CJEU Case C-92/23 / Judgment

European Commission v Hungary
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
26/02/2026
ECLI (European case law identifier)
ECLI:EU:C:2026:108
  • CJEU Case C-92/23 / Judgment

    Key facts of the case:

    Failure of a Member State to fulfil obligations – Electronic communications networks and services – Radio 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 content on an analogue terrestrial FM radio frequency – Principles of proportionality, transparency, non-discrimination and good administration – Article 11 of the Charter of Fundamental Rights of the European Union – Freedom of expression and information – Freedom of the media

    Outcome of the case:

    On those grounds, the Court (Grand Chamber) hereby:

    1.      Declares that Hungary has failed to fulfil its obligations:

    - under Articles 5 and 7 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/EC of the European Parliament and of the Council of 25 November 2009, Article 4(2) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, Article 9 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, and the principle of proportionality on account of (i) the adoption by the Médiatanács (Media Council, Hungary), on 8 September 2020, of Decision No 830/2020 (IX. 8) by which it refused to renew Klubrádió’s rights to use the radio spectrum, (ii) the adoption of Paragraph 48(7) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications), which automatically precludes the renewal of rights to use the FM broadcasting radio spectrum if the rightholder has repeatedly infringed its obligation to transmit data on broadcasting quotas, including where the infringements were minor infringements of a purely formal nature and have already been penalised by fines subsequently resulting in full compliance, and (iii) the ensuing disproportionate impossibility for Klubrádió to pursue its activities in the broadcasting sector;

    - under Article 5(3) of Directive 2002/20, as amended by Directive 2009/140, and the principle of good administration, on account of the adoption of that decision long after the expiry of the six-week period laid down in that provision;

    -  under Article 5(2) of Directive 2002/20, as amended by Directive 2009/140, and Article 45(1) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code, on account of the fact that the Médiatanács (Media Council, Hungary), in the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz, which it published on 4 November 2020, and in Decision No 180/2021 (III. 10.), which it delivered on 10 March 2021, imposed disproportionate conditions on the allocation of rights to use the radio spectrum, failed to determine in advance the criteria for allocating those rights, did not provide for any discretion enabling an assessment to be carried out of the seriousness and relevance of errors potentially affecting the files submitted by the applicants, which might entail their exclusion, and disregarded how minor the errors affecting Klubrádió’s tender were;

    - under Article 8(2)(d) and Article 9(1) of Directive 2002/21, as amended by Directive 2009/140, and the principle of good administration, on account of the failure to organise a procedure to allocate the frequency 92.9 MHz in sufficient time to allow for the adoption of a decision before the expiry of Klubrádió’s rights to use that radio frequency;

    - under Article 45(1) of Directive 2018/1972 and the principle of proportionality, on account of the adoption of Paragraph 65(11) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications), which precludes media service providers whose right to use radio frequencies has not been renewed due to the commission of a repeated infringement from applying for temporary rights of use; and

    - under Article 11 of the Charter of Fundamental Rights of the European Union, on account of (i) the adoption of Decision No 830/2020 (IX. 8) and Paragraph 48(7) of the a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. Törvény (Law CLXXXV of 2010 on media services and mass media communications) and (ii) the adoption of Decision No 180/2021 (III. 10.) and the call for tenders concerning the use of opportunities to provide media services on the frequency 92.9 MHz, published on 4 November 2020;

    2.      Dismisses the action as to the remainder;

    3.      Orders Hungary to bear, in addition to its own costs, four fifths of the costs incurred by the European Commission;

    4.      Orders the European Commission to bear one fifth of its own costs;

    5.      Orders the Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands to bear their own costs.

  • Paragraphs referring to EU Charter

    95. It should be borne in mind that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States ‘when they are implementing EU law’. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited).

    96.  In the present case, since the national measures at issue amount to an implementation of the EU regulatory framework for electronic communications, it is clear that, in adopting those measures, Hungary was required to respect the fundamental rights guaranteed by the Charter and, in particular, the right to freedom of expression and information enshrined in Article 11 thereof, relied on by the Commission.

    97.  It follows that the national measures at issue may be subject to review in the light of both the EU regulatory framework for electronic communications and the Charter.

    98.  Consequently, Hungary’s line of argument that that framework and the Charter do not apply to those measures must be rejected.

    ...

