Case T‑245/17
Viasat, Inc.
v
European Commission
Judgment of the General Court (Tenth Chamber, Extended Composition), 10March 2021
(Action for failure to act and for annulment– Electronic communications networks and services– Harmonised use of the 2GHz 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 No626/2008/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)
1.Actions for failure to act– Position defined within the meaning of Article265, second para., TFEU before the action brought– Meaning– Refusal to act in accordance with the invitation to act– Included
(Art.265, second para., TFEU)
(see paragraphs57, 59, 60)
2.Actions for annulment– Actionable measures– Acts intended to have legal effects– Refusal to act in accordance with the invitation to act– Included
(Article263 TFEU)
(see paragraphs68, 69, 71, 72, 110, 111)
3.Approximation of laws– Telecommunications sector– Harmonisation of the use of radio spectrum– Decision No676/2002– Decision 2007/98– Selection and authorisation of systems providing mobile satellite services– Decision No626/2008– Selection of operators by the Commission– Authorisations issued by Member States
(European Parliament and Council Decisions No676/2002, Art.4(3), and No626/2008, Title II, Arts7(1) and 8(1), and Title III; Commission Decision 2007/98)
(see paragraphs89-94)
4.European Union– Conferred powers– Implicit attribution– Conditions
(Art.5 TEU)
(see paragraphs201-204, 209)
Résumé
By a call for applications,(1) the European Commission launched a procedure for selecting operators of pan-European systems providing mobile satellite services (MSS)(2) in the 2GHz frequency band, for which the conditions for the use and availability were harmonised by a Commission Decision.(3) On completion of that procedure, two applicants were selected, namely Inmarsat Ventures Ltd (‘Inmarsat’) and Solaris Mobile Ltd (now EchoStar Mobile Ltd).
Inmarsat applied for the necessary authorisations from the national regulatory authorities (‘NRAs’) to operate the European Aviation Network system (the ‘EAN’) using the frequency granted to it in the Selection Decision.
On 2August 2016, the applicant, ViaSat, Inc., sent a letter to the Commission requesting that it take action to prevent the NRAs from granting the authorisations at issue to Inmarsat without a new call for applications under a joint selection procedure. The applicant, which did not participate in the selection procedure, wished to provide, inter alia, satellite connectivity services, through a joint venture set up in 2016 with Eutelsat SA, throughout the European Union and on the main air routes between North America and Europe.
On 31October 2016, the Commission responded by email to the applicant’s letter, stating that no decision had been taken on an application for authorisation of the use of the 2GHz 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.
Not satisfied with the Commission’s reply, the applicant sent the Commission a letter on 22December 2016 requesting that it define its position in response to the invitation referred to in its letter of 2August 2016, in order to fulfil its obligation to act.(4)
The Commission replied to that letter by letters of 14 and 21February 2017.
Still dissatisfied with the Commission’s replies, the applicant asked the General Court to declare that the Commission had failed to act(5) and, in the alternative, to annul all or part of the Commission’s decision contained in those letters.
Ruling in extended composition, the General Court dismissed the applicant’s action in its entirety.
Findings of the General Court
As regards the admissibility of the application for a declaration of failure to act, the Court points out that it is clear from the Commission’s letters that the latter took the view that, as it did not have the power to do so, it could not take any action following the applicant’s request for action to be taken to prevent NRAs from granting authorisations to Inmarsat for the use of the 2GHz frequency band for the operation of the EAN in order to preserve the internal market resulting from the harmonisation of the use of that frequency band for MSS. This is a refusal to act which constitutes the definition of a position which put an end to the alleged failure to act before the action was brought. Consequently, the Court dismisses the application for a declaration of failure to act as inadmissible.
As regards the admissibility of the application for annulment of the decision contained in the letters in question, the Court recalls that, in order to assess whether the application for annulment concerned is admissible, it is necessary to examine whether the act which the Commission was asked to adopt would constitute in itself an act the legality of which would be actionable in the General Court. That question is related to the question whether the Commission has any powers to adopt such a measure.
