Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 6 February 2025 (1)
Case C‑499/23
European Commission
v
Hungary
( Failure of a Member State to fulfil obligations – Free movement of goods – Common commercial policy – Procedure for the provision of information in the field of technical regulations – Export restrictions – Construction products and raw materials for construction – Public security )
I.      Introduction
1.        By the present action for a declaration of failure to fulfil obligations brought against Hungary, the European Commission asks the Court to declare that, by introducing a procedure applicable to the export of raw materials and construction materials, that Member State has failed to fulfil its obligations under Articles 35 and 36 TFEU, Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU, and Article 5(1) and Article 6(1) of Directive (EU) 2015/1535. (2)
II.    Legal framework
A.      European Union law
1.      Directive 2015/1535
2.        Article 5(1) of Directive 2015/1535 provides:
‘1.      Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.
Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned to the Commission, should knowledge of such text be necessary to assess the implications of the draft technical regulation.
Member States shall communicate the draft technical regulation again to the Commission under the conditions set out in the first and second subparagraphs of this paragraph if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
…
The Commission shall immediately notify the other Member States of the draft technical regulation and all documents which have been forwarded to it; it may also submit this draft, for an opinion, to the Committee referred to in Article 2 of this Directive and, where appropriate, to the committee responsible for the field in question.
…’.
3.        Article 6 of the directive provides:
‘1.      Member States shall postpone the adoption of a draft technical regulation for three months from the date of receipt by the Commission of the communication referred to in Article 5(1).
…
7.      Paragraphs 1 to 5 shall not apply in cases where:
(a)      for urgent reasons, occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, a Member State is obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultations being possible; or
(b)      for urgent reasons occasioned by serious circumstances relating to the protection of the security and the integrity of the financial system, in particular the protection of depositors, investors and insured persons, a Member State is obliged to enact and implement rules on financial services immediately.
In the communication referred to in Article 5, the Member State shall give reasons for the urgency of the measures taken. The Commission shall give its views on the communication as soon as possible. It shall take appropriate action in cases where improper use is made of this procedure. The European Parliament shall be kept informed by the Commission.’
2.      Regulation (EU) 2015/479
4.        Article 10 of Regulation (EU) 2015/479, (3) contained in Chapter IV thereof, entitled ‘Transitional and final provisions’, is worded as follows:
‘Without prejudice to other Union provisions, this Regulation shall not preclude the adoption or application by Member States of quantitative restrictions on exports justified on grounds of public morality, public policy or public security, or of protection of health and life of humans, animals and plants, of national treasures possessing artistic, historic or archaeological value, or of industrial and commercial property.’
B.      Hungarian law
1.      Decree No 402/2021
5.        Article 1 of the a gazdaság újraindítása érdekében meghozandó, az építőipari ellátásbiztonság szempontjából stratégiai jelentőségű nyersanyagok és termékek kivitelével kapcsolatos regisztrációs eljárásról és egyéb intézkedésekről szóló 402/2021 (VII. 8.) kormányrendelet (Government Decree No 402/2021 (VII. 8.) on registration procedures and other measures to be taken to relaunch the economy in relation to the export of raw materials and products of strategic importance for security of supply in the construction sector) (‘Decree No 402/2021’), in the version in force on the date of expiry of the period for replying to the reasoned opinion (6 June 2022), provides:
‘1.      Raw materials and products of strategic importance for security of supply in the construction sector, as defined in Annex 1 (together, “construction materials”) may, subject to the exception provided for in paragraph 2, be
(a)      sold or
(b)      exported from the territory of Hungary to other countries after registration (“notification”) to the Minister for National Economy (“the Minister”) and acknowledgement of receipt of the notification.
2.      This Decree shall not apply to construction materials in transit through the territory of Hungary.’
6.        Article 3 of the decree provides:
‘1.      On receipt of the notification, the Minister shall verify whether it complies with the formal requirements laid down in Article 2.
…
2.      If the notification complies with the formal requirements laid down in Article 2, the Minister shall forward the notifications together with the information referred to in paragraph 1(b), as appropriate, to the Government Commissioner responsible for the coordination of measures relating to the construction economy (‘the Government Commissioner’), who shall assess, in consultation with the ministers concerned, whether the sale or export of construction materials to other countries significantly impedes or renders impossible the construction, operation, maintenance or development of critical infrastructure, thereby jeopardising public services or posing a risk to security of supply in the construction sector.
