Contents
Judgment of the Court (Second Chamber)13 November 2025note(Failure of a Member State to fulfil obligations — Free movement of goods — Article 35 TFEU — Quantitative restrictions on exports — Measures having equivalent effect — Construction materials — Obligation to notify exports — State’s right of pre-emption — Article 36 TFEU — Justification — Public security — Supply of construction materials for critical infrastructure — Control of exports to third countries — Exclusive competence of the Union — Common commercial policy — Regulation (EU) 2015/479 — Common rules for exports — Directive (EU) 2015/1535 — Information procedure in the field of technical regulations and of rules on Information Society services)In Case C‑499/23,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 4 August 2023,European Commission, represented by G. Gattinara and K. Talabér-Ritz, acting as Agents,vHungary, represented by M.Z. Fehér and K. Szíjjártó, acting as Agents,THE COURT (Second Chamber),composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second Chamber, F. Schalin, M. Gavalec (Rapporteur) and Z. Csehi, Judges,Advocate General: M. Szpunar,Registrar: C. Di Bella, Administrator,having regard to the written procedure and further to the hearing on 6 November 2024,after hearing the Opinion of the Advocate General at the sitting on 6 February 2025,gives the following
Judgment
1By its application, the European Commission seeks a declaration from the Court that, by introducing a procedure applicable to the export of raw materials and construction materials, Hungary has failed to fulfil its obligations under:– Articles 35 and 36 TFEU,– Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU, and– Article 5(1) and Article 6(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
Legal context
International law
2By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 11; ‘the GATT 1994’).
3Article XI of the GATT 1994, entitled ‘General Elimination of Quantitative Restrictions’, provides‘1. No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.2. The provisions of paragraph 1 of this Article shall not extend to the following:(a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party;…’
European Union law
Directive 2008/114/EC
4Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection (OJ 2008 L 345, p. 75), which applies in the case ratione temporis, was repealed with effect from 18 October 2024 by Directive (EU) 2022/2557 of the European Parliament and of the Council of 14 December 2022 on the resilience of critical entities and repealing Council Directive 2008/114/EC (OJ 2022 L 333, p. 164). Recitals 3 and 5 of Directive 2008/114 stated as follows:(3) In December 2005 the Justice and Home Affairs Council called upon the Commission to make a proposal for a European programme for critical infrastructure protection (“EPCIP”) and decided that it should be based on an all-hazards approach while countering threats from terrorism as a priority. Under this approach, man-made, technological threats and natural disasters should be taken into account in the critical infrastructure protection process, but the threat of terrorism should be given priority.…(5) This Directive constitutes a first step in a step-by-step approach to identify and designate [European Critical Infrastructures] and assess the need to improve their protection. As such, this Directive concentrates on the energy and transport sectors and should be reviewed with a view to assessing its impact and the need to include other sectors within its scope, inter alia, the information and communication technology (“ICT”) sector.’
5Article 2 of that directive provided:‘For the purpose of this Directive:(a) “critical infrastructure” means an asset, system or part thereof located in Member States which is essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions;(b) “European critical infrastructure” or “ECI” means critical infrastructure located in Member States the disruption or destruction of which would have a significant impact on at least two Member States. The significance of the impact shall be assessed in terms of cross-cutting criteria. This includes effects resulting from cross-sector dependencies on other types of infrastructure;…’
6Article 3 of that directive, entitled ‘Identification of ECIs’, provided, in paragraph 1 thereof:‘Pursuant to the procedure provided in Annex III, each Member State shall identify potential ECIs which both satisfy the cross-cutting and sectoral criteria and meet the definitions set out in Article 2(a) and (b).The Commission may assist Member States at their request to identify potential ECIs.The Commission may draw the attention of the relevant Member States to the existence of potential critical infrastructures which may be deemed to satisfy the requirements for designation as an ECI.Each Member State and the Commission shall continue on an ongoing basis the process of identifying potential ECIs.’
Directive 2015/1535
7Article 1(1) of Directive 2015/1535 provides:‘For the purposes of this Directive, the following definitions apply:(a) “product” means any industrially manufactured product and any agricultural product, including fish products;…(c) “technical specification” means a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.The term “technical specification” also covers production methods and processes used in respect of agricultural products, as referred to in the second subparagraph of Article 38(1) [TFEU], products intended for human and animal consumption, and medicinal products as defined in Article 1 of Directive 2001/83/EC of the European Parliament and of the Council [of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)], as well as production methods and processes relating to other products, where these have an effect on their characteristics;(d) “other requirements” means a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;…(g) “draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’
8Article 5(1) of that directive provides:‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned to the Commission, should knowledge of such text be necessary to assess the implications of the draft technical regulation.Member States shall communicate the draft technical regulation again to the Commission under the conditions set out in the first and second subparagraphs of this paragraph if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.…The Commission shall immediately notify the other Member States of the draft technical regulation and all documents which have been forwarded to it; it may also refer this draft, for an opinion, to the Committee referred to in Article 2 of this Directive and, where appropriate, to the committee responsible for the field in question.…’
9Article 6 of that directive provides:1. Member States shall postpone the adoption of a draft technical regulation for three months from the date of receipt by the Commission of the communication referred to in Article 5(1).…7.Paragraphs 1 to 5 shall not apply in cases where:(a) for urgent reasons, occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, a Member State is obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultations being possible; or(b) for urgent reasons occasioned by serious circumstances relating to the protection of the security and the integrity of the financial system, in particular the protection of depositors, investors and insured persons, a Member State is obliged to enact and implement rules on financial services immediately.In the communication referred to in Article 5, the Member State shall give reasons for the urgency of the measures taken. The Commission shall give its views on the communication as soon as possible. It shall take appropriate action in cases where improper use is made of this procedure. The European Parliament shall be kept informed by the Commission.’
