1. Introduction

Earth observation (EO) refers to the collection, processing, distribution and commercial exploitation of information about the Earth's surface, atmosphere, oceans and natural resources through satellites, aerial sensors, drones and other remote-sensing technologies.

Earth observation data is increasingly important in:

Agriculture and precision farming.

Mining and mineral exploration.

Climate monitoring and environmental protection.

Defence and national security.

Urban planning and infrastructure development.

Disaster management and insurance.

Maritime surveillance and logistics.

Telecommunications and geospatial intelligence.

Earth observation access barriers arise when dominant satellite operators, imagery providers, data-platform companies or other market participants restrict competitors' access to essential satellite imagery, raw datasets, processing infrastructure, technical interfaces or distribution channels.

From a competition-law perspective, these barriers may constitute abuse of dominance, discriminatory access, refusal to supply, exclusive dealing, tying, market foreclosure or anti-competitive information control.

The central competition concern is that control over commercially important geospatial data can allow an undertaking to dominate not only satellite imagery markets but also downstream analytics, mapping, agricultural intelligence and environmental services.

2. Legal framework

Earth observation access barriers can be examined under the following competition-law principles.

A. Abuse of dominant position

A company controlling indispensable satellite imagery, high-resolution datasets or specialised processing infrastructure may possess substantial market power.

Abusive conduct may include:

Refusing access to commercially important imagery.

Charging excessive licensing fees.

Offering discriminatory access conditions.

Restricting access to competing analytics providers.

Preventing customers from transferring datasets.

Making access conditional on purchasing additional services.

B. Essential facilities doctrine

The essential facilities doctrine becomes relevant where a dominant undertaking controls infrastructure or an input that competitors cannot realistically duplicate or replace.

For example, a satellite operator may control unique historical imagery covering a particular geographical area. If competing downstream businesses cannot reasonably reproduce that dataset, refusal of access may raise competition concerns.

However, mere ownership of valuable data does not automatically create an obligation to share it. Indispensability, elimination of effective competition and the absence of objective justification are important considerations.

C. Vertical foreclosure

A vertically integrated satellite operator may supply imagery to independent analytics companies while also operating its own downstream analytics business.

It could disadvantage competitors by:

Providing its subsidiary with earlier access.

Delaying third-party data delivery.

Charging competitors higher licensing fees.

Restricting commercial redistribution.

Offering better resolution or processing capabilities internally.

D. Discriminatory licensing

Different licensing conditions for similarly situated customers may distort competition, particularly where the supplier competes with its own licensees in downstream markets.

E. Interoperability and portability

Technical restrictions preventing users from transferring, combining or processing earth observation datasets may create switching costs and reinforce market concentration.

3. Application under Moroccan competition law

If the analysis is undertaken in Morocco, the principal legislation is Law No. 104-12 on Freedom of Prices and Competition, as amended.

Article 7 – Abuse of dominant position

Article 7 prohibits abusive exploitation of a dominant position where the conduct prevents, restricts or distorts competition. It specifically recognises practices such as:

Refusal to sell or supply.

Tying arrangements.

Discriminatory commercial conditions.

Unjustified termination of established commercial relationships.

These provisions are relevant where a satellite imagery provider refuses to license data to competing geospatial analytics companies or imposes discriminatory access conditions. Article 7 also addresses abuse of economic dependence where a customer or supplier lacks an equivalent alternative.

WIPO

Article 20 – Corrective intervention

The Competition Council may require an undertaking to modify, supplement or terminate agreements and arrangements through which economic power has been used abusively.

Possible applications include:

Requiring non-discriminatory licensing.

Removing restrictive distribution arrangements.

Modifying exclusive data-sharing agreements.

Correcting discriminatory access conditions.

Merger control

A proposed merger between major satellite imagery providers may require examination where the transaction risks eliminating an important source of competition or giving the merged undertaking the ability to restrict access to essential imagery.

Moroccan authorities should consider whether the merger creates incentives to foreclose downstream analytics providers.

