C-514/24

Provisional text OPINION OF ADVOCATE GENERAL CAMPOS SÁNCHEZ-BORDONA delivered on 18 September 2025 (1) Case C‑514/24 Magyar Telekom Nyrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke (Request for a preliminary ruling from the Kúria (Supreme Court, Hungary)) ( Preliminary ruling procedure – Electronic communications – Directive (EU) 2018/1972 – Article 105(4) – Right of end-users to terminate their contract on account of unilateral changes proposed by the provider of electronic communications services – Exceptions – Changes imposed directly by EU law or national law ) 1.        In judgments given in 2020 and 2021, years after the entry into force of Regulation (EU) 2015/2120, (2) the Court of Justice (3) interpreted Article 3(3) of that regulation as meaning that it was incompatible with so-called ‘zero tariff’ clauses in contracts for internet access. (4) 2.        As a result of the interpretation given by the Court of Justice, the competent Hungarian authority (5) required providers of electronic communications services to modify subscription contracts containing ‘zero tariff’ clauses. That modification, it added: –        was imposed by Article 3(3) of Regulation 2015/2120 since its entry into force. –        Entitled end-users, pursuant to Article 105(4) of Directive (EU) 2018/1972, (6) to terminate (7) their contract without incurring any further costs. 3.        In the original proceedings, Magyar Telekom Nyrt., an operator required by the NMHH [to make the abovementioned contract modification], challenges the decision of that authority. In its view, in accordance with Article 105(4) of the EECC and given the circumstances of the case, users are not entitled to terminate their contract without incurring any further costs. I.      Legislative framework A.      European Union law 1.      The EECC 4.        Recital 275 reads: ‘Any changes to the contractual conditions proposed by providers of publicly available electronic communications services other than number-independent interpersonal communications services, which are not to the benefit of the end-user, for example in relation to charges, tariffs, data volume limitations, data speeds, coverage, or the processing of personal data, should give rise to the right of the end-user to terminate the contract without incurring any costs, even if they are combined with some beneficial changes. Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless each change is in itself beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes, such as new contract information requirements imposed by Union or national law. Whether a change is exclusively to the benefit of the end-user should be assessed on the basis of objective criteria. The end-user’s right to terminate the contract should be excluded only if the provider is able to demonstrate that all contract changes are exclusively to the benefit of the end-user or are of a purely administrative nature without any negative effect on the end-user.’ 5.        Article 10 (‘Participation of national regulatory authorities in BEREC’ [Body of European Regulators for Electronic Communications]), paragraph 2, provides: ‘Member States shall ensure that national regulatory authorities take utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting their own decisions for their national markets’. 6.        Article 105 (‘Contract duration and termination’), paragraph 4, states: ‘End-users shall have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services other than number-independent interpersonal communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly (8) imposed by Union or national law. Providers shall notify end-users at least one month in advance of any change in the contractual conditions, and shall simultaneously inform them of their right to terminate the contract without incurring any further costs if they do not accept the new conditions. The right to terminate the contract shall be exercisable within one month after notification. Member States may extend that period by up to three months. Member States shall ensure that notification is made in a clear and comprehensible manner on a durable medium.’ 2.      Regulation (EU) 2018/1971 (9) 7.        Article 4 (‘Regulatory tasks of BEREC’), paragraph 4, states: ‘Without prejudice to compliance with relevant Union law, NRAs and the Commission shall take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC with the aim of ensuring the consistent implementation of the regulatory framework for electronic communications within the scope referred to in Article 3(1). Where an NRA deviates from the guidelines referred to in point (e) of paragraph 1, it shall provide the reasons therefor.’ 3.      Regulation 2015/2120 8.        Article 3 (‘Safeguarding of open internet access’), paragraph 3, provides: ‘Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used. The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary. Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to: (a)      comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers; (b)      preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users; (c)      prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.’ B.      Hungarian law 9.        In accordance with Paragraph 132(5) of az elektronikus hírközlésről szóló 2003. évi C. törvény, (10) users may terminate their subscription contract with immediate effect and without further legal consequences within 45 days of receipt of notification of a unilateral modification of the contract by the provider of publicly available electronic communications services. 10.      