3.      Within seven working days of the notification being sent, the Government Commissioner shall inform the Minister in writing of the existence of the circumstances referred to in paragraph 2, of his or her position on the circumstances referred to in paragraph 2 and, if those circumstances exist, shall also inform the Minister responsible for the supervision of State assets of his or her proposal for the exercise of the right of pre-emption and purchase; the Minister shall exercise the Hungarian State’s right of pre-emption and purchase in accordance with Article 5.
4.      No later than 10 working days following receipt of the notification, the Minister shall:
(a)      acknowledge receipt in writing of the notification if the Minister responsible for the supervision of State assets is not exercising the Hungarian State’s right of pre-emption and purchase;
(b)      if the Minister responsible for the supervision of State assets is exercising the right of pre-emption and purchase, inform the notifier that the Hungarian State is exercising the right of pre-emption or purchase of the construction materials specified in the notification and terminate the notification procedure; or
(c)      acknowledge receipt of the notification in writing.
4a.      The notification and the acknowledgement of receipt shall accompany the consignment and shall be made available by the notifier to the transport operator or organiser.
…’.
7.        Under Article 6/A of the decree:
‘If the notifier has not complied with the notification obligation laid down in this Decree or does not have an acknowledgement of receipt, the police and the State tax and customs authorities shall impose an administrative fine of up to 40% of the value excluding VAT of the construction materials that have not been notified or for which there is no acknowledgement of receipt.’
8.        Article 9 of the decree reads as follows:
‘1.      Subject to the exception provided for in paragraph 2, the present Decree shall enter into force on the day following that of its publication.
2.      Article 10 shall enter into force on the fifteenth day following the publication of the present Decree.’
9.        Article 11 of Decree No 402/2021 provides:
‘The notification obligation referred to in Article 2 shall apply to exports after the fifth working day following the entry into force of this Decree.’
10.      Article 12 of the decree states:
‘The draft of the present Decree has been the subject of prior notification in accordance with Articles 5 to 7 of Directive [2015/1535] …’.
2.      Government Decision No 1459/2021
11.      Paragraph 2 of the az építésgazdasági intézkedések összehangolásáért felelős kormánybiztos kinevezéséről és feladatairól szóló 1459/2021. (VII. 14.) kormányhatározat, (Government Decision No 1459/2021 (VII. 14.) concerning the appointment and functions of the Government Commissioner responsible for coordinating construction economy measures) (‘Government Decision No 1459/2021’), provides:
‘The Government Commissioner:
(a)      shall be responsible for coordinating the construction economy measures taken by the government in the context of the relaunch of the economy, and in particular:
(aa)      establishing the notification procedure relating to exports of construction materials and implementing the measures necessary for the exercise of the State’s right of pre-emption and of purchase;
(ab)      implementing the measure relating to the notification of the transport of construction materials,
[…]’.
III. Factual background
A.      Pre-litigation procedure
12.      On 30 June 2021, in the context of the notification procedure provided for by Directive 2015/1535, the Hungarian authorities notified the Commission of a draft government decree on measures to be taken to relaunch the economy with regard to the export of raw materials and products of strategic importance for security of supply in the construction sector (‘the notified draft’). On 8 July 2021, the Commission requested additional information from the Hungarian authorities to enable it to assess the notified project in the light of the relevant provisions of EU law.
13.      On the same day, Decree No 402/2021 was published in the Hungarian Official Gazette (Magyar Közlöny). Its wording was not identical to that of the notified draft. On 16 July 2021, the Commission asked the Hungarian authorities for information concerning the publication of that decree. On 22 July 2021, the authorities informed the Commission that Decree No 402/2021 differed in scope and content from the notified draft.
14.      By letter of 29 July 2021, the Commission informed the Hungarian authorities that pursuant to Articles 5 and 6 of Directive 2015/1535 both the failure to notify and the breach of the obligation to postpone adoption constituted a substantial procedural defect rendering the provisions of the technical regulations inapplicable.
15.      By reply of 2 September 2021, the Hungarian authorities justified the promulgation of Decree No 402/2021 without prior notification on the basis of an urgent situation, and explained that the pandemic and the worldwide shortage of raw materials had seriously affected construction work in Hungary. They emphasised that the decree was intended to ensure that stocks of materials and products essential for security of supply in the construction sector were available in Hungary and that domestic needs could be met in order to guarantee the security of critical infrastructure.