Regulation (EU) 2015/479
10Recitals 3 to 6 of Regulation (EU) 2015/479 of the European Parliament and of the Council of 11 March 2015 on common rules for exports (OJ 2015 L 83, p. 34), state:(3) Common rules should be laid down for exports from the Union.(4) Exports are almost completely liberalised in all the Member States. It is therefore possible to accept as a Union principle that exports to third countries are not subject to any quantitative restriction, subject to the exceptions provided for in this Regulation and without prejudice to such measures as Member States may take in conformity with the Treaty.(5) The Commission should be informed if, as a result of unusual developments on the market, a Member State considers that protective measures might be necessary.(6) It is essential that examination should take place at Union level, in particular on the basis of any such information, of export terms and conditions, of export trends, of the various aspects of the economic and commercial situation, and of the measures, if any, to be taken.’
11Article 1 of the regulation provides:‘The exportation of products from the Union to third countries shall be free, that is to say, they shall not be subject to any quantitative restriction, with the exception of those restrictions which are applied in conformity with this Regulation.’
12Chapter III of that regulation, entitled ‘Protective measures’, contains Articles 5 to 7 thereof. Article 5 provides:1. In order to prevent a critical situation from arising on account of a shortage of essential products, or to remedy such a situation, and where Union interests call for immediate intervention, the Commission, acting at the request of a Member State or on its own initiative, and taking account of the nature of the products and of the other particular features of the transactions in question, may make the export of a product subject to the production of an export authorisation, the granting of which shall be governed by such provisions and subject to such limits as the Commission shall lay down in accordance with the examination procedure referred to in Article 3(2), or, in cases of urgency, in accordance with Article 3(3).2. The European Parliament, the Council and the Member States shall be notified of the measures taken. Such measures shall take effect immediately.3. The measures may be limited to exports to certain countries or to exports from certain regions of the Union. They shall not affect products already on their way to the Union frontier.4. Where intervention by the Commission has been requested by a Member State, the Commission shall take a decision pursuant to paragraph 1 within a maximum of five working days of the date of receipt of such request.5. Where the Commission has acted pursuant to paragraph 1 of this Article, it shall, not later than 12 working days following the date of entry into force of the measure which it has taken, decide whether to adopt appropriate measures as provided for in Article 6. If, at the end of six weeks following the date of entry into force of the measure, no measures have been adopted, the measure in question shall be deemed revoked.’
13Article 6 of that regulation provides:1.Where the interests of the Union so require, the Commission may, acting in accordance with the examination procedure referred to in Article 3(2), adopt appropriate measures:(a) to prevent a critical situation from arising owing to a shortage of essential products, or to remedy such a situation;(b) to allow international undertakings entered into by the Union or all the Member States to be fulfilled, in particular those relating to trade in primary products.2. The measures referred to in paragraph 1 may be limited to exports to certain countries or to exports from certain regions of the Union. They shall not affect products already on their way to the Union frontier.3.When quantitative restrictions on exports are introduced, account shall be taken in particular of:(a) the volume of goods exported under contracts concluded on normal terms and conditions before the entry into force of a protective measure within the meaning of this Chapter and notified by the Member State concerned to the Commission in conformity with its national laws; and(b) the need to avoid jeopardising the achievement of the aim pursued in introducing quantitative restrictions.’
14Article 10 of Regulation 2015/479, contained in Chapter IV thereof, entitled ‘Transitional and final provisions’, is worded as follows:‘Without prejudice to other Union provisions, this Regulation shall not preclude the adoption or application by a Member State of quantitative restrictions on exports justified on grounds of public morality, public policy or public security, or of protection of health and life of humans, animals and plants, of national treasures possessing artistic, historic or archaeological value, or of industrial and commercial property.’
Hungarian law
Decree No 402/2021
15Article 1 of the a gazdaság újraindítása érdekében meghozandó, az építőipari ellátásbiztonság szempontjából stratégiai jelentőségű nyersanyagok és termékek kivitelével kapcsolatos regisztrációs eljárásról és egyéb intézkedésekről szóló 402/2021. (VII. 8.) kormányrendelet (Government Decree No 402/2021 (VII. 8.) on registration procedures and other measures to be taken to relaunch the economy in relation to the export of raw materials and products of strategic importance for security of supply in the construction sector), in the version in force on the expiry of the deadline fixed in the reasoned opinion (‘Decree No 402/2021’), provides:1.Raw materials and products of strategic importance for security of supply in the construction sector, as defined in Annex 1 (together, “construction materials”) may, subject to the exception provided for in paragraph 2, be(a) sold or(b) exported from the territory of Hungary to other countriesafter notification (“notification”) with the Minister for the National Economy (“the Minister”) and acknowledgement of receipt of the notification.2. This Decree shall not apply to construction materials in transit through the territory of Hungary.’
16Article 3 of that decree provides:1. On receipt of the notification, the Minister shall verify whether it complies with the formal requirements laid down in Article 2.…2. If the notification complies with the formal requirements laid down in Article 2, the Minister shall forward the notifications together with the information referred to in paragraph 1(b), as appropriate, to the Government Commissioner responsible for the coordination of measures relating to the construction economy (‘the Government Commissioner’), who shall assess, in consultation with the ministers concerned, whether the sale or export of construction materials to other countries significantly impedes or renders impossible the construction, operation, maintenance or development of critical infrastructure, thereby jeopardising public services or posing a risk to security of supply in the construction sector.3. Within seven working days of the notification being sent, the Government Commissioner shall inform the Minister in writing of the existence of the circumstances referred to in paragraph 2, of his or her position on the circumstances referred to in paragraph 2 and, if those circumstances exist, shall also inform the Minister responsible for the supervision of State assets of his or her proposal for the exercise of the right of pre-emption and purchase; the Minister shall exercise the Hungarian State’s right of pre-emption and purchase in accordance with Article 5.4.No later than 10 working days following receipt of the notification, the Minister shall:(a) acknowledge receipt in writing of the notification if the Minister responsible for the supervision of State assets is not exercising the Hungarian State’s right of pre-emption and purchase;(b) if the Minister responsible for the supervision of State assets is exercising the right of pre-emption and purchase, inform the notifier that the Hungarian State is exercising the right of pre-emption or purchase of the construction materials specified in the notification and terminate the notification procedure; or(c) acknowledge receipt of the notification in writing.4a. The notification and the acknowledgement of receipt shall accompany the consignment and shall be made available by the notifier to the transport operator or organiser.…’
17Under Article 6/A of the decree:‘If the notifier has not complied with the notification obligation laid down in this Decree or does not have an acknowledgement of receipt, the police and the State tax and customs authorities shall impose an administrative fine of up to 40% of the value excluding [value added tax (VAT)] of the construction materials that have not been notified or for which there is no acknowledgement of receipt.’
