Opinion of the Advocate General — ECLI:EU:C:2020:922
Date: 2020-11-12
Language of the case: French
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-515/19 — 1 
Case C-515/19 
Request for a preliminary ruling 
Date lodged: 
8 July 2019 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
28 June 2019 
Applicant: 
Eutelsat SA 
Defendants: 
Autorité de régulation des communications électroniques et des 
postes 
Inmarsat Ventures Ltd 
  
... 
...Eutelsat SA asks the Conseil d’État (Council of State, France)...: 
1. To annul, as ultra vires, Decision No 2018-0001 of 22 February 2018 of the 
Autorité de régulation des communications électroniques et des postes (Authority 
for the Regulation of Electronic Communications and Postal Services, France), 
granting Inmarsat Ventures Limited authorisation to operate complementary 
ground components of a mobile satellite system; 
... 
Eutelsat SA submits that: 
-... [Or. 2]... 
- the authority committed an error of law and a manifest error of assessment in 
authorising Inmarsat Ventures Limited to operate complementary ground 
components, which infringed the applicable European legislation in that the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 6. 2019 — CASE C-515/19 
 
2  
network envisaged by Inmarsat Ventures Limited did not constitute a mobile 
satellite system, the ground stations of that network were not designed as 
‘complementary’ to the satellite component of the system, and the network did not 
pursue the objectives assigned by the legislature to systems providing mobile 
satellite services, and also in that Inmarsat had not provided mobile satellite 
services prior to the date stipulated in Article 4(1)(c)(ii) of Decision 
No 626/2008/EC, namely 1 December 2016, which ought to have prevented the 
grant of such authorisation; 
-... 
...the Autorité de régulation des communications électroniques et des postes 
(Authority for the Regulation of Electronic Communications and Postal Services) 
contends that the application should be dismissed. [...] 
...Inmarsat Ventures Limited contends that the application should be dismissed 
[...]. 
By intervention registered on 5 June 2019, Viasat Inc. and Viasat UK Ltd ask the 
Conseil d’État (Council of State) to grant Eutelsat’s application.... They support 
the applicant’s pleas and submit, in addition, that the insufficient reasons are 
stated for the contested authorisation in that the authority did not make a finding 
for or against the applicant on the issue of whether the ground stations of the 
planned network would communicate with a mobile earth station within the 
meaning of Decision No 626/2008/EC of 30 June 2008, and would accordingly 
constitute complementary ground components, and that that authorisation is 
vitiated by an error of law in that it authorised the holder to operate 
complementary ground components in breach of Article 8(c) of Decision 
No 626/2008/EC. 
...; 
Having regard to: 
- the Treaty on the Functioning of the European Union; 
- Commission Decision No 2007/98/EC of 14 February 2007; 
- Decision No 626/2008/EC of the European Parliament and of the Council of 
30 June 2008; 
- Commission Decision No 2009/449/EC of 13 May 2009; [Or. 3]  
- the request for a preliminary ruling presented to the Court of Justice of the 
European Union in Case C-100/19, by the cour d’appel de Bruxelles (Court of 
Appeal, Brussels), on 8 February 2019; 
-...; 
EUTELSAT 
 
3 
The dispute 
l. Commission 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 provided that Member States were to make 
those frequency bands (referred to as the MSS bands, from ‘mobile satellite 
services’) available for systems providing such services within the European 
Union with effect from 1 July 2007. Decision 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 created an EU procedure for 
selecting among mobile satellite system operators seeking authorisation, pursuant 
to Decision 2007/98/EC of 14 February 2007, to use that frequency band, and 
made provision for coordinated authorisation, by the Member States, of the 
operators thus selected. Under that decision, it was open to Member States, in 
certain circumstances, to authorise the selected operators to use the MSS bands for 
the operation of ‘complementary ground components’ of mobile satellite systems, 
in order to improve the availability of MSS in geographical areas where 
communications with one or more space stations cannot be ensured with the 
required quality. By Decision No 2009/449/EC of 13 May 2009, the European 
Commission selected Inmarsat Ventures Limited and Solaris Mobile Limited as 
authorised operators of pan-European systems providing mobile satellite services. 
2. By decision No 2014-1257 of 21 October 2014, the Autorité de régulation des 
postes et des communications électroniques (Authority for the Regulation of 
Postal Services and Electronic Communications) authorised Inmarsat Ventures 
Limited to use certain MSS band frequencies in metropolitan France. By decision 
No 2018-0001 of 22 February 2018, the authority authorised Inmarsat Ventures 
Limited to operate complementary ground components of a mobile satellite 
system. Eutelsat seeks the annulment of that decision on the basis that it is ultra 
vires. [Or. 4]  
The intervention 
3. Viasat Inc. and Viasat UK Ltd have established a sufficient interest in the 
annulment of the decision of the Autorité de régulation des postes et des 
communications électroniques (Authority for the Regulation of Postal Services 
and Electronic Communications) of 22 February 2018. Their intervention is 
accordingly admissible. 
Inmarsat’s objection of inadmissibility 
4. It is apparent from the documents in the file that Eutelsat is a company providing, 
amongst other things, in-flight connectivity services similar to those which 
Inmarsat Ventures Limited intends to provide under the authorisations granted to 
it, and in particular the authorisation which is at issue in these proceedings. 
Eutelsat therefore has such an interest as to have standing to contest the decision it 
challenges. 
REQUEST FOR A PRELIMINARY RULING OF 28. 6. 2019 — CASE C-515/19 
 
