Provisional text

delivered on 30 April 2025 (1)

Case C‑144/24

European Commission

Hungary

( Failure of a Member State to fulfil obligations – Freedom of establishment – National legislation establishing reference prices for certain basic construction materials below market prices – Obligation to pay an ‘additional mining fee’ corresponding to 90% of the difference between the reference price and the sales price – National legislation setting a minimum extraction volume of mineral resources – Measures mainly affecting companies established in other Member States – Justification – Directive (EU) 2015/1535 – Information procedure in the field of technical standards and regulations and of rules on Information Society services – Obligation to notify )

I.Introduction

By the present action for failure to fulfil obligations brought against Hungary, the European Commission asks the Court to declare that, by adopting, during 2021, national rules on the payment of an additional mining fee and on the minimum extraction volume of certain mineral resources, that Member State has failed to fulfil its obligations under Article 49 TFEU and Directive (EU) 2015/1535. (2)

More specifically, by its application, the Commission requests that the Court declare that, by adopting, first, the provisions on the payment of an additional mining fee and on the minimum extraction volume of certain mineral resources contained, respectively, in Government Decree No 404/2021 on the additional mining fee to be paid with a view to relaunching the economy (‘Decree No 404/2021’) (3) and in Government Decree No 405/2021 derogating from Mining Law XLVIII of 1993 (‘Decree No 405/2021’, together, ‘the two decrees at issue’) (4) and, secondly, Law CXXXVI of 2021 amending certain laws on energy, transport and related matters (‘Law CXXXVI of 2021’), (5) which inserted Paragraphs 27/A, 27/B and 27/C into Mining Law XLVIII of 1993 (together, ‘the contested provisions’), Hungary has failed to fulfil its obligations under Article 49 TFEU, which enshrines the freedom of establishment, on the ground that those rules restrict the possibility, for persons and undertakings established in another Member State, of starting up or pursuing in Hungary an activity covered by those rules, and Article 5(1) of Directive 2015/1535, in that that Member State failed to notify the draft laws to the Commission as required by that provision.

II.Legal framework

A.European Union law

Under Article 1(1) of Directive 2015/1535:

‘For the purposes of this Directive, the following definitions apply:

(a)“product” means any industrially manufactured product and any agricultural product, including fish products;

…

(c)“technical specification” means a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.

…

(d)“other requirements” means a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;

…

(f)“technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, …

De facto technical regulations shall include:

…

(iii)technical specifications or other requirements or rules on services which are linked to fiscal or financial measures affecting the consumption of products or services by encouraging compliance with such technical specifications or other requirements or rules on services; …

(g)“draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’

Article 5(1) of that directive is worded as follows:

1.‘1. …, 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.

…’

B.Hungarian law

1.Mining Law

Paragraph 3(1) of the Mining Law, as amended by Law CXXXVI of 2021 (6) (‘the Mining Law’), states that mineral and geothermal resources, in their natural deposits, are the property of the State.

Paragraph 27/A of that law provides:

(1)‘(1) Under its powers to manage mineral resources, the Mining Supervisory Authority shall closely monitor the economic processes related to the search for, extraction of, trade in and use of mineral raw materials at the level of the national economy. The Mining Supervisory Authority shall verify in that context whether a situation exists which justifies a market surveillance measure.

(2)If the monthly price index for the basic construction materials industry … shows an increase in prices in the construction materials industry of at least 5% compared with the same period in the previous year – on at least 2 occasions over a period of 12 months – the President of the Authority may establish by decree a situation justifying a market surveillance measure.

…

(4)The decree referred to in subparagraph 2 shall specify the duration of the situation justifying a market surveillance measure, which may not exceed one year.’

Paragraph 27/B of that law provides:

(1)‘(1) The President of the Authority shall specify by decree, for mining sites established for the purpose of the exploitation of raw materials and basic construction materials with at least 5 000 000 m³ of extractable mineral resources,

(a)the detailed requirements relating to the minimum volume of mineral resources to be extracted and the associated extraction schedule,

…

for the duration of the situation justifying a market surveillance measure.

…

(3)In the case referred to in subparagraph 1, the Mining Supervisory Authority shall, …

(a)approve a new technical operating plan for extraction or the amendment to the technical operating plan for extraction in force where the mining operator’s operating plan for extraction complies with the requirements set out in the decree referred to in subparagraph 1,

(b)verify ex officio the technical operating plan for extraction in force for mining sites with mineral resources affected by the situation justifying a market surveillance measure …

…’

Paragraph 27/C of that law is worded as follows:

(1)‘(1) In the event of a situation justifying a market surveillance measure, the undertaking within the meaning of subparagraphs 2 and 3 shall be liable to pay the additional mining fee within the meaning of this Paragraph.

(2)An undertaking which

(a)is required to pay a mining fee …, and

(b)carries out, as its principal activity,

(ba)in the field of the extraction of raw materials and basic construction materials, as well as

(bb)in the field of the manufacture of products used as basic construction materials,

an economic activity defined by the President of the Authority in a decree, and which

(c)had a turnover which amounted to or was greater than 3 000 000 000 Hungarian forint (HUF) – excluding related undertakings – in the second tax year preceding the situation justifying a market surveillance measure established by decree of the President of the Authority,

shall be liable to pay an additional mining fee. …’.

2.Decree No 404/2021

The two decrees at issue had initially been adopted with effect from 9 July 2021 only for the duration of the COVID-19 pandemic. However, the effects of those decrees were extended on account of the war in Ukraine, with the result that they were still in force on the date on which the present action for failure to fulfil obligations was brought.

Article 1 of Decree No 404/2021 provides:

(1)‘(1) … An undertaking which

(a)is required to pay a mining fee in accordance with Paragraph 20(2)(a) and (b) of the [Mining Law], and

(b)is primarily engaged in

(ba)the quarrying of ornamental and building stone, limestone, gypsum, chalk and slate (NACE 0811),

(bb)the operation of gravel and sand pits, mining of clays and kaolin (NACE 0812),

(bc)the manufacture of cement (NACE 2351) or

(bd)the manufacture of lime and plaster (NACE 2352),

(be)the manufacture of bricks, tiles and construction products, in baked clay (NACE 2332),

(bf)the manufacture of ceramic tiles and flags (NACE 2331)

and whose

(c)net turnover in 2019 – excluding undertakings which are related to it … – amounted to or exceeded HUF 3 000 000 000,

shall be liable to pay an additional mining fee.

(2)The party liable for payment, …which extracts, processes or produces as basic construction materials

(a)graded sand which it sells at more than HUF 700 per tonne,

(b)graded gravel which it sells at more than HUF 900 per tonne,

(c)graded sandy gravel which it sells at more than HUF 700 per tonne,

(d)natural sandy gravel which it sells at more than HUF 700 per tonne,

(e)cement which it sells at more than HUF 20 000 per tonne,

(f)…

– excluding VAT – shall be required to pay 90% of the difference between its actual turnover and the turnover established on the basis of the amount sold and the price set in this paragraph as an additional mining fee.

…

(3)When selling the products referred to in paragraph 2, if the seller is not liable to pay the additional mining fee, it must aim for a reasonable profit margin, taking into account the values set out in paragraphs 2 and 2a.

…

(6)The additional mining fee must be used to finance public construction works for public health purposes.

….’

3.Decree No 405/2021

Article 1(1) to (3a) of Decree No 405/2021 provides:

(1)‘(1) In view of the exceptional situation caused by the coronavirus pandemic, the Mining Supervisory Authority shall adopt, for mining sites established for the purpose of the exploitation of raw materials and basic construction materials, a decision obliging mining operators

(a)which obtained the technical operating plan to start operational extraction before the entry into force of this decree, to commence operational extraction within a period of one year, at a level of at least 50% of the maximum extraction volume authorised in the first technical operating plan for extraction before amendment;

(b)which obtain the technical operating plan to start operational extraction after the entry into force of this decree, to commence operational extraction within a period of one year, at 100% of the maximum extraction volume authorised in the first technical operating plan for extraction before amendment.

…

(2)Mining operators engaged in the operational extraction of raw materials and basic construction materials may reduce the extraction volume with the authorisation of the Mining Supervisory Authority. Mining operators may submit their application for a reduction in the extraction volume no later than the twentieth day of the month following the last day of the one-year extraction period laid down in Article 1(1).

(2a)A reduction in the extraction volume may be authorised if:

(a)the mining operator has suffered force majeure, or

(b)there is an overriding external reason not covered by point (a) which falls outside the scope of the operator’s field of activity.

(3)Where extraction does not commence in accordance with paragraph 1, with the exception of the cases provided for in paragraph 3a, the Mining Supervisory Authority shall withdraw the mining operator’s mining permit and shall designate as the new holder of the mining permit for the mining site in question [the Hungarian national asset management company], so that it may exercise the right of ownership on behalf of the Hungarian State.

(3a)The Mining Supervisory Authority shall not withdraw the mining operator’s mining permit if that operator proves the existence of a reason precluding the application of that rule, in accordance with paragraph 2a.’

III.The pre-litigation procedure

Following a complaint, on 6 April 2022 the Commission sent Hungary a letter of formal notice calling into question the compatibility of the contested provisions with, inter alia, (7) Article 49 TFEU and Article 5(1) of Directive 2015/1535.