18Article 9 of the decree reads as follows:1. Subject to the exception provided for in paragraph 2, the present Decree shall enter into force on the day following that of its publication.2. Article 10 shall enter into force on the fifteenth day following the publication of the present Decree.’
19Article 11 of Decree No 402/2021 provides:‘The notification obligation referred to in Article 2 shall apply to exports after the fifth working day following the entry into force of this Decree.’
20Article 12 of that decree provides:‘The draft of the present Decree has been the subject of prior notification in accordance with Articles 5 to 7 of Directive [2015/1535].’
Government Decision No 1459/2021
21Paragraph 2 of the az építésgazdasági intézkedések összehangolásáért felelős kormánybiztos kinevezéséről és feladatairól szóló 1459/2021. (VII. 14.) kormányrendelet (Government Decision No 1459/2021 (VII. 14.), concerning the appointment and functions of the Government Commissioner responsible for coordinating construction economy measures), provides:‘The Government Commissioner:(a) shall be responsible for coordinating the construction economy measures taken by the government in the context of the relaunch of the economy, and in particular:(aa) establishing the notification procedure relating to exports of construction materials and implementing the measures necessary for the exercise of the State’s right of pre-emption and of purchase;(ab) implementing the measure relating to the notification of the transport of construction materials,…’
Pre-litigation procedure
22On 30 June 2021, in the context of the notification procedure provided for by Directive 2015/1535, Hungary notified the Commission of a draft government decree on measures to be taken to relaunch the economy with regard to the export of raw materials and products of strategic importance for security of supply in the construction sector (‘the notified draft’).
23On 8 July 2021, in order to enable it to assess the notified draft in the light of the relevant provisions of EU law, the Commission requested additional information from that Member State.
24On the same day, Decree No 402/2021 was published in Hungary’s official journal. The wording of that decree’s provisions was not identical to that of the notified draft.
25On 16 July 2021, the Commission asked Hungary for information concerning the publication of that decree.
26On 22 July 2021, that Member State informed the Commission that Decree No 402/2021 differed in scope and content from the notified draft.
27By letter of 29 July 2021, the Commission informed that Member State that it considered that both the failure to notify the draft decree and the failure to comply with the obligation to postpone adoption of Decree No 402/2021, in breach, respectively, of Articles 5 and 6 of Directive 2015/1535 constituted a substantial procedural defect rendering the provisions of the national technical regulations inapplicable.
28In its response of 2 September 2021, Hungary justified the promulgation of Decree No 402/2021 without prior notification to the Commission by submitting that it faced an urgent situation in the context of the COVID-19 pandemic and the worldwide shortage of raw materials which had ensued and had seriously affected construction work in Hungary. In that respect, the decree was intended to ensure that stocks of materials and products essential for security of supply in the construction sector remained available in that Member State and that domestic needs could be met in order to guarantee the security of critical infrastructure.
29The Commission issued Hungary with a letter of formal notice on 23 September 2021. That letter asserted that, by adopting Decree No 402/2021 and subsequent amendments thereto and Government Decision No 1459/2021, that Member State had failed to fulfil its obligations under Articles 35 and 36 TFEU, Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU, and Article 5(1) and Article 6(1) of Directive 2015/1535.
30In its reply to that letter of formal notice, by letter of 23 November 2021, Hungary contested those allegations.
31Since it was not convinced by the arguments put forward by that Member State, the Commission sent it a reasoned opinion on 6 April 2022, in which the allegations in question were reiterated.
32By letter of 13 June 2022, that Member State replied to the reasoned opinion, submitting that the alleged infringements were unfounded.
33Accordingly, the Commission decided, on 4 August 2023, to bring the present action.
The action
34In support of its action, the Commission relies on three complaints alleging the infringement, first, of Articles 35 and 36 TFEU, second, of Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU and, third, of Article 5(1) and Article 6(1) of Directive 2015/1535.
35Hungary contends that the action for failure to fulfil obligations should be dismissed.
The first complaint, alleging an infringement of Articles 35 and 36 TFEU
Arguments of the parties
36The Commission submits that Decree No 402/2021 constitutes a measure having equivalent effect to a quantitative restriction, within the meaning of Article 35 TFEU, in that it lays down, first, an obligation to notify exports of constitution materials and, secondly, the possibility, for the Hungarian State, to exercise a right of pre-emption and purchase in respect of those construction materials, on the proposal of the Government Commissioner, where the sale or export of construction materials to other countries significantly impedes or renders impossible the construction, operation, maintenance or development of critical infrastructure, thereby jeopardising public services or posing a risk to security of supply in the construction sector.
37Decree No 402/2021 must be classified as such notwithstanding the circumstances relied on by Hungary, namely that, first, the notification procedure laid down by that decree is to be completed within a maximum period of two working days; second, on the facts, the Hungarian state has not exercised its right of pre-emption and purchase; and, third, that the competent Hungarian authorities do not apply the penalties provided for in the event of failure to comply with the notification obligation.
38Decree No 402/2021 establishes, in law, within that Member State, a difference in treatment between its domestic trade and its export trade in construction materials. A national measure does not escape the prohibition set out in Articles 34 and 35 TFEU solely because the infringement it creates is of little importance, the quantitative restriction engendered by that measure is of relatively minor economic importance or that measure affects imports and exports or economic operators only to a limited extent.
