ViaSat v Commission (Action for failure to act and for annulment - Electronic communications networks and services - Judgment) [2021] EUECJ T-245/17 (10 March 2021)

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(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)

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

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

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

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

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

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,

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

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

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 provision of air-to-ground solutions for in-flight connectivity services.

18 The applicant brought the present action by application lodged at the Court Registry on 24 April 2017.

19 By document lodged at the Court Registry on 18 July 2017, Eutelsat applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By order of 12 September 2017, the President of the Second Chamber of the General Court granted leave to intervene. Eutelsat lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed period.

20 By document lodged at the Court Registry on 10 August 2017, the Kingdom of the Netherlands applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By decision of 15 September 2017, the President of the Second Chamber of the General Court granted leave to intervene. The Kingdom of the Netherlands lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed periods.

21 By documents lodged at the Court Registry on 22 and 23 August 2017, Inmarsat and EchoStar respectively applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By orders of 11 October 2017, the President of the Second Chamber of the General Court granted leave to intervene. Inmarsat and EchoStar submitted their statements in intervention and the main parties submitted their observations on those statements within the prescribed periods.

22 The applicant, supported by the Kingdom of the Netherlands and by Eutelsat, claims that the Court should:

– in the alternative, annul the Commission’s decision contained in its letters of 14 and 21 February 2017 in part or in its entirety;

23 The Commission, supported by EchoStar and by Inmarsat, contends that the Court should:

– dismiss the application for a declaration of failure to act as inadmissible or, in the alternative, as unfounded;

– dismiss the application for annulment as inadmissible or, in the alternative, as unfounded;

24 By decision of 10 April 2019, the Second Chamber of the General Court (former composition) decided to stay the proceedings in the present case pursuant to Article 69(a) and (d) of the Rules of Procedure of the General Court until delivery of the judgment in Case C‑100/19. As the judgment in Viasat UK and Viasat (C‑100/19 P, EU:C:2020:174) was delivered on 5 March 2020, proceedings in the present case were therefore resumed on that date.

25 Since the composition of the Chambers of the General Court had changed, pursuant to Article 27(5) of the Rules of Procedure, the Judge Rapporteur was assigned to the Tenth Chamber, to which the present case was accordingly allocated.

26 On a proposal from the Tenth Chamber, the General Court decided, pursuant to Article 28 of the Rules of Procedure, to refer a case to the Chamber sitting in extended composition.

27 Acting on a proposal from the Judge-Rapporteur, the General Court (Tenth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, requested the parties to answer written questions. The parties complied with that request within the prescribed period.

28 Taking the view that the Commission failed to put an end to the alleged omission, the applicant seeks a declaration that the Commission failed to take action.

29 In the alternative, on the basis that the Commission erred in interpreting the scope of its powers in relation to MSS, the applicant seeks annulment of the decision contained in the letters of 14 and 21 February 2017 sent in response to its letter of 22 December 2016.

30 The applicant claims that the Commission unlawfully failed to adopt the measures necessary to prevent a use of the 2 GHz frequency band other than the one covered by the common selection procedure and in order to ensure the preservation of a harmonised internal market for pan-European MSS which guarantee the 2 GHz frequency band providing universal connectivity. The Commission contests the admissibility of the application for a declaration of failure to act.

32 As far as concerns the admissibility of the application for a declaration of failure to act, the Commission, supported by Inmarsat, claims that, first, it defined its position following the applicant’s request for action to be taken and, second, the nature of that application does not correspond to that of the formal notice in the sense that, in essence, it was not formally requested to adopt an individual decision in respect of Inmarsat for the purposes of prohibiting it from using the 2 GHz frequency band or to take action in order to prevent the fragmentation of the internal market and, as a result, it could not define its position in that regard. The Commission considers that it defined its position in very clear terms following the applicant’s request that action be taken even though that position did not give rise to the action requested by the applicant. Lastly, the Commission considers that the application for a declaration of failure to act is also inadmissible inasmuch as certain measures which it could have adopted following the request for action to be taken fall within its discretion and that, in any event, such measures are not of direct and individual concern to the applicant.

33 In that regard, it is necessary to determine, in the present case, what the nature of the applicant’s request for action to be taken was. The effect of that formal notice is to set the contours of any application for a declaration of failure to act that might be brought should the Commission fail to define its position. Determining its nature also makes it possible to ascertain, in particular, whether the Commission did in fact define a position following the request for action to be taken.

1. The nature of the applicant’s request for action to be taken and the contours delimiting the application for a declaration of failure to act

34 The Commission submits, first, that the applicant’s letter of 22 December 2016 requested it to adopt some sort of measure (decision or opinion) in respect of the NRAs to prevent them from granting authorisation to Inmarsat for certain uses of the 2 GHz frequency band, whereas in the present application for a declaration of failure to act the applicant asks the Court to declare that the Commission failed to take action preventing a different use of that frequency band. According to the Commission, such action may require a measure of general application or a measure directed at Inmarsat individually, resulting in the assessment of very different elements.

35 Second, the Commission submits that the applicant is asking the Court to find that it committed a wrongful omission by failing to take any action to preserve the development of a harmonised internal market for pan-European MSS in the 2 GHz band which provides universal connectivity, even though no clear request for it to take action was made in that regard. The Commission considers that the applicant’s letter of 22 December 2016 does not contain the necessary elements which would allow it to define its position, by adopting a decision or proposing a draft decision to the European Parliament and Council, in order to prevent the fragmentation of the internal market, as that letter does not contain any references in that regard. It submits that it is for the applicant to state the nature of that decision in specific terms.

36 The applicant considers that there are no particular requirements as to the form of the formal notice and that the notice addressed to the Commission in the form of the letter of 22 December 2016 was sufficiently detailed to enable the Commission to ascertain the specific terms and nature of the decision which it requested it to adopt, in particular in the light of the clear wording of the applicant’s letter of 2 August 2016. In addition, the applicant claims that, in its letter of 22 December 2016, it analysed the Commission’s obligations under the Treaties with regard to the ‘proper functioning of the single market’ and its powers to ‘address barriers’ to the internal market that may be created where, as in the present case, divergences among the NRAs may have occurred.

37 In that regard, the Court notes that, under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if an EU institution has first been called upon to act.

38 Giving formal notice to the EU institution in question is an essential procedural requirement the effects of which are, first, to cause the two-month period within which the institution is required to define its position to begin to run and, second, to define the contours of any action that might be brought should the institution fail to define its position. Whilst there is no particular requirement as to form, the notice must be sufficiently clear and precise to enable the Commission to ascertain in specific terms the nature of the decision which it is being asked to adopt and must make clear that its purpose is to compel the Commission to state its position (see judgment of 3 June 1999, TF1 v Commission, T‑17/96, EU:T:1999:119, paragraph 41 and the case-law cited; judgment of 29 September 2011, Ryanair v Commission, T‑442/07, not published, EU:T:2011:547, paragraph 22).

39 However, the wording of an action for failure to act and of the formal notice must not be identical. In bringing such an action, the applicant cannot ask the Court to order the Commission to adopt the omitted measure, but only to declare, if appropriate, that, by not adopting the measures requested, it has infringed its obligations (see, to that effect, judgment of 8 June 2000, Camar and Tico v Commission and Council, T‑79/96, T‑260/97 and T‑117/98, EU:T:2000:147, paragraph 67). Therefore, by its nature, that action does not require the applicant, in formulating the form of order sought before the Court, to use the same wording as that in the formal notice sent to the Commission.

40 In that regard, it should be made clear that the purpose of the applicant’s request for action to be taken is apparent, inter alia, from the heading of its letter of 22 December 2016, which reads as follows:

‘Letter of formal notice under the second paragraph of Article 265 of the TFEU calling upon the … Commission to act on [the applicant’s] request of 2 August 2016 to adopt a definitive decision in order to prevent [NRAs] from adopting a decision favourable to the request by Inmarsat to be authorised to use the [2 GHz frequency band] for the provision of air-to-ground solutions for in-flight connectivity services.’

41 Furthermore, after setting out all the legal rules on the basis of which it considers that the Commission is under an obligation to take action, the applicant repeats the request at issue in the following terms, which whilst different are substantially similar:

‘[The applicant] therefore requested the Commission to act urgently … [to] prevent NRAs from authorising Inmarsat to use the [2 GHz band spectrum] for the provision of in-flight connectivity services, without a new tender for the allocation of the rights to use that spectrum.’

42 Moreover, in its letter of 22 December 2016, the applicant expressly and formally requested the Commission to grant the request in question. Accordingly, that letter must be taken to constitute a letter of formal notice within the meaning of Article 265 TFEU with regard to all the submissions exhaustively set out in the letter of 2 August 2016 (see, to that effect, judgment of 3 June 1999, TF1 v Commission, T‑17/96, EU:T:1999:119, paragraph 42).

43 It is therefore necessary to examine whether the formal notice sent to the Commission on 22 December 2016, read in the light of the applicant’s letter of 2 August 2016, contains a request for action to be taken in order to prevent a ‘fundamental shift’ in the use of the 2 GHz frequency band and a fragmentation of the internal market which is sufficiently clear and precise to enable the Commission to ascertain in specific terms the nature of the decision which it was asked to adopt and whether it was clear from that request that its purpose was to compel the Commission to state its position within the meaning of the case-law referred to in paragraph 38 above.

44 In that regard, in the first place, it should be made clear that, in its letter of 2 August 2016, the applicant had expressed its view that, if authorisations were granted to Inmarsat by the NRAs for the EAN, this would constitute a ‘fundamental shift’ away from the scope of use of the 2 GHz frequency band originally envisaged by the European Legislator.

