background, Hungary states that, under Hungarian law, authorisations to provide media services fall within the remit of the Media Council and are governed by the Law on media services, while authorisations for the use of radio frequencies fall within the remit of the NMHH and are governed by the a nemzeti frekvenciafelosztásról, valamint a frekvenciasávok felhasználási szabályairól szóló 7/2015. (XI. 13.) NMHH rendelet (Regulation 7/2015. (XI. 13.) of the National Communications and Media Authority laying down rules on the assignment of national frequencies and on the use of frequencies) and by the a polgári frekvenciagazdálkodás egyes hatósági eljárásairól szóló 7/2012. (I. 26.) NMHH rendelet (Regulation 7/2012. (I. 26.) of the National Communications and Media Authority on certain procedures for the management of civil frequencies).
58      It is claimed that the procedures resulting in those two types of authorisation are, moreover, different and independent of each other.
59      As regards, on the one hand, the procedure leading to the grant of authorisation to provide media services, Hungary submits that, under the Law on media services, the Media Council launches a tendering procedure, in the context of which it decides only on the tenders submitted with a view to securing an opportunity to provide those services. At the end of that tendering procedure, the Media Council initiates a procedure with a view to concluding an administrative contract with the successful tenderer, which will secure the right to provide media services if that contract is ultimately concluded (‘the broadcasting contract’). The broadcasting contract does not contain provisions concerning the use of radio frequencies or electronic communications, since its scope covers only the rights and obligations linked to the right to provide media services.
60      As regards, on the other hand, the procedure relating to the grant of authorisation to use radio frequencies in connection with the possibility of providing media services, Hungary states that, under the regulations referred to in paragraph 57 above, the rights to use frequencies in the frequency bands earmarked for broadcasting can be secured only by a media service provider that has won a call for tenders launched by the Media Council and has been granted, by means of the conclusion of a broadcasting contract, authorisation to provide media services, or by a broadcaster that has concluded a contract with such a service provider. On application, the NMHH issues individual broadcasting authorisations, examining for those purposes only the question of compliance with technical conditions.
61      Next, Hungary maintains that the conditions applying to authorisations to provide radio media services and the rules governing the related procedures were drawn up in order to achieve general interest objectives, such as the promotion of the right to news and to information on public affairs and the promotion of culture.
62      It follows, it is claimed, from the second subparagraph of Article 5(2) of the Authorisation Directive and Article 4 of the Competition Directive that such procedures are excluded from the application of the EU regulatory framework for electronic communications.
63      Lastly, Hungary states that, as EU law currently stands, the conditions and procedures associated with the grant of rights to provide radio content fall within the exclusive competence of the Member States.
64      Thus, in Hungary’s view, by its action, the Commission is attempting to extend the scope of EU law on electronic communications to cover matters relating to the design of the media system in the Member States, which fall within the competence of those Member States.
65      In the second place, Hungary submits that, since the decisions at issue and the procedures giving rise to their adoption do not amount to an implementation of EU law, the Charter is not applicable to those decisions and procedures. In its rejoinder, Hungary states that, as is apparent from Article 51(1) of the Charter, the question whether the Charter may be relied on in a given case depends not on the specific circumstances and context in which the national measures at issue were adopted, but on whether EU law, in the present case the EU regulatory framework for electronic communications, is applicable.
66      In the first place, the Commission, while acknowledging that a distinction should be drawn between the rules governing the content of media services and those dealing with transmission, nevertheless submits that the decisions at issue and the national rules underpinning their adoption relate to procedures concerning the use, by Klubrádió, of the frequency 92.9 MHz and therefore fall within the EU regulatory framework for electronic communications.
67      According to the Commission, that framework applies to all procedures by means of which Member States guarantee rights to use radio frequencies for broadcasters of audio and television content. The judgments of 31 January 2008, Centro Europa 7 (C‑380/05, EU:C:2008:59), and of 26 July 2017, Persidera (C‑112/16, EU:C:2017:597), show that that framework is applicable to providers of electronic communications services which are also media service providers.
68      The Commission maintains that it follows from Paragraph 48(7) of the Law on media services that the right to provide media services includes the right to use the radio spectrum, namely radio frequencies. In addition, although, according to Hungary, under Hungarian law, radio frequencies are allocated pursuant to a different procedure from that governing the grant of rights to provide media services and pursuant to national legislation other than the Law on media services, there is nothing to suggest that, in the present case, a procedure other than the call for tenders at issue was conducted in order to select the operator authorised to use the frequency 92.9 MHz.
69      The Commission also states that Article 5(2) of the Authorisation Directive, like Article 48(3) of Directive 2018/1972, provides for only one derogation – relating to the attainment of a general interest objective – from the principle that rights to use radio frequencies must be granted through open procedures. Consequently, the procedure for granting individual rights to use radio frequencies must, in any case, be objective, transparent, non-discriminatory and proportionate, which is confirmed by the judgment of 26 July 2017, Persidera (C‑112/16, EU:C:2017:597).
70      Furthermore, the Commission disputes Hungary’s argument that, as it currently stands, EU law does not apply to the decisions at issue and to the national rules underpinning their adoption. First, the allocation of radio frequencies does not fall within the exclusive competence of the Member States. Secondly, the fact that criteria relating to the content of media services, such as the programming schedule, were also assessed in the context of the call for tenders at issue does not render the EU regulatory framework for electronic communications inapplicable. In that context, the Commission, relying on the judgment of 3 September 2020, Vivendi (C‑719/18, EU:C:2020:627), states that national powers in the field of media regulation must be exercised having due regard for EU law.
71      Lastly, Hungary’s argument that the Commission is attempting to extend the scope of the EU regulatory framework for electronic communications is, it is claimed, unfounded, since that institution is challenging the decisions at issue and the national rules underpinning their adoption only in so far as they concern electronic communications networks and rights to use radio frequencies.
72      In the second place, according to the Commission, since, by adopting the decisions at issue, the Media Council implemented rules of the EU regulatory framework for electronic communications, it was required to comply with the Charter and, in particular, with the right to freedom of expression and information enshrined in Article 11 thereof.
73      The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(b)    Findings of the Court
(1)    The EU regulatory framework for electronic communications
74      As is already apparent from Article 1(1) of the Framework Directive, the EU regulatory framework for electronic communications establishes a harmonised regime in the field of electronic communications networks and services with a view to ensuring the implementation of an internal market in that field. To that end, that framework lays down, inter alia, rules on the grant of rights to use radio frequencies.
75      In that regard, Articles 5 and 7 of the Authorisation Directive, Article 9 of the Framework Directive, Article 4 of the Competition Directive and Article 45 of Directive 2018/1972, which the Commission claims have been infringed, provide that those rights must be allocated on the basis of objective, transparent, non-discriminatory and proportionate criteria. As the Court has already stated, those criteria must be respected not only during the initial assignment of the radio frequencies, but also with every subsequent assignment (judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 40). Consequently, those criteria must also be respected when those rights are renewed.
76      In the present case, although the decisions at issue, the procedures giving rise to the adoption of those decisions and the national rules at issue (‘the national measures at issue’) concern the provision of media services, the evidence in the file submitted to the Court nevertheless shows, as the Advocate General stated in point 31 of his Opinion, that the national measures at issue also concern the allocation of rights to use radio frequencies.
77      First, it is apparent, first of all, from the wording of the introductory part of, and the statement of reasons for, the refusal decision, annexed to the Commission’s application, that the subject matter of that decision is the non-renewal of the right to provide media services ‘on the frequency 92.9 MHz’. Next, it is apparent from the title of the call for tenders at issue, also annexed to the Commission’s application, that that call for tenders concerned the use of opportunities to provide media services in the ‘Budapest 92.9 MHz’ coverage area. The information table in the call for tenders at issue also mentions that radio frequency. Furthermore, point 1.2.1 of that call for tenders states that the objective of the call is to have ‘the Media Council ensure responsible, appropriate and effective management of the opportunities to provide media services for the frequency Budapest 92 MHz, as State property’.
In addition, Paragraph 48 of the Law on media services refers to ‘an analogue linear media service using limited State resources’ and ‘the right to provide analogue linear media services using limited State resources’. Lastly, Paragraph 65 of that law refers to the conclusion of a temporary administrative contract in order to exploit opportunities for the provision of media services in respect of which the NMHH has demonstrated that it is possible to provide media services inter alia ‘without causing interference to others’.
78      It thus follows from the very wording of the refusal decision, the call for tenders at issue and Paragraph 48 of the Law on media services that that decision, that call for tenders and that paragraph are concerned not only with the provision of media services, but also with the allocation of the right to use a radio frequency, in the present case the frequency 92.9 MHz. The terms in which Paragraph 65 of the Law on media services is couched also shows that the temporary administrative contract which may be concluded on the basis of that paragraph is concerned not only with the provision of media services, but also with the use of radio frequencies.
79      Secondly, it is apparent from the wording of the NMHH’s decision of 13 February 2014 on the grant of authorisation to Klubrádió to use the frequency 92.9 MHz, annexed to Hungary’s rejoinder, that the period of validity of that authorisation was the same as that of Klubrádió’s broadcasting contract, namely from 14 February 2014 to 14 February 2021. Moreover, that decision stated that the authorisation would come to an end on the date of expiry of the period stipulated in that contract or, in the event of its termination, either by mutual agreement or by the Media Council, on the date of that termination, without any specific administrative procedure for actual withdrawal or an administrative decision.
80      The language of that decision thus shows that the validity of the authorisation concerned was dependent on the validity of the right to provide media services, with the result that the loss of that right automatically entailed the loss of the right to use the frequency 92.9 MHz.
81      Thirdly, the explanations provided by Hungary, both during the written part of the procedure and at the hearing, concerning the detailed rules for implementing the procedures for the grant of rights to provide media services and rights to use radio frequencies also point to the existence of a direct link, in Hungary, between the right to provide media services and the right to use radio frequencies.
82      It is apparent from those explanations that, for the purpose of allocating radio frequencies, the Media Council must first launch a call for tenders for the provision of media services on a given radio frequency. The successful tenderer in that call for tenders is granted the right to provide those services pursuant to an administrative contract concluded with the Media Council, namely the broadcasting contract. Subsequently, on application, the NMHH, after verification of the technical conditions, authorises the use of that radio frequency by the successful tenderer or by the broadcaster with which the successful tenderer has entered into a contract for the purpose of broadcasting its radio content.
83      It follows that, in Hungary, access to radio frequencies with a view to broadcasting radio content is, in practice, limited exclusively to holders of the right to provide media services, irrespective of whether they themselves broadcast content on the radio frequency in question or whether such broadcasting is carried out by a broadcaster which has entered into a contract for that purpose with those rightholders.
84      Therefore, in that Member State, decisions which, like the invalidity decision, are issued in the context of a call for tenders such as the call for tenders at issue are ultimately concerned with the allocation of rights to use radio frequencies.
85      In the light of all those considerations, it would appear that the Hungarian system for the grant of rights relating to the provision of radio media services and the use of radio frequencies is designed and configured in such a way that those rights are directly linked. It follows that any national measure relating to the grant of rights to provide those services, such as the national measures at issue, necessarily produces effects vis-à-vis rights to use radio frequencies and thus falls within the scope ratione materiae of the EU regulatory framework for electronic communications.
86      Consequently, the national measures at issue fall within the scope ratione materiae of the EU regulatory framework for electronic communications.
87      That finding is not called into question by the fact that those national measures also relate to the provision of radio media services and that, as Hungary has submitted, the legislation concerning the provision of such services is excluded from the scope of the EU regulatory framework for electronic communications, as is apparent in particular from Article 2(c) of the Framework Directive and Article 2(4) of Directive 2018/1972.
88      Suffice it to note that, where a Member State, such as Hungary, in the exercise of the discretion it enjoys as regards the nature of, and detailed rules governing, the procedures it organises to allocate radio frequencies, decides that the users of those radio frequencies are to be selected having regard to criteria linked to the provision of radio content services, that Member State cannot sidestep the requirements imposed by the EU regulatory framework for electronic communications for the purpose of allocating the radio spectrum and, in particular, the principle that rights to use radio frequencies must be granted on the basis of objective, transparent, non-discriminatory and proportionate criteria (see, by analogy, judgment of 20 April 2023, DIGI Communications, C‑329/21, EU:C:2023:303, paragraph 31).
89      As the Advocate General observed, in essence, in point 33 of his Opinion, if that were not the case, Member States would easily be able to circumvent the rules of that framework on the grant of rights to use radio frequencies and thus undermine the objectives pursued by it, as defined in Article 8(2), (3) and (4) of the Framework Directive, in particular the objective relating to the promotion of competition in the provision of electronic communications networks, electronic communications services and associated facilities and services and to the efficient use and effective management of radio frequencies. Those rules would thus be deprived of any practical effect.
90      Furthermore, since the EU regulatory framework for electronic communications is applicable to the national measures at issue only in so far as those measures are concerned with the allocation of rights to use radio frequencies, it cannot be argued that the powers of the Member States in the field of media regulation have been undermined.
91      Lastly, Hungary’s argument that the procedures giving rise to the adoption of the decisions at issue fall within the scope of the derogation from the application of the EU regulatory framework for electronic communications, laid down in the second subparagraph of Article 5(2) of the Authorisation Directive, also cannot be upheld.
92      As the Commission points out, that provision, like Article 48(3) of Directive 2018/1972, provides only for the possibility of derogating from the principle that rights to use radio frequencies must be granted by means of open procedures where the grant of individual rights to use the radio spectrum to providers of radio or television broadcast content services is necessary to achieve a general interest objective laid down by Member States in accordance with EU law.
93      In the present case, as is apparent in particular from paragraph 34 above, the view cannot be taken that the tendering procedure at issue was not ‘open’ within the meaning of the second subparagraph of Article 5(2) of the Authorisation Directive and Article 48(3) of Directive 2018/1972.
94      In any event, the derogation laid down in those provisions does not entail the disapplication of the entire EU regulatory framework for electronic communications. In particular, even where that derogation applies, rights to use radio frequencies must be granted, in accordance with Article 9 of the Framework Directive, on the basis of objective, transparent, non-discriminatory and proportionate criteria (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraph 125).
(2)    The Charter
95      It should be borne in mind that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States ‘when they are implementing EU law’. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited).
96      In the present case, since the national measures at issue amount to an implementation of the EU regulatory framework for electronic communications, it is clear that, in adopting those measures, Hungary was required to respect the fundamental rights guaranteed by the Charter and, in particular, the right to freedom of expression and information enshrined in Article 11 thereof, relied on by the Commission.
97      It follows that the national measures at issue may be subject to review in the light of both the EU regulatory framework for electronic communications and the Charter.
98      Consequently, Hungary’s line of argument that that framework and the Charter do not apply to those measures must be rejected.
2.      Applicability ratione temporis of Directive 2018/1972
(a)    Arguments of the parties
99      The Commission, relying on the principle tempus regit actum, submits that the Authorisation Directive and the Framework Directive are applicable to the refusal decision and the call for tenders at issue, while Directive 2018/1972 is applicable to the invalidity decision.