According to the Commission, the two decrees at issue, first, established official prices below market prices for certain basic construction materials and, secondly, imposed on larger undertakings extracting or manufacturing those materials – almost all of which are controlled by companies established in other Member States – the payment of an additional mining fee corresponding to 90% of the difference between the official price and the sales price, which is higher than the official price. At the same time, the undertakings to which those decrees apply are required to maintain a minimum level of extraction set by the government; otherwise, they will lose their mining permit. The Mining Law, for its part, has been amended in order to authorise the President of the Mining Supervisory Authority to take similar measures.

In its reply of 13 June 2022, Hungary disputed the infringements alleged against it in that letter of formal notice. In particular, first, as regards the alleged infringement of the freedom of establishment, the Hungarian authorities submitted that the additional mining fee was a tax, that the contested provisions were justified by overriding reasons in the public interest (8)

and that they restricted the freedom of establishment in a proportionate manner, since the two decrees at issue were temporary and exceptional measures. Secondly, as regards the infringement of the notification obligation under Directive 2015/1535, those authorities stated that the notification of Decree No 404/2021 initially planned was not carried out for administrative reasons and asserted that that decree did not constitute an ‘other requirement’ falling within the scope of that notification obligation. Similarly, they considered that there was no notification obligation in respect of Paragraphs 27/A to 27/C of the Mining Law in so far as those provisions did not have any specific technical content.

On 26 January 2023, the Commission sent Hungary a reasoned opinion in which it reiterated the arguments which it had set out in its letter of formal notice. (9) In accordance with the first paragraph of Article 258 TFEU, it invited that Member State to take the measures necessary to comply with that reasoned opinion within two months of its receipt.

By letter of 30 March 2023, Hungary replied to the reasoned opinion, maintaining that the alleged failures to fulfil obligations were unfounded.

Procedure before the Court and forms of order sought

Dissatisfied with that reply, the Commission, by application of 23 February 2024, brought the present action for failure to fulfil obligations.

Hungary lodged its defence on 14 May 2024.

The Commission and Hungary lodged a reply and a rejoinder on 25 June and 6 August 2024 respectively.

By its application, the Commission claims that the Court should declare that, by adopting the contested provisions, Hungary has failed to fulfil its obligations under Article 49 TFEU and Article 5(1) of Directive 2015/1535 and order it to pay the costs.

Hungary contends that the Court should dismiss the action as unfounded and order the Commission to pay the costs.

Analysis

In support of its action, the Commission puts forward two complaints, alleging infringement of Article 49 TFEU and of Article 5(1) of Directive 2015/1535 respectively.

The first complaint, alleging infringement of Article 49 TFEU

By its first complaint, the Commission submits that the two decrees at issue and Paragraphs 27/A to 27/C of the Mining Law constitute, both individually and jointly, a restriction on the freedom of establishment in that they prevent or render less attractive, for undertakings established in other Member States, the exercise in Hungary of activities covered by Decree No 404/2021 (1), and that such a restriction cannot be justified by the overriding reasons in the public interest relied on by Hungary (2).

Whether there is a restriction on the freedom of establishment

Arguments of the parties

In the first place, in its application, the Commission sets out its understanding of the content of the abovementioned provisions. First of all, as regards Decree No 404/2021, it observes that Article 1(2) thereof establishes official prices for five basic construction materials (namely graded sand, graded gravel, graded sandy gravel, natural sandy gravel and cement) and provides that, if sold above those prices, the undertaking concerned must pay, as an additional mining fee, 90% of the difference between its actual turnover and that established on the basis of the amount sold and the official price. Next, as regards Decree No 405/2021, the Commission notes that, under Article 1(1), (2) and (2a) of that decree, the Mining Supervisory Authority is to require mining operators to commence operational extraction within a period of one year and at a level of either at least 50% of the maximum extraction volume authorised in the technical operating plan (for plans obtained before the entry into force of that decree), or 100% of that extraction volume (for plans obtained after the entry into force of that decree). The applicable minimum extraction volume may be reduced only if authorised by that authority where the mining operator has suffered force majeure or there is another overriding external reason. Operators which do not comply with that minimum extraction volume will have their mining permit withdrawn and that permit will be allocated to the Magyar Nemzeti Vagyonkezelő Zrt. (Hungarian national asset management company) so that it may exercise the right of ownership on behalf of the Hungarian State. Lastly, as regards the Mining Law, Paragraphs 27/A to 27/C of that law authorise the President of the Mining Supervisory Authority, in the event of a situation justifying a market surveillance measure, to adopt measures similar to those provided for in the two decrees at issue, even after the state of crisis has come to an end and those decrees have expired. The fact that the president of that authority did not adopt such measures, even though the conditions for their application had been met, given the level of inflation in Hungary, may be explained by the fact that the Hungarian legislature extended the period of application of those decrees, which were initially limited to the COVID-19 pandemic, in order to align it with the duration of the war in Ukraine, with the result that it was not necessary to use the parallel procedure provided for in the Mining Law.

In the second place, the Commission makes observations on the application of those provisions. It points out inter alia that, during the pre-litigation procedure, the prices established in Article 1(2) of Decree No 404/2021 were always lower than the market prices for all the basic materials referred to therein. It also found that, of the 340 undertakings active in Hungary in the sectors defined by that decree, only four of them must pay the additional mining fee and that those undertakings are all, with one exception, owned by an undertaking from another Member State. That corresponds to 1.2% of the 340 undertakings in total, however, those four undertakings represent a share of approximately 25% of the market in raw materials for construction. The undertakings covered by that decree were obliged to sell their products at the price fixed therein, well below the market price. Otherwise, they would have to pay the mining fee corresponding to 90% of the difference between the price fixed in that decree and the market price. According to the Commission, that would in practice prevent those undertakings, unlike those which are not required to pay the additional mining fee, from achieving a fair profit margin by forcing them to operate at a loss. Decree No 405/2021 reinforces that effect in that the undertakings required to pay that fee must, in order not to have their mining permit withdrawn, maintain the minimum level of production prescribed by that decree even if they operate at a loss.

In the third and last place, having regard to the foregoing observations, the Commission concludes that the two decrees at issue, as well as Paragraphs 27/A to 27/C of the Mining Law, both individually and jointly, constitute a restriction on the freedom of establishment for three reasons.

First, as regards undertakings planning to enter the Hungarian market whose registered office is in a Member State other than Hungary, those rules constitute a serious obstacle to the exercise of their freedom of establishment and operation. Those rules make it more difficult for them to gain access to that market, since those undertakings are required to achieve in one year the level of production prescribed by Decree No 405/2021, whereas Decree No 404/2021 makes it very difficult, if not impossible, for them to make a profit.

Secondly, as regards undertakings already present on the Hungarian market, the introduction of new conditions relating to the exercise of an economic activity makes it less attractive, or even impossible, for them to exercise their freedom of establishment, since their profits are considerably restricted and they may be required to operate at a loss, which makes it more difficult, or even impossible, to make investments.

Thirdly, according to the case-law of the Court, the exercise of freedom of establishment entails, in principle, that economic operators have the freedom to determine the nature and extent of the economic activity that will be carried out in the host Member State, as well as the freedom subsequently to scale down that activity. (10) The rule on the minimum level of production does not allow that aspect of the freedom of establishment to be exercised.

Moreover, the legislation at issue gives rise to indirect discrimination since it applies, with one exception, to undertakings controlled by companies established in other Member States. That finding is not affected by the fact that the category of favoured economic operators may also include undertakings established in other Member States.

Hungary disputes all of the Commission’s arguments, contending, in essence, that the provisions at issue do not constitute a restriction on the freedom of establishment or a form of discrimination, whether overt or covert.

In the first place, as a preliminary point, in its defence, Hungary challenges the Commission’s approach of analysing the provisions at issue as a whole and examining their combined effects. In its view, in order to determine whether they constitute a restriction on the freedom of establishment, those provisions must be examined separately, since they cannot be applied jointly or produce cumulative effects. First, Decree No 405/2021 concerns only mining operators which have not yet commenced operational extraction on the date of entry into force of that decree, and not operators which are already engaged in mining activities and which are required to pay the additional mining fee under that decree. Secondly, the Mining Law and the two decrees at issue do not contain parallel procedures since those decrees contain provisions which are directly applicable to mining operators, whereas Paragraphs 27/A to 27/C of that law provide only for the possibility of laying down rules, on an exceptional and temporary basis, which cannot be assessed on their merits because they have not yet been adopted. It also points out that those paragraphs were adopted to replace the rules contained in those decrees. If the entry into force of those paragraphs did not lead to the repeal of those decrees, it is because the state of emergency has continued.

In the second place, Hungary refutes all of the arguments on which the Commission bases the existence of a restriction on the freedom of establishment, while nevertheless dealing with the contested provisions separately.

First, as regards the additional mining fee provided for by Decree No 404/2021, that Member State disputes all the reasons relied on by the Commission.

First, with regard to undertakings planning to enter the Hungarian market, new operators entering the market are not subject to the obligation to pay that fee since the objective criterion for imposing the fee is the principal activity and net turnover in 2019.

