Judgment;Summary — ECLI:EU:C:2020:174
Date: 2020-03-05
Language of the case: French
Court formation: Second Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-100/19 — 1 
Case C-100/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged: 
8 February 2019 
Referring court: 
Cour d’appel de Bruxelles, section Cour des marchés (Belgium) 
Date of the decision to refer: 
23 January 2019 
Applicants: 
Viasat UK Ltd 
Viasat Inc. 
The other party to the proceedings: 
Institut belge des services postaux et des télécommunications (the 
national regulatory authority for postal services and 
telecommunications in Belgium (ʻthe IBPTʼ)) 
Interveners: 
Inmarsat Ventures Ltd 
Eutelsat S.A. 
  
I. Subject matter and facts of the dispute 
1 Inmarsat Ventures Ltd (ʻInmarsatʼ) is one of the two operators authorised to use in 
the European Union the 2 GHz frequency band to provide mobile satellite services 
(ʻMSSʼ).  
2 Inmarsat is developing on that band an ʻEANʼ (European Aviation Network) 
service, which it is actively preparing to launch and which consists in providing a 
high-speed internet connection on all flights within the European Union by means 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-100/19 
 
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of a system comprising both a satellite and a terrestrial-based 4G antenna network 
called ʻcomplementary ground componentsʼ (ʻCGCsʼ).  
3 Inmarsat states that it has built a ground-based satellite station in Greece and that, 
on 28 June 2017, it launched its EAN satellite, which started to operate on 
29 August 2017. For the rollout of its CGC network, it entered into partnership 
with Deutsche Telekom. It states that it applied for and obtained the authorisations 
necessary for placing CGCs in all the EU Member states (except Romania) and in 
Norway and Switzerland.  
4 By decision of 7 August 2018, the IBPT granted Inmarsat user rights for six CGCs 
in Belgium.  
5 Viasat markets satellite services of various kinds and provides, inter alia, in 
partnership with Eutelsat, in-flight connectivity (IFC) services to airlines 
operating in the European Union. 
6 Viasat maintains that the EAN service does not correspond to the plan on the basis 
of which Inmarsat was selected by the European Commission and that it no longer 
complies with the European regulatory framework. Viasat criticises, in general 
terms, such use of the 2 GHz band, which consists mainly of air to ground 
services without the involvement of satellite, and not of mobile satellite services.  
7 It also criticises the Commission for not preventing that different use and, in that 
respect, on 24 April 2017, brought an action before the General Court for failure 
to act (Case T-245/17, OJ 2017, C 213, p. 33). 
8 Moreover, Viasat has brought proceedings before a number of courts of the 
Member States for annulment of the national authorisations issued to Inmarsat for 
CGCs which it has deployed for its EAN service in the EU Member States.  
9 In the present case, Viasat takes issue with the authorisation granted by the IBPT 
for six CGCs installed in Belgium and seeks its annulment before the Market 
Court of the cour d’appel de Bruxelles, section Cour des marchés (Court of 
Appeal, Brussels, Market Division). Eutelsat has intervened in the proceedings in 
support of the form of order sought by Viasat. 
II. Provisions at issue 
EU law  
Decision No 626/2008/EC of the European Parliament and of the Council of 
30 June 2008 on the selection and authorisation of systems providing mobile 
satellite services (MSS) (ʻthe MSS decisionʼ) 
10 Title I, headed ʻObjective, scope and definitionsʼ, provides: 
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ʻArticle 1 — Objective and scope  
1. …this decision … 
creates a Community procedure for the common selection of operators of mobile 
satellite systems that use the 2 GHz frequency band in accordance with Decision 
2007/98/EC, comprising radio spectrum from 1980 to 2010 MHz for earth to 
space communications, and from 2170 to 2200 MHz for space to earth 
communications. It also lays down provisions for the coordinated authorisation by 
Member States of the selected operators to use the assigned radio spectrum within 
this band for the operation of mobile satellite systems. 
2. Operators of mobile satellite systems shall be selected through a Community 
procedure, in accordance with Title II. 
3. The selected operators of mobile satellite systems shall be authorised by 
Member States in accordance with Title III. 