16.      The Commission issued Hungary with a letter of formal notice on 23 September 2021. In that letter, the Commission asserted that, by adopting Decree No 402/2021 and subsequent amendments thereto and Government Decision No 1459/2021, Hungary had failed to fulfil its obligations under Articles 35 and 36 TFEU, Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU, and Article 5(1) and Article 6(1) of Directive 2015/1535.
17.      In its reply to that letter of formal notice, by letter of 23 November 2021, Hungary contested those claims.
18.      Since it was not convinced by the arguments put forward by the Hungarian Government, the Commission sent a reasoned opinion to that Member State on 6 April 2022, in which it reiterated the heads of claim in question.
19.      By letter of 13 June 2022, Hungary replied to the reasoned opinion, claiming that the alleged infringements were unfounded.
B.      Procedure before the Court
20.      Since the Commission did not consider Hungary’s reply of 13 June 2022 to be sufficient, it decided to bring the present action, which was lodged at the Court Registry on 4 August 2023.
21.      At the hearing on 6 November 2024, Hungary and the Commission made oral submissions.
IV.    Analysis
22.      Since the Hungarian legislation introducing a procedure applicable to the export of raw materials and construction materials is liable to affect both exports between Member States and exports to third countries, the present case concerns both the EU legislation on the internal market and that on the common commercial policy.
A.      Infringement of Articles 35 and 36 TFEU (first head of claim)
1.      Arguments of the parties
23.      According to the Commission, Decree No 402/2021 constitutes a measure having equivalent effect to quantitative restrictions within the meaning of Article 35 TFEU, despite the arguments put forward by the Hungarian Government according to which (i) the registration procedure is completed within a maximum period of two working days, (ii) the Hungarian State is not exercising its right of pre-emption or of purchase, and (iii) the competent authorities are not applying the penalties provided for in the event of failure to comply with the notification obligation. The Commission points out that Decree No 402/2021 establishes, de jure, a difference in treatment between Hungarian domestic trade and export trade and that a national measure does not escape the prohibition laid down in Articles 34 and 35 TFEU merely because the obstacle created by that Member State is slight. It states, furthermore, that a measure may be regarded as a measure having equivalent effect to a quantitative restriction even if it is of relatively minor economic importance or if it affects imports/exports or economic operators only to a limited extent.
24.      As regards the possible justification of Decree No 402/2021 by reference to Article 36 TFEU, the Commission stresses that, since the concepts of ‘public policy’ and ‘public security’ must be interpreted strictly, they may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. The Commission maintains that such a reason must be linked to objective circumstances relating to the requirements of public security, and is not generally applicable.
25.      The Commission recalls that a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner. The Commission observes, with regard to the scope of Decree No 402/2021, that the measure at issue in the present case is not, however, limited either to construction materials for which a supply risk has been identified (risk of shortage) or to materials which are actually necessary for each piece of critical infrastructure.
26.      In the Commission’s view, the Hungarian Government has not proved that Decree No 402/2021 is suitable for securing the attainment of the alleged public interest objective.
27.      The Commission recalls that the principle of proportionality necessitates that the means chosen by the Member States are confined to what is actually appropriate and necessary to attain the legitimate objective pursued and that, in accordance with that principle, a system of prior control, justified and appropriate, must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it cannot be used arbitrarily.
28.      Furthermore, according to the Commission, the Hungarian Government’s arguments do not provide any evidence to establish that the measures imposed by Decree No 402/2021 are proportionate and do not go beyond what is appropriate and necessary to attain the objective pursued.
29.      The Hungarian Government submits that Decree No 402/2021 does not constitute a measure having equivalent effect to a quantitative restriction and therefore does not fall within the scope of the prohibition laid down in Article 35 TFEU. It argues that the aim of the decree is to enable the Hungarian authorities, by imposing a notification obligation, to monitor effectively the stocks of products of strategic importance for critical infrastructure and to gather information on the state of stocks and deliveries. The Hungarian Government submits that such a notification gives those authorities a complete picture, in real time, of the evolution of the stocks of construction products of strategic importance and, therefore, enables them to take the necessary steps to avoid a critical situation.