Secondly, with regard to undertakings already present on the Hungarian market, Hungary submits that the additional mining fee is a tax measure, pursuant to which the question of tax liability is based on neutral and objective criteria, namely net turnover in 2019, the field of activity and the reference price. Freedom of establishment cannot therefore be infringed in that regard. The legislation at issue, in order to determine the proportionate tax burden, links the tax liability to the amount of turnover, which is recognised by the case-law of the Court as a criterion of differentiation that is neutral and a relevant indicator of a taxable person’s ability to pay. (11)

Thirdly, with regard to the existence of indirect discrimination, the fact that the undertakings which have to pay the additional mining fee are mainly undertakings from other Member States results from the specific structure of the Hungarian market, in which the most powerful undertakings in the sector concerned are foreign undertakings. In that regard, the present case is comparable to those which gave rise to the judgments in Vodafone Magyarország and Tesco-Global Áruházak. (12) Hungary submits that Decree No 404/2021 concerns operators with the greatest influence on the price level of raw materials and basic construction materials or with a dominant market share, which have sufficient market power to maintain the price level of products sold at an artificially high level.

Secondly, as regards the rules imposing a minimum level of production which derive from Decree No 405/2021, that Member State points out that the national legislation already contained provisions designed to ensure that the State’s raw material requirements were met and that the requirements relating to the minimum volume of mineral resources to be extracted and the associated extraction schedule constitute objective rules which are applicable without distinction to all undertakings which have not yet commenced operational extraction at the mining site or which have at least 5 000 000 m³ of extractable mineral resources. While it is true that those rules appear to be a tightening of those previously in force, the fact remains that they apply in the same way to all undertakings. As regards the freedom of economic operators to determine, or even to scale down, the activity to be carried on in the host Member State, the judgment in AGET Iraklis, to which the Commission refers, arises in a different context from that of the present case, with the result that it is not possible to infer from it a general conclusion that the Member States may not, within the limits of their powers, adopt measures liable to affect the volume of undertakings’ economic activity. Otherwise, any tax measure of a Member State could be called into question.

In its reply, the Commission states, first, as regards the analysis of the effects of the provisions at issue, that it does not share Hungary’s view that the effects of the two decrees at issue are not cumulative. It is apparent from Article 1(2) and (2a) of Decree No 405/2021 that undertakings already engaged in mining activities are subject to a minimum extraction obligation and may reduce that quantity only subject to compliance with the conditions laid down in that decree. Secondly, as regards the existence of indirect discrimination, its submits that the judgments in Vodafone Magyarország and Tesco-Global Áruházak to which Hungary refers concerned progressive taxes on turnover, whereas the additional mining fee at issue in the present case is neither a tax on turnover nor a progressive tax. In short, the determination of the scope of the measure, although not based on a formal distinction based on nationality or place of establishment, clearly has discriminatory or protective features and is therefore incompatible with the fundamental freedoms.

In its rejoinder, Hungary submits, first, as regards the cumulative effect of the two decrees at issue, that the Commission’s interpretation of Article 1(2) and (2a) is incorrect in so far as that article applies to mining operators which commence operational extraction. It acknowledges that, in view of the wording of those decrees, it cannot in principle be ruled out that a mining operator already present on the market which begins extraction at a new mining site may fall within the scope of those decrees. However, that Member State asserts that that would not be realistic under Hungarian market conditions, since the operators paying the additional mining fee do not currently have any mining sites to which Decree No 405/2021 would be applicable. Moreover, even if a mining operator paying that fee were to apply to establish a new mining site, the minimum extraction volume requirement would apply to it only in relation to that new site.

Secondly, Hungary submits that the additional mining fee is a variable tax in bands since, on account of the turnover threshold, some undertakings are considered to be subject to tax and others are not. Even if that fee is not progressive in nature, some of the lessons drawn from the judgments in Vodafone Magyarország and Tesco-Global Áruházak are transposable to the present case, in particular the fact that turnover is a relevant indicator of the taxable person’s ability to pay. Since there is no court decision ruling out the applicability of that indicator in the case of a variable tax in bands, that indicator could thus constitute the basis for such a tax. Lastly, a tax similar to the additional mining fee is provided for by Directive (EU) 2022/2523, (13) which concerns operators whose turnover, calculated on the basis of the four fiscal years preceding the fiscal year in question, exceeds a certain annual level.

Assessment

By its first complaint, the Commission submits, in essence, that, by adopting rules of law which have the effect of restricting the possibility for undertakings established in another Member State of starting up or pursuing in Hungary an activity covered by those rules, namely mining, Hungary has failed to fulfil its obligations under Article 49 TFEU.

More specifically, first, the two decrees at issue, which impose, respectively, an obligation to pay an additional mining fee and a minimum extraction obligation, infringe, in the Commission’s view, both individually and jointly, Article 49 TFEU, in so far as the undertakings which are required to pay that fee – almost all of which are controlled by companies established in other Member States – are obliged either to sell their products at below the market price or to pay that fee, which, unlike undertakings which are not liable for the same fee, considerably reduces their profits or even forces them to operate at a loss, that effect being reinforced by the minimum extraction obligation. Secondly, the provisions of the Mining Law essentially allow the President of the Mining Supervisory Authority to adopt measures similar to those referred to in those two decrees and, therefore, to restrict the freedom of establishment.

In that regard, I note that, according to the Court’s settled case-law, all measures which prohibit, impede or render less attractive the exercise of freedom of establishment must be considered to be restrictions on that freedom within the meaning of Article 49 TFEU. (14) Moreover, freedom of establishment entails an obligation of equal treatment, which forbids not only overt discrimination based on the location of the registered offices of companies, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. (15)

It is in the light of those principles that it is necessary to examine whether the decrees at issue, on the one hand, and Paragraphs 27/A to 27/C of the Mining Law, on the other, constitute a restriction on the freedom of establishment.

The two decrees at issue

As a preliminary point, it is necessary to ascertain whether the two decrees at issue must be assessed by reference to their combined effects, as the Commission maintains, or in isolation, as Hungary submits. As a reminder, while the Commission asserts that the obligations relating to the payment of the additional mining fee and the minimum extraction volume restrict the freedom of establishment ‘both individually and jointly’, its criticisms in that regard are mainly formulated by taking account of their cumulative effects. (16)

Although the parties agree that the scope ratione materiae of those two decrees overlaps in part (namely in relation to the extraction of mineral resources), their positions differ as to whether or not their scope ratione personae allows them to be applied cumulatively to the same undertakings. It is therefore necessary to examine whether those decrees can be applied jointly with the result that an undertaking required to pay an additional mining fee under Decree No 404/2021 may also be subject to a minimum extraction obligation under Decree No 405/2021.

In that regard, I note, first of all, that it follows from Article 1(1)(a) and (b) of Decree No 405/2021 that that decree imposes the minimum extraction obligation only on mining operators which, although in possession of a technical operating plan to start operational extraction, have not yet ‘commenced’ operational extraction on the date of entry into force of that decree. Those new operators are not, by definition, subject to the obligation to pay the additional mining fee within the meaning of Decree No 404/2021, since, in accordance with Article 1(1) thereof, that decree is aimed solely at undertakings on the basis of the principal activity already carried out and their turnover for 2019.

Next, I consider that that finding cannot be invalidated by the argument put forward by the Commission that Article 1(2) and (2a) of Decree No 405/2021, which lays down the conditions relating to a reduction in extraction volume refers to ‘mining operators engaged in the operational extraction’ and, therefore, not only to undertakings which commence mining activities. As Hungary submits, such an interpretation would conflict with other provisions, namely, first, the second sentence of Article 1(2) of that decree, which provides that ‘mining operators may submit their application for a reduction in the extraction volume’ within a period laid down in Article 1(1) thereof, which refers to the ‘commencement’ of new operational extraction and, secondly, Article 1(2) of that decree, which also refers only to mining operators which commence such extraction.

In that context, I consider that the Commission, on which rests the burden of proving the existence of the alleged infringement and thus of providing the Court with the information necessary for it to determine whether there has indeed been an infringement, (17) has not fulfilled its obligation to adduce evidence as to the possibility that the two decrees at issue may be applied cumulatively. (18) Those decrees must therefore, for the purposes of the present action for failure to fulfil obligations, be examined separately.

(i)The obligation to pay the additional mining fee under Decree No 404/2021

In the first place, as regards the obligation to pay the additional mining fee under Decree No 404/2021, the Commission states, without being contradicted by Hungary, first, that the prices fixed in Article 1(2) of that decree were always lower than the market prices for all the basic materials referred to therein and, secondly, that, of the 340 undertakings active in Hungary in the sector concerned, only four satisfy the conditions requiring them to pay the additional mining fee, three of those four undertakings being owned by companies from another Member State. Moreover, the market share of those four undertakings on the market for those materials is approximately 25%.

On the basis of those findings, the Commission submits, first, that the profits of the undertakings required to pay that fee are, in view of the effects of those provisions, considerably restricted and that it is possible that they must operate at a loss, which makes it more difficult, or even impossible, to make investments, both for undertakings planning to enter the Hungarian market and for those already present on that market. Secondly, Decree No 404/2021 gives rise to indirect discrimination since it applies, with one exception, to undertakings controlled by companies established in other Member States.