45 Thus, in so far as the applicant asks the Court to find that the Commission failed to take measures in order ‘to prevent NRAs from authorising, in an uncoordinated manner, Inmarsat to use the 2 GHz Band primarily for air-to-ground network purposes’ and to prevent a ‘fundamental shift’ in the use of the 2 GHz frequency band, that request does not go beyond the contours of an action for failure to act as delimited by the formal notice sent to the Commission on 22 December 2016 read in the light of the applicant’s letter of 2 August 2016, contrary to what, in essence, the Commission claims.

46 The same applies to the applicant’s application for a declaration by the Court that the Commission unlawfully failed to ‘[prevent] a different use of the 2 GHz Band’.

47 By contrast, as the Commission submits, the application for a declaration of failure to act is inadmissible in so far as the applicant seeks a declaration from the Court that the Commission unlawfully failed to adopt a measure directed individually at Inmarsat seeking to prevent it from using the 2 GHz frequency band for its air-to-ground network providing in-flight connectivity. In response to a written question of the Court and at the hearing, the applicant stated that one of the measures which the Commission would have been empowered to take according to the request that action be taken was a ‘letter of formal notice’ addressed to Inmarsat prohibiting it from using the 2 GHz frequency band to operate the EAN. However, neither in the letter of formal notice sent to the Commission on 22 December 2016, nor in its letter of 2 August 2016 to which that formal notice refers, did the applicant request the Commission to adopt such a measure with respect to Inmarsat. No request for action to be taken to that effect can be inferred from the context in which the applicant sent the Commission that letter of formal notice and the letter of 2 August 2016, which was clearly directed towards the adoption of a measure preventing NRAs from granting authorisations to Inmarsat, in particular, in view of the use of that frequency band which, according to the applicant, was not in conformity with the harmonised aims or with the Selection Decision.

48 Consequently, the plea of inadmissibility raised by the Commission alleging that the nature of that request does not correspond to that of the formal notice is in part well founded.

49 In the second place, it should be made clear that the request for action to be taken which the applicant made to the Commission is based on the premiss that the Commission is obliged to take action where there is a risk that the harmonisation of the internal market of MSS will be affected. In that regard, the applicant relied on Article 17 TEU and on the role of the Commission, as ‘Guardian of the Treaties’, to oversee the application of EU law and on the powers of supervision which the applicant claims that the Commission has under Article 19 of the Framework Directive and recital 35 of the Authorisation Directive over the functioning of the internal market for MSS.

50 In that regard, it should be noted that, according to the case-law, formal notice must indicate the nature of the measure requested but need not go as far setting out the precise details of that measure (see, to that effect, judgments of 8 July 1970, Hake v Commission, 75/69, EU:C:1970:65, paragraphs 4 to 10, and of 22 May 1985, Parliament v Council, 13/83, EU:C:1985:220, paragraphs 35 to 37).

51 In the present case, the Commission was in a position to infer from the letter of formal notice sent to it on 22 December 2016, read in the light of the applicant’s letter of 2 August 2016, that the measure which the applicant requested it to adopt had to have the consequence that the internal market for the use of the 2 GHz frequency band for MSS, as established by the applicable legal framework, be preserved. Furthermore, it should be noted, as does the applicant, that the Commission responded in its letter of 21 February 2017 that its services ‘[were] monitor[ing] market and regulatory developments’.

52 In the light of the foregoing, first, contrary to what is claimed by the Commission, the formal notice was sufficiently clear and precise in respect of the nature of the measure which the Commission was asked to adopt to give it the opportunity to define its position on what action should be taken for the purposes of preventing the NRAs from granting authorisations to Inmarsat in view of preserving the internal market of the MSS.

53 Second, the application for a declaration of failure to act is inadmissible in so far as the applicant seeks a declaration from the Court that the Commission unlawfully failed to adopt a measure directed individually at Inmarsat seeking to prevent it from using the 2 GHz frequency band for its air-to-ground network providing in-flight connectivity.

2. Whether the Commission defined its position following the applicant’s request that action be taken

54 The Commission claims that in its letters of 14 February 2017 and 21 February 2017 it defined its position in relation to the applicant’s request that it adopt a measure in order to prevent NRAs from granting Inmarsat authorisations to use the spectrum in the 2 GHz frequency band for the provision of air-to-ground solutions for in-flight connectivity services. The Commission considers that it defined its position in clear terms following the request that action be taken even though that position did not give rise to the measures requested by the applicant. In the reply, the applicant disputes the Commission’s arguments by maintaining that the Commission’s response to its request for action to be taken, as expressed in its letters of 14 and 21 February 2017, was tantamount to a failure to act.

55 However, in its responses to the written questions of the Court, it stated that it was ‘not under dispute that, in [those letters], the Commission [did] take a position, and that that position [had] amounted to the rejection of [its] request’. When questioned on that point by the Court at the hearing, the applicant confirmed that it no longer disputed that the Commission had taken a position following its request for action to be taken, which was noted in the minutes of the hearing.

56 In that regard, the Court recalls that, under the second paragraph of Article 265 TFEU, ‘[an] action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months’.

57 According to settled case-law, the requirements laid down in Article 265 TFEU for the admissibility of an action for failure to act are not met where the institution called upon to act has defined its position on that request before proceedings are brought (see judgment of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 45 and the case-law cited).

58 In the present case, it is clear from the Commission’s letters of 14 and 21 February 2017 that the Commission 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 that it take action to prevent NRAs from granting authorisations to Inmarsat for the use of the 2 GHz 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. That therefore constitutes a refusal to act.

59 It is settled case-law that an EU institution has not failed to act, not only when it adopts a measure vindicating the applicant, but also when it refuses to adopt such a measure and answers the request made to it with a statement of the reasons why it considers that that measure should not be adopted or that it does not have the power to do so (see order of 7 December 2017, Techniplan v Commission, T‑853/16, not published, EU:T:2017:928, paragraph 22 and the case-law cited; see also, to that effect, judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 4, and of 24 November 1992, Buckl and Others v Commission, C‑15/91 and C‑108/91, EU:C:1992:454, paragraphs 15 and 20, and order of 8 December 2005, Campailla v Commission, C‑211/05 P, not published, EU:C:2005:760, paragraph 17).

60 Consequently, an institution’s refusal to act in accordance with such a request constitutes the adoption of a position putting an end to the failure to act (order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 36, and judgment of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 44; see also, to that effect, judgment of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraphs 22 to 31).

61 It must therefore be held that, in the present case, the Commission put an end to the failure to act alleged against it before the action was brought. The application for a declaration of failure to act must therefore be dismissed as inadmissible.

62 In the light of the foregoing, it is not necessary to examine the Commission’s line of argument that the application for a declaration of failure to act is inadmissible in so far as certain measures which it might have taken following the applicant’s request for action fall within its discretion and could not therefore fall within the scope of such a request and that, in any event, the applicant would not be directly and individually concerned by such measures.

63 The applicant maintains that, in the letters of 14 and 21 February 2017 sent to it by the Commission, the Commission erred in law by considering that it was exclusively for the Member States to take decisions on the authorisation of the use of the 2 GHz frequency band by the selected MSS operators and enforcement of those authorisation decisions. It submits that the Commission has the powers to take appropriate measures in order to prevent Member States from granting authorisations to Inmarsat and in order to prevent the fragmentation of the internal market for MSS.

64 The Commission considers that the application for annulment is inadmissible, inter alia, on the ground that its letters of 14 and 21 February 2017 are not binding and do not, as such, constitute an actionable measure for the purposes of the first paragraph of Article 263 TFEU.

65 In the alternative, the Commission submits that the application for annulment is unfounded since, not having the powers to adopt the measures requested by the applicant, it did not err in law by responding to the request for action to be taken in its letters of 14 and 21 February 2017 to that effect.

1. The decision contained in the letters of 14 and 21 February 2017 and the Court’s review of legality

66 The Commission, supported by Inmarsat, considers that the letters of 14 and 21 February 2017 are not actionable measures for the purposes of the first paragraph of Article 263 TFEU. On the basis of the case-law, the Commission considers that those letters, first, merely inform the applicant that no decision has been taken by the Commission ‘on any MSS authorisation request’ and, second, set out a legal opinion that such a decision would, in any event, be a matter to be dealt with by the competent national authorities. It also considers that the applicant’s point of view that those letters clearly alter its legal position is purely speculative since it is based on several assumptions.

67 The applicant, supported by the Kingdom of the Netherlands, considers that the Commission’s letters of 14 and 21 February 2017 contain a decision in respect of which an action for annulment may be brought. In maintains that those letters form the Commission’s definitive position, consisting in a refusal to take action following the applicant’s request for measures to prevent the NRAs from granting authorisations to Inmarsat for the use of the 2 GHz 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.

68 According to settled case-law, only measures which produce binding legal effects and are capable of affecting the interests of third parties by bringing about a distinct change in their legal position constitute measures in respect of which an action for annulment may be brought (judgments of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; of 2 March 1994, Parliament v Council, C‑316/91, EU:C:1994:76, paragraph 8, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36).

69 To determine whether a measure or decision for which annulment is sought produces such effects, it is necessary to look to its substance (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9) as well as the intention of those who drafted it in their classification of that measure or decision (judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52). By contrast, the form in which a measure or decision is adopted is in principle irrelevant to the admissibility of an application for annulment (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 46).

70 In the present case, as is apparent from paragraphs 58 to 60 above, the Commission, by its letters of 14 and 21 February 2017, defined its position following the applicant’s request for action to be taken requesting it to take measures to prevent the NRAs from granting authorisations to Inmarsat for the use of the 2 GHz 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, taking the view that it could not take any action since it does not have any powers in that regard. Contrary to the Commission’s contention, those letters do not contain mere information or a legal opinion, but must be regarded as a refusal to act.

71 In that regard, it should be noted that an institution’s refusal to take action following a request is, in principle, actionable for the purposes of Article 263 TFEU (see, to that effect, order of 4 May 2005, Holcim (France) v Commission, T‑86/03, EU:T:2005:157, paragraph 36; judgment of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 44, and order of 7 December 2017, Techniplan v Commission, T‑853/16, not published, EU:T:2017:928, paragraph 20).