Paragraph 132(6) of the LEC provides that users are not entitled to terminate the contract pursuant to Paragraph 132(5) if the modification (a) constitutes a change in the subscription contract or in the conditions of use of the service which is favourable only to the subscriber, (b) is administrative in nature and does not contain any provisions detrimental to the subscriber, or (c) is based explicitly on a legislative change or on an administrative or judicial decision. II.    Facts, dispute and questions referred for a preliminary ruling 11.      According to the referring court, (11) by a decision of 6 September 2022, the NMHH declared that, by applying a ‘zero tariff’, Magyar Telekom had infringed Article 3(3) of Regulation 2015/2120 and that users were entitled to terminate their contract in accordance with Paragraph 132(5) of the LEC, without incurring further costs. (12) 12.      Accordingly, the NMHH instructed Magyar Telekom to cease to offer the ‘zero tariff’ before 15 November 2022 and, before 31 March 2023, to modify any subscription contracts including that tariff. 13.      Following an internal review, the decision of 6 September 2022 was upheld by the president of the NMHH, by a decision of 27 October 2022, in which he emphasised that: –        Magyar Telekom had accepted that, in order to comply with Regulation 2015/2120, it had to modify the individual subscription contracts that were currently in force. –        Given the erga omnes effects of the judgments of the Court of Justice, Magyar Telekom would, voluntarily, have had to eliminate the zero tariffs. –        The obligation to modify the contracts did not arise from a legislative amendment, since Regulation 2015/2120 has not been revised, nor from an administrative decision, but rather from Article 3(3) of that regulation itself, the correct interpretation of which had been established by the Court of Justice. 14.      Magyar Telekom challenged the decision of 27 October 2022 before the Fővárosi Törvényszék (Budapest High Court, Hungary). It claimed, inter alia, that, according to the case-law of the Kúria (Supreme Court, Hungary), the judgments of the Court of Justice lack erga omnes effects and that the BEREC guidelines only affect regulatory authorities. Conversely, the decision of the president of the NMHH would constitute ‘national law’, within the meaning of Article 105(4) of the EECC, and would, consequently, not entitle end-users to terminate their contract without incurring further costs. 15.      The challenge having been rejected at first instance, Magyar Telekom has brought the matter to the Kúria (Supreme Court), which refers the following questions to the Court of Justice for a preliminary ruling: ‘(1)      May a judgment of the Court of Justice be regarded as equivalent to a directly binding provision of EU law, for the purposes of Article 105(4) of [the EECC], or rather must it be regarded as an interpretation of the law which does not constitute an amendment of earlier legislation from the perspective of Article 105(4) of [the EECC]? (2)      May the Guidelines of the [BEREC], BoR (16) 127, of 30 August 2016 (‘the 2016 BEREC Guidelines’), as replaced, in so far as is relevant to the present dispute, by the BEREC Guidelines, BoR (22) 81, of 9 June 2022 (‘the 2022 BEREC Guidelines’), be regarded – in the light, in particular, of Article 10(2) of [the EECC] and Article 4(4) of [the BEREC Regulation] – as being part of EU law or directly binding provisions of EU law and, as such, as constituting an amendment of legislation which justifies the application of the exception laid down in Article 105(4) of [the EECC], or rather are they simply an interpretation of the law – particularly since they apply a judgment of the Court of Justice – which does not constitute an amendment of earlier legislation from the perspective of Article 105(4) of [the EECC]? (3)      If the application of the exception laid down in Article 105(4) of [the EECC] is not justified by a judgment of the Court of Justice or by the 2022 BEREC Guidelines, may a decision of a national regulatory authority which applies, in respect of a supplier of electronic communications services, an amended judicial criterion in relation to Article 3(3) of [Regulation 2015/2120], and based on the 2022 BEREC Guidelines, as amended by a judgment of the Court of Justice, be considered to constitute a directly binding provision of national law for the purposes of Article 105(4) of [the EECC], regard being had to the fact that the provision of Regulation 2015/2120 remains the same and was not amended during the material time for the purposes of the dispute?’ III. Procedure before the Court of Justice 16.      The request for a preliminary ruling was received at the Court on 24 July 2024. 17.      Written observations were submitted by Magyar Telekom, by the Irish, Hungarian and Finnish Governments, and also by the European Commission. With the exception of the Finnish Government, all of those parties attended the public hearing held on 26 June 2025. IV.    Analysis A.      Preliminary matters 18.      Following the interpretation of Article 3(3) of Regulation 2015/2120 by the Court of Justice, (13) the NMHH required Magyar Telekom to amend subscription contracts for its internet services containing the so-called ‘zero tariff’. That amendment, it added, did not prevent end-users from exercising the right to terminate their contract without incurring any further costs, as provided for in Article 105(4) of the EECC. 19.      