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Satellite litigation – General Court rejects challenge to mobile satellite services spectrum allocation

10/03/21

The EU General Court handed down judgment today rejecting a challenge brought by US corporation ViaSat Inc, supported by the Dutch government and a French corporation Eutelsat SA, against the European Commission in relation to the provision of mobile satellite services (MSS) on the 2GHz frequency band. That MSS spectrum is allocated to an Irish company EchoStar Mobile Ltd and a UK company Inmarsat Ventures Ltd, both of which use the spectrum to provide different forms of MSS in the EU. EchoStar supplies narrow-band mobile satellite services to enable a variety of text, talk, email, and monitoring services. Inmarsat supplies an inflight connectivity service, European Aviation Network (EAN), which uses a combination of ground and satellite based communication links. EchoStar and Inmarsat intervened in the General Court in support of the European Commission.

ViaSat’s complained about Inmarsat’s use of its spectrum for EAN. ViaSat argued this fell outside the permitted use of the licensed spectrum due to EAN’s use of ground based links and argued that the Commission was required to take action to revoke the MSS spectrum allocation. ViaSat brought proceedings under Article 265 TFEU alleging that the Commission had failed to act and under Article 263 TFEU seeking to annul decisions it alleged the Commission had taken in correspondence with it.

The General Court comprehensively rejected both applications. The application for failure to act was declared inadmissible because the Court found that the Commission had responded to ViaSat’s request that it should act by explaining why it was not required to adopt the measures that ViaSat sought. The application for annulment was rejected on the merits after a detailed review of the regulatory framework for satellite service provision at both EU and national level, finding that the measures which ViaSat sought lay outside the Commission’s competence.

The judgment is here.

Aidan Robertson QC acted for EchoStar in the General Court. EchoStar is advised by Joanne Wheeler MBE, Alden Legal.