Provisional text

delivered on 3 April 2025 (1)

Case C‑92/23

European Commission

Hungary

( Failure to fulfil obligations – Electronic communications – Radioelectric spectrum – Directives 2002/20/EC, 2002/21/EC, 2002/77/EC and (EU) 2018/1972 – Individual rights of use – National legislation and administrative decisions depriving a commercial radio station of the possibility of broadcasting media services on a radio frequency – Principles of proportionality, transparency, non-discrimination and good administration – Charter of Fundamental Rights of the European Union – Article 11(2) – Freedom and pluralism of the media )

I.Introduction

By its action for failure to fulfil obligations, the European Commission asks the Court of Justice to declare that Hungary has failed to fulfil its obligations under a number of provisions of EU law relating to the regulatory framework for electronic communications networks and services (‘the EU regulatory framework for electronic communications’), the principles of proportionality, non-discrimination, sincere cooperation and good administration, and Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

In essence, the Commission claims that the Médiatanács (Media Council, Hungary), in application of the national legislation on the media and in breach of the EU regulatory framework for electronic communications, prevented the Hungarian radio station ‘Klubrádio’ from providing media services using radio frequencies, by refusing to renew its right to provide those services, by excluding it from the tendering procedure for the award of that right and by prohibiting it from providing those services on a temporary basis, which, ultimately, undermined the freedom and pluralism of the media in Hungary.

The present cases raises, as a preliminary issue, the question of the applicability of EU law in a situation in which the EU regulatory framework for electronic communications (2) and the national legislation on the media (3) overlap and, more particularly, the question of the extent to which administrative decisions adopted by the national authority responsible for the media – concerning, mainly, authorisation of the activity of broadcasting and indirectly the right to use a radio frequency – are subject to the EU rules on the allocation of radio frequencies. As to the substance, this case relates essentially to the application of the principles of proportionality and non-discrimination in the context of the allocation and renewal of the right to use radio frequencies.

II.Legal framework

A.European Union law

1.The Authorisation Directive

Article 5 of the Authorisation Directive, entitled ‘Rights of use for radio frequencies and numbers’, states, in paragraphs 2 and 3:

‘2. Where it is necessary to grant individual rights of use for radio frequencies and numbers, Member States shall grant such rights, upon request, to any undertaking for the provision of networks or services under the general authorisation referred to in Article 3, subject to the provisions of Articles 6, 7 and 11(1)(c) of this Directive and any other rules ensuring the efficient use of those resources in accordance with [the Framework Directive].

Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law, the rights of use for radio frequencies and numbers shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and, in the case of radio frequencies, in accordance with the provisions of Article 9 of [the Framework Directive]. An exception to the requirement of open procedures may apply in cases where the granting of individual rights of use of radio frequencies to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as defined by Member States in conformity with Community law.

…

Article 7 of the Authorisation Directive, entitled ‘Procedure for limiting the number of rights of use to be granted for radio frequencies’, provides, in paragraphs 3 and 4:

‘3. Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non-discriminatory and proportionate. Any such selection criteria must give due weight to the achievement of the objectives of Article 8 of [the Framework Directive] and of the requirements of Article 9 of that Directive.

4. Where competitive or comparative selection procedures are to be used, Member States may extend the maximum period of six weeks referred to in Article 5(3) for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months.

…’

Article 10 of the Authorisation Directive, entitled ‘Compliance with the conditions of the general authorisation or of rights of use and with specific obligations’, provides, in paragraph 3:

‘3. The relevant authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance.

…’

2.The Framework Directive

Article 2 of the Framework Directive, entitled ‘Definitions’, states the following:

‘For the purposes of this Directive:

…

(c) “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC, [(4)] which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;

…’

Article 8 of the Framework Directive, entitled ‘Policy objectives and regulatory principles’, is worded as follows:

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.

…

National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism.

(a) ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality;

(b) ensuring that there is no distortion or restriction of competition in the electronic communications sector, including the transmission of content;

…

(d) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.

…

(a) promoting regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods;

(b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;

(c) safeguarding competition to the benefit of consumers and promoting, where appropriate, infrastructure-based competition;

…’

Article 9 of that directive, entitled ‘Management of radio frequencies for electronic communications services’, is drafted as follows, in paragraph 1:

‘Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory in accordance with Articles 8 and 8a. They shall ensure that spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria.

…’

3.The Competition Directive

Article 4 of the Competition Directive, entitled ‘Rights of use of frequencies’, states:

‘Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law:

…

B.Hungarian law

Article 22(8) of the Law on the media, in the version applicable to the facts of the present case, provides:

‘Providers of media services shall be required to provide to the Media Council each month data allowing compliance with broadcasting quotas to be monitored. …’ (5)

Article 48 of that law provides, in paragraphs 5 and 7:

‘5. The right to provide analogue linear media services using limited resources belonging to the State shall be valid for a maximum of 10 years as regards broadcasting …; upon expiry, it may be renewed once without a call for tenders, at the initiative of the provider of media services, for a maximum period of seven years, it being understood that contracts for the provision of audiovisual media services shall expire on the date prescribed in Article 38(1) of Law No LXXIV of 2007 on the rules on broadcasting and the transition to digital broadcasting …. The initiative seeking a renewal shall be notified to the Media Council 14 months before the date of expiry. In the event of non-compliance with that time limit, no renewal shall be allowed. In the context of the exercise of property rights on behalf of the State, the Media Council shall inform the media services provider that the right in question will be renewed, or that it will not be renewed, not sooner than six months and not later than four months before the expiry of the rights. The media services provider cannot demand that the right to provide media services be renewed, and the initiative seeking such renewal shall entail no obligation for the Media Council to conclude a contract.

…

7.The right cannot be renewed:

(a) if, by final decision of the Media Council, the media services provider has been held guilty of repeated or serious breaches of the contract or the provisions of the Law on the freedom of the press or the present Law, or

(b) if, at the time of the submission or the examination of the initiative, the media services provider is burdened by an overdue amount in respect of the levy relating to media services.

…’

Article 55(1) of the Law on the media states:

‘In order to participate in the tendering procedure, any undertaking:

…

(c) which during the five years preceding publication of the call for tenders has not been the subject of

(ca) any final administrative decision establishing a serious infringement resulting in non-compliance with the administrative contract, or

(cb) any cancellation of its administrative contract by the Media Council,

…’

Article 65 of that law provides, in paragraphs 1 and 11:

‘1. Upon application, the Media Council may, having regard to considerations relating to the media market and to media policy, conclude a temporary administrative contract of a maximum duration of 180 days in order to develop a possibility of providing media services:

…

(c) for which the Authority demonstrates that it is possible to provide the media services without causing interference to others and without infringing international standards.

…

11.If the right to provide linear radio media services expires after having already been renewed once by the Media Council, and if the tendering procedure relating to the possibility to provide media services has already been launched, the Media Council may, possibly even on several occasions, conclude with the media services provider that previously held that right, and at the request of that provider, a temporary administrative contract for a maximum period of 60 days. On the basis of the present paragraph, a temporary administrative contract may be concluded only until the closure of the tendering procedure or, if the order terminating the tendering procedure has been the subject of an administrative appeal, until the matter has been definitively settled. The temporary administrative contract shall come to an end on the date on which the administrative contract with the applicant selected is concluded.’

Article 187(5) of that law provides:

‘For the purposes of paragraphs 1 to 4, an infringement shall be considered to be repeated where the offender repeats, within a period of 365 days, the same unlawful conduct – relating to the same legal basis, the same legal provision and the same area – as that established by definitive administrative decision, with the exception of minor infringements’. (6)

III.The background to the dispute and the pre-litigation procedure

Klubrádió is a Hungarian commercial radio station, which, beginning in 1999, broadcast its programmes (7) on the 95.3 MHz analogue frequency in the broadcasting area of Budapest (Hungary). Following numerous administrative and judicial vicissitudes, (8) the Media Council and Klubrádió, on 13 February 2014, terminated the broadcasting contract between them for the 95.3 MHz frequency and concluded a new contract for the use of the 92.9 MHz frequency in the Budapest broadcasting area (‘the frequency at issue’) for the period from 14 February 2014 to 14 February 2021, renewable for a period of five years (‘the contract for the use of the frequency at issue’). (9)

By Decision No 830/2020 of 8 September 2020 (‘the refusal decision’), (10) the Media Council refused to renew that contract (11) on the ground that, during the period between 26 September 2016 and 31 May 2017, Klubrádió had failed on a number of occasions to comply with the obligation to provide monthly information on broadcasting quotas laid down in Article 22(8) of the Law on the media (‘the obligation to communicate data relating to broadcasting quotas’). (12)

On 4 November 2020, the Media Council published a new call for tenders for the provision of media services on the frequency at issue (‘the call for tenders at issue’), in response to which Klubrádió and two other media services providers submitted applications, which were all considered to be invalid for procedural reasons. According to Decision No 180/2021 of 10 March 2021 (‘the invalidity decision’ (13)), Klubrádió’s application was declared invalid on three grounds: first of all, the presence, in the programming schedule, of a programme recapitulating another broadcast described in that schedule, which was not mentioned in the bid; next, a discrepancy of five minutes in the indication of the duration of one programme, as indicated in two different points of the form attached to the call for tenders; and, last, the existence of negative equity in Klubrádió’s accounts during the five years preceding the filing of its application.