100    Hungary, on the other hand, contends that that principle does not apply to an administrative procedure which is already ongoing. It claims that such a procedure is governed by the rules in force on the date on which it was initiated. Thus, in the present case, since the call for tenders at issue was launched before the date of entry into force of Directive 2018/1972, both that call for tenders and the invalidity decision are governed by the Authorisation Directive and the Framework Directive, even though that decision was adopted after the expiry of the deadline for transposing Directive 2018/1972. Therefore, so far as that decision is concerned, the Commission cannot base its action on an infringement of Directive 2018/1972.
101    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(b)    Findings of the Court
102    It should be noted that the difference in opinion between the Commission and Hungary as regards the applicability ratione temporis of Directive 2018/1972 relates only to the complaints directed at the call for tenders at issue and the invalidity decision. In that connection, the Commission pleads, in particular, an infringement by Hungary of the obligation requiring Member States to ensure that the allocation of individual rights to use the radio spectrum is based, inter alia, on transparent and proportionate criteria, an obligation flowing from the second subparagraph of Article 5(2) of the Authorisation Directive and, as from the date on which Directive 2018/1972 became applicable, from Article 45(1) thereof.
103    Furthermore, account must be taken of the fact that, as is apparent from recital 1 of Directive 2018/1972, that directive recasts several directives, including the Authorisation Directive and the Framework Directive. In that regard, Article 125 of Directive 2018/1972 states that those directives are repealed with effect from 21 December 2020 and that references to the repealed directives are to be construed as references to Directive 2018/1972. Article 45(1) of Directive 2018/1972 corresponds to Article 9(1) of the Framework Directive, which lays down, inter alia, the obligation for Member States to ensure that radio spectrum allocation used for electronic communications services is based on transparent and proportionate criteria.
104    That obligation, which is recalled in the second subparagraph of Article 5(2) of the Authorisation Directive, is equivalent to the obligation to observe the principles of transparency and proportionality when allocating radio frequencies, an obligation that Article 45(1) of Directive 2018/1972 imposes on Member States.
105    In those circumstances, Hungary’s line of argument concerning the applicability ratione temporis of Directive 2018/1972 must, in any event, be rejected.
B.      Admissibility
1.      Admissibility of the complaints raised in respect of the decisions at issue
(a)    Arguments of the parties
106    Hungary contests the admissibility of the action in so far as it concerns the decisions at issue.
107    In the first place, it claims that although the Commission formally alleges an infringement of provisions of EU law, it is actually questioning the conformity of those decisions with the provisions of the Law on media services or with the rules governing the call for tenders at issue.
108    According to Hungary, the question whether a decision of the Media Council complies with certain provisions of the Law on media services or with the call for tenders at issue goes far beyond the subject matter of the action for failure to fulfil obligations, the sole purpose of which is to enable the Court to declare that a Member State has failed to fulfil an obligation under EU law and to bring that infringement to an end.
109    In the second place, by submitting that, in accordance with the Court’s settled case-law, only an established, consistent and general administrative practice may be the subject of an action for failure to fulfil obligations, Hungary contests the admissibility of the present action in so far as it is directed at two individual administrative decisions, decisions which, moreover, were confirmed – following actions brought before the national courts – by judicial decisions having the status of res judicata.
110    In its rejoinder, Hungary states that, unlike the decisions mentioned in the judgments to which the Commission refers, the decisions at issue are not general decisions concerning a group of operators that are not clearly defined, disclosing a consistent and uniform practice, but decisions directed at a specific operator.
111    The Commission claims, in the first place, that, in its action, it alleges only an infringement of EU law. In that connection, it states that, in the context of the pre-litigation procedure, two alternatives were envisaged. The first alternative is based on Hungary’s assertions that, under the Law on media services, the Media Council had no discretion when it adopted the decisions at issue. In that scenario, the Law on media services would be contrary to EU law since it would require the Media Council to adopt decisions that are incompatible with EU law. The second alternative is based on the interpretation that, in the Commission’s view, follows from the wording of the Law on media services, namely that the Media Council did have discretion when it adopted the decisions at issue. In that scenario, by adopting those decisions, the Media Council exercised its discretion in a manner incompatible with EU law.
112    In the second place, the Commission submits that, according to settled case-law, it may initiate infringement proceedings not only in relation to an administrative practice, but also in individual cases of misapplication of EU law.
113    Furthermore, the fact that a decision has been the subject of an action at national level does not preclude the Commission from pleading, in infringement proceedings, that such a decision is inconsistent with EU law, in particular where, as here, the national courts concerned have not made a request for a preliminary ruling to the Court of Justice.
114    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(b)    Findings of the Court
115    As regards, in the first place, the ground of inadmissibility referred to in paragraphs 107 and 108 above, while it is true that, in some sections of its application, the Commission refers to a possible conflict between the decisions at issue and the national rules underpinning their adoption, particularly as regards the refusal decision, it is nevertheless clear from the application that the Commission seeks only a declaration that the decisions at issue or those rules do not comply with several provisions of the EU regulatory framework for electronic communications and with Article 11 of the Charter.
116    As regards, in the second place, the ground of inadmissibility alleging that individual decisions cannot be the subject of an action for failure to fulfil obligations, first of all, it should be noted that Articles 258 and 259 TFEU do not limit the review which the Court is called upon to carry out in the context of an action for failure to fulfil obligations solely to provisions or acts of general application adopted by the Member States. It may thus be inferred from this that individual decisions and acts adopted by the Member States may also be the subject of an action for failure to fulfil obligations, where the Commission takes the view that they were adopted in breach of EU law.
117    Next, the Court has held that, given its role as guardian of the Treaties, the Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. In that context, the Court has made clear that the Commission may in particular ask it to find that, in not having achieved, in a specific case, the result intended that by the directive, a Member State has failed to fulfil its obligations (judgment of 10 April 2003, Commission v Germany, C‑20/01 and C‑28/01, EU:C:2003:220, paragraph 30 and the case-law cited).
118    In that regard, it should be noted that it is apparent in particular from Article 9(1) of the Framework Directive that Member States are under an obligation to ensure that the allocation of the spectrum of radio frequencies by the competent authorities is based on objective, transparent, non‑discriminatory and proportionate criteria. That provision makes clear that that obligation applies both to the grant of general authorisations and to the grant of individual rights to use such radio frequencies.
119    Thus, without prejudice to the Commission’s obligation to discharge its burden of proof, the Court has already recognised that the subject matter of an action for failure to fulfil obligations may be an individual act or decision.
120    Furthermore, in its case-law concerning the possibility of bringing an action for failure to fulfil obligations in respect of an administrative practice, the Court has confined itself to setting out the conditions that must be satisfied by such a practice if it is to form the subject matter of an action for failure to fulfil obligations, without ruling on whether or not it is possible to bring such an action in respect of an individual act or decision.
121    Finally, there is nothing in Articles 258 and 259 TFEU or in the case-law of the Court to suggest that the dismissal of national actions brought against an individual decision, by national judicial decisions having the status of res judicata, prevents such an individual decision from giving rise to an action for failure to fulfil obligations.
122    In the light of the foregoing considerations, the grounds of inadmissibility put forward by Hungary as regards the complaints raised in respect of the decisions at issue must be rejected.
2.      Admissibility of the complaint alleging breach of the principle of sincere cooperation
123    In the first head of claim in its application, the Commission pleads a breach, by Hungary, of the principle of sincere cooperation.
124    However, the Commission does not make any reference to that principle when setting out the complaints on which the present action is based or when advancing the arguments relied on in support of those complaints.
125    Consequently, the action is inadmissible in so far as it seeks a declaration that Hungary has breached the principle of sincere cooperation.
C.      Substance
126    The Commission puts forward four sets of complaints in support of its action.
127    The first set of complaints, directed at Paragraph 48(7) of the Law on media services and the refusal decision, alleges infringement of Articles 5, 7 and 10 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive and breach of the principles of proportionality, non-discrimination and good administration. The second set, directed at the call for tenders at issue and the invalidity decision, alleges infringement of Article 5(2) and (3) of the Authorisation Directive, Articles 8 and 9 of the Framework Directive and Article 45 of Directive 2018/1972. The third set, directed at Paragraph 65(11) of the Law on media services, alleges infringement of Article 45(1) of Directive 2018/1972 and breach of the principles of proportionality and non-discrimination. The fourth set of complaints alleges infringement of Article 11 of the Charter.
1.      The complaints concerning Paragraph 48(7) of the Law on media services and the refusal decision
128    The Commission claims, in essence, that Hungary has failed to fulfil its obligations under Articles 5, 7 and 10 of the Authorisation Directive, Article 4 of the Competition Directive, Article 9 of the Framework Directive and the principles of proportionality and non-discrimination. Those failures are said to stem from (i) the adoption of the refusal decision by the Media Council, (ii) the adoption of Paragraph 48(7) of the Law on media services, which automatically precludes the renewal of rights to use the FM broadcasting radio spectrum if the rightholder has repeatedly infringed its obligation to transmit data on broadcasting quotas, including where the infringements committed were minor infringements of a purely formal nature and have already been penalised by fines subsequently resulting in full compliance, and (iii) the ensuing discriminatory and disproportionate impossibility for Klubrádió to pursue its activities in the broadcasting sector.
129    The Commission also argues that Hungary has failed to fulfil its obligations under Article 5(3) of the Authorisation Directive and the principle of good administration by failing to adopt, within the six-week period laid down in that provision, a decision on Klubrádió’s application for the renewal of its rights to use the radio spectrum.
(a)    The complaint alleging breach of the principle of proportionality
(1)    Arguments of the parties
130    The Commission submits that Paragraph 48(7) of the Law on media services or, at the very least, the manner in which the Media Council applied that provision to Klubrádió does not comply with Articles 5, 7 and 10 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive and, in particular, the principle of proportionality referred to in those articles.
131    In the first place, the Commission submits that the refusal decision is at odds with the principle of proportionality because the refusal to renew Klubrádió’s right to provide media services was based solely on the fact that, during the seven-year term of Klubrádió’s broadcasting contract, that radio station twice infringed its obligation to transmit data on broadcasting quotas.
132    The Commission maintains that the refusal to renew the right to provide media services is comparable to a penalty. It bases its position in that regard on the seriousness of the consequences flowing from such a refusal, under Hungarian law, for a media service provider, namely, first, the impossibility of continuing to supply content on a radio frequency unless that provider wins a new call for tenders and, secondly, if that call for tenders is unsuccessful, the impossibility of concluding a temporary administrative contract in order to continue to supply that content on the radio frequency in question until the closure of another new call for tenders.
133    In that connection, the Commission refers to the case-law of the Court from which, it is claimed, it is apparent that, first, for the purposes of assessing the proportionality of a penalty, account must be taken of the nature and seriousness of the infringement which that penalty seeks to penalise and, secondly, the penalty must be sufficiently adjustable according to the seriousness of the infringement.
134    In addition, the Commission asserts that the refusal to renew the right to provide media services is comparable to the withdrawal or suspension of that right. Such withdrawal or suspension is one of the most serious penalties, which, under Article 10(5) of the Authorisation Directive, may be imposed only if the principle of proportionality is observed and only in the event of serious or repeated breaches, inter alia, of the conditions governing rights to use radio frequencies.
135    In that context, the Commission states that the refusal to renew Klubrádió’s right to provide media services is not a proportionate legal consequence having regard to the seriousness of the infringements committed by that radio station.
136    It claims that, first, at the time of the acts constituting the infringements at issue, Paragraph 22(8) of the Law on media services did not set any deadline for compliance with the obligation to transmit data on broadcasting quotas. Secondly, in the two cases referred to in Decisions Nos 354/2017 and 1224/2017, Klubrádió complied with that obligation during the penalty procedure. Thirdly, the Media Council did not find, on the basis of the data provided by Klubrádió in order to comply with that obligation, that the programmes broadcast by Klubrádió failed to fulfil that radio station’s broadcasting quota obligations. Fourthly, the Media Council penalised each of the two infringements established in those decisions by a fine of between HUF 30 000 (approximately EUR 75) and HUF 36 000 (approximately EUR 90), whereas, under Paragraph 187(1) of the Law on media services, the maximum fine that may be imposed in the event of a repeated infringement is HUF 2 000 000 (EUR 5 420), which shows that those infringements were minor infringements. Fifthly, Klubrádió paid the fines it was given and the penalty imposed achieved its purpose since, following those decisions, the Media Council did not find Klubrádió to have committed any further infringements.
137    In the second place, the Commission submits that, if Paragraph 48(7) of the Law on media services were to be interpreted as automatically precluding renewal of the right to provide media services in all cases where the provider concerned has committed a repeated infringement, including where it has, on several occasions, been late in complying with its obligation to transmit data on broadcasting quotas, that provision would be contrary to the principle of proportionality.
138    Such an interpretation of that provision would, it is claimed, leave the Media Council no discretion to assess whether the infringement in question was of an insignificant or insufficiently serious nature or whether the decisions on renewal of the right to provide media services observed the principle of proportionality, and would thus have the effect of compelling the Media Council to adopt decisions that are incompatible with that principle.
139    By contrast, according to the Commission, if Paragraph 48(7) of the Law on media services, read in conjunction with Paragraph 185(2) thereof, were to be interpreted as meaning that the Media Council has discretion when it adopts decisions on renewal of the right to provide media services, in the light of the considerations set out in paragraph 136 of this judgment, the Media Council exercised its discretion in a manner incompatible with the principle of proportionality when it adopted the refusal decision. In such a situation, only the refusal decision would be contrary to that principle.
140    In its defence, in the first place, Hungary contends that the refusal to renew the right to provide media services is not intended to penalise the conduct of a provider that has applied for renewal of that right, but is the consequence of that provider’s failure to comply with a pre-defined requirement for entitlement to renewal. Such a refusal cannot, in particular, be placed on the same footing as the penalty of withdrawal provided for in Article 10(5) of the Authorisation Directive, since that penalty would terminate the broadcasting contract concerned, before expiry of the term of the contract. The refusal to renew the right to provide media services produces effects only in relation to the period subsequent to the date of expiry of that contract.
141    Thus, Hungary states that neither the requirements arising from Article 10(5) of the Authorisation Directive nor the case-law on the principle of proportionality in the realm of penalties is relevant in the present case.
142    In the second place, as regards the alleged breach of the principle of proportionality by Paragraph 48(7) of the Law on media services, Hungary submits that EU law does not prevent national legislation from laying down conditions precluding the renewal of the right to provide media services without there being any scope for the exercise of discretion, since objective conditions laid down in advance in a law guard against the possibility of the law being applied in an arbitrary and discriminatory manner.
143    According to Hungary, the criteria for refusing to renew the right to provide media services established in the Law on media services are objective, transparent, non-discriminatory and proportionate, since such renewal is precluded only in the case of serious or repeated infringements established by final decisions.
