Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 12 November 2020 (1)

Case C-515/19

Eutelsat SA

v

Autorité de régulation des communications électroniques et des postes,

Inmarsat Ventures SE, formerly Inmarsat Ventures Ltd,

interveners:

Viasat Inc.,

Viasat UK Ltd

(Request for a preliminary ruling
from the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling – Electronic communications networks and services – Decision 2007/98/EC – Harmonised use of radio spectrum in the 2 GHz frequency bands – Systems providing mobile satellite services – Decision No 626/2008/EC – Selection and authorisation – Article 2(2) – Mobile satellite system – Concept of a ‘mobile earth station’ – Concept of ‘“complementary” ground components’ – Article 4(1)(c)(ii) – Commitment to cover at least 60% of the territory of the European Union – Article 7(1) – Non-compliance – Consequences)

I.      Introduction

1.        This request for a preliminary ruling from the Conseil d’État (Council of State, France) concerns the ‘European Aviation Network’ system (‘the EAN system’) put in place by Inmarsat Ventures SE, formerly Inmarsat Ventures Ltd (‘Inmarsat’), which is intended to provide an internet connection to aircraft flying over the territory of the European Union.

2.        The request has been made in the context of an action for annulment brought by Eutelsat SA against a decision of the Autorité de régulation des communications électroniques et des postes (Authority for the Regulation of Electronic Communications and Postal Services, France) (‘the ARCEP’) authorising Inmarsat to operate complementary ground components within the framework of the EAN system.

3.        That decision of the ARCEP follows Decision 2009/449/EC, (2) by which the Commission selected Inmarsat and Solaris Mobile Limited as operators of mobile satellite systems authorised to use the 2 GHz frequency band, in accordance with Decision 2007/98/EC (3) and Decision No 626/2008/EC. (4)

4.        In essence, the purpose of the questions submitted by the referring court is to determine whether the EAN system put in place by Inmarsat, and in particular the ground component of that system, is consistent with the criteria laid down in Decision No 626/2008.

5.        I will propose that the Court answer those questions in the affirmative.

II.    Legal context

A.      Decision 2007/98

6.        Article 1 of Decision 2007/98 states:

‘The purpose of this Decision is to harmonise the conditions for the availability and efficient use of the frequency bands 1 980 to 2 010 MHz (earth-to-space) and 2 170 to 2 200 MHz (space-to-earth) for systems providing mobile satellite services in the [Union].’

7.        Pursuant to Article 2 of that decision, ‘systems providing mobile satellite services’ are systems capable of providing radiocommunications 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 based stations used at fixed locations.

8.        Article 3 of Decision 2007/98 provides:

‘1.      Member States shall designate and make available as from 1 July 2007 the frequency bands 1 980 to 2 010 MHz and 2 170 to 2 200 MHz for systems providing mobile satellite services.

…

2.      Any complementary ground based station shall constitute an integral part of the mobile satellite system and shall be controlled by the satellite resource and network management system. It shall use the same direction of transmission and the same portions of frequency bands as the associated satellite components and shall not increase the spectrum requirement of its associated mobile satellite system.’

B.      Decision No 626/2008

9.        Article 1(1) of Decision No 626/2008 reads as follows:

‘The purpose of this Decision is to facilitate the development of a competitive internal market for mobile satellite services (MSS) across the [Union] and to ensure gradual coverage in all Member States.

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 1 980 to 2 010 MHz for earth to space communications, and from 2 170 to 2 200 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.’

10.      Article 2(2) of that decision provides:

‘The following definitions shall also apply:

(a)      “mobile satellite system” 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.’

C.      Decision 2009/449

11.      In implementation of Decision No 626/2008, the Commission, by Decision 2009/449, selected Inmarsat and Solaris Mobile Limited as operators of mobile satellite systems authorised to use the 2 GHz frequency band, in accordance with Decision 2007/98.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

12.      By Decision No 2014-1257 of 21 October 2014, the ARCEP authorised Inmarsat to use the frequencies designated by Decision 2009/449 in metropolitan France.

13.      By Decision No 2018-0001 of 22 February 2018, the ARCEP granted Inmarsat authorisation to operate complementary ground components of a mobile satellite system.

14.      It is against that second decision that Eutelsat brought an action for annulment before the Conseil d’État (Council of State). Viasat Inc and Viasat UK Ltd (together, ‘Viasat’) intervened in the main proceedings in support of that action.