In accordance with Article 105(4) of the EECC: –        Faced with notice of ‘changes in the contractual conditions proposed’ by the provider of electronic communications services, end-users, in principle, have the right to terminate their contract without incurring any further costs. –        The right to terminate the contract without incurring any further costs does not arise, however, where the change in the conditions (a) is exclusively to the benefit of the end-user, or (b) is of a purely administrative nature and has no negative effect on the end-user, or (c) is directly imposed by EU or national law. 20.      The debate has focused on determining whether the change in the contractual conditions falls within any of the situations that, in accordance with Article 105(4) of the EECC, do not give rise to a right of termination without further costs for the end-user. In particular, whether that change is directly imposed by EU law (or Hungarian law) is disputed. (14) 21.      The referring court has identified three possible determining reasons for the contract modification at issue: –        The judgments in Vodafone and in Telekom Deutschland (first question referred). –        The BEREC Guidelines (second question referred). (15) –        The decision of the NMHH which applied the judgments in Vodafone and in Telekom Deutschland, in line with the 2022 BEREC Guidelines (third question referred). 22.      In reality, as the Irish Government has observed, (16) the real reason for the amendment of the contracts lies in the incompatibility of one of their clauses with Article 3(3) of Regulation 2015/2120. Such incontestable incompatibility required the removal of the clause that was contrary to that provision. 23.      However, the incontestable nature of the infringement of Article 3(3) of Regulation 2015/2120 was not discovered (legally speaking) until after the conclusion of the contracts the clauses of which Magyar Telekom has been required to amend. 24.      At the time when those contracts were concluded, the predominant interpretation of Article 3(3) of Regulation 2015/2120, accepted, with certain reservations, by BEREC in its 2016 Guidelines, was that Regulation 2015/2120 did not, as a general rule, prevent ‘zero tariff’ options. (17) 25.      Whatever the legal value of the guidelines emanating from BEREC (second question referred), their content may serve as a guide when assessing the circumstances in which the contracts at issue were concluded. 26.      In fact, the doubts of some courts of various Member States regarding the interpretation of Article 3(3) of Regulation 2015/2120 made it clear that the conditions for applying the ‘acte claire’ doctrine did not arise. (18) Those courts could not, by themselves, decide regarding the compatibility of ‘zero tariff’ clauses with that provision. 27.      The unlawfulness of the clause at issue was not, therefore, evident prior to the interpretation of Article 3(3) of Regulation 2015/2120 by the Court of Justice. That is confirmed by the wording of the BEREC 2016 Guidelines, BEREC being an EU body whose documents and practices have the aim of ‘ensuring the consistent implementation of the regulatory framework for electronic communications.’ (19) 28.      The case-law of the Court of Justice on the temporal effects of its preliminary rulings means that its interpretation of Article 3(3) of Regulation 2015/2120 has retroactive effect from the moment of its entry into force (in this case, 29 November 2015). (20) 29.      The ‘zero tariff’ was, therefore, incompatible with EU law as from the entry into force of Regulation 2015/2120. The incompatibility existed, in law, years before the judgment in Telenor Magyarország (2020) and the judgments in Vodafone and in Telekom Deutschland (which confirmed its case-law in 2021). 30.      Starting from that premiss, Magyar Telekom should not have included the ‘zero tariff’ in contracts for internet access that it had concluded since 29 November 2015 or, at the latest, since Regulation 2015/2120 became applicable (30 April 2016). B.      The first question referred 31.      The referring court wishes to know whether a preliminary ruling of the Court of Justice ‘[is] equivalent to a directly binding provision of EU law … or rather must be regarded as an interpretation of the law which does not constitute an amendment of earlier legislation’ for the purposes of Article 105(4) of the EECC. 32.      The assumption implicit in the question is that it refers to judgments given by the Court of Justice in response to references for preliminary rulings, such as this, the purpose of which is to interpret the provisions of EU law, not to assess their validity. (21) 33.      Judgments given in those preliminary ruling proceedings, then, do not create or alter the law, but are purely declaratory. (22) In such proceedings, the Court of Justice confines itself to clarifying and defining the meaning and scope of a rule of EU law, as it must be or ought to have been understood and applied from the date of its entry into force. (23) 34.      In order to respond to the first question of the referring court, it would be sufficient to observe that the judgments of the Court of Justice given in preliminary ruling proceedings seeking the interpretation of provisions of EU law do not amend those provisions, but rather only clarify and define their meaning and scope. 35.      