144    Hungary maintains that proportionality is guaranteed by the fact that, as is apparent from Paragraph 187(5) of the Law on media services, minor infringements cannot constitute repeated infringements. Likewise, the legal definition of the cumulative conditions for classifying an infringement as a ‘repeated infringement’ ensures, by means of the principle of progressiveness, that the renewal of the right to provide media services will be refused only in cases involving the most serious and most flagrant infringements.
145    Furthermore, Hungary states that the seriousness of the infringement concerned is not assessed in the context of the procedure for renewal of the right to provide media services, since that procedure is not a penalty procedure. The seriousness of a given infringement is assessed in the context of the latter procedure by the Media Council, which must, inter alia, establish whether that infringement is serious or repeated, requiring it to examine, in particular, whether the infringement is of a minor nature.
146    Lastly, Hungary adds that, if discretion were conferred on the Media Council, the latter would have to re-examine the serious or repeated nature of the infringements, as established by a final decision, when deciding whether to renew the right to provide media services, which would run counter to the principles of the rule of law, legal certainty and equal treatment.
147    In the third place, as regards breach of the principle of proportionality by the refusal decision, Hungary contends that the refusal to renew Klubrádió’s right to provide media services does not stem from the application of disproportionate provisions of Hungarian legislation or from an arbitrary decision of the Media Council, but is the sole result of the Media Council’s finding, in final decisions, that Klubrádió committed a series of repeated infringements.
148    In that regard, Hungary disputes the Commission’s argument that the infringements established in Decisions Nos 354/2017 and 1224/2017 constitute minor infringements.
149    First, it states that the fact that the fines imposed were small does not demonstrate that the infringements were of a minor nature. The amount of those fines does not give any indication of the seriousness of the infringements concerned, especially in the absence of comparative data. In addition, when determining that amount, the Media Council took account of Klubrádió’s financial situation to ensure that it did not impose a penalty which would make it impossible or difficult for that radio station to operate, in accordance not only with the principles of proportionality and progressiveness, but also with the procedural code applicable on the date of adoption of Decisions Nos 354/2017 and 1224/2017.
150    Secondly, Hungary submits that the Commission was wrong to assert that, at the time of the acts constituting the infringements at issue, Paragraph 22(8) of the Law on media services did not set any deadline for compliance with the obligation to transmit data on broadcasting quotas. The national legislature amended that provision with effect from 3 August 2011 to state that ‘media service providers shall be required, each month, to provide to the Media Council data allowing compliance with broadcasting quotas to be monitored’. The fact that, in the procedures giving rise to the adoption of Decisions Nos 354/2017 and 1224/2017, Klubrádió did not make any statement on, or raise any objection to, the alleged absence of a deadline for compliance with the obligation in question and that it did not bring legal proceedings against those decisions demonstrates that it was aware of its obligations with regard to the transmission of data on broadcasting quotas and of the Media Council’s decision-making practice in that respect.
151    Thirdly, Hungary claims that the importance of the obligation to transmit data on broadcasting quotas justifies the conclusion that the infringements committed by Klubrádió were not minor infringements. In that regard, it states that the failure to transmit or the late transmission of those data hinders the Media Council’s ability to monitor compliance with the broadcasting quota obligations of the provider concerned, thus making it easier for that provider to avoid a finding that it has committed another potential infringement.
152    Fourthly, according to Hungary, neither the fact that, in the course of the procedures giving rise to the adoption of Decisions Nos 354/2017 and 1224/2017, Klubrádió complied with its obligation to transmit data on broadcasting quotas, nor the fact that it subsequently paid the fines imposed, has any bearing on the fact that Klubrádió infringed that obligation.
153    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(2)    Findings of the Court
(i)    The applicability of Article 10 of the Authorisation Directive
154    By its complaint alleging breach of the principle of proportionality, the Commission claims that the refusal decision and, potentially, Paragraph 48(7) of the Law on media services do not comply with the principle of proportionality, as reflected not only in Articles 5 and 7 of the Authorisation Directive, Article 9 of the Framework Directive and Article 4 of the Competition Directive, but also in Article 10 of the Authorisation Directive.
155    As the Court has stated in paragraphs 74 and 75 above, Articles 5 and 7 of the Authorisation Directive, Article 9 of the Framework Directive and Article 4 of the Competition Directive lay down the rules governing the allocation of rights to use radio frequencies.
156    For its part, Article 10 of the Authorisation Directive lays down the rules governing the Member States’ obligation to monitor and supervise compliance with the conditions which may be attached to rights to use radio frequencies and, in particular, the measures which Member States may adopt in order to ensure compliance with those conditions.
157    It is apparent from the analysis carried out in the context of the examination of the applicability of the EU regulatory framework for electronic communications to the national measures at issue and, in particular, from paragraph 76 of this judgment, that Paragraph 48(7) of the Law on media services and the refusal decision amount to an implementation of the provisions of that framework concerning the allocation of rights to use radio frequencies.
158    Consequently, the question whether the refusal decision and Paragraph 48(7) of the Law on media services are compliant must be assessed solely in the light of the principle of proportionality as reflected in Articles 5 and 7 of the Authorisation Directive, Article 9 of the Framework Directive and Article 4 of the Competition Directive.
(ii) The scope of Paragraph 48(7)(a) of the Law on media services
159    As is apparent from paragraphs 137 to 139 above, the complaint alleging breach of the principle of proportionality by Hungary rests on a line of argument put forward by the Commission which is based on two alternative scenarios. The first scenario is that Paragraph 48(7) of the Law on media services confers on the Media Council, when it adopts decisions concerning applications for renewal of the right to provide media services, discretion to assess the seriousness and repeated nature of the infringements committed by the provider concerned, with the result that only the refusal decision is at odds with the principle of proportionality, in so far as, having regard to the considerations set out in paragraph 136 of this judgment, the Media Council infringed that principle when it exercised its discretion. The second scenario is that that provision does not confer such discretion on the Media Council, with the result that the provision itself infringes the principle of proportionality, in so far as it gives rise to the adoption of decisions contrary to that principle.
160    It is therefore necessary to determine at the outset, in the light of the information in the file submitted to the Court, the scope which Hungarian law confers on Paragraph 48(7) of the Law on media services.
161    In accordance with that provision, the right to provide media services may not be renewed inter alia where, by a final decision of the Media Council, the provider concerned has been found to have committed repeated or serious infringements of the relevant contract or of the provisions of the Law on freedom of the press or the Law on media services.
162    Under Paragraph 187(5) of the Law on media services, an infringement is deemed to be a repeated infringement if, within a period of 365
days, the infringer has engaged in the same wrongful conduct – falling within the same legal basis, the same legal provision and the same field – as that found to have been committed by final administrative decision, with the exception of minor infringements.
163    It is apparent from the explanations provided by Hungary during the written part of the procedure that Paragraph 48(7) of the Law on media services is interpreted as meaning that, when it adopts decisions concerning applications for renewal of the right to provide media services, such as the refusal decision, the Media Council has no discretion to assess the seriousness and repeated nature of the infringements committed by the provider concerned. The Media Council merely verifies whether, during the period of validity of the right for which renewal is sought, it adopted a final decision in respect of that provider finding that it had committed a serious or repeated infringement. If so, it is required, pursuant to that provision, to refuse to renew that right. It is also apparent from those explanations that it is when it adopts decisions concerning penalty procedures, such as Decisions Nos 354/2017 and 1224/2017, that the Media Council assesses whether the infringements committed by the provider concerned are serious or of a repeated nature and, where appropriate, makes a finding to that effect.
164    The documents produced by the parties confirm that Paragraph 48(7) of the Law on media services is interpreted and applied in the manner set out in the preceding paragraph of this judgment.
165    First of all, in the refusal decision, the Media Council merely lists the final decisions adopted in the context of the penalty procedures initiated against Klubrádió and states that, in Decision No 1224/2017, it found that that radio station had infringed the obligation to transmit data on broadcasting quotas and that the infringement was of a repeated nature.
166    Next, it is apparent from the table setting out the grounds for the decisions refusing to renew the right to provide media services delivered by the Media Council, produced by Hungary during the pre-litigation procedure and annexed to the Commission’s application (‘the table setting out the grounds for refusal’), that the assessment of the serious or repeated nature of the infringements committed by the providers concerned was carried out not in the decisions refusing to renew that right, but in the final decisions adopted in the context of penalty procedures.
167    Lastly, Decision No 265/18 (III.29) of 27 March 2018, adopted in a penalty procedure initiated against the radio station Kun-Média and annexed to the Commission’s reply, confirms that it is at the stage of the adoption of decisions concerning penalty procedures that the Media Council assesses whether the infringement is serious and, if that assessment shows that the infringement is not a minor one, whether or not it is of a repeated nature.
168    Consequently, given that the Law on media services does not confer discretion on the Media Council, the examination of the complaint alleging breach of the principle of proportionality requires the Court to examine the merits of the Commission’s arguments alleging breach of that principle not by the Media Council, but by Paragraph 48(7) of that law.
(iii) The breach of the principle of proportionality by Paragraph 48(7) of the Law on media services
169    As is apparent from Article 9(1) of the Framework Directive, taking account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States are to ensure the effective management of those radio frequencies for electronic communications services in their territory, in accordance with the regulatory tasks specified in the EU regulatory framework for electronic communications and with a view to achieving the objectives set out, inter alia, in Article 8 of that directive.
170    Under Article 4(2) of the Competition Directive, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, rights to use radio frequencies must to be allocated on the basis of objective, transparent, non-discriminatory and proportionate criteria (judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 39 and the case-law cited). Those criteria, which, as pointed out in paragraph 75 above, are applicable when those rights are renewed, must, moreover, be applied having regard to the objectives set out in Article 8 of the Framework Directive (see, to that effect, judgment of 26 July 2017, Europa Way and Persidera, C‑560/15, EU:C:2017:593, paragraph 72).
171    It follows from paragraphs 161 to 163 of this judgment that Paragraph 48(7) of the Law on media services has the effect of automatically depriving certain providers, namely those which the Media Council has, by a final decision, found to have committed a serious or repeated infringement of the broadcasting contract concerned or of the provisions of the Law on freedom of the press or the Law on media services, of the possibility of securing the renewal of their right to provide media services, which, as the Court has found in its analysis of the applicability of the EU regulatory framework for electronic communications to the national measures at issue, also concerns the use of a radio frequency.
172    Accordingly, Paragraph 48(7) of the Law on media services must be regarded as contributing to the definition of the criteria applying, under Hungarian law, to the allocation of rights to use radio frequencies, with the result that it must satisfy the requirements laid down in the provisions of EU law referred to in paragraph 170 of this judgment, and, in particular, the requirement relating to the proportionality of such criteria.
173    In that regard, it should be observed that compliance with the conditions attached to rights to use radio frequencies is crucial to ensuring the efficient use and effective management of such radio frequencies. Therefore, a ground for the refusal to renew those rights based on non-compliance, during the period of validity of those rights, with the obligations of the provider concerned can be considered to be a criterion for the selection of users of radio frequencies that is linked to the objective of promoting competition by encouraging the efficient use and ensuring the effective management of radio frequencies, referred to in Article 8(2)(d) of the Framework Directive.
174    However, as is apparent from the Court’s case-law, the requirement of proportionality referred to in paragraph 170 above means that the criteria for allocating rights to use radio frequencies must be appropriate for attaining their objective and must not go beyond what is necessary in order to attain that objective (judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 39 and the case-law cited).
175    While it is true that the taking into account, when examining an application for the renewal of rights to use radio frequencies, of past infringements of the contract or of the rules applying to the use of radio frequencies may contribute to the objective relating to their efficient use and effective management, the fact remains that the extent to which those infringements are likely to undermine that objective depends on their seriousness. Consequently, in order to ensure that the taking into account of such infringements does not go beyond what is necessary to achieve that objective, a balance must be struck between the seriousness of the infringement previously committed and the decision on renewal of those rights of use.
176    In the present case, it should be observed that Paragraph 48(7) of the Law on media services provides not that the existence of past infringements of the broadcasting contract concerned, of the Law on media services or of the Law on freedom of the press is one of the criteria to be considered when examining an application for the renewal of rights to provide media services, but rather that such renewal is automatically precluded for operators which have committed a repeated infringement of that contract or of those laws, with the result that, as the Commission has pointed out, the application of that provision has the effect of preventing those providers from continuing to broadcast content on a radio frequency.
177    Accordingly, a refusal to renew the right to provide media services of a provider which has committed a repeated infringement will be proportionate only if it has been determined that, in the light of the seriousness of that infringement, such a refusal is necessary to ensure the attainment of the objective of ensuring the efficient use and effective management of radio frequencies.
178    Such a determination must, therefore, be made on a case-by-case basis, taking into account, in particular, the nature of the repeated infringement committed by the provider concerned and the individual circumstances of the specific case which are relevant for the purposes of ascertaining, when examining an application for renewal of the right to provide media services, the seriousness of that infringement and its consequences for that provider’s access to radio frequencies with a view to broadcasting content.
179    It should be added that, as is apparent from the preceding paragraph, the determination that the Media Council is required to make when examining applications for renewal of the right to provide media services is different from the examination that it is called upon to carry out in the context of penalty procedures, in which it is required in particular to determine, for the sole purpose of those proceedings, that a balance has been struck between the seriousness of the infringement and the penalty that should be imposed as punishment.
180    Thus, Hungary’s argument that conferring discretion on the Media Council when it examines applications for renewal of the right to provide media services would infringe the principles of the rule of law, legal certainty and equal treatment because the Media Council would have to re-examine the serious or repeated nature of the infringements, as established by a final decision, is unfounded.
181    Therefore, by requiring the Media Council to refuse, automatically and in all cases, to renew the right to provide media services where the provider concerned has committed a repeated infringement, without allowing the Media Council any discretion in order to determine, when examining applications for renewal of that right, whether a balance has been struck between the seriousness of the infringement at issue and the seriousness of the consequences of the refusal to renew for that provider’s access to radio frequencies, Paragraph 48(7) of the Law on media services infringes the requirement flowing from Article 4(2) of the Competition Directive, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, according to which the renewal of rights to use radio frequencies must be based on proportionate criteria.
182    Consequently, without it being necessary to examine the Commission’s arguments set out in paragraph 136 of this judgment, it must be held that the refusal decision, in so far as it was adopted under Paragraph 48(7) of the Law on media services and, therefore, on the basis of national rules on the grant of rights to use radio frequencies which do not comply with the requirement of proportionality imposed by the provisions of EU law referred to in the preceding paragraph of this judgment, also infringes that requirement.
183    Therefore, the complaint alleging breach of the principle of proportionality, as reflected in Articles 5 and 7 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive, is well founded.
(b)    The complaint alleging breach of the principle of non‑discrimination
(1)    Arguments of the parties
184    The Commission submits that Paragraph 48(7) of the Law on media services or, at the very least, the manner in which the Media Council applied that provision to Klubrádió infringes Articles 5 and 7 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive and, in particular, the principle of non-discrimination referred to in those articles.