15.      It is apparent from the information provided by that court that Inmarsat intends to use the authorisation granted by Decision 2009/449 to develop the EAN system.

16.      The EAN 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 components deployed on the territory of the European Union, which are received by a terminal located below the aircraft fuselage. All those transmissions use the frequency band awarded to Inmarsat by Decision 2009/449. That system uses a satellite put into service on 29 August 2017.

17.      In support of its action for annulment before the referring court, Eutelsat put forward several arguments intended to show that the EAN system put in place by Inmarsat is not consistent with the provisions of Decision No 626/2008, thus rendering the ARCEP’s decision of 22 February 2018 invalid.

18.      After finding that those arguments raise several difficulties of interpretation of EU law, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      What legal criteria are to be used in identifying a mobile earth station within the meaning of Decision No 626/2008? 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 Decision No 626/2008 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 Decision No 626/2008 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?’

19.      The request for a preliminary ruling, which is dated 28 June 2019, was lodged at the Court Registry on 8 July 2019.

20.      Eutelsat, Inmarsat, Viasat, the French, Belgian and United Kingdom Governments and the European Commission lodged written observations and replied in writing to a number of questions put by the Court.

IV.    Analysis

21.      It is apparent from the documents before the Court that the action brought by Eutelsat, and supported by Viasat, before the referring court is one of a series of actions brought before the European Union judicature (5) and before national courts, in particular in the United Kingdom, Germany, Italy, Spain and Belgium, by which those parties are seeking to prevent Inmarsat from using the 2 GHz frequency band with the aid of complementary ground components.

22.      In the context of the present case, the Court is called upon, in essence, to consider three arguments put forward by Eutelsat aiming to challenge the validity of the authorisation granted by the ARCEP to Inmarsat to operate complementary ground components in France; such consideration requires the interpretation of provisions of EU law. Those three arguments correspond to the three questions submitted by the referring court.

23.      First, Eutelsat submits that, in a system such as the EAN system put in place by Inmarsat, the terminal installed below the aircraft fuselage in order to communicate with the complementary ground components is not a ‘mobile earth station’, and therefore those components are not an integral part of a ‘mobile satellite system’ within the meaning of Article 2(2)(a) of Decision No 626/2008.

24.      Secondly, Eutelsat states that, given their paramount importance, the ground components cannot be regarded as being ‘complementary’ in a system such as the EAN system, with the result that that system is not a ‘mobile satellite system’ within the meaning of the abovementioned provision.

25.      Thirdly, Eutelsat states that the national authorities cannot grant Inmarsat authorisation to operate complementary ground components on their territory because Inmarsat has failed to comply with the commitments relating to territory coverage by the date stipulated in Article 4(1)(c)(ii) of Decision No 626/2008.

26.      In the remainder of my Opinion, I will set out the reasons why each of the arguments raised by Eutelsat should, in my view, be rejected. In other words, I will propose that the Court’s answer to the questions submitted should be that the relevant provisions of EU law do not call into question the validity of the authorisation obtained by Inmarsat to operate complementary ground components in France.

A.      The concepts of a ‘mobile satellite system’ and a ‘mobile earth station’ within the meaning of Article 2(2)(a) of Decision No 626/2008 (first question)

27.      By its first question, the referring court essentially asks whether Article 2(2)(a) of Decision No 626/2008 must be interpreted as meaning that, in a system such as the EAN system at issue in the main proceedings, the complementary ground components communicate with a ‘mobile earth station’ and are, therefore, an integral part of a ‘mobile satellite system’, it being understood that that system consists in two separate reception terminals linked by a communication driver: the first is placed above the aircraft fuselage and communicates with a satellite, and the second is placed below the fuselage and communicates with the complementary ground components.

28.      Eutelsat and Viasat have proposed that that question be answered in the negative; Inmarsat, the French, Belgian and United Kingdom Governments and the Commission take the opposing view.

29.      In order to answer that question, the starting point must be the wording of Article 2(2)(a) of Decision No 626/2008. That provision defines ‘mobile satellite systems’ as ‘electronic communications networks and associated facilities’ capable of providing three types of radiocommunications 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.

30.      The second and third questions submitted concern the third type of radio-communications, namely those between a mobile earth station and complementary ground components.

31.      As a preliminary point, I consider it useful to clarify the meaning of the words ‘mobile’, ‘earth’, ‘space’ and ‘satellite’ used to describe those radiocommunication services.