4. Important competition-law case laws

The following cases provide important legal principles for analysing earth observation access barriers. Some concern satellite imagery directly, while others establish broader principles concerning essential facilities, intellectual property, data access and discriminatory infrastructure access.

Case 1: Commercial Solvents Corporation v Commission (1974)

European Court of Justice – Joined Cases 6/73 and 7/73

Facts:

Commercial Solvents controlled the supply of an important chemical raw material required by downstream manufacturers. It discontinued supplies to an existing customer that competed in the downstream market.

Legal issue:

Whether a dominant undertaking could refuse to supply an essential input to eliminate competition in a downstream market.

Judgment:

The Court established that a dominant undertaking's refusal to supply an indispensable input could constitute abuse where it eliminated competition in the downstream market.

Relevance to earth observation:

A satellite operator controlling unique high-resolution imagery could potentially abuse its dominant position by refusing to license that imagery to independent geospatial analytics companies while reserving access for its own downstream services.

The case supports intervention where control over an upstream input is used to eliminate downstream competition.

Case 2: RTE and ITP v Commission (Magill) (1995)

European Court of Justice – Joined Cases C-241/91 P and C-242/91 P

Facts:

Television broadcasters controlled copyright-protected programme information and refused to license it to an undertaking seeking to publish comprehensive television listings.

Legal issue:

Whether refusal to license intellectual property could constitute an abuse of dominance.

Judgment:

The Court recognised exceptional circumstances in which refusal to license intellectual property rights could constitute abuse. These included prevention of a new product, elimination of competition in a secondary market and lack of objective justification.

Relevance to earth observation:

A satellite imagery company might control exclusive rights over specialised imagery datasets.

If refusal to license prevents competitors from developing innovative environmental monitoring, agricultural intelligence or disaster-management products, the Magill principles may become relevant.

However, intellectual property ownership does not automatically create a general obligation to license.

Case 3: Oscar Bronner GmbH v Mediaprint (1998)

European Court of Justice – Case C-7/97

Facts:

Bronner sought access to Mediaprint's extensive newspaper home-delivery distribution system.

Legal issue:

Whether a dominant undertaking could be compelled to provide competitors with access to infrastructure developed for its own business.

Judgment:

The Court established a demanding indispensability test. The facility must be indispensable, there must be no actual or potential substitute, and refusal must be capable of eliminating all competition in the downstream market. The refusal must also lack objective justification.

Relevance to earth observation:

A competitor seeking access to a satellite operator's imagery archive must demonstrate that alternative imagery providers, public datasets, independent satellite deployment and other technologies cannot reasonably substitute for the requested input.

The case prevents competition law from becoming a general mechanism requiring successful businesses to share every commercially valuable resource.

Case 4: IMS Health GmbH v NDC Health (2004)

European Court of Justice – Case C-418/01

Facts:

IMS Health owned a copyrighted pharmaceutical sales-data structure known as the 1860 brick structure. Competitors sought access to the structure to compete in pharmaceutical data services.

Legal issue:

Whether refusal to license an intellectual property-protected structure could constitute abuse of dominance.

Judgment:

The Court identified exceptional conditions for compulsory licensing, including:

Indispensability of the protected input.

Prevention of a new product for which there was potential consumer demand.

Elimination of competition in the secondary market.

Absence of objective justification.

Relevance to earth observation:

This decision is particularly useful where a company controls a specialised geospatial database, satellite-image classification system or proprietary data format.

For example, a provider could potentially restrict competing environmental analytics businesses from developing innovative services by withholding access to an indispensable dataset.

Case 5: Microsoft Corp. v Commission (2007)

Court of First Instance of the European Communities – Case T-201/04

Facts:

Microsoft refused to provide interoperability information necessary for competing work-group server operating systems to communicate effectively with Windows-based systems.

Legal issue:

Whether refusal to provide technical interoperability information constituted abuse of a dominant position.

Judgment:

The Court upheld the Commission's finding of abuse and the requirement to disclose interoperability information under the exceptional circumstances established in the case.

Relevance to earth observation:

A dominant satellite data platform could restrict access to:

Image-processing APIs.