30.      The Hungarian Government considers that the effectiveness of the provisions laid down in Decree No 402/2021 is demonstrated by the fact that, since their entry into force, a situation has never arisen in which, owing to a shortage of a raw material or a product covered by the decree, the Hungarian authorities have had to exercise their right of pre-emption or purchase. Stressing that those provisions do not impose an obligation under substantive law on operators, the government points out that the registration procedure is always completed within a maximum of two working days and that the penalties provided for in the event of failure to notify are not being applied by the competent authorities.
31.      According to the Hungarian Government, it is apparent from the case-law of the Court of Justice that an exception to the prohibition in Article 35 TFEU is provided for in respect of restrictions the effects of which are considered to be too uncertain or indirect for them to be regarded as a restriction within the meaning of Article 35 TFEU.
32.      As regards the actual effects of the provisions laid down by Decree No 402/2021, the Hungarian Government observes that an examination of the data produced by the Központi Statisztikai Hivatal (Central Statistical Office, Hungary) does not support the conclusion that there has been a general reduction in export turnover for the range of products concerned.
33.      In addition, the Hungarian Government considers that Decree No 402/2021 seeks to ensure that Hungary complies with Directive 2008/114/EC (4) and that it is in any event justified on grounds of public security within the meaning of Article 36 TFEU. It adds that the decree contributes to relaunching the economy by responding to the fall in the production of construction materials, supply shortages and price increases due to the coronavirus epidemic and to safeguarding social interests such as the construction and provision of housing and the possibility for young people to start a family.
2.      Analysis
(a)    Measure having equivalent effect to a quantitative restriction on exports pursuant to Article 35 TFEU
34.      Pursuant to Article 35 TFEU, quantitative restrictions on exports and all measures having equivalent effect are prohibited between Member States.
35.      The wording of Article 35 TFEU is almost identical to that of Article 34 TFEU. The aim pursued by those two provisions is also the same, namely to ensure the free movement of goods within an internal market, that is to say, an area without internal frontiers. (5)
36.      That said, the scope of Article 35 TFEU is more limited than that of Article 34 TFEU, owing to the different logic underpinning import and export arrangements. As regards imports, virtually any national rule concerning goods is, at the very least, potentially capable of hindering trade within the internal market, since an importer must, in principle, comply not only with the rules of the State of origin but also with those of the State of destination. In other words, the obstacle is due to the coexistence of two different regulatory regimes.
37.      By contrast, as regards exports, only one regulatory regime is at issue, namely that of the State of origin. In such a situation, it would be excessive to consider that every national rule concerning the production, marketing or sale of goods could have an impact on exports. That is why a relevant restriction on exports covered by the prohibition laid down in Article 35 TFEU can result from general rules only if those rules are capable of having effects not only on production and distribution in general, but also specifically on export. (6) Consequently, the Court uses narrower wording when it comes to determining whether a measure constitutes a measure having equivalent effect to a quantitative restriction on exports. (7)
38.      Contrary to what the Commission seems to suggest (8) and its case-law on Article 34 TFEU, (9) the Court of Justice has never defined ‘measures having equivalent effect to a quantitative restriction’ under Article 35 TFEU. Nevertheless, even in the absence of an abstract definition, in a consistent line of decisions the Court has held that national measures applicable to all traders active in the national territory which have a greater effect on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State are ‘measures having equivalent effect to a quantitative restriction’, within the meaning of that article. (10)
39.      In the same vein, the Court of Justice has held that Articles 34 and 35 TFEU preclude the application to intra-EU trade of a national provision which requires, even purely as a formality, import or export licences or any other similar procedure, (11) and that the imposition of any special export formality constitutes an obstacle to trade by the delay which it involves and the dissuasive effect that it has upon exporters. (12)
40.      Against that background of case-law, it is impossible not to recognise that the measures at issue constitute measures having equivalent effect.
(b)    Justification under Article 36 TFEU
41.      A restriction falling within the scope of Article 35 TFEU cannot be justified unless it serves, in the first place, one of the general non-economic considerations set out in Article 36 TFEU or one of the overriding reasons in the public interest, (13) as developed by the Court through its case-law, and, in the second place, it complies with the principle of proportionality, which implies that that restriction is suitable for securing, in a consistent and systematic manner, the attainment of the objective pursued and does not go beyond what is necessary in order to attain that objective.