On 30 March 2021, the Media Council concluded temporary administrative contracts with one of the media services providers which had participated in the unsuccessful call for tenders, for the operation of the frequency in question for the period between 3 May and 29 October 2021.

The Commission, taking the view that the Hungarian authorities’ conduct and the relevant national legal framework constituted a breach of Hungary’s obligations under a number of provisions of the EU regulatory framework for electronic communications and Article 11 of the Charter, initiated infringement proceedings against Hungary and, unconvinced by the arguments put forward – at each stage of the infringement proceedings – by the Hungarian Government, (14) brought the present action for failure to fulfil obligations.

IV.The procedure before the Court and the forms of order sought

By application of 17 February 2023, the Commission, supported by the Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands, claims that the Court should:

–declare that Hungary has failed to fulfil its obligations under Articles 8 and 9 of the Framework Directive, Articles 5, 7 and 10 of the Authorisation Directive, Article 4(2) of the Competition Directive, the general principles of proportionality, non-discrimination and good administration, Article 11 of the Charter and Article 45 of the European Electronics Communications Code (‘the EECC’), (15) owing to:

–the adoption, by the Media Council, of the refusal decision and the adoption, by the national legislature, of Article 48(7) of the Law on the media, and the fact that Klubrádió was thus prevented from pursuing its activity in the radio broadcasting services sector;

–the failure to adopt, within the six-week period, a decision on the application for a renewal of the right to use the frequency previously used by Klubrádió and the failure to organise a procedure for the purpose of allocating that frequency within a period that would have permitted a decision to be adopted before the expiry of Klubrádió’s right of use;

–the fact that the Media Council, in the call for tenders and in the invalidity decision, imposed disproportionate conditions on the allocation of the rights to use the frequency in question, failed to determine in advance the conditions for the grant of those rights and failed to exercise any discretion in assessing the seriousness and relevance of errors in the applications submitted that could entail the disqualification of applicants, and disregarded how minor infringements by Klubrádió were;

–the adoption of Article 65(11) of the Law on the media;

–order Hungary to pay the costs.

Hungary contends that the Court should:

–dismiss the action as inadmissible or, in any event, as unfounded;

–order the Commission to pay the costs.

V.Analysis

The complaints raised by the Commission relate, first, to the incompatibility with the EU regulatory framework for electronic communications of the refusal decision and the underlying national legislation; second, to the incompatibility of the invalidity decision (together with the refusal decision, ‘the decisions at issue’) with that regulatory framework; third, to the incompatibility with that regulatory framework of the national legislation relating to the conclusion of a temporary contract for the use of radio frequencies; and, fourth, to the infringement of Article 11 of the Charter.

Before I analyse those complaints, it is appropriate, as a preliminary step, to address the arguments raised by the Hungarian Government concerning, first, the inapplicability of the EU regulatory framework for electronic communications (and, consequently, of the Charter) to legislation and to decisions relating to media services and, second, the inadmissibility of the action for failure to fulfil obligations in so far as it relates to individual decisions of the Media Council.

A.The applicability of EU law

1.The applicability of the EU regulatory framework for electronic communications

The Hungarian Government claims that the EU regulatory framework for electronic communications does not apply to the decisions and the call for tenders at issue (‘the measures at issue’), which relate to the provision of radio media and not to the right of use of the radio frequencies. The allocation of radio frequencies in connection with the right to provide media services is indeed governed by the rules on electronic communications, however the right to provide media services, conversely, is governed solely by the Law on the media. (16) Furthermore, in accordance with the second subparagraph of Article 5(2) of the Authorisation Directive, authorisation procedures relating to the regulation of the media constitute an exception to the application of that regulatory framework. In addition, as EU law is not applicable, the Charter is therefore not applicable either.

The Commission maintains that that regulatory framework is applicable since the purpose of the measures at issue is to determine not only the provision of media services but also the use of radio frequencies, in so far as the right to provide media services includes the right to use radio frequencies.

In that regard, it is appropriate, first of all, to clarify the scope of the EU regulatory framework for electronic communications, in order, next, to examine the scope of the measures at issue and, last, to draw the conclusions from that analysis as regards the application of that regulatory framework to those measures.

First of all, as far as is relevant in the context of the present dispute, I recall that the EU regulatory framework for electronic communications defines the detailed and harmonised rules relating to the grant of rights of use of radio frequencies and establishes, essentially, that those rights must be granted through open, objective, transparent, non-discriminatory and proportionate procedures, without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with EU law. (17) In addition, that regulatory framework draws a distinction between, on the one hand, the rules relating to services that involve the transmission of signals over electronic communications networks and, on the other, those relating to services providing, or exercising editorial control over, content transmitted using electronic communications services. (18)

Next, I note that the decisions at issue relate to procedures concerning the use of the frequency at issue and are based on national legislation (in this instance, the Law on the media) which concerns, inter alia, the provision of radio content through radio frequencies.

In that regard, the Hungarian Government emphasises the distinction between, on the one hand, the right to provide media services, which forms the subject matter of the measures at issue, adopted by the Media Council, and, on the other, the right to use the radio frequencies, which forms the subject matter of a separate administrative procedure and a separate decision, which fall within the powers of the NMHH.

It seems to me that the measures at issue do not relate exclusively to the rules on the provision of media services but, in accordance with the Law on the media, (19) also affect the grant of the rights of use of the radio spectrum. (20) In other words, it is those measures that implement the provisions of the EU regulatory framework for electronic communications referred to in point 28 of this Opinion. (21)

Last, having regard to all of the foregoing, I consider that the EU regulatory framework on electronic communications is applicable to the measures at issue.

While it is true that, as observed in point 28 of this Opinion, that regulatory framework makes a clear distinction between ‘electronic communications services’ and ‘services consisting in providing content’ (media services), I consider that that framework is nonetheless applicable to measures, such as those at issue in the main proceedings, whereby the national authority responsible for media services, in this instance the Media Council, takes account of criteria linked with the provision of those services, in this instance of criteria relating to programme content, when granting the right to provide media services, in so far as that right includes the right of use of a radio frequency. (22) In addition, that regulatory framework is also applicable to all procedures whereby the Member States grant rights of use of radio frequencies, (23) independently of the fact that the users are themselves media services providers or providers of electronic communications services who broadcast content produced by third parties (24) and without distinguishing the nature of the conditions imposed. (25) If that were not so, it would be possible for the Member States to circumvent the rules of that regulatory framework relating to the grant of radio frequencies and, therefore, to undermine the effectiveness of those rules. (26)

It is also appropriate, in that regard, to reject the Hungarian Government’s argument that the measures at issue are covered by the exception provided for in the second sentence of the second subparagraph of Article 5(2) of the Authorisation Directive. As was specified in the legislative procedure relating to the adoption of that directive, that provision merely specifies that, when radio frequencies are granted to radio or television content providers, the general interest objectives recognised by EU law may prevail over the need to apply open, non-discriminatory and transparent procedures. (27) However, nothing to that effect seems to emerge from the file before the Court. (28)

In conclusion, I consider that the EU regulatory framework for electronic communications is applicable in the present case. It also follows that, since EU law is applicable, Article 11 of the Charter is also applicable, pursuant to Article 51(1) thereof.

2.The applicability

ratione temporis of the EECC

Among the provisions of EU law that Hungary is alleged to have infringed, the Commission submits that while the refusal decision (adopted on 8 September 2020) and the call for tenders (published on 4 November 2020) are subject to the Framework Directive and the Authorisation Directive, the invalidity decision (adopted on 10 March 2021), conversely, is subject to the EECC, which repealed and replaced those two directives with effect from 20 December 2020. The Hungarian Government disputes the applicability of the EECC to the invalidity decision, on the ground that the call for tenders that initiated the procedure leading to that decision was published before the EECC entered into force and that, accordingly, the entire procedure, including the invalidity decision, is governed by the rules in force at the time when the procedure was initiated.