Such a response, however, could be complemented by considering its implications as far as Article 105(4) of the EECC is concerned, providing the court a quo with a more detailed opinion. In that context, it is important to underline two points: –        The recognition of the right of end-users to terminate their contract without incurring any further costs is linked to a unilateral decision on the part of the service provider, proposing to make changes in the contractual conditions. –        That right on the part of end-users is not recognised, however, when the changes ‘are … imposed’ directly by EU or national law. In such a scenario, the provision establishes an exception to the right to terminate without incurring further costs. 36.      Reading that exception together with recital 275 of the EECC (24) casts light on its meaning: a contract modification imposed by EU law must be, precisely, one that arises as the result of a legislative or regulatory change in the EU law itself. 37.      The exception inserted into Article 105(4) of the EECC can only come into play when the amendment of the contract clauses is the result of applying legislative provisions that did not exist at the time when the contract was concluded. Contractual amendments which, in accordance with that provision, give rise to the right of users to terminate their contract without incurring any further costs are those which are required as a consequence of a change in the current legislation. 38.      Contrary to the view of the Irish Government, I am of the opinion that the exception provided for in Article 105(4) of the EECC can only relate to the remedying of situations which, while initially lawful, have become unlawful subsequently; that is, those resulting from the application of legislative provisions that did not exist at the time when the contract was concluded. The ‘changes … directly imposed by Union or national law’ to which that provision refers cannot be those necessary to correct an unlawful situation that already existed at the time when the contract was concluded, but rather [are] those which are required as a consequence of a change in the current legislation and in order to avoid a contract that was until then valid becoming unlawful. 39.      Otherwise, it would be possible for service providers to propose contracts knowing full well that they were unlawful, while retaining the power to amend them, unilaterally, without users being able to terminate them without incurring further costs. 40.      In the present case, there has been no change in the rule applied: Article 3(3) of Regulation 2015/2120 has remained the same, both before and after the conclusion of the contracts at issue. The referring court acknowledges that unequivocally. (25) 41.      The interpretation of Article 3(3) of Regulation 2015/2120, which, from the start, has been the correct provision for determining the lawful content of the contracts to which it is to apply, is not, then, disputed. 42.      I agree, of course, with the Commission (26) and with the Irish, (27) Hungarian (28) and Finnish (29) Governments that the judgments of the Court of Justice referred to in the dispute have not amended Article 3(3) of Regulation 2015/2120, that is, the legislative framework in force at the time when the contracts at issue were concluded. 43.      Following those preliminary rulings, the wording of Article 3(3) of Regulation 2015/2120 remains the same as that which appeared in the Official Journal of the European Union when that regulation was published. 44.      Starting from that premiss, I take the view that the exception inserted into Article 105(4) of the EECC cannot apply to the present dispute, as far as changes imposed by EU law (or by national law) are concerned, since, I repeat, there has been no change in the applicable provision. The Court’s response to the first question referred could end here. 45.      However, as a supplementary point, a second factor contributes to ruling out the application of Article 105(4) of the EECC in this dispute: strictly speaking, there has not been a change in the contractual conditions on the service provider’s own initiative, but rather the service provider was required to make the change by the competent authority. (30) 46.      Article 105(4) of the EECC provides for ‘changes … proposed’ by the service provider to the end-users. The changes in question are changes in the contractual conditions which the provider decides to impose on users, unilaterally and according to its own interests. As a counterpart to such a decision on the part of the provider, the EECC entitles the user not to accept those changes and to opt to terminate the contract without incurring any further costs. 47.      As the Commission has observed, (31) the main purpose of Article 105(4) of the EECC is to protect the consumer. It prevents the provider of electronic communications services imposing, unilaterally, contractual amendments that are disadvantageous to the user, in relation to matters that could have been negotiated when the contract was concluded. 48.      In the contracts at issue here, the parties included ‘zero tariff’ clauses, the lawfulness of which they did not doubt at that time. However, clauses of that type were contrary to the ‘safeguarding of open internet access’, to use the language of Article 3 of Regulation 2015/2120. That was declared in the judgments given to interpret the provision which apparently allowed them. 49.      By opting for a particular interpretation of Article 3(3) of Regulation 2015/2120 and rejecting the interpretation that had supported the lawfulness of ‘zero tariff’ clauses, the Court of Justice settled that debate. To the same extent, it made any contractual negotiation with the aim of including ‘zero tariff’ clauses impossible and led to the obligation to amend those contracts in which such clauses had been included. 50.      