ORDER OF THE GENERAL COURT (First Chamber)
17 June 2019 (*)
(Action for annulment — Galileo satellite navigation programme — Technical and operational specifications — Lack of individual concern — Manifest inadmissibility)
In Case T-317/18,
Fugro NV, established in Leidschendam (Netherlands), represented initially by T. Snoep and V. van Weperen, and subsequently by V. van Weperen, H. Gornall and J. de Pree, lawyers
applicant,
v
European Commission, represented by V. Di Bucci, L. Armati and B. Sasinowska, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Implementing Decision (EU) 2018/321 of 2 March 2018 amending Implementing Decision (EU) 2017/224 setting out the technical and operational specifications allowing the commercial service offered by the system established under the Galileo programme to fulfil the function referred to in Article 2(4)(c) of Regulation (EU) No 1285/2013 of the European Parliament and of the Council (OJ 2018 L 62, p. 34), and, in the alternative, for annulment of Article 1(2) of that decision,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, V. Valančius (Rapporteur) and U. Öberg, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, Fugro NV, is a company incorporated under Netherlands law whose business consists, inter alia, in providing satellite positioning services.
2        The Galileo programme is part of the EU satellite navigation policy, which aims to provide the European Union with two satellite navigation systems, the system established under the Galileo programme and the EGNOS system.
3        Regulation (EU) No 1285/2013 of the European Parliament and of the Council of 11 December 2013 on the implementation and exploitation of European satellite navigation systems and repealing Council Regulation (EC) No 876/2002 and Regulation (EC) No 683/2008 of the European Parliament and of the Council (OJ 2013 L 347, p. 1) seeks, according to recital 5 thereof, to meet the requirements of the Galileo and EGNOS programmes in terms of governance and security, to satisfy the requirement for sound financial management and to promote the use of the satellite navigation systems established under those programmes. In accordance with Article 1 thereof, that regulation is intended to lay down the rules in relation to the implementation and exploitation of the systems under the European satellite navigation programmes, in particular those relating to the governance and the financial contribution of the European Union.
4        Under Article 2(2) of Regulation No 1285/2013, the system established under the Galileo programme is to be a civil system under civil control and an autonomous global navigation satellite system infrastructure consisting of a constellation of satellites and a global network of ground stations.
5        Article 2(4) of Regulation No 1285/2013 provides:
‘The specific objectives of the Galileo programme shall be to ensure that the signals emitted by the system established under that programme can be used to fulfil the following functions:
(a) to offer an open service (OS), which is free of charge to the user and provides positioning and synchronisation information intended mainly for high-volume satellite navigation applications;
(b) to contribute, by means of Galileo open service signals and/or in cooperation with other satellite navigation systems, to integrity-monitoring services aimed at users of safety-of-life applications in compliance with international standards;
(c) to offer a commercial service (CS) for the development of applications for professional or commercial use by means of improved performance and data with greater added value than those obtained through the open service;
(d) to offer a public regulated service (PRS) restricted to government-authorised users, for sensitive applications which require a high level of service continuity, free of charge for the Member States, the Council, the Commission, [the European External Action Service (EEAS)] and, where appropriate, duly authorised Union agencies; this service uses strong, encrypted signals …
(e) to contribute to the search and rescue support service (SAR) of the COSPAS-SARSAT system by detecting distress signals transmitted by beacons and relaying messages to them.’
6        Article 12 of Regulation No 1285/2013 defines the European Commission’s role. Under Article 12(1) of that regulation, the Commission is to have overall responsibility for the Galileo and EGNOS programmes. It is to manage the funds allocated under that regulation and to oversee the implementation of all programme activities, in particular with respect to their cost, schedule and performance. Article 12(3)(d) of Regulation No 1285/2013 provides:
‘For the smooth progress of the phases of the deployment and exploitation phases of the Galileo programme and the exploitation phase of the EGNOS programme referred to respectively in Articles 3 and 4, the Commission shall lay down, where necessary, the measures required to determine the technical and operational specifications necessary to fulfil the functions referred to in Article 2(4)(b) and (c) and to implement systems evolutions.’
7        On 8 February 2017, the Commission adopted Implementing Decision (EU) 2017/224 setting out the technical and operational specifications allowing the commercial service offered by the system established under the Galileo programme to fulfil the function referred to in Article 2(4)(c) of Regulation No 1285/2013 (OJ 2017 L 34, p. 36). Those technical and operational specifications are set out in the annex to that decision. It provides, inter alia, that access to the ‘CS high precision’ commercial service is fee-paying, depending on the pricing policy in force, and that it is inspected by one or more service providers.
8        By Implementing Decision (EU) 2018/321 of 2 March 2018 amending Implementing Decision 2017/224 (OJ 2018 L 62, p. 34) (‘the contested decision’), the Commission amended the technical and operational specifications set out in the annex to Implementing Decision 2017/224. Article 1 of the contested decision provides:
‘The Annex to Implementing Decision (EU) 2017/224 is amended as follows:
(1) the text in the row entitled “General specifications” and in the column headed “CS high precision” [“Supply of high precision data in order to obtain a positioning error of less than one decimetre in nominal conditions of use”] is replaced by the following: “Supply of high precision data in order to obtain a positioning error of less than two decimetres in nominal conditions of use”;
(2) the text in the row entitled “Access to the service” and in the column headed “CS high precision” [“Fee-paying access depending on the pricing policy in force — Inspected by one or more service providers”] is replaced by the following: “— free access”;
(3) in the row entitled “Deployment of the service” and in the column headed “CS high precision”, the words [“— Initial commercial operating phase between 2018 and 2020 — Full commercial operating phase from 2020”] are replaced by the words “— Initial signals supply phase between 2018 and 2020 — Full service supply phase from 2020”.’