32.      Like all the parties which submitted observations, I can see no objection to taking as a basis, in that regard, the definitions laid down by the Radio Regulations adopted by the World Radiocommunication Conference of 1995 (‘the Radio Regulations’). (6) There is in fact no contradiction between those regulations and Decision No 626/2008 in relation to those words taken in isolation.

33.      I note, first of all, that several provisions of Decision 2007/98 and of Decision No 626/2008 use the expression ‘space station’ and the word ‘satellite’ almost interchangeably, or at the very least without clarifying the relationship between those two concepts. (7) Although that distinction is not crucial to resolving the dispute in the main proceedings, I would point out that, in this regulatory context, the concept of a ‘space station’ seems to me to require the presence not only of a satellite but also of certain additional technical elements; in other words, that concept is more restrictive than that of a ‘satellite’. (8) In the context of the main proceedings, it is not disputed that the EAN system includes a space station, as required by Article 2(2)(a) of Decision No 626/2008. (9)

34.      Next, an ‘earth’ station is ‘located either on the Earth’s surface or within the major portion of the Earth’s atmosphere’. (10) A station located on an aircraft, as in the EAN system, must be regarded as an earth station.

35.      Lastly, a ‘mobile’ earth station is, inter alia, ‘intended to be used while in motion or during halts at unspecified points’. (11) That concept of a ‘mobile earth station’ forms the subject matter of the first question referred.

36.      Having clarified the foregoing, I am now able to consider the argument put forward by Eutelsat and supported by Viasat, before both the Court and the referring court, which concerns the third category of radiocommunications described in Article 2(2)(a) of Decision No 626/2008, namely that between a mobile earth station and complementary ground components.

37.      In essence, Eutelsat and Viasat seek to demonstrate that the complementary ground components do not communicate with a mobile earth station in a system such as the EAN system at issue in the main proceedings, and therefore that they are not an integral part of a ‘mobile satellite system’ within the meaning of that provision.

38.      I disagree with that line of reasoning.

39.      The syllogism proposed by Eutelsat and Viasat can be summarised as follows. The concept of a ‘mobile earth station’ requires that such a station is capable of communicating with a satellite (major term). (12) The EAN system communicates with the complementary ground components by means of the terminal placed below the aircraft fuselage, which is an independent station incapable of communicating with a satellite (minor term). Accordingly, the complementary ground components operated as part of the EAN system do not communicate with a mobile earth station and, therefore, are not an integral part of a mobile satellite system.

40.      In my view, that argument has two fatal flaws affecting, respectively, the major term and the minor term of that syllogism.

41.      Firstly, and contrary to what Eutelsat and Viasat claim, the concept of a ‘mobile earth station’, within the meaning of Decision No 626/2008, does not require that such a station is capable of communicating with a satellite. I note, in that regard, that that concept has not been expressly defined by the EU legislature.

42.      Those parties infer that requirement from the Radio Regulations. In the context of those regulations, it could indeed be inferred from Articles 1.63 and 1.68 thereof that every mobile earth station communicates either with a space station or with another mobile earth station by means of an object in space. (13)

43.      However, nothing in Decision No 626/2008 (14) or even in Decision 2007/98 suggests that the definitions in the Radio Regulations should be transposed in full in the context of those decisions, as Inmarsat rightly observed.

44.      As regards more specifically the concept of a ‘mobile earth station’, there is to my mind one reason why such transposition should be categorically opposed. As the Commission pointed out, the concept of a ‘mobile satellite system’ defined in Article 2(2)(a) of Decision No 626/2008 does not mirror the concept of a ‘mobile satellite service’ in Article 1.25 of the Radio Regulations. (15)

45.      In order to understand the differences between those two concepts properly, four different categories of communications must be distinguished.

46.      As the table above shows, Article 2(2)(a) of Decision No 626/2008 is both more restrictive (because it does not include communications between space stations) and broader (because it includes communications between a mobile earth station and complementary ground components) than Article 1.25 of the Radio Regulations.

47.      Thus, since the Radio Regulations do not envisage communications between a mobile earth station and complementary ground components, which are specifically at issue in the present case, the definitions laid down by those regulations in that regard cannot be transposed in the context of Article 2(2)(a) of Decision No 626/2008.