72 However, it is also clear from settled case-law that a measure adopted by the Commission which amounts to a rejection, as in the present case, must be appraised in the light of the nature of the request to which it constituted a reply (judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5; of 24 November 1992, Buckl and Others v Commission, C‑15/91 and C‑108/91, EU:C:1992:454, paragraph 22, and order of 13 March 2007, Arizona Chemical and Others v Commission, C‑150/06 P, not published, EU:C:2007:164, paragraph 22). In particular, a refusal constitutes a measure in respect of which an action for annulment may be brought under Article 263 TFEU provided that the measure which the EU institution refuses to adopt would itself have been actionable under that provision (see judgment of 22 October 1996, Salt Union v Commission, T‑330/94, EU:T:1996:154, paragraph 32 and the case-law cited; see also, to that effect, orders of 13 March 2007, Arizona Chemical and Others v Commission, C‑150/06 P, not published, EU:C:2007:164, paragraph 23, and of 22 January 2010, Makhteshim-Agan Holding and Others v Commission, C‑69/09 P, not published, EU:C:2010:37, paragraph 46).

73 Thus, in order to assess whether the application for annulment of the Commission’s refusal to take action following the applicant’s request to take measures to prevent the NRAs from granting authorisations to Inmarsat for the use of the 2 GHz 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 is admissible, it is necessary to examine whether the measure which the Commission was requested to adopt would constitute in itself a measure the legality of which would be actionable in the General Court under Article 263 TFEU (see, to that effect, order of 13 March 2007, Arizona Chemical and Others v Commission, C‑150/06 P, not published, EU:C:2007:164, paragraph 23).

74 That question is, in the present case, related to the question whether the Commission has any powers to adopt such a measure. In order to determine whether, in the present case, the measure which the Commission refused to adopt on the ground of not having any powers to do so is itself actionable in accordance with the case-law referred to in paragraph 73 above, it is necessary, in particular, to determine the nature of that measure according to the powers alleged by the applicant. This therefore means that the Commission’s powers to adopt a measure in accordance with the request for action to be taken must first be examined. Next, if it has the necessary powers, it is necessary to examine, in accordance with the case-law referred to in paragraph 73 above, whether the legality of the measure which it has the powers to adopt would be actionable before the Court. If the answer to either of those questions is in the negative, that is if the Commission does not have the relevant powers or if it is not open to the applicant to bring an action for annulment against a measure which the Commission does have the power to adopt, the application for annulment must be dismissed either, in the former case, as unfounded or, in the latter, as inadmissible in the light of the case-law referred to in paragraph 73 above. On the other hand, if the Commission does have the power to adopt a measure of the nature requested by the applicant, annulment of which the applicant could seek under Article 263 TFEU, the action must be upheld in so far as the Commission refused to take action having taken the view that it lacked the relevant powers.

75 Thus, the legality of the refusal to take action in the Commission’s letters of 14 and 21 February 2017 will be examined together with the admissibility of the application for annulment of that refusal to take action (see, to that effect, judgment of 16 June 1993, France v Commission, C‑325/91, EU:C:1993:245, paragraph 11).

76 Furthermore, it must be borne in mind that the Court is entitled to assess, according to in the circumstances of the case before it, whether the proper administration of justice justifies the dismissal of the action as unfounded without first ruling on the objection of inadmissibility raised by the Commission to the application for annulment founded on the applicant’s lack of legal interest in bringing proceedings or locus standi to bring an action for annulment of the measure sought by the request for action to be taken (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52). In the present case, in view of the relationship between the admissibility and the substance of the action, the Court considers it appropriate to rule, first of all, on whether the Commission has the powers to adopt a measure in accordance with the request for action to be taken which the applicant sent to it, without prejudice to paragraphs 107 to 112 and 164 to 180 below.

2. The applicant’s arguments relating to each of the Commission’s powers to adopt the measures sought following its request for action to be taken

77 It should be noted that, in its letter of 22 December 2016, the applicant expressly and formally requested the Commission to grant its request in the letter of 2 August 2016 to take action to prevent the NRAs from granting authorisations to Inmarsat for the use of the 2 GHz 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.

78 The response to the applicant’s request for action to be taken, as set out, in essence, in the Commission’s letters of 14 and 21 February 2017, is comprised of three lines of argument. First, the Commission stated that decisions on applications for authorisation and the enforcement measures concerning MSS and their operators are taken at national level. Second, it maintained that it merely facilitates cooperation between Member States in accordance with the Enforcement Decision and stated that no re-definition of the purpose of using the 2 GHz frequency band was planned. Third, it considered that the applicable legal framework does not foresee specific powers for the Commission to take action in order to prevent a Member State from authorising Inmarsat to use radio spectrum in the 2 GHz frequency band for the provision of air-to-ground solutions for in-flight connectivity services.

79 The applicant, supported by the Kingdom of the Netherlands and Eutelsat, considers that, by the letters of 14 and 21 February 2017, the Commission incorrectly denied having any powers to take action on the request made to it. The applicant also disputes not being entitled to bring an action for annulment of the measures which it considers that the Commission does have the power to adopt.

80 In that regard, as a preliminary point, as regards the nature of the measure which the applicant alleges that the Commission is required to adopt following its request for action to be taken, the applicant, in response to the written and oral questions put by the Court, stated, in essence, that the Commission’s action could have taken the form (i) of a measure specifically directed at Inmarsat prohibiting it from using the 2 GHz frequency band for the deployment of the EAN on the ground of incompatibility with the regulatory framework relating to MSS, (ii) of a measure withdrawing Inmarsat from the benefits of the Selection Decision, (iii) of a measure specifically directed at the NRAs prohibiting them from granting authorisations to Inmarsat for the use of the 2 GHz frequency band in respect of its deployment, or (iv) a measure of general application preserving the harmonisation of the purpose of using the 2 GHz frequency band resulting in the NRAs being prevented from granting such authorisations to Inmarsat.

81 In that regard, first of all, it should be noted, as is apparent from paragraph 47 above, that the request for action to be taken which the applicant made to the Commission did not contain any request for the adoption of a measure specifically directed at Inmarsat, prohibiting it from using the 2 GHz frequency band for the operation of the EAN. Consequently, the applicant cannot validly challenge the legality of the decision contained in the Commission’s letters of 14 and 21 February 2017 in that regard. Since the applicant did not request the Commission to adopt that measure, it necessarily follows that it could not have adopted a decision in that regard.

82 Next, the applicant considers that the Commission erred in law by refusing to adopt a measure specifically directed at the NRAs, or a measure of general application, by disregarding, or misinterpreting, its powers arising, first, from the legal framework relating to the management of the radio spectrum and MSS, second, from overarching principles of public procurement law, third, from its obligation to prevent fragmentation of the internal market in order to safeguard the effet utile of the 2 GHz MSS spectrum harmonisation initiative and, fourth, the principle of sincere cooperation laid down in Article 4(3) TEU. Lastly, it considers that those powers are implicit in nature.

(1) Whether the Commission has powers under the legal framework relating to the management of the radio spectrum and MSS

83 According to the applicant, the EAN system proposing the provision of air-to-ground solutions for in-flight connectivity, for which Inmarsat requests authorisation from the NRAs, does not correspond either to the definition of the purposes of the use of the 2 GHz frequency band in the Harmonisation Decision, or to the commitments made by Inmarsat in the context of the selection procedure and for the implementation of which it had been chosen, namely to provide MSS which ensure universal connectivity.

84 The applicant submits that, although the MSS Decision confers the powers to grant authorisations on the NRAs, the powers to identify the frequencies allocated for MSS, to define the purposes for which the 2 GHz frequency band will be used and to select operators in accordance with the common procedure lie exclusively with the Commission in accordance with Title II of the MSS Decision in particular. According to the applicant, supported by Eutelsat, a Member State authorisation that allows Inmarsat to change the use of the 2 GHz frequency band to air-to-ground related services constitutes a clear misuse of those powers which lie with the Commission and a redefinition of the concepts of ‘mobile satellite systems’ and ‘complementary ground components’ as defined in the MSS Decision, as well as the conditions and obligations imposed by the Commission in the call for applications and the Selection Decision.

85 According to the applicant, in so far as it was the Commission which adopted the Harmonisation Decision and the Selection Decision, it should be for the Commission to monitor the correct application of those decisions and therefore decide that the use of radio spectrum in the 2 GHz frequency band for MSS on a primarily ground-based network, as proposed by Inmarsat, constitutes a fundamental change in the harmonised use of that frequency band at EU level. In that regard, in the opinion of the applicant and Eutelsat, the Commission should have informed the NRAs, first, that such a change in use did not fall within the scope of usage of the spectrum assigned to Inmarsat following the selection procedure pursuant to the MSS Decision and, second, that any decision on a different use of that spectrum would need to follow a ‘Union procedure’, that is to say a new call for applications.

86 Furthermore, it considers that the Enforcement Decision, adopted by the Commission on the basis of Article 9(3) of the MSS Decision, referred to by the Commission in its letter of 14 February 2017 in which it maintained that its enforcement measure powers in relation to authorised operators were limited to monitoring action taken at national level, applies only to possible breaches of the common conditions set out in Article 7(2) of that decision and does not therefore concern the ‘authorisation’ stage described in Title III thereof.

87 Consequently, according to the applicant, the Commission was required to take action to prevent the risk of departures from the scope and criteria for the exclusive use of the 2 GHz frequency band authorised according to the harmonised procedure and the subsequent selection process.

