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Hungary / Supreme Court / Kfv.III.37.666/2012/27

Three mobile operators v state authority entitled to utilize radio frequencies owned by the state

Policy area:
Audiovisual and media
Deciding Body type:
National Court/Tribunal
Deciding Body:
Curia
Type:
Decision
Decision date:
26/02/2013

Key facts of the case:

The respondent launched an auction for the use of radio frequencies owned by the state. At the time of launching, a ministerial decree provided that state-run companies may not acquire a certain block of these frequencies, but later on another decree was issued by the National Media and Infocommunications Authority (Nemzeti Média- és Hírközlési Hatóság, NMHH) which did not contain this restriction. Applicants included the plaintiffs and the third party intervener, which was new on the Hungarian market and was indirectly owned by the state. Since the rules of the auction favoured providers not present in Hungary before, the third party intervener acquired the block of frequencies. Further blocks of frequencies were acquired by the plaintiffs, but their use was subjected e.g. to the condition that they allow the third party intervener to use their networks in relation to domestic roaming. The plaintiffs finally requested the judicial review of the respondent’s decision. The first instance court abolished the decision, which was agreed on by the Curia. Both courts came to the conclusion that the third party intervener was not entitled to participate in the auction due to the ban included in the ministerial decree. It was also concluded that the services related to domestic roaming had been unlawfully demanded, and were not undertaken voluntarily, which was in contradiction with the Authorisation Directive (European Union, 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).