48.      If the provisions of Decision No 626/2008 are followed, it is clear that a ‘mobile satellite system’, as referred to in Article 2(2)(a) of that decision, must necessarily have at least one mobile earth station capable of communicating with a space station. This is apparent from the last sentence of that provision, which states that such a system includes ‘at least one space station’, and from the actual name of that system which implies the presence of a ‘satellite’.

49.      However, that requirement does not preclude such a system from also including other mobile earth stations, which are intended to communicate with complementary ground components, without however being capable of communicating with a satellite.

50.      In other words, although a mobile satellite system must unquestionably include a mobile earth station capable of communicating with a satellite, there is no reason to take the view, on the basis of the definitions laid down in Decision No 626/2008, that all mobile earth stations integrated in that system must be capable of communicating with a satellite.

51.      Accordingly, the argument put forward by Eutelsat and Viasat, as summarised in point 39 above, must be rejected on that first basis alone. Contrary to what those parties stated, a station communicating with complementary ground components may be classified as a ‘mobile earth station’ within the meaning of Article 2(2)(a) even if it is incapable of communicating with a satellite.

52.      Secondly, even assuming that the Court were to find that every ‘mobile earth station’ must necessarily be capable of communicating with a satellite, the argument put forward by Eutelsat and Viasat is also flawed in that it is based on an artificial separation between the technical components of the EAN system.

53.      According to that argument, there is, on the one hand, the reception terminal located above the aircraft fuselage, which communicates with the satellites, and, on the other, the reception terminal located below the fuselage, which communicates with the complementary ground components. Since the latter terminal is incapable of communicating with a satellite, it cannot be a mobile earth station and therefore does not satisfy the definition laid down in Article 2(2)(a) of Decision No 626/2008, as interpreted – incorrectly in my view – as requiring such capability.

54.      That separation appears to me to be at odds with the technical reality of the EAN system. Like the position adopted, in essence, by Inmarsat, the French, Belgian and United Kingdom Governments and the Commission, it seems artificial to me, from a functional standpoint, to divide a system like the EAN system at issue in the main proceedings into two separate and independent stations. It is not in dispute between the parties that the two reception terminals of the EAN system are interlinked by a communication driver which determines, depending on the circumstances, the terminal (satellite or earth) used to route the incoming or outgoing signal.

55.      In that context, the mere fact that those two terminals are physically separated, having been placed above and below the fuselage respectively, cannot mean, on its own, that they are two separate ‘stations’. On the contrary, it appears to me that the centralised management of their respective signals means that those terminals form part of one single ‘station’, as has been rightly observed inter alia by the French Government and the Commission.

56.      That interpretation finds support in Article 1.61 of the Radio Regulations, according to which a ‘station’ is ‘one or more transmitters or receivers or a combination of transmitters and receivers, including the accessory equipment, necessary at one location for carrying on a radiocommunication service, or the radio astronomy service’.

57.      The fact that such ‘transmitters’ were not physically placed in the same enclosure cannot be the decisive factor in that regard, as this would otherwise mean becoming embroiled in a formalistic legal approach out of step with the technical reality that requires that the antennae of those terminals are positioned respectively pointing upwards (to allow communication with satellites) and downwards (to allow communication with complementary ground components), as Inmarsat explained.

58.      In that connection, the French Government added that there also have to be two reception terminals, from a technical perspective, because different computer languages are used for communication with the satellites (‘DVB-S’ language) and with the complementary ground components (‘LTE’ language). (16)

59.      The United Kingdom Government illustrated that point using a ‘common sense’ example. It explained that a mobile telephone contains various components capable of connecting to a 3G network, a 4G network or a Wi-Fi network or even of establishing a Bluetooth connection. However, all those components are part of one single station, namely the mobile telephone. In my view, that simple example constitutes sufficient grounds for rejecting Eutelsat’s and Viasat’s argument.

60.      Thus, contrary to the claim made by those parties, a unit consisting of two separate reception terminals, linked by a communication driver, the first of which is placed above an aircraft’s fuselage and communicates with a satellite and the second of which is placed below the fuselage and communicates with complementary ground components, must be classified as a ‘mobile earth station’.

61.      In the light of the foregoing, I propose that the Court answer the first question as follows: Article 2(2)(a) of Decision No 626/2008 must interpreted as meaning that, in a system such as the EAN system at issue in the main proceedings, the complementary ground components communicate with a ‘mobile earth station’ and are, therefore, an integral part of a ‘mobile satellite system’, it being understood that that system has two separate reception terminals linked by a communication driver, the first of which is placed above an aircraft’s fuselage and communicates with a satellite and the second of which is placed below the fuselage and communicates with the complementary ground components.

