Judgments nº T-245/17 of Tribunal General de la Unión Europea, March 10, 2021

• Resolution Date: March 10, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-245/17

(Action for failure to act and for annulment - Electronic communications networks and services - Harmonised use of the 2 GHz frequency spectrum - Pan-European systems providing mobile satellite services (MSS) - Decision 2007/98/EC - Harmonised operator selection procedure - Authorisations granted to the selected operators - Decision No 626/2008/EC - Request for action to be taken - No formal notice - Adoption of a position by the Commission - Inadmissibility - Refusal to take action - Measure not actionable - Inadmissibility - Powers of the Commission)

In Case T-245/17,

ViaSat, Inc., established in Carlsbad, California (United States), represented by E. Righini, J. Ruiz Calzado, P. de Bandt, M. Gherghinaru and L. Panepinto, lawyers,

applicant,

supported by

Kingdom of the Netherlands, represented by M. Bulterman, acting as Agent,

and by

Eutelsat SA, established in Paris (France), represented by L. de la Brosse and C. Barraco-David, lawyers,

interveners,

v

European Commission, represented by G. Braun, L. Nicolae and V. Di Bucci, acting as Agents,

defendant,

supported by

EchoStar Mobile Ltd, established in Dublin (Ireland), represented by A. Robertson, QC,

and by

Inmarsat Ventures Ltd, established in London (United Kingdom), represented by C. Spontoni, B. Amory, É. Barbier de La Serre, lawyers, and A. Howard, Barrister,

interveners,

APPLICATION under Article 265 TFEU for a declaration that the Commission unlawfully failed to take certain measures in the context of the harmonised application of rules concerning the provision of mobile satellite services (MSS) in the 2 GHz frequency band and, in the alternative, under Article 263 TFEU for the annulment of the Commission’s letters of 14 and 21 February 2017 by which it responded following the applicant’s request for action to be taken,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of M. van der Woude, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,

Registrar: B. Lefebvre, Administrator,

having regard to the written part of the procedure and further to the hearing on 26 June 2020,

gives the following

Judgment

1. Legal context and background to the dispute

   1 In order to ensure the efficient management and use of radio spectrum as a result of the coordination of national policy approaches and, where appropriate, the harmonisation of conditions with regard to its availability and use, the European Parliament and the Council adopted Decision No 676/2002/EC of 7 March 2002 on a regulatory framework for radio spectrum policy in the European [Union] (Radio Spectrum Decision) (OJ 2002 L 108, p. 1).

   2 Taking the view that the convergence of the telecommunications, media and information technology sectors implies that all transmission networks and associated services are to be covered by a single regulatory framework, the Parliament and the Council adopted a series of directives relating to the electronic communications networks and services. That regulatory framework consists, inter alia, of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) and of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

   3 That regulatory framework was substantially updated by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37).

   4 By Decision 2007/98/EC of 14 February 2007 on the harmonised use of radio spectrum in the 2 GHz frequency bands for the implementation of systems providing mobile satellite services (OJ 2007 L 43, p. 32) (‘the Harmonisation Decision’), adopted on the basis of Article 4(3) of the Radio Spectrum Decision, the European Commission harmonised the conditions for the use and availability of the 2 GHz frequency band for the implementation of systems providing mobile satellite services (‘MSS’).

   5 In order to facilitate the development of a competitive internal market for MSS across the European Union and to ensure gradual coverage in all Member States, the Parliament and the Council adopted, pursuant to Article 95 EC (now Article 114 TFEU), Decision No 626/2008/EC of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (OJ 2008 L 172, p. 15) (‘the MSS Decision’).

   6 Pursuant to the powers conferred on it in Article 9(3) of the MSS Decision, the Commission adopted Decision 2011/667/EU of 10 October 2011 on modalities for coordinated application of the rules on enforcement with regard to MSS (OJ 2011 L 265, p. 25) (‘the Enforcement Decision’).

   7 By a call for applications published on 7 August 2008 for pan-European systems providing MSS (OJ 2008 C 201, p. 4), the Commission launched a selection procedure as provided for in Title II of the MSS Decision.

