European Commission v Hungary.
Date: 2018-11-07
48


Under Article 1 of Protocol No 26 on services of general interest, the Member States enjoy a wide discretion in providing, commissioning and organising SGEIs tailored as closely as possible to the needs of the users.
49


The Member States are thus 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 (judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraphs 69 and 70).
51


In accordance with the case-law of the Court, a service may be of general economic interest where that interest has specific characteristics in comparison to the general economic interest of other economic activities (see, to that effect, judgments of 10 December 1991, Merci convenzionali porto di Genova, C‑179/90, EU:C:1991:464, paragraph 27; of 18 June 1998, Corsica Ferries France, C‑266/96, EU:C:1998:306, paragraph 45; of 23 May 2000, Sydhavnens Sten & Grus, C‑209/98, EU:C:2000:279, paragraph 75; and of 3 March 2011, AG2R Prévoyance, C‑437/09, EU:C:2011:112, paragraphs 71 and 72).
76


It must be borne in mind that each Member State is obliged, by virtue of the first sentence of Article 15(1) of Directive 2006/123, to examine whether, under their legal system, one or more of the requirements listed in Article 15(2) of that directive are imposed and, if so, to ensure that such requirements are 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 (judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 129).
77


In the first place, the concept of ‘requirement’ in Article 15(2) of Directive 2006/123 must be understood, in accordance with Article 4, point 7, of that directive, as referring, in particular, to ‘any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States’ (see, to that effect, judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 119).
83


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, to that effect, judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraphs 69 and 90).
85


In that context, it is therefore necessary to interpret Article 15 thereof as meaning that that provision 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, to that effect, judgments of 3 March 2011, AG2R Prévoyance, C‑437/09, EU:C:2011:112, paragraph 76, and of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 29).
88


First, it is settled case-law that national legislation, such as the mobile payment system law and the Governmental Decree, under which exclusive rights to carry on an economic activity are conferred on a single, private or public, operator, constitutes a restriction of the freedom to provide services (see, to that effect, judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 164 and the case-law cited).
89


That restriction cannot be justified unless it serves overriding reasons relating to the public interest, is suitable for securing the attainment of the public interest objective which it pursues and does not go beyond what is necessary in order to attain it (see, to that effect, judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 166 and the case-law cited).
92


In that regard, in accordance with the case-law of the Court, it is for the Member State which relies on Article 106(2) TFEU to show that all the conditions for application of that provision are fulfilled (judgment of 29 April 2010, Commission v Germany, C‑160/08, EU:C:2010:230, paragraph 126 and the case-law cited).
95


Finally, with regard to Hungary’s argument that Article 37 TFEU is applicable to the present case, it is sufficient to recall that that provision concerns trade in goods and thus cannot concern a monopoly to provide services which does not affect the trade in goods between the Member States (see, to that effect, judgments of 30 April 1974, Sacchi, 155/73, EU:C:1974:40, paragraph 10, and of 4 May 1988, Bodson, 30/87, EU:C:1988:225, paragraph 10).