(1)    Identification of an overriding reason in the public interest
42.      The grounds of appeal put forward by Hungary as justification relate to public security, as referred to in Article 36 TFEU.
43.      In so far as Hungary relies on the provisions of Directive 2008/114, it must be held that that directive is irrelevant in the present case. First, the directive in question concerns the energy and transport sectors. (14) The scope of Decree No 402/2021 is considerably broader, since it covers not only the maintenance of critical infrastructure but also its construction, operation, maintenance and development. Consequently, that decree does not fall within the scope of Directive 2008/114.
44.      Second, as is apparent from Article 1 thereof, Directive 2008/114 merely establishes a procedure for the identification and designation of EU critical infrastructure. (15)
45.      The only thing that can be taken from Directive 2008/114 is the obvious fact that the EU legislature (16) considers critical infrastructure to be of particular importance within the European Union. That should come as no surprise.
46.      It is settled case-law that public policy and public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. (17) As regards specifically an objective linked to security of supply, the Court of Justice has also held that such an objective may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. (18) In that regard, the Court has specified that it cannot be held that the objective of ensuring security of supply to the construction sector, in particular at the local level, as regards certain basic raw materials, namely gravel, sand and clay, resulting from extractive activities, concerns, like the objective of ensuring security of supply in the petroleum, telecommunications and energy sectors, a ‘fundamental interest of society’. (19)
47.      Accordingly, I propose to set aside the security of supply of critical infrastructure as an overriding reason in the public interest relating to public security.
48.      However, I would, in principle, be open to Hungary’s argument that Decree No 402/2021 pursues social interests such as the construction of housing. (20) Nevertheless, I consider that Hungary has not adduced sufficient evidence to support such a finding. As it has only advanced it in abstract terms, I fear that the link between the restriction and the justification as put forward is too tenuous.
(2)    Appropriateness
49.      The following analysis is made in the event that the Court of Justice should consider that there is an overriding reason in the public interest justifying the obstacle at issue.
50.      It is necessary to question whether Decree No 402/2021 is suitable (21) for attaining the objective of ensuring the security of supply of critical infrastructure in the construction sector. According to settled case-law, national legislation is suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain the objective in a consistent and systematic manner. (22)
51.      In the light of that case-law, I consider that Decree No 402/2021 is not suitable for securing the attainment of the objective pursued.
52.      In the first place, Decree No 402/2021 applies only to exports. As regards transactions on the national market, however, no notification obligation is imposed on operators. The national authorities have no right of pre-emption or purchase. Consequently, there is a lack of consistency in the system established by the decree.
53.      In the second place, Decree No 402/2021 does not lay down the circumstances in which the national authorities’ right of pre-emption may be exercised. The decree merely provides that, following notification of exports of construction materials, the national authorities have ten working days to take a decision on the exercise of the right of pre-emption and purchase in respect of the construction materials notified. Thus, as the Commission points out, the appropriateness of the measures provided for by the decree depends, in practice, on future developments in the factual circumstances of its implementation and on the specific characteristics of that implementation.
54.      The Hungarian Government has therefore not established that Decree No 402/2021 is suitable for ensuring the attainment of the public interest objective relied on.
(3)    Necessity
55.      As regards the necessity of Decree No 402/2021 in order to achieve the objective in question, it is clear that less restrictive measures are conceivable, such as collecting information based on a simple obligation to communicate data relating to transactions relating to construction materials, accompanied, for cases of possible shortage, by more clearly circumscribed measures.
B.      Infringement of Article 2(1) and Article 3(1)(e) TFEU (second head of claim)
1.      Arguments of the parties
56.      The Commission submits that the restriction provided for by Decree No 402/2021 also applies to exports from Hungary to third countries and constitutes a measure falling within the scope of the common commercial policy and claims that that Member State should not have adopted measures in that regard. The Commission emphasises that the decree does not implement an act adopted by the European Union and that the latter has not empowered Hungary to adopt the decree in question, and therefore argues that Hungary has infringed Article 2(1) and Article 3(1)(e) TFEU.
57.      The Hungarian Government submits that Decree No 402/2021 does not infringe the European Union’s exclusive competence in the field of the common commercial policy. It claims that the decree is based on grounds of public policy falling within the scope of Article 10 of Regulation 2015/479.