185    The Commission refers to the data contained in the table setting out the grounds for refusal, which it claims shows that, except in the case of Klubrádió, the Media Council has never refused to renew the right to provide media services solely because the provider concerned had not complied with its obligation to transmit data on broadcasting quotas.
186    The Commission also claims that some radio stations, namely Inforádio, Rádió Smile and Kun-Média, secured the renewal of their right to provide media services despite the fact that they had committed infringements comparable to, or even more serious than, those committed by Klubrádió.
187    Hungary contends that the Hungarian provisions ensure transparency, objectivity and non-discrimination by establishing objective criteria which apply to all media service providers for the purpose of securing the renewal of their right to provide media services.
188    Against that background, Hungary disputes, in particular, the Commission’s assertion that, with the exception of Klubrádió, the Media Council has never refused to renew the right to provide media services solely because the provider concerned had not complied with the obligation to transmit data on broadcasting quotas. The table setting out the grounds for refusal shows that the Media Council did not renew Fehérvár Médiacentrum Kft.’s right to provide media services because it had previously found, in a final decision, that that provider had repeatedly failed to comply with that obligation.
189    As regards the decisions in respect of Inforádió, Rádió Smile and Kun-Média, Hungary submits that the facts giving rise to those decisions differ from the facts concerning Klubrádió and that the procedures resulting in the adoption of those decisions were conducted in a different legal context, so that they are not comparable to the procedure conducted in connection with the renewal of Klubrádió’s right to provide media services. Furthermore, since the Commission has not explained whether it reviewed all the decisions that could be taken into consideration in order to establish discrimination or whether only the decisions it referred to could be taken into consideration for those purposes, the decisions in respect of Inforádió, Rádió Smile and Kun-Média are merely examples. In addition, given that the Commission annexed only one of the latter decisions to its application, namely that in respect of Kun-Média, it is claimed that the Court is not in a position to determine whether the situations at issue are comparable. Thus, in any event, the Commission has not shown that the Media Council’s decision-making practice was in fact discriminatory.
190    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(2)    Findings of the Court
191    Under Article 4(2) of the Competition Directive, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, the criteria for allocating rights to use radio frequencies must observe the principle of non-discrimination.
192    In accordance with the Court’s case-law, the principle of equal treatment, of which the principle of non-discrimination is a specific expression, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise those situations and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account (see, to that effect, judgment of 26 July 2017, Europa Way and Persidera, C‑560/15, EU:C:2017:593, paragraph 69 and the case-law cited).
193    In the present case, it is apparent from the table relating to the grounds for refusal that, by Decision No 1203/2019 (X.8), the Media Council refused to renew Médiacentrum’s right to provide media services solely because, in Decision No 1115/2016, it had found that, between 23 and 31 May 2016, that provider had not complied with the obligation to transmit data on broadcasting quotas and that that infringement was of a repeated nature.
194    Furthermore, the decisions in respect of the radio stations Inforádio, Radio Smile and Kun-Média were adopted in a different legal and factual context from that which led to the adoption of the refusal decision.
195    Therefore, as the Advocate General stated in point 65 of his Opinion, the evidence adduced by the Commission does not demonstrate that the refusal decision entails discrimination vis-à-vis Klubrádió.
196    Therefore, the complaint alleging breach of the principle of non-discrimination, as reflected in Articles 5 and 7 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive, must be rejected.
(c)    The complaint alleging that the refusal decision was not adopted in good time
(1)    Arguments of the parties
197    The Commission states that the procedure giving rise to the adoption of the refusal decision was initiated on 8 November 2019, the date on which Klubrádió’s application for renewal was submitted, and was closed on 8 September 2020, the date of the refusal decision, thus lasting ten months.
198    Accordingly, the Commission claims that, by adopting the refusal decision, the Media Council infringed Article 5(3) of the Authorisation Directive, which lays down a six-week period for the adoption of decisions on the grant of rights of use in the case of radio frequencies that have been allocated to be used by electronic communications services within the national frequency plan, unless those rights are granted through competitive or comparative selection procedures, which, according to the Commission, was not the case with the refusal decision.
199    In addition, the Commission argues that the Media Council also infringed the principle of good administration, since compliance with time limits is an expression of that principle.
200    Hungary contends that the procedure giving rise to the adoption of the refusal decision is not a procedure for the allocation of radio frequencies, but a procedure for the renewal of the right to provide media services. No provision of EU law lays down a time limit for the renewal of that right.
201    Furthermore, Hungary states that Paragraph 48(5) of the Law on media services lays down specific time limits both for applying for the renewal of that right and for the adoption of decisions on such applications. Those time limits not only ensure that those decisions are taken in good time, but also guard against the eventuality of the Media Council granting that application before the date of expiry of the broadcasting contract at issue and of a finding subsequently being made that the media service provider concerned committed an infringement precluding such renewal.
202    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(2)    Findings of the Court
203    Since, as is apparent from paragraphs 74 to 94 above, the procedure giving rise to the adoption of the refusal decision is concerned with the grant of rights to use radio frequencies, that procedure is subject to the provisions forming part of the EU regulatory framework for electronic communications, including, in particular, the provision relating to the time limits for the adoption of decisions on the grant of those rights, namely Article 5(3) of the Authorisation Directive.
204    In accordance with that provision, the refusal decision should have been adopted within six weeks of the date of receipt of Klubrádió’s complete application for renewal of its right to provide media services.
205    Given that, as the Court has pointed out in paragraph 31 above, Klubrádió submitted its application on 8 November 2019 and the refusal decision is dated 8 September 2020, it is clear that that decision was adopted ten months after the submission of that application and, therefore, long after the expiry of the time limit laid down in Article 5(3) of the Authorisation Directive.
206    It should be added, having regard to the scope of Paragraph 48(7) of the Law on media services and to the manner in which that provision is applied in Hungary, that, when the refusal decision was adopted, the Media Council was required only to verify whether, during the term of Klubrádió’s broadcasting contract, it had adopted a final decision in respect of that radio station finding it to have committed a serious or repeated infringement. In those circumstances, there is no reasonable explanation for the delay of approximately eight and a half months in the adoption of the refusal decision.
207    In that respect, it should be borne in mind that, as the Court has already held, where a Member State implements EU law, the requirements pertaining to the right to good administration, as a general principle of EU law, including the right of any person to have his or her affairs handled within a reasonable period of time, are applicable in a procedure conducted by the competent national authority (judgment of 6 March 2025, Obshtina Veliko Tarnovo and Obshtina Belovo, C‑471/23 and C‑477/23, EU:C:2025:155, paragraph 73 and the case-law cited).
208    Consequently, since it adopted the refusal decision long after the expiry of the six-week period from the date of receipt of Klubrádió’s complete application for renewal of its right to provide media services, the Media Council infringed Article 5(3) of the Authorisation Directive and the principle of good administration.
(d)    Conclusion
209    In the light of the foregoing considerations, the Court upholds in part the complaints concerning Paragraph 48(7) of the Law on media services and the refusal decision and declares that Hungary has failed to fulfil its obligations:
–        under Articles 5 and 7 of the Authorisation Directive, Article 4 of the Competition Directive, Article 9 of the Framework Directive and the principle of proportionality on account of (i) the adoption by the Media Council of the refusal decision by which it refused to renew Klubrádió’s rights to use the radio spectrum, (ii) the adoption of Paragraph 48(7) of the Law on media services, which automatically precludes the renewal of rights to use the FM broadcasting radio spectrum if the rightholder has repeatedly infringed its obligation to transmit data on broadcasting quotas, including where the infringements committed were minor infringements of a purely formal nature and have already been penalised by fines subsequently resulting in full compliance, and (iii) the ensuing disproportionate impossibility for Klubrádió to pursue its activities in the broadcasting sector; and
–        under Article 5(3) of the Authorisation Directive and the principle of good administration, on account of the adoption of the refusal decision long after the expiry of the six-week period laid down in that provision.
2.      The complaints concerning the call for tenders at issue and the invalidity decision
210    The Commission claims, in essence, that Hungary has failed to fulfil its obligations under Article 5(2) of the Authorisation Directive and Article 45 of Directive 2018/1972 on account of the fact that, in the call for tenders at issue and the invalidity decision, the Media Council imposed disproportionate conditions on the allocation of rights to use the radio spectrum, failed to determine in advance the criteria for allocating those rights, did not provide for any discretion enabling an assessment to be carried out of the seriousness and relevance of errors potentially affecting the files submitted by the applicants, which might entail their exclusion, and disregarded how minor the errors affecting Klubrádió’s tender were.
211    The Commission also argues that Hungary has failed to fulfil its obligations under Articles 8 and 9 of the Framework Directive and the principle of good administration, on account of the failure to organise a procedure to allocate the frequency 92.9 MHz in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights to use that radio frequency.
(a)    The complaints alleging breach of the principles of transparency and proportionality
(1)    Arguments of the parties
212    The Commission submits that the invalidity decision, which is based on three grounds, is contrary to the principles of transparency and proportionality referred to in Article 5(2) of the Authorisation Directive and Article 45 of Directive 2018/1972.
213    As regards the first ground for invalidity, the Commission states that, in accordance with the call for tenders at issue, applicants were required to attach to their tenders the form
containing, in point III.2, the proposed weekly programming schedule, specifying the running time of each programme, and setting out, in point III.3, for each programme, the title, a brief description and the running time.
214    According to the Commission, it follows from the invalidity decision that the weekly programming schedule referred to in point III.2 of the form submitted by Klubrádió included the programme ‘Reggeli Gyors’, which was to be broadcast every weekday, between 06:10 and 10:00, and a programme lasting 55
minutes entitled ‘Reggeli Gyors ismétlés’, which was to be broadcast at weekends. Klubrádió did not complete point III.3 of that form for the latter programme, which was to be a compilation of the highlights from the ‘Reggeli Gyors’ programmes broadcast during the week.
215    The Commission states that, in the invalidity decision, the Media Council found that, if a programme undergoes technical intervention or if elements of that programme are cut, the resulting programme is a new ‘programme’, within the meaning of the call for tenders at issue, and a description thereof must therefore be included in point III.3 of the form. Relying on point 1.11.10.3 of the call for tenders at issue, which rules out the possibility of supplementing the particulars of the tender that are to be evaluated, such as the programming schedule, the Media Council did not request information concerning the programme ‘Reggeli Gyors ismétlés’ in order to complete point III.3 of the form submitted by Klubrádio.
216    The Commission maintains that, since the concept of ‘rebroadcast’ in the call for tenders at issue refers to the rebroadcast of ‘recorded sound material’, Klubrádió was entitled to take the view that the programme ‘Reggeli Gyors ismetlés’, inasmuch as it consisted of the rebroadcast of sound material, of selected extracts, from a programme that had already been broadcast, was covered by that concept and, therefore, there was no need to include a description of that rebroadcast in point III.3 of the form.
217    Furthermore, even if the programme ‘Reggeli Gyors ismétlés’ were not comparable to a rebroadcast, the Commission argues that the Media Council could have asked Klubrádió to include the missing description. The impossibility of supplementing the information on the programming schedule, which, according to the Media Council, is clear from point 1.11.10.3 of the call for tenders at issue, infringes the principle of proportionality inasmuch as it prevents applicants from correcting inaccuracies, even those of a minor and purely formal nature, and from clarifying the Media Council’s doubts.
218    As regards the second ground for invalidity, the Commission submits that it follows from the invalidity decision that the weekly programming schedule referred to in point III.2 of the form submitted by Klubrádió included a programme entitled ‘Kovátsműhely’ with a running time of 45
minutes, whereas point III.3 of that form indicated a running time of 50
minutes for that programme. The Media Council found that, in accordance with point 1.11.10.3 of the call for tenders at issue, that discrepancy could not be corrected.
219    The Commission asserts that that reference to two different running times is akin to a mere administrative error which, if corrected, would have had no effect on the substantive particulars of Klubrádió’s application. Invalidating an application because of such an error, instead of asking the applicant for clarification, is at variance with the principle of proportionality.
220    The third ground for invalidity, which concerns Klubrádió’s business and financial plan, is based on the Media Council’s finding that Klubrádió, which had a negative net worth in the years preceding the date of submission of its application, was unable to cover its expenditure with its net turnover alone.
221    The Commission states that the Media Council did not claim an infringement of the conditions concerning the applicant’s financial viability, laid down in point 1.8.2 of the call for tenders at issue, so that it is common ground that Klubrádió satisfied those conditions.
222    The Commission maintains that the invalidity decision was based on point 1.11.9.2(c) of the call for tenders at issue, under which an application is invalid on substantive grounds if, on account of its lack of foundation, the tender is not suitable for attaining the objectives set out in the Law on media services or in that call for tenders. According to the Media Council, Klubrádió’s application prevented attainment of the objective specified in point 1.2 of the call for tenders at issue, namely to ensure the presence on the media market of a radio station the functioning of which is stable and predictable.
223    In the Commission’s submission, by adopting the invalidity decision on the basis of the ground referred to in paragraph 220 above, in the first place, the Media Council infringed the requirement of transparency laid down in Article 5(2) of the Authorisation Directive and Article 45(1) of Directive 2018/1972, since it relied on criteria for evaluating the content of the applications which were not included in the call for tenders at issue. The conditions governing the eligibility of applications did not refer to any specific requirement of financial viability in relation to the net worth of the undertaking concerned.
224    In the second place, the Commission states that the rejection of Klubrádió’s application was disproportionate, since it was based on hypothetical arguments. The Media Council took the view that the stable functioning of Klubrádió could not be guaranteed because, under the Hungarian legislation in force, a company with a negative net worth may be automatically removed from the commercial register. According to the Commission, the fact that Klubrádió had operated at a loss during the five years preceding the date of submission of its application does not in itself mean that that applicant will not be financially viable in the future, since it was not forced to cease broadcasting and was not removed from the commercial register.
225    Moreover, it is claimed that the Media Council did not take account of the measures taken by Klubrádió to restore its net worth. In that regard, the Media Council rejected an arrangement whereby Klubrádió’s costs would be covered by the owner of the radio station and by sponsors, claiming that, in the past, Klubrádió had not been able to cover its operating costs with its own net turnover.
226    The Commission states that the use of sponsors or crowdfunding is a legitimate means of media financing. Consequently, according to that institution, the invalidity decision is not linked to the stated public objective, is not appropriate and goes beyond what is necessary to achieve that objective.
227    In the light of the foregoing, the Commission maintains that the criterion that Klubrádió should have covered its operating costs with its net turnover alone cannot be regarded as an objective, transparent and proportionate requirement under EU law.
228    In its defence, Hungary contends, in the first place, as regards the grounds for invalidity concerning the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’, that in order to ensure that a tendering procedure is fair and non-discriminatory, both the Law on media services and the call for tenders at issue are underpinned by the principle that the tender concerned may be amended, rectified or supplemented only where the defects are remediable or insignificant, or where such rectification does not infringe the requirement that the procedure be fair, transparent and non-discriminatory. In that context, Hungary refers to the provisions of the Law on media services and the rules governing the call for tenders at issue, which specify the defects or omissions that cannot be rectified after the date of submission of an application and that invalidate the tender concerned, which includes the irregularities identified in relation to the abovementioned programmes.