Procedure and forms of order sought
9        By application lodged at the Court Registry on 18 May 2018, the applicant brought the present action.
10      The applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, annul Article 1(2) of the contested decision;
–        order the Commission to pay the costs.
11      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
12      Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
13      In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.
14      Without formally raising an objection of inadmissibility under Article 130 of the Rules of Procedure, the Commission submits that the action is inadmissible on the ground that the applicant does not have locus standi. It also contends that the applicant’s claim in the alternative for partial annulment of the contested decision is inadmissible, on the ground that the provision whose annulment is sought is not severable from that decision’s other provisions.
15      As regards the dispute as to the applicant’s locus standi, the Commission submits, first, that the applicant is not directly affected by the contested decision and, secondly, that that decision affects the applicant only through the intermediary of implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
16      The applicant disputes the Commission’s arguments and submits that the contested decision is a regulatory act, within the meaning of the fourth paragraph of Article 263 TFEU, which is of direct concern to it and does not entail implementing measures with regard to the applicant.
17      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 of that article, 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.
18      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 the 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).
19      It should be borne in mind that the applicant challenges the legality of the contested decision in that Article 1(2) of that decision amended Implementing Decision 2017/224 by providing that access to the ‘CS high precision’ commercial service is free of charge, whereas the latter decision provided that access to that service would be subject to a fee.
20      It is therefore necessary to examine whether the contested decision, in so far as it provides that access to the ‘CS high precision’ commercial service is free of charge, is capable of directly affecting the applicant’s legal situation.
21      In that regard, the applicant submits that the fact that access to the ‘CS high precision’ commercial service is free of charge, rather than the fee-paying access initially provided for, will have a serious effect on its economic activities. According to the applicant, its existing and future customers will tend to use that free service directly rather than using the fee-paying services which it provides. Therefore, the contested decision will directly and negatively affect its financial performance and will seriously undermine the economic viability of its high-accuracy satellite positioning services.
22      By those arguments, the applicant relies, in support of its submission that it is directly affected, on the probable economic consequences of the contested decision as regards its business. According to settled case-law, such economic consequences do not affect the applicant’s legal situation, but only its factual situation (see, to that effect, order of 9 November 2016, Biofa v Commission, T‑746/15, EU:T:2016:658, paragraph 37 and the case-law cited).
23      In that regard, the mere fact that a measure may exercise an influence on an applicant’s substantive position cannot suffice to allow it to be regarded as directly concerned by that measure (see order of 9 November 2016, Biofa v Commission, T‑746/15, EU:T:2016:658, paragraph 38 and the case-law cited). Only the existence of specific circumstances may enable a litigant, claiming that the measure affects his position on the market, to bring an action on the basis of the fourth paragraph of Article 263 TFEU (see order of 21 September 2011,
Etimine and Etiproducts v ECHA, T‑343/10, EU:T:2011:509, paragraph 41 and the case-law cited; judgment of 18 October 2018, ArcelorMittal Tubular Products Ostrava and Others v Commission, T‑364/16, EU:T:2018:696, paragraph 40).
24      In the present case, by merely making a general assertion that its customers, when the ‘CS high-precision’ commercial service is available free of charge pursuant to Article 1(2) of the contested decision, will tend to use that service directly, rather than to purchase its fee-paying services, the applicant has not established the existence of specific circumstances, within the meaning of the case-law referred to in paragraph 24 above. Moreover, since it has not put forward any arguments based on factors other than the potential economic consequences of the contested decision on its business, it has not shown that that decision, in so far as it provides, in Article 1(2) thereof, that access to the ‘CS high-precision’ commercial service is free of charge, was capable of directly affecting its legal situation.
25      Moreover, the applicant does not establish, or even claim, that other provisions of the contested decision were capable of directly affecting its legal situation.
26      Consequently, it must be held that the applicant has not shown that the contested decision was capable of directly affecting its legal situation.
27      It follows that the applicant does not have locus standi to bring an action for annulment of the contested decision.
28      A finding that the disputed act does not, in itself, alter the applicant’s legal situation is sufficient to conclude that the third limb of the fourth paragraph of Article 263 TFEU is inapplicable, without it being necessary, in those circumstances, to determine whether the act entails implementing measures in respect of the applicant (judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraph 43) or whether the applicant is directly concerned by that measure (see, to that effect, judgment of 12 March 2015, Vestel Iberia and Makro autoservicio mayorista v Commission, T‑249/12 and T‑269/12, not published, EU:T:2015:150, paragraph 88).
29      The action must therefore be dismissed as manifestly inadmissible.
Costs
30      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.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed as manifestly inadmissible.
2.      Fugro NV is ordered to pay the costs.
Luxembourg, 17 June 2019.
E. Coulon
I. Pelikánová
Registrar
President
*      Language of the case: English.