2.      Analysis
58.      Pursuant to Article 2(1) TFEU, when the Treaties confer on the European Union exclusive competence in a specific area, only the European Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the European Union or for the implementation of EU acts. Article 3(1)(e) TFEU, in turn, provides that the common commercial policy is one such area of exclusive competence.
59.      It is common ground that Hungary has adopted a legally binding act in an area falling within the scope of the common commercial policy.
60.      It is precisely by exercising that exclusive competence in the area of common commercial policy, that the EU legislature adopted Regulation 2015/479 (23) to establish common rules for exports (of goods). Article 1, which sets out the ‘basic principle’ (24) of that regulation states that ‘the exportation of products from the Union to third countries shall be free, that is to say, they shall not be subject to any quantitative restriction, with the exception of those restrictions which are applied in conformity with this Regulation’. Under Article 10 thereof, without prejudice to other EU provisions, the regulation is not to preclude the adoption or application by Member States of quantitative restrictions on exports on grounds of public morality, public policy or public security, or of protection of health and life of humans, animals and plants, of national treasures possessing artistic, historic or archaeological value, or of industrial and commercial property. (25)
61.      The wording of that provision is almost identical to that of Article 36 TFEU. That means, in my view, that the EU legislature wished to extend the option for a Member State, provided for by primary law in Article 36 TFEU, to be able to restrict exports within the internal market (26) to exports outside that internal market.
62.      It follows that the conditions provided for in Article 10 of Regulation 2015/479 are not satisfied. In that regard, I refer to my analysis in the context of Article 36 TFEU: there is no overriding reason in the public interest capable of justifying the restriction at issue in the present case. (27) In any event, the restriction is neither appropriate nor necessary.
63.      Consequently, Hungary has acted in an area of exclusive competence without being empowered to do so by the European Union.
C.      Infringement of Article 5(1) and Article 6(1) of Directive 2015/1535 (third head of claim)
1.      Arguments of the parties
64.      The Commission criticises Hungary for failing to comply with the three-month standstill period laid down in Article 6(1) of Directive 2015/1535. It states that the Hungarian authorities communicated the notified draft to it on 30 June 2021 and that, therefore, by adopting Decree No 402/2021 on 8 July 2021, that is to say, before the expiry of the standstill period on 1 October 2021, that Member State infringed the abovementioned provision.
65.      In addition, criticising Hungary for failing to notify it of the amended draft decree, since the notified draft had been amended significantly, the Commission submits that that Member State infringed Article 5(1) of Directive 2015/1535. It points out that a Member State must re-notify a project if it makes significant changes to it after its notification and that, under the third subparagraph of Article 5(1) of that directive, a change must be regarded as significant, inter alia, where it shortens the timetable originally envisaged for implementation of the draft.
66.      The Hungarian Government submits that it did not infringe Directive 2015/1535 because the urgent adoption of Decree No 402/2021 was justified on grounds of public security, within the meaning of Article 6(7)(a) of that directive, which allows derogation from compliance with the three-month standstill period provided for in Article 6(1) of the directive. It stresses that the recovery in demand for construction materials after the coronavirus pandemic threatened to create a shortage in 2021 and that, therefore, urgent action was required to avoid such a situation. That government states that, in so far as the decree was not notified to the Commission due to the urgency referred to, it has undertaken not to impose penalties on undertakings which fail to comply with the notification obligation imposed by the decree or which do not have an acknowledgement of receipt of the notification.
2.      Analysis
(a)    Article 6(1) of Directive 2015/1535
67.      On 30 June 2021, the Hungarian authorities notified the Commission of the notified draft as a draft technical regulation in accordance with Article 5(1) of Directive 2015/1535.
68.      Following that notification, pursuant to Article 6(1) of Directive 2015/1535 a standstill period of three months began to run, during which the adoption of the draft should have been suspended.
69.      However, Decree No 402/2021 was published in the Magyar Közlöny on 8 July 2021 and its entry into force took place, pursuant to Article 9 thereof and with the exception of Article 10 thereof, on the day following that of publication. It follows that the decree was therefore adopted well before the expiry of the three-month standstill period.
70.      Pursuant to Article 6(7)(a) of Directive 2015/1535, Member States are not required to comply with that three-month standstill period where, for urgent reasons occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, Member States are obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultation being possible.