When, as mandated by the regulatory authority, Magyar Telekom modifies contracts for internet access to remove the ‘zero tariff’ clause, it does not impose on subscribers a unilateral change in the terms that have been agreed with them freely, but rather it confines itself to bringing the content of the contracts into line with the framework of what could lawfully be negotiated from the outset. 51.      Just as the parties would not, following the rulings of the Court of Justice, be able to agree a contract containing ‘zero tariff’ clauses, nor would they have been able to do so at the time when the contracts requiring amendment were actually concluded. 52.      The conduct which the EU legislature has sought to address consists, I repeat, in unilateral changes, made by the service provider, in what has been agreed between the parties, whether it relates to tariffs, data volume limitations or other contractual conditions. In accordance with the EECC, such unilateral conduct, if it is disadvantageous to the user, permits the user to terminate the contract without incurring further costs. 53.      The removal of the ‘zero tariff’ clause by Magyar Telekom does not follow that pattern. It is not the operator who, unilaterally and on its own initiative, is imposing the change in the contractual conditions. That change is the result of applying the provision (unaltered in time) that governs the contract, that is, Article 3(3) of Regulation 2015/2120, as interpreted by the Court of Justice. 54.      In short, neither of the two conditions determining the application of Article 105(4) of the EECC is satisfied: the operator does not propose unilaterally, on its own initiative, amendment of the contract, nor is that amendment imposed directly by a change in EU (or national) law. 55.      How the right of the user to terminate the contract fits into this context and what costs the consumer has to bear is not something that is directly regulated by Article 105(4) of the EECC. Whether that right exists and on what terms is something to which I shall return at the end of this Opinion. C.      The second question referred 56.      The referring court wishes to know whether the BEREC guidelines to which it refers (32) ‘[are] part of EU law or directly binding provisions of EU law and [whether], as such, [they constitute] an amendment of legislation which justifies the application of the exception laid down in Article 105(4) of [the EECC]’. 57.      The answer to the question, in which regard I agree with all of the Member States that have intervened in the preliminary ruling proceedings, as well as the Commission and Magyar Telekom itself, (33) is that the BEREC guidelines are not legislative in nature, nor may they be regarded as forming part of a process of preparing EU legislation on electronic communications. 58.      The Court of Justice has ruled that ‘BEREC’s sole function is to act as a forum for cooperation among [national regulatory authorities (NRAs)] and between NRAs and the Commission with a view to ensuring the consistent implementation of the regulatory framework for that area, as is apparent from Article 3(2) of Regulation 2018/1971, read in the light of recital 5 of that regulation.’ (34) 59.      Certainly, according to Article 4(4) of the BEREC Regulation, national authorities and the Commission ‘shall take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC’. But that, I insist, does not imply that BEREC is able to invest its instruments with binding legal effects. D.      The third question referred 60.      The third question referred relates to the situation in which ‘the application of the exception laid down in Article 105(4) of [the EECC] is not justified by a judgment of the Court of Justice or by the 2022 BEREC Guidelines’. 61.      In that event, the referring court wishes to know whether a decision taken by the national regulatory authority which applies an amended judicial criterion ‘[constitutes] a directly binding provision of national law’. 62.      In principle, it is for the referring court and not for the Court of Justice to clarify the nature and effects, in its national law, of the decisions of the Hungarian regulatory authority for the electronic communications sector. 63.      While the referring court may take a different view, everything appears to indicate that the decision adopted by the NMHH in this case is directed at each particular operator and does not constitute a prescription, provision or rule of national law. 64.      That is the view of the Hungarian Government itself, which maintains that (35) individual decisions of the national regulatory authority do not have general and normative effects; that is, they are not legal rules, nor legislative acts, nor regulatory measures. 65.      The above particulars require the third question referred to be answered in the negative, as far as the exception provided for in Article 105(4) of the EECC is concerned. 66.      The relevant legal rule (the legislative provision or prescription) for the purposes of Article 105(4) of the EECC is Article 3(3) of Regulation 2015/2120, not the particular decision of the NMHH, which is limited to applying the correct interpretation of that article. I have already explained that that rule has not been amended in any way since it was made. 67.      The NMHH confines itself to determining the consequences of a directly applicable rule of EU law, without Article 3(3) of Regulation 2015/2120 requiring any additional measures to be taken. 68.      Therefore, the decision adopted by the NMHH does not constitute an amendment of national law that, in turn, requires a change in the contractual conditions, within the meaning of Article 105(4) of the EECC. E.      