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The plea alleging failure to comply with the time-limit in Article D. 406-14 of the 
code des postes et des communications électroniques (Postal and Electronic 
Communications Code, France) 
5. ... 
6. ...[plea rejected] 
The plea alleging failure by the regulatory authority to examine whether the 
conditions laid down in Article 8 of Decision No 626/2008/EC of 30 June 2008 
were met 
7. ...[Or. 5] 
8. ...[plea rejected] 
The plea alleging breach of Article L. 32-1 of the code des postes et des 
communications électroniques (Postal and Electronic Communications Code, 
France) 
9. ...  
10. ...[plea rejected] 
The pleas alleging infringement of European Union law 
11. Article 2(2) of Decision No 626/2008/EC of 30 June 2008 defines mobile satellite 
systems as: ‘(a) ... 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’. It defines complementary ground 
components as: ‘(b) ... 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’. Furthermore, Article 8(3)(b) of that 
decision provides that: ‘complementary ground components shall constitute an 
integral part of a mobile satellite system and shall be controlled by the satellite 
resource and network management mechanism; they shall use the same direction 
of transmission and the same portions of frequency [Or. 6] bands as the 
associated satellite components and shall not increase the spectrum requirement 
of the associated mobile satellite system’. 
12. Article 4 provides: ‘1. The following admissibility requirements shall apply: ... (c) 
applications shall include a commitment on the part of the applicant that: ... (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 
EUTELSAT 
 
5 
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).’ Article 7 provides that: ‘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. 
... 2. The rights covered by paragraph 1 shall be subject to the following common 
conditions: ... (b) selected applicants shall meet milestones six to nine set out in 
the Annex within 24 months of the selection decision adopted pursuant to 
Articles 5(2) or 6(3); (c) selected applicants shall honour any commitments they 
give in their applications or during the comparative selection procedure, 
irrespective of whether the combined demand for radio spectrum exceeds the 
amount available’. Finally, Article 8 provides: ‘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’. The Commission decision on the selection of operators of 
pan-European systems providing mobile satellite services (MSS) was published 
on 12 June 2009 in the Official Journal of the European Union, and the date 
referred to in Article 4(1)(c)(ii) was therefore 13 June 2016. However, this date 
was postponed to 1 December 2016. 
13. It is apparent from the documents in the file that Inmarsat Ventures Limited 
intends to use the MSS band frequencies to develop a system, known as the 
European Aviation Network (EAN), for the provision of aviation connectivity 
services. This system provides a mobile service to aircraft using satellite 
transmissions, which are received by a terminal located above the aircraft 
fuselage, and transmissions from complementary ground stations across the 
European Union, which are received by a terminal located below the aircraft 
fuselage. All of those transmissions use the MSS frequency band. The satellite 
element of the system was put into service on 29 August 2017. 
14. ...[Or. 7]...[the plea based on the objective of reducing geographical disparities in 
digital access through the use of satellites is rejected] 
15. Secondly, the applicant submits that the authorisation to operate complementary 
ground components granted to Inmarsat Ventures Limited by the Autorité de 
régulation des communications électroniques et des postes (Authority for the 
Regulation of Electronic Communications and Postal Services) is contrary to the 
provisions of Decision No 626/2008/EC of 30 June 2008 in that the network 
envisaged by Inmarsat Ventures Limited does not constitute a mobile satellite 
system, because its complementary ground components do not constitute an 
integral part of it. The outcome of this plea will depend, first, on the legal criteria 
REQUEST FOR A PRELIMINARY RULING OF 28. 6. 2019 — CASE C-515/19 
 
