ORDER OF THE GENERAL COURT (First Chamber)
21 May 2010 (*)
(Actions for annulment – Decision No 626/2008/EC – Common framework for the selection and authorisation of operators of systems providing mobile satellite services – Absence of direct concern – Inadmissibility)
In Case T‑441/08,
ICO Services Ltd, established in Slough, Berkshire (United Kingdom), represented by S. Tupper, Solicitor,
applicant,
v
European Parliament, represented by J. Rodrigues and R. Kaškina, acting as Agents,
and
Council of the European Union, represented by G. Kimberley and F. Florindo Gijón, acting as Agents,
defendants,
supported by
European Commission, represented by M. Wilderspin and A. Nijenhuis, acting as Agents,
intervener,
APPLICATION for annulment 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) (OJ 2008 L 172, p. 15),
THE GENERAL COURT (First Chamber),
composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska-Białecka and I. Labucka, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 The applicant, ICO Services Ltd, is a wholly-owned subsidiary of ICO North America Inc., which is itself a majority-owned subsidiary of ICO Global Communications (Holdings) Limited. Each of the latter companies has its headquarters in Reston, Virginia (United States of America).
2 ICO Global Communications is a next-generation satellite communications company. It operates a hybrid satellite communications system, combining both satellite and terrestrial communications capabilities, in order to offer wireless voice and video data or interactive multimedia services throughout the world on mobile and portable devices (the ‘ICO-P’ system).
3 The ICO-P system, which requires the use of part of the 2 GHz frequency band, was given an exemption from the requirement to obtain a licence in the United Kingdom. That exemption entered into force on 19 April 1999.
4 On 11 June 2001, ICO Global Communications obtained a licence from the Governor of the Cayman Islands to launch a satellite. On 12 June 2001, the applicant obtained a licence from the competent United Kingdom authorities to operate that satellite.
5 On 11 December 2007, the ICO-P system was entered in the Master International Frequency Register of the International Telecommunication Union (ITU).
6 On the view that systems providing mobile satellite services (MSS) may constitute an innovative platform for various types of pan-European telecommunications and broadcasting services – such as high-speed internet access, mobile multimedia and public protection and disaster relief – the European Parliament and the Council of the European Union adopted, on 30 June 2008, Decision No 626/2008/EC on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15) (‘the contested decision’).
7 As is apparent from Article 1(1) of the contested decision, its purpose is to facilitate the development of a competitive internal market for MSS across the European Community and to ensure gradual coverage in all Member States. To that end, the contested decision creates a Community procedure for the common selection of operators of mobile satellite systems which use the 2 GHz frequency band. The contested decision also makes provision for the coordinated authorisation by Member States of the selected operators to use the assigned radio spectrum within that band for the operation of mobile satellite systems.
8 Under Article 1(2) and (3) of the contested decision, mobile satellite system operators are to be selected by the European Commission by means of a Community procedure (Articles 3 to 6 of the contested decision), while authorisation for the selected operators to use the radio spectrum and the necessary ground components is to be granted by the Member States (Articles 7 to 9 of the contested decision).
9 By application lodged at the Court Registry on 26 September 2008, the applicant brought an action under the fourth paragraph of Article 230 EC for annulment of the contested decision.
10 By separate documents lodged at the Court Registry on 16 and 20 January 2009, the Parliament and the Council respectively raised pleas of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court.
11 By a document lodged at the Court Registry on 4 February 2009, the Commission applied for leave to intervene in support of the forms of order sought by the Parliament and the Council. The parties indicated that they had no objection to that application for leave to intervene.
12 By letter of 5 March 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain parts of the application and for certain annexes to the application.
13 On 17 March 2009, the applicant lodged at the Court Registry observations on the pleas of inadmissibility raised by the Parliament and the Council.
14 By letter of 25 March 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain of its observations on the pleas of inadmissibility raised by the Parliament and the Council.
15 By order of the President of the First Chamber of the Court of 2 April 2009, the Commission was granted leave to intervene in support of the Parliament and the Council. The decision as to whether the request for confidential treatment was well founded was reserved. Non-confidential versions of the various procedural documents, prepared by the applicant, were sent to the Commission.
16 By letter of 30 April 2009, the Commission challenged in their entirety the requests for confidential treatment made by the applicant on 5 and 25 March 2009.