88 The Commission, supported by Inmarsat and EchoStar, submits, first, that the EU legal framework applicable to systems providing MSS does not confer on the Commission the power to grant authorisations to operators for a particular use of a frequency band. It contends that that power is reserved exclusively to NRAs, who alone have the power to grant authorisations to selected applicants and to adopt enforcement measures in order to ensure compliance with the common conditions.

89 In that regard, it should be noted that the regulatory framework for radio spectrum management and MSS provides for a clear allocation of powers between the Commission and the Member States.

90 First, it is apparent from the regulatory framework relating to radio spectrum management and MSS that, as the applicant points out, the Commission has certain powers to adopt measures with binding legal effects. Article 4(3) of the Radio Spectrum Decision conferred on the Commission the power to determine the availability and purpose of the frequencies, which it exercised, as regards the use of the 2 GHz frequency band for MSS by adopting the Harmonisation Decision.

91 The Commission also has, in accordance with Title II of the MSS Decision, as the applicant submits, the exclusive power to select MSS operators in the 2 GHz frequency band under a common selection procedure. As the Commission confirmed at the hearing in reply to a question from the Court, in the context of that common selection procedure, it determines, inter alia, whether the system proposed in the response to the call for applications is covered by the definition of a system providing MSS as set out in Article 2(2)(a) of that decision. As is apparent from that title, a comparative selection procedure was to be organised by the Commission for the selection of operators of mobile satellite systems. Pursuant to that exclusive power, the Commission adopted the Selection Decision, by which it selected Inmarsat and Solaris (now EchoStar) as operators providing MSS in the 2 GHz frequency band (see paragraph 8 above).

92 Second, the regulatory framework applicable to MSS confers certain exclusive powers on the Member States. Thus, in the first place, it is for the competent national authorities, under Title III of the MSS Decision, to grant to the operators selected by the Commission the authorisations necessary to use the radio frequencies assigned for the operation of mobile satellite systems.

93 According to Article 7(1) of the MSS Decision, Member States alone are to ensure that the selected applicants have the right to use the specific radio frequency identified in the Commission decision and the right to operate a mobile satellite system. In addition, under Article 8(1) of that decision, Member States are to ensure that their competent authorities grant to the applicants selected in accordance with Title II of that decision and authorised to use the spectrum pursuant to Article 7 thereof the authorisations necessary for the provision of complementary ground components of mobile satellite systems on their territories.

94 It is clear from the wording of Article 7(1) and Article 8(1) of the MSS Decision, that the grant of the authorisation necessary, according to the former provision, is subject to a single condition, namely that the operator seeking that authorisation is an applicant selected in accordance with Title II of the decision, whereas authorisation pursuant to the latter provision is subject to two conditions, namely, in addition to being a selected operator, an applicant for authorisation must also be authorised to use the radio spectrum in question pursuant to Article 7 of that decision (see, to that effect and by analogy, judgment of 5 March 2020, Viasat UK and Viasat, C‑100/19, EU:C:2020:174, paragraph 46).

95 Consequently, a literal interpretation of Article 7(1) and Article 8(1) of the MSS Decision leads to the conclusion that no authorisation under either of those provisions can be refused by an NRA on the ground that the system for which authorisation is sought is not a mobile satellite system or that the operator in question has not complied with the commitment made during the selection procedure (see, to that effect, judgment of 5 March 2020, Viasat UK and Viasat, C‑100/19, EU:C:2020:174, paragraph 49). In that context, it should be noted, as is apparent from paragraph 91 above, that, before adopting the Selection Decision, the Commission is to assess whether the system proposed by an operator in response to the call for applications is a system providing MSS.

96 It follows that 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, which is accepted by the applicant.

97 The applicant considers, in essence, that that fact means that the Commission is required to act in order to ‘protect’ its exclusive powers and thus to prevent authorisations from being granted by NRAs in a case where the system for the operation of which a selected operator is seeking authorisation has been modified, as would be the case, in the present case, with the EAN, in relation to that for the application of which it had been selected by the Commission, and where the new system does not meet the aims laid down in the Harmonisation Decision and the MSS Decision, nor the commitments entered into by the operator in question in the context of the common selection procedure.

98 In the second place, in that regard, it should be noted that the power to monitor compliance with the common conditions laid down in Article 7(2) and Article 8(3) of the MSS Decision, to which authorisations are subject, and with the commitments entered into by the operator in question in the context of the selection procedure, and the power to impose penalties for infringements, was conferred on the Member States, with the Commission having only coordinating powers in that regard.

99 First, Article 9 of the MSS Decision provides for a system for monitoring of compliance with the common conditions to which authorisations granted by NRAs are subject and the enforcement procedure in the event of non-compliance by a selected operator authorised pursuant to those common conditions. The MSS Decision confers the powers in that regard primarily on the Member States.

100 Thus, in accordance with the second subparagraph of Article 9(2) of the MSS Decision, the Member States are to ensure monitoring of compliance with the common conditions to which authorisations pursuant to Articles 7 and 8 of the decision are subject and take appropriate measures to address non-compliance. The first subparagraph of Article 9(2) of that decision states that the national rules on enforcement must be in accordance with EU law, and in particular with Article 10 of the Authorisation Directive.

101 In accordance with Article 10 of the Authorisation Directive, the NRAs monitor and supervise compliance with the conditions of the general authorisation or of rights of use of radio frequencies. In that regard, Member States empower the NRAs, inter alia, to impose on undertakings that fail to comply with one or more of the conditions for general authorisation or the conditions of use dissuasive financial penalties and orders to cease provision of a service or bundle of services which, if continued, would result in significant harm to competition.

102 The provisions referred to in paragraphs 99 to 101 above must be read in the light of recital 21 of the MSS Decision, according to which decisions on the withdrawal of authorisations granted in relation to MSS or complementary ground components due to the non-compliance with obligations must be enforced at national level.

103 Second, among the common conditions to which authorisations are subject under Article 7(1) of the MSS Decision, compliance with which must be ensured by the Member States in accordance with the second subparagraph of Article 9(2) of that decision, is, inter alia, that provided for in Article 7(2)(a) thereof that the selected applicants are to use the assigned radio spectrum for the provision of MSS. Article 7(2)(a) of the MSS Decision, read in conjunction with the definition contained in Article 2(2)(a) thereof, thus aims at compliance monitoring by the Member States with the purpose of assigning the frequency for the provision of MSS and, consequently, at ensuring that the system for the operation of which that frequency is used is a mobile satellite system providing MSS, which is, in essence, accepted by the applicant in its submission that the purpose of harmonising the 2 GHz frequency band is that ‘mobile satellite systems’ should provide MSS.

104 Furthermore, the authorisations referred to in Article 7(1) of the MSS Decision are also subject to the common condition provided for in Article 7(2)(c) of that decision that selected applicants are to honour any commitments they give in their applications or during the selection procedure organised by the Commission.

105 Furthermore, the authorisations granted by the NRAs under Article 8(1) of the MSS Decision are subject, inter alia, to the common condition provided for in Article 8(3)(a) of that decision that operators are to use the assigned radio spectrum for the provision of complementary ground components of mobile satellite systems, and the condition provided for in Article 8(3)(b) of that decision that complementary ground components are to constitute an integral part of a mobile satellite system and are to be controlled by the satellite resource and network management mechanism. Those provisions, read in conjunction with the definition set out in Article 2(2)(b) of that decision, enable Member States to follow and monitor a selected operator’s compliance, inter alia, with the role of complementary ground components in the mobile satellite system authorised under Article 7(1) of the decision in question.

106 Consequently, it is abundantly clear that the MSS Decision provides for a monitoring procedure in respect of a system for which authorisations are granted by the NRAs and supervise the use, in accordance with the harmonised purpose for the provision of MSS, of the spectrum assigned to the authorised selected operator, and thus that operator’s compliance with the legal framework for MSS, in particular as regards the very definition of the mobile satellite system and of the commitments made during the selection procedure. Decision-making powers in that regard are conferred on the Member States.

107 Third, as regards the Commission’s powers in the context of the monitoring and enforcement procedure, it is apparent from recital 22 of the MSS Decision that, while monitoring of the use of radio spectrum by the selected and authorised operators of mobile satellite systems and any required enforcement action is undertaken at national level, it should remain possible for the Commission to define the modalities of a coordinated monitoring and/or enforcement procedure. Wherever necessary, the Commission should have the right to raise enforcement issues relating to the fulfilment by operators of common authorisation conditions.

108 Thus, first, in accordance with the third subparagraph of Article 9(2) of the MSS Decision, ‘the Commission may, with the assistance of the Communications Committee [set up pursuant to Article 22 of the Framework Directive], examine any alleged specific breach of the common conditions’. In addition, according to that provision, ‘where a Member State informs the Commission of a particular breach, [it] shall examine the alleged breach’. That provision does not specify the nature of the measure which the Commission might adopt on the basis of that provision or the legal effects of an examination which the Commission may or, where necessary, must carry out.

109 However, it is clear from the systemic interpretation of the third subparagraph of Article 9(2) of the MSS Decision that, in exercising the powers conferred on it by that provision, the Commission may or, at most, must, in the context of the work of the Communications Committee, issue a recommendation or an opinion to the competent national authorities. It is apparent from Article 9(2) of that decision that it is for the Member States to ensure compliance with the common conditions and to take appropriate measures in the event of non-compliance (see paragraph 100 above). It follows that the ‘examination’ which the Commission may or must carry out pursuant to the third subparagraph of Article 9(2) of that decision can only be intended to provide the Member States with assistance with a view to deciding whether or not there has been a breach of the common conditions and, where necessary, to fixing the penalty to be applied in respect of such a breach, but does not, however, confer on the Commission any decision-making power in that regard.

110 According to the case-law referred to in paragraphs 68 and 69 above, any measures adopted by the EU institutions, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU (see, to that effect, judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54).

111 By contrast, any measure not producing binding legal effects falls outside the scope of the judicial review provided for in Article 263 TFEU, such as draft measures, confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 52).

