Orders nº T-441/08 of The General Court, May 21, 2010

• Resolution Date: May 21, 2010
• Issuing Organization: The General Court
• Decision Number: T-441/08

In Case T‑441/08,

ICO Services Ltd, established in Slough, Berkshire (United Kingdom), represented by S. Tupper, Solicitor,

applicant,

v

European Parliament, represented by J. Rodrigues and R. Kaškina, acting as Agents,

and

Council of the European Union, represented by G. Kimberley and F. Florindo Gijón, acting as Agents,

defendants,

supported by

European Commission, represented by M. Wilderspin and A. Nijenhuis, acting as Agents,

intervener,

APPLICATION for annulment of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15),

THE GENERAL COURT (First Chamber),

composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska-Białecka and I. Labucka, Judges,

Registrar: E. Coulon,

makes the following

Order

Facts and procedure

1 The applicant, ICO Services Ltd, is a wholly-owned subsidiary of ICO North America Inc., which is itself a majority-owned subsidiary of ICO Global Communications (Holdings) Limited. Each of the latter companies has its headquarters in Reston, Virginia (United States of America).

2 ICO Global Communications is a next-generation satellite communications company. It operates a hybrid satellite communications system, combining both satellite and terrestrial communications capabilities, in order to offer wireless voice and video data or interactive multimedia services throughout the world on mobile and portable devices (the ‘ICO-P’ system).

3 The ICO-P system, which requires the use of part of the 2 GHz frequency band, was given an exemption from the requirement to obtain a licence in the United Kingdom. That exemption entered into force on 19 April 1999.

4 On 11 June 2001, ICO Global Communications obtained a licence from the Governor of the Cayman Islands to launch a satellite. On 12 June 2001, the applicant obtained a licence from the competent United Kingdom authorities to operate that satellite.

5 On 11 December 2007, the ICO-P system was entered in the Master International Frequency Register of the International Telecommunication Union (ITU).

6 On the view that systems providing mobile satellite services (MSS) may constitute an innovative platform for various types of pan-European telecommunications and broadcasting services – such as high-speed internet access, mobile multimedia and public protection and disaster relief – the European Parliament and the Council of the European Union adopted, on 30 June 2008, Decision No 626/2008/EC on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15) (‘the contested decision’).

7 As is apparent from Article 1(1) of the contested decision, its purpose is to facilitate the development of a competitive internal market for MSS across the European Community and to ensure gradual coverage in all Member States. To that end, the contested decision creates a Community procedure for the common selection of operators of mobile satellite systems which use the 2 GHz frequency band. The contested decision also makes provision for the coordinated authorisation by Member States of the selected operators to use the assigned radio spectrum within that band for the operation of mobile satellite systems.

8 Under Article 1(2) and (3) of the contested decision, mobile satellite system operators are to be selected by the European Commission by means of a Community procedure (Articles 3 to 6 of the contested decision), while authorisation for the selected operators to use the radio spectrum and the necessary ground components is to be granted by the Member States (Articles 7 to 9 of the contested decision).

9 By application lodged at the Court Registry on 26 September 2008, the applicant brought an action under the fourth paragraph of Article 230 EC for annulment of the contested decision.

10 By separate documents lodged at the Court Registry on 16 and 20 January 2009, the Parliament and the Council respectively raised pleas of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court.

11 By a document lodged at the Court Registry on 4 February 2009, the Commission applied for leave to intervene in support of the forms of order sought by the Parliament and the Council. The parties indicated that they had no objection to that application for leave to intervene.

12 By letter of 5 March 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain parts of the application and for certain annexes to the application.

13 On 17 March 2009, the applicant lodged at the Court Registry observations on the pleas of inadmissibility raised by the Parliament and the Council.

14 By letter of 25 March 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain of its observations on the pleas of inadmissibility raised by the Parliament and the Council.

15 By order of the President of the First Chamber of the Court of 2 April 2009, the Commission was granted leave to intervene in support of the Parliament and the Council. The decision as to whether the request for confidential treatment was well founded was reserved. Non-confidential versions of the various procedural documents, prepared by the applicant, were sent to the Commission.

16 By letter of 30 April 2009, the Commission challenged in their entirety the requests for confidential treatment made by the applicant on 5 and 25 March 2009.

17 On 28 May 2009, the Commission lodged a statement in intervention with the Court Registry.

18 On 24 July 2009, the applicant lodged observations on the Commission’s statement in intervention with the Court Registry.

19 By letter of 3 August 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain of its observations on the Commission’s statement in intervention. A non-confidential version of the applicant’s observations on the Commission’s statement in intervention, prepared by the applicant, was sent to the Commission.

20 By letter of 31 August 2009, the Commission stated that it had no objection to the request for confidential treatment lodged by the applicant on 3 August 2009.

21 By order of 2 September 2009, the President of the First Chamber of the Court rejected in their entirety the requests for confidential treatment lodged by the applicant on 5 and 25 March 2009. The Court set a time-limit for the Commission to complete, if need be, its statement in intervention. The Commission did not submit any additional observations.

22 Since one member of the Chamber was prevented from sitting, the President of the Court, by decision of 29 September 2009, designated another judge to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure.

23 By letter of 10 December 2009, the applicant applied to be replaced in the present proceedings by ICO Satellite Ltd, a company established in the United Kingdom.

Forms of order sought

24 The applicant claims that the Court should:

– reject the pleas of inadmissibility, order that the proceedings continue and, forthwith, order the Parliament and the Council to pay the costs relating to those pleas;

– annul the contested decision;

– order the Parliament and the Council to pay the costs.

25 The Parliament and the Council, supported by the Commission, contend that the Court should:

– declare the action inadmissible;

– order the applicant to pay the costs.

Law

The request for substitution of the applicant

26 In support of its request (paragraph 23 above), the applicant states, essentially, that it is the sister company of ICO Satellite, which is the applicant in Case T‑350/09, and that the substitution requested is justified for the sake of good order.

27 Suffice it to note in that regard that the applicant adduces no evidence to justify the substitution requested. In particular, nothing allows the conclusion to be drawn that ICO Satellite is the transferee of all of the applicant’s business (see, to that effect, Case 92/82 Gutmann v Commission [1983] ECR 3127, paragraph 2; Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraphs 13 to 18 ; see also, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 46). The mere fact that the applicant is a sister company of ICO Satellite cannot alter that conclusion.

28 Under those circumstances, the applicant’s request for substitution must be rejected.

Admissibility of the action

29 Under Article 114(1) of the Rules of Procedure, on the application of a party, the Court can rule on admissibility without going to the substance of the case. In accordance with Article 114(3)...