B.      The concept of ‘“complementary” ground components’ within the meaning of Article 2(2) of Decision No 626/2008 (second question)

62.      By its second question, the referring court essentially asks whether Article 2(2) of Decision No 626/2008 must be interpreted as meaning that the ground components used in a system like the EAN system at issue in the main proceedings may be classified as ‘complementary’, notwithstanding the fact that those components play a decisive role in the functioning of that system, cover the entire territory of the European Union and allow the quality of the communication services offered to be enhanced.

63.      I would point out that if that question were answered in the negative, the EAN system put in place by Inmarsat could not be classified as a ‘mobile satellite system’ within the meaning of the abovementioned provision, since classification as such is conditional on the presence of ‘complementary’ ground components.

64.      Before answering the question submitted, I consider it useful to provide certain facts about the nature and role of the complementary ground components in the functioning of the EAN system put in place by Inmarsat.

65.      First of all, it is clear from Inmarsat’s observations, which have not been disputed by the other parties, that the complementary ground components are comparable to the stations used as part of the 4G mobile telephony network, ‘with the difference that they point vertically to the sky rather than horizontally over the ground’. (17) It is understood that that vertical orientation can be explained by the need to send the signals concerned to aircraft in flight, on which the reception terminals of the EAN system are located.

66.      Next, Inmarsat has itself acknowledged that connection to the complementary ground components offers several technical advantages as compared with connection to a satellite. First, the connection to the ground components is of better quality because of the significantly reduced distance covered by the signal (36 000 km in the case of a satellite, less than 100 km for a ground component). Secondly, unlike a satellite connection, a ground connection can be improved easily, in the event of congestion, by adding ground-based components. (18)

67.      Lastly, the parties are in agreement that, on account of their technical superiority, (19) the complementary ground components play a decisive role in the functioning of the EAN system. Thus, according to the excellent opinion delivered by the rapporteur public (Public Rapporteur) in the case in the main proceedings, ‘it is not contested that this mobile satellite system is essentially based, in fact, not on satellite communications but on communications with the complementary ground components, which allow for much faster speeds and which the UK courts and the German regulator have found to ensure 99% of the service, with the satellite intended for use only in areas not covered by those complementary ground components (that is, over the seas)’. (20)

68.      It is specifically because of that decisive role played by the ground components in the functioning of the EAN system that Eutelsat and Viasat claim that those components cannot be classified as ‘complementary’ and, therefore, that such a system cannot be classified as a ‘mobile satellite system’ within the meaning of Article 2(2) of Decision No 626/2008. In essence, those parties contend that the EAN system is not a satellite communications system complemented by ground components but in fact a ground communications system complemented by a satellite component.

69.      I do not agree with that line of reasoning. In other words, like the stance adopted by Inmarsat, the French, Belgian and United Kingdom Governments and the Commission, I am of the view that such ground components may be classified as ‘complementary’, notwithstanding their decisive role in the functioning of the EAN system.

70.      In my view, two requirements may be inferred from Decision No 626/2008 as regards the satellite component of a ‘mobile satellite system’.

71.      First, such a system must include a satellite. In addition to its very name (‘mobile satellite system’), that requirement follows from the last sentence of Article 2(2)(a) of Decision No 626/2008 (‘Such a system shall include at least one space station’) (21) or even from the Annex to that decision which states that the manufacturing and the launch of a satellite are crucial milestones in the process of selecting operators.

72.      Secondly, the satellite must not only be present but also used, as the United Kingdom Government observed. That requirement stems, implicitly, from Article 8(3)(c) of Decision No 626/2008, according to which ‘independent operation of complementary ground components in case of failure of the satellite component of the associated mobile satellite system shall not exceed 18 months’. (22) In other words, the ground components and the satellite component operate jointly in principle.

73.      In the context of the dispute in the main proceedings, it is clear from the documents produced before the Court that the satellite component is indeed used when the aircraft equipped with the EAN system is flying over the sea or the territory of Serbia, or even where a fault prevents the ground components from operating properly. Inmarsat explained that, given the reliability and stability of the satellite signal, the satellite component ensures the continuity of the communication services. Verification that the satellite component is actually used is, of course, a matter for the national court, the sole body empowered to determine the facts in the context of the preliminary ruling procedure.