Hungary replies that the freedom of establishment cannot be infringed since the additional mining fee is a tax measure based on neutral criteria such as, inter alia, turnover, and the fact that the undertakings concerned are controlled by companies from other Member States results from the specific structure of the Hungarian market, in which the most powerful undertakings are foreign undertakings, in a manner similar to what the Court held in the judgments in Vodafone Magyarország and Tesco-Global Áruházak.

In that regard, I would point out that the tax at issue in the cases which gave rise to those judgments was a progressive tax based on turnover. (19) However, as the Commission notes in its written pleadings, the additional mining fee is not progressive in nature and, above all, is not established on turnover, as turnover is used not to determine the basis of assessment of that fee, but merely to establish which undertakings are liable to pay it. Moreover, that fee, which was introduced in 2021 for what was in principle a limited period, namely during the COVID-19 pandemic, is based on a ‘fixed’ turnover, in this case that achieved in 2019, even though the undertakings liable to pay that fee had to continue to pay it at least until the date on which the present action for failure to fulfil obligations was brought, namely 23 February 2024.

Thus, for as long as its effects are extended, the additional mining fee is and always will be aimed at the same four undertakings, three of which are controlled by companies from other Member States, even if their respective turnover no longer reaches the HUF 3 billion (approximately EUR 9.2 million) threshold. Conversely, undertakings whose turnover reached that threshold after 2019 are not required to pay that fee. The Commission submits, without being challenged on that point by Hungary, that the undertakings which do not pay it are mainly owned by Hungarian natural or legal persons.

To that end, I consider that the additional mining fee, in the light of the characteristics referred to in the two preceding points of this Opinion, should be regarded as constituting indirect discrimination prohibited by Article 49 TFEU. The Court has held that a compulsory levy which provides for a criterion of differentiation that is apparently objective but that disadvantages in most cases, given its features, companies that have their seat in other Member States and which are in a situation comparable to that of companies whose seat is situated in the Member State of taxation, constitutes such discrimination. (20)

Moreover, since that fee is set at 90%, thus almost the entirety, of the difference between the sales price of certain basic materials and the reference price which is not disputed as being below market prices, it seems to me to render the exercise of the freedom of establishment less attractive, if not impossible, in so far as it may prevent a return on the investments made by the undertakings liable to pay it. (21)

Accordingly, the provisions of Decree No 404/2021 constitute, in my opinion, both indirect discrimination and a restriction on the freedom of establishment within the meaning of Article 49 TFEU.

(ii)The minimum extraction obligation under Decree No 405/2021

In the second place, as regards the minimum extraction obligation laid down by Decree No 405/2021, it is necessary to examine whether, taken in isolation, namely without taking into account the cumulative effects with the additional mining fee, such an obligation may be regarded as a restriction on the freedom of establishment.

I consider that that is not the case here.

First of all, as regards undertakings already present on the Hungarian market, the Commission describes the effects of the decree on several occasions, pointing out that it implies that the companies covered by it are required to maintain a minimum extraction volume even though they are obliged to operate at a loss, which presupposes that they would be required to pay the additional mining fee. Nevertheless, in so far as it has not been demonstrated that those two obligations coexist with respect to the same undertaking, that latter fact does not appear to be proven.

Next, as regards undertakings planning to start mining operations in Hungary, namely the only undertakings in respect of which, in my view, it has clearly been established that they fall within the scope of Decree No 405/2021, that institution merely states, in general, that the rules in question make access to the Hungarian market more difficult. While it is true that those undertakings are required to achieve in one year the level of production prescribed in that decree, that same requirement applies to all new operators entering the market (whether national or non-national) which, de facto, rules out any infringement of the freedom of establishment. In any event, I note that the Commission has not provided any evidence to establish that the companies concerned by the minimum extraction obligation are mainly from other Member States.

Lastly, the Commission refers to the judgment in AGET Iraklis which, in so far as it concerns the freedom to scale down the activity carried out by a company in a host Member State, appears to me to relate primarily to undertakings already active on the market of such a Member State. Moreover, that judgment was delivered in a specific context, in that it concerned national legislation conferring upon an administrative authority the power to oppose collective redundancies within a Greek undertaking controlled by a French multinational group, after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy. However, it cannot be overlooked that Decree No 405/2021 was established in a completely different regulatory context, in that it merely amends a law which already contained provisions intended to ensure that Hungary’s raw material requirements are met. Otherwise, any tax measure falling within the exclusive competence of a Member State, such as the management of mineral resources, the natural deposits of which are not unlimited, which are under the exclusive ownership of the State, could potentially be called into question, as it would be likely to make the terms of establishment less attractive.

In the light of the foregoing, it seems to me that the Commission has not proved how the minimum mining extraction obligation constitutes a restriction on the freedom of establishment within the meaning of Article 49 TFEU.

(2)Paragraphs 27/A to 27/C of the Mining Law

In the third and last place, as regards Paragraphs 27/A to 27/C of the Mining Law, I note that the Commission merely asserts that they contain ‘measures similar’ to those contained in the two decrees at issue.

In that regard, it must be stated that those paragraphs provide only for a general framework to be specified by means of various decrees which, where appropriate, will be adopted by the President of the Mining Supervisory Authority. It is clear from the parties’ written submissions that those paragraphs have never been implemented.

It is true that the regime provided for by those paragraphs is broadly similar to that provided for by the two decrees at issue. However, since no reference prices are set in Paragraph 27/C of the Mining Law, it is not established, contrary to Decree No 404/2021, that those prices are below market prices. Similarly, Paragraph 27/C, unlike the latter decree, does not fix in the context of a given tax year the relevant turnover for identifying which undertakings are liable to pay the additional mining fee, but refers to the ‘second tax year preceding the situation justifying a market surveillance measure’, with the result that those undertakings may change over time.

Thus, it seems to me that the effects of the restriction on the freedom of establishment found in relation to Decree No 404/2021 could, where appropriate, be indirectly reflected in Paragraphs 27/A to 27/C of the Mining Law should it transpire that, in the future, those provisions are implemented in such a way as to reproduce the questionable aspects of that decree. By contrast, no failure to fulfil obligations can be established currently in relation to those paragraphs.

It is true that, as the Commission notes, the Court has held that even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with EU law, legal certainty nevertheless requires that that provision be amended. (22) However, that case-law requires that it be established that that provision is contrary to EU law, which is not the case in respect of Paragraphs 27/A to 27/C.

In the light of the foregoing, I propose that the Court should find that the existence of a restriction on the freedom of establishment has been demonstrated by the Commission only in relation to the obligation to pay the additional mining fee under Decree No 404/2021. In so doing, it is necessary to examine whether that restriction may nevertheless be justified.

2.The question whether the restriction on the freedom of establishment is justified

(a)Arguments of the parties

In its application, the Commission states that, in its reply to the reasoned opinion, Hungary relied on a number of overriding reasons in the public interest. As regards Decree No 404/2021, which is the subject of this analysis, Hungary put forward the following reasons: relaunching the economy, protecting the national economy and its main sectors (together, ‘relaunching the economy’); security of supply; preserving and securing the housing construction programme; the need to combat market failures and preserve fair trading; the suppression of unfair pricing practices; and the protection of recipients of services. (23)

In the first place, as regards relaunching the economy, the Commission submits that, in accordance with the case-law of the Court, such economic objectives cannot constitute overriding reasons in the public interest capable of justifying a restriction on freedom of establishment, including in an exceptional situation, such as support for relaunching the economy following the COVID-19 pandemic.

In the second place, as regards the three objectives consisting of preserving and securing the housing construction programme; the need to combat market failures and the suppression of unfair pricing practices, according to the Commission, those objectives contain vague concepts which are difficult to distinguish from the abovementioned economic objectives. In relation to those objectives, Hungary merely referred in general terms to the unfavourable market developments resulting from the COVID-19 pandemic and the existence of a shortage of basic construction materials on the Hungarian market. (24)

In the third and last place, the Commission acknowledges that, both security of supply, on the one hand, and the protection of consumers and recipients of services, on the other, are overriding reasons in the public interest recognised by EU law. It is therefore in the light of those two objectives that it proposes to verify whether the additional mining fee provided for by Decree No 404/2021 is appropriate for attaining those objectives and whether it may be regarded as proportionate.

First, as regards security of supply, the Commission notes that while the Court has 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, it also took the view that it cannot be held that the objective of ensuring the 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 a ‘fundamental interest of society’. (25)

First of all, Hungary has not demonstrated the existence of a genuine and sufficiently serious threat to the supply of the products at issue in the present case. Even if the level of extraction in that Member State were insufficient, there is nothing to prevent those products from being imported in order to compensate for any production losses in Hungary. (26) Nor would the Hungarian Government have restricted the export of those products.

Next, the legislation at issue is manifestly inappropriate to ensure security of supply, since requiring producers to sell their products at prices below market prices (and therefore even at a loss) harms the long-term financial stability of the undertakings concerned and encourages them to cease their activities on the Hungarian market. Even if it were accepted that the establishment of an official price improves security of supply, the fact remains that 75% of production is not subject to that requirement, which constitutes further evidence that that legislation is not appropriate for attaining the stated objective.