39In that regard, the Commission submits that the effects of a measure are not limited to the way in which it is implemented by the national authorities. The mere fact that provisions were adopted providing for the possibility of restricting exports to other Member States by the introduction of a right of pre-emption and purchase and the possibility of delaying exports up to 10 working days would, in themselves, have a deterrent effect on the traders subject to the measure.
40That institution takes the view that the effect of Decree No 402/2021 on the free movement of goods is neither too uncertain nor indirect, since that decree clearly guarantees a right of pre-emption or purchase to the Hungarian State after an assessment of the export notifications.
41As regards a possible justification for Decree No 402/2021 under the provisions of Article 36 TFEU, the Commission recalls that exceptions relating to public policy and public security constitute derogations from the fundamental principle of the free movement of goods which must be interpreted strictly and the scope of which cannot be determined unilaterally by the Member States without any review being undertaken by the EU institutions. Those derogations may be relied on by a Member State only if there is a genuine and sufficiently serious threat affecting a fundamental interest of society.
42In response to Hungary’s argument that the main objective of Decree No 402/2021 is to protect the security of supply of construction materials to critical infrastructure, the Commission submits that, in order to serve as a valid justification for a restrictive measure, such a ground must relate to objective circumstances connected with the requirements of public security, within the meaning of Article 36 TFEU, and must not be generally applicable nor imposed for economic and social reasons.
43The Commission maintains in that regard that such a measure, justified on grounds of public security, must comply with the principle of proportionality, which requires that the means used by the Member States must be limited to what is actually appropriate and necessary to attain the legitimate objective pursued. Furthermore, the Commission recalls that a restrictive measure can be regarded as appropriate for securing the achievement of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner, which must be proven by the Member State concerned.
44Thus, first, the Commission considers that Hungary has not demonstrated that the measures provided for by Decree No 402/2021 were appropriate for attaining the objectives pursued. As regards the scope of that decree, it is not limited to construction materials for which a supply risk has been identified or to materials which are actually necessary for critical infrastructure. Furthermore, the development of the Hungarian construction sector has been relatively stable since 2016 and, during the two years following the entry into force of that decree, the Hungarian State has not exercised its right of pre-emption and purchase.
45Second, the Commission observes that, in accordance with the principle of proportionality, a justified and appropriate system of prior control must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily. However, Decree No 402/2021 does not lay down such objective and non-discriminatory criteria.
46Moreover, in the Commission’s view, the control of construction materials and their exports, as well as the collection of information relating thereto, could be carried out by less intrusive means, for example by imposing an obligation to report the relevant data in that regard. Accordingly, that institution considers that Hungary has also failed to demonstrate that the measures imposed by the contested decree do not go beyond what is necessary to attain the objective pursued and that it must therefore be criticised for not having considered such alternatives.
47Hungary submits that the provisions of Decree No 402/2021 do not amount to a measure having equivalent effect to a quantitative restriction and therefore do not fall within the scope of the prohibition laid down in Article 35 TFEU. It argues that the aim of the decree is to enable the competent Hungarian authorities, by imposing a notification obligation, to monitor effectively the stocks of construction materials of strategic importance for national critical infrastructure and to gather information on the state of those stocks as well as deliveries. As a result of that notification obligation, those authorities have a complete picture, in real time, of the evolution of those stocks and, therefore, are able to take the necessary measures to avoid a critical situation.
48That Member State considers that the effectiveness of the provisions laid down in Decree No 402/2021 is demonstrated by the fact that, since their entry into force, the Hungarian State has never been placed in a situation where, due to a shortage of construction materials, it has had to exercise its right of pre-emption or purchase. Furthermore, those provisions do not impose a substantive obligation on operators, in practice the notification procedure is always completed within a maximum period of two working days, and the penalties provided for in the event of failure to notify are not being applied by the competent Hungarian authorities.
49According to that Member State, it is apparent from the case-law of the Court that there is an exception to the prohibition under Article 35 TFEU in respect of restrictions the effects of which must be regarded as too uncertain or too indirect. As regards the actual effects of the provisions laid down by Decree No 402/2021, it states that an examination of the data produced by the Központi Statisztikai Hivatal (Central Statistical Office, Hungary) does not support the conclusion that there has been a general reduction in export turnover for the construction materials concerned.
50In any event, Hungary considers that Decree No 402/2021 is justified on grounds of public security, within the meaning of Article 36 TFEU, since its main objective is to protect critical infrastructure by ensuring the security of the supply of construction materials to that infrastructure. Furthermore, the definition of the concept of ‘infrastructure’ laid down in that decree is, in essence, consistent with the definition in Directive 2008/114.
51That Member State adds that the objective of that decree is also to relaunch the national economy by responding to the decline in the production of construction materials, supply shortages and price increases following the crisis due to the COVID-19 pandemic. It also indirectly protects social interests such as the provision of housing and the possibility for young people to found a family.
52Recalling that the Member States have a certain margin of discretion in defining the extent of the basic needs of society and in determining the level of protection which they consider appropriate, Hungary submits that it is for the Commission to demonstrate that the provisions laid down by Decree No 402/2021 are wholly inappropriate for the purposes of the objective pursued by that national legislation, which the Commission has not done in the present case.
53As regards the proportionality of that legislation, that Member State submits that Decree No 402/2021 establishes a coherent scheme, establishing a system for monitoring construction materials, which has no actual adverse effect on trade. It maintains that the two measures provided for by that legislation, namely the notification obligation and the right of pre-emption and purchase, are clear and that the effectiveness of the first measure contributes to ensuring that the right of pre-emption or purchase is not exercised or, if it is necessary, only in the event of an emergency.
54That Member State submits that the scheme established by Decree No 402/2021 is based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned. The measures provided for by that decree are proportionate and do not go beyond what is appropriate and necessary to attain the objective pursued. In addition, less intrusive means, for example an obligation to report data on trade in construction materials, would not allow the Hungarian State to address in good time a potential critical lack of such materials.
Findings of the Court
–Whether there is a restriction falling within the scope of Article 35 TFEU
55Pursuant to Article 35 TFEU, quantitative restrictions on exports and all measures having equivalent effect are prohibited between Member States.