229    According to Hungary, where a defect has been defined in advance in a binding manner and invalidates the tender concerned, allowing the Media Council to decide, depending on the nature of the defect and based on its own subjective assessment, whether the legal consequences of invalidity should be applied would run counter to the principles of the rule of law and legal certainty, as well as the requirement that the evaluation be transparent, objective and non-discriminatory.
230    Furthermore, Hungary disputes the Commission’s argument that the defects affecting the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’ were minor defects of a formal and administrative nature.
231    As regards, first, the programme ‘Reggeli Gyors ismétlés’, Hungary states that Klubrádió did not comply with the validity condition referred to in point 2.5.5.2 of the call for tenders at issue, which requires a description to be provided for all programmes listed in the weekly programming schedule. Hungary submits that that programme must be regarded not as a rebroadcast of the programme ‘Reggeli Gyors’, but as a different programme, within the meaning of the call for tenders at issue, since there is a difference of 825
minutes in total between the two programmes and, in the case of a straightforward rebroadcast, the rebroadcast programme should be identical in all respects to the original programme. Since the tender concerned lacks information about a programme which cannot be classified as a ‘rebroadcast’, no substantive evaluation of that tender can be carried out because it is not possible to verify compliance with the broadcast quota commitments.
232    As regards, secondly, the programme ‘Kovátsműhely’, Hungary maintains that the differences in the running time stated in points III.2 and III.3 of the form submitted by Klubrádió constitutes an insurmountable contradiction making it impossible to reconcile point III.2, containing the weekly programming schedule, with point III.3, relating to the description of that programme. Thus, the tender submitted by Klubrádió does not comply with the validity condition referred to in point 2.5.5.6 of the call for tenders at issue. A rectification of the programmes’ running times would necessarily have led to a modification of the commitments and key declarations contained in the tender submitted by Klubrádió, which would be contrary to the call for tenders at issue.
233    In the second place, as regards the ground for invalidity relating to Klubrádió’s business and financial plan, Hungary states, first, that the formal and substantive requirements to which tenders are subject are set out both in the Law on media services and in the corresponding calls for tenders, in the present case, in points 1.11.7 and 1.11.9.2 of the call for tenders at issue.
234    According to Hungary, the examination of the substantive validity of a tender calls for a complex analysis of the content of that tender as a whole, in the course of which, under Paragraph 59 of the Law on media services, the Media Council must verify, in particular, whether that tender makes it possible to guarantee the attainment of the public interest objective pursued by the call for tenders concerned, in the present case, to ensure the presence on the media market of a radio station the functioning of which is stable and predictable.
235    Hungary maintains that the presentation of the applicant’s financial and economic situation and the presentation of its financial, economic and forward plan are requirements imposed for those purposes by the call for tenders at issue. Thus, it cannot be said that the ground for invalidity relating to Klubrádió’s business and financial plan and the criteria for assessing that ground are not transparent.
236    Secondly, Hungary contends that the Commission’s assertion that the Media Council took into account assessment criteria which were not included in the call for tenders at issue is wholly unfounded, since that call for tenders – which reproduces verbatim the provisions of the Law on media services – sets out the criteria for examining the tenders, the rules on the substantive invalidity of tenders, the suitability criteria which tenders must satisfy, the conditions for verifying their formal invalidity, the requirements relating to the business plan and the financial plan, and the requirements with regard to the declarations of applicants in points 1.11.6, 1.11.9, 2.1.4 to 2.1.6, 2.2, 2.5.4 and 2.5.8, respectively.
237    Thirdly, according to Hungary, the Commission is wrong to claim that the assessments made by the Media Council in the invalidity decision in relation to Klubrádió’s financial situation are disproportionate.
238    First of all, Hungary submits that, contrary to the Commission’s assertions, the Media Council declared Klubrádió’s tender to be invalid not because its net worth had been negative for several years, but because that negative net worth necessarily affected the future stability of that radio station. The statements contained in the tender concerning the regularisation of that situation are, moreover, inconsistent and contradictory, and none of the commitments given was honoured.
239    Next, Hungary argues that it is not disproportionate to require the radio station that will be granted authorisation to provide media services to be economically viable, since there is a fundamental public interest in that radio station – which will use, free of charge and for ten
years, an exclusive frequency belonging to the State – to be stable and predictable in its functioning.
240    A radio station which does not satisfy the most basic legal requirements as regards the form and management of a company does not, it is claimed, satisfy the conditions of stability and predictability enabling it to attain the objectives pursued by the call for tenders at issue, as long-term mismanagement has obvious repercussions on the future management of that radio station or, at the very least, potential effects on that management, on the pursuit of the activities of the radio station and on its functioning as a going concern. According to Hungary, that was the case with Klubrádio, since the clearly irregular nature of its net worth situation was liable to result in its compulsory liquidation and, potentially, its automatic removal from the commercial register.
241    Furthermore, Hungary maintains that an undertaking’s net worth is not a matter of subjective assessment but is instead an objective matter and, in that respect, it can be demonstrated that, over a period of several years, Klubrádió knowingly committed infringements of the law attributable to it alone, as shown by the audit statement annexed to Klubrádió’s annual accounts. The business plan, the financial plan and the balance sheet which that radio station was required to submit in accordance with the call for tenders at issue do not show that Klubrádió would have remedied that situation within a reasonable time.
242    Lastly, Hungary submits that the Commission’s assertion that Klubrádió’s owners had taken appropriate measures to rectify its negative net worth is unfounded. The declarations relating to net worth, financing and debt recovery made by the natural person acting on that radio station’s behalf are contradictory, hypothetical and qualified by conditions, with the result that they do not comply with the legal requirements and evaluation criteria laid down in the rules governing the call for tenders at issue.
243    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(2)    Findings of the Court
244    It should be recalled that, under the second subparagraph of Article 5(2) of the Authorisation Directive, rights to use radio frequencies are to be granted by means of open, objective, transparent, non-discriminatory and proportionate procedures and in accordance with the provisions of Article 9 of the Framework Directive. Article 9(1), which, as pointed out in paragraph 103 above, corresponds to Article 45(1) of Directive 2018/1972, also provides that those rights are to be allocated on the basis of objective, transparent, non-discriminatory and proportionate criteria.
245    It should also be recalled that the principle of proportionality requires that the rules laid down by the Member States or contracting authorities in the implementation of those provisions do not go beyond what is necessary to achieve the objectives pursued by the directives of which they form part (see, by analogy, judgment of 26 September 2024, Luxone and Sofein, C‑403/23 and C‑404/23, EU:C:2024:805, paragraph 55 and the case-law cited).
246    Furthermore, in the context of tendering procedures, the principle of equal treatment affords tenderers equality of opportunity when formulating their tenders, which implies that all tenders must be subject to the same conditions. The obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the public authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in a call for tenders so that, first, all reasonably informed applicants exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the competent authority is able to ascertain whether the tenders submitted fulfil the criteria governing the allocation of such rights (see, to that effect, judgment of 26 September 2024, Luxone and Sofein, C‑403/23 and C‑404/23, EU:C:2024:805, paragraph 56 and the case-law cited).
247    Lastly, the principles of transparency and equal treatment which govern procedures for the allocation of rights to use radio frequencies require the substantive and procedural conditions concerning participation in such procedures to be clearly defined in advance and made public, in particular the obligations of the applicant undertakings, in order that those undertakings may know exactly the procedural requirements at issue and be sure that the same requirements apply to all candidates (see, by analogy, judgment of 26 September 2024, Luxone and Sofein, C‑403/23 and C‑404/23, EU:C:2024:805, paragraph 57 and the case-law cited).
248    It is in the light of that case-law that the Court must ascertain whether, as the Commission maintains, the three grounds for invalidity on the basis of which Klubrádió’s application was rejected are contrary to the principles of proportionality and transparency, in the terms set forth by the Commission, so that both the invalidity decision and, as the case may be, the rules governing the call for tenders at issue underpinning the adoption of that decision are also contrary to those principles.
(i)    The grounds for invalidity concerning the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’
249    As is apparent from the wording of point 1.11.10.3 of the call for tenders at issue and from the invalidity decision, annexed to the Commission’s application, the particulars of the tender that are to be evaluated cannot be rectified. Those particulars include, in accordance with point 1.12.2.1 of that call for tenders, the applicant’s programming schedule, as described in points III.2 and III.3 of the form submitted by the applicant.
250    Where an applicant has made minor errors in those particulars, the rectification of which would have no impact on the substantive particulars of its application and would therefore not undermine the requirement that applicants be evaluated in a fair and non-discriminatory manner, the bar on the Media Council being able, under the rules governing the call for tenders at issue, to invite the applicant concerned to rectify such errors appears disproportionate.
251    In the present case, it is common ground that points III.2 and III.3 of the form submitted by Klubrádió contained two irregularities regarding the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’.
252    As regards, in the first place, the programme ‘Reggeli Gyors ismétlés’, the irregularity identified stemmed from the fact that Klubrádió, having taken the view that that programme was a ‘rebroadcast’, within the meaning of the call for tenders at issue, of the programme ‘Reggeli Gyors’, had not completed point III.3 of the form for the former programme setting out, inter alia, a description of the programme and its running time. The Media Council, after having found, in essence, that the programme ‘Reggeli Gyors ismétlés’ could not be considered to be a ‘rebroadcast’, within the meaning of the call for tenders at issue, of the programme ‘Reggeli Gyors’, that a description of it therefore had to be included in point III.3 of that form
and that the lack of such a description, in so far as it concerned one of the particulars to be evaluated referred to in point 1.12.2.1 of that call for tenders, could not, in accordance with the requirements of point 1.11.10.3 thereof, be rectified or regularised, concluded that that irregularity had to invalidate Klubrádió’s tender.
253    It should be noted that, as is apparent from the invalidity decision, in accordance with the rules governing the call for tenders at issue, the concept of ‘rebroadcast’ is defined as ‘recorded sound material, previously broadcast as part of a programme, which may be rebroadcast without any particular technical intervention’, while the concept of ‘broadcast’ is defined as ‘a succession of sounds or of moving or still images, whether or not combined with sound, constituting, irrespective of its running time, a discrete unit in a schedule or catalogue drawn up by a media service provider’.
254    In the light of those definitions and in the absence, in the call for tenders at issue, of other rules for the interpretation of those concepts, the view cannot be taken that the interpretation of the concept of ‘rebroadcast’ advocated by the Media Council, according to which a programme is deemed to be a rebroadcast if it is rebroadcast in full and for its entire running time without any particular technical intervention, is apparent from that call for tenders in a clear, precise and unequivocal manner, so that all reasonably informed tenderers exercising ordinary care had to construe that concept in that way.
255    On the contrary, given that that concept is premissed on the broadcast not of a previous ‘programme’, but of ‘recorded sound material’, broadcast previously ‘as part of a programme’, as the Commission has claimed, Klubrádió could reasonably consider that the programme ‘Reggeli Gyors ismétlés’, in so far as it consisted of the broadcast of extracts from a programme broadcast previously, namely ‘Reggeli Gyors’, constituted a ‘rebroadcast’ of that latter programme within the meaning of the call for tenders at issue. In those circumstances, the fact, relied on by Hungary, that there was a difference of 825
minutes in total between those two programmes is irrelevant.
256    As regards, in the second place, the programme ‘Kovátsműhely’, the irregularity affecting points III.2 and III.3 of the form submitted by Klubrádió stemmed from the fact that,
although Klubrádió had included that programme in the programming schedule referred to in point III.2 of that form, indicating that the programme was to be broadcast on Sunday between 17:05 and 17:50, so that, according to that point, the programme running time was 45
minutes, the running time stated for the same programme in point III.3 of that form was 50
minutes.
257    It is important to note that, as the Media Council pointed out in the invalidity decision, Klubrádió did not make any errors as regards the other programmes listed in points III.2 and III.3 of the form submitted by that radio station, in particular with respect to their running times. Thus, the five-minute difference in the running time of the programme ‘Kovátsműhely’ shown in those points does not appear to have any effect on the other programmes listed in the programming schedule submitted by Klubrádió.
258    The view must therefore be taken that such a difference is akin to a clerical mistake and, thus, is capable of falling within the scope of the remediable and insignificant errors referred to in paragraph 228 above.
259    Consequently, it must be held, in the light of the assessment set out in paragraph 250 of this judgment, that it ought to have been possible to rectify the irregularities affecting the programmes ‘Reggeli Gyors ismétlés’ and ‘Kovátsműhely’.
260    In those circumstances, the invalidity decision declaring Klubrádió’s tender to be invalid, on the basis of the rules governing the call for tenders at issue precluding any possibility of rectification, is disproportionate.
(ii) The ground for invalidity concerning Klubrádió’s business and financial plan
261    It must be observed that, as is apparent from the invalidity decision, the ground for invalidity concerning Klubrádió’s business and financial plan is based on that radio station’s negative net worth during the five years preceding the date of submission of its application and on its inability to cover its expenditure with its net turnover alone. In the light of those elements, which were established by reference in particular to Klubrádió’s annual accounts for the financial years prior to that in which it submitted its tender, the Media Council took the view that the tender was not capable, on account of its ‘lack of foundation’, of attaining the objective set out in point 1.2 of the call for tenders at issue, namely to ensure the presence on the media market of a radio station the functioning of which is stable and predictable. Consequently, the Media Council concluded that the tender submitted by Klubrádió was invalid on substantive grounds pursuant to Paragraph 59(3)(c) of the Law on media services and point 1.11.9.2(c) of the call for tenders at issue, under which ‘the tender shall be invalid on substantive grounds … if, on account of its lack of foundation, [it] is not suitable for attaining the objectives set out in the Law on media services and in the call for tenders’.
262    It should be noted that both the net worth of an undertaking and the data on its net turnover are elements linked to its financial viability.
263    In that regard, it is true that point 1.8.2 of the call for tenders at issue laid down the rules governing the conditions relating to applicants’ financial viability, non-compliance with which during any of the stages of the tendering procedure would invalidate the tender, pursuant to point 1.11.7(a) of that call for tenders.
264    However, point 1.8.2 required applicants (i) not to be in arrears in payment of any customs debt or debt in respect of social security contributions outstanding for more than 60
days, of any outstanding tax debt recorded in the registers of the central tax authorities, or of any outstanding payment obligation owed to a specialised State fund, (ii) not to be the subject of winding-up proceedings, liquidation proceedings or any other proceedings for their dissolution, (iii) during the five years preceding publication of the call for tenders, not to have been the subject of any final administrative decision finding that they committed a serious infringement resulting in non-compliance with the broadcasting contract, or not to have had their broadcasting contracted terminated by the Media Council, and (iv)
not to owe any outstanding debt to the Media Council.
265    It must therefore be found that the conditions relating to financial viability imposed on applicants by the call for tenders at issue did not include any requirement concerning the applicants’ net worth or the need for them to be able to cover their expenditure with their net turnover alone.