17 On 28 May 2009, the Commission lodged a statement in intervention with the Court Registry.
18 On 24 July 2009, the applicant lodged observations on the Commission’s statement in intervention with the Court Registry.
19 By letter of 3 August 2009, the applicant requested confidential treatment, vis-à-vis the Commission, for certain of its observations on the Commission’s statement in intervention. A non-confidential version of the applicant’s observations on the Commission’s statement in intervention, prepared by the applicant, was sent to the Commission.
20 By letter of 31 August 2009, the Commission stated that it had no objection to the request for confidential treatment lodged by the applicant on 3 August 2009.
21 By order of 2 September 2009, the President of the First Chamber of the Court rejected in their entirety the requests for confidential treatment lodged by the applicant on 5 and 25 March 2009. The Court set a time-limit for the Commission to complete, if need be, its statement in intervention. The Commission did not submit any additional observations.
22 Since one member of the Chamber was prevented from sitting, the President of the Court, by decision of 29 September 2009, designated another judge to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure.
23 By letter of 10 December 2009, the applicant applied to be replaced in the present proceedings by ICO Satellite Ltd, a company established in the United Kingdom.
Forms of order sought
24 The applicant claims that the Court should:
– reject the pleas of inadmissibility, order that the proceedings continue and, forthwith, order the Parliament and the Council to pay the costs relating to those pleas;
– annul the contested decision;
– order the Parliament and the Council to pay the costs.
25 The Parliament and the Council, supported by the Commission, contend that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
Law
The request for substitution of the applicant
26 In support of its request (paragraph 23 above), the applicant states, essentially, that it is the sister company of ICO Satellite, which is the applicant in Case T‑350/09, and that the substitution requested is justified for the sake of good order.
27 Suffice it to note in that regard that the applicant adduces no evidence to justify the substitution requested. In particular, nothing allows the conclusion to be drawn that ICO Satellite is the transferee of all of the applicant’s business (see, to that effect, Case 92/82 Gutmann v Commission [1983] ECR 3127, paragraph 2; Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraphs 13 to 18 ; see also, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 46). The mere fact that the applicant is a sister company of ICO Satellite cannot alter that conclusion.
28 Under those circumstances, the applicant’s request for substitution must be rejected.
Admissibility of the action
29 Under Article 114(1) of the Rules of Procedure, on the application of a party, the Court can rule on admissibility without going to the substance of the case. In accordance with Article 114(3), the remainder of the proceedings are to be oral, unless the Court decides otherwise. In the present case, the Court takes the view that it has sufficient information from the documents on the file to rule on the application submitted by the Parliament and the Council without opening the oral procedure.
Arguments of the parties
– Arguments of the defendants and the intervener
30 The Council, first of all, sets out the context of the present dispute. In particular, the Council states that the ITU is a specialised agency of the United Nations for information and communication technologies which is open only to States and which deals with the relationships and procedures to be followed between ITU Member States in regard to the allocation and assignment of radio frequencies and satellite orbits. Operators such as the applicant, the Council submits, cannot derive rights from the ITU. Only the ITU Member States (the European Union is not a member) enjoy such rights. If the applicant actually was deprived of vested rights, it should have complained to the Member State concerned, in this case the United Kingdom. However, in so far as the United Kingdom has not authorised any other MSS operator to provide the services which the applicant claims to offer in the United Kingdom, it would be difficult to bring legal proceedings. The contested decision simply introduced a system which coordinates a pan-European selection of operators. Operators may apply to provide services on a pan-European basis, contrary to the earlier practice, which related to the territory of a single country. That does not mean that such an authorisation excludes other operators which have received an authorisation for a specific territory. Following the adoption of the contested decision, as before, each country must coordinate, as necessary, with the holder of the primary/priority filing.
31 In that context, first, the Council, supported by the Commission, expresses the view that the contested decision is not of direct concern to the applicant.
32 First of all, the contested decision does not directly affect the applicant’s legal situation.
33 Further, in the absence of implementation of the contested decision, the applicant has not been affected economically. The probability of economic loss has also not been established.