56It is clear from the case-law of the Court that national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question, at the expense of the production or of the trade of other Member States, constitute measures having an effect equivalent to quantitative restrictions on exports (see judgments of 8 November 1979, Groenveld, 15/79, EU:C:1979:253, paragraphs 6 and 7, and of 16 December 2008, Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraph 40).
57In that context, the Court has already held that Articles 34 and 35 TFEU preclude the application to intra-EU trade of a national provision which requires, even purely as a formality, import or export licences or any other similar procedure (judgment of 15 December 1971, International Fruit Company and Others, 51/71 to 54/71, EU:C:1971:128, paragraph 9). The imposition of any special formality on export, as a result of the delay which it involves and the dissuasive effect which it has upon exporters, constitutes an obstacle to trade (see, to that effect, judgment of 16 March 1977, Commission v France, 68/76, EU:C:1977:48, paragraph 16).
58In the present case, it is necessary to examine, first of all, whether the provisions of Decree No 402/2021 are specifically intended to restrict the patterns of exports of construction materials, within the meaning of the case-law referred to in paragraph 56 of the present judgment.
59In that regard, it should be noted that the provisions of that decree lay down an obligation to notify exports of construction materials, which carries an administrative penalty in the event of failure by operators to comply with that obligation, whereas it is common ground between the parties that no such obligation and penalty are provided for by Hungarian law concerning transactions for the sale of construction materials on national territory.
60In addition, under the provisions of that decree, following notification by an operator of its intention to export construction materials, the competent Hungarian authorities have ten working days within which to exercise a right of pre-emption and purchase of those materials, if they consider that their sale or export abroad significantly impedes or renders impossible the construction, operation, maintenance or development of critical infrastructure on national territory.
61It follows that, first, by imposing an additional administrative burden on operators wishing to export such construction materials, secondly, by providing that a failure to comply with the notification obligation entails a substantial administrative penalty, thirdly, by giving rise to an extension of delivery periods of up to ten working days and, fourthly, by definitively preventing an export transaction in the event of the exercise of the right of pre-emption and purchase for the benefit of the Hungarian State, Decree No 402/2021 has as its object the restriction of exports of construction materials, by establishing a difference in treatment between the domestic trade and the export trade in those products and by providing an advantage for the domestic market of that Member State.
62In view of that explicit object of restricting patterns of exports, that decree must be classified as a ‘measure having equivalent effect to quantitative restrictions on exports’, within the meaning of Article 35 TFEU, without it being necessary to examine the effects of those provisions.
63In any event, as regards, for the sake of completeness, the assessment of the effects of the provisions of Decree No 402/2021, it should be borne in mind that, according to settled case-law, all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are considered as measures having equivalent effect to quantitative restrictions within the meaning of that provision (see, to that effect, judgment of 19 January 2023, CIHEF and Others, C‑147/21, EU:C:2023:31, paragraph 37 and the case-law cited).
64In addition, any restriction, even of minor importance, on one of the fundamental freedoms provided for by the FEU Treaty is prohibited by that treaty (see, to that effect, judgment of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 52 and the case-law cited).
65In the present case, as regards the circumstance referred to by Hungary, according to which, since the entry into force of Decree No 402/2021, that Member State has not experienced any shortage of construction materials requiring the exercise of its right of pre-emption or purchase, it should be noted that that fact may be due precisely to the fact that operators have been deterred from exporting construction materials.
66Furthermore, the lack of deterrent effect of the provisions of that decree is also not demonstrated by the data in the table produced by Hungary, in Annex B.1 to its defence, which indicates, as regards the two years following the entry into force of that decree compared with the two years preceding that entry into force, an increase in the volume of exports for nine of the fifteen construction materials covered by that decree, and a reduction in that volume for only six of those materials. In the absence of other evidence, it cannot be ruled out that the volume of exports would have been greater if Decree No 402/2021 had not existed. Those data make it possible to conclude only that that decree does not have the effect of preventing all exports of construction materials falling within its scope (see, by analogy, judgment of 17 September 2020, Hidroelectrica, C‑648/18, EU:C:2020:723, paragraph 32).
67It follows that the provisions of Decree No 402/2021 are capable of having a definite effect on export trade, both directly, in particular by the administrative burden imposed on operators by the notification obligation and by the extension of delivery periods in the event of export, and indirectly, since the obligations laid down by those provisions are liable to deter those operators from exporting construction materials. Therefore, and irrespective of their restrictive object, the restrictive effects of those provisions cannot be regarded as too uncertain or too indirect for them to be considered, in accordance with the case-law of the Court stemming from the judgments of 7 March 1990, Krantz (C‑69/88, EU:C:1990:97, paragraphs 10 and 11), and of 13 October 1993, CMC Motorradcenter (C‑93/92, EU:C:1993:838, paragraphs 10 to 12), not to constitute a restriction within the meaning of Article 35 TFEU.
68It follows from the foregoing that Decree No 402/2021 constitutes a measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 35 TFEU. That measure is incompatible with the obligations arising under the latter provision unless it can be objectively justified.
–Whether there is a justification under Article 36 TFEU
69A national measure contrary to Article 35 TFEU may be justified on one of the public interest grounds listed in Article 36 TFEU and by an overriding requirement in the public interest, provided that the objective which it pursues is legitimate and that the measure is proportionate to that objective (see, to that effect, judgments of 16 December 2008, Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraph 45; of 17 September 2020, Hidroelectrica, C‑648/18, EU:C:2020:723, paragraph 34; and of 19 January 2023, CIHEF and Others, C‑147/21, EU:C:2023:31, paragraph 48).
70To that end, it must be ascertained whether the measure is appropriate for ensuring the attainment of that objective and does not go beyond what is necessary in order to attain it. It should also be recalled in that connection that national legislation is appropriate for ensuring attainment of the objective relied on only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 64 and the case-law cited).
71As regards, in particular, a national measure which, according to the Member State concerned, is justified by an objective of public security, the Court has already held that, for the purposes of Article 36 TFEU, that measure must be actually justified by objective circumstances corresponding to the needs of public security (see, to that effect, judgment of 10 July 1984, Campus Oil and Others, 72/83, EU:C:1984:256, paragraph 36).
