Case C‑171/17

European Commission

v

Hungary

Failure of a Member State to fulfil obligations — Directive 2006/123/EC — Articles 15 to 17 — Article 49 TFEU — Freedom of establishment — Article 56 TFEU — Freedom to provide services — National mobile payment system — Monopoly)

Summary — Judgment of the Court (Fourth Chamber), 7 November 2018

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Requirements to assess — National legislation establishing a mandatory national mobile payment system operated by a public undertaking — Lawfulness — Conditions — Lack of compliance with conditions of non-discrimination, necessity and proportionality

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Requirements to assess — National legislation in the field of services of general economic interest — Not included — Conditions

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Services of general economic interest — Determination — Member States' discretion — Scope — Service already provided by operators present on the market concerned — Circumstances insufficient to find that a service is not a service of general economic interest

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Services of general economic interest and monopolies established after the entry into force of Directive 2006/123 — Included

See the text of the decision. (see paras 41-43)

Directive 2006/123 on services in the internal market contains specific provisions regarding the application of its provisions to services of general economic interest (‘SGEIs’), namely Article 15(4) and Article 17 thereof. In that context, the Member States are entitled, while complying with EU law, to define the scope and the organisation of their SGEIs, taking particular account of objectives pertaining to their national policy. In that regard, Member States enjoy a wide discretion which can be called into question by the Commission only in the event of manifest error. However, the mere fact that a service classified as an SGEI by a Member State is already provided by operators on the market concerned is not sufficient to show that that classification is vitiated by a manifest error of assessment. Indeed, the fact that a service is already provided on the market, but on unsatisfactory conditions not consistent with the public interest, as it is defined by the Member State concerned, is capable of justifying the classification of that service as an SGEI. (see paras 47, 49, 55, 56)

Article 15(4) of Directive 2006/123 on services in the internal market does not automatically exclude SGEIs from the scope of that Article 15. Article 15(4) thereof provides that paragraphs 1, 2 and 3 of that article are to apply to legislation in the field of SGEIs only to the extent that their application does not obstruct the performance, in law and in fact, of the particular task assigned to them. It follows that Article 15 of that directive does not preclude national legislation imposing a requirement, within the meaning of Article 15(2)(d), provided that the requirement is necessary to the performance, in a cost-effective manner, of the particular public service task in question. (see paras 62, 85)

By instituting and maintaining in force a national mobile payment system, operated by a single, State-controlled undertaking, the use of which is mandatory for mobile payments in different areas of application, namely public parking, the provision of the road network to traffic, the transport of persons by a State undertaking and other services provided by a State undertaking, a Member State fails to fulfil its obligations under Article 15(2)(d) of Directive 2006/123/EC on services in the internal market. A system reserving access to the activity of providing mobile payment services to a State undertaking by establishing a monopoly constitutes a requirement within the meaning of Article 15(2)(d) of Directive 2006/123, in respect of which the Member States are obliged to examine whether it is compatible with the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) of that directive. In accordance with the second sentence of Article 15(1) of that directive, the Member States must adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions. Such a requirement is not such as to satisfy the condition relating to absence of less restrictive measures to attain the objective pursued since there are measures less restrictive to the freedom of establishment which enable the objectives relied on, such as, for example, a system of concessions based on a competitive process, to be achieved. Since the requirements set out in Article 15(3) of Directive 2006/123 are cumulative, that finding is sufficient to establish non-compliance with that provision. (see paras 76, 79, 81-83, 87, operative part 1)