I support the interpretation suggested by the Hungarian Government, which, moreover, was not challenged by the Commission in its reply, while emphasising that the obligations imposed by Article 45(1) of the EECC, infringement of which is alleged by the Commission, are equivalent to those required by Article 9(1) of the Framework Directive, as those two provisions lay down, inter alia, an obligation for the Member States to ensure that radio spectrum allocation used for electronic communications services is based on transparent and proportionate criteria. (29)

It follows, in my view, that the EECC is of no relevance in the context of the assessment of the present action for failure to fulfil obligations.

B.The admissibility of the action for failure to fulfil obligations

The Hungarian Government submits that the action for failure to fulfil obligations is inadmissible on the ground that it is aimed at two individual administrative decisions, which, moreover, were confirmed by judicial decisions which have acquired the force of res judicata, and not at an administrative practice. (30) By contrast, the Commission asserts that, according to settled case-law of the Court, it may initiate infringement proceedings not only in relation to an administrative practice but also in individual cases of incorrect application of EU law.

In that regard, it should be borne in mind that, according to the Court’s case-law, the procedure provided for in Article 258 TFEU is based on the objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or an act of secondary law and, in the context of such proceedings, the Commission enjoys a discretion as to whether or not to commence such proceedings, which is not for review by the Court. (31) It also follows from that case-law that an action against a Member State for failure to fulfil its obligations is objective in nature and, consequently, where a Member State fails to fulfil its obligations under EU law, the infringement exists regardless of the frequency or the scale of the circumstances complained of. (32) Furthermore, the Court has made clear that the Commission may ask it to find that, in not having achieved, in a specific case, the result intended by a directive, a Member State has failed to fulfil its obligations. (33)

Therefore, even if the Commission’s practice in relation to actions for failure to fulfil obligations generally concerns situations in which decisions have a sufficiently broad scope, there is nothing to preclude individual decisions, for which all remedies in national law have been exhausted, from being the subject matter of an action by the Commission for failure to fulfil obligations, as Articles 258 and 259 TFEU do not limit the Court’s review solely to general provisions adopted by the Member States. (34)

C.The first complaint, concerning the refusal decision

By its first complaint, the Commission puts forward four arguments relating to the incompatibility of the refusal decision and, as a subsidiary matter, of the Law on the media with the EU regulatory framework for electronic communications. Those arguments relate to, first, the proportionality of the refusal decision; second the proportionality of Article 48(7) of the Law on the media (the first and second arguments being relied on in the alternative); third, the discriminatory nature of the refusal decision; and, fourth, the excessive duration of the administrative procedure.

1.The proporti onality of the refusal decision

By its first argument, the Commission claims that, by the refusal decision, the Media Council infringed the relevant provisions of the EU regulatory framework for electronic communications – and, more particularly, the principle of proportionality (35) – on the ground that the refusal decision is based solely on the fact that, in 2017, Klubrádió had twice failed to comply with its obligation to communicate monthly data concerning broadcasting quotas, infringements which, however, had not been classified by the Media Council as constituting serious infringements. (36) The Commission refers, in that regard, to the principle of the proportionality of penalties, which requires that account be taken, in particular, of the nature and the gravity of the infringement. (37) It also emphasises that the right of the Member States to determine the conditions of the renewal of the right to provide media services does not allow them to avoid the obligations arising under Article 7 of the Authorisation Directive and the principle of proportionality. (38)

According to the Hungarian Government, the principles on which the Commission relies are irrelevant, since the refusal to renew an authorisation to provide media services is not a ‘penalty’. (39) In the present case, the right to provide media services, which is not an individual right, was not withdrawn from Klubrádió but ceased naturally upon expiry of the relevant period, and therefore on account of its legal nature. The Member States are therefore entitled to determine the conditions governing the renewal of the right to provide media services. (40)

In that regard, it is appropriate to examine at the outset whether the principle of proportionality applies in the context of the present case and, if so, to determine whether that principle has been breached.

As regards, in the first place, the application of the principle of proportionality, it should be observed that, under Article 9(1) of the Framework Directive, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 4(2) of the Competition Directive, the rights to use radio frequencies must be assigned on the basis of objective, transparent, non-discriminatory and proportionate criteria; the latter condition means that those criteria are to be appropriate for achieving their objective and do not go beyond what is necessary in order to achieve that objective. According to the Court’s case-law, those criteria must be respected, not only at the time of the initial assignment of the radio frequencies, but also with every subsequent assignment or renewal, or conversion of the radio frequencies as part of the digital transfer. (41)

Therefore, independently of the classification of the refusal to renew the radio frequencies as a ‘penalty’, which, moreover, is not envisaged by either of the parties to the proceedings, (42) it seems clear that that renewal must be granted on the basis of objective, transparent, non-discriminatory and proportionate criteria, those principles being applicable also to the refusal of a renewal.

It is admittedly true, as the Hungarian Government claims, that the use of the radio frequencies ceased in the present case not because of an act of the competent authorities or, a fortiori, as the consequence of a penalty, but that it ceased purely because of the expiry of the right to use the radio frequencies, the time limit of which is laid down in the contract for the use of the frequency at issue. It is also true that the possibility of providing media services, which permits the use of radio frequencies, does not appear to be an individual right or a property right. It is therefore possible, presumably, that no renewal is provided for by the national legislation on expiry of the right to use radio frequencies or that that legislation, as from a certain point in time, provides for different rules or conditions.

In the present case, however, it is the national legislation that, subject to compliance with certain conditions, provides for such a renewal. Accordingly, in so far as that renewal is provided for, the conditions of that renewal must respect the principles established by the relevant provisions of the EU regulatory framework for electronic communications, (43) including the principle of proportionality, on which the Commission relies in the present case.

As the principle of proportionality is applicable, it falls to be determined, in the second place, whether that principle was breached.

In that regard, I recall that the ground that led to the renewal of the contract for the use of the frequency at issue being excluded was the breach of the condition referred to in Article 48(7)(a) of the Law on the media, which required that there had been no serious or repeated infringements of the Law on the freedom of the press, the Law on the media or the conditions set out in that contract. (44) I also note that, under Article 187(5) of the Law on the media, minor infringements are excluded from the concept of ‘repeated infringement’.

While the prohibition on the renewal of a contract for the use of a radio frequency following repeated infringements, as laid down in the Law on the media, is not on its own capable of constituting a breach of the principles referred to in point 46 of this Opinion, the application by the Media Council of that prohibition following infringements relating to the obligation to communicate data relating to broadcasting quotas raises some doubts. While that obligation is important for the purposes of ascertaining respect for the conditions for the grant of broadcasting rights, the breach of that obligation, in the circumstances of the present case, does not appear to be so serious as to lead to the prohibition in question. As the Commission submits, the infringement was limited to the breach of the obligation to communicate data, with which Klubrádió had complied during the procedure, without any breach of the obligation relating to the broadcasting data being established on the basis of those data. (45)

In conclusion, I am of the view that, by the refusal decision, the Media Council breached the principle of proportionality.

2.The proportionality of Article 48(7) of the Law on the media

By its second argument, the Commission maintains that Article 48(7) of the Law on the media infringes per se the relevant provisions of the EU regulatory framework for electronic communications, (46) in so far as it excludes, automatically and in all cases, the right to a renewal of the right to use radio frequencies on the ground that the media services provider was late on more than one occasion in meeting its obligation to provide information relating to compliance with broadcasting quotas, (47) and leaves the Media Council no discretion in assessing proportionality when it adopts decisions (such as the renewal of the right to use radio frequencies) under Articles 7 and 10 of the Authorisation Directive, thereby depriving it of the possibility of assessing the negligible nature of the infringement and the proportionality of the legal consequences of that infringement. (48)

The Hungarian Government emphasises that the national legislation defines the circumstances in which the renewal of the right to use radio frequencies is precluded, relying on objective rules which preclude any discretion in their implementation and which prevent such renewal only in the case of the most serious infringements (the gravity of the infringement being assessed in the context of the penalty procedure and not subsequently, at the stage of the renewal procedure) or repeated infringements (which do not include minor infringements), taking the principle of proportionality into account. (49)

I would observe, as a preliminary point, that the provisions on which the Commission relies require that the rights to use radio frequencies are allocated on the basis of objective, transparent, non-discriminatory and proportionate criteria. (50)

In this instance, as provided for in Article 48(7)(a) of the Law on the media, the right to provide media services cannot be renewed if, by final decision of the Media Council, the media service provider has been held responsible, in particular, for serious or repeated infringements of that law, without taking account of – in accordance with Article 187(5) of that law – minor infringements in the context of the assessment of the repeated nature of the infringements.