…  
Article 2 — Definitions 
ʻ... The following definitions shall also apply:  
(a) ‟mobile satellite systems” shall mean electronic communications networks 
and associated facilities capable of providing radio-communications services 
between a mobile earth station and one or more space stations, or between mobile 
earth stations by means of one or more space stations, or between a mobile earth 
station and one or more complementary ground components used at fixed 
locations. Such a system shall include at least one space station; 
(b) ‟complementary ground components” of mobile satellite systems shall mean 
ground-based stations used at fixed locations, in order to improve the availability 
of MSS in geographical areas within the footprint of the system’s satellite(s), 
where communications with one or more space stations cannot be ensured with 
the required quality.ʼ  
11 Title II, headed ʻSelection procedureʼ, provides:  
ʻArticle 4 — Admissibility of applications 
1. The following admissibility requirements shall apply: 
… 
(c) applications shall include a commitment on the part of the applicant that: 
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(i) the mobile satellite system proposed shall cover a service area of at least 
60% of the aggregate land area of the Member States, from the time the provision 
of MSS commences; 
(ii) MSS shall be available in all Member States and to at least 50% of the 
population and over at least 60% of the aggregate land area of each Member State 
by the time stipulated by the applicant but in any event no later than seven years 
from the date of publication of the Commission’s decision adopted pursuant to 
Articles 5(2) or 6(3). 
… ʼ 1 
12 Title III, headed ʻAuthorisationʼ, provides: 
ʻArticle 7 — Authorisation of the selected applicants 
1.  Member States shall ensure that the selected applicants, in accordance with 
the time frame and the service area to which the selected applicants have 
committed themselves, in accordance with Article 4(1)(c), and in accordance with 
national and Community law, have the right to use the specific radio frequency 
identified in the Commission decision adopted pursuant to Articles 5(2) or 6(3) 
and the right to operate a mobile satellite system. They shall inform selected 
applicants of those rights accordingly. 
… 
Article 8 — Complementary ground components  
1.  Member States shall, in accordance with national and Community law, 
ensure that their competent authorities grant to the applicants selected in 
accordance with Title II and authorised to use the spectrum pursuant to Article 7 
the authorisations necessary for the provision of complementary ground 
components of mobile satellite systems on their territories.ʼ 
‘Article 9 — Monitoring and enforcement  
… 
3. The measures defining any appropriate modalities for coordinated application 
of the rules on enforcement referred to in paragraph 2, including rules for the 
coordinated suspension or withdrawal of authorisations for breaches of the 
common conditions provided for in Article 7(2), designed to amend non-essential 
 
1 The ʻCommission’s decision adopted pursuant to Articles 5(2) or 6(3)ʼ, referred to in point (ii), 
is Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-
European systems providing mobile satellite systems (MSS), published in OJ L 149 of 12 June 
2009. The provision may therefore be read as: ʻ by the time stipulated by the applicant but in 
any event no later than [13 June 2016]ʼ 
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elements of this Decision by supplementing it shall be adopted in accordance with 
the regulatory procedure with scrutiny referred to in Article 10(4).’ 
Commission Decision 2011/667/EU of 10 October 2011 on modalities for 
coordinated application of the rules on enforcement with regard to mobile 
satellite services (MSS) pursuant to Article 9(3) of Decision No 626/2008/EC of 
the European Parliament and of the Council  
13 Article 1 — Subject matter, objective and scope  
ʻ1. This Decision lays down the modalities for the coordinated application of 
Member States’ rules on enforcement applicable to an authorised operator of 
mobile satellite systems in the event of an alleged breach of the common 
conditions attached to its authorisation.  
2. Taking into account the cross-border nature of MSS, coordination with the 
assistance of the Communications Committee shall aim in particular at facilitating 
a common understanding of the facts underlying any alleged breach and its 
gravity, leading to consistent application of national enforcement rules across the 
European Union, including coordinated timing of any measures taken, in 
particular where breaches are similar in nature.ʼ 
Belgian law  
The Royal Decree of 11 February 2013 on systems providing mobile satellite 
services (ʻthe MSS Royal Decreeʼ) implements that part of the MSS Decision 
which concerns the Member States. It authorises the two operators selected by the 
Commission to use the 2 GHz band.  
Article 1 of that Royal Decree repeats the definitions of MSS and CGC given in 
the MSS Decision.  