Geospatial metadata.

Coordinate-reference information.

Data exchange protocols.

Technical interoperability documentation.

Such restrictions could prevent independent developers from integrating satellite imagery into competing mapping and analytics applications.

The case demonstrates the competition significance of interoperability and technical information.

Case 6: Slovak Telekom v Commission (2021)

Court of Justice of the European Union – Case C-165/19 P

Facts:

Slovak Telekom, a telecommunications operator with significant market power, imposed restrictive conditions on competitors seeking access to its local-loop infrastructure.

Legal issue:

Whether restrictive infrastructure-access conditions could constitute an abuse of dominance.

Judgment:

The Court upheld the finding of abuse concerning the restrictive access conditions. It also clarified the relationship between sector-specific access obligations and competition-law intervention.

Relevance to earth observation:

A satellite imagery provider could impose commercially unreasonable licensing conditions even where it does not completely refuse access.

Examples include:

Excessive technical restrictions.

Unreasonable minimum purchase commitments.

Unjustified restrictions on redistribution.

Delays in delivering imagery.

Conditions that make competing services commercially unviable.

The case demonstrates that access foreclosure may occur through restrictive terms rather than outright refusal.

Case 7: Google Shopping v Commission (2021)

Court of Justice of the European Union – Case C-48/19 P

Facts:

Google favoured its own comparison-shopping service in search results while positioning competing comparison-shopping services less favourably.

Legal issue:

Whether discriminatory treatment by a dominant digital platform could constitute abuse of dominance.

Judgment:

The Court dismissed Google's appeal and upheld the Commission's infringement decision.

Relevance to earth observation:

A vertically integrated satellite imagery platform might favour its own analytics products by:

Prioritising its own imagery in search results.

Providing its subsidiary with better access to datasets.

Ranking independent analytics providers less favourably.

Giving affiliated products superior visibility.

Applying discriminatory platform access rules.

The decision is useful for analysing self-preferencing and discriminatory access in digital geospatial ecosystems.

5. Earth observation industry-specific competition decisions

The following regulatory matters are especially relevant because they concern the structure and competitive significance of satellite imagery and reconnaissance technology.

Case 8: European Commission – EADS/Astrium and Surrey Satellite Technology (2008)

European Commission – Merger Decision M.5168

Facts:

The European Commission examined the acquisition of Surrey Satellite Technology Limited by EADS, including the parties' activities in satellite observation data and downstream processing.

Competition issue:

The Commission examined market shares, competing suppliers and the competitive structure of the satellite observation data market.

Significance:

The decision is directly relevant to the assessment of concentration in satellite observation data markets. It illustrates the importance of distinguishing between:

Satellite manufacturing.

Satellite observation data supply.

Image processing.

Downstream geospatial services.

It also demonstrates that competition analysis must consider the availability of alternative imagery suppliers.

Case 9: United States – DigitalGlobe/GeoEye Merger Review (2013)

United States Department of Justice and Department of Commerce – Satellite Imagery Merger Review

Facts:

DigitalGlobe and GeoEye were major commercial providers of high-resolution satellite imagery. Their proposed combination raised concerns about reducing the number of independent commercial imagery suppliers.

Competition issue:

The merger raised concerns about:

Reduced competition in commercial satellite imagery.

Increased dependence of downstream customers on one supplier.

Higher imagery prices.

Reduced innovation and investment.

Deterioration in the bargaining position of imagery resellers.

Significance:

The review illustrates why competition authorities should investigate whether consolidation among satellite imagery suppliers could create access barriers for downstream competitors.

The Department of Commerce's industry report recorded concerns from imagery resellers about the possibility of losing an independent source of high-quality satellite imagery.

6. Major forms of earth observation access barriers

7. Relevant market definition

Competition authorities should define the relevant product and geographical markets carefully.

A. Relevant product markets

Potential separate markets include:

Commercial high-resolution satellite imagery.

Medium- and low-resolution satellite observation data.

Synthetic aperture radar imagery.

Thermal and hyperspectral imagery.

Historical satellite imagery archives.

Earth observation data processing.