Final considerations 69.      Up to this point, I have attempted to explain why Article 105(4) of the EECC is not a suitable basis for resolving the dispute. If the Court agrees with my assessment, it could confine itself to interpreting that article as I suggest, but perhaps that would not be sufficient to provide the referring court with all of the elements necessary to settle the dispute, from the perspective of EU law. 70.      I have already stated that the change in the contract clause relating to the ‘zero tariff’ was not imposed by a subsequent amendment of EU law, but rather by the need to remove a clause that was always incompatible with EU law, that is, invalid ab initio. 71.      The reason for the change is, in fact, Article 3(3) of Regulation 2015/2120 itself, which the NMHH merely applies, once interpreted by the Court of Justice. The NMHH adopts a decision that, without adding anything to that interpretation, marks the moment from which that provision, thus interpreted, becomes binding on internet service providers. 72.      Neither end-users nor the provider that supplies them with internet access can expect the unlawful clause to remain in effect, in so far as it affects general interests, beyond its impact on the situation of users whose contracts include it. (36) 73.      All of that said, even though Article 105(4) of the EECC does not provide a direct answer, the criteria on which it is based may be used, by analogy, to offer a solution. 74.      As a whole, Title III of the EECC, dealing with the rights of end-users, aims to protect the legal position of end-users in their contractual relationship with the service providers. That is particularly true of Article 105 of the EECC, which, by regulating the duration and termination of contracts, adopts a general approach that is favourable to the end-user. (37) 75.      From that perspective, the possibility of the end-user opting to terminate the contract when changes inevitably have to be made to one of its essential clauses – that relating to the ‘zero tariff’ for internet access – should be respected. Magyar Telekom acknowledged as much at the hearing. 76.      The fact that the amendment of the contract to remove the unlawful clause does not originate from a unilateral decision of the internet service provider, but rather from the intrinsic unlawfulness of that clause from the outset, does not preclude recognition of that right of termination. 77.      Ultimately, the responsibility for including that standard clause (pre-defined clause) among the contractual conditions rests with the operator who offers it in its contracts. It is an objective responsibility, which does not depend on the existence of fault, and is mitigated, but does not disappear, if the clause is included in the standard contractual conditions accepted by the national regulatory authorities, in line with the BEREC guidelines. (38) 78.      The option to terminate may also be based on the general principle of contract law according to which the right to terminate obligations is understood to be implicit in reciprocal obligations, in the event that one of the obliged parties does not comply with the relevant obligations. 79.      Whatever the origin of the changes in the conditions (where they are essential to the financial performance of a contract to be performed over a period of time), if the operator providing the service cannot subsequently fulfil the contract according to the agreed terms, the other party may opt to terminate it. 80.      The same solution would be reached if, as a last resort and a closing provision, the criterion underlying Directive 93/13/EEC (39) were applied. In accordance with recital 258 of the EECC, ‘in addition to this Directive, the requirements of existing Union consumer protection law relating to contracts, in particular [Directive 93/13] … apply to consumer transactions relating to electronic communications networks and services.’ 81.      In accordance with Directive 93/13, terms ‘under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that … the consumer is free to dissolve the contract’ (40) (emphasis added) are not considered unfair. 82.      Having established the unavoidable nature of the removal of the ‘zero tariff’ clauses in the Magyar Telekom contracts that included them, as well as the possibility of the user opting to terminate the contract, the next step concerns the financial consequences of such termination. 83.      It is, then, a question of determining who has to bear the cost of the right of termination being exercised by users who do not wish to remain subscribers following the removal of the clause as a consequence of the correct interpretation of Article 3(3) of Regulation 2015/2120. 84.      The user’s right to opt for termination of the contract in such circumstances cannot be undermined by the imposition of financial penalties that seek to dissuade him or her from exercising that right. It would not be appropriate to impose ‘further costs’ (41) on the user for exercising that right. 85.      However, it is possible that users may have to bear other types of costs, where they correspond to certain benefits which the contract has afforded them, precisely because of the advantages which the clause at issue brought him or her. As I have observed earlier, (42) one of those costs would be, for example, that relating to subsidised terminal equipment retained by the user. 86.      