112 Consequently, according to the case-law set out in paragraph 72 above, the present action is inadmissible in so far as it concerns a refusal by the Commission to adopt a measure under the third subparagraph of Article 9(2) of the MSS Decision.

113 Second, as regards the Commission’s power under Article 9(3) of the MSS Decision to adopt a decision having binding legal effects on the Member States in order to establish a coordination mechanism for the enforcement of the common conditions on the provision of MSS, the Commission accepted, in response to Eutelsat’s line of argument and a question from the Court, that that provision confers on it powers to adopt other appropriate modalities for coordinated application of the rules on enforcement, in particular as regards the common conditions related to the use of complementary ground components.

114 However, it should be noted, as does the Commission, that the power conferred on it by Article 9(3) of the MSS Decision is merely a power to coordinate the modalities for the application of enforcement measures by the competent national authorities, since those authorities nonetheless retain the exclusive power to apply the enforcement measures. Thus, the Commission has no power under that provision either to make a legally binding finding of breach of the common conditions, or to adopt a measure by which it could prevent those national authorities from granting authorisation, or to withdraw or suspend such authorisation in a case where they find that a breach has occurred.

115 It follows from the foregoing that, contrary to what the applicant claims, 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 a measure which would be actionable under Article 263 TFEU preventing the NRAs from granting authorisations to Inmarsat or compelling them to withdraw the authorisations granted.

116 In the third place, in so far as the arguments put forward by the applicant regarding the present plea must be construed as claiming that the Commission has implicit powers to adopt an actus contrarius by withdrawing or amending the decision to select operators on the ground that the use of the 2 GHz frequency band assigned to Inmarsat corresponds neither to the purposes determined by the Harmonisation Decision nor to the criteria on the basis of which Inmarsat had been selected, it is appropriate to note the following.

117 In accordance with a general principle of law, a body which has the power to adopt a particular legal measure also has the power to abrogate or amend it by adopting an actus contrarius, unless such a power is expressly conferred upon another body (see, to that effect, judgments of 20 November 2002, Lagardère and Canal+ v Commission, T‑251/00, EU:T:2002:278, paragraph 130, and of 15 December 2016, Spain v Commission, T‑808/14, not published, EU:T:2016:734, paragraph 40).

118 In the present case, since authorisations can be granted by the NRAs only to operators selected by the Commission (see paragraph 94 above), abrogating the Selection Decision would have resulted, for the operator, in the loss of its status as a selected operator and, in accordance with Article 7(1) and Article 8(2) of the MSS Decision, the NRAs would no longer have been able to grant it authorisations.

119 In that regard, it is possible that, in certain circumstances, the Commission may have the power to abrogate or amend a selection decision which it has adopted (see, to that effect, judgment of 5 March 2020, Viasat UK and Viasat, C‑100/19, EU:C:2020:174, paragraph 47).

120 However, to recognise the existence of such a power for the Commission to withdraw or amend the Selection Decision on the ground that, following its adoption, the selected operator had changed its system so that it was no longer be consistent with the legal framework applicable to the MSS or with the commitments made during the selection procedure, would be contrary to the allocation of powers established between the Commission and the Member States, since it would require the Commission to assess the compatibility of the system at issue with the legal framework and with that decision thereby rendering the enforcement procedure, which falls within the exclusive decision-making powers of the Member States, superfluous. As is clear from paragraph 106 above, as regards the system by which the MSS Decision allocates powers between the Commission and the Member States, it is for the latter to monitor, with the assistance of the Commission which has coordinating powers in that regard, such compatibility as part of its monitoring of compliance with the common conditions to which the authorisations granted to the selected operator are subject. Thus, the powers in that regard were expressly conferred by the express provisions of the MSS Decision on a body other than the Commission within the meaning of the case-law referred to in paragraph 117 above.

121 Furthermore, it should be noted that retroactive withdrawal of a favourable administrative measure is subject to strict conditions. According to settled case-law, while it must be acknowledged that any EU institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw it within a reasonable period, with retroactive effect, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the legality thereof (see judgments of 17 April 1997, de Compte v Parliament, C‑90/95 P, EU:C:1997:198, paragraph 35 and the case-law cited, and of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 189 and the case-law cited). Thus, the withdrawal of a measure conferring rights is subject to three conditions: first, the decision conferring the right must be illegal, second, the withdrawal must occur within a reasonable period after the adoption of the decision in question and, third, the EU institution must, in principle, respect the legitimate expectations of a bona fide beneficiary of the decision who relied on its legality (see, to that effect, judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraphs 69 to 72). The applicant has not put forward any argument to show that the second and third conditions referred to above are satisfied in the present case.

(2) Whether the Commission derives powers from general principles of EU public procurement law

123 Referring to Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) and Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p.1), the applicant, supported by Eutelsat, claims that the obligation to take action on the part of the Commission also derives from general principles of EU procurement law, according to which the contracting authority has the duty to police the obligations and conditions established under a contract award procedure, and the principles of equal treatment, non-discrimination and transparency. Thus, it claims that the Commission is under a duty to enforce ‘clear departures’ from the scope of the permitted use and from the basis on which the tender was decided.

125 It should be noted that, by the present limb, the applicant appears to claim, in essence, that, in the light of the ‘fundamental change’ in purpose of Inmarsat’s use of the 2 GHz frequency band compared with the purpose for which it had been selected, the Commission was under a duty, according to general principles of EU public procurement law, to reopen the selection procedure or organise a new selection procedure in order to be able to re-evaluate the EAN in such a new procedure.

126 In that regard, first, it should be noted that, in the present case, by the Selection Decision, the Commission selected operators which should be authorised to use, in each Member State, certain frequencies in the 2 GHz frequency band for MSS, but did not award any concessions within the meaning of Directive 2014/23 nor did it organise a public procurement procedure under Directive 2014/24. The selection procedure is governed by the special rules on the basis of which it was organised, namely Title II of the MSS Decision. Consequently, on the principle of lex specialis derogat lex generalis, the guidelines relied on by the applicant do not apply in the present case.

127 Second, the application of Directives 2014/23 and 2014/24 by analogy to the circumstances of the present case would be contrary to the principle of conferral of powers as enshrined in Article 5 TEU (see paragraph 201 below), as claimed by the Commission.

(3) Whether the Commission has powers under the principle of sincere cooperation

129 The applicant submits that, under the principle of sincere cooperation, the Commission was required to assist the NRAs in carrying out the tasks of those NRAs under the Treaties and to provide guidance or recommendations on the application of the harmonised provisions in the MSS Decision. According to it, the Commission was required to provide guidance to assist them in the fulfilment of their tasks.

130 In that regard, it should be noted, as is clear from the case-law set out in paragraphs 110 and 111 above, guidance or recommendations without binding legal effects are not actionable measures. Consequently, according to the case-law set out in paragraph 72 above, the present action, in so far as the applicant asks the Court to find that the Commission failed to adopt such guidance, must be declared inadmissible.

131 Furthermore, even if, by such an argument, the applicant claimed that, in accordance with the principle of sincere cooperation, the Commission should have addressed to the NRAs a specific measure binding on them in order to assist them in the exercise of their powers relating to the grant of authorisations to the selected operator, it should be made clear that the relations between the Member States and the EU institutions are governed, according to Article 4(3) TEU, by that principle. Not only does that principle require the Member States to take all the measures necessary to guarantee the application and effet utile of EU law, but it also imposes mutual duties of sincere cooperation on Member States and the EU institutions (order of 13 July 1990, Zwartveld and Others, C‑2/88 IMM, EU:C:1990:315, paragraph 17). That duty of genuine cooperation is of general application and does not depend on whether the EU power concerned is exclusive (judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 71).

132 In that regard, it should be noted that, in the present limb, the applicant proceeds from the incorrect premiss that, before granting the authorisations, the NRAs must assess the compatibility of Inmarsat’s system with the applicable legal framework and, in particular, with the Selection Decision adopted by the Commission. As is clear from paragraph 94 above, the sole condition that the NRAs must assess at the time of the decision on applications for authorisation under Article 7 of the MSS Decision, and one of the two conditions to be evaluated for the grant of authorisation under Article 8 of that decision – the second being that the applicant has been previously authorised pursuant to Article 7 – is whether the applicant for authorisation is a ‘selected operator’. Inmarsat unequivocally has that status, as is apparent from Article 2 of the Selection Decision, which requires no interpretation.

133 The issues of compliance with the purpose for which the 2 GHz frequency band was assigned to Inmarsat and of the compatibility of the EAN with the applicable legal framework, in particular with the commitments made during the selection procedure, fall within the control and enforcement mechanism provided for in Article 9 of the MSS Decision. The latter provides for a specific assistance mechanism, thereby providing concrete expression of the sincere cooperation between the Commission and the Member States. In accordance with the third subparagraph of Article 9(2) of that decision, where a Member State informs the Commission of a particular breach, the Commission is to examine the alleged breach with the assistance of the Communications Committee. Such a duty incumbent on the Commission at that time provides concrete expression of the spirit of the principle of sincere cooperation. That cooperation is reinforced by the Enforcement Decision, adopted by the Commission pursuant to Article 9(3) of the MSS Decision, which introduces a procedure for reviewing and exchanging information at EU level and for which the Commission is responsible.

134 On the sole basis of the principle of sincere cooperation, no other distinct duty can arise from which the Commission would have the power to take action following the request made by the applicant.