34 In addition, the implementation of the contested decision leaves a discretion both to the Commission and, subsequently, to the national authorities. More particularly, with regard to the Member States, the Council accepts that national authorisations must be issued in accordance with the Commission decision selecting pan-European operators. However, under Article 7(1) of the contested decision, it is up to the Member States to authorise pan-European operators in accordance with their national laws and procedures. It is not excluded in that context that the Member States may take appropriate action to prevent any prejudice to existing operators.
35 Furthermore the applicant’s claims rest on facts and circumstances which have not yet occurred and the occurrence of which is far from certain. The 2 GHz frequency band to be assigned comprises a spectrum ranging from 1 980 to 2 010 MHz and each operator must identify a specific amount of radio spectrum, which must not exceed 15 MHz. It is therefore possible that the 2 GHz frequency band will not be used in its entirety. Consequently, it is not certain that the applicant’s specific frequency will be assigned to another operator.
36 In addition, with regard to the contention that the contested decision might deprive the applicant of its property rights by impacting adversely on its legitimate expectations, the Council submits that the applicant has no such rights and that there is only an alleged contractual relationship between the applicant and the United Kingdom. The Council refers, in that regard, to its preliminary observations concerning the context of the present dispute. The Council adds that the contested decision does not necessarily alter the priority granted to the applicant. If the applicant has priority rights, that simply implies an obligation on the part of other operators not to cause harmful interference with the applicant’s system and an obligation to coordinate in order to avoid possible interference. Also, even if there is harmful interference after a selection of pan-European operators which does not include the applicant, the latter’s complaint should be addressed to the competent judicial body. The Council takes the view that the applicant’s claims are based on a series of hypotheses which make it impossible for it to be directly concerned. In addition, the contested decision contains a number of guarantees in regard to the continuation of the applicant’s activity. The applicant should therefore bring an action only when a decision which affects it directly and individually has actually been taken in its regard.
37 The Commission points out that the national authority which represents the United Kingdom in the ITU (‘Ofcom’) published a statement on 27 February 2009 that it was going to ask the ITU to cancel the assignments of the system operated by the applicant. That request was based on the fact that the applicant’s ICO-P system had not been fully brought into use. The Commission also states that, in a public statement on 19 March 2009, Ofcom considered it appropriate to refrain from writing to the ITU before the expiry of the period granted to the applicant for bringing legal proceedings. The Commission adds that it is unclear what entitlements the applicant is claiming to enjoy in the United Kingdom. The most that it can claim, the Commission submits, is a dispensation from the requirement to obtain a licence for the operation of its equipment. The effect of that dispensation is not to permit the applicant to provide services in the United Kingdom.
38 Secondly, the Parliament and the Council, supported by the Commission, express the view that the applicant is not individually concerned by the contested decision.
39 First of all, with regard to the applicant’s contention that it is the only fully licensed MSS operator anywhere in the world, the applicant has made reference to, and provided as an example, only a licence agreement in the United Kingdom. The applicant would therefore still have to be authorised to offer services in any other country irrespective of the contested decision. In any event, it is possible that an undetermined number of other operators are currently in the course of undergoing licensing procedures. Therefore, the applicant’s position is in no way special vis-à-vis those other operators. In addition, even if it had been possible, during the process of adoption of the contested decision, to determine the approximate number, or even the identity, of persons to whom the decision would apply, that would not have the effect of individualising the applicant within the meaning of the case-law.
40 Secondly, the applicant has no pre-existing rights which the institutions were under an obligation to consider. In addition, the contested decision contains sufficient guarantees and allows ample discretion to the Member States for its implementation. Article 95 EC, which is the legal basis for the contested decision, also imposes no obligation on the Council or the Parliament to take account of the applicant’s situation.
41 Moreover, the applicant was not granted or promised any rights at European Union level by an institution. The applicant cannot therefore claim to have had any legitimate expectation that the Council would act in a particular way.
42 The economic damage suffered by the applicant, even if proved, does not, in the light of the relevant case-law on the matter, differentiate the applicant (order in Case T‑391/02 Bundesverband der Nahrungsmittel-und Speiseresteverwertung and Kloh v Parliament and Council [2004] ECR II‑1447).
43 The defendants and the intervener conclude, essentially, that the applicant is affected by the contested decision only in an objective manner as an operator which provides, or could provide, MSS. It is therefore not individually concerned by the contested decision.