266    It is true that, as Hungary claimed, that call for tenders required applicants to submit a business and financial plan covering the period up to 31 December 2024, containing the particulars set out in point 2.5.4 of that call for tenders. However, it is in no way apparent from those particulars that that plan had to show – failing which the tender concerned would be invalid – a positive net worth during the years preceding the date of submission of the applications and a net turnover sufficient, on its own, to cover expenditure during those years.
267    Furthermore, as regards the financial and historical data to be provided as part of the business and financial plan, in accordance with point 2.5.4.3.5 of the call for tenders at issue, applicants were required to submit only their ‘last set of closed financial statements (balance sheet, profit and loss account and annexes […])’, namely, in short, as is apparent from the wording of that point as a whole, the annual accounts for the financial year preceding that in which the tender concerned was submitted.
268    In those circumstances, as the Advocate General observed in point 79 of his Opinion, the reliance, as a ground for invalidity based on the applicant’s unsuitability for the purpose of attaining the objective pursued by the call for tenders at issue, of a criterion linked to the applicant’s financial viability, even though that criterion is not one of the criteria concerning such viability laid down in the call for tenders and cannot reasonably be inferred from any rule contained therein, does not meet the requirements relating to the principle of transparency, as set out in the case-law cited in paragraphs 246 and 247 above.
269    Furthermore, irrespective of the foregoing, in circumstances in which the viability of the operator concerned is not in question, the adoption of a rule allowing the Media Council to declare an applicant’s tender to be invalid because of that applicant’s negative net worth and its inability to cover its expenditure with its net turnover alone is at odds with the principle of proportionality. In the light of the diverse nature of the possible sources of funding available to a radio station, that rule goes beyond what is necessary to ensure the presence on the media market of a radio station the functioning of which is stable and predictable.
270    In the present case, given that Klubrádió operates in the field of electronic communications, that it has broadcast content on radio frequencies since 1999 and that, despite its negative net worth, as established in the invalidity decision, it has never had to suspend its activities, it cannot reasonably be considered that the rejection of the tender submitted by Klubrádió on account of its negative net worth was necessary in order to ensure the presence on the media market of a radio station the functioning of which is stable and predictable.
271    Against that background, Hungary’s argument that Klubrádió’s net worth would prevent attainment of that objective, since that situation was liable to result in its compulsory liquidation and, potentially, its automatic removal from the commercial register, cannot be upheld.
272    Not only on the date of submission of its tender and on the date of consideration of its application was that radio station not the subject of such liquidation or removal proceedings, which, moreover, as pointed out in paragraphs 263 and 264 above, would have invalidated its tender; Klubrádió was not the subject of such proceedings even after those dates and remains in business today.
273    Nor can it reasonably be considered that the fact that Klubrádió was unable to cover its expenditure with its net turnover alone and had to have recourse to sponsorships and contributions prevented attainment of the objective referred to in point 1.2 of the call for tenders at issue and recalled, in particular, in paragraphs 261 and 270 of this judgment. As the Commission pointed out, without being contradicted by Hungary, Klubrádio’s business model was based on such means of financing, which had enabled it, in the past, to counterbalance negative financial situations, without that having prevented it from carrying on its business on a stable basis and from complying with the conditions attached to the rights to use radio frequencies to which it was subject.
274    Therefore, without it being necessary to examine the Commission’s other arguments, including, in particular, that relating to the alleged arbitrariness of the ground for invalidity at issue and the invalidity decision, in the light of the decisions taken in the past in respect of other applicants, it must be held that the call for tenders at issue, in so far as it allows the Media Council to declare, on the basis of point 1.11.9.2(c) thereof, that an applicant’s tender is invalid because of its negative net worth and its inability to cover its expenditure with its net turnover alone, is contrary to the principles of transparency and proportionality. The same is true of the invalidity decision, particularly in the light of the elements set out above relating to Klubrádió’s situation.
275    It follows from all the foregoing considerations that the complaint alleging breach of the principles of transparency and proportionality, as reflected in Article 5(2) of the Authorisation Directive and Article 45(1) of Directive 2018/1972, is well founded.
(b)    The complaint alleging that the invalidity decision was not adopted in good time
(1)    Arguments of the parties
276    The Commission states that, because the refusal decision was taken on 8 September 2020 following a procedure lasting ten months, in breach of Article 5(3) of the Authorisation Directive, the Media Council did not launch the call for tenders at issue until 4 November 2020, thus leaving little time to close that call for tenders before 14 February 2021, the date of expiry of Klubrádió’s broadcasting contract. Given that, according to point 1.11.3.1 of the call for tenders at issue, the time limit for the submission of tenders is 40
days from the date of publication of that call for tenders, so that that period expired on 14 December 2020, the Media Council therefore had only two months to evaluate the tenders and conclude a new broadcasting contract. Finally, on 10 March 2021, the Media Council, by means of the invalidity decision, declared the call for tenders to be unsuccessful and, on 30 March 2021, it concluded a temporary administrative contract for the use of the frequency 92.9 MHz for the period from 3 May to 29 October 2021.
277    The Commission argues that, in so doing, the Media Council failed to ensure the effective management of frequencies, in breach of Article 8(2)(d) of the Framework Directive, and failed to encourage the efficient use of the radio spectrum, in breach of Article 9(1) of that directive. Furthermore, the Media Council also failed to safeguard Klubrádió’s right to a fair and expeditious procedure in accordance with the general principle of good administration. In addition, the Media Council failed to address the needs of disabled persons, the elderly and persons with special social needs, as required by Article 8(2)(a) of that directive, given that end users belonging to those categories were more likely than others to depend on the terrestrial broadcasting of Klubrádió’s programmes and might experience particular difficulties in switching to listening to those programmes online.
278    In its defence, Hungary contends, first of all, that even if the call for tenders at issue falls within the EU regulatory framework for electronic communications, the Commission’s line of argument is unfounded, since the six-week period laid down in Article 5(3) of the Authorisation Directive may, under Article 7(4) thereof, be extended to eight months in competitive or comparative selection procedures.
279    Next, Hungary states that the Media Council conducted the tendering procedure at issue during the period from 4 November 2020 to 10 March 2021, that is to say, in just over four months, despite the regularisation and suspension of the procedure, which a half of the duration of the tendering procedure provided for in Directive 2018/1972.
280    Furthermore, Hungary maintains that the subject matter of the tendering procedure at issue was a right in respect of which Klubrádió had submitted an application for renewal, so that it was not possible to organise a tendering procedure for the grant of that right before considering that application and adopting a decision on it. The Media Council began preparations for the call for tenders at issue immediately after issuing the refusal decision.
281    Lastly, Hungary submits that there was no infringement of the rights of disabled end users, elderly end users or end users in a special social situation, since Klubrádió had more than five months to switch to digital broadcasting as from the expiry of its right to provide media services, which cannot be regarded as a short period.
282    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(2)    Findings of the Court
283    As regards, in the first place, the argument relating to the effective management and efficient use of radio frequencies, it must be stated that, contrary to what Hungary claims, it is apparent from the Commission’s application that that institution does not take issue with that Member State for having adopted the invalidity decision within a period exceeding that imposed by the EU regulatory framework for electronic communications, namely eight months, in accordance with Article 7(4) of the Authorisation Directive.
284    The Commission argues, in essence, that because of the delay in adopting the refusal decision, the Media Council did not publish the call for tenders at issue until 4 November 2020, leaving it little time to close that call for tenders before the expiry date of Klubrádió’s broadcasting contract, namely 14 February 2021. It follows from this, it is claimed, that Hungary did not encourage the efficient use of the radio spectrum or ensure the effective management of radio frequencies, in breach of Article 8(2)(d) and Article 9(1) of the Framework Directive and the principle of good administration.
285    That argument of the Commission refers, in short, to the lack of diligence on the part of the national authorities in managing the frequency 92.9 MHz, in breach of the obligations stemming from the provisions and principle cited in the preceding paragraph of this judgment.
286    In that regard, it should be recalled that Article 8(2)(d) of the Framework Directive requires national regulatory authorities to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by encouraging the efficient use and ensuring the effective management of radio frequencies and numbering resources.
287    Article 9(1) of that directive provides that, in view of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States must ensure the effective management of radio frequencies for electronic communications services in their territory in accordance with, inter alia, Article 8 thereof.
288    The obligation to ensure the effective management and efficient use of radio frequencies, as a public good that has an important social, cultural and economic value, is thus one of the general objectives of the EU regulatory framework, with which the competent national authorities are required to ensure compliance in accordance with the principle of good administration.
289    Inaction or slowness in the organisation of procedures for the grant of rights to use radio frequencies is liable to compromise the effective management and efficient use of the radio spectrum.
290    In the present case, it is common ground that Klubrádió submitted an application for renewal of its broadcasting contract on 8 November 2019, that the refusal decision was adopted on 8 September 2020, that the call for tenders at issue was launched on 4 November 2020, that Klubrádió’s broadcasting contract expired on 14 February 2021, that the invalidity decision declaring the call for tenders at issue to be unsuccessful was adopted on 10 March 2021 and that temporary administrative contracts were concluded on 30 March 2021 with Közösségi Rádiózásért Egyesület for the provision of media services on the frequency 92.9 MHz for the period from 3 May to 29 October 2021. That frequency could not therefore be used during the period from 15 February to 3 May 2021.
291    As the Court has found in paragraph 205 above, it took ten months for the refusal decision to be adopted, whereas, under Article 5(3) of the Authorisation Directive, it ought to have been adopted within six weeks of the Media Council receiving the application. It follows that that decision was taken with a delay of approximately eight and a half months, without there being any reasonable explanation for such delay, as also stated in paragraph 206 above.
292    If the refusal decision had been adopted within the six-week period provided for in the EU regulatory framework for electronic communications, the Media Council could have launched the tendering procedure for the right to provide media services on the frequency 92.9 MHz eight months before the date on which it was finally launched and could have closed that procedure before the expiry of Klubrádió’s broadcasting contract, thereby ensuring the continued use of that frequency.
293    Accordingly, by adopting the refusal decision eight and a half months after the expiry of the time limit laid down in Article 5(3) of the Authorisation Directive, the Media Council unjustifiably delayed the organisation and launch of the call for tenders at issue, thus infringing the principle of good administration, with the result that a radio frequency, namely the frequency 92.9 MHz, remained unused for more than two months.
294    Therefore, the lack of diligence shown by the Media Council when adopting measures concerning the allocation of the frequency 92.9 MHz compromised the effective management and efficient use of the radio spectrum which it was required to ensure.
295    Consequently, the Commission’s argument alleging infringement of Article 8(2)(d) and Article 9(1) of the Framework Directive and breach of the principle of good administration is well founded.
296    As regards, in the second place, the argument concerning the needs of disabled persons, the elderly and persons with special social needs, it should be borne in mind that Article 8(2)(a) of the Framework Directive requires national regulatory authorities to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by ensuring that users, including disabled users, elderly users and users with special social needs, derive maximum benefit in terms of choice, price and quality.
297    According to the Commission, by unduly delaying – on account of the unjustified failure to comply with the time limit laid down in Article 5(3) of the Authorisation Directive for the adoption of decisions on the grant of rights to use radio frequencies – the launch of the call for tenders at issue, with the result that it was not possible to close that call for tenders before the date of expiry of Klubrádió’s contract, the Media Council failed to address the needs of disabled persons, the elderly and persons with special social needs.
298    However, the Commission has not adduced any evidence to demonstrate that the Media Council’s delay in adopting measures concerning the allocation of the frequency 92.9 MHz had an adverse effect with respect, in particular, to the needs of the categories of persons mentioned in Article 8(2)(a) of the Framework Directive.
299    Consequently, the Commission’s argument alleging infringement of Article 8(2)(a) of the Framework Directive in that regard must be rejected.
300    Therefore, the complaint alleging that the invalidity decision was not adopted in good time is well founded in so far as it relates to infringement of Article 8(2)(d) and Article 9(1) of the Framework Directive and breach of the principle of good administration.
(c)    Conclusion
301    In the light of the foregoing considerations, the Court upholds in part the second set of complaints concerning the call for tenders at issue and the invalidity decision and declares that Hungary has failed to fulfil its obligations:
–        under Article 5(2) of the Authorisation Directive and Article 45(1) of Directive 2018/1972 on account of the fact that, in the call for tenders at issue and the invalidity decision, the Media Council imposed disproportionate conditions on the allocation of rights to use the radio spectrum, failed to determine in advance the criteria for allocating those rights, did not provide for any discretion enabling an assessment to be carried out of the seriousness and relevance of errors potentially affecting the files submitted by the applicants, which might entail their exclusion, and disregarded how minor the errors affecting Klubrádió’s tender were; and
–        under Article 8(2)(d) and Article 9(1) of the Framework Directive and the principle of good administration, on account of the failure to organise a procedure to allocate the frequency 92.9 MHz in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights to use that radio frequency.
3.      The complaints concerning Paragraph 65(11) of the Law on media services
302    The Commission submits, in essence, that by adopting Paragraph 65(11) of the Law on media services, which precludes media service providers whose right to use radio frequencies has not been renewed from applying for temporary rights of use, even though, first, it affords that possibility to providers of such services whose right to use radio frequencies has been renewed once and, secondly, the reasons for not granting such a renewal do not prevent the allocation of a new right to use radio frequencies, Hungary has failed to fulfil its obligations under Article 45(1) of Directive 2018/1972 and the principles of proportionality and non-discrimination.
(a)    Arguments of the parties
303    The Commission states that Paragraph 65(11) of the Law on media services does not allow the Media Council to conclude a temporary administrative contract with undertakings which, due to the commission of minor but repeated infringements, have been deprived of the possibility of renewing their right to use radio frequencies. By contrast, Paragraph 55(1)(c) of that law lays down a prohibition on participating in a new tendering procedure applicable only to undertakings which, during the five years preceding publication of that tendering procedure, have committed a serious infringement in the performance of their broadcasting contract or whose broadcasting contract has been terminated by the Media Council. Thus, the commission of repeated infringements is not relevant for the purposes of participation in such a procedure.
304    First of all, the Commission submits that the unequal treatment established by Paragraph 65(11) and Paragraph 55(1)(c) of the Law on media services vis-à-vis media service providers, depending on whether or not their right to provide media services has been renewed in the past, is not justified by objective factors and therefore constitutes discrimination.
305    Next, according to the Commission, even if the objective of Paragraph 65(11) of the Law on media services is to prevent a radio frequency from being allocated to a media service provider at risk of committing subsequent infringements, that provision, applied in conjunction with Paragraph 48(7) of that law – which, in the case of minor but repeated infringements, automatically results in the refusal of an application for renewal – is disproportionate because it goes beyond what is necessary to achieve the objective pursued.
306    The Commission argues that the combined effect of those two provisions is that undertakings having committed minor infringements in the past, which are able to continue to provide media services without incident, and undertakings having committed serious infringements, whose ability to continue to provide media services in accordance with the relevant legislation and the terms of the broadcasting contract may reasonably be called into question, are treated equally.