In addition, in its reply to the reasoned opinion, Hungary stated, first, that that legislation led to a stabilisation of the price level of raw materials and basic construction materials, or even a fall of approximately 10% in those prices until the autumn of 2021. However, not only did the Hungarian authorities not substantiate that claim but, according to the data available to the Hungarian Central Statistical Office, the price indices for the products concerned show a fairly constant increase until 2023. Moreover, according to the Commission, the effect of Decree No 404/2021 on the price level of basic construction materials is impossible to establish because that decree covers only 25% of the market for the products concerned. Secondly, Hungary maintained that the extraction of those materials fell considerably in the first half of 2020 and that, in the second half of 2021, the increase in production resumed, which is an effect of that legislation. However, according to the Commission, in the light of the data provided by the Central Statistical Office, it has not been established that the adoption of the Hungarian legislation in question has led to an increase either in production in the construction sector or in the extraction of those materials.

Lastly, as regards proportionality, Hungary has not explained why security of supply could not be ensured by measures less restrictive to the freedom of establishment, for example by monitoring the market situation or by building up reserves at State level or at the level of individual undertakings.

Secondly, as regards the protection of the recipients of services, in its application the Commission states that Hungary has submitted that the market power of the undertakings concerned by the additional mining fee was a relevant factor in order to assess the appropriateness and proportionality of the measures at issue and that the conditions for the applicability of that fee, such as the net turnover threshold, are aimed at undertakings with sufficient market power to cap production and maintain artificially high sales prices.

In that regard, the Commission observes, first of all, that, if the real objective of the additional mining fee was to combat windfall profits, it is difficult to understand why it is limited to a very small number of undertakings active in the sector.

83.Next, Hungary has in no way demonstrated that ‘large undertakings’ have market power such that they are capable of distorting market conditions. The market distorting effects described by that Member State, such as unfair pricing practices, are comparable to an abuse of a dominant position within the meaning of Article 102 TFEU and should, where appropriate, be addressed by applying competition law. The turnover of an undertaking does not constitute sufficient proof of the existence of a dominant position or of high profits. In that regard, there are proceedings pending before the Hungarian Competition Authority against undertakings in the sector concerned. Since that authority can take measures against undertakings which charge excessively high prices to the detriment of consumers, the necessity, appropriateness and proportionality of the legislation at issue in the present case are, in the Commission’s view, clearly questionable.

84.Lastly, the Commission points out that Decree No 404/2021 does not apply only to the few undertakings required to pay that fee, since Article 1(3) thereof requires all economic operators to achieve a ‘reasonable profit margin’. Under Article 1(4) of that decree, if a seller which is not liable to pay that fee applies a pricing policy aimed at obtaining an unreasonable profit, the National Tax and Customs Administration may initiate administrative tax proceedings. The latter provision thus lays down, in order to attain the objective of preventing unreasonable profits, a measure less onerous than the imposition of that fee. The Hungarian authorities have not explained how it would not be sufficient to apply that measure to all market participants. Taxation of profits would appear to be a less restrictive measure than the obligation to comply with a price level well below market prices and production costs.

85.For its part, Hungary, while disputing that a restriction on the freedom of establishment results from Decree No 404/2021, adds that, even if such a restriction exists, it is justified by legitimate objectives in the public interest. More specifically, in its defence, it disputes the Commission’s assessment that the reasons relied on serve a purely economic objective and therefore do not constitute an overriding reason in the public interest. On the contrary, they are intended precisely to serve the interests of the public, consumers and users of services by ensuring, on the one hand, the availability of sufficient quantities of raw materials for the construction industry and, on the other, reasonable prices by means of fair and non-abusive pricing practices.

86.The negative economic effects between 2020 and 2021 caused by the COVID-19 pandemic were exacerbated by the commercial policies of certain market participants. The price of mining products has increased by an average of 20% over the last five years. Over the same period, the largest operators in the sandy gravel extraction sector not only increased their turnover significantly, but also their profit after tax. They therefore made additional profits by taking advantage of the extreme increase in demand from other players in the construction chain.

87.In that context, as regards Decree No 404/2021, Hungary submits that the choice of the criterion of turnover means that those liable to pay the additional mining fee are undertakings which have sufficient market power to maintain the price of products sold at an artificially high level. That legislation pursues inter alia two objectives relating, in particular, to the security of supply and the protection of the recipients of services.

88.First, as regards security of supply, Hungary submits that security of supply in the construction sector may constitute a fundamental interest of society. (27) It is not necessary to adduce evidence of the existence of a shortage of the products concerned on the Hungarian market, as requested by the Commission, since the likelihood of a threat to security of supply could also be regarded as a legitimate objective, where there are indicators that security of supply in the construction industry may be compromised. Member States should be able to introduce appropriate and proportionate preventive measures.

89.As regards the Commission’s arguments that Decree No 404/2021 is manifestly inappropriate for ensuring security of supply, Hungary points out that, under Article 1(3) of that decree, even undertakings which are not subject to the additional mining fee (responsible for 75% of production) are required to take into account the price level set in that decree and aim for a ‘reasonable profit margin’.

90.Secondly, as regards the protection of the recipients of services, Hungary points out that, as regards market prices, the regulatory instrument is, for large undertakings, the obligation to pay the additional mining fee and, for small undertakings, the obligation to have a reasonable profit margin. All operators are therefore subject to the obligation to have fair pricing practices, however, the rules are differentiated according to the market power of those undertakings. That fee is justified by the fiscal autonomy of the Member States, which is also recognised by the Court. (28) Moreover, proportionality would be undermined precisely if the obligation to pay the additional mining fee were applicable to all operators and not only to those whose economic power enables them to bear the burden of the obligation. Lastly, Hungary replies that competition proceedings would make it possible to deal with infringements of competition law which have already taken place, but would be of limited use in preventing them. Furthermore, even if competition law could provide a solution with regard to unfair pricing practices, it would not however be able to guarantee the availability of sufficient quantities of basic construction materials.

2.Assessment

91.As a preliminary point, I note that, as is apparent from the settled case-law of the Court, a restriction on a fundamental freedom guaranteed by the FEU Treaty may be permitted only if the national measure in question meets an overriding reason relating to the public interest, is appropriate to ensure that the objective it pursues is achieved and does not go beyond what is necessary to achieve it. (29) National rules which are not applicable to services without discrimination as regards their origin and which are therefore discriminatory, can be justified only by derogations or on grounds relating to the public interest provided for by the Treaty. (30) In that connection, national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. (31) It is for the Member State concerned to demonstrate that this condition has been fulfilled. (32) The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the suitability and proportionality of the measure adopted by that Member State and by specific evidence substantiating its arguments. (33)

92.In the present case, as regards the existence of an overriding reason in the public interest capable of justifying the restriction on the freedom of establishment entailed by Decree No 404/2021, I find, in the first place, that it is apparent from Hungary’s written pleadings that the main purpose of that legislation was to protect or relaunch the economy, that objective also being found in the very title of that decree, namely ‘on the additional mining fee to be paid with a view to relaunching the economy’. More specifically, that decree was adopted for reasons relating to the security of supply and consumer protection, by guaranteeing the availability of basic construction materials in sufficient quantities and at fair prices. Those reasons are ultimately based on the alleged combined effects of the unfavourable market developments resulting from the COVID-19 pandemic and a shortage of those materials which, at least in part, was either caused or exploited by the largest companies in that sector, which thus obtained extraordinary profits.

93.In that regard, Article 52(1) TFEU provides that a restriction on the freedom of establishment may be justified on grounds of public policy, public security or public health. Nevertheless, it is settled case-law that purely economic grounds, such as promotion of the national economy or its proper functioning, cannot serve as justification for an obstacle to one of the fundamental freedoms enshrined in the Treaties. (34) It follows that, in the present case, the various relatively abstract objectives on which Hungary relies, as set out in point 71 of this Opinion, are purely economic in nature and cannot constitute reasons capable of justifying the restriction on the freedom of establishment at issue.

94.In the second place, I would point out that the Court has acknowledged that reasons of an economic nature in the pursuit of an objective in the public interest or the guarantee of a service of general interest may constitute an overriding reason in the public interest capable of justifying an obstacle to one of the fundamental freedoms. However, while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, those grounds must, as derogations from a fundamental freedom, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the EU institutions. Thus, 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. Moreover, those derogations must not be misapplied so as, in fact, to serve purely economic ends. (35)

95.It is in the light of those criteria that the objectives pursued by Decree No 404/2021, namely security of supply, on the one hand, and the protection of the recipients of services, on the other, should be examined.

96.Thus, first, with specific regard to security of supply, the Court has 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. (36) In the case of undertakings carrying out activities and supplying public services in the petroleum, telecommunications and energy sectors, the Court has held that the objective of guaranteeing the security of supply of such products or the supply of such services in the event of a crisis, on the territory of the Member State concerned, may constitute a public security reason and, therefore, possibly justify an obstacle to a fundamental freedom. However, according to the Court, that cannot be the case where a measure ‘seeks to ensure the 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”’. (37) It must be stated that the lessons to be drawn from the judgment in Xella Magyarország, which specifically concerned the Hungarian construction sector, can easily be applied to the present case.