– The applicant’s arguments
44 The applicant challenges the pleas of inadmissibility raised by the Parliament and the Council.
45 First of all, the applicant takes the view that the contested decision is of direct concern to it. That decision sets up a procedure for the grant of rights to be an MSS operator using the 2 GHz spectrum within the European Union. Given that the applicant is already licensed to provide MSS in the 2 GHz spectrum in the European Union (specifically, within the United Kingdom) and is the only operator in that situation, the contested decision directly affects the applicant’s legal position before any selection and authorisation procedure has even commenced. In addition, Member States are under a strict obligation to authorise the operators selected to use the 2 GHz frequency band. Furthermore, referring to Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraph 52, the applicant considers that the contested decision makes the exercise of its pre-existing rights impossible. In any event, the applicant submits that the determination of whether or not it has vested rights goes to the substance of the case and account must be taken of all the relevant evidence. The applicant therefore takes the view that, pursuant to Article 114(1) of the Court’s Rules of Procedure, that question should not be determined at the present stage of the proceedings.
46 The applicant goes on to argue that the contested decision is of individual concern to it. First, the applicant states that it is currently the only MSS operator in the world to hold a licence of the kind mentioned in Article 2(2)(a) of the contested decision. Secondly, it has pre-existing rights or legitimate expectations in regard to the 2 GHz frequency bands which have been attributed to it in accordance with national rules and procedures. Thirdly, it currently makes commercial use of the segments of the 2 GHz frequency band attributed to it. In particular, the applicant states that it has a satellite which is currently providing commercial services. It is the only operator in that position. Fourthly, it has invested large sums and devoted several years of effort to the development of the equipment and expertise necessary to operate its MSS within the 2 GHz frequencies allocated to it. The applicant adds that, in the light of its registration in the ITU’s Master International Frequency Register, it can, by reason of the rights granted to it, prevent other operators from interfering unlawfully. It is in a unique position in that regard. Furthermore, the applicant states that the institutions were under a specific obligation to have regard to its position by virtue of its existing ITU rights, the general principles of law, the principles of law derived from the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and certain rules of international law, these being principles and rules which have been set out in the application. Finally, with regard to the order in Bundesverband der Nahrungsmittel-und Speiseresteverwertung and Kloh v Parliament and Council, cited in paragraph 42 above, the facts which led to that order being made are, it submits, different from those in the present case. In particular, the applicant is the only entity affected by the contested decision.
47 The applicant also challenges the presentation of the legal and factual context of the present case made by the defendants and the intervener.
48 First of all, with regard to the fact that the contested decision merely introduced a system which coordinates a pan-European selection of operators, the applicant submits that the Commission has no discretion as to whether or not to organise a comparative selection procedure for the 2 GHz frequency band or as to the selection criteria which it must use for such a procedure. The applicant also states that that selection procedure has been opened. Moreover, according to Article 7(1) of the contested decision, following selection of operators by the Commission, the Member States are under an obligation to authorise those operators which have been selected. The Member States are not afforded any discretion in this respect. The applicant also states that, since the action was brought, the Commission has adopted, on 13 May 2009, Decision 2009/449/EC on the selection of operators of pan-European systems providing MSS (OJ 2009 L 149, p. 65). The applicant is not one of the operators selected. In that context, the applicant does not see what action the Member States could take to avoid any prejudice to existing operators other than to refuse authorisation of the operators selected, in violation of the contested decision. The effect on the applicant’s pre-existing legal rights is immediate and flows directly and automatically from the contested decision (order in Case T‑223/01 Japan Tobacco and JT International v Parliament and Council [2002] ECR II‑3259). The fact that the contested decision was followed by a call for applications does not alter this conclusion. In that regard, the applicant claims that it cannot be objected that its challenge is premature inasmuch as it could be faced, subsequently, with a plea in defence that its action against the contested decision was too late. The applicant adds that the contested decision directly affects it in at least two ways. First, the contested decision leads to a moratorium on any further authorisation of operators by the Member States, which prevents the applicant from exercising its rights flowing from its registration in the ITU Master International Frequency Register. The applicant is thus unable to obtain any relevant new licences in the 26 Member States other than the United Kingdom. Secondly, the applicant is being forced to allocate resources in order to participate in the call for applications, which, should it be selected, will merely result in its being granted rights which it already possessed before the contested decision entered into force.