74.      That being said, it is impossible in my view to infer from that decision an additional requirement vis-à-vis the significance of the roles played, respectively, by the satellite and ground components of such a system.

75.      First of all, the adjective ‘complementary’ does not appear to me to preclude the ground components from playing a decisive role as compared with that of the satellite component, contrary to the claims made by Eutelsat and Viasat.

76.      According to the dictionary compiled by the Académie française (French Academy), ‘complémentaire’ means ‘qui sert à completer’, that is to say ‘rendre complet’, (23) as the French Government pointed out. In English, the Oxford dictionary defines the word ‘complementary’ as follows: ‘combining in such a way as to form a complete whole or enhance each other’. The German language version uses the word ‘ergänzende’, which has a similar meaning. (24)

77.      It is clear from those definitions that the word ‘complementary’ is silent on the relative importance of the components in question. Accordingly, that term does not preclude ground components from having a decisive role, as compared with the satellite component, in a mobile satellite system. Those components can ‘complete’ such a system by playing a decisive role in it.

78.      In its observations, the Commission explained that the word ‘complementary’ points to the optional nature of the ground components, as compared with the mandatory presence of the satellite component.

79.      The silence of Decision No 626/2008 as to the relative importance of the ground and satellite components is also telling in my view. The EU legislature could, in fact, have clarified that the role of the ground components was to remain ‘secondary’, ‘incidental’ or even ‘subsidiary’ as compared to that of the satellite component, as the Belgian and French Governments observed, or could even have defined a maximum percentage of communications that may be ensured by the ground components.

80.      However, that decision contains no such clarifications. According to the definition of them provided in Article 2(2)(b) thereof, the complementary ground components are used at fixed locations in order to improve the availability of the mobile satellite service in geographical areas where satellite communications cannot be ensured with the required quality.

81.      To my mind, that definition does not prohibit, to the degree of clarity required, the ground components from playing a decisive role in the system in question.

82.      I freely admit that some of the language used (in particular, the words ‘at fixed points’) could be interpreted as requiring that the satellite component has a decisive role, if that language were accompanied by clear provisions to that effect. As a result, the EU legislature has left some doubt over the precise scope of the concept of ‘complementary ground components’.

83.      However, the requirements of legal certainty prohibit debate on the scope of that concept being settled in a manner unfavourable to the interests of the operators selected in implementation of Decision No 626/2008, as Inmarsat has argued. In other words, I am of the view that, in such circumstances, the doubt must operate to the benefit of the operators selected by the Commission more than 10 years ago who have made economic choices and approved major investments on the basis of a reading of that decision that is compatible with its wording.

84.      The only limit in that regard consists, specifically, in establishing that the communications system put in place by those operators is indeed compatible with the wording used in Decision No 626/2008.

85.      I have already explained in points 75 to 78 above why it is my view that the word ‘complementary’ does not preclude the ground components from playing a decisive role.

86.      I would now point out that the definition laid down in Article 2(2)(b) of Decision No 626/2008 does not specify a maximum number of ‘fixed points’ in which the ground components may be used, as the Commission observed. It is, therefore, possible for a selected operator to install such components across the entire territory of the European Union.

87.      Furthermore, in the light of the facts summarised in points 64 to 67 above, it appears to me difficult to deny that the ground components increase both the ‘availability’ and the ‘quality’ of the communication services provided within the meaning of the abovementioned provision.

88.      In particular, I see no valid reason to ‘cap’, in arbitrary fashion, the quality of the communications services at the maximum quality that can be offered by the satellite component, as Eutelsat, Viasat and the Commission have suggested. This would run counter to the interests of consumers.

89.      I do not agree with the argument put forward by the Commission that it is essential to ‘ensure that the legal requirements are not circumvented, that is to say that the satellite does not play a marginal role’. First, it is clear from points 77 to 87 above that a ‘legal requirement’ relating to the respective role of the satellite and ground components cannot be inferred from Decision No 626/2008. Secondly, the principle of legal certainty precludes that decision from being ‘supplemented’ by adding a cap on the quality of the services provided, whereas provision has not been made for such a limit by the EU legislature.

90.      As Inmarsat and the French, Belgian and United Kingdom Governments have argued, the criterion of quality is defined broadly in Article 2(2)(b) of Decision No 626/2008, with the result that each operator is free to determine the quality of the services that it wishes to offer. Any other interpretation would result in EU rules establishing an artificial framework governing communication services that is out of step with the technological and commercial reality of those services.