(4) Whether the Commission has powers arising from its obligation to prevent fragmentation of the internal market in order to safeguard the effet utile of the 2 GHz MSS spectrum harmonisation initiative

136 As regards the applicant’s claims that the Commission is required to adopt, in response to its request to take action, a measure for the purposes of preserving the internal market of MSS, the applicant, supported by the Kingdom of the Netherlands and by Eutelsat, considers that the Commission does have autonomous powers to prevent the fragmentation of the internal market which would be caused if the NRAs decided, of their own motion, to authorise Inmarsat to use the 2 GHz frequency band for a new purpose. The applicant considers that those powers are conferred on the Commission by the third subparagraph of Article 9(2) of the MSS Decision, Article 19 of the Framework Directive, recital 35 of the Authorisation Directive and Article 114 TFEU, read in conjunction with Article 1(1) and recitals 5, 12 and 14 of the MSS Decision.

137 In that regard, it should be noted that the exclusive powers expressly conferred on the Commission for the management of MSS, which consists of harmonising the purposes of the use of the 2 GHz frequency band and of selecting operators under the common procedure for the use of that frequency band in accordance with the objectives thus harmonised, form part of a broader regulatory framework, the objective of which is to create a single market for the harmonised use of certain radio frequencies, as is apparent in particular from Article 8 of the Framework Directive and Article 8 of the Authorisation Directive. As is apparent from recitals 11 to 13 of the MSS Decision, the inherently cross-border nature of the MSS performing satellite communications justified entrusting, exceptionally, those exclusive powers specifically to the Commission.

138 In addition, it should be noted, as does the applicant, that it is clear, in essence, from Article 1(1) and recitals 5, 12 and 14 of the MSS Decision that the main objective of the initiative to harmonise the use of radio spectrum in the 2 GHz frequency band for MSS was the establishment of an internal market for pan-European MSS which provides universal connectivity, the other objectives, emphasised by the Commission as well as Inmarsat and EchoStar, being to increase competition, encourage efficient investment and contribute to the competitiveness of European information and communication technology industries in line with the objectives of the renewed Lisbon strategy. The common selection procedure organised by the Commission, at the end of which it assigned that frequency to Inmarsat, inter alia, fell within the scope of those objectives.

139 It is in the light of those objectives that the Court must examine whether the Commission had the power to take any action following the applicant’s request that it adopt measures to prevent harm to the internal market of pan-European MSS and thus to preserve the effet utile of that harmonisation which, according to the applicant, would be called into question by Inmarsat’s change in the purpose of using the 2 GHz frequency band.

140 The applicant, supported by Eutelsat, considers that the Commission has powers arising from Article 19 of the Framework Directive to prevent the fragmentation of the internal market which would be caused if the NRAs decided, of their own motion, to authorise Inmarsat to use the 2 GHz frequency band for a new purpose.

141 In the opinion of the applicant, it is reasonable to conclude that the mandate granted to the Commission by the Framework Directive with regard to the harmonisation of the uses of the 2 GHz frequency band also includes the obligation to follow the developments of that sector and, where necessary, update the existing Harmonisation Decision.

142 The Commission claims that the provisions of the Framework Directive invoked by the applicant, in particular, Article 19 thereof, do not confer on it any enforcement powers against operators or the NRAs in relation to the conditions attached to the use of radio frequencies.

143 In that regard, it should first of all be noted that the purpose of the Framework Directive is to promote the harmonisation of the management of radio frequencies. That directive provides that it is the Member States who are to ensure the effective management of radio frequencies for electronic communication services in their territory and to promote the harmonisation of their use so that it is effective and efficient. Article 8a of the Framework Directive provides that Member States are to cooperate with each other and with the Commission in the strategic planning, coordination and harmonisation of the use of radio spectrum in the European Union.

144 The Framework Directive establishes a mechanism by which the Commission monitors the application of the measures harmonised by the NRAs. Under Article 19(1) of that directive, ‘where the Commission finds that divergences in the implementation by the [NRAs] of the regulatory tasks specified in this Directive and the Specific Directives may create a barrier to the internal market, the Commission may, taking the utmost account of the opinion of the [Body of European Regulators for Electronic Communications (BEREC)], issue a recommendation or a decision on the harmonised application of the provisions in this Directive and the Specific Directives in order to further the achievement of the objectives set out in Article 8 [thereof]’.

145 The objectives set out in Article 8 of the Framework Directive are, in particular, to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services, and to contribute to the development of the internal market.

146 It follows that the Commission has, under Article 19 of the Framework Directive, powers to preserve the internal market.

147 However, first, any recommendation which the Commission could adopt pursuant to Article 19 of the Framework Directive would not be binding and would not therefore constitute an actionable measure, as is clear from the case-law set out in paragraphs 110 and 111 above. In accordance with the case-law referred to in paragraph 72 above, a refusal to take action constitutes a measure in respect of which an action for annulment may be brought provided that the measure which the EU institution refuses to adopt would itself have been actionable under Article 263 TFEU. It follows that the present action must be declared inadmissible in so far as the applicant requests the Court to find that the Commission erred in failing to adopt such a recommendation.

148 Second, the nature of the decisions which the Commission has the power to adopt under Article 19(1) of the Framework Directive and are binding in nature, is, in accordance with Article 19(3) thereof, limited. Such decisions concern only the definition of a harmonised or coordinated approach for dealing with the issues set out in that subparagraph. 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.

149 Article 19 of the Framework Directive cannot therefore constitute a legal basis for adopting a measure, as requested by the applicant in the letter of formal notice.

150 Moreover, the applicant’s claim that the Commission has, under the Framework Directive, the power to propose a review of the purpose of the use of the 2 GHz frequency band mirrors its argument that the Commission failed to use its powers of legislative initiative, and will be examined in paragraphs 191 et seq. below.

151 Lastly, in so far as that argument must be construed to the effect that the applicant considers that the Commission should itself change the purpose of use of the 2 GHz frequency band in that it has the exclusive power to determine that harmonised purpose, it must be held that the Harmonisation Decision, which provides for the harmonised purpose of that use for MSS, was adopted by the Commission pursuant to Article 4(3) of the Radio Spectrum Decision, and not pursuant to a provision of the Framework Directive.

152 It is therefore necessary to examine the substance of the applicant’s argument alleging that the Commission has the power to change the purpose of use of the 2 GHz frequency band pursuant, inter alia, to Article 4(3) of the Radio Spectrum Decision.

(ii) Whether the Commission has the power to change the purpose of the use of the 2 GHz frequency band

153 It is clear from Article 1 of the Radio Spectrum Decision that the aim of that decision is to establish a policy and legal framework in the European Union in order to ensure the coordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of the radio spectrum necessary for the establishment and functioning of the internal market in EU policy areas such as electronic communications, transport and research and development.

154 In accordance with Article 4(1) of the Radio Spectrum Decision, in order to meet that aim, the Commission is to submit to the Radio Spectrum Committee appropriate technical implementing measures with a view to ensuring harmonised conditions for the availability and efficient use of radio spectrum, as well as the availability of information related to the use of radio spectrum. In this context, Article 4(2) of that decision gives the Commission the power to issue specific mandates to the European Conference of Postal and Telecommunication Administrations (CEPT) for the development of technical implementing measures, such as the harmonisation of radio frequency allocation. Under Article 4(3) of the decision, the Commission is to decide whether the work carried out pursuant to Article 4(2) is to apply in the European Union and on the deadline for their implementation by the Member States.

155 It was thereby, in exercise of its powers of ‘radio spectrum technical management’ (see recital 11 of the Radio Spectrum Decision) allocated to it under Article 4(3) of the Radio Spectrum Decision, that the Commission adopted the Harmonisation Decision in which, as is clear from Article 1 and recital 6 thereof, it harmonised the conditions for the availability and use of the 2 GHz frequency band for systems providing MSS.

156 On that basis and for that purpose, operators, including Inmarsat, were selected by the Commission in accordance with the common procedure for use of that frequency band.

157 The applicant considers that any change in the use of the 2 GHz frequency band in relation to that provided for in the Harmonisation Decision must be made pursuant to a new decision and a fresh tender for the selection of that frequency band.

158 It can be inferred from the applicant’s arguments that it considers that such a decision would require the Commission to withdraw the Selection Decision or organise a new selection procedure in order to allocate the 2 GHz frequency band according to the new harmonised purpose, in which the applicant could tender.

159 In that regard, it should be noted that the Commission did not deny having powers to alter the purpose of the use of the 2 GHz frequency band, which it confirmed at the hearing in response to the Court’s questions, while insisting, however, on the ‘technical’ nature of such harmonisation.

160 It should be made clear that such a power for the Commission arises, in particular, from Article 4(3) of the Radio Spectrum Decision, in that the Commission could, on that basis, adopt a new decision providing for harmonisation of the conditions of use and availability of the 2 GHz frequency band for purposes other than the operation of systems providing MSS, thereby repealing the Harmonisation Decision now in force.

161 In accordance with the general principle of law referred to in paragraph 117 above, a body which has power to adopt a particular legal measure, here the Harmonisation Decision, also has power to abrogate or amend it. Since no provision of the applicable regulatory framework confers such a power on any other body, the Commission also has the power to adopt a decision to amend the Harmonisation Decision, in accordance with the procedure referred to in paragraph 154 above.

162 In addition, Article 4 of the Harmonisation Decision, read in conjunction with recital 12 of that decision, confers on the Commission powers to review the decision. That recital provides that, considering the market developments and evolution of technologies, the need for that decision, as well as its scope and application, may need to be reviewed in the future, based in particular on assessment by the Commission and on information provided by the Member States. Article 4 of that decision provides that Member States are to keep the use of the relevant bands under scrutiny and report their findings to the Commission to allow for a review of that decision if necessary.

163 In its letter of 14 February 2017 (see paragraph 16 above), the Commission informed the applicant that no redefinition of the purpose of using the 2 GHz frequency band had been planned. It follows that the Commission did not deny that it had the power to amend that purpose, which it confirmed, in essence, at the hearing, but indicated to the applicant that it did not intend to adopt such an amendment.