Ultimately, it is for the referring court to determine what costs should be borne by the service provider and by the end-user who opts to terminate the contract, taking into account the nature of the particular costs regarding which the parties disagree. V.      Conclusion 87.      In the light of the foregoing, I propose that the Court of Justice should respond to the Kúria (Supreme Court, Hungary) as follows: ‘(1)      Article 105(4) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code is to be interpreted as meaning that –        judgments of the Court of Justice given in preliminary ruling proceedings seeking the interpretation of provisions of EU law do not constitute an amendment of those provisions, but rather only clarify and define their meaning and scope; –        the guidelines adopted by the Body of European Regulators for Electronic Communications (BEREC) lack binding legal effects; –        an individual decision of a national regulatory authority which applies, in respect of a provider of electronic communications services, a judicial criterion does not constitute an amendment of national law which, in turn, requires a change in the contractual conditions, within the meaning of Article 105(4) of the European Electronic Communications Code. (2)      The end-user is entitled to terminate a contract entered into with a provider of electronic communications services where changes in the contractual conditions are necessary to remove an essential clause that is ab initio incompatible with EU law. It is for the national court before which a dispute on that matter is brought to decide, in such a situation, precisely what costs are to be borne by the provider of those services and by the end-users, however, no financial penalties may be imposed on the end-users for exercising their right to terminate the contract.’ 1      Original language: Spanish. 2      Regulation of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ 2015 L 310, p. 1). 3      The judgments of the Court of Justice referred to by the referring court are those given, on 2 September 2021, in response to the corresponding requests for a preliminary ruling in the cases Vodafone (C‑854/19, EU:C:2021:675), Vodafone (C‑5/20, EU:C:2021:676) and Telekom Deutschland (C‑34/20, EU:C:2021:677); ‘the judgments in Vodafone and in Telekom Deutschland’. However, the doubts regarding the interpretation of Article 3(3) of Regulation 2015/2120 were resolved by the Court of Justice in its judgment of 15 September 2020, Telenor Magyarország (C‑807/18 and C‑39/19, EU:C:2020:708; ‘the judgment in Telenor Magyarország’). That judgment established the case-law which the judgments in Vodafone and in Telekom Deutschland would later reiterate. 4      The ‘zero tariff’ option is a commercial practice whereby an internet service provider allows the customer to access certain applications without the data traffic generated by the use of those applications being deducted from the data volume included in the contract, from which only data connected with the use of other applications are deductible. 5      The Nemzeti Média- és Hírközlési Hatóság (National Media and Infocommunications Authority, Hungary; ‘the NMHH’). 6      Directive of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36); ‘the EECC’. 7      I have noted on a previous occasion that, in some versions of the legislation (the Spanish version among them), the terms [equivalent to] ‘rescission’ and ‘termination’ are used without distinction, as if they were synonyms. I shall apply that linguistic convention here, despite any reservations to which it may give rise. 8      Unlike other language versions that I have been able to check, the adverb ‘directamente’ [‘directly’] does not appear in the Spanish version. 9      Regulation of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ 2018 L 321, p. 1); ‘the BEREC Regulation’. 10      Law C of 2003 on electronic communications; ‘the LEC’. 11      Paragraph 6 of the order for reference: ‘the first-tier authority emphasised that neither the decision nor the obligation arising from it justify a contract modification within the meaning of Paragraph 132(6)(c) of [the LEC], which transposed Article 105(4), in fine, of [the EECC] into Hungarian law, because, as far as Article 3(3) of Regulation 2015/2120 is concerned, the legislation has not been amended, and the modification which the appellant is required to effect is not expressly based on the authority’s decision, but rather on the wording of the legal provision – which has been the same for years – and on the fact that the service provider’s practices were contrary to that provision. Accordingly, if the appellant unilaterally modifies the existing subscription contracts to the detriment of subscribers, those subscribers are entitled to terminate those contracts in accordance with Paragraph 132(5) of the LEC.’ 12      Previously, by a decision of 21 December 2021, the NMHH had required Magyar Telekom, in its product offering for 2022, to take account of the judgments of the Court of Justice declaring a ‘zero tariff’ to be incompatible with Article 3(3) of Regulation 2015/2120. 13      An interpretation which, according to the referring court (paragraph 37 of the Spanish version of the order for reference), is not disputed in the main proceedings. 14      The fact that the amendment at issue does not benefit the subscribers concerned is not disputed, since, as Magyar Telekom has observed (paragraph 11 of its written observations), they are deprived of the enjoyment of a tariff that was favourable to them and, in that regard, the change in the contractual conditions affects them negatively. 