The Official Journal of the European Union has published the legal action brought by two satellite operators (Eutelsat/ViaSat) and Panasonic Aviation against the European Commission in their dispute with Inmarsat. The three objectors are complaining that – in essence – Inmarsat ought not to have been licensed to operate in-flight services for a system that was supposed to be for mobile satellite services.
The first core element of the trio’s objections argues: “The Commission has unlawfully failed to decide that the use of 2 GHz mobile satellite service spectrum on a primarily terrestrial-based network constitutes a fundamental change in the use of the 2 GHz Band that is harmonised and tendered at EU level through a Union selection procedure. The Commission should have taken responsibility and acted to adopt a decision to prevent NRAs from authorising Inmarsat to use the 2 GHz Band primarily for Air-To-Ground purposes, instead of primarily for a mobile satellite services (‘MSS’) satellite network in accordance with the EU’s MSS decisions.”
The second argument alleges that the Commission has failed to take action to prevent the fragmentation of the Internal Market, and states: “The Commission has a duty to exercise its powers in order to prevent the risk of fragmentation of the internal market for pan-European mobile satellite services that provide universal connectivity, which would be caused if certain national regulatory authorities (‘NRAs’) decide — on their own motions — to allow a specific company to use the 2 GHz Band for a new purpose. Indeed, the failure to exercise this duty in response to the applicant’s request to act Letter and the requests for guidance by NRAs have increased the risk that some Member States authorise use of the 2 GHz Band for new purposes.”
Their third demand is that the Commission annuls its previous decision., saying: “The Commission’s decision […] should be annulled because the Commission erred in interpreting i) the provisions defining its powers in the area of the MSS spectrum harmonisation; ii) the scope of its duty to ensure full compliance with the general principles of EU public procurement law applicable to this case; iii) its duties to prevent divergence among the decisions adopted by Member States and ensure that the Internal Market for pan-European mobile satellite services that provide universal connectivity is not fragmented, and iv) the scope of its duty of sincere cooperation to assist Member States in carrying out the tasks that flow from the Treaties.”