164 In that regard, it must be held that, even though it is apparent from paragraphs 159 to 162 above that the Commission has powers to change the purpose of using the 2 GHz frequency band, the applicant would not, in any event, be entitled, in accordance with the case-law cited in paragraph 72 above, to challenge the decision which the Commission refused to adopt, namely a new Harmonisation Decision pursuant to Article 4(3) of the Radio Spectrum Decision, thereby repealing the Harmonisation Decision in force or consisting in its review in accordance with Article 4 thereof.

165 Under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.

166 In the present case, a decision changing the purpose of the use of the 2 GHz frequency band would be addressed not to the applicant but to the Member States. Consequently, under the fourth paragraph of Article 263 TFEU, the applicant may bring an action for annulment of that decision only if it were either a regulatory act of direct concern to it and not entailing implementing measures or a decision of direct and individual concern to it.

167 In the first place, it must be ascertained whether the decision which the Commission refused to adopt is a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.

168 In that regard, it should be noted that, according to the case-law, the meaning of ‘regulatory act’ for the purposes of that provision must be understood as covering all measures of general application apart from legislative acts (order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 56).

169 In the present case, the legal basis of a decision changing the purpose of the use of the 2 GHz frequency band, whether by way of a new Harmonisation Decision repealing the one in force or a review thereof, would be Article 4(3) of the Radio Spectrum Decision. That article provides that a measure adopted by the Commission under that provision is to be adopted in accordance with the procedure referred to in Article 3(3) of that decision, the latter of which refers to the procedure referred to in Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23). Therefore, a decision changing the purpose of using the 2 GHz frequency band would be adopted by the Commission pursuant to implementing powers and not in the exercise of legislative powers.

170 Moreover, a decision changing the purpose of the use of the 2 GHz frequency band would be of general application, in that it would apply to objectively determined situations and produce legal effects for a class of persons envisaged in a general and abstract manner. The purpose of that decision would be to harmonise the conditions for ensuring the availability and a new use of the 2 GHz frequency band.

171 It follows that it must be held that a decision changing the purpose of the use of the 2 GHz frequency band would constitute a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU. Thus, by virtue of Article 263 TFEU, the applicant could seek the annulment of such a decision if it were directly concerned by it and if the decision did not include implementing measures.

172 In the second place, as to whether the applicant is directly concerned, it must be borne in mind that the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C 624/16 P, EU:C:2018:873, paragraph 42 and the case-law cited).

173 In that regard, first, as regards lack of discretion of the addressees with the task of implementing the decision in question, it is apparent from Article 3(1) of the Harmonisation Decision in force that, as of 1 July 2007, the Member States are to designate and make available the 2 GHz frequency band for the systems in question. It is thus apparent in particular from that provision that a new Harmonisation Decision changing the purpose of using the 2 GHz frequency band would leave no discretion to the Member States as regards its implementation.

174 Second, as regards any direct effect on the applicant’s legal situation, it must first be noted that, according to recital 11 of the Radio Spectrum Decision, ‘radio spectrum technical management includes the harmonisation and allocation of [that] radio spectrum’, but ‘does not cover assignment and licensing procedures, nor the decision whether to use competitive selection procedures for the assignment of radio frequencies’.

175 That is also clear from recital 8 of the MSS Decision, which provides that radio spectrum technical management, as organised by the Radio Spectrum Decision in general and the Harmonisation Decision in particular, does not cover procedures for assignment of spectrum and granting rights of use for radio frequencies.

176 Next, it is clear, first, from recital 9 of the MSS Decision that operators of mobile satellite systems are selected and authorised at national level and, second, from recital 11 of the decision that selection criteria for mobile satellite systems should be harmonised so that the selection process results in availability of MSS across the European Union. Thus, it is stated, in essence, in Article 1 of the MSS Decision that that decision creates a procedure for the common selection of operators of mobile satellite systems that use the 2 GHz frequency band in accordance with the Harmonisation Decision.

177 It is thus clear that a procedure for selecting operators of such systems must subsequently be organised in order to allocate the 2 GHz frequency band in accordance with the harmonised objective laid down in the Harmonisation Decision. That is acknowledged by the applicant itself, as is apparent from paragraphs 157 and 158 above. It submits that a decision changing the purpose of the use of the 2 GHz frequency band would impose on the Commission an obligation to withdraw the Selection Decision or organise a new selection procedure in order to allocate the 2 GHz frequency band according to a new harmonised purpose, a procedure in which it could participate.

178 It thus follows that a decision changing the purpose of the use of the 2 GHz frequency band which the Commission refused to adopt could not, in itself, have an immediate and specific effect on the applicant’s legal situation, since it would merely determine the availability and purpose of that use, and would not concern either the allocation and authorisation award procedures or the decision to use competitive selection procedures for the allocation of radio frequencies in which the applicant could participate. Consequently, it must be concluded that the condition of direct concern referred to in the last part of the fourth paragraph of Article 263 TFEU is not satisfied.

179 Thus, in so far as the condition of direct concern is not satisfied in the present case, it is not necessary to examine the possible existence of implementing measures. The Court therefore finds that the applicant does not have locus standi to bring proceedings under the fourth paragraph of Article 263 TFEU in respect of a decision changing the purpose of using the 2 GHz frequency band adopted pursuant to Article 4(3) of the Radio Spectrum Decision.

180 In accordance with the case-law referred to in paragraph 72 above, a refusal to take action constitutes an actionable measure provided that the measure which the EU institution refuses to adopt would itself have been actionable under Article 263 TFEU. It follows that the present action must be declared inadmissible in so far as the applicant requests the Court to find that the Commission erred in failing to adopt such a decision changing the purpose of the use of the 2 GHz frequency band and that this limb of the applicant’s line of argument must therefore be rejected.

181 The applicant relies on recital 35 of the Authorisation Directive to maintain that the Commission must take all necessary measures to ensure the proper functioning of the internal market for MSS.

182 Under Article 1 thereof, the Authorisation Directive aims to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the Union. Access to radio spectrum must therefore be facilitated to ensure efficiency, promote innovation and increase choice for users and consumers. In order to achieve this, Article 5(2) of that directive provides that rights to use radio frequencies and numbers are assigned through open, objective, transparent, non-discriminatory and proportionate procedures.

183 In accordance with Article 8 and recital 24 of the Authorisation Directive, where the harmonised assignment of radio frequencies to particular undertakings has been agreed at European level and, in particular, undertakings to which the radio frequencies are assigned have been selected in accordance with EU rules, as applies to the present case, Member States are to grant the right of use for such radio frequencies in accordance therewith. In that context, Member States have limited discretion to impose further conditions, additional criteria or procedures.

184 Recital 35 of the Authorisation Directive states, as the applicant submits, that the proper functioning of the single market on the basis of the national authorisation regimes under that directive should be monitored by the Commission.

185 The systemic interpretation of recital 35 of the Authorisation Directive on which the applicant relies, read in conjunction with Article 8 and recital 24 of that directive and with the MSS Decision, means that the system of MSS authorisations is primarily governed by that decision. Thus, 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, as is apparent, in essence, from Article 9 of that decision.

186 Furthermore, the Authorisation Directive does not require, as part of the ‘monitoring’ referred to in recital 35 thereof, the Commission to adopt measures that are binding on the NRAs. It must be found from a systemic interpretation of the application of the powers conferred on the Commission by that directive with regard to additional conditions, to which the authorisations granted pursuant to the MSS Decision would be subject, that those powers are merely coordinating powers, of the same nature as the powers conferred on the Commission under Article 9 of that decision in respect of the monitoring of compliance with the common conditions laid down by that decision.

187 Consequently, the applicant is wrong to take the view that the Commission has, under the Authorisation Directive, powers to adopt a binding measure in order to avert a risk of fragmentation of the MSS internal market that would take place if the NRAs decided to authorise Inmarsat to use the 2 GHz frequency band for the EAN.

189 The applicant considers that the Commission has powers to prevent the fragmentation of the pan-European 2 GHz frequency band MSS internal market which would be caused if the NRAs decided, of their own motion, to authorise Inmarsat to use that frequency band for a new purpose pursuant to Article 114 TFEU, read in conjunction with Article 1(1) and recitals 5, 12 and 14 of the MSS Decision.

190 The Commission submits that it enjoys full discretion in deciding whether or not to make a legislative proposal under Article 114 TFEU such that it is not required to adopt the measure requested by the applicant.

191 In that regard, it should be noted that Article 114 TFEU provides that the Parliament and the Council are, acting in accordance with the ordinary legislative procedure, to adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

192 As stated in paragraph 138 above, it is clear, in essence, from Article 1(1) and recitals 5, 12 and 14 of the MSS Decision, on which the applicant relied, that the main objective of the initiative to harmonise the use of radio spectrum in the 2 GHz frequency band for MSS was the establishment of an internal market for pan-European MSS which provides universal connectivity.

193 If, having regard in particular to its request for the Commission to take action as the guardian of the Treaties pursuant to Article 17(2) TEU (see paragraph 14 above), the applicant’s argument must be construed as criticising the Commission for not having exercised its powers of legislative initiative for the purposes of proposing a measure to be adopted pursuant to Article 114 TFEU in order to preserve the existence of the internal market for MSS, it should be recalled that, under Article 17(2) TEU, ‘a Union legislative [act] may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts are to be adopted on the basis of a Commission proposal where the Treaties so provide.’

194 It follows from the case-law that an action brought against a refusal by the Commission to submit a proposal to amend a legislative act must, in principle, be declared inadmissible on account of its purely intermediate and preparatory nature (orders of 22 January 2010, Makhteshim-Agan Holding and Others v Commission, C‑69/09 P, not published, EU:C:2010:37, paragraph 46, and of 14 December 2005, Arizona Chemical and Others v Commission, T‑369/03, EU:T:2005:458, paragraph 66, upheld on appeal by order of 13 March 2007, Arizona Chemical and Others v Commission, C‑150/06 P, not published, EU:C:2007:164, paragraphs 23 and 24).