Article 3 provides:  
ʻAt least 50% of the population and 60% of the territory of Belgium shall be 
covered by 13 June 2016.ʼ 
Article 8 lays down the conditions under which operators may install CGCs, 
namely: notification, approval of the CGCs and communication to the IBPT of the 
characteristics and place of installation of the CGCs. Article 9 provides that no 
additional service may be offered exclusively via the CGCs. In the event of a 
failure of the satellite system, those CGCs cannot operate alone for more than 18 
months,  
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III. Positions of the parties 
A. Viasat 
14 Viasat maintains, inter alia, that Inmarsat was under an obligation to cover by its 
services ‘at least 50% of the population and 60% of the territory in Belgium… by 
13 June 2016’. Since that condition was not fulfilled by that date, the IBPT was 
not entitled to authorise the CGCs.  
15 It is established that the coverage obligation has not been fulfilled since Inmarsat 
states that, at that time, it had placed an order for the manufacture of a satellite and 
it is common ground that this had not yet been installed, let alone in service so as 
to cover 50% of the population and 60% of the territory in Belgium. Inmarsat did 
not launch its EAN satellite until 28 June 2017. However, that satellite is not yet 
active from a commercial point of view and, therefore, Inmarsat has not yet been 
able to deploy a mobile satellite system providing MSS on the 2 GHz band. 
16 Viasat considers therefore that the IBPT adopted the contested decision in breach 
of the principle of legality in that the mobile satellite system of which every CGC 
must necessarily form an integral part did not exist even to the extent of fulfilling 
at least the obligation imposed by the MSS decision. 
B. Eutelsat 
17 Eutelsat adds that, in any event, even assuming that one day Inmarsat may launch 
the EAN commercially, it will never be able to provide a continuous commercial 
service covering at least 50% of the population and 60% of the territory of 
Belgium in the sense intended by the EU legislature. The EAN is a service 
intended exclusively for airlines worldwide and not only for those used by Belgian 
citizens. Business or relatively well-to-do customers who wish to be able to 
continue to consult their emails and watch in-flight films when flying over Europe 
do not necessarily represent more than 50% of the Belgian population, especially 
since that customer group does not consist primarily of Belgian or even European 
citizens. The public targeted by the EAN service is totally at odds with the 
objectives of the MSS decision and the MSS Royal Decree. Furthermore, Inmarsat 
modified its initial project and decided not to launch a satellite whose whole 
payload is intended for the MSS but to launch a reduced payload on a condosat 
generating a significantly lower capacity for MSS. 
C. THE IBPT 
18 The IBPT considers that the legislation authorises Inmarsat to operate a mobile 
satellite system in the frequency bands specified and establishes a genuine 
individual right for the selected operators to install CGCs if the three conditions 
laid down by Article 8 of the MSS Royal Decree are satisfied.  
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However, authorisation to install CGCs cannot be refused on grounds of non-
compliance with the obligation to provide a certain coverage by 13 June 2016. 
The legislation does not make non-compliance with Article 3 of the MSS Royal 
Decree subject to penalties or forfeiture of the right to apply for authorisation for 
CGCs. The IBPT therefore remained competent to authorise CGCs after 13 June 
2016 
19 The IBPT also observes that:  
– the date of 13 June 2016 and the coverage obligation are in Article 4(1)(c)(ii) 
of the MSS decision, which concerns a commitment to be given by the 
applicant operator before it is selected; if the selection of Inmarsat were to be 
called in question, that could only be done at Union level;  
– Article 21 of the Law on the statute of the IBPT permits it to monitor the use of 
the rights granted and to penalise an operator who does not fulfil its obligations 
but does not give it the right to refuse to grant those rights if the conditions laid 
down by the Royal Decree are met; that is confirmed by Article 9(2) of the 
MSS Decision. 
D. Inmarsat  
20 Inmarsat also considers that the consequence of non-compliance with the time 
frame cannot be that the IBPT can no longer authorise its CGCs. The MSS Royal 
Decree gives Inmarsat the right to use the frequencies assigned to it on the 2 GHz 
band. No provision is made for any forfeiture of that right in the event of non-
compliance with the deadline set in Article 3 of the MSS Royal Decree or for any 
revocation of the IBPT’s powers. No provision of the MSS regulatory framework 
makes the grant of authorisations for CGCs subject to overall monitoring of 
whether the MSS system of which those CGCs are intended to form part complies 
with that regulatory framework. 
21 The coverage requirement laid down in Article 3 of the MSS Royal Decree is not, 
however, rendered ineffective. That requirement forms part of the regulatory 
framework and the IBPT has competence to monitor compliance. If the IBPT 
were to find that Inmarsat had infringed the regulatory framework, it would be 
competent to take the measures it deems appropriate. A hypothetical infringement 
by Inmarsat of the coverage time frame cannot culminate in the loss of the IBPT’s 
competence because it is precisely the IBPT which has competence to penalise 
such an infringement, were it to occur.  