49 Secondly, while it accepts that the framework of the ITU is indeed inter-governmental, the applicant submits that the national administrative authorities submit relevant requests, such as requests for coordination, to the ITU on behalf of the satellite operators. In fact, frequency coordination negotiations with the ITU Member States are conducted by the relevant satellite operator on behalf of the relevant national administrative authority. Moreover, the role of the operators is recognised by milestones 1 and 8 in the annex to the contested decision. Furthermore, the ITU’s Master International Frequency Register makes explicit reference to the applicant.
50 Thirdly, the applicant points out that its registration in the ITU’s Master International Frequency Register means that, should another MSS operator wish to use the 2 GHz frequency band in which the applicant operates, that other operator will first be required to coordinate its activity with the applicant. The rights thus registered belong to the operator concerned. The Commission itself recognised the existence of those rights in regard to the applicant. It was therefore well aware of the priority accorded to the applicant pursuant to ITU rules prior to the entry into force of the contested decision. In addition, the second phase of milestone 8 implies that the operators selected are not required to coordinate with operators which have not been selected. That approach, it submits, is not consistent with ITU rules.
51 Fourthly, the applicant points out that the number of MSS operators which may operate simultaneously in the 2 GHz frequency band without causing harmful interference with each other’s systems is severely limited, as is recognised in recital 19 in the preamble to the contested decision. In the applicant’s view, the number of operators is in fact limited to two. It is for that reason misleading to contend, as the Council does, that the Member States retain a right, pursuant to Article 7(3) of the contested decision, to authorise operators in the 2 GHz frequency band, in addition to the operators to be selected by the Commission. In fact, the number of operators is limited by technical constraints. The operators selected by the Commission will thus, de facto, be the only licensed operators in the European Union. Furthermore, it is not technically possible for MSS operators to provide services to only one Member State without causing harmful interference with the systems of other MSS operators serving neighbouring territories. The Council’s statements to the effect that the applicant would be able to continue to offer services in the United Kingdom are therefore also misleading.
52 Fifthly, contrary to what the Commission suggests in its pleadings before the Court, the ICO-P system is functioning. In particular, the applicant points out that it has a satellite in commercial use. It is the only operator in that position. With regard to Ofcom’s intervention, to which the Commission refers, the applicant points out that, to the best of its knowledge, Ofcom has refrained from writing to the ITU. That is due, in particular, to legal proceedings which are pending in the United Kingdom. In addition, the applicant points out that, before requesting cancellation of the registration with the ITU, Ofcom is required to consult the applicant. Those factors lead to the conclusion that the applicant does indeed have rights derived from its registration with the ITU. In any event, Ofcom’s position is irrelevant to the outcome of the present proceedings. At the date on which the present action was brought, the ICO-P system had been registered with the ITU.
Findings of the Court
53 The fourth paragraph of Article 230 EC provides: ‘[A]ny natural or legal person may … institute proceedings against a decision … which, although in the form of a … decision addressed to another person, is of direct and individual concern to the former’.
54 As the contested decision was addressed to the Member States, it is necessary to examine whether it is of direct concern to the applicant.
55 The condition that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as set out in the fourth paragraph of Article 230 EC, means that the contested measure must affect directly the legal situation of the individual and leave no discretion to the addressees of that measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from European Union rules without the application of other intermediate rules (Case C‑486/01 P Front national v Parliament [2004] ECR I‑6289, paragraph 34, and Case C‑15/06 P Regione Siciliana v Commission [2007] ECR I‑2591, paragraph 31).
56 It follows clearly from that case-law that two cumulative conditions must be satisfied in order for a measure to be capable of being regarded as being of direct concern to a natural or legal person (order of 3 April 2009 in Case C‑387/08 P VDH Projektentwicklung and Edeka Rhein-Ruhr v Commission, not published in the ECR, paragraph 21; see also, to that effect, order of 25 June 2007 in Case T‑130/06 Drax Power and Others v Commission, not published in the ECR, paragraph 47, and order of 20 October 2008 in Case T‑208/07 BOT Elektrownia Bełchatów and Others v Commission, not published in the ECR, paragraph 27).