72Likewise, the Court has stated that, while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, those grounds must, in the EU context and, in particular, as derogations from a fundamental freedom enshrined in the TFEU, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the EU institutions. Thus, public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, to that effect, judgments of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 91 and the case-law cited, and of 13 July 2023, Xella Magyarország, C‑106/22, EU:C:2023:568, paragraphs 66 and 67).
73In addition, the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and by specific evidence substantiating its arguments (judgments of 7 June 2007, Commission v Belgium, C‑254/05, EU:C:2007:319, paragraph 36 and the case-law cited, and of 19 January 2023, CIHEF and Others, C‑147/21, EU:C:2023:31, paragraph 53 and the case-law cited).
74In the present case, Hungary submits that the measures provided for by Decree No 402/2021 are justified on grounds of public security, in particular the security of supply of construction materials to critical infrastructure.
75In that regard, the Court has already held that, in the petroleum, telecommunications and energy sectors, the objective of ensuring the security of supply of such products or the provision of such services, in the event of a crisis, on the territory of the Member State concerned, may constitute a ground of public security. However, the same is not true as regards the security of supply of basic raw materials at local level in the construction sector, which cannot fall within the legitimate objective of ensuring public security, unless it is demonstrated that the shortage of such raw materials constitutes a genuine and sufficiently serious threat affecting a fundamental interest of society (see, to that effect, judgment of 13 July 2023, Xella Magyarország, C‑106/22, EU:C:2023:568, paragraphs 68 and 69).
76However, in the present case, Hungary has not established that, having regard to objective circumstances, Decree No 402/2021 actually and specifically meets requirements of public security.
77First, that decree is capable of applying to a large number of infrastructures in Hungary, without it having been established that each of them is, in fact, a fundamental interest to society, given that that decree does not contain either the list of infrastructure of such interest or a definition, directly or by reference to another legal act, of the concept of ‘critical infrastructure’ which would make it possible to identify, clearly and exhaustively, the infrastructure concerned.
78Hungary submits that, in accordance with the principle of the hierarchy of rules of Hungarian law, the scope of that concept for the purposes of Decree No 402/2021 must be regarded as being that defined in Article 1(j) of the a létfontosságú rendszerek és létesítmenyek azonosításáról, kijelöléséről és védelméről szóló 2012. évi CLXVI. törvény (Law No CLXVI of 2012 on the census, the designation and protection of vital systems and installations, Magyar Közlöny 2012. évi 154. száma, p. 26099). Since that law transposed Directive 2008/114 into Hungarian law, the latter definition corresponds to the definition in Article 2(a) of that directive. Consequently, the concept of ‘critical infrastructure’, within the meaning of Decree No 402/2021, is, Hungary submits, based on objective circumstances.
79In that regard, it is sufficient to note, first, that it is apparent from the documents before the Court that Article 1(j) of that law, in the version in force on the expiry of the period laid down in the reasoned opinion, gave a broad definition of the concept of ‘critical infrastructure’ and that Annex 1 to that law listed, as being sectors of activity likely to include a critical element of the system, inter alia, the energy, transport, health, social security, defence and internal security sectors, in which infrastructure could be classified as ‘critical’ by the competent Hungarian authorities.
80Secondly, as the Advocate General observes in paragraphs 43 and 44 of his Opinion, Directive 2008/114 is irrelevant in the present case since Decree No 402/2021 does not fall within its scope of application. It is clear from Article 1 of that directive, read in the light of recitals 5 and 9 thereof, that it merely establishes a procedure for the identification and designation of critical infrastructure of the European Union in the energy and transport sectors, as well as for the assessment of the need to improve their protection, whereas the scope of Decree No 402/2021 is different and wider, in that it covers other sectors. The scope of that decree does not cover the protection of existing critical infrastructure, but all activities connected with the construction, operation, maintenance or development of infrastructure on national territory.
81Secondly, as the Commission correctly submits, the links between the various categories of construction materials listed in Decree No 402/2021 and the protection of the critical infrastructure to which it refers are not apparent either from that decree or, in general, from the explanations provided by Hungary in the present proceedings. Similarly, that Member State has not specified the point from which it should be considered, for each of those categories, that there is a shortage of construction materials representing a genuine and sufficiently serious threat to the security of supply to critical infrastructure.
82Thirdly, it must be observed that Decree No 402/2021 is not intended to achieve security of supply of construction materials to critical infrastructure in a consistent and systematic manner, since it does not lay down detailed rules for taking into account sales of those materials on the national market and their imports into Hungary in order to determine stock and shortage levels.
83It follows that it is necessary to reject Hungary’s arguments that the restrictive measures contained in Decree No 402/2021 are justified on grounds of public security, within the meaning of Article 36 TFEU, on the basis of the security of supply to critical infrastructure of construction materials.
84In so far as Hungary asserts that that decree also contributes to reviving the national economy, by addressing the fall in the production of construction materials and the increase in their prices following the crisis connected with the COVID-19 pandemic, and safeguarding social interests such as the construction of housing and the possibility for young people to found a family, it must be recalled, first, that purely economic grounds connected with the promotion of the national economy or its proper functioning cannot serve as justification for an obstacle to one of the fundamental freedoms guaranteed by the Treaties (judgment of 13 July 2023, Xella Magyarország, C‑106/22, EU:C:2023:568, paragraph 64 and the case-law cited).
85Second, as regards the social grounds, Hungary has not adduced any evidence capable of substantiating those assertions.
86In those circumstances, the restrictive measures contained in Decree No 402/2021 cannot be justified under Article 36 TFEU.
87Accordingly, the Commission’s first complaint must be upheld in so far as it relates to the infringement of Article 35 TFEU.