91.      Conversely, the freedom offered to the selected operators to operate ground components, in so far as they offer higher performance than the satellite component, enables the most effective use possible to be made of the 2 GHz frequency, a factor that is all the more important in a context in which the frequency bands available represent rare resources. (25) That interpretation is consistent with the promotion of competition and of innovation as well as with the interests of consumers, which are objectives pursued by Decision No 626/2008, (26) as Inmarsat and the French and United Kingdom Governments rightly observed.

92.      For the sake of completeness, I further note that recital 18 of Decision No 626/2008, which by its nature is non-binding, is also not worded in such a way that it could call into question the interpretation that I have proposed. (27)

93.      In the light of the foregoing, I propose that the Court answer the second question as follows: Article (2)(2) of Decision No 626/2008 must be interpreted as meaning that the ground components used in a system like the EAN system at issue in the main proceedings may be classified as ‘complementary’, notwithstanding the fact that those components play a decisive role in the functioning of that system, cover the entire territory of the European Union and allow the quality of the communication services offered to be increased.

C.      The consequences of non-compliance with the commitments relating to territory coverage by the date stipulated in Article 4(1)(c)(ii) of Decision No 626/2008 (third question)

94.      With regard to the third question submitted by the referring court, I note that the Court, in the judgment in Viasat UK and Viasat, (28) has already had occasion to answer in the negative a similar question worded almost identically.

95.      In that regard, I therefore need simply refer to the answer given by the Court in that case.

V.      Conclusion

96.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:

(1)      Article 2(2)(a) 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) must be interpreted as meaning that, in a system such as the ‘European Aviation Network’ system at issue in the main proceedings, the complementary ground components communicate with a ‘mobile earth station’ and are, therefore, an integral part of a ‘mobile satellite system’, it being understood that that system has two separate reception terminals, linked by a communication driver, the first of which is placed above an aircraft’s fuselage and communicates with a satellite and the second of which is placed below the fuselage and communicates with the complementary ground components.

(2)      Article (2)(2) of Decision No 626/2008 must be interpreted as meaning that the ground components used in a system like the ‘European Aviation Network’ system at issue in the main proceedings may be classified as ‘complementary’, notwithstanding the fact that those components play a decisive role in the functioning of that system, cover the entire territory of the European Union and allow the quality of the communication services offered to be increased.

(3)      Article 8(1) of Decision No 626/2008, read in conjunction with Article 7(1) thereof, must be interpreted as meaning that, where it is established that an operator selected in accordance with Title II of that decision and authorised to use the radio spectrum pursuant to Article 7 thereof has failed to provide mobile satellite services by means of a mobile satellite system by the deadline set in Article 4(1)(c)(ii) of Decision No 626/2008, the competent authorities of the Member States are not entitled to refuse to grant the authorisations necessary for the provision of complementary ground components of mobile satellite systems to that operator on the ground that that operator has failed to honour the commitment given in its application.

1      Original language: French.

2      Commission Decision of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65).

3      Commission Decision 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 (OJ 2007 L 43, p. 32).

4      Decision of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15).

5      Viasat brought an action for failure to act against the Commission on 24 April 2017. See Case T-245/17, Viasat v Commission, which is currently pending before the General Court.

6      The Radio Regulations were adopted by the World Radiocommunication Conference of 1995 (WRC-95) and reviewed by the subsequent World Radiocommunication Conferences: WRC-97 (Geneva, 1997), WRC-2000 (Istanbul, 2000), WRC-03 (Geneva, 2003), WRC-07 (Geneva, 2007), WRC-12 (Geneva, 2012), WRC-15 (Geneva, 2015) and WRC-19 (Sharm el-Sheikh, 2019). They are available at https://www.itu.int/pub/R-REG-RR-2020

7      See, for example, Article 2 of Decision 2007/98 and Article 2(2)(a) of Decision No 626/2008, which define the concept of ‘systems providing mobile satellite services’ by requiring the presence of a space station.

8      I base that interpretation, inter alia, on the successive milestones described in the Annex to Decision No 626/2008, from which it is clear that a space station requires not only that satellites are manufactured and launched but also that a communication module and a service module are mated. The interpretation is, in my view, borne out by the definition of a ‘space station’ laid down in Article 1.64 of the Radio Regulations, under which such a station is ‘located on an object which is beyond, intended to go beyond, or has been beyond, the major portion of the Earth’s atmosphere’. An artificial satellite, that is to say, a man-made satellite, may indeed be such an ‘object’, which is intended to accommodate a ‘space station’.