Whether the Commission has express powers
First, the Court notes that the regulatory framework for radio spectrum management(6) and MSS provides for a clear allocation of powers between the Commission and the Member States. In that regard, while the Commission has powers to determine the availability and purpose of using certain frequency bands, and to select MSS operators in the 2GHz frequency band whose purpose of use for MSS has been harmonised, the NRAs have no discretion when granting authorisations, so that they cannot refuse authorisation if an application is lodged by an operator selected by the Commission. The Court also observes that the power to monitor compliance with the common conditions, to which authorisations are subject,(7) and with the commitments entered into by the operator in question in the context of the selection procedure,(8) as well as the power to impose penalties for any infringements were conferred on the Member States, with the Commission having only coordinating powers in that regard.(9)
As regards the Commission’s powers in the context of the review and enforcement procedure, the Court points out that, whenever necessary, the Commission should be able to raise enforcement issues relating to the fulfilment by operators with the common conditions for authorisation by issuing a recommendation or an opinion to the competent national authorities.(10)
Consequently, the MSS Decision does not confer on the Commission express powers to assess the compatibility of the EAN with the Selection Decision or with the regulatory framework applicable to MSS, and confers no express powers thereafter to adopt an actionable measure preventing the NRAs from granting authorisations to Inmarsat or compelling them to withdraw the authorisations granted.
Secondly, as regards the Commission’s powers under the Framework Directive, the Court notes that the nature of the decisions which the Commission has the power to adopt(11) and are binding in nature, is limited. Such decisions concern only the definition of a harmonised or coordinated approach for dealing with the issues set out in the relevant provision.(12) Those matters do not include that of a harmonised approach to the authorisations to be granted to an operator selected under the common procedure once the use of the frequency has been harmonised.
Third, as regards the powers of the Commission to change the purpose of use of the 2GHz frequency band, the Court observes that the Commission could, on that basis of the Harmonisation Decision,(13) adopt a new decision providing for harmonisation of the conditions of use and availability of the 2GHz frequency band for purposes other than the operation of systems providing MSS, thereby repealing the Harmonisation Decision now in force. Furthermore, the Harmonisation Decision(14) confers on the Commission powers to revise it. Although such an act of the Commission could produce the effects sought by the applicant, the latter is not, however, entitled to seek the annulment of such an act because it does not have standing to bring proceedings.
Finally, as regards the Commission’s powers under the Authorisation Directive, the Court points out that the powers of the NRAs in relation to authorisations are principally those provided for by the MSS Decision, and not those provided for in the Authorisation Directive. Consequently, any Commission powers in respect of the NRAs’ application of the system of authorisations thus provided for fall within the scope of that decision and consist in the coordination of the procedures for monitoring and enforcement of the common conditions to which the authorisations are subject.(15)
Whether the Commission has implicit powers
In that connection, the Court considers that the existence of an implicit power, which constitutes a derogation from the principle of conferral of powers,(16) must be appraised strictly. Thus, it is only exceptionally that such implicit powers are recognised by the case-law and, in order to be so recognised, they must be necessary in order to ensure the practical effect of the provisions of the Treaty or the basic regulation at issue. The Court points out that the Commission cannot regard itself as having been granted implicit powers in respect of authorisations without calling into question those expressly conferred by the legislature on the Member States, nor as having been granted implicit powers going beyond the coordinating powers expressly conferred on it in respect of the enforcement measures.
Consequently, the Court dismisses the present action in its entirety.
1OJ 2008 C201, p.4.
2Decision No626/2008/EC of the European Parliament and of the Council of 30June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L172, p.15; ‘the MSS Decision’), Title II.
3Commission Decision 2007/98/EC of 14February 2007 on the harmonised use of radio spectrum in the 2GHz frequency bands for the implementation of systems providing mobile satellite services (OJ 2007 L43, p.32).
4On the basis of Article17 TFEU, the third subparagraph of Article9(2) and recital22 of the MSS Decision; of recitals24 and 35 and of Article5(2) of Directive 2002/20/EC of the European Parliament and of the Council of 7March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L108, p.21); of Article19 of Directive 2002/21/EC of the European Parliament and of the Council of 7March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L108, p.33).
5On the basis of Article265 TFEU.
6Decision No676/2002/EC of the European Parliament and of the Council of 7March 2002 on a regulatory framework for radio spectrum policy in the European [Union] (Radio Spectrum Decision) (OJ 2002 L108, p.1).
7Article7(2) and Article8(3) of the MSS Decision.
8Article2(2)(a), Article7(1) and (2)(a) and (c) and Article8(3)(a) of the MSS Decision.
9First and second subparagraphs of Article9(2), and Article10 of the MSS Decision.
10Recital22 and third subparagraph of Article9(2) of the MSS Decision.
11Article19(1) of the Framework Directive.
12Article19(3) of the Framework Directive.
13Commission Decision 2007/98/EC of 14February 2007 on the harmonised use of radio spectrum in the 2GHz frequency bands for the implementation of systems providing mobile satellite services (OJ 2007 L43, p.32; ‘the Harmonisation Decision’).
14Recital12 and Article4 of the Harmonisation Decision.
15Article9 of the MSS Decision.
16Article 5(1) TEU.