97.Moreover, since the existence of such a shortage of basic construction materials forms the basis of the justification for all the measures challenged by the Commission, Hungary cannot, as it does, essentially refuse to provide evidence of such a shortage. A restriction on the freedom of establishment is permissible only if it is justified by an overriding reason in the public interest and observes the principle of proportionality, which means that it 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 it. It is for the Member State concerned to demonstrate that those cumulative conditions are met. (38) As regards, specifically, the first of those conditions, that Member State must prove, in a concrete manner and by reference to the circumstances of the case, that the provisions at issue are justified. (39) Hungary’s claims in that regard, which are disputed by the Commission on the basis of the data from the Hungarian Central Statistical Office or the Mining Supervisory Authority, do not appear to me to substantiate the existence of such a shortage. In so far as Hungary submits that, faced with the mere likelihood of a threat to security of supply, Member States should be able to adopt preventive measures, I would point out that it follows from the case-law of the Court that the grounds of public policy and public security cannot be relied upon unless there is a genuine, present and sufficiently serious threat to a fundamental interest of society. (40)

98.In any event, even if there were such a shortage of basic construction materials, like the Commission, I do not consider that the additional mining fee is suitable for securing, in a consistent and systematic manner, the attainment of the objectives relating to security of supply and consumer protection, since it covers only 25% of the market for such materials, the remaining 75% being able to be sold at prices higher than those set by Decree No 404/2021. The obligation to aim for a reasonable profit margin imposed by Article 1(3) and (4) of that decree on the undertakings selling 75% of those materials seems to me to be too imprecise to call that conclusion into question.

99.Moreover, as the Commission observes, the obligation to pay the additional mining fee could encourage the undertakings concerned to pass on that additional expense to consumers, which would ultimately have the effect of increasing the prices paid by them.

100.Furthermore, even if that fee could provide a solution to the allegedly abusive prices, it does not make it possible to guarantee the availability of those materials in sufficient quantities.

101.Lastly, like the Commission, I consider that Hungary has not provided specific arguments as to how maintaining a certain minimum level of extraction of basic construction materials would serve to ensure the attainment of the objective relating to the protection of the environment.

102.Accordingly, the reasons put forward by Hungary do not appear to be capable of justifying the restriction on the freedom of establishment found in point 70 of this Opinion.

103.In the light of the foregoing, I propose that the Court should uphold the first complaint in part by declaring that, by adopting, by Decree No 404/2021, provisions on the payment of an additional mining fee, Hungary has failed to fulfil its obligations under Article 49 TFEU.

B. The second complaint, alleging infringement of Article 5(1) of Directive 2015/1535

104.By its second complaint, the Commission requests that the Court declare that Hungary has failed to fulfil its obligations under Article 5(1) of Directive 2015/1535 by failing to notify it, at the draft stage, of Decree No 404/2021 and Paragraphs 27/A to 27/C of the Mining Law.

1.Arguments of the parties

105.The Commission submits in its application that both Decree No 404/2021 and Paragraphs 27/A to 27/C of the Mining Law fall within the scope of Directive 2015/1535 and that, consequently, they should have been notified to it at the draft stage under Article 5(1) of that directive. Specifically, that institution considers that the abovementioned national rules constitute ‘technical regulations’, as defined in Article 1(1)(f) of that directive and, in particular, that they correspond to the concept of ‘other requirements’ within the meaning of Article 1(1)(d) of that directive. It considers that the decree and the abovementioned legislative provisions are in a legally binding form and affect the marketing of raw materials and basic construction materials, first, by establishing official prices for those products and, secondly, by requiring undertakings marketing those products to pay the additional mining fee when they sell them at a price higher than the official price. That fee therefore has a significant effect on those products and on their marketing.

106.In support of its interpretation, the Commission refers to its guide to Directive 2015/1535 (‘the guide’), (41) according to which the concept of ‘other requirements’ covers conditions ‘that have an effect on the life cycle of a product, from the period of marketing to the phase of management or disposal of the waste generated by it’, and those conditions must be capable of significantly influencing the composition, nature or marketing of the product.

107.Moreover, the objectives of general interest on which Hungary relies cannot affect the application of Directive 2015/1535 which is specifically intended to enable the Commission and the Member States to react in good time, before the adoption of a national rule, to a draft technical rule liable to disturb the functioning of the internal market.

108.Hungary reiterates, first of all, the position which it expressed in its reply to the reasoned opinion, according to which the provisions of Decree No 404/2021 do not fall within the concept of ‘other requirements’ within the meaning of Directive 2015/1535 since, first, they do not affect the life cycle of the product after it has been placed on the market and, secondly, they do not contain requirements in respect of that product relating to its use phase. The obligation to pay an additional mining fee constitutes a requirement of a fiscal nature which does not fall within the concept of a ‘technical regulation’ within the meaning of point (iii) of the second subparagraph of Article 1(1)(f) and the final subparagraph of Article 5(1) of that directive. It points out in that regard that, according to the settled case-law of the Court, and in particular the judgment in Admiral Sportwetten, tax legislation, which is not accompanied by any technical specification or any other requirement, cannot be described as a ‘de facto technical regulation’. (42)

109.Next, as regards Paragraphs 27/A to 27/C of the Mining Law, Hungary considers that they form a mere regulatory framework for measures which could be adopted only in the event of the occurrence of a situation likely to justify a market surveillance measure. Those paragraphs cannot be applied in isolation, since their implementation requires the adoption of other implementing acts. As those paragraphs have no specific technical content, no notification obligation can be imposed on that Member State.

110.Lastly, Hungary disputes the Commission’s conclusion as to the establishment of official prices by the national legislation at issue, as set out in its application. It points out in that regard that the sales prices established in Article 1 of Decree No 404/2021 are not official prices. On the contrary, this is a reference point for determining the obligation to pay the fee.

111.In its reply, the Commission qualifies that part of its argument relating to the establishment of official prices by stating that, although Decree No 404/2021 does not require the undertakings concerned to sell their products at the prices established therein, the difference which they are required to pay by way of the additional mining fee, in the event that those prices are exceeded, is of such importance that it has a decisive influence on the establishment of sales prices, with the result that the prices established in the decree correspond, de facto, to official prices.

112.As regards the judgment in Admiral Sportwetten, to which Hungary refers in its defence in support of its argument concerning the fiscal nature of the provisions at issue, the Commission expresses doubts as to its applicability in the present case, since it was delivered in a case concerning a tax whereas the additional mining fee cannot be regarded as such.

113.Moreover, as regards Paragraphs 27/A to 27/C of the Mining Law, the fact that those provisions are applicable only where certain conditions are met or on the basis of an official decision does not preclude them from constituting ‘other requirements’ within the meaning of Directive 2015/1535.

By its second complaint, the Commission submits that Decree No 404/2021 and Paragraphs 27/A to 27/C of the Mining Law should have been notified to it in accordance with Article 5(1) of Directive 2015/1535.

It is therefore necessary to examine the substance of the arguments put forward by that institution in order determine whether that decree and those legislative provisions do in fact fall within the concept of ‘other requirements’ within the meaning of that directive. To that end, in view of the divergence in their content, I consider that those rules should be analysed separately.

(a)The obligation to notify Decree No 404/2021

In the first place, as regards Decree No 404/2021, the Commission states that that decree falls within the concept of ‘other requirements’ within the meaning of Directive 2015/1535 and that it is therefore subject to the notification obligation laid down therein.

As a preliminary point, I would point out that the first subparagraph of Article 5(1) of that directive imposes, in essence, an obligation on the Member States to communicate immediately any draft technical regulation. Moreover, under Article 1(1)(f) of that directive, a technical regulation is, inter alia, ‘technical specifications and other requirements or rules on services, … the observance of which is compulsory, de jure or de facto, in the case of marketing … in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product’. In other words, it is apparent from the wording of that article that it draws a distinction between four categories of measures which may be regarded as ‘technical regulations’, within the meaning of that directive, which include ‘other requirements’. (43)

That concept of ‘other requirements’ is defined in Article 1(1)(d) of Directive 2015/1535 as ‘a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing’.

That article thus lays down a series of five cumulative conditions, namely that the requirement be imposed (first condition) on a product (second condition), in particular for the purpose of protecting consumers or the environment (third condition), affecting conditions relating to that product’s life cycle after it has been placed on the market (fourth condition), where such conditions can significantly influence the marketing of that product (fifth condition).

It is therefore necessary to ascertain whether those conditions are satisfied in the present case.

In that regard, first, as regards the first condition, I consider that it is satisfied, since it is apparent from the procedural documents lodged with the Court that Decree No 404/2021 undeniably takes a legally binding form. Article 1 of that decree, first, establishes a reference price for the sale of the basic construction materials listed in paragraph 2 thereof and, secondly, requires the undertakings referred to in paragraph 1 thereof to pay an additional mining fee in the event that they apply a sales price for their products which exceeds the price established in paragraph 2.

