CJEU Case C-92/23 / Opinion
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CJEU Case C-92/23 / Opinion
Key facts of the case:
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
Outcome of the case:
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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Paragraphs referring to EU Charter
23. 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.
24. 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.
25. 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.
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35. 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.
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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)
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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.
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Paragraphs referring to EU Charter (original language)