Case C-462/12: Action brought on 12 October 2012 — European Commission v Hungary
Date: 2012-10-12
Institutions: Court of Justice
Subjects: freedom to provide services, single market, special tax, telecommunications industry, transmission network








C_2012379EN.01001801.xml










8.12.2012   


EN


Official Journal of the European Union


C 379/18





Action brought on 12 October 2012 — European Commission v Hungary
(Case C-462/12)
2012/C 379/30
Language of the case: Hungarian

Parties


Applicant: European Commission (represented by: G. Braun and K. Talabér-Ritz, acting as Agent(s))

Defendant(s): Hungary

Form of order sought







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Declare that Hungary has failed to fulfil its obligations under Articles 12 and 14 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)






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in that, through the adoption of Law No XCIV of 2010 on a special tax on certain sectors of activity (az egyes ágazatokat terhelő különadóról szóló 2010. évi XCIV. törvény), it requires undertakings which provide telecommunications services under a general authorisation to pay a special tax and










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by failing to notify interested parties properly of the intention to amend the general authorisations, rights and conditions (of use and installation), and by failing to allow the interested parties sufficient time to express their views on the proposed amendments.














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order Hungary to pay the costs.





Pleas in law and main arguments

Law No XCIV of 2010 on a special tax on certain sectors of activity (az egyes ágazatokat terhelő különadóról szóló 2010. évi XCIV. törvény) introduced a new tax, called a special tax, on three main sectors of the Hungarian economy — retail trade activities, telecommunications activities and all commercial energy supply activities — which those affected have to pay for three consecutive years on the basis of their turnover before tax.
In support of its claim for a declaration of failure to fulfil obligations the Commission put forward the following pleas in law and arguments:






 


Directive 2002/20/EC of the European Parliament and of the Council states that its aim is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions. With that end in view the Directive emphasises the determination of the legislature that general authorisation schemes should not distort competition or prevent access to markets.










 


The Directive lays down rules on the procedures for authorisation and the content of the authorisations as well as the nature and scope of the economic burdens which may be imposed in connection with those procedures. According to Article 12 of the Directive, any administrative charges imposed on electronic communications services may cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions.










 


In the special tax, electronic communications services have to bear, in addition to administrative charges and management charges, a further financial burden, which, however, in breach of Article 12 of the Directive, is intended, not to finance administrative costs which will be incurred in the management of the general authorisation scheme, but to cover expenditure under the general budget of the Hungarian State.










 


The Commission takes the view that the special tax thus collected is in the nature of a burden on electronic communications services under a general authorisation, significantly increases the financial burden borne by the suppliers of that service, is an obstacle to the free movement of telecommunications services and is intended to finance expenditure not permitted by the Directive, and, as such, is incompatible with Article 12 of the Directive.










 


Finally, the Commission considers that Hungary did not properly inform those concerned of its intention to amend the general authorisations and the rights and conditions (of use or installation) or allow sufficient time for the interested parties to express their views on the proposed amendments. Accordingly, Hungary has failed to fulfil its obligations under Article 14 of the Directive.