57 One of those conditions is that the measure at issue must directly affect the legal situation of the person concerned (see, to that effect, Drax Power and Others v Commission, cited in paragraph 56 above, paragraph 48, and BOT Elektrownia Bełchatów and Others v Commission, cited in paragraph 56 above, paragraph 28).
58 In the present case, however, the contested decision does not satisfy that condition.
59 First of all, even on the assumption that the applicant had vested rights flowing from, inter alia, registration with the ITU, the contested decision does not, in itself, produce legal effects in that regard. The contested decision can produce legal effects in regard to the applicant, if at all, first, only if the selection procedure was organised by the Commission and, secondly, only if operators other than the applicant were selected; and, finally, only if the rights granted to those operators actually prejudiced the rights claimed by the applicant. Nothing in a reading of the contested decision leads to the conclusion that the applicant must be automatically eliminated from the selection process organised by the Commission, nor, indeed, does the applicant make any such claim. It follows that, at the date on which the present action was brought, the applicant’s fear that the vested rights which it claims would be affected by the contested decision relates to a purely hypothetical event (see, to that effect, BOT Elektrownia Bełchatów and Others v Commission, cited in paragraph 56 above, paragraph 49). The contested decision cannot therefore be regarded as directly affecting the applicant’s rights or the exercise thereof, assuming that such rights exist. The present case differs in that respect from Commission v Infront WM, cited in paragraph 45 above, on which the applicant relies. In the latter case, the direct consequence of the measure at issue, read in conjunction with a national measure, was to place on the rights enjoyed by a company new restrictions which did not exist at the time at which that company had acquired those rights. In the present case, however, for the reasons set out above, the contested decision does not, in itself, have such effects on the rights claimed by the applicant.
60 Secondly, it must be pointed out that the contested decision creates a common selection procedure for all MSS operators, which requires, however, the adoption of implementing measures by the Commission. First of all, Article 3(1) of the contested decision states that the Commission is to organise a comparative selection procedure. Secondly, Article 4(3) of the contested decision states that the Commission is to decide on the admissibility of applications and publish the list of admissible applicants. Finally, under Articles 5(2) and 6(3) of the contested decision, the Commission is required to adopt a decision on the selection of candidates. In the absence of such implementing measures, nothing permits the conclusion to be drawn that the contested decision directly affects the legal situation of third parties and, in particular, that of the applicant (see, to that effect, order in Case T‑45/02 DOW AgroSciences v Parliament and Council [2003] ECR II‑1973, paragraphs 38 to 40). The fact that the Commission may have adopted such implementing measures since the present action was brought cannot alter that conclusion, since the admissibility of an action has to be assessed at the time at which it is brought (see, to that effect, Case 50/84 Bensider and Others v Commission [1984] ECR 3991, paragraph 8, and order in Case T‑229/02 PKK and KNK v Council [2005] ECR II‑539, paragraph 30). It must be added that, contrary to the applicant’s assertion, the Commission has a degree of discretion in the selection of the operators concerned. In particular, the credibility of applicants and the viability of the proposed mobile satellite systems are taken into account throughout the first selection phase (Article 5(1) of the contested decision). In that respect, the Commission necessarily enjoys a degree of discretion in the light of the information which candidates may be asked to provide and which is not defined in the contested decision. The same is true in regard to the second phase of the selection process, since the Commission is entitled, in particular, to adopt the ‘implementing rules’ provided for in Article 6 of the contested decision. Moreover, as in the first phase of the selection process, account is taken of the credibility of applicants and the viability of the proposed mobile satellite systems, which also implies a degree of discretion on the Commission’s part.