15      The referring court identifies as such two BEREC documents, in English, of 30 August 2016 and of 9 June 2022: (a) BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules (BoR (16) 127); and (b) BEREC Guidelines on the Implementation of the Open Internet Regulation (BoR (22) 81). The latter replaced the former in 2022. 16      Paragraph 19 of the written observations of the Irish Government. 17      Paragraph 42 of the BEREC 2016 Guidelines reads as follows: ‘The ISP could either apply or offer zero-rating to an entire category of applications (e.g. all video or all music streaming applications) or only to certain applications thereof (e.g. its own services, one specific social media application, the most popular video or music applications). In the latter case, an end-user is not prevented from using other music applications. However, the zero price applied to the data traffic of the zero-rated music application (and the fact that the data traffic of the zero-rated music application does not count towards any data cap in place on the IAS) creates an economic incentive to use that music application instead of competing ones. The effects of such a practice applied to a specific application are more likely to “undermine the essence of the end users’ rights” or lead to circumstances where “end-users’ choice is materially reduced in practice” (Recital 7) than when it is applied to an entire category of applications.’ As the Commission emphasises in its written observations (paragraph 35), those guidelines did not specify, categorically, what ‘zero tariff’ options were, in particular and without reservation, entirely compatible with Regulation 2015/2120. 18      For example, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraph 33). 19      Article 4 of the BEREC Regulation. 20      Regulation 2015/2120 entered into force on 29 November 2015, according to Article 10(1) of that regulation. Article 10(2) postponed its application, with certain exceptions, until 30 April 2016. 21      At the hearing, the differences between one type of reference for a preliminary ruling (requesting interpretation) and others (requesting an assessment of validity), as regards their intrinsic value, was highlighted. 22      Judgment of 10 March 2022, Grossmania (C‑177/20, EU:C:2022:175, paragraph 41). 23      Judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 44): ‘the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the date of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied’. 24      ‘Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless … the changes … are strictly imposed by legislative or regulatory changes …’. 25      Third question referred, in fine: ‘… the provision of Regulation 2015/2120 remains the same and was not amended during the material time for the purposes of the dispute’. 26      Paragraph 29 of the Commission’s written observations. 27      Paragraph 11 of the written observations of the Irish Government. 28      Paragraph 27 of the written observations of the Hungarian Government. 29      Paragraphs 15 and 16 of the written observations of the Finnish Government. 30      Paragraph 5 the order for reference. 31      Paragraph 23 of the Commission’s written observations. 32      See footnote 15 to this Opinion. 33      Paragraphs 59 to 61 of the written observations of Magyar Telekom. 34      Judgment of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28) paragraph 85. 35      Paragraph 39 of the written observations of the Hungarian Government. 36      Paragraph 44 of the judgment in Telenor Magyarország: packages including the clauses at issue ‘are, in the light of the cumulative effect of the agreements to which they may lead, liable to increase the use of certain specific applications and services, namely those which may be used without restriction on a ‘zero tariff’ once the data volume included in the tariff purchased by customers has been used up, and are, accordingly, liable to reduce the use of the other applications and services available, having regard to the measures by which the provider of the internet access services makes that use technically more difficult, if not impossible.’ 37      Examples of that approach include Article 105(1) of the EECC, on the right to change service providers, or Article 105(6), which exempts the end-user from paying compensation (other than for subsidised terminal equipment they keep) where the end-user has the right to terminate the contract before the end period specified therein. 38      The court a quo observes that ‘in the light of the principle of the protection of legitimate expectations and of the legally binding nature claimed, the BEREC guidelines clearly appear to be normative in nature’ (paragraph 47 of the Spanish version of the order for reference). However, I do not believe reliance on the principle of the protection of legitimate expectations to be appropriate in this case. I agree with the Commission (paragraphs 34 to 37 of its written observations) in that the BEREC 2016 Guidelines, while favourable to some kinds of ‘zero tariff’ clauses, had not given internet service providers well-founded expectations, based on specific, unconditional and consistent guarantees provided to them by BEREC. 39      Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). 40      Point 2(b), second subparagraph, of the Annex to Directive 93/13. 41      At the hearing, the difficulties involved in determining when a particular cost is, precisely, a further cost were highlighted. Costs arising from terms which oblige users to pay a sum of money if they terminate the contract early would be costs of that nature. 42      Footnote 37 of this Opinion.