10.1.2009

Official Journal of the European Union

C 6/33

(Case T-441/08)

(2009/C 6/68)

Language of the case: English

Parties

Applicant: ICO Services Limited (Slough, United Kingdom) (represented by: S. Tupper, Solicitor)

Defendants: European Parliament and Council of the European Union

Form of order sought

—Order that 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) is void in accordance with the provisions under Article 230 CE and 231 EC;

—Order that the costs of the present action be paid by the defendants and any other orders that the Court may deem appropriate.

Pleas in law and main arguments

By means of its application pursuant to Article 230 EC, the applicant seeks the 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’)(1).

The applicant claims that the contested decision does not address the existence of, nor gives consideration to, any MSS System's pre-existing rights to band-width on the 2 GHz spectrum, whether derived from the International Telecommunications Union (‘ITU’) or the European Conference of Postal and Telecommunications Administration regimes. Moreover, the applicant submits that the contested decision has the effect of depriving it of property rights accrued to it under international law that permit the applicant to offer MSS worldwide without unlawful interference. In fact, the applicant claims to be the sole operator with a system, ‘ICO-P’, providing MSS services in the 2 GHz Band. According to the applicant, the contested decision attempts to allocate frequencies in the 2 GHz Band without affording ICO-P's rights appropriate recognition, thereby putting EU Member States in contravention of their Treaty obligations with respect to the relevant rules of the ITU.

The applicant, moreover, claims that the contested decision ignores the existence of the applicant's rights and sets up a system through which the applicant's right to use the 2 GHz spectrum is infringed. Moreover, it is submitted that the decision puts in great jeopardy the applicant's considerable investments to date and forces the applicant to participate to the EU tender process while interfering in the day-to-day running of its business.

Further, the applicant claims that by adopting the contested decision, the defendant has acted disproportionately and in a discriminatory way, contrary to the applicant's legitimate expectations. In fact, the applicant contends, that contrary to its rights and/or legitimate expectations, the contested decision is founded on the premise that the whole of the 2 GHz spectrum is available for allocation, since it provides for the selection and authorisation of operators of MSS to utilise the entire range of frequencies existing in the 2 GHz spectrum.

In addition, it is submitted that the contested decision violates the applicant's rights to the peaceful enjoyment of the benefits accorded to the ICO-P system as a result of recognition of the recording by the ITU in the Master International Frequency Register maintained by the ITU, and other similar property rights, contrary to Article 1 of Protocol 1 of the European Convention of Human Rights and international law.

(1) OJ 2008 L 172, p. 15.