71.      As is apparent from the wording of Article 6(7)(a) of Directive 2015/1535, the situation at issue must be serious and unforeseeable, not potential. In that regard, the Court has already had occasion to clarify that a Member State cannot rely on the exception provided for in that provision where none of the situations referred to in that provision exist in that Member State. (28)
72.      However, the Hungarian Government refers only to the risk of a shortage of construction materials in Hungary. Consequently, the conditions of application of Article 6(7)(a) of Directive 2015/1535 are not satisfied. It follows that Decree No 402/2021 was adopted before the expiry of the three-month standstill period, and that therefore Article 6(1) of the directive has been infringed.
(b)    Article 5(1) of Directive 2015/1535
73.      Under the third subparagraph of Article 5(1) of Directive 2015/1535, Member States are to communicate the draft technical regulation again to the Commission, under the conditions set out in the first and second subparagraphs of that paragraph, if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
74.      According to Article 3 of the notified draft, its provisions were to apply from 1 October 2021. By contrast, under Articles 9 and 11 of Decree No 402/2012, the obligation to notify exports applies to exports from 15 July 2021.
75.      Such a reduction in the time limit for implementation originally envisaged constitutes a significant change to the notified draft, and entails the obligation to communicate the new draft to the Commission. (29)
76.      Consequently, by failing to notify the amended draft decree, the Hungarian authorities have infringed Article 5(1) of Directive 2015/1535.
V.      Conclusion
77.      In the light of the foregoing, I propose that the Court of Justice should:
–        declare that, by adopting the a gazdaság újraindítása érdekében meghozandó, az építőipari ellátásbiztonság szempontjából stratégiai jelentőségű nyersanyagok és termékek kivitelével kapcsolatos regisztrációs eljárásról és egyéb intézkedésekről szóló 402/2021 (VII. 8.) kormányrendelet (Government Decree No 402/2021 (VII. 8.) on registration procedures and other measures to be taken to relaunch the economy in relation to the export of raw materials and products of strategic importance for security of supply in the construction sector), which introduced a procedure applicable to the export of raw materials and construction materials, Hungary has failed to fulfil its obligations under Articles 35 and 36 TFEU, Article 2(1) and Article 3(1)(e) TFEU, and Article 5(1) and Article 6(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and on Information Society services;
–        order Hungary to pay the costs.
1      Original language: French.
2      Directive of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
3      Regulation of the European Parliament and of the Council of 11 March 2015 on common rules for exports (OJ 2015 L 83, p. 34).
4      Council Directive of 8 December 2008 on the identification and designation of European critical infrastructures and on the assessment of the need to improve their protection (OJ 2008 L 345, p. 75).
5      See Article 26(2) TFEU.
6      See also, to that effect, Müller-Graff, P.-Chr., in von der Groeben, H., Schwarze, J. and Hatje, A. (eds), ‘Art. 35 AEUV’. Europäisches Unionsrecht (Kommentar), Band 1, 7th edition, Nomos, Baden-Baden, 2015, paragraph 17.
7      See also my Opinion in BONVER WIN (C‑311/19, EU:C:2020:640, point 50).
8      See paragraph 32 of the Commission’s application.
9      See judgment of 11 July 1974, Dassonville (8/74, EU:C:1974:82, paragraph 5). According to settled case-law, Article 34 TFEU covers ‘any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-EU trade’ (see judgment of 29 July 2024, BP France (C‑624/22, EU:C:2024:640, paragraph 61)).
10      See judgment of 17 September 2020, Hidroelectrica (C‑648/18, EU:C:2020:723, paragraph 29 and the case-law cited).
11      See judgment of 15 December 1971, International Fruit Company and Others (51/71 to 54/71, EU:C:1971:128, paragraph 9.
12      See judgment of 16 March 1977, Commission v France (68/76, EU:C:1977:48, paragraph 16).
13      Also referred to as ‘overriding requirements of public interest’ (see judgment of 16 December 2008, Gysbrechts and Santurel Inter (C‑205/07, EU:C:2008:730, paragraph 45), ‘overriding requirements relating to the public interest’ (see judgment of 17 September 2020, Hidroelectrica (C‑648/18, EU:C:2020:723, paragraph 34), or ‘legitimate objective in the public interest’ (see judgment of 21 June 2016, New Valmar (C‑15/15, EU:C:2016:464, paragraph 48).