   8 At the end of the selection procedure at issue, the Commission adopted Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing MSS (OJ 2009 L 149, p. 65; ‘the Selection Decision’) by which it selected two applicants: Inmarsat Ventures Ltd (‘Inmarsat’) and Solaris Mobile Ltd (now EchoStar Mobile Ltd) (‘EchoStar’), interveners in the present proceedings in support of the form of order sought by the Commission.

   9 The applicant, ViaSat, Inc., describes itself as a company providing a wide-variety of communications solutions for businesses, individuals, and governments. It currently provides satellite-based in-flight connectivity services in the United States and is prepared to provide, inter alia, those same types of services throughout the European Union and on the main air routes between North America and Europe, in a joint venture formed in 2016 with Eutelsat SA, intervener in the main proceedings in support of the form of order sought by the applicant.

   10 Inmarsat, one of the operators selected at the end of the common selection procedure for the provision of MSS, developed a system offering in-flight connectivity on flights above Europe through what it calls the European Aviation Network (‘the EAN’), using a combination of ground and satellite based communication links.

   11 Inmarsat applied for the necessary authorisations from the national regulatory authorities (NRAs) to operate the EAN using the frequency granted to it in the Selection Decision.

   12 On 2 August 2016, the applicant sent a letter to the Commission requesting it to take action to prevent the NRAs from authorising Inmarsat to use the 2 GHz frequency band for the implementation of the EAN without a new call for applications in accordance with the common selection procedure, as provided for in Articles 3 to 6 of the MSS Decision, in order to guarantee a harmonised result. In that regard, it claimed, in essence, that the EAN represented a completely new use of the 2 GHZ frequency band in so far as it pursued a fundamentally different purpose than that provided for by the MSS Decision and in the context of that common selection procedure, namely to provide pan-European MSS ensuring universal connectivity. By e-mail of 31 October 2016, the Commission responded to the applicant’s letter of 2 August 2016 stating that no decision had been taken on an application for authorisation of the use of the 2 GHz frequency band for MSS by one of the selected operators, since that question was, ‘in any case’, a matter to be dealt with by the competent national authorities.

   13 Not satisfied by the Commission’s response of 31 October 2016, the applicant sent the Commission a letter on 22 December 2016 asking it to define its position following the request made in its letter of 2 August 2016 in order to fulfil the Commission’s obligation to take action pursuant to Article 17 TEU, to the third subparagraph of Article 9(2) and recital 22 of the MSS Decision, to Article 5(2) and recitals 24 and 25 of the Authorisation Directive and to Article 19 of the Framework Directive.

   14 By letters of 14 and 21 February 2017, the Commission responded to the applicant’s letter of 22 December 2016.

   15 In its letter of 14 February 2017, it confirmed, as previously stated to the applicant in the Commission’s e-mail of 31 October 2016, that it had not taken any decision on an application for authorisation of the use of the 2 GHz frequency band for MSS by one of the selected operators, since that question was, ‘in any case’, a matter to be dealt with by the competent national authorities.

   16 The Commission also stated, first, that, while it monitored market and regulatory developments in that regard, including in the context of the Communication Committee and the Communication Committee MSS Working Group, enforcement measures in relation to the systems providing MSS and their operators were undertaken at national level and, second, that it merely facilitated cooperation between Member States in accordance with the Enforcement Decision. It added that no redefinition of the purpose of using the 2 GHz frequency band as provided for in the MSS Decision was planned and that it had not identified any circumstances to justify initiating infringement proceedings against a Member State in respect of any actual or potential national measures in the field governed by the MSS Decision, in relation to the exercise by those national authorities of either their authorisation or their enforcement functions pursuant to that decision.

   17 In its letter of 21 February 2017, the Commission stated that the applicable legal framework does not provide for specific powers for the Commission in that regard and that, as a result, the Commission could not act in order to adopt a decision preventing a Member State from authorising Inmarsat to use radio spectrum in the 2 GHz frequency band for the...