Case C-92/23: Action brought on 17 February 2023 — European Commission v Hungary
Date: 2023-02-17
Institutions: Court of Justice
Subjects: broadcasting, equal treatment, infringement of EU law, national implementing measure, principle of proportionality, regulation of telecommunications, waveband








C_2023189EN.01001202.xml










30.5.2023   


EN


Official Journal of the European Union


C 189/12






Action brought on 17 February 2023 — European Commission v Hungary
(Case C-92/23)
(2023/C 189/18)
Language of the case: Hungarian

Parties


Applicant: European Commission (represented by: U. Małecka, L. Malferrari and A. Tokár, acting as Agents)

Defendant: Hungary

Form of order sought

The Commission claims that the Court should:






(1)


declare that






i)


by adopting Decision 830/2020 of 8 September, by which Médiatanács (Media Council, Hungary) refused to extend Klubrádió’s rights of use of radio frequencies,










ii)


by adopting a statutory provision such as Article 48(7) of Law CLXXXV of 2010 which, in the event of repeated infringements, automatically precludes the extension of rights of use of radio frequencies for broadcasting services, even if the infringement was not particularly serious and was of a purely formal nature, and










iii)


by thus preventing, in a disproportionate and discriminatory manner, the continuation of Klubrádió’s operations within the radio broadcasting services sector,
Hungary has failed to fulfil its obligations under Articles 5, 7 and 10 of Directive 2002/20/EC, (1) Article 4, point 2, of Directive 2002/77/EC, (2) Article 9 of Directive 2002/21/EC, (3) the general principles of proportionality, non-discrimination and good faith, and Article 11 of the Charter of Fundamental Rights of the European Union;










iv)


by failing to adopt, within the six-week period provided for in Article 5(3) of Directive 2002/20, a decision on the application for an extension of Klubrádió’s rights of use of radio frequencies, and










v)


by failing to carry out a procedure for granting rights of use of the frequency previously used by Klubrádió within a period which would have allowed Klubrádió to obtain the decision before the expiry of its right of use,
Hungary has failed to fulfil its obligations under Articles 8 and 9 of Directive 2002/21, Article 5(3) of Directive 2002/20, and the general principle of good administration;










(vi)


by publishing a call for tenders on 4 November 2020 and adopting Decision 180/2021 of 10 March, in which the Media Council






—


imposed disproportionate conditions on the granting of radio spectrum,










—


failed to define in advance the conditions for the granting of radio spectrum, and










—


failed to exercise any discretion in assessing the seriousness and relevance of errors in applications that could affect their admissibility, and disregarded the insignificance of errors,




Hungary has failed to fulfil its obligations under Article 5(2) of Directive 2002/20, Article 45 of Directive (EU) 2018/1972 (4) and Article 11 of the Charter of Fundamental Rights of the European Union;










vii)


by adopting a statutory provision such as Article 65(11) of Law CLXXXV of 2010, which precludes the possibility of applying for provisional rights of use where the communication services provider’s rights of use have not previously been extended, whereas it offers that possibility to providers which have already extended their rights of use once, without justifying that difference in treatment, and even though the grounds that preclude that extension do not preclude new rights of use from being granted, Hungary has failed to fulfil its obligations under Article 45(1) of Directive 2018/1972, and the principles of proportionality and non-discrimination.














(2)


order Hungary to pay the costs.





Pleas in law and main arguments

The subject matter of the action is the decisions of the Hungarian media regulatory authorities and the legislation on which those decisions are based, by which Klubrádió, a commercial radio station operating in Hungary, was deprived of the possibility of broadcasting its programming on the analogue terrestrial FM frequency and thus of reaching large sections of the Hungarian population.
On 8 September 2020, the Media Council decided not to renew Klubrádió’s right of use of radio frequencies. The Council then launched a new tender procedure for granting the rights of use of the frequency previously used by Klubrádió. Klubrádió participated in the tender procedure, but the Media Council declared its application invalid on 10 March 2021. As a consequence of those two decisions of the Media Council, Klubrádió was forced to cease its broadcasting services on the FM frequency.
Furthermore, under the current Hungarian law, Klubrádió is also temporarily unable to broadcast its programming on the FM frequency.
The Commission considers that Hungary has infringed EU law by adopting that legislation and those measures.


(1)  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 (OJ 2002 L 108, p. 21).

(2)  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).

(3)  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 (OJ 2002 L 108, p. 33).

(4)  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).