ViaSat’s access to confidential tender documentation rejected by General Court. Anneli Howard acts for intervener, Inmarsat Ventures Ltd

29 Apr 2020
Anneli Howard KC

ViaSat v Commission (Case T-734/17)

ViaSat, a US communication services provider, has launched proceedings before the General Court to challenge the European Commission’s refusal to intervene to prevent national regulatory authorities from authorising its competitor, Inmarsat, from launching its in-flight satellite broadband service. Its appeal (Case T-245/17) challenges the Commission’s alleged failure to act on competition law, regulatory and public procurement grounds.

In support of that case, Viasat has made a separate application (Case T-734/17) under the public access regime in Regulation 1049 for access to all the information submitted by Inmarsat as part of its participation in the EU tender process. Inmarsat took part in the selection process which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009, where it was selected as one of two operators granted spectrum frequencies to operate pan-European mobile satellite services (MSS).

ViaSat sought access to Inmarsat’s tender bid even though it decided not to participate in the tender process itself.

The General Court has declared that there is no need to rule on the lawfulness of the European Commission’s rejection of Viasat’s application. The General Court refused the application on the basis that the documents represented confidential and strategic information that could affect competition in the market. It also dismissed Viasat’s argument that the information was over five years old since the content of Inmarsat’s documents were still of strategic importance to its commercial policy. ViaSat also failed to establish a public interest case – mere general assertions regarding the importance of transparency requirements were not sufficient.

Inmarsat was awarded all of its costs in full which is extremely rare for an intervener.

This case has ongoing relevance to ongoing proceedings before the EU Courts, the UK Court of Appeal, Belgium, France and Germany where ViaSat is challenging the national authorisation decisions that have been given to Inmarsat to operate its in-flight satellite broadcasting services for European airlines.

Read full judgment here.

Anneli Howard acted for the intervener Inmarsat Ventures.