Geospatial analytics and intelligence.

Satellite imagery licensing and distribution.

These markets should not automatically be combined because their technical characteristics, customers and commercial uses differ.

B. Relevant geographical market

The geographical market may be:

Local or national.

Regional.

European or continental.

Worldwide.

The analysis depends on data coverage, licensing restrictions, national security requirements, regulatory controls and the availability of alternative suppliers.

8. Economic effects of access barriers

Earth observation access restrictions can produce several adverse economic effects.

1. Artificial entry barriers

New businesses may be unable to compete because launching satellites requires substantial capital expenditure, specialised technology and regulatory approvals.

2. Increased costs

Dominant imagery providers may impose higher licensing fees, increasing the operating costs of downstream analytics companies.

3. Innovation suppression

Restrictions on access to historical imagery and technical datasets may prevent competitors from developing improved climate models, agricultural applications and environmental monitoring systems.

4. Vertical foreclosure

A satellite operator operating its own analytics subsidiary may disadvantage independent analytics companies through discriminatory supply arrangements.

5. Consumer harm

Reduced competition may ultimately result in higher prices, fewer services, lower data quality and limited innovation for commercial and public-sector users.

6. Reduced technological diversity

Excessive concentration may discourage investment in alternative satellite technologies and independent data-processing systems.

9. Objective justifications for restricting access

Not every restriction on earth observation data is anti-competitive.

Legitimate reasons may include:

National security and defence requirements.

Protection of sensitive geographical information.

Privacy and personal-data protection.

Intellectual property rights.

Cybersecurity and protection against unauthorised access.

Satellite capacity limitations.

Export-control obligations.

Protection of commercially confidential information.

Competition authorities should examine whether restrictions are necessary, proportionate, objectively justified and applied consistently.

A security justification should not become a pretext for excluding competitors from ordinary commercial imagery markets.

10. Remedies and regulatory interventions

Competition authorities may consider several corrective measures.

Remedies must be proportionate and should not unnecessarily undermine legitimate investment incentives or national security interests.

11. Compliance obligations for earth observation companies

Companies operating satellite imagery and geospatial platforms should establish appropriate competition compliance programmes.

Important measures include:

Establish transparent and objective licensing policies.

Avoid discriminatory treatment of independent data resellers.

Document legitimate reasons for refusing access.

Separate competitively sensitive information from downstream commercial operations.

Review exclusive distribution agreements.

Maintain fair API and interoperability conditions.

Avoid tying satellite imagery purchases to unrelated analytics services.

Review mergers and acquisitions for potential foreclosure risks.

Establish internal procedures for responding to third-party access requests.

Conduct periodic competition audits of data-sharing arrangements.

12. Important legal principles emerging from the case laws

Legal qualification: The first seven decisions establish comparative competition-law principles rather than direct judgments on earth observation access. The last two are industry-specific merger matters, not findings that every access restriction in the sector is unlawful. Their relevance is analytical and should not be mistaken for Moroccan judicial precedent.

13. Conclusion

Earth observation access barriers represent an increasingly important competition-law issue because satellite imagery, historical geospatial datasets, processing infrastructure and digital distribution platforms are becoming essential commercial inputs.

A dominant undertaking should not be permitted to exploit control over commercially significant imagery to eliminate downstream competitors through unjustified refusals, discriminatory licensing, restrictive technical conditions or exclusionary exclusive agreements.

Under Moroccan Law No. 104-12, Article 7 provides an important legal basis for examining abusive exploitation of dominant positions and economic dependence. The Competition Council can investigate potentially exclusionary conduct and consider corrective intervention under Article 20.

The essential facilities doctrine, intellectual property licensing principles, interoperability requirements and vertical foreclosure analysis provide useful comparative tools.

Ultimately, effective competition regulation must balance three objectives:

Protecting legitimate ownership, investment and national security interests in satellite technology.

Ensuring fair and non-discriminatory access to commercially indispensable earth observation inputs where competition law justifies intervention.

Preserving innovation, market entry and competition in downstream geospatial analytics and satellite-data services.