Secondly, as regards the second condition, which expressly requires that the requirement concerned be ‘imposed on a product’, I note that in order for a national measure to be classified as ‘other requirements’, it must lay down a condition capable of significantly influencing the marketing of the product concerned. A condition which is imposed not on the product concerned but on potential buyers or economic operators selling that product cannot fall within that concept. (44)

Consequently, in the present case, if a strict reading of Article 1(1)(d) of Directive 2015/1535 were to be favoured, Decree No 404/2021 could not be classified as an ‘other requirement’ since it establishes reference prices for the sale of basic construction materials, without, however, imposing their application. The additional mining fee which is imposed in the event that those prices are exceeded is an obligation imposed on the undertakings covered by that decree and is not imposed directly on the product concerned.

Nevertheless, I consider that, in that specific case, it is necessary to adopt a broader interpretation of that requirement so as also to take account of the impact of national legislation on the products concerned. As the Commission submits, I consider that the reference prices established in Article 1(2) of that decree for the sale of basic construction materials are de facto binding as such, even if they do not technically constitute official prices. The additional mining fee which the undertakings referred to in paragraph 1 of that article would be obliged to pay if they decided to sell their products at prices higher than those fixed by that decree constitutes a de facto form of penalty. Since that fee corresponds to the obligation to pay a percentage amounting to 90% of the difference between the actual turnover of those undertakings and the turnover established on the basis of the amount sold and the reference price, those undertakings have very little interest in applying their own prices. On the contrary, they are encouraged to apply the reference prices in order to avoid being ‘penalised’, such that, de facto, those reference prices are equivalent to official prices. It follows that, while it is not apparent from the wording of Decree No 404/2021 that those prices are official, given that they are, de facto, imposed for the sale of the abovementioned products, they must be regarded as ‘conditions imposed’ on basic construction materials, in accordance with Directive 2015/1535.

Moreover, the proposed interpretation is supported by the objectives pursued by that directive. As the Court has noted, it is settled case-law that that directive is designed to protect, by means of preventive monitoring, the free movement of goods, which is one of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of Directive 2015/1535 may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest. (45) A restrictive interpretation of the condition that the requirement be ‘imposed on a product’ which would have the effect of excluding Decree No 404/2021 from the scope of that directive would be excessively formalistic. At the same time, such an approach would entail a risk of circumventing Directive 2015/1535, since it would be sufficient for the requirements imposed on the products not to be technically imposed, that is to say not to be expressly stated in the wording of the law, for them to be able to fall outside its scope. Clearly, such a formality would deprive that directive of its effectiveness.

Thirdly, as regards the third condition relating to the purpose of protecting, in particular, consumers or the environment for which a ‘requirement’ is imposed, it must be stated that, although the Commission does not raise that issue in its application, and Hungary relies, as potential justifications for the restriction on the freedom of establishment alleged against it, on the protection of the recipients of services. Irrespective of the assessment made in the context of that first complaint, what matters is that that Member State adopted Decree No 404/2021 for the abovementioned purposes of protection, with the result that the third requirement laid down in that article can be regarded as having been satisfied in the present case. Such an interpretation is confirmed by the objectives pursued by Directive 2015/1535, which militate in favour of a broad interpretation of the directive for the reasons already set out in point 122 of this Opinion.

Fourthly, as regards the fourth condition, it is apparent from the wording of Article 1(1)(d) of Directive 2015/1535 that ‘other requirements’ must affect the life cycle of the product concerned after it has been placed on the market. By way of example, inter alia the conditions of use, recycling, reuse or disposal of that product are cited.

On that point, I note that Hungary takes the view that the provisions at issue do not affect the life cycle of the product after it has been placed on the market, and nor do they contain any requirement relating to the use phase of the product. The Commission does not address this issue. It makes no mention of it in its application, in its letter of formal notice or in its reasoned opinion.

In that regard, I would point out that it is clear from the settled case-law of the Court that, in proceedings for failure to fulfil obligations under Article 258 TFEU, it is for the Commission to prove the alleged failure. It is the Commission that must provide the Court with the evidence necessary for the Court to determine whether there has indeed been a failure to fulfil obligations, and in doing so it may not rely on any presumption. (46) In particular, the Commission’s action must therefore contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under EU law. (47)

In the present case, as regards the condition relating to the life cycle of the product after it has been placed on the market, prima facie, the answer to the question whether the provisions at issue satisfy that condition is not immediately obvious. It is true that those provisions relating to the pricing of the products concerned do not correspond to the categories of examples expressly referred to in Article 1(1)(d) of Directive 2015/1535, including the recycling, reuse or disposal and use of those products, which, according to the guide, constitute the most important specific cases. As regards the last example, namely the condition of use of the product concerned, it is not readily apparent whether a condition relating to pricing is comparable or at least linked to the concept of ‘use’ of a product. Nor is it obvious whether such a pricing provision affects the life cycle of a product which, according to that guide, is the period of marketing to the phase of management or disposal of the waste generated by it. I would also like to point out that I believe that the price of a product should be set at the time it is placed on the market rather than afterwards, although this does not rule out the possibility that that price may have an impact on marketing after the product has been placed on the market. It follows that the wording of Directive 2015/1535 does not expressly refer to pricing measures such as the measures at issue, or to measures comparable to those measures. I also note that the guide does not provide any examples which are similar to those measures, (48) with the result that it is not clear how the concept of ‘other requirements’ is to be interpreted by the Court.

First, it is for the Commission to explain why the contested provisions affect the life cycle of the products concerned after they have been placed on the market and, secondly, it is for the Court to rule on whether there has been a failure to fulfil obligations on the basis of the matters of fact and of law provided to it by the Commission. The Court cannot, therefore, substitute its own assessment for that of that institution, or fill the gaps in the latter’s arguments. Accordingly, for my part, I consider that the application does not satisfy the requirements arising from the case-law of the Court referred to in point 129 of this Opinion.

Fifthly, should the Court hold that the Commission has established to the requisite legal standard that the fourth condition is nevertheless satisfied, I note, in the alternative, that it is apparent from the wording of Article 1(1)(d) of Directive 2015/1535 that the ‘other requirements’ must impose conditions which ‘significantly influence the … marketing’ of the product in question. In that regard, I am inclined to take the view that, in the present case, those conditions imposed by Decree No 404/2021 have an impact on the marketing of basic construction materials, which impact is, moreover, sufficiently direct and significant. (49) There is no doubt that the price of a product and its marketing are concepts which are intrinsically linked. More specifically, the provisions adopted by Hungary, namely the establishment of reference prices and the imposition of the additional mining fee in the event of non-compliance with those prices, considerably restrict the ability of the undertakings covered by that decree to adjust their costs and profit margins in order to remain profitable. Moreover, the way in which a product is priced has a direct effect on market dynamics by influencing, inter alia, the behaviour of potential buyers whose demand increases or, conversely, decreases depending on price fluctuations. It follows that there is a very close correlation between measures relating to product pricing, such as those at issue in the present case, and their marketing.

(b)The obligation to notify Paragraphs 27/A to 27/C of the Mining Law

The Commission submits that Paragraphs 27/A to 27/C of the Mining Law constitute ‘other requirements’ within the meaning of Directive 2015/1535 and that, therefore, those provisions should have been notified to it. In addition to the fact that that law does not set any reference prices, which tends to further weaken the Commission’s argument, the Commission once again confines itself to raising general considerations, which are relatively hasty and unsubstantiated and do not explain why it considers that those provisions fall within the concept of ‘other requirements’ within the meaning of that directive.

Accordingly, as is apparent from points 129, 130 and 132 of this Opinion, I take the view that the Commission has failed to establish to the requisite legal standard that Decree No 404/2021 and Paragraphs 27/A to 27/C of the Mining Law contain rules coming within the concept of ‘other requirements’ within the meaning of Article 1(1)(d) of Directive 2015/1535, and I propose that the second complaint should be rejected in its entirety.

In the light of all the foregoing considerations, I propose that the Court should declare that, by adopting Decree No 404/2021, Hungary has failed to fulfil its obligations under Article 49 TFEU and dismiss the action as to the remainder.

VI.Costs

Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties must bear their own costs. In the present case, the Commission and Hungary applied, respectively, for the other party to be ordered to pay the costs. According to the proposed conclusion, the Commission is partially successful in the first complaint, and Hungary is partially successful in the second complaint. Accordingly, it appears justified to order each party to bear its own costs.

VII.Conclusion

In the light of the foregoing considerations, I propose that the Court should:

–declare that, by adopting Government Decree No 404/2021 on the additional mining fee to be paid with a view to relaunching the economy, Hungary has failed to fulfil its obligations under Article 49 TFEU 21;

–dismiss the action as to the remainder;

–order the European Commission and Hungary to bear their own costs.

—

1Original language: French.

2Directive 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).

3A gazdaság újraindítása érdekében fizetendő kiegészítő bányajáradékról szóló 404/2021. (VII. 8.) Korm. rendelet.

4A bányászatról szóló 1993. évi XLVIII. törvény eltérő alkalmazásáról szóló 405/2021. (VII. 8.) Korm. rendelet.

5Az egyes energetikai és közlekedési tárgyú, valamint kapcsolódó törvények módosításáról 2021. évi CXXXVI. törvény.

6Law CXXXVI of 2021 inserted, with effect from 18 December 2021, Paragraphs 27/A to 27/C into the Mining Law, namely the provisions covered by the present action for failure to fulfil obligations.