307    Furthermore, the Law on media services does not, it is claimed, pursue the objective referred to in paragraph 305 of this judgment in a consistent manner, since the conditions governing the conclusion of a temporary administrative contract are stricter than those governing participation in a new call for tenders, even though both procedures lead to a similar result, namely the use of a radio frequency.
308    Lastly, the Commission states that, as a result of the national legislation at issue, Klubrádió was unable to conclude a temporary administrative contract and its frequency remained unused between 15 February and 3 May 2021. The grant of a temporary right of use would have been consistent with the obligation to ensure effective management of the radio spectrum, with the requirements of predictability and consistency in the renewal and modification of rights to use the radio spectrum, and with the requirements of regulatory certainty, consistency and predictability, laid down in Article 45(1) and Article 45(2)(c) and (g) of Directive 2018/1972.
309    Hungary, first of all, states that since Klubrádió did not apply to the Media Council for the conclusion of a temporary administrative contract, Klubrádió could not have suffered any damage. Thus, no discrimination can be established.
310    Next, according to Hungary, the existence of discrimination can be examined only in relation to legal subjects, legal situations and facts that are comparable. That is not the case as regards the situations referred to in Paragraph 65(11) and Paragraph 55(1)(c) of the Law on media services.
311    Hungary submits that Paragraph 65(11) of the Law on media services grants the former holder of the right to provide media services a temporary right to provide such services until the end of the tendering procedure at the latest. By contrast, the right to provide media services granted in the context of the tendering procedure is for a period of ten
years. Thus, the situation involving the award of a temporary administrative contract for the provision of media services, referred to in Paragraph 65(11) of the Law on media services, and the situation relating to the conditions for securing the right to provide such services in the context of a call for tenders, under Paragraph 55(1)(c) of that law, are not comparable.
312    Furthermore, Paragraph 65(11) of the Law on media services cannot, it is claimed, be regarded as disproportionate, whether assessed in isolation or in conjunction with Paragraph 48(7) of that law. Paragraph 65(11) is concerned with an ongoing tendering procedure and the right or benefit provided for in the latter provision applies only if the right to provide media services has already been renewed once.
313    Against that background, Hungary states that, under Paragraph 187(5) of the Law on media services, minor infringements are not taken into account in order to establish the existence of repeated infringements and that, therefore, those minor infringements do not preclude either renewal or, consequently, the possibility of enjoying a temporary right. Thus, the Commission’s assertion that undertakings having committed minor infringements in the past, which are able to continue to provide media services without incident, and undertakings having committed serious infringements are treated equally is unfounded.
314    In addition, Hungary maintains that it is not possible to compare the conditions for the renewal of a right to provide media services with the conditions for the grant of a temporary right or to interpret those conditions in combination because the situation envisaged in Paragraph 65(11) of the Law on media services arises only if the right has already been renewed. Where a media service provider operates under conditions precluding the renewal of its right to provide media services, that right will expire and the provider will be able to secure a new right in the context of a tendering procedure. That rule applies in the same way to all media service providers, with the result that there is no discrimination and that rule is not disproportionate.
315    Lastly, as regards the Commission’s argument that, as a result of the national legislation at issue, the frequency 92.9 MHz remained unused, Hungary submits that a temporary right may be granted until the closure of the tendering procedure. Thus, the reason why that frequency was not used between 15 February and 3 May 2021 was because the tendering procedure at issue was unsuccessful and because Klubrádió did not submit an application for the conclusion of a temporary administrative contract.
316    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments.
(b)    Findings of the Court
317    Under Paragraph 65(11) of the Law on media services, if the right to provide linear radio media services expires after having already been renewed once by the Media Council, and if the tendering procedure concerning opportunities to provide media services has already been launched, the Media Council may conclude with the media service provider which previously held that right, and on application by that provider, a temporary administrative contract for a maximum term of 60
days.
318    That provision thus has the effect of depriving providers, such as Klubrádió, whose right to provide media services has not been renewed, pursuant to Paragraph 48(7) of the Law on media services, due to the existence of a final decision of the Media Council finding that the provider concerned has committed a repeated infringement, of the possibility of concluding a temporary administrative contract, where, as here, the right which has not been renewed expires while the tendering procedure concerning opportunities to provide such services has already been launched but has not been closed.
(1)    The complaint alleging breach of the principle of non‑discrimination
319    As pointed out in paragraph 192 above, in accordance with the settled case-law of the Court, the principle of equal treatment, of which the principle of non-discrimination is a specific expression, requires, inter alia, that comparable situations must not be treated differently.
320    According to the explanations provided by the Commission in its pleadings, the alleged breach of the principle of non-discrimination stems from the fact that Paragraph 65(11) of the Law on media services deprives media service providers, such as Klubrádió, whose right to provide media services has not been renewed due to the commission of a repeated infringement, of the possibility of entering into a temporary administrative contract with a view to the grant of such a right for a period not exceeding 60
days, whereas Paragraph 55(1) of that law permits those providers to participate in a tendering procedure for the grant of that right for a period of ten
years.
321    Furthermore, in response to a question put by the Court at the hearing, the Commission submitted that the breach of the principle of non-discrimination stems from the fact, first, that the Law on media services treats undertakings which, in the past, have already provided media services differently from undertakings which, in the past, have never provided those services, inasmuch as, under Paragraph 65(11) of that law, only service providers which have concluded a broadcasting contract and have had that contract renewed are eligible to conclude a temporary administrative contract, whereas, as regards media service providers which have not provided those services in the past, Paragraph 65(1) of that law allows the Media Council to enter into a temporary administrative contract having regard to considerations relating to the media market.
322    Secondly, the Commission stated that the Law on media services treats media service providers, such as Klubrádió, whose right to provide those services has not been renewed due to the commission of a repeated infringement differently from providers which, after having secured the renewal of their right to provide those services, commit a repeated infringement, since, under Paragraph 65(11) of that law, the former are deprived of the possibility of entering into a temporary administrative contract while that possibility remains open to the latter, as their contracts have already been renewed.
323    As regards, first, the Commission’s argument set out in paragraph 320 above, that argument rests on the premiss that the rules governing the grant of the right to provide media services on the basis of a temporary administrative contract and the rules governing the grant of that right on the basis of a broadcasting contract concluded following a call for tenders are comparable, so that the imposition of stricter conditions for the grant of that right on a temporary basis infringes the principle of equal treatment.
324    However, it should be borne in mind that, as is apparent from Paragraph 65(11) of the Law on media services, the conclusion of a temporary administrative contract under that provision is limited to a very specific situation in which the right to provide media services on a radio frequency has expired while the tendering procedure for the grant of a new right to provide media services on that radio frequency has not yet been closed. In such a situation, Paragraph 65(11) seeks to ensure the uninterrupted use of that radio frequency until the tendering procedure has been closed and the right to use the radio frequency in question has been allocated to the successful tenderer. That situation, which is of a transitional and urgent nature, is thus different from the situation in which a right to provide media services is granted in the context of a call for tenders, which is not of the same nature.
325    Therefore, since Paragraph 65(11) and Paragraph 55(1) of the Law on media services do not deal with comparable situations, the Commission’s argument that those provisions infringe the principle of non-discrimination is unfounded.
326    As regards, secondly, the arguments set out in paragraphs 321 and 322 above, since those arguments are not apparent from the Commission’s pleadings and were raised only at the hearing, they must be rejected as inadmissible.
327    Consequently, the complaint alleging breach, by Paragraph 65(11) of the Law on media services, of the principle of non-discrimination, as reflected in Article 45(1) of Directive 2018/1972, is unfounded.
(2)    The complaint alleging breach of the principle of proportionality
328    As the Court has held in its analysis of the first set of complaints, Paragraph 48(7) of the Law on media services is contrary to the principle of proportionality, as reflected, in particular, in Article 9(1) of the Framework Directive, since it automatically and in all cases deprives providers which have committed a repeated infringement of the possibility of securing the renewal of their right to provide media services.
329    Therefore, as the Commission points out, in so far as it deprives providers whose right to provide media services has not been renewed, pursuant to Paragraph 48(7) of the Law on media services, due to the commission of a repeated infringement, of the possibility of entering into a temporary administrative contract, Paragraph 65(11) of that law also infringes the principle of proportionality.
330    Consequently, the complaint alleging breach, by Paragraph 65(11) of the Law on media services, of the principle of proportionality, as reflected in Article 45(1) of Directive 2018/1972, is well founded.
(3)    The complaint alleging infringement of the obligation to ensure effective management of the radio spectrum
331    The Commission complains, in essence, that Hungary has failed to fulfil its obligation under Article 45(1) and Article 45(2)(c) and (g) of Directive 2018/1972 to ensure effective management of the radio spectrum, in that, on account of the national legislation at issue, Klubrádió was unable to conclude a temporary administrative contract, with the result that the frequency 92.9 MHz remained unused from 15 February to 3 May 2021.
332    In that regard, since that complaint is based on the fact that Klubrádió was not able to enter into a temporary administrative contract and it is common ground that that radio station neither applied to enter into such a contract nor, consequently, had its application refused, and since the complaint in no way follows from the fourth head of claim in the Commission’s application, that complaint must be rejected.
(4)    Conclusion
333    In the light of the foregoing considerations, the Court upholds in part the third set of complaints concerning Paragraph 65(11) of the Law on media services and declares that Hungary has failed to fulfil its obligations under Article 45(1) of Directive 2018/1972 and the principle of proportionality on account of the adoption of Paragraph 65(11) of the Law on media services, which precludes media service providers whose right to use radio frequencies has not been renewed due to the commission of a repeated infringement from applying for temporary rights of use.
4.      The complaints alleging infringement of Article 11 of the Charter
(a)    Arguments of the parties
334    The Commission submits, in essence, that Hungary has failed to fulfil its obligations under Article 11 of the Charter on account of, first, the adoption of the refusal decision and Paragraph 48(7) of the Law on media services and, secondly, the adoption of the invalidity decision and the call for tenders at issue.
335    In the first place, the Commission claims that the refusal decision and the national rules underpinning its adoption prevented Klubrádió from broadcasting its programmes on an analogue frequency. According to the Commission, that constitutes the most serious form of interference with freedom of expression and freedom of the media and is tantamount to the closure of a media outlet by national authorities. Given the importance of radio and, in particular, the impact which that means of communication is likely to have on the public as compared with other means of communication, as acknowledged by the European Court of Human Rights, the Commission argues that the fact that Klubrádió cannot broadcast its programme schedule on analogue radio frequencies is a clear interference with freedom of expression, even if its programmes are available on the internet.
336    The Commission submits that, in order to guarantee the freedom and pluralism of the media, it is essential that radio frequencies used for broadcasting are allocated on the basis of non-discriminatory and proportionate criteria.
337    While acknowledging that freedom of expression and freedom of the media are not absolute rights, the Commission maintains that any limitation of those freedoms must comply with the requirements laid down in Article 52 of the Charter.
338    In that regard, the Commission states that the objectives pursued by the Law on media services – namely to strengthen national and cultural identity, taking into account technological developments, while safeguarding freedom of expression and speech and freedom of the press and recognising the cultural, social and economic weight of media services and the importance of ensuring competition in the media market – constitute general interest objectives capable of justifying a restriction on the rights and freedoms enshrined in Article 11 of the Charter. However, according to the Commission, the refusal decision goes beyond what is necessary to achieve those objectives.
339    The Commission argues that that decision was adopted by the Media Council not because of non-compliance with the broadcasting time for Hungarian musical works, but solely because of the infringement of the obligation to transmit data on broadcasting quotas, an infringement which had already been penalised by a fine and which did not reoccur after payment of that fine. In its reply, the Commission – relying on the details provided to describe the context in which the contested decisions were taken – submits that, in a situation in which a media service provider that is independent and critical of the government, such as Klubrádió, is denied the right to use radio frequencies for purely formal reasons, making its access to the market more difficult, the Court’s review must be very thorough. The risk of arbitrariness and discrimination in such a situation is particularly acute.
340    In the second place, the Commission argues that the invalidity decision also constitutes a disproportionate interference with the freedom and pluralism of the media, inasmuch as that decision is not appropriate for attaining the objectives pursued and goes beyond what is necessary for those purposes. Therefore, the conditions under which such an interference may be justified, set out in Article 52 of the Charter, are not satisfied.
341    As regards the two grounds for invalidity relating to the alleged inaccuracies in the tender submitted by Klubrádió affecting its programming schedule, the Commission maintains that those grounds concerned minor formal inaccuracies which could easily have been clarified; they did not impinge upon essential elements of Klubrádió’s application and, therefore, did not compromise the fairness of the competition.
342    In addition, as regards the ground for invalidity concerning Klubrádió’s business and financial plan, the Commission states that the Media Council, in taking the view that the net turnover of the radio station in question is the only legitimate indicator of its financial viability, not only discriminates against stations which deliberately choose to rely on other funding models, but also disregards a wholly legitimate business model.
343    The Commission also asserts that the objectives pursued could have been achieved by less intrusive means. The Media Council could, in particular, where the description of a given programme is missing, request clarification on that point and, if the resources are insufficient, revoke the rights to use radio frequencies in the event that the undertaking concerned goes into liquidation or is wound up.
344    Thus, the Commission claims that both the invalidity decision and the rules governing the call for tenders at issue underpinning the adoption of that decision must be regarded as unjustified and disproportionate owing to their consequences for the right to freedom of expression, since their application effectively excludes Klubrádió from the broadcasting sector and silences that radio station in the Hungarian media world, when less restrictive measures, allowing Klubrádió to continue to broadcast, would have been sufficient.
345    Hungary submits, in the first place, that the refusal decision and the national rules underpinning its adoption do not infringe Article 11 of the Charter.
346    It contends that the Media Council did not withdraw Klubrádió’s broadcasting rights and did not exclude it from the broadcasting sector, since that radio station was able to broadcast its programming schedule on a radio frequency continuously and without interruption for the entire term of its broadcasting contract and is still able to provide radio media services using other means of transmission. In that context, Hungary states that Klubrádió currently provides those services on the internet, demonstrating that the refusal decision did not debar it from being able to provide such services.
347    According to Hungary, the fact that the Law on media services lays down objective conditions for the renewal of the right to provide media services and that the Media Council refuses such renewal in the event of non-compliance with those conditions does not constitute a disproportionate and unjustified interference with the freedom of the press and the right to the dissemination of information.
348    In the event of non-compliance with the requirements imposed by that law, Hungary does not, it is claimed, deprive the media service provider concerned of the right to broadcast or of the possibility of providing media services, but merely applies the conditions of the authorisation scheme. Thus, the refusal to renew a right to provide media services cannot be equated with the closure of a media outlet, since that refusal does not result in the withdrawal of the right to provide media services, as the authorisation to exercise the right expired on the date and in the manner provided for by law or by the broadcasting contract.