The second complaint, alleging an infringement of Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU
Arguments of the parties
88Indicating that the restrictions laid down in Decree No 402/2021 apply to exports of construction materials to third countries and thus constitute a measure falling within the common commercial policy, the Commission submits that Hungary has infringed Article 3(1)(e) TFEU, under which the European Union has exclusive competence in the area of the common commercial policy and Article 2(1) TFEU, which provides that only the European Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the European Union or to implement EU acts.
89Hungary submits that Decree No 402/2021 falls within the scope of Article 10 of Regulation 2015/479, which provides that restrictive measures on exports adopted by a Member State may be justified on one of the public interest grounds listed in that Article 10.
90However, the Commission considers that the concept of ‘public security’ in Article 10 of Regulation 2015/479 corresponds to that provided for in Article 36 TFEU and that that decree does not satisfy the criteria laid down in that Article 10.
91According to the Commission, since EU law must be interpreted, as far as possible, in a manner consistent with the European Union’s international obligations, including those arising from international agreements binding on both the European Union and the Member States, in the present case Hungary should justify, in the light of one of the relevant exceptions in the GATT 1994, that it may derogate from the prohibition of restrictions on exports of products to other WTO Member States, listed in Article XI(1) of that agreement.
92It states that, admittedly, the exception provided for in Article XI(2)(a) of the GATT 1994 authorises temporary export restrictions, including quantitative restrictions, in order to prevent or remedy critical shortages of essential products, but those situations do not fall within the scope of Article 10 of Regulation 2015/479. If such a situation arises, the Member States must inform the Commission of the problems they face, and it is for the Commission to act under Articles 5 and 6 of that regulation.
93The Commission adds that protective measures adopted under Articles 5 and 6 of that regulation may be limited to certain destinations or to exports from certain regions of the European Union. Protective measures taken ‘in the interest of the Union’ could therefore also serve to protect the needs of a Member State.
94Hungary submits that Decree No 402/2021 does not infringe the European Union’s exclusive competence in the field of the common commercial policy and that that decree is compatible with Article 2(1) and Article 3(1) TFEU.
95Hungary contends that Article XI of the GATT 1994 and the Commission’s power to adopt protective measures under Articles 5 and 6 of Regulation 2015/479 do not preclude a Member State from adopting, on the basis of Article 10 of that regulation, a measure such as Decree No 402/2021.
96Hungary submits that Articles 5 and 6 of that regulation apply to measures which may be taken where the ‘interests of the Union’ so require, whereas the measures provided for by that decree relate to public security in a single Member State and not to the general interest of the European Union.
97It adds that the Commission’s argument according to which Articles 5 and 6 of Regulation 2015/479 prevent a Member State from having recourse to Article 10 of that regulation cannot be accepted, since, if that were the case, Article 10 would be rendered entirely meaningless.
98Hungary concludes that Decree No 402/2021 addresses the grounds of public security falling within the scope of Article 10 of Regulation 2015/479 and that security of supply justifies a derogation from the free movement of goods under that provision.
Findings of the Court
99Pursuant to Article 2(1) TFEU, when the Treaties confer on the European Union exclusive competence in a specific area, only the European Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the European Union or for the implementation of EU acts.
100Under Article 3(1)(e) TFEU, the European Union has exclusive competence in the area of the common commercial policy.
101The EU legislature adopted Regulation 2015/479 pursuant to that exclusive competence, with a view to establishing common rules applicable to exports. According to recital 4 of that regulation, ‘exports are almost completely liberalised in all the Member States’ and ‘it is … possible to accept as a Union principle that exports to third countries are not subject to any quantitative restriction, subject to the exceptions provided for in this Regulation and without prejudice to such measures as Member States may take in conformity with the Treaty’.
102From that perspective, Article 1 of that regulation provides that exports from the European Union to third countries are to be free, that is to say, they are not subject to quantitative restrictions, with the exception of those restrictions which are applied in accordance with that regulation.
103In the present case, it is common ground between the parties that Decree No 402/2021 is a legally binding act in an area falling within the common commercial policy and that the European Union has not empowered Hungary to adopt that decree.
104However, Hungary submits that that decree was adopted in accordance with Regulation 2015/479, in so far as it addresses grounds of public security falling within the scope of Article 10 of that regulation.
105In that respect, Article 10 of that regulation provides that, without prejudice to other provisions of EU law, the regulation is not to preclude the adoption or application by Member States of quantitative restrictions on exports on grounds of public morality, public policy or public security, or of protection of health and life of humans, animals and plants, of national treasures possessing artistic, historic or archaeological value, or of industrial and commercial property.
106As the Advocate General stated in point 61 of his Opinion, the fact Article 10 of Regulation 2015/479 and Article 36 TFEU are similarly worded suggests that the EU legislature wished to extend a Member State’s power, provided for in Article 36 TFEU, to be able to restrict exports within the European Union also to exports to third countries, and to do so under the same conditions.
107Therefore, the concept of ‘public security’ as it appears in Article 10 of Regulation 2015/479 and in Article 36 TFEU, respectively, must be understood as having the same meaning in both provisions.
108As has been held in paragraph 83 of the present judgment, Hungary’s argument that the security of supply to critical infrastructure of construction materials, which is the objective pursued by Decree No 402/2021, falls within the concept of ‘public security’ within the meaning of Article 36 TFEU is not well founded.
109Consequently, it must be held that the argument advanced by that Member State that that same objective falls within the scope of Article 10 of Regulation 2015/479 and that Decree No 402/2021 should be regarded as implementing that provision, in accordance with Article 2(1) TFEU, is also not well founded.
110In those circumstances, and without it being necessary to examine the parties’ arguments relating to the relationship between, on the one hand, Articles 5 and 6 of that regulation and, on the other hand, Article 10 thereof, or their arguments based on WTO law, the Commission’s second complaint must be upheld.
The third complaint, alleging an infringement of Article 5(1) and Article 6(1) of Directive 2015/1535
Arguments of the parties
111The Commission criticises Hungary, first, for failing to comply with the three-month standstill period laid down in Article 6(1) of Directive 2015/1535. It states that, on 30 June 2021, that Member State communicated the notified draft to it and that, therefore, by adopting Decree No 402/2021 on 8 July 2021, that is to say before the expiry on 1 October 2021 of that standstill period, that Member State infringed Article 6(1).