In that regard, it cannot in my view be concluded that, as the Commission maintains, Article 48(7) of that law precludes, automatically and in all cases, the renewal of the right to use radio frequencies, on the ground that media services provider was on more than one occasion late in meeting its obligation to communicate data relating to broadcasting quotas. The application of that provision in conjunction with Article 187(5) of the Law on the media allows the Media Council to assess an application to renew the right to provide media services in the light of the infringements committed by the applicant, by requiring the Media Council, when it assesses the repeated nature of those infringements, not to take account of minor infringements. (51)

Accordingly, the Law on the media lays down objective conditions for exclusion from the renewal of the right to provide media services, while leaving it to the competent national authority to assess the minor nature of an infringement when examining the repeated nature of the infringements committed. (52)

In those circumstances, I do not think that, merely by prohibiting renewal following repeated infringements, Article 48(7) of the Law on the media fails to meet the conditions laid down in Article 9 of the Framework Directive, Articles 5, 7 and 10 of the Authorisation Directive and Article 4 of the Competition Directive. I therefore propose that the second argument put forward by the Commission be rejected.

3.The discriminatory nature of the refusal decision

By its third argument, the Commission maintains that the automatic nature of the refusal to grant a renewal provided for in Article 48(7) of the Law on the media also constitutes a breach of the principle of equal treatment, which can indeed lead to the same legal consequence for infringements of very different magnitude, as is demonstrated by the fact that the Media Council did not renew Klubrádió’s right to provide media services when it did so for other radio stations, namely Inforádió, Rádió Smile and KARCAG, in spite of the serious and repeated infringements of the Law on the media committed by them.

In that respect, the Hungarian Government claims that no repeated infringement was committed either in the case of Inforádió (53) or in those mentioned by the Commission, as the procedures in those cases were based on different facts and took place in a legal context distinct from that applicable to Klubrádió. (54)

As a preliminary point, I recall that it follows from settled case-law of the Court relating to the burden of proof in proceedings for failure to fulfil obligations under Article 258 TFEU that 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. (55) It must therefore be determined whether the Commission, in the light of the information communicated by the Hungarian Government in the course of the procedure, discharged the burden of proof imposed on it.

In that regard, the Commission relies on the data contained in a table, produced by Hungary during the pre-litigation procedure and annexed to the application, concerning the grounds of the refusal decisions issued by the Media Council, from which it is apparent that, except in Klubrádió’s case, the Media Council has never refused to renew a right to provide media services on the sole ground that the provider had not met its obligation to communicate data relating to broadcast quotas. (56) Furthermore, since that table does not contain information on decisions to renew the right to provide media services, it cannot be precluded that the Media Council has in the past renewed that right in cases where providers had committed infringements comparable to, or even more serious than, those committed by Klubrádió. (57)

Independently of any breach by the Hungarian Government of its obligation of sincere cooperation, which ultimately was not relied on by the Commission, (58) it does not seem to me that the evidence adduced by the Commission is sufficient to substantiate the existence of discrimination on the part of the Hungarian authorities vis-à-vis Klubrádió. (59) Accordingly, I propose that the third argument raised by the Commission should be rejected.

4.The timely adoption of the refusal decision

By its fourth argument, the Commission claims that the refusal decision was adopted at the close of a procedure lasting 10 months, whereas Article 5(3) of the Authorisation Directive prescribes a period of 6 months for decisions granting rights of use of radio frequencies and the grant of the right to provide media services is an integral part of the procedure for the award of radio frequencies.

The Hungarian Government retorts that the procedure for the renewal of authorisations provided for in the Law on the media is not the procedure for the granting of rights of use for radio frequencies referred to in Article 5(3) of the Authorisation Directive and that neither the national legislation transposing that directive nor any other provision of EU law sets a time limit for the renewal of the right to provide media services.

In my view, that argument is strictly linked to the question of the application of the EU regulatory framework for electronic communications to the refusal decision. In so far as that decision, although it is based on the national legislation relating to the right to provide media services, is also considered to affect the right to use radio frequencies for providers of radio content, it seems reasonable to me to conclude that those decisions must respect the criteria and principles laid down by that regulatory framework, including the provisions relating to time limits for the adoption of decisions. Furthermore, as stated in point 31 of this Opinion, it is the measures at issue that govern the allocation of limited resources such as the radio spectrum, in accordance with the relevant provisions of that regulatory framework.

Since the Media Council adopted the refusal decision in a period that exceeded the time limit laid down in Article 5(3) of the Authorisation Directive, it must therefore be concluded that Hungary infringed that provision.

D.The second complaint, concerning the invalidity decision

By its second complaint, the Commission claims that, at the close of the call for tenders at issue, Klubrádió’s application was rejected as invalid for substantive reasons, on the basis of three grounds (two relating to errors in Klubrádió’s programming schedule and the final one to the existence of negative equity in its accounts) based on disproportionate criteria, which were not determined in advance and which left no discretion to the competent national authority. It also takes issue with the Hungarian authorities on account of the excessive duration of the procedure.

3.The grounds of invalidity relating to the programming schedule

The first two grounds of invalidity relate to two irregularities in Klubrádió’s weekly programming schedules: first, it did not complete the form for the programme, broadcast at weekends, ‘Reggeli Gyors ismétlés’, consisting of a selection of extracts from the programme ‘Reggeli Gyors’ broadcast during the week; and, second, it included in that schedule a programme entitled ‘Kovátsműhely’ lasting 45 minutes, although the form relating to that programme indicated a duration of 50 minutes.

The Commission maintains that such irregularities were mere administrative errors, which could easily be corrected in accordance with the Law on the media, whereas, according to the Hungarian Government, although that law distinguishes between procedural defects that render the bid invalid and other defects that do not have that consequence, the failings referred to above could not be corrected, since they would have entailed a substantial amendment of Klubrádió’s bid and therefore a breach of the principle of equality of arms with the other applicants. (60)

In that regard, it is common ground between the parties that Klubrádió’s bid was vitiated by such inaccuracies in the programming schedule. However, it also seems clear to me that those inaccuracies are so insignificant that it seems disproportionate to make them a ground for declaring the bid invalid. As the Commission asserts, it does not follow clearly from the call for tenders that a programme such as ‘Reggeli Gyors ismétlés’, which consisted exclusively of extracts from another broadcast, constituted a separate broadcast requiring an individual description. (61) Furthermore, it seems clear that a difference of five minutes between two indications of the length of the programme ‘Kovátsműhely’ in Klubrádio’s bid could only be a clerical error that could not genuinely affect the substance of that bid.

The inaccuracies referred to therefore do not appear to affect the substance of the bid and do indeed seem to lend themselves to correction following a request for clarification from the Media Council; that circumstance could not genuinely affect the principle of equality of arms with the other applicants.

3.The ground of invalidity relating to equity

The third ground of invalidity relates to Klubrádió’s negative equity during the years preceding the filing of its application, which, according to the Media Council, meant that its business plan was inappropriate.

In that regard, the Commission claims that that conclusion was based not on a breach of the conditions relating to financial viability set out in the call for tenders, which were met by Klubrádió, (62) but on the ground that the bid was inappropriate for achieving the objective of contributing to the creation of a stable broadcasting market. (63) Furthermore, independently of the fact that the deterioration of Klubrádió’s financial situation was attributable to the Media Council’s failure to conclude any administrative contracts with it, which was unlawful and had formed the subject matter of an action for damages, it is apparent from Klubrádió’s annual accounts for 2020 and 2021 (and the corresponding waivers of debt by its principal creditor) that Klubrádió’s economic situation had improved. In addition, the Media Council did not accept that Klubrádió might be able to cover its operating costs with the help of sponsorship, as it had done in the past, which the Commission regards as a legitimate and increasingly common means of financing the media. (64)

The Hungarian Government emphasises that Klubrádió’s turnover had been falling for several years before the call for tenders and that, at the time when the bid was assessed, it did not even satisfy the basic conditions of lawful operation, in accordance with the Hungarian Civil Code. Nor were the waivers of debt to which the Commission refers sufficient, since they were conditional, and the annual accounts for 2020 again reported negative equity (the 2021 accounts, on the other hand, were not relevant, as they postdated the assessment of the bid).