14      See recitals 5 and 9 of Directive 2008/114.
15      And a common approach to the assessment of the need to improve their protection, in order to contribute to the protection of people.
16      Moreover, it relied on Article 352 TFEU, presumably in the absence of any other legal basis.
17      See, for example, judgment of 14 March 2000, Église de Scientologie (C‑54/99, EU:C:2000:124, paragraph 17).
18      See, most recently, judgment of 13 July 2023, Xella Magyarország (C‑106/22, EU:C:2023:568, paragraphs 66 and 67 and the case-law cited).
19      See judgment of 13 July 2023, Xella Magyarország (C‑106/22, EU:C:2023:568, paragraphs 66, 67 and 69 and the case-law cited).
20      On the other hand, I propose that the economic reasons put forward by Hungary, such as the idea of relaunching the national economy, be dismissed out of hand.
21      In its case-law, the Court of Justice sometimes uses the term ‘aptitude’ in French (‘appropriateness’ in English). See, for example, judgment of 23 January 2014, Commission v Belgium (C‑296/12, EU:C:2014:24, paragraph 33). I shall use the terms ‘suitable’ and ‘appropriate’ in the present Opinion.
22      See judgment of 7 November 2024, Centro di Assistenza Doganale Mellano (C‑503/23, EU:C:2024:933, paragraph 84 and the case-law cited).
23      In essence, the common rules applicable to exports date back to 1969: Regulation 2015/479 repealed Council Regulation (EC) No 1061/2009 of 19 October 2009 establishing common rules for exports (OJ 2009 L 291, p. 1), which had itself repealed Regulation (EEC) No 2603/69 of the Council of 20 December 1969 establishing common rules for exports (OJ, English Special Edition, Series I Volume 1969 (II), p. 590).
24      See title of Chapter I of Regulation 2015/479.
25      In that regard, I wish to mention that, of course, as is apparent from the case-law of the Court of Justice, in addition to its wording, Article 10 of Regulation 2015/479 also applies to measures having equivalent effect to a quantitative restriction on exports. In the judgments in Werner and in Leifer, which concerned the interpretation of one of the precursors to Regulation 2015/479, namely Regulation No 2603/69, the question arose as to whether the provision which corresponded to Article 10 of Regulation 2015/479, the wording of which is identical to that article, also covered measures having equivalent effect. For the Court, the difference in wording between Article 35 TFEU and Article 10 of Regulation No 2603/69 was irrelevant. Not confining itself to a literal interpretation and instead examining the context and objectives pursued by Regulation No 2603/69, the Court of Justice held that a regulation based on Article 207 TFEU, whose objective is to implement the principle of free exportation at the EU level, as stated in Article 1 of that regulation, cannot exclude from its scope measures adopted by the Member States whose effect is equivalent to a quantitative restriction where their application may lead to an export prohibition (see judgments of 17 October 1995, Werner (C‑70/94, EU:C:1995:328, paragraph 22) and Leifer and Others (C‑83/94, EU:C:1995:329, paragraph 23). See also Opinion of Advocate General Jacobs in Werner (C‑70/94, EU:C:1995:151, point 31), and Opinion of Advocate General Jacobs in Richardt and ‘Les Accessoires Scientifiques’ (C‑367/89, EU:C:1991:199, points 19 to 22).
26      That is, of course, subject to the requirements arising from that provision and from other principles, such as the principle of proportionality, being satisfied.
27      The Court of Justice has stressed that ‘[t]o interpret the concept [of public security] more restrictively when it is used in Article [10] of [Regulation No 2603/69] would be tantamount to authorising the Member States to restrict the movement of goods within the internal market more than movement between themselves and non-member countries’ (see judgment of 17 October 1995, Werner (C‑70/94, EU:C:1995:328, paragraph 25)). However, I consider that, in the absence of other indications or arguments put forward by Hungary in the present case, there is no reason to interpret the concept of ‘public security’ differently in the context of Article 36 TFEU and in that of Article 10 of Regulation 2015/479.
28      See judgment of 26 October 2006, Commission v Greece (C‑65/05, EU:C:2006:673, paragraph 65). In that judgment, the Court interpreted the identical provision of the precursor to Directive 2015/1535, namely the first indent of Article 9(7) 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 (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).
29      See, also, judgment of 10 July 2014, Ivansson and Others (C‑307/13, EU:C:2014:2058, paragraph 44).