61 None of the other arguments put forward by the applicant can cast doubt on those findings.
62 With regard to the applicant’s claim that the contested decision leads to a moratorium on any further authorisation of operators by the Member States, thereby preventing the applicant from obtaining new licences, it must be pointed out that Article 8(2) of the contested decision provides that Member States may not select or authorise operators of complementary ground components of mobile satellite systems before the selection procedure ‘provided for in Title II’ of the contested decision has been ‘completed’ by a Commission decision. It follows, therefore, implicitly but necessarily, that Article 8(2) of the contested decision is to apply when the selection procedure provided for in Title II of that decision has commenced. It must be pointed out, however, that, under Article 3(1) and (2) of the contested decision, it is for the Commission to organise that selection procedure, which begins with a call for applications published in the Official Journal of the European Union. Thus, in the absence of that implementing measure on the part of the Commission, the contested decision does not, in itself, lead to suspension of a selection which could be made or of an authorisation which could be granted by the Member States. In any event, it must be pointed out that Article 8(2) of the contested decision merely suspends a selection which could be made or an authorisation which could be granted by the Member States. That provision does not therefore hinder the operators concerned from applying to the Member States for an authorisation. Consequently, on the assumption that the effects referred to are the direct consequence of the contested decision and not the anticipation by the applicant of the implementing measures which must be adopted by the Commission, they do not influence the applicant’s legal situation, but only its factual situation (see, to that effect, Joined Cases T‑172/98, T‑175/98 to T‑177/98 Salamander and Others v Parliament and Council [2000] ECR II‑2487, paragraph 62, and order in Case T‑122/05 Benkö and Others v Commission [2006] ECR II‑2939, paragraph 47). In addition, the applicant has not claimed, nor has it even shown, that, at the time when the present action was brought, it had already submitted applications to some Member States or that it was about to provide MSS in certain Member States and that those applications or provisions of services were suspended pending the adoption of a Commission decision in accordance with the contested decision.
63 With regard to the applicant’s argument that the contested decision forces it to allocate resources in order to participate in the call for applications, it must be recalled that the contested decision requires an implementing decision in that regard on the part of the Commission. In any event, even on the assumption that those effects are the direct consequence of the contested decision and not of the applicant’s anticipation of the implementing measures which must be adopted by the Commission, they do not influence the applicant’s legal situation, but only its factual situation.
64 It follows that the contested decision cannot be regarded as being of direct concern to the applicant.
65 The present action must therefore be dismissed as inadmissible. That outcome is, moreover, not brought into question by the fourth paragraph of Article 263 TFEU, which does not alter the condition that natural or legal persons must be directly concerned.
66 The applicant’s request that, essentially, the Court join the plea of inadmissibility to the substance of the case is based on the premiss that the admissibility of the present action can be assessed only in the light of a more detailed analysis of the vested rights claimed by the applicant. However, for the reasons set out earlier, that premiss is erroneous.
67 It must be added that the inadmissibility of the present action does not deprive the applicant of effective judicial protection of the rights which it derives from the legal order of the European Union. It must be recalled, in that regard, that that legal order is based on a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions and has entrusted such review to the Courts of the European Union (see, to that effect, Les Verts v Parliament, cited in paragraph 27 above, paragraph 23). Under that system, where natural or legal persons cannot, by reason of the conditions governing admissibility of actions for annulment, directly challenge certain measures, they are able, depending on the case, either indirectly to plead the invalidity of such acts or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid (Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 20), to make a reference to the Court of Justice for a preliminary ruling on validity (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 40).
68 Moreover, as pointed out in the preceding paragraph, the circumstance that there is no effective national remedy, even if established, cannot justify a modification, through judicial decision, of the system of legal remedies and procedures. As is evidenced by the case-law, the admissibility of an action for annulment before the Courts of the European Union cannot depend on whether a remedy is available before a national court allowing consideration of the validity of the act the annulment of which is being sought (Unión de Pequeños Agricultores v Council, cited in paragraph 67 above, paragraphs 43 and 46; Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraphs 33 and 34; and order in Case T‑447/05 SPM v Commission [2007] ECR II‑1, paragraph 82). Such a circumstance cannot in any event allow an action for annulment brought by a natural or legal person who does not satisfy the conditions for bringing such an action to be declared admissible (order in Case C‑301/99 P Area Cova and Others v Council and Commission [2001] ECR I‑1005, paragraph 47), regard being had to the fact that it is for the Member States to establish a system of legal remedies and procedures designed to ensure respect for the right to effective judicial protection (Unión de Pequeños Agricultores v Council, cited in paragraph 67 above, paragraph 41).
Costs
69 Under Article 87(2) 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 Parliament and the Council have applied for such an order and the applicant has been unsuccessful, the applicant must be ordered to pay the costs.
70 Under the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in proceedings are to bear their own costs. The Commission must for that reason bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. ICO Services Ltd shall bear its own costs and pay the costs of the European Parliament and of the Council of the European Union.
3. The European Commission shall bear its own costs.
Luxembourg, 21 May 2010.