As a preliminary point, it is important, in my view, to emphasise that the third ground of invalidity is based not on a breach of the conditions relating to the financial viability of applicants responding to the call for tenders, referred to in point 1.8.2 of that call for tenders, but rather on the breach of the conditions laid down in point 1.11.9.2(c) of the call for tenders, (65) which states that an application is to be invalid on substantive grounds if, because it is unfounded, the bid is ‘inappropriate for achieving the objectives’ defined by the Law on the media or in the call for tenders. The objective in question was the objective, specified in point 1.2 of the call for tenders, of ‘contributing to the creation of a broadcasting market the functioning of which is stable and predictable’.

In that regard, in the first place, I consider that although the state of own funds constitutes a factor which, by definition, is mainly linked with the financial viability of the applicant undertaking, it was not among the criteria of financial viability referred to in the call for tenders and was not disputed by the Media Council in the context of the examination of those criteria. Conversely, it was mentioned in a completely different context, that is to say, in connection with the objective of creating a stable and predictable broadcasting market. For that reason, I consider that the use of that criterion in the context referred to above was not foreseeable, which may constitute a breach of the obligation of transparency, as the Commission maintains.

In the second place, it is also debatable in my view that the existence of Klubrádió’s negative own funds, which, it seems to me, had thus far not been considered problematic, and which is not capable of affecting its financial viability, might nonetheless undermine the creation or the functioning of the broadcasting market as a whole.

In the third place, I do not think that it is reasonable to preclude any relevance, in the assessment of Klubrádió’s bid, of the use of sponsors or external participants, which, as the Commission observes, is a common method of financing the media.

Accordingly, I consider that the existence of negative own funds in Klubrádió’s accounts is not a factor which, in the circumstances of the present case, ought to have led to its bid being rejected.

3.The timely adoption of the invalidity decision

84.The Commission claims that, having regard to the delay in the adoption of the refusal decision (which forms the subject matter of the fourth argument in the first complaint in the action), the Media Council did not allow sufficient time to close the call for tenders before the date of the expiry of the contract for the use of the frequency at issue and had only two months to evaluate the bids and to conclude a new administrative contract, which leads to an infringement of Article 8(2)(d) and (4)(e) and Article 9(1) of the Framework Directive, and of the principle of good administration.

85.The Hungarian Government asserts that the period of six weeks relating to the procedure for the allocation of the radio frequencies did not apply to the tendering procedure and, in any event, was respected in the present case, in so far as Article 7(4) of the Authorisation Directive allows that period to be extended to eight months where competitive procedures, such as the call for tenders in the present case, are used. (66)

86.In that regard, in view of the possibility, provided for in Article 7(4) of the Authorisation Directive, of extending the period referred to in Article 5(3) of that directive, it seems to me that the complaint in question is not sufficiently precise, (67) since the Commission has provided no concrete factor on which it might be concluded that the period within which the tendering procedure took place did not allow Klubrádió to submit an appropriate bid or the Media Council to evaluate the bids in an appropriate manner.

87.I therefore consider that the Commission has not discharged the burden of proof placed on it, in accordance with the case-law of the Court set out in point 63 of this Opinion.

E.In conclusion, I propose that the Commission’s second complaint should be upheld, in so far as the Commission claims that, in rejecting Klubrádió’s application at the close of the call for tenders as invalid on a substantive ground, on the basis of disproportionate criteria, Hungary infringed Article 5(2) of the Authorisation Directive.

The third complaint, concerning the refusal to conclude a temporary administrative contract

88.By its third complaint, the Commission maintains that the Law on the media gives rise to unequal treatment, in that, on the one hand, in accordance with Article 65(11), it does not permit a temporary administrative contract for the provision of media services to be concluded where there have been minor and repeated infringements of its provisions, but, on the other hand, under Article 55(1)(c), it authorises a frequency to be allocated by a call for tenders without consideration of infringements of its provisions, thus treating two comparable situations unequally. (68)

89.In the Hungarian Government’s submission, the conditions relating to the temporary right to provide media services cannot be compared with those imposed on applicants in a call for tenders (69) and, in any event, the conditions governing the conclusion of that temporary administrative contract are not stricter than those linked with participation in a new call for tenders, since minor but repeated infringements also preclude the renewal of the right to provide media services.

90.By way of preliminary point, I recall that, in accordance with Article 65(11) of the Law on the media, on expiry of the right to provide radio media services and during the tendering procedure for the grant of that right, the Media Council may grant a right to provide media services on a temporary basis, by means of a temporary administrative contract, (70) if the right to provide radio media services has already been renewed once, provided that the Media Council has not established a serious or repeated infringement by the media services provider. On the other hand, Article 55(1)(c) of that law does not lay down such conditions for the allocation of the right to provide those services in the context of a call for tenders.

91.The complaint in question is based on the premiss that the grant of a right to provide media services on a temporary basis is comparable to the grant of those services by means of a new call for tenders and that, consequently, the imposition of more rigorous conditions for the grant of such a right on a temporary basis constitutes a breach of the principle of equal treatment.

92.To my mind that premiss is incorrect. Although the two situations referred to (namely the temporary contract and the award of a contract in a call for tenders) have common features, in particular the possibility of continuing to provide media services, those situations are distinguished by important characteristics.

93.First, the conclusion of a temporary contract constitutes a provisional situation justified by practical reasons, namely the requirement to ensure an uninterrupted use of the radio frequencies. That transitional and emergency situation may, in my view, justify the imposition of particularly strict conditions. Where it is not possible to initiate a thorough evaluation of the situation of the undertaking in question, such as that carried out in the call for tenders, it is not unreasonable to require that the undertaking’s conduct has not been vitiated by any substantial irregularity. (71)

94.On the other hand, the award of a contract in a call for tenders requires a thorough analysis of the situation of the tendering undertaking on the basis of numerous criteria relating, inter alia, to its competence, its financial viability, etc. That circumstance, to my mind, justifies the imposition of different criteria from those applied in the context of the conclusion of a temporary contract. In the course of a call for tenders, the Media Council is able to assess in greater detail tenderers’ circumstances and to appraise whether, and to what extent, any infringements committed in the past may prevent those tenderers from participating in any meaningful sense in the call for tenders.

95.In any event, I consider that, in view of the significant differences between those two situations, the Member States retain a significant discretion as regards the conditions to be imposed in that respect.

96.I therefore propose that the Commission’s third complaint should be rejected.

F.The fourth complaint, concerning the infringement of Article 11 of the Charter

97.By its fourth complaint, the Commission maintains that the measures and legislation at issue prevented Klubrádió from broadcasting its programmes on a radio frequency, which constitutes the most serious breach of the freedom of the media and may be placed on the same footing as the termination of the activities of a medium by the national authorities. (72) Although freedom of expression and the freedom of the media are not absolute rights, (73) the limitations to those rights in the present case are not necessary for the objectives pursued (74) and, moreover, those limitations are not proportionate, as the objectives referred to above could be attained by less intrusive means, such as requests for information and the possible revocation of the decision to grant spectrum in the event that the undertaking were to be liquidated or wound up.

98.In the Hungarian Government’s submission, the present case relates solely to a question of the regulation of the media, which has not been harmonised under EU law and, consequently, is not subject to the provisions of the Charter, in accordance with Article 51(1) thereof. In addition, the mere fact that an operator is not granted the right to make its media services available on a particular broadcasting platform does not necessarily mean that there is a breach of freedom of expression.

99.It must be remembered that, in accordance with Article 11(2) of the Charter, the freedom and pluralism of the media must be respected. It follows from the Court’s settled case-law that that provision constitutes one of the essential foundations of a pluralist, democratic society and is one of the values on which, under Article 2 TEU, the European Union is founded, and that, in such a context, interferences with the rights and freedoms guaranteed by that provision must therefore be limited to what is strictly necessary. (75)

100.In so far as it is established, in the preceding points of this Opinion, that the EU regulatory framework for electronic communications is applicable and that some of the complaints raised by the Commission are well founded, it is appropriate to assess whether and to what extent the infringements established undermine the freedom and pluralism of the media in Hungary, taking into account the fact that the conduct complained of by the Commission affects the rights of a very specific undertaking.