9      See point 16 above.

10      See Article 1.63 of the Radio Regulations. That concept is defined in contrast to that of a ‘space station’.

11      See Article 1.68 of the Radio Regulations.

12      In Eutelsat’s words, ‘a mobile earth station must necessarily communicate with a satellite in order to be regarded as such’.

13      According to Article 1.68 of the Radio Regulations, a ‘mobile earth station’ is an ‘earth station in the mobile satellite service intended to be used while in motion or during halts at unspecified points’. Article 1.63 of those regulations defines the concept of an ‘earth station’ as a ‘station located either on the Earth’s surface or within the major portion of the Earth’s atmosphere and intended for communication with one or more space stations, or with one or more stations of the same kind by means of one or more reflecting satellites or other objects in space’ (emphasis added).

14      In accordance with recital 10 of that decision, ‘Regulations of the International Telecommunications Union (ITU) provide for procedures for satellite radio frequency coordination as a tool for management of harmful interference, but do not extend to selection or authorisation’.

15      Under Article 1.25 of the Radio Regulations, a ‘mobile satellite service’ is a ‘radiocommunication service between mobile earth stations and one or more space stations, or between space stations used by this service, or between mobile earth stations by means of one or more space stations’.

16      The use of these two computer languages was also noted by Eutelsat and Viasat.

17      Rapport by Mr Sharkey produced by Inmarsat, No 17.4: ‘The CGC [Complementary Ground Components] network consists of approximately 300 ground-based stations at fixed locations on the ground, similar to 4G base stations, with the difference that they point vertically to the sky rather than horizontally over the ground’.

18      Rapport by Mr Sharkey produced by Inmarsat, No 23: ‘In general, while the satellite provides efficient and continuous coverage performance and resilience, terrestrial systems inherently provide very efficient throughput performance, since: (a) there is only one satellite, in space located 36 000 km from the earth with a given power, forming a limited number of beams that may have a diameter of several hundreds of kilometres; and (b) CGC [Complementary Ground Components] terrestrial systems consisting of a large number of towers, with higher power, can be installed within relatively short distances of each other and within a limited distance of the users i.e. < 100 km, and can be supplemented by additional towers when congestion occurs’.

19      Inmarsat has explained, in that regard, that the complementary ground components offer a capacity that no satellite, no matter how powerful, could provide using the limited quantity of frequency resources granted to it by Decision 2009/449 (two times 15 MHz).

20      Conseil d’État (Council of State), Case No 420128 Eutelsat, Opinion of Mr Guillaume Odinet, rapporteur public (Public Rapporteur), 28 June 2019, paragraph 2, available at http://www.conseil-etat.fr/fr/arianeweb/CRP/conclusion/2019-06-28/420128

21      For the relationship between the concepts of a ‘satellite’ and a ‘space station’, see point 33 above.

22      Emphasis added.

23      ‘Which is used to complete’, that is to say ‘to make whole’.

24      The Duden dictionary defines the verb ‘ergänzen’ as follows: ‘durch Schließen entstandener Lücken wieder vollständig machen; durch Hinzufügen von etwas vervollständigen, bereichern’ (‘to make whole by filling any gaps that have appeared; to complete, to enrich by adding something’).

25      I note that the supply of available radio spectrum is finite, which explains the need to regulate their use. See recital 8 of Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision): ‘Radio spectrum policy cannot be based only on technical parameters but also needs to take into account economic, political, cultural, health and social considerations. Moreover, the ever-increasing demand for the finite supply of available radio spectrum will lead to conflicting pressures to accommodate the various groups of radio spectrum users in sectors such as telecommunications, broadcasting, transport, law enforcement, military and the scientific community. Therefore, radio spectrum policy should take into account all sectors and balance the respective needs’.

26      See, inter alia, recitals 1 and 5 and Article 6(1)(a) of Decision No 626/2008.

27      More specifically, the language used in that recital does not preclude any interpretation. This is clear, inter alia, from the words ‘[such components] are used, typically, to enhance the services offered via the satellite’ on account of the presence of the word ‘typically’ (emphasis added).

28      Judgment of 5 March 2020 (C-100/19, EU:C:2020:174).

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