22 Since Inmarsat has been accorded a right to use frequencies in the 2 GHz band at 
Union level and the time frame for the launch of the EAN satellite has had the 
same effect throughout the Union, the consequences of that delay cannot be dealt 
with at national level. The European Commission is the only authority which can 
assess the alleged loss of competence of national regulators to grant national 
authorisations for the CGCs of the EAN. That is precisely why Viasat brought the 
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action for failure to act before the General Court of the European Union (Case 
T-245/17, pending). 
23 Moreover, even though there was a delay, the satellite was eventually launched so 
that the EAN provides complete geographical coverage of the territory of the 
European Union and even beyond. It therefore covers the entire Belgian 
population, even though it must be acknowledged that the coverage rate in terms 
of population must be seen in the light of the fact that the EAN aims to offer 
services to passengers carried by airline companies. Any European citizen who 
travels by plane may therefore have access to the service. The condition laid down 
by the legislation is a condition of coverage and not a condition of actual use by 
50% of the population. 
The competent authorities of the other Member States share this view, since they 
support the CGC installations requested; none has said that it lacks competence in 
light of the fact jurisdiction in light of the fact that the time frame was not adhered 
to. 
IV. Assessment of the Court of Appeal  
24 The Court of Appeal notes that it is not disputed that Inmarsat, in its application, 
gave the commitment referred to in Article 4(1)(c) of the MSS Decision and that it 
has been established that Inmarsat did not comply with the requirement to cover 
50% of the population and 60% of the territory in Belgium by 13 June 2016, at 
which date its EAN service was not yet operational.  
25 From an examination of Viasat’s submission that Inmarsat failed to comply with 
the coverage thresholds set, the Court of Appeal considers that it was not possible 
to determine at the outset, from the wording of Article 3 of the MSS Royal 
Decree, which includes those same thresholds, whether the Crown intended 
compliance with the coverage requirement laid down therein to be a necessary 
precondition for the exercise of the rights accorded to the operators selected, 
including the right to install CGCs in Belgium. 
In order to give practical effect to that provision, it should however, a priori, be 
interpreted in that way.  
Article 3 of the MSS Royal Decree reiterates the coverage conditions which 
operators must fulfil as laid down in the MSS Decision of the European 
Parliament and of the Council. However, the national provision differs from that 
in Article 4(1)(c) of the MSS Decision, in that the latter concerns a commitment 
which the operator must give in its application before it is selected. Article 7(2) of 
the MSS Decision provides, however, that the rights accorded to the candidates 
selected are subject to various conditions, including the condition that the 
candidates selected ʻshall honour all commitments given in the applications or 
during the comparative selection procedureʼ.  
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26 In accordance with the principle of interpretation of national law in conformity 
with EU law, the Court of Appeal considers that the scope of Article 3 of the MSS 
Royal Decree should be determined in accordance with the MSS Decision which 
it is designed to implement, taking into account the wording, context and 
objectives of that decision.  
27 Article 4(1)(c) of the MSS Decision provides that each applicant must, in its 
application, give a commitment to comply with the following coverage 
requirements:  
– the mobile satellite system proposed must cover a service area of at least 60% 
of the aggregate land area of the Member States, from the time the provision of 
MSS commences;  
–  MSS must be available in all Member States and to ʻat least 50% of the 
population and over at least 60% of the aggregate land area of each Member is 
State by the time stipulated by the applicant but in any event no later than …ʼ 
[13 June 2016].  
28 Article 7(2) of the MSS Decision provides that the rights covered by paragraph 1 
granted to the selected applicants are subject to various conditions, the ʻcommon 
conditionsʼ. These include the requirement to honour any commitments given in 
their applications, which encompasses the coverage obligations assumed in 
accordance with Article 4(1) c).  
29 Decision 2011/667 establishes, furthermore, a coordinated procedure at EU level 
concerning the monitoring of compliance with those common conditions.  
That coordinated procedure is considered expedient in the light of the cross-border 
nature of MSS, and it is aimed at ʻfacilitating a common understanding of the 
facts ... leading to consistent application of national enforcement rules across the 
European Unionʼ (Article 1(2) of the decision). It may be inferred from the steps 
laid down for this procedure that it is directed a priori at cases in which, although 
the authorities of a Member State have authorised a selected operator, those 
authorities are aware of non-compliance with one or more of the common 
conditions which the operator may be able to rectify. The procedure allows for 
coordination and an exchange of information between the Member States and the 
Commission and for withdrawal of a national authorisation to be avoided until the 
operator concerned has had the opportunity to rectify the situation. The procedure 
established is silent as regards the role of the national authorities deciding on 
applications for CGC authorisations, a matter which is still governed by the MSS 
Decision.  