349    Against that background, Hungary submits that the mere fact that an operator is not granted the right to make its media services available on a particular broadcasting platform does not necessarily entail a breach of the rights and freedoms enshrined in Article 11 of the Charter. Whether or not the refusal decision and the national rules underpinning its adoption infringe those rights and freedoms depends not on whether Klubrádió is critical of the Hungarian Government or on the conclusions that the Commission may draw from the context in which that decision was taken, but on whether that decision is proportionate in the light of the objective pursued.
350    In the second place, Hungary contends that neither the present case nor its regulatory context undermines the requirements of balanced information and the principle of freedom of the press and pluralism of the media. The Hungarian authorisation scheme ensures that all applicants in a tendering procedure have equal access to opportunities to provide media services and ensures the allocation of frequencies to all selected media service providers, in full compliance with the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’) and the Charter.
351    As regards, in particular, the ground for invalidity concerning Klubrádió’s business and financial plan, Hungary maintains that both the assessment of the suitability of Klubrádió’s tender for the purposes of the call for tenders at issue and, in particular, the assessment of the financial and economic situation of that radio station, as well as any interference with freedom of expression and of information which may derive, due to a negative assessment, from the invalidity of that tender, are apparent from the Law on media services.
352    According to Hungary, that evaluation was carried out in a transparent and objective manner and on the basis of the non-discriminatory requirements contained in that law and in the call for tenders at issue, with the result that the ensuing legal consequence, namely the invalidity of that tender, is proportionate and justified.
353    Lastly, Hungary reiterates that Klubrádió currently provides a radio media service on the internet, so that the invalidity decision did not have the effect of silencing that radio station.
354    The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments and draw attention, in particular, to the importance of the right to freedom of expression and information in a democratic and pluralist society and to the need to take into account, when assessing Hungary’s alleged infringement of Article 11 of the Charter, the context of the national measures at issue. In that regard, the Kingdom of Belgium refers, on the basis of various reports concerning media freedom and pluralism in Hungary, adopted between 2019 and 2023 by the Centre for Media Pluralism and Media Freedom, the European Audiovisual Observatory, the Commissioner for Human Rights of the Council of Europe and the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, to several issues concerning the present action and to the adverse opinions issued by those international organisations on the matter of media freedom in Hungary.
(b)    Findings of the Court
355    Article 11(1) of the Charter provides that ‘everyone has the right to freedom of expression’ which includes ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Under Article 11(2) thereof, ‘the freedom and pluralism of the media shall be respected’.
356    With regard to broadcasters, such as radio stations, interference with freedom of expression and information takes the particular form of interference with freedom of the media or freedom of broadcasting, specifically protected by Article 11(2) of the Charter (see, to that effect, judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 83).
357    Freedom of the media associated with freedom of broadcasting includes not only the right to impart information, but also, and inseparably, the right to use any appropriate means to disseminate information and transmit it to the widest possible audience.
358    Those means of dissemination include the radio spectrum, which, in the light of the key role played by audiovisual media, such as radio and television, in shaping public opinion, is a fundamental channel for the exercise of the right to freedom of expression and information.
359    The grant of rights to use radio frequencies thus has a direct impact on the right to freedom of the media associated with freedom of broadcasting in both its forms, namely the right to impart information freely and the right to receive information.
360    Thus, as regards Article 10 ECHR, which corresponds to Article 11 of the Charter and the interpretation of which by the European Court of Human Rights must, in accordance with Article 52(3) of the Charter, be taken into consideration when interpreting Article 11 thereof, that court stated that Article 10 ECHR guarantees freedom of expression and information to everyone and applies not only to the content of the information but also the means of dissemination, since any restriction imposed on those means interferes with the right to receive and impart information (see, to that effect, ECtHR, 28 September 1999, Öztürk v. Turkey, CE:ECHR:1999:0928JUD002247993, § 49 and the case-law cited).
361    As is apparent from the explanations relating to Article 11 of the Charter, which must be taken into account in interpreting that article, the limitations which may be imposed on the right to freedom of expression may not therefore exceed those provided for in Article 10(2) ECHR. The legitimate grounds for interfering with the exercise of the right to freedom of expression are listed in Article 10(2) ECHR and relate to national security, territorial integrity and public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the need to prevent the disclosure of information received in confidence and the need to maintain the authority and impartiality of the judiciary. That list is exhaustive (ECtHR, 15 March 2022, OOO Memo v. Russia, CE:ECHR:2022:0315JUD000284010, § 37). The restrictions which Member States may impose on the right to freedom of expression are, moreover, without prejudice to those which EU competition law may impose on the ability of Member States to introduce the licensing schemes referred to in the third sentence of Article 10(1) ECHR.
362    Accordingly, any national measure limiting or restricting broadcasters’ access to radio frequencies is liable to interfere with their right to freedom of the media associated with freedom of broadcasting and thus falls within the scope of Article 11 of the Charter.
363    In the present case, Paragraph 48(7) of the Law on media services, in so far as it has the effect of restricting the access of broadcasters, in this case Klubrádió, to radio frequencies, thereby preventing them from continuing to broadcast their radio content on a radio frequency, entails an interference with the right of the operators concerned to exercise the freedom of broadcasting, which is a component of freedom of the media, enshrined in Article 11 of the Charter.
364    Contrary to what Hungary claims, the fact that those operators may broadcast their content on the internet is not such as to cast doubt on the reality of that interference. Irrespective of whether internet broadcasting is an equivalent means of communication to broadcasting on analogue frequencies, the operators concerned are thus prevented from pursuing proven operational and commercial strategies and must, in any event, rebuild their audiences.
365    It is true that the rights and freedoms enshrined in Article 11 of the Charter are not absolute rights, but must be considered in relation to their function in society (judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 47 and the case-law cited).
366    In so far as the EU regulatory framework for electronic communications makes it possible to limit the grant of rights to use radio frequencies with a view to ensuring effective management of the radio spectrum, it specifically reflects the fact that the rights and freedoms recognised in Article 11 are not absolute as regards the conditions for use of radio frequencies.
367    However, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms guaranteed by the Charter must be provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
368    As pointed out in paragraph 361 above, the limitations which may be imposed on the right to freedom of expression may not therefore exceed those provided for in Article 10(2) ECHR, without prejudice to the restrictions which EU competition law may impose on the ability of Member States to introduce the licensing schemes referred to in the third sentence of Article 10(1) ECHR.
369    In that regard, it should be borne in mind that Article 11 of the Charter constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the European Union is founded. In such a context, interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary (judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 49 and the case-law cited), meaning that the objective pursued cannot reasonably be achieved in an equally effective manner by other means less prejudicial to those rights and freedoms (see, to that effect, judgment of 5 December 2023, Nordic Info, C‑128/22, EU:C:2023:951, paragraph 77 and the case-law cited).
370    Against that background, as the Court has stated in paragraph 173 of this judgment, Paragraph 48(7) of the Law on media services lays down a ground for the refusal to renew rights to use radio frequencies which constitutes a criterion for the selection of users of radio frequencies that is linked to the objective of promoting competition by encouraging the efficient use and ensuring the effective management of radio frequencies, referred to in Article 8(2)(d) of the Framework Directive. Inasmuch as the refusal to renew rights to use radio frequencies constitutes an interference with the right to freedom of the media of the providers concerned, such interference can be justified only in so far as, inter alia, that refusal does not go beyond what is necessary to attain the objective of general interest pursued by that provision of the Law on media services and is limited to what is strictly necessary.
371    Since, as is apparent from the considerations set out in paragraphs 177 and 181 of this judgment, Paragraph 48(7) of the Law on media services goes beyond what is necessary in order to attain the objective of general interest which it pursues in the light of the requirements of the applicable directives, the ensuing interference with the right of the operators concerned to exercise the freedom of broadcasting cannot be regarded as proportionate in the light of Article 52(1) of the Charter.
372    Therefore, by not allowing the Media Council any discretion to assess, when examining applications for renewal of the right to provide media services submitted by providers which have committed a repeated infringement, the seriousness of that infringement and whether it warrants the interference with the rights and freedoms enshrined in Article 11 of the Charter entailed by the refusal to renew that right, Paragraph 48(7) of the Law on media services is liable to lead to the adoption of decisions that are contrary to Article 11, an example of which is the refusal decision.
373    First, the repeated infringement at the root of that decision is the result not of an infringement of Klubrádió’s obligations under Hungarian law as regards broadcasting quotas, but of an infringement of the sole obligation to transmit data relating to those quotas. Secondly, during the penalty procedures giving rise to the adoption of Decisions Nos 354/2017 and 1224/2017 and, therefore, before those decisions were adopted, Klubrádió complied with that obligation by providing all the relevant data to the Media Council. Thirdly, those data did not disclose any failure on the part of Klubrádió to observe those quotas. Fourthly, that radio station paid the fines imposed in Decisions Nos 354/2017 and 1224/2017. Fifthly, between 31 May 2017, the date of commission of the repeated infringement resulting in the refusal to renew Klubrádió’s right to provide media services, and the date of the refusal decision, namely 8 September 2020, Klubrádió did not infringe either that obligation or the obligations under Hungarian law concerning broadcasting quotas. Moreover, it is not apparent from the file submitted to the Court that Klubrádió has committed any infringement since 31 May 2017.
374    In such circumstances, it cannot reasonably be considered that the infringement established in Decision No 1224/2017 is so serious that the refusal to renew Klubrádió’s right to provide media services is necessary to ensure the attainment of the objective identified in paragraph 370 of this judgment.
375    Consequently, as the Commission argues, the refusal decision is disproportionate to the objective pursued and to the seriousness of the ensuing interference with Klubrádió’s right to freedom of the media, with the result that, regardless of the context in which that decision was taken, it infringes Article 11 of the Charter.
376    That finding also applies to the invalidity decision, which had the effect of depriving Klubrádió of the possibility of being allocated rights to use the frequency 92.9 MHz and, therefore, of restricting its access to radio frequencies, thereby preventing it from continuing to broadcast its content on a radio frequency.
377    It is true that the three grounds for invalidity on which that decision is based may be justified in the light of the objective of promoting competition by encouraging the efficient use and ensuring the effective management of radio frequencies, in accordance with Article 8(2)(d) of the Framework Directive. The two grounds concerning the irregularities affecting points III.2 and III.3 of the form submitted by Klubrádió are intended to ensure fair competition and the ground for invalidity concerning Klubrádió’s business and financial plan is intended to ensure the presence on the media market of a radio station the functioning of which is stable and predictable.
378    However, in the light of the findings made in the context of the complaint alleging breach of the principles of transparency and proportionality by the invalidity decision and the rules governing the call for tenders underpinning the adoption of that decision, it must be held that, as the Commission submits, the conditions flowing from Article 52(1) of the Charter are not satisfied in the present case.
379    Both the grounds for invalidity concerning the irregularities affecting points III.2 and III.3 of the form submitted by Klubrádió and the ground for invalidity concerning Klubrádió’s business and financial plan are disproportionate to the objective pursued and cannot, therefore, justify the interference with Klubrádió’s right to freedom of the media entailed by the invalidity decision.
380    It must also be held that the infringements and defects attributed to Klubrádió in the present case, which form the basis of both the refusal decision and the invalidity decision and which materially prevented that radio station from pursuing its activities in the broadcasting sector, relate either to minor inaccuracies of a formal nature or to aspects which, in themselves, should not make it impossible for a radio station to pursue its activities.
381    Therefore, the complaints alleging infringement of Article 11 of the Charter are well founded.
382    In the light of the foregoing considerations, the Court upholds those complaints and declares that Hungary has failed to fulfil its obligations under Article 11 of the Charter on account of, first, the adoption of the refusal decision and Paragraph 48(7) of the Law on media services and, secondly, the adoption of the invalidity decision and the call for tenders at issue.
Costs
383    Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs unless, if it appears justified in the circumstances of the case, the Court orders that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
384    In the present case, since the Commission has applied for costs to be awarded against Hungary and the latter has, for the most part, been unsuccessful, Hungary must, in the circumstances of the case, be ordered to bear its own costs and to pay four fifths of the costs of the Commission. The Commission is to bear one fifth of its own costs.
385    In accordance with Article 140(1) of the Rules of Procedure, under which Member States which have intervened in the proceedings are to bear their own costs, the Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands are to bear their own costs.
On those grounds, the Court (Grand Chamber) hereby:
1.      Declares that Hungary has failed to fulfil its obligations:
–        under Articles 5 and 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), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, Article 4(2) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, Article 9 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), as amended by Directive 2009/140, and the principle of proportionality on account of (i) the adoption by the Médiatanács (Media Council, Hungary), on 8 September 2020, of Decision No 830/2020 (IX. 8) by which it refused to renew Klubrádió’s rights to use the radio spectrum, (ii) the adoption of Paragraph 48(7) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications), which automatically precludes the renewal of rights to use the FM broadcasting radio spectrum if the rightholder has repeatedly infringed its obligation to transmit data on broadcasting quotas, including where the infringements were minor infringements of a purely formal nature and have already been penalised by fines subsequently resulting in full compliance, and (iii) the ensuing disproportionate impossibility for Klubrádió to pursue its activities in the broadcasting sector;
–        under Article 5(3) of Directive 2002/20, as amended by Directive 2009/140, and the principle of good administration, on account of the adoption of that decision long after the expiry of the six-week period laid down in that provision;
–        under Article 5(2) of Directive 2002/20, as amended by Directive 2009/140, and Article 45(1) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code, on account of the fact that the Médiatanács (Media Council, Hungary), in the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz, which it published on 4 November 2020, and in Decision No 180/2021 (III. 10.), which it delivered on 10 March 2021, imposed disproportionate conditions on the allocation of rights to use the radio spectrum, failed to determine in advance the criteria for allocating those rights, did not provide for any discretion enabling an assessment to be carried out of the seriousness and relevance of errors potentially affecting the files submitted by the applicants, which might entail their exclusion, and disregarded how minor the errors affecting Klubrádió’s tender were;
–        under Article 8(2)(d) and Article 9(1) of Directive 2002/21, as amended by Directive 2009/140, and the principle of good administration, on account of the failure to organise a procedure to allocate the frequency 92.9 MHz in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights to use that radio frequency;
–        under Article 45(1) of Directive 2018/1972 and the principle of proportionality, on account of the adoption of Paragraph 65(11) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications), which precludes media service providers whose right to use radio frequencies has not been renewed due to the commission of a repeated infringement from applying for temporary rights of use; and
–        under Article 11 of the Charter of Fundamental Rights of the European Union, on account of (i) the adoption of Decision No 830/2020 (IX. 8) and Paragraph 48(7) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications) and (ii) the adoption of Decision No 180/2021 (III. 10.) and the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz, published on 4 November 2020;
2.      Dismisses the action as to the remainder;
3.      Orders Hungary to bear, in addition to its own costs, four fifths of the costs incurred by the European Commission;
4.      Orders the European Commission to bear one fifth of its own costs;
5.      Orders the Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands to bear their own costs.
[Signatures]
*      Language of the case: Hungarian.