    115. As regards, in the first place, the ground of inadmissibility referred to in paragraphs 107 and 108 above, while it is true that, in some sections of its application, the Commission refers to a possible conflict between the decisions at issue and the national rules underpinning their adoption, particularly as regards the refusal decision, it is nevertheless clear from the application that the Commission seeks only a declaration that the decisions at issue or those rules do not comply with several provisions of the EU regulatory framework for electronic communications and with Article 11 of the Charter.

    ...

    127. The first set of complaints, directed at Paragraph 48(7) of the Law on media services and the refusal decision, alleges infringement of Articles 5, 7 and 10 of the Authorisation Directive, Article 4 of the Competition Directive and Article 9 of the Framework Directive and breach of the principles of proportionality, non-discrimination and good administration. The second set, directed at the call for tenders at issue and the invalidity decision, alleges infringement of Article 5(2) and (3) of the Authorisation Directive, Articles 8 and 9 of the Framework Directive and Article 45 of Directive 2018/1972. The third set, directed at Paragraph 65(11) of the Law on media services, alleges infringement of Article 45(1) of Directive 2018/1972 and breach of the principles of proportionality and non-discrimination. The fourth set of complaints alleges infringement of Article 11 of the Charter.

    ...

    334. The Commission submits, in essence, that Hungary has failed to fulfil its obligations under Article 11 of the Charter on account of, first, the adoption of the refusal decision and Paragraph 48(7) of the Law on media services and, secondly, the adoption of the invalidity decision and the call for tenders at issue.

    ...

    337. While acknowledging that freedom of expression and freedom of the media are not absolute rights, the Commission maintains that any limitation of those freedoms must comply with the requirements laid down in Article 52 of the Charter.

    338.  In that regard, the Commission states that the objectives pursued by the Law on media services – namely to strengthen national and cultural identity, taking into account technological developments, while safeguarding freedom of expression and speech and freedom of the press and recognising the cultural, social and economic weight of media services and the importance of ensuring competition in the media market – constitute general interest objectives capable of justifying a restriction on the rights and freedoms enshrined in Article 11 of the Charter. However, according to the Commission, the refusal decision goes beyond what is necessary to achieve those objectives.

    ...

    340. In the second place, the Commission argues that the invalidity decision also constitutes a disproportionate interference with the freedom and pluralism of the media, inasmuch as that decision is not appropriate for attaining the objectives pursued and goes beyond what is necessary for those purposes. Therefore, the conditions under which such an interference may be justified, set out in Article 52 of the Charter, are not satisfied.

    ...

    345. Hungary submits, in the first place, that the refusal decision and the national rules underpinning its adoption do not infringe Article 11 of the Charter.

    ...

    349. Against that background, Hungary submits that 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 entail a breach of the rights and freedoms enshrined in Article 11 of the Charter. Whether or not the refusal decision and the national rules underpinning its adoption infringe those rights and freedoms depends not on whether Klubrádió is critical of the Hungarian Government or on the conclusions that the Commission may draw from the context in which that decision was taken, but on whether that decision is proportionate in the light of the objective pursued.

    350. In the second place, Hungary contends that neither the present case nor its regulatory context undermines the requirements of balanced information and the principle of freedom of the press and pluralism of the media. The Hungarian authorisation scheme ensures that all applicants in a tendering procedure have equal access to opportunities to provide media services and ensures the allocation of frequencies to all selected media service providers, in full compliance with the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’) and the Charter.

    ...

    354. The Kingdom of Belgium, the Kingdom of Denmark and the Kingdom of the Netherlands support the Commission’s arguments and draw attention, in particular, to the importance of the right to freedom of expression and information in a democratic and pluralist society and to the need to take into account, when assessing Hungary’s alleged infringement of Article 11 of the Charter, the context of the national measures at issue. In that regard, the Kingdom of Belgium refers, on the basis of various reports concerning media freedom and pluralism in Hungary, adopted between 2019 and 2023 by the Centre for Media Pluralism and Media Freedom, the European Audiovisual Observatory, the Commissioner for Human Rights of the Council of Europe and the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, to several issues concerning the present action and to the adverse opinions issued by those international organisations on the matter of media freedom in Hungary.

    355. Article 11(1) of the Charter provides that ‘everyone has the right to freedom of expression’ which includes ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Under Article 11(2) thereof, ‘the freedom and pluralism of the media shall be respected.

    356. With regard to broadcasters, such as radio stations, interference with freedom of expression and information takes the particular form of interference with freedom of the media or freedom of broadcasting, specifically protected by Article 11(2) of the Charter (see, to that effect, judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 83).

    ...