112Second, since Hungary failed to notify the draft decree which gave rise to Decree No 402/2021, even though that draft had undergone significant changes compared with the notified draft, the Commission submits that that Member State infringed Article 5(1) of Directive 2015/1535. It submits that a Member State must make a new notification of a draft if that draft contains significant changes compared with that which had initially been notified and that, under the third subparagraph of Article 5(1) of that directive, a change to a draft must be regarded as ‘significant’ in particular where the timetable originally envisaged for implementation is shortened.
113Hungary submits that it did not infringe Directive 2015/1535 because the urgent adoption of Decree No 402/2021 was justified on grounds of public security, within the meaning of Article 6(7)(a) of that directive.
114Hungary submits that that provision allows derogations from the requirements relating to the standstill period for urgent reasons, relating in particular to the protection of public security. It stresses that the recovery of demand for construction materials after the pandemic threatened to create a shortage in 2021 and that urgent action was therefore required to avoid such a situation.
115In addition, that Member State states that it did not notify Decree No 402/2021, in accordance with Directive 2015/1535, on account of that urgency and that it then undertook not to apply the penalties provided for by that decree in the event of failure to comply with the obligations which it contains.
Findings of the Court
116At the outset, it should be noted that it is common ground between the parties that, in the context of the formal prior notification procedure provided for by Directive 2015/1535, Hungary notified to the Commission, on 30 June 2021, as a ‘draft technical regulation’, within the meaning of that directive, a draft government decree on measures to be taken to relaunch the economy as regards the export of raw materials and products of strategic importance for security of supply in the construction sector.
117In the first place, it should be noted that, starting from the receipt of that notification by the Commission, in accordance with Article 6(1) of Directive 2015/1535, a standstill period of three months began to run, during which that draft could not be adopted.
118However, Decree No 402/2021 was published in Hungary’s official journal on 8 July 2021 and entered into force, pursuant to Article 9 thereof and with the exception of Article 10 thereof, on the day following that publication.
119The Commission, without being contradicted in that regard by Hungary, submits that Decree No 402/2021 must be regarded as constituting the final version of the notified draft.
120It must therefore be held that that decree was adopted before the expiry of the three-month standstill period, which commenced upon receipt by the Commission of the notified draft.
121Hungary submits that the urgent adoption of Decree No 402/2021 was justified on grounds of public security, within the meaning of Article 6(7)(a) of Directive 2015/1535, which allows a derogation from the obligation to comply with the three-month standstill period laid down in Article 6(1) of that directive. It submits that the recovery of demand for construction materials after the COVID-19 pandemic threatened to create a shortage in 2021 in Hungary and that urgent action was therefore required to avoid that shortage.
122That argument must be rejected.
123Pursuant to Article 6(7)(a) of Directive 2015/1535, Member States are not required to comply with that three-month standstill period where, for urgent reasons occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, they are obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultation being possible.
124The Court has already held, with regard to the first indent of Article 9(7) of Directive 98/34/EC 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 and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), the wording of which was identical to that of Article 6(7)(a) of Directive 2015/1535, which repealed and replaced Directive 98/34, that a Member State cannot rely on that exception where, on the date of adoption of the national rule, none of the situations referred to in that provision existed in that Member State (see, to that effect, judgment of 26 October 2006, Commission v Greece, C‑65/05, EU:C:2006:673, paragraph 65).
125In the present case, Hungary merely refers to a risk of a shortage of construction materials in that Member State, without establishing that that situation actually exists, as required by Article 6(7)(a) of Directive 2015/1535.
126In that regard, it is irrelevant that Hungary maintains that, having failed to notify Decree No 402/2021 to the Commission, it undertook not to apply the penalties to operators who do not comply with the obligations laid down by that decree.
127Such a commitment cannot be taken into account in order to determine whether a Member State was entitled, in a given situation, to rely on the provisions of Article 6 of Directive 2015/1535.
128In those circumstances, it must be held that Decree No 402/2021 was adopted before the expiry of the three-month standstill period, in breach of Article 6(1) of that directive.
129In the second place, in accordance with the third subparagraph of Article 5(1) of Directive 2015/1535, Member States are to communicate the draft technical regulation again to the Commission, under the conditions set out in the first and second subparagraphs of that paragraph, if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
130As regards the implementation of the draft technical regulation, it should be noted that, under Article 3 of the notified draft, it was stated that its provisions would apply from 1 October 2021.
131As is apparent from Articles 9 and 11 of Decree No 402/2021, the obligation to notify exports of construction materials, referred to in Article 2 thereof, applies to exports from 15 July 2021.
132It must be held that the fact of laying down, in Decree No 402/2021, a date of application which was, in particular, closer than that which appeared in the notified draft constituted a significant change in the timetable for implementation initially envisaged by that draft. Hungary was therefore subject to the obligation to send a new communication to the Commission, in accordance with the third subparagraph of Article 5(1) of Directive 2015/1535 (see, to that effect, judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraphs 38 and 44).
133Since Hungary did not, in the present case, comply with that obligation to notify the changed draft, it must be held that that Member State has infringed that provision.
134The third complaint is accordingly well founded.
135In the light of all the foregoing considerations, it must be held that, by introducing a procedure applicable to the export of raw materials and construction materials, Hungary has failed to fulfil its obligations under:– Article 35 TFEU;– Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU; and,– Article 5(1) and Article 6(1) of Directive 2015/1535.
Costs
136Under 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 the Commission has applied for costs and Hungary has been unsuccessful, the latter must be ordered to pay the costs.
Operative part
On those grounds, the Court (Second Chamber) hereby:
1.Declares that, by introducing a procedure applicable to the export of raw materials and construction materials, Hungary has failed to fulfil its obligations under:– Article 35 TFEU;– Article 2(1) TFEU, read in conjunction with Article 3(1)(e) TFEU; and– Article 5(1) and Article 6(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services.
2.Orders Hungary to pay the costs.
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