30 In the present case, the Court of Appeal points out that the time frame imposed 
has not been adhered to and no longer can be. Therefore, the failure to fulfil the 
coverage requirement cannot be rectified. Since the failure to fulfil the 
requirement is definitive, it would a priori be preferable, in the interests of 
procedural economy, for the competent national authority concerned to have the 
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duty or the power not to authorise CGCs rather than to decide that it cannot take 
such non-compliance into account in connection with its decision to authorise 
CGCs, and is able to do so only subsequently, in connection with the procedure 
laid down by Decision 2011/667, which could lead, in the most serious cases, to 
withdrawal of the authorisation. The practical effect to be given to the provisions 
and the conclusions to be drawn from the established and definitive failure to 
comply with a common condition are the same. 
The Court of Appeal considers that it could be maintained in that regard that a 
selected applicant which did not comply, by 13 June 2016, with the coverage 
requirement laid down in Article 4(1)(c)(ii) of the MSS Decision no longer has the 
right to use the radio frequencies on the 2 GHz band nor the right to operate a 
mobile satellite system. 
Article 8 of the MSS Decision establishes the obligation of the Member States to 
ensure that their competent authorities ʻgrant to the applicants selected in 
accordance with Title II and authorised to use the spectrum pursuant to Article 7ʼ 
the authorisations necessary for the provision of CGCs on their territories. It could 
be argued in that regard that a selected applicant that has not complied with the 
coverage requirement by the date laid down is therefore not covered by that 
provision. 
It is in those circumstances that the Crown may have deemed it expedient to make 
fulfilment of the coverage requirement laid down in Article 3 of the MSS Royal 
Decree a necessary precondition for the exercise of the rights granted to the 
selected operators, in particular the right to install one or more CGCs in Belgium, 
thus avoiding, in such a case, the detour via the agreed procedure laid down by 
Decision 2011/660/EU, which may be seen as undermining the effectiveness of 
the right and of the penalty.  
Not to penalise the failure of the selected operator to adhere to the time frame 
would deprive the coverage commitment given by the applicant operators at the 
stage of their selection of any effect, bearing in mind that the selection process in 
fact took into account the ability of operators to provide an MSS service within 
the time frame imposed (see, inter alia, the recitals of Decision 2009/449/EC, 
cited in footnote 1), and this is liable to distort the selection procedure and 
competition between operators.  
31 In view of the above, the Court of Appeal considers it necessary to ask the Court 
of Justice about the interpretation to be given to Article 4(1)(c), Article 7(1) and 
Article 8(1) of the MSS Decision of the European Parliament and of the Council. 
It is a matter of interpretation which is of general interest for the uniform 
application of EU law, since the question whether or not the coverage requirement 
laid down in Article 4(1)(c) of the MSS Decision has been fulfilled is likely to 
arise in similar terms before other courts of the EU Member States, given the 
multiple ongoing proceedings concerning authorisations issued by the competent 
national authorities for Inmarsat CGCs in most EU countries.  
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V. The questions referred for a preliminary ruling  
32 The Court of Appeal refers the following questions:  
‘1. Are Article 4(1)(c)(ii), Article 7(1) and Article 8(1) of Decision 
No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 
on the selection and authorisation of systems providing mobile satellite services 
(MSS) to be interpreted as meaning that, where it is established that the operator 
selected in accordance with Title II of that decision has not provided mobile 
satellite services through a mobile satellite system by the deadline set in 
Article 4(1)(c)(ii) of the decision, the competent authorities of the Member States 
referred to in Article 8(1) of the decision must refuse to grant authorisations 
allowing that operator to deploy complementary ground components on the 
ground that that operator has failed to honour the commitment given in its 
application? 
2. If the answer to the first question is in the negative, are those same provisions to 
be interpreted as meaning that, in the context given, the competent authorities of 
the Member States referred to in Article 8(1) of the decision may refuse to grant 
authorisations allowing that operator to deploy complementary ground 
components on the ground that it has not honoured the commitment to provide 
certain coverage by 13 June 2016?’