195 By contrast, such a solution cannot be applicable if the refusal to submit a proposal or an amendment to a measure amounted to the culmination of a specific procedure initiated and conducted by the applicant on the basis of a measure providing for such a procedure and if, as such, it expressed a definitive position on the part of the Commission, and if the Commission did not have any discretion to decide whether it was appropriate to take action on the request submitted to it, but was required to take action on that request (see, to that effect, judgments of 25 June 1998, Lilly Industries v Commission, T‑120/96, EU:T:1998:141, paragraphs 50 to 56, 59 and 61 to 63, and of 23 April 2018, One of Us and Others v Commission, T‑561/14, EU:T:2018:210, paragraphs 76, 77 and 86).

196 In the present case, the request which the applicant made to the Commission asking it to propose a measure, pursuant to Article 17(2) TEU, intended to prevent a fragmentation of the MSS internal market does not form part of any particular procedure provided for by specific provisions pursuant to which the Commission would be required to take action.

197 It follows that the present action for annulment, in so far as it relates to a refusal by the Commission to make, following the applicant’s request for action to be taken, a proposal for a legislative act or an amendment of an existing legislative act in order to preserve the internal market for MSS, must be declared inadmissible.

198 The applicant, supported by Eutelsat, claims that according to the exclusive powers conferred on the Commission to harmonise the use of the 2 GHz frequency band, and in particular its duty to define the purpose for which those frequencies should be used, and to select the operators to whom the Member States are required to issue the relevant authorisations for use of that radio spectrum, the Commission was necessarily made responsible for monitoring ‘sector developments’ and, where necessary, taking action to prevent the risk of departures from the clearly defined scope and criteria for the exclusive use of the 2 GHz frequency band granted in the context of harmonisation and the ensuing selection process.

199 The applicant therefore infers that, in the light of the objective of the harmonisation initiative, namely the creation of an internal market for pan-European MSS providing universal connectivity, and to the extent that, in that regard, the Commission has the responsibility to take action where there is a risk that divergences in the implementation by the NRAs of regulatory tasks would create a barrier to the internal market and to examine any alleged breach of the ‘common conditions’, and to guarantee the effet utile of that initiative and its objective, the Commission enjoys all the powers necessary to carry out that task, even where they are not expressly provided for by law.

201 In that regard, it should be noted that, by virtue of Article 5 TEU, in accordance with the principle of conferral of powers, each EU institution is to act within the limits of the powers conferred upon it by the Treaty (judgment of 22 April 2015, Planet v Commission, T‑320/09, EU:T:2015:223, paragraph 57).

202 The EU Courts have accepted that powers, which have not been expressly provided for in the provisions of the Treaties, can be used if they are necessary to achieve objectives set by those treaties. When an article of the Treaty gives the Commission a specific and precise task, it must be accepted, if that provision of the Treaty is not to be rendered wholly ineffective, that it implicitly confers on the Commission necessarily and per se the powers which are indispensable in order to carry out that task. It must therefore be recognised that the provisions laid down by a treaty imply that rules, without which those provisions could not be usefully or reasonably applied, may be adopted. Therefore, the provisions of the Treaty relating to normative powers of the institutions must be interpreted in light of the overall scheme of the Treaty (see, to that effect, judgment of 17 September 2007, France v Commission, T‑240/04, EU:T:2007:290, paragraph 36 and the case-law cited).

203 The Court has consistently held that the existence of an implicit power, which constitutes a derogation from the principle of conferral of powers stated in the first paragraph of Article 5(1) TEU, 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 to ensure the practical effect of the provisions of the Treaty or the basic regulation at issue (see judgment of 17 November 2009, MTZ Polyfilms v Council, T‑143/06, EU:T:2009:441, paragraph 47 and the case-law cited; judgment of 22 April 2015, Planet v Commission, T‑320/09, EU:T:2015:223, paragraph 60).

204 Not only the substantive provisions, but also the form and binding nature of the act, must fulfil that condition of necessity (judgment of 17 September 2007, France v Commission, T‑240/04, EU:T:2007:290, paragraph 38).

205 In the present case, no implicit power to take action can be attributed to the Commission, irrespective of the nature of the measure which, according to the applicant, it should have adopted pursuant to its powers.

206 It is true, as the applicant maintains, that a specific and precise mission was conferred on the Commission for the MSS, as set out in paragraphs 90 and 91 above. It fulfilled that task by adopting, first, the Harmonisation Decision by exercising the exclusive powers conferred on it pursuant to Article 4(3) of the Radio Spectrum Decision and, second, the Selection Decision in respect of MSS operators in the 2 GHz frequency band in accordance with an EU procedure pursuant to Title II of the MSS Decision.

207 On the other hand, as is apparent from paragraphs 93 and 98 above, the powers to grant authorisations to selected operators and those for applying enforcement measures in respect of authorised operators where they do not comply with the common conditions to which those authorisations are subject, are, by virtue of the MSS Decision, explicitly conferred on the competent national authorities. The Commission has only express coordinating powers in order to ensure consistency in the application by the NRAs of the enforcement rules concerning MSS (see paragraph 107 above).

208 It follows from those circumstances 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. Such implicit powers would run counter to the principle of the conferral of powers laid down in Article 5 TEU.

209 Furthermore, it is certainly possible, according to the case-law referred to in paragraphs 202 and 203 above, to derogate exceptionally from the principle of the conferral of powers where implicit powers are necessary to ensure the effet utile of provisions of the Treaty conferring on an EU institution a specific task. That condition is not, however, fulfilled in the present case.

210 In that regard, it should be noted that there is no legal vacuum in respect of the effet utile of the Commission’s mission to be filled, according to the applicant, by recognising implicit powers in the Commission. The legislature clearly expressed its will to entrust the Member States with the power to monitor, by means of the coordinated enforcement procedure post-authorisation, the development of the system by the selected operator and, where appropriate, to impose penalties ultimately capable withdrawing the authorisations without which an operator could no longer operate its system. Thus, the effet utile of the task entrusted to the Commission, as set out in paragraph 206 above, is ensured by the existence of the coordinated enforcement procedure falling within the powers of the Member States. Furthermore, the principle of sincere cooperation enshrined in Article 4(3) TEU relied on by the applicant (see paragraph 129 above) supports that conclusion in so far as, according to that principle, the Member States are required to take all measures necessary to guarantee the application and effet utile of EU law, as is clear from the case-law referred to in paragraph 131 above.

211 Consequently, even assuming that Inmarsat had changed the EAN between the time when the Commission decided to grant Inmarsat the right to use the 2 GHz frequency band for a pan-European system providing MSS and the time when the necessary authorisations are to be granted by the NRAs under Title III of the MSS Decision for the operation of that system, as a result of which the new system would not meet the purposes laid down in the Harmonisation Decision, the MSS Decision or the commitments it had made in the context of the common selection procedure, it would be for the Member States to initiate enforcement procedures against it in order to compel it to comply with the common conditions, including the condition concerning the requirement to use the 2 GHz band for MSS and the conditions concerning compliance with commitments made during the selection procedure, failing which the authorisations granted would be withdrawn.

212 It is true that such a system, in which the Member States cannot refuse to grant authorisations to an operator selected by the Commission (see paragraphs 94 to 96 above), but only, where appropriate, initiate enforcement procedures in order for such an operator to comply with the common conditions to which authorisation is subject, may appear to be ineffective in terms of procedural economy.

213 However, as EU law currently stands, such consequences are inherent in the system for managing the use of the 2 GHz frequency band for MSS as enacted by the EU legislature, which favoured an approach focussed on coordinated enforcement procedures following the grant of authorisations entrusted to the Member States, in which the Commission plays a role of coordinator. It is for the legislature, and not the Court, to amend, where necessary, the design of the system in force.

214 Lastly, it should be noted that a lack of powers, whether express or implicit, on the part of the Commission to take action in order to prevent NRAs from granting authorisations to a system allegedly incompatible with the legal framework does not deprive competitors, such as the applicant, of effective judicial protection. Indeed, the decisions taken by the NRAs concerning authorisations and application of the enforcement procedure by the competent national authorities are subject to review by the national courts, which may refer questions to the Court of Justice for a preliminary ruling where they encounter difficulties in the interpretation or application of EU law relating to MSS, as illustrated by the questions referred to the Court of Justice in the case which gave rise to the judgment of 5 March 2020, Viasat UK and Viasat (C‑100/19, EU:C:2020:174), and in Case C‑515/19, currently pending before the Court of Justice.

215 It follows from the foregoing that the present action must be dismissed in its entirety without it being necessary to examine the Commission’s objection to the application for annulment on the ground that the applicant has no legal interest in bringing proceedings or locus standi to bring an action for annulment of the measure sought by the request for action to be taken.

216 Under Article 134(1) of the Rules of Procedure, 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 applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

217 Furthermore, under Article 138(1) of the Rules of Procedure, Member States which intervened in the proceedings are to bear their own costs. Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order that an intervener other than those referred to in paragraphs 1 and 2 of that article is to bear his own costs. In the present case, Eutelsat and the Kingdom of the Netherlands, which intervened in support of the form of order sought by the applicant, and EchoStar and Inmarsat, interveners in support of the form of order sought by the defendant, must be ordered to bear their own costs.

2. Orders ViaSat, Inc. to bear its own costs and to pay those incurred by the European Commission;

3. Orders Eutelsat SA, the Kingdom of the Netherlands, EchoStar Mobile Ltd and Inmarsat Ventures Ltd to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ViaSat v Commission (Action for failure to act and for annulment - Electronic communications networks and services - Judgment) [2021] EUECJ T-245/17 (10 March 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T24517.html Cite as: ECLI:EU:T:2021:128, EU:T:2021:128, [2021] EUECJ T-245/17

Court of Justice of the European Communities (including Court of First Instance Decisions)