101.The Commission, which bears the burden of proof in accordance with the Court’s case-law cited in point 63 of this Opinion, seems to rely on the fact that Klubrádió is an independent radio station which is critical of the Government. However, the action is not based on a specific analysis of the relationship between Klubrádió’s activity and the more general situation of the media in Hungary, since the Commission merely refers to the existence of an environment that is particularly hostile to the pluralism of the media in that Member State, owing to the considerable interference of the Hungarian Government in the field of the media, as has been recognised on many occasions within the European Union and the Council of Europe. (76)

102.In that regard, it is true that the legislation on the media in Hungary – and, in particular, the Law on the media – has been the subject of much criticism in recent years, notably by a number of international institutions and organisations, in view of the limitations placed on the freedom and pluralism of the media. In addition, and in all likelihood, in a situation in which the freedom and pluralism of the media are tested, the exclusion of a media services provider which provides detailed coverage of politics in a country and is particularly critical of the political power is likely to affect that situation even more.

103.However, while the examination of the measures at issue can clearly not disregard the conditions and the particular context in which they were adopted (77) and while, consequently, it cannot be precluded that those measures did in fact affect the freedom and pluralism of the media, it seems to me that, in the circumstances of the present case, the Commission has not adduced proof of the existence of such an effect and has therefore not discharged its burden of proof. Apart from a general description of the situation of the media market in Hungary, it has adduced no evidence showing the consequence of the measures at issue on that situation. (78)

104.That being so, if the Court should nonetheless find that the infringements established have the effect of limiting the freedom and pluralism of the media in Hungary, it must be determined whether, in accordance with Article 52 of the Charter, that limitation is consistent with the principle of proportionality, namely whether it is necessary to meet the objectives of general interest pursued and does not go beyond what is necessary for the pursuit of those objectives.

105.In that regard, while the objectives pursued by the national legislation, namely that of strengthening the national and cultural identity and that of ensuring competition on the media market and freedom of expression, constitute, in principle, objectives of general interest recognised by the European Union, I doubt that the limitations imposed by the decisions at issue are necessary and proportionate in that regard. The failures alleged against Klubrádió in the present case, which prevented it from pursuing its activity, constitute either minor infringements or inaccuracies of a procedural nature, (79) or situations which, as such, should not render it impossible for that radio station to pursue the activity of broadcasting. (80)

VI.Costs

106.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. Since I propose that the Court should essentially uphold the form of order sought by the Commission, and since the Commission has applied for costs to be borne by Hungary, Hungary should be ordered to pay the costs.

VII.Conclusion

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

–declare that Hungary has failed to fulfil its obligations under Article 8(1) and Article 9(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, Article 5(2) and (3) and Article 7(3) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140, Article 4(2) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Competition Directive) and the principle of proportionality, owing to the adoption by the Media Council, vis-à-vis Klubrádió, of refusal decision No 830/2020 of 8 September 2020 and invalidity decision No 180/2021 of 10 March 2021 and to the failure to adopt, within the six-week time limit laid down in Article 5(3) of the Authorisation Directive, a decision on Klubrádió’s request to renew the contract on the use of the 92.9 MHz frequency in the Budapest broadcasting area;

–dismiss the action for the remainder;

–order Hungary to pay the costs.

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1Original language: French.

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2That regulatory framework consists, in particular, of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37) (‘the Framework Directive’); of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140 (‘the Authorisation Directive’); and Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21) (‘the Competition Directive’).

3A médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law No CLXXXV of 2010 on media services and mass communication methods; ‘the Law on the media’), Magyar Közlöny 2010. évi 202. száma.

4Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 2009/140.

5It should be noted that that provision was subsequently amended as follows: ‘It shall be the responsibility of linear media service providers, each month and by no later than the last day of the month following the month in question, and at the latest on 31 January of the year following the reference year, to provide the Media Council with data allowing compliance with the broadcasting quotas to be monitored. …’

6When Decisions No 354/2017 and No 1224/2017 were adopted, that provision was laid down in Article 187(4) of the Law on the media.

7It broadcast, essentially, programmes dealing with public life in Hungary, not musical broadcasts like most commercial radio stations.

8In 2010, since the Országos Rádió és Televízió Testület (National radio and television committee, Hungary; ‘the ORTT’) had not yet launched the call for tenders for use of the radio frequency which it operated, Klubrádió submitted an application to use the radio frequency at issue, but secured the conclusion of that contract only by initiating judicial proceedings (the ORTT had selected Klubrádió at the time of the call for tenders but had not signed the broadcasting contract). Subsequently, the Media Council, which in the meantime had succeeded the ORTT as media regulator, launched a call for tenders for the 95.3 MHz frequency and, on 13 March 2013, awarded the contract to Klubrádió, again following judicial proceedings (the Media Council had initially selected a candidate other than Klubrádió, then, after that decision had been declared invalid, had declared that call for tenders unsuccessful, as all the applications were invalid for procedural reasons) and concluded a broadcasting contract with that radio station with effect from 3 May 2013 (before that date, Klubrádió was able to broadcast its programmes for a certain time on the radio frequency in question, on the basis of temporary 60-day licences).

9The present case arises from the refusal to extend that contract and the exclusion of Klubrádió from the new call for tenders launched following that refusal. Conversely, as reported by the Commission, the facts described up till then, which took place during the period between 2010 and 2014, gave rise to an action for damages brought by Klubrádió against the Media Council, in the context of which it was recognised, first, that Klubrádió had sustained material loss as a result of having to pay fees to use the 95.3 MHz frequency, when the use of the radio frequency at issue ought to have been free, and, second, that it had sustained non-material loss because the Media Council had caused damage to its reputation by statements made in the media by its representatives.

That decision was contested by Klubrádió and confirmed by the judgment of the Fővárosi Törvényszék (Budapest High Court, Hungary) of 9 February 2021, upheld on appeal by judgment of the Kúria (Supreme Court, Hungary) of 17 June 2021. By judgment of 8 February 2022, the Alkotmánybíróság (Constitutional Court, Hungary) also dismissed a plea of unconstitutionality raised by Klubrádió in that regard.

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11The application for an extension had been submitted by Klubrádió on 8 November 2019, under Article 48(5) of the Law on the media.

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12Those infringements had been established by two decisions adopted in 2017 (namely, Decisions No 354/2017 and No 1224/2017), which were not contested by Klubrádió, whereby the Media Council, while taking account of the fact that Klubrádió had complied with the requirement to submit data relating to broadcasting quotas before those decisions were adopted, imposed on it two fines amounting to 30 000 Hungarian forint (HUF) (approximately EUR 75) and HUF 36 000 (approximately EUR 90), respectively. According to the Media Council, the infringement had been committed twice within 365 days, and therefore constituted a ‘repeated infringement’ within the meaning of Article 187(5) of the Law on the media and, in application of Article 48(7) of that law, Klubrádió’s right to provide media services could not be renewed.

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13An appeal against that decision was dismissed on 6 May 2021 by judgment of the Fővárosi Törvényszék (Budapest High Court), upheld on appeal on 28 September 2021 by judgment of the Kúria (Supreme Court).

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14The Commission sent the Hungarian Government a letter of formal notice on 9 June 2021 and a reasoned opinion on 21 December 2021, to which the Hungarian Government replied by letters of 9 August 2021 and 2 February 2022, respectively.

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15Directive (EU) 2018/1972 of the European Council and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).

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16Authorisation to provide media services falls within the powers of the media regulation authority, namely the Media Council, while authorisation to use radio frequencies falls within the powers of the authority for the regulation of electronic communications, namely the Nemzeti Média- és Hírközlési Hatóság Hivatala (National Communications and Media Authority, Hungary; ‘the NMHH’). The applicant selected at the close of a call for tenders for the provision of media services will admittedly be entitled to submit an application for the grant of a radio licence; nonetheless that licence would not be issued automatically but would be subject to technical conditions.

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17See the second subparagraph of Article 5(2) of the Authorisation Directive. See also Article 9(1) of the Framework Directive, Article 7(3) of the Authorisation Directive and Article 4(2) of the Competition Directive, which also provide that the grant of rights of use of radio frequencies is to be made on the basis of objective, transparent, non-discriminatory and proportionate criteria.

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18See, in particular, recital 5 and Article 2(c) of the Framework Directive. Thus, the Court has held that that regulatory framework makes a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility, content and transmission being covered by different measures which pursue their own specific objectives (see, to that effect, judgment of 3 September 2020, Vivendi, C‑719/18, EU:C:2020:627, paragraph 66 and the case-law cited).

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19More particularly, Article 48 of the Law on the media governs the award of media services ‘using the limited resources owned by the State’, by means of an administrative contract awarded in the context of a call for tenders administered by the Media Council within the meaning of paragraph 1 of that provision, which may be extended without a call for tenders in accordance with paragraphs 5 and 7 of that provision.