    360. Thus, as regards Article 10 ECHR, which corresponds to Article 11 of the Charter and the interpretation of which by the European Court of Human Rights must, in accordance with Article 52(3) of the Charter, be taken into consideration when interpreting Article 11 thereof, that court stated that Article 10 ECHR guarantees freedom of expression and information to everyone and applies not only to the content of the information but also the means of dissemination, since any restriction imposed on those means interferes with the right to receive and impart information (see, to that effect, ECtHR, 28 September 1999, Öztürk v. Turkey, CE:ECHR:1999:0928JUD002247993, § 49 and the case-law cited).

    361. As is apparent from the explanations relating to Article 11 of the Charter, which must be taken into account in interpreting that article, the limitations which may be imposed on the right to freedom of expression may not therefore exceed those provided for in Article 10(2) ECHR. The legitimate grounds for interfering with the exercise of the right to freedom of expression are listed in Article 10(2) ECHR and relate to national security, territorial integrity and public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the need to prevent the disclosure of information received in confidence and the need to maintain the authority and impartiality of the judiciary. That list is exhaustive (ECtHR, 15 March 2022, OOO Memo v. Russia, CE:ECHR:2022:0315JUD000284010, § 37). The restrictions which Member States may impose on the right to freedom of expression are, moreover, without prejudice to those which EU competition law may impose on the ability of Member States to introduce the licensing schemes referred to in the third sentence of Article 10(1) ECHR.

    362. Accordingly, any national measure limiting or restricting broadcasters’ access to radio frequencies is liable to interfere with their right to freedom of the media associated with freedom of broadcasting and thus falls within the scope of Article 11 of the Charter.

    363. In the present case, Paragraph 48(7) of the Law on media services, in so far as it has the effect of restricting the access of broadcasters, in this case Klubrádió, to radio frequencies, thereby preventing them from continuing to broadcast their radio content on a radio frequency, entails an interference with the right of the operators concerned to exercise the freedom of broadcasting, which is a component of freedom of the media, enshrined in Article 11 of the Charter.

    ...

    365.  It is true that the rights and freedoms enshrined in Article 11 of the Charter are not absolute rights, but must be considered in relation to their function in society (judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 47 and the case-law cited).

    ...

    367. However, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms guaranteed by the Charter must be provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

    ...

    369. In that regard, it should be borne in mind that Article 11 of the Charter 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. In such a context, interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary (judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 49 and the case-law cited), meaning that the objective pursued cannot reasonably be achieved in an equally effective manner by other means less prejudicial to those rights and freedoms (see, to that effect, judgment of 5 December 2023, Nordic Info, C‑128/22, EU:C:2023:951, paragraph 77 and the case-law cited).

    ...

    371. Since, as is apparent from the considerations set out in paragraphs 177 and 181 of this judgment, Paragraph 48(7) of the Law on media services goes beyond what is necessary in order to attain the objective of general interest which it pursues in the light of the requirements of the applicable directives, the ensuing interference with the right of the operators concerned to exercise the freedom of broadcasting cannot be regarded as proportionate in the light of Article 52(1) of the Charter.

    372. Therefore, by not allowing the Media Council any discretion to assess, when examining applications for renewal of the right to provide media services submitted by providers which have committed a repeated infringement, the seriousness of that infringement and whether it warrants the interference with the rights and freedoms enshrined in Article 11 of the Charter entailed by the refusal to renew that right, Paragraph 48(7) of the Law on media services is liable to lead to the adoption of decisions that are contrary to Article 11, an example of which is the refusal decision.

    ...

    375. Consequently, as the Commission argues, the refusal decision is disproportionate to the objective pursued and to the seriousness of the ensuing interference with Klubrádió’s right to freedom of the media, with the result that, regardless of the context in which that decision was taken, it infringes Article 11 of the Charter.

    ...

    378. However, in the light of the findings made in the context of the complaint alleging breach of the principles of transparency and proportionality by the invalidity decision and the rules governing the call for tenders underpinning the adoption of that decision, it must be held that, as the Commission submits, the conditions flowing from Article 52(1) of the Charter are not satisfied in the present case.

    ...

    381. Therefore, the complaints alleging infringement of Article 11 of the Charter are well founded.

    382.  In the light of the foregoing considerations, the Court upholds those complaints and declares that Hungary has failed to fulfil its obligations under Article 11 of the Charter on account of, first, the adoption of the refusal decision and Paragraph 48(7) of the Law on media services and, secondly, the adoption of the invalidity decision and the call for tenders at issue.
     

  • Paragraphs referring to EU Charter (original language)