7In its letter of formal notice, the Commission took the view that Hungary had also failed to fulfil its obligations under Article 15(2)(a) and (g) and (6) and (7) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

8Namely relaunching the economy, protecting the national economy and its main sectors, ensuring security of supply, preserving and securing the housing construction programme, combating market failures, ensuring fair trading, suppressing unfair pricing practices and protecting the recipients of services following the disruption in the market for raw materials and basic construction materials caused by the COVID-19 pandemic.

9In its reasoned opinion, however, the Commission no longer referred to the infringement of the provisions of Directive 2006/123.

10See judgment of 21 December 2016, AGET Iraklis (C‑201/15, ‘the judgment in AGET Iraklis’, EU:C:2016:972, paragraph 53).

11See judgment of 3 March 2020, Vodafone Magyarország (C‑75/18, ‘the judgment in Vodafone Magyarország’, EU:C:2020:139, paragraph 50).

12See judgments in Vodafone Magyarország (paragraph 52) and of 3 March 2020, Tesco-Global Áruházak (C‑323/18, ‘the judgment in Tesco-Global Áruházak’, EU:C:2020:140, paragraph 72). In those cases, the Court held that the fact that the greater part of a special tax is borne by taxable persons owned by natural persons or legal persons of other Member States cannot be such as to merit, by itself, categorisation as discrimination. That situation is due to the fact that the market in question is dominated by such taxable persons, who achieve the highest turnover in that market. Accordingly, that situation is an indicator that is fortuitous, if not a matter of chance, and which may arise whenever the market concerned is dominated by undertakings of other Member States or of non-Member States or by national undertakings owned by natural persons or legal persons of other Member States or of non-Member States.

13Council Directive of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (OJ 2022 L 328, p. 1).

14See judgment of 13 July 2023, Xella Magyarország (C‑106/22, ‘the judgment in Xella Magyarország’, EU:C:2023:568, paragraph 58 and the case-law cited).

15See, to that effect, judgments of 5 February 2014, Hervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2014:47, paragraph 30 and the case-law cited); of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 38 and the case-law cited); of 22 November 2018, Vorarlberger Landes- und Hypothekenbank (C‑625/17, EU:C:2018:939, paragraphs 39 and 42 and the case-law cited); in Vodafone Magyarország (paragraphs 42 and 43 and the case-law cited); of 2 February 2023, Freikirche der Siebenten-Tags-Adventisten in Deutschland (C‑372/21, EU:C:2023:59, paragraph 29 and the case-law cited); and also Xella Magyarország (paragraphs 62 and 63).

16See, in that regard, points 25, 27 and 28 of this Opinion.

17See judgment of 21 December 2023, Commission v Denmark (Maximum parking time) (C‑167/22, EU:C:2023:1020, paragraph 47 and the case-law cited).

18Moreover, I note that the obligation to adduce such evidence does not appear to be insurmountable, since only four undertakings are concerned by the payment of the additional mining fee provided for by Decree No 404/2021. Accordingly, it does not seem to me impossible to establish, specifically and precisely, that those four companies, or at least some of them, have had a minimum extraction obligation imposed on them in accordance with Decree No 405/2021. Not only has the Commission failed to adduce such evidence, but Hungary states in its rejoinder, on the basis of information provided by the authority responsible for decisions on mining supervision, that no such decision has been adopted. It is true that that Member State also acknowledges that, if a mining operator paying that fee were to apply to establish a new mining site, the minimum extraction volume requirement would be applied to it in relation to that new site. However, that possible applicability remains, in the light of the file submitted to the Court, purely hypothetical and, in any event, much more limited than the cumulative and generalised application of the two decrees at issue alleged by the Commission in its action.

19See judgments in Vodafone Magyarország (paragraph 46) and Tesco-Global Áruházak (paragraph 66).

20See judgment of 21 December 2023, Cofidis (C‑340/22, EU:C:2023:1019, paragraph 42 and the case-law cited).

21See, to that effect, judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 36).

22See judgment of 26 June 2019, Commission v Greece (C‑729/17, EU:C:2019:534, paragraph 102 and the case-law cited).

23With regard to the amendment of the Mining Law, Hungary also referred to the protection of the environment during mining activities, since such protection can be ensured by means of continuous extraction.

24In that regard, the Commission also draws attention to a press interview with the Hungarian Minister for the National Economy, during which he explained that the Hungarian Government’s objective was, in essence, to endeavour to strengthen Hungarian ownership in strategic sectors, which is said to be evidence that that government was in fact pursuing economic objectives and sought to treat foreign undertakings less favourably.

25See judgment in Xella Magyarország (paragraphs 67 to 69).

26By way of example, imports of cement rose from 40% to 60% between 2021 and 2023, whereas imports of sand and gravel did not change significantly.

27In that regard, Hungary refers to the Opinion of Advocate General Ćapeta in Xella Magyarország (C‑106/22, EU:C:2023:267, point 82).

28See judgment of 19 December 2019, Brussels Securities (C‑389/18, EU:C:2019:1132, paragraph 48 and the case-law cited).

29See judgment in Xella Magyarország (paragraph 60 and the case-law cited).

30See, to that effect, judgments of 25 July 1991, Collectieve Antennevoorziening Gouda (C‑288/89, EU:C:1991:323, paragraph 11 and the case-law cited); of 14 November 1995, Svensson and Gustavsson (C‑484/93, EU:C:1995:379, paragraph 15); and also of 29 April 1999, Ciola (C‑224/97, EU:C:1999:212, paragraph 16 and the case-law cited).

31See judgments of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 64 and the case-law cited), and of 22 June 2016, Mennens (C‑255/15, EU:C:2016:472, paragraph 44).

32See, for example, judgments of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 85 and the case-law cited); of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraph 72 and the case-law cited); and of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, ‘the judgment in Transparency of associations’, paragraph 77 and the case-law cited).

33See, to that effect, judgment of 23 December 2015, Scotch Whisky Association and Others (C‑333/14, EU:C:2015:845, paragraph 54 and the case-law cited).

34See judgment in Xella Magyarország (paragraphs 23 and 64 and the case-law cited), in which Hungary also referred to the negative repercussions of the COVID-19 pandemic on the national economy.

35See judgment in Xella Magyarország (paragraphs 63 to 66 and the case-law cited). See, also, judgment of 26 September 2018, Van Gennip and Others (C‑137/17, EU:C:2018:771, paragraph 56 and the case-law cited).

36See judgment in Xella Magyarország (paragraphs 67 and 68).

37See judgment in Xella Magyarország (paragraph 69 and the case-law cited).

38See judgment of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraphs 178 and 179 and the case-law cited).

39See, to that effect, the judgment in Transparency of associations, paragraph 77 and the case-law cited).

40See, to that effect, the judgment in Transparency of associations, paragraph 91 and the case-law cited).

41The guide to the procedure for the provision of information in the field of technical regulations and of rules on Information Society services (p. 15) is available on the Commission’s website at the following address: https://technical-regulation-information-system.ec.europa.eu/en/the-20151535-and-you/being-informed/guidances/vademecum.

42See judgment of 8 October 2020, Admiral Sportwetten and Others, (C‑711/19, ‘the judgment in Admiral Sportwetten’, EU:C:2020:812, paragraph 38).

43The other categories of technical regulations are as follows: (i) a ‘technical specification’, (ii) ‘rules on services’ and (iii) ‘the laws, regulations and administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product’. See judgments of 28 May 2020, ECO-WIND Construction (C‑727/17, EU:C:2020:393, paragraph 32), and of 13 March 2025, Unigames (C‑120/24, EU:C:2025:174, paragraph 31).

44See, in that regard, judgments of 26 September 2018, Van Gennip and Others (C‑137/17, EU:C:2018:771, paragraphs 39 to 41 and the case-law cited), and of 24 November 2022, Belplant (C‑658/21, EU:C:2022:925, paragraphs 37 to 39 and the case-law cited).

45Moreover, it is apparent from recitals 3 and 9 of that directive that it seeks, inter alia, to ensure as much transparency as possible as regards national initiatives for the establishment of technical regulations. In that regard, recital 7 of that directive adds that its aim is to allow economic operators to make more of the advantages inherent in the internal market by ensuring increased provision of information through regular publication of the technical regulations proposed by Member States and enabling those operators to give their assessment of the impact of those regulations. See, to that effect, judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 82); of 9 March 2023, Vapo Atlantic (C‑604/21, EU:C:2023:175, paragraph 41); and of 21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraph 43 and the case-law cited). See also recital 4 of Directive 2015/1535.

46See judgments of 6 October 2021, Commission v Italy (Collecting and treatment systems for urban waste water) (C‑668/19, EU:C:2021:815, paragraph 27 and the case-law cited), and of 29 July 2024, Commission v Portugal (Civil engineers) (C‑768/22, EU:C:2024:643, paragraph 79 and the case-law cited).

47See judgment of 19 November 2024, Commission v Poland (Ability to stand for election and membership of a political party) (C‑814/21, EU:C:2024:963, paragraphs 61 and 62).

48See the guide, p. 15.

49See judgment of 19 July 2012, Fortuna and Others (C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 35).