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20In that context, the decision of the NMHH relating to the grant of the broadcasting licence to which Hungarian Government refers is confined to the award of the radio licence, after verification of the relevant technical conditions.

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21Contrary to the position maintained by the Hungarian Government, the regulatory framework is applicable not because the provision of media content (which forms the subject matter of the measures at issue) assumes the transmission of signals, but rather because the measures at issue are the only national measures whereby the spectrum is allocated, in accordance with the provisions referred to in point 28 of this Opinion. Furthermore, in the judgment of 31 January 2008, Centro Europa 7 (C‑380/05, EU:C:2008:59, paragraphs 85 and 86), the Court held that, in the area of television broadcasting, freedom to provide services, as enshrined in Article 49 EC [now Article 56 TFEU] and implemented in this area by the EU framework for electronic communications, requires not only the grant of broadcasting authorisations, but also the grant of broadcasting radio frequencies and that an operator cannot exercise effectively the rights which it derives from EU law concerning access to the television broadcasting market without broadcasting radio frequencies.

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22Furthermore, the Court has stated that, in accordance with Article 1(3) of the Framework Directive, the Member States remain competent to regulate the media ‘having due regard for EU law’ (see, to that effect, judgment of 3 September 2020, Vivendi, C‑719/18, EU:C:2020:627, paragraph 47).

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23It must be borne in mind that, in addition to being limited resources, radio frequencies are a public good that has an important social, cultural and economic value (see, in particular, to that effect, Article 9(1) of the Framework Directive). It would be inconsistent to apply the relevant provisions of the EU regulatory framework on electronic communications only when they relate exclusively or mainly to those resources.

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24In that regard, the Court has stated that the EU regulatory framework on electronic communications is applicable to providers of electronic communication services that are at the same time providers of media services (see judgments of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, and of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597).

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25For example, conditions linked with programming and therefore with programme content.

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26Furthermore, according to the settled case-law of the Court, the margin of discretion conferred on the Member States in the application of a directive must not be used by them in a manner which would undermine the effectiveness or the objective of that directive or which would infringe the principle of proportionality (see, to that effect, judgment of 12 September 2024, Sagrario, C‑63/23, EU:C:2024:739, paragraph 35 and the case-law cited).

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27See, to that effect, Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) EC concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on the authorisation of electronic communications networks and services (SEC/2001/1411 final – COD 2000/0188).

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28The same consideration must apply with regard to the argument based on the ‘exception’ referred to in Article 1(3) of the Framework Directive, according to which, in essence, the provisions of the EU regulatory framework for electronic communications are without prejudice to measures taken at national level to pursue general interest objectives, in particular relating to content regulation and audiovisual policy. As may be seen from the Report of the European Parliament of 7 February 2001 on the Proposal for a Directive of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (COM(2000) 393 – C5-0428/2000 – 2000/0184(COD)), which introduced that provision, that provision ‘underlines the separation between audiovisual content and transmission infrastructure’. That said, the fact remains that, as is apparent from the considerations developed in points 28 to 33 of this Opinion, that regulatory framework remains applicable to all procedures by means of which the Member States grant rights to use radio frequencies.

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29The answer to that question therefore has no practical impact on the merits of the third complaint, a fortiori because the Commission, in its submissions, relies on Article 45 of the EECC in conjunction with the provisions of the EU regulatory framework on electronic communications (however, that provision is relied on in the context of the third complaint, which in any event I propose should be rejected).

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30That argument is relevant only with regard to the Commission’s complaints in relation to the measures at issue and not to those concerning the Law on the media.

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31See judgment of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraph 56 and the case-law cited).

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32See judgment of 28 January 2020, Commission v Italy (Directive combating late payment) (C‑122/18, EU:C:2020:41, paragraph 64 and the case-law cited).

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33See, in particular, judgment of 14 April 2005, Commission v Spain (C‑157/03, EU:C:2005:225, paragraphs 42 to 46 and the case-law cited), and Opinion of Advocate General Stix-Hackl in Commission v Germany (C‑441/02, EU:C:2005:337, points 59 to 63 and the case-law cited). Only when an administrative practice is the subject matter of an action for failure to fulfil obligations is it required, according to the Court’s case-law, that it must be, to some degree, of a consistent and general nature (see judgment of 17 December 2020, Commission v Hungary (Reception for applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 111 and the case-law cited). See also, in the literature, Lenaerts, K., Gutman, K. and Nowak, J.T., EU Procedural Law, Oxford University Press, Oxford, 2023, p. 180.

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34Admittedly, with regard, in particular, to a complaint concerning the implementation of a national provision, the Court has held that proof of a Member State’s failure to fulfil its obligations requires production of evidence different from that usually taken into account in an action for failure to fulfil obligations concerning solely the terms of a national provision, and that in those circumstances the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts, for which the Member State concerned is answerable (see judgment of 17 December 2020, Commission v Hungary (Reception for applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 113 and the case-law cited). That principle was established with respect to a ‘practice’, but it is even more relevant with regard, as in the present case, to individual decisions.

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35The Commission relies in that regard on Article 9(1) of the Framework Directive, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive, and Article 4 of the Competition Directive.

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36According to Article 48(7) of the Law on the media, the right to use radio frequencies cannot be extended if, inter alia, the media services provider has been found to repeatedly breach the contract or infringe the provisions of that law.

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37The Commission submits, first of all, that the principle of proportionality is binding on the Member States not only in the case of penalties but also in the case of measures that restrict the freedoms guaranteed by EU law (see judgment of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraph 41 and the case-law cited); next, that in the present case, in accordance with Article 48(7) of the Law on the media, the refusal to extend the right to provide media services was actually based on infringements committed in the past; and, last, that the penalty provided for in Article 10(5) of the Authorisation Directive and the refusal to grant an extension are comparable in terms of their legal consequences.

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38Furthermore, in the Commission’s contention, the fact that Klubrádió is able to broadcast its programme on the internet is not sufficient to make up for the loss of the radio frequencies.

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39Furthermore, according to that Government, an extension procedure does not become a penalty procedure merely because, among the situations in which an renewal is precluded, the law provides for the situation in which a serious or repeated infringement has been committed previously by the media services provider.

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40Furthermore, the Hungarian Government contends that Klubrádió has not sustained any harm linked to the non-extension of its right to provide media services – as the consequences of that non-extension were foreseeable on the basis of the infringements committed and the expiry of the contract for the use of the radio frequency at issue – and was still able to provide its services via other transmission systems, including the internet. In addition, the argument alleging breach of the principles of proportionality and non-discrimination was not raised in the application.

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41See, to that effect, judgment of 26 July 2017, Persidera (C‑112/16, EU:C:2017:597, paragraphs 39 and 40 and the case-law cited).

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42Although in its application the Commission refers on numerous occasions to the Court’s case-law on penalties, it does not seem to intend to treat the present case as comparable to a penalty but, rather, to consider that the principles identified in that case-law are also applicable to the present case, since the refusal to extend the right to provide media services is comparable to a penalty (in this instance, the termination of that right) in terms of their legal consequences.

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43See point 46 of this Opinion.

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44In the present case, Klubrádió was held liable for repeated breaches of the obligation to communicate data relating to broadcasting quotas imposed by Article 22(8) of that law.

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45In addition, the fines imposed on Klubrádió were quite small, which might also amount to evidence in support of the limited importance of the infringements found. It is therefore apparent that, in assessing the existence of repeated infringements attributed to Klubrádió, the Media Council did not take account of the insignificant nature of those infringements.

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46More particularly, Article 9 of the Framework Directive, Articles 5, 7 and 10 of the Authorisation Directive, Article 4 of the Competition Directive and the principle of proportionality.

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47Such an infringement is not a serious and flagrant case that would justify the refusal to renew.

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48That argument is put forward as an alternative to the first one. Either the Media Council misused its discretion and failed to respect the principle of proportionality (first argument), or the Law on the media does not allow it any discretion and therefore constitutes in itself a breach of the principle of proportionality (second argument).

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49Furthermore, in those circumstances, the extension of Klubrádió’s right to provide media services would have entailed discrimination vis-à-vis its competitors.

50I refer, more precisely, to Article 9 of the Framework Directive, Articles 5 and 7 of the Authorisation Directive and Article 4 of the Competition Directive. Conversely, Article 10 of the Authorisation Directive relates only to penalties imposed by the competent national authority.