6  
to be used in recognising a mobile earth station within the meaning of Decision 
No 626/2008/EC of 30 June 2008, and secondly, on whether the applicant is right 
in contending that that decision requires a mobile earth station which 
communicates with a complementary ground component also to be capable, 
without the use of separate equipment, of communicating with a satellite, and if 
so, how it is to be determined whether the equipment is one and the same. 
16. Thirdly, the applicant submits that the contested authorisation is contrary to the 
provisions of Decision No 626/2008/EC of 30 June 2008 in that the 
complementary ground components which are authorised by the contested 
decision are not complementary with respect to the satellite component of the 
network. In order to deal with that plea it is necessary to determine, first, whether 
Article 2(2) of the decision is to be interpreted as meaning that a mobile satellite 
system must be principally based on a satellite element, or whether, on a correct 
interpretation of that provision, the view can be taken that it is immaterial what 
the respective roles of the satellite and ground elements may be, even where the 
satellite element serves no purpose unless communication with the ground 
element is impossible, and secondly, whether complementary ground components 
covering the entire territory of the European Union can be installed on the basis 
that communications with the space stations cannot be ensured with the required 
quality, within the meaning of Article 2(2)(b), at any point. 
17. Fourthly, the applicant submits that the authorisation to operate complementary 
ground components granted to Inmarsat Ventures Limited by the Autorité de 
régulation des communications électroniques et des postes (Authority for the 
Regulation of Electronic Communications and Postal Services) is contrary to the 
provisions of Decision No 626/2008/EC of 30 June 2008 in that, as of the date 
referred to in Article 4(1)(c)(ii) of that decision, namely 1 December 2016, 
Inmarsat Ventures Limited had not provided mobile satellite services, and this fact 
ought to have prevented the grant of that authorisation. In order to deal with that 
plea, it is necessary to determine whether, in a case where it is shown that an 
operator selected in accordance with Title II of that decision has not, by the 
deadline laid down in Article 4(1)(c)(ii), complied with the commitments as to 
geographical coverage of mobile satellite systems set out in Article 7(2), the 
competent authorities of the Member States are required to refuse authorisation to 
operate complementary ground components, or whether, failing that, they are 
entitled to refuse such authorisation. 
18. ...[Or. 8]...[dismissal of a plea advanced by the intervening companies] 
19. It is necessary to answer the questions set out in paragraphs 15, 16 and 17 above 
in order for the Conseil d’État (Council of State) to resolve the dispute before it 
...[referral to the Court of Justice pursuant to Article 267 TFEU] 
DECIDES: 
EUTELSAT 
 
7 
... To stay Eutelsat’s application pending a ruling from the Court of Justice of the 
European Union on the following questions: 
1. What legal criteria are to be used in identifying a mobile earth station within 
the meaning of Decision No 626/2008/EC of the European Parliament and of the 
Council of 30 June? Is that decision to be read as requiring that a mobile earth 
station which communicates with a complementary ground component must also 
be capable, without the use of separate equipment, of communicating with a 
satellite? If so, how is it to be determined whether the equipment is one and the 
same? 
2. Is Article 2(2) of that decision to be interpreted as meaning that a mobile 
satellite system must be principally based on a satellite element, or can the view 
be taken, on a correct interpretation of that provision, that it is immaterial what the 
respective roles of the satellite and ground elements may be, even where the 
satellite element serves a purpose only where communication with the ground 
element is impossible? Can complementary ground components covering the 
entire territory of the European Union be installed on the basis that 
communications with the space stations cannot be ensured with the required 
quality in any respect, within the meaning of Article 2(2)(b) of the same decision? 
3. In a case where it is shown that an operator selected in accordance with Title 
II of that decision has not, by the deadline laid down in Article 4(1)(c)(ii), 
complied with the commitments as to geographical coverage of mobile satellite 
systems set out in Article 7(2), are the competent authorities of the Member State 
required to refuse authorisation to operate complementary ground components? If 
not, are they entitled to refuse such authorisation? 
...[Or. 9]...[signatures]