51However, in so far as the wording of Article 187(5) of the Law on the media seems to be clear in that respect, where it provides that an infringement is to be regarded as repeated where the offender repeats, within a period of 365 days, the same unlawful conduct as that established by a definitive administrative decision, ‘with the exception of minor infringements’, I have difficulty in understanding the position maintained by the Hungarian Government at the hearing, namely that it follows from that provision that, if minor offences are repeated, the sum of the minor infringements must be treated as a serious infringement, a position which the Commission, moreover, disputes.

52It is apparent from the case file and, more particularly, from the discussion at the hearing, that the Law on the media does not lay down precise criteria for the assessment of the minimal nature of an infringement, which is therefore in all likelihood entrusted to the Media Council in the context of the assessment of an application to extend the right to provide media services.

53Inforádió is stated to have infringed not a provision of the Law on the media, but a provision of the Law on the freedom of the press, which, at the time when the decision was adopted, did not yet constitute a ground for non-extension.

54In the cases of Rádió Smile and KARCAG, in particular, the same radio frequencies were operated by different providers.

55See, in particular, judgment of 29 July 2024, Commission v Portugal (Civil Engineers) (C‑768/22, EU:C:2024:643, paragraph 79 and the case-law cited). Admittedly, the Commission, in its written observations, claimed that there had been a lack of cooperation on the part of the Hungarian authorities, which might constitute a breach of the obligation imposed on Hungary by the principle of sincere cooperation enshrined in Article 4(3) TEU. However, the Commission did not develop that potential complaint further, nor is it included in the form of order sought in the application.

56It is apparent from that table that most of the refusal decisions established the existence of an infringement linked with the classification of programmes in the appropriate age category or with a departure from the programming schedule agreed in the contract, which, in the Commission’s view, constitutes a more serious infringement than failure to comply with the obligation to communicate data relating to broadcasting quotas of which Klubrádió is accused.

57That might be the case of Inforádió, in respect of which the Commission requested Hungary, during the pre-litigation procedure, to provide it with detailed information in that regard, a request which remained unanswered.

58See footnote 54 to this Opinion.

59It seems to me, moreover, that the Commission’s complaint is lacking in precision, in so far as, when examining that complaint, that institution states that the automatic nature of the refusal to grant a renewal provided for in Article 48(7) of the Law on the media infringes EU law, whereas, in the form of order which it seeks, it states that the refusal to extend the right to provide media services in Klubrádió’s case (taken in conjunction with the extension of the rights of the other providers) is contrary to the principle of non-discrimination.

60The rectification of the length of a programme would have entailed a modification of the commitments and the essential declarations set out in the bid (in particular the duration and the length of the programme), thus running counter to the principle of fair competition.

61This broadcast had been considered by the Media Council to be a new broadcast since it was not covered by the definition of a ‘rebroadcast’. According to the definitions in the call for tenders, a ‘broadcast’ consists of a series of sounds, animated images with or without sound or fixed images forming an autonomous unit, whatever its length, of a programming schedule or offer prepared by a media service provider, while a ‘rebroadcast’ is the rebroadcasting, without the need for any other technical intervention, of recorded audio material that has previously been broadcast in a programme.

62Point 1.8.2 of the call for tenders, relating to the financial viability of applicants, imposed, inter alia, a number of conditions regarding the absence of outstanding debts (in respect of customs, social security, taxation, to the Media Council), certain obligations concerning overdue payment, insolvency proceedings, liquidation or relating to the dissolution of the company.

63In accordance with Point 1.11.9.2(c) of the call for tenders, the application was declared invalid if, because it was not well founded, the tender was inappropriate for achieving the objectives defined in the Law on the media or in the call for tenders. Among those objectives, point 1.2 of the call for tenders laid down the objective of contributing to the creation of a broadcasting market the functioning of which is stable and predictable.

64Furthermore, the Media Council awarded a contract, in the context of a different call for tenders, to an applicant which had in the past operated with negative equity, which the Hungarian Government denies.

65See footnotes 61 and 62 to this Opinion.

66To my mind the Hungarian Government is relying on a misinterpretation of the Commission’s complaint, which it interprets as alleging that the six-week period set out in Article 5(3) of the Authorisation Directive was exceeded.

67In the form of order which it seeks, the Commission requests a declaration that Hungary has failed to fulfil its obligations under Articles 8 and 9 of the Framework Directive, Article 5(3) of the Authorisation Directive and the principle of good administration, ‘by failing to carry out a procedure for granting rights of use of the frequency previously used by Klubrádió within a period which would have allowed Klubrádió to obtain the decision before the expiry of its right of use’.

68In the Commission’s contention, the grant of a temporary right of use would have been consistent with the obligation to ensure the effective management of radio spectrum laid down in Article 45(1) of the EECC, with the requirement to ensure predictability and consistency of the extension and amendment of rights of use for radio spectrum laid down in Article 45(2)(c) of the EECC, and also with the requirement to guarantee regulatory certainty, consistency and predictability laid down in Article 45(2)(g) of the EECC.

69The Hungarian Government also observes that Klubrádió did not request temporary authorisation. The Commission states, however, that – independently of the fact that Klubrádió was aware that it did not meet those conditions – it takes issue with Hungary on the ground that the Law on the media, and not just the decision relating to Klubrádió, is not compatible in that respect.

70That temporary right, with a maximum duration of 60 days, comes to an end, in any event, on the date on which the administrative contract is concluded with the applicant selected following the call for tenders.

71I start from the premiss, as confirmed by the Hungarian Government in its written observations, that the assessment of the conditions of a renewal is subject to Article 187(5) of the Law on the media, which provides that minor infringements are not to be taken into account in determining the existence of repeated infringements.

72The possibility for Klubrádió to broadcast its programmes on the internet is not, in the Commission’s contention, an alternative equivalent to broadcasting on radio frequencies within the Hungarian media market.

73Under Article 52(1) of the Charter, limitations on those rights must be provided for by law and respect the essence of those rights and freedoms and, subject to the principle of proportionality, may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

74According to the Commission, as regards the refusal decision, the objective of preserving the national and cultural identity through the use of broadcasting quotas was not undermined by the infringement alleged against Klubrádió, which concerned not failure to respect the broadcasting quotas, but merely infringement of the obligation to communicate data relating to the broadcasting quotas; as regards the invalidity decision, the objective of ensuring fair competition was not undermined by procedural defects of minor significance and the objective of guaranteeing a stable presence on the media market was not undermined by the existence of negative equity in Klubrádió’s accounts, as its financial viability could be guaranteed by other modes of financing.

75See judgment of 4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraph 49 and the case-law cited). Furthermore, in accordance with Article 52(3) of the Charter, the rights contained in the Charter have the same meaning and scope as the corresponding rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), without preventing EU law from providing more extensive protection. When interpreting Article 11 of the Charter, the Court must therefore take account of the corresponding rights guaranteed by Article 10 ECHR, as interpreted by the European Court of Human Rights, as a minimum threshold of protection. In that regard, it follows from the settled case-law of that Court that exceptions to the freedom of expression are to be construed strictly and that Article 10(2) ECHR leaves little scope for restrictions on freedom of expression in the fields of political speech and matters of public interest (see, to that effect, judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraphs 51 to 53 and the case-law cited).

76The Commission, supported by the interveners, refers, in particular, to the Opinion of the Council of Europe Commissioner for Human Rights of 2011 on Hungary’s media legislation; to the publication entitled ‘The independence of media regulatory authorities in Europe’ of 2019 of the European Audiovisual Observatory; to the Commission’s 2021 Rule of law report ; to the ‘Memorandum on freedom of expression and media freedom in Hungary’ of 2021 by the Council of Europe Commissioner for Human Rights; to the 2022 Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and of expression; to the ‘Media Pluralism Monitor’ of 2023 of the Centre for Media Pluralism and Freedom; and also to the reports of the Mérték Media Monitor. Those publications refer, in particular, to the lack of plurality in the composition of the Media Council, whose decisions are taken, in essence, by the majority party of the Hungarian Parliament.

77See in particular, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 139).

78I refer, in particular, to any factual or statistical data showing the importance of Klubrádió, which, moreover, is a radio station broadcasting in a single (albeit important) area, the Budapest area, in the panorama of the media in Hungary, taking into account all the radio stations or media in that country.

79In this instance, I refer, first, to the breach of the obligation to communicate monthly data relating to broadcasting quotas, which was the subject matter of the refusal decision, and, second, to the lack of precision concerning the programming schedule, which was the subject matter of the invalidity decision.

80I refer, in that regard, to the existence of negative equity in Klubrádió’s accounts, which was the subject matter of the invalidity decision, which, as stated in point 81 of this Opinion, could readily be offset by crowdfunding.