- Email: [email protected]
Crafting a legal framework for a coherent future structure for European Space Activities
ARTICLE IN PRESS
Space Policy 20 (2004) 59–61
Report
Crafting a legal framework for a coherent future structure for European Space Activities$ Katharina Kunzmann, Thomas Reuter Institute of Air and Space Law of the University of Cologne, Albertus-Magnus-Platz, Koln . D-50923, Germany
Abstract As ESA and the EU seek to formalise and regulate their new, closer relationship, a major research project being carried out at the University of Cologne aims to analyse the pros and cons of the various possible models of cooperation. This report describes the aims and methods of the project. One task it has set itself is to propose solutions to the legal problems that will inevitably arise when two organisations with differing constitutions and memberships get together. r 2003 Elsevier Ltd. All rights reserved.
1. Introduction What happens if two international organisations decide to cooperate more closely? Will one organisation impose its rules on the other? Will they even merge into one organisation? Or will they merely cooperate on a case-by-case basis? These questions are emerging with regard to the European space sector as the European Space Agency (ESA) and the European Union (EU) restructure their relationship. In order to answer these questions and shed more light on the possible implications of this cooperation, the Institute of Air and Space Law of the University of Cologne carrying out a research project on the ‘‘Legal Framework for a coherent future structure of European Space Activities’’. The project aims to elaborate concrete propositions for an institutional realignment of the European Space Sector and to produce an extensive research report, analysing the legal impact of possible models of further cooperation between ESA and the EU. This research report is expected to be completed in May 2005. European cooperation has achieved remarkable success in the space field over the past few decades. Cooperation within ESA and other organisations has
$
The authors are currently carrying out a research project under the supervision of Prof. Dr. Stephan Hobe, Director of the Institute of Air and Space Law of the University of Cologne. E-mail address: [email protected] (K. Kunzmann). 0265-9646/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.spacepol.2003.11.007
allowed achievements which no European nation could have borne single-handedly. As identified in the Wise Men’s Report,1 the European space sector is, however, currently facing a major turning point. The EU (through its Commission (EC)) has become a major player in the space field. Its role and its relationship with ESA have yet to be determined. The long, inefficient and costly discussions preceding the Galileo project have shown that the current institutional structure is not fit for the challenges that lie ahead. The results of the Brussels Convention, foreseeing in its Draft Constitutional Treaty for the first time an explicit EU competence on space, further increase the need for concise task sharing provisions. The joint effort of the EU and ESA to issue a White Paper on Space2 and the conclusion of a Framework Agreement between ESA and the EC3 are therefore to be seen as the first steps towards a coherent institutional landscape for space activities. 1 Carl Bildt, Jean Peyrelevade, Lothar Sp.ath, Towards a Space Agency for the European Union, Report to the ESA Director General, Paris 2000, cf. Hobe, Stephan/Schmidt-Tedd, Bernhard/Schrogl, KaiUwe, Project 2001 Plus, Legal Aspects of the Future Institutional Relationship between the European Union and the European Space Agency, Workshop 5/6 December 2002, Brussels, Proceedings, Documentation 1.c. 2 White Paper on Space, a new European frontier for an expanding Union, COM (2003) 673, released 11 November 2003. 3 Framework Agreement between ESA and EC, concluded on 25 November 2003, http://www.europa.eu.int/comm/space/doc pdf/ agreement en.pdf, accessed 11 December 2003.
ARTICLE IN PRESS 60
K. Kunzmann, T. Reuter / Space Policy 20 (2004) 59–61
Our research report will consist of three parts. In the first part, the history of cooperation between ESA and the EU will be described. The second part will deal with the institutional implications of the different models of closer cooperation between ESA and the EU, whilst the third part will elaborate on questions regarding the industrial policy and consistency of both organisations.
2. History The first part of the research report will trace the history of the rapprochement between ESA and EU. After a brief description of the history of European involvement in space flight and the merger of ELDO and ESRO, it will examine the development of the EC/ EU to become a major player in the space field. This evolution has been based on two major components: on the one hand, space applications have evolved to become indispensable instruments in almost all fields of politics. Thus, space is relevant to existing EC policies, e.g. in the area of deregulation of the telecommunications sector or the application of remotely sensed data within the agricultural or environmental sectors. On the other hand, the EC new space has established related competences. The most prominent examples are the Single European Act, introducing inter alia research as one of the Community’s policies, and the Treaty of Maastricht, establishing a Common Foreign and Security Policy (CFSP) for the newly founded European Union. The next step in this development was the inclusion of a specific competence for the EU in space matters in the Draft Constitution of the Brussels Convention (articles I-13 and III-155).4 Article I-13 para. 3 of the Draft Constitution mentions space as a special category of competences shared between the Union and member states.5 Article III-155 contains more detailed provisions on how the EU is to exercise its competence in space matters. The report will analyse these provisions and discuss their impact on the relationship between ESA and the EU. Another important field of research will be the forms of cooperation between ESA and the EU up to present. The most prominent example is the Galileo project. The structure that has finally been agreed upon will be examined carefully, as will questions regarding the legal personality of the Galileo Joint Undertaking, the debate on industrial return and the effectiveness of the decisionmaking procedures. In a second step, the ‘‘lessons to be
learned from Galileo’’ will be brought together. They will be borne in mind when considering other possible models of cooperation in part two of the report. The latest development in the cooperation between ESA and EU is the conclusion of a Framework Agreement between the two organisations. The legal impacts of this agreement will be examined in depth in the second part of the research report. The first part of the report will conclude with a presentation of the different proposals for the future relationship between ESA and EU that have been suggested up to now. These range from accession of the EU to ESA, on the one hand,6 to the integration of ESA into the framework of the EU, on the other hand.7
3. Institutional implications The second part of the report will deal with the institutional implications of further cooperation between ESA and EU. In a first step, the focus will be on the Framework Agreement concluded between ESA and the EU. The report will raise the question of whether it provides for an adequate long-term relationship, or whether it can only serve as a first step on the way to a more coherent institutional solution. However, the report will not only examine the results of the Framework Agreement negotiations. Other, more far-reaching possible institutional solutions will be analysed as well. Four fundamental questions have to be tackled with respect to each model of cooperation. *
*
*
*
Do the existing ESA Convention and the EC Treaty provide the necessary legal basis to implement the specific model? If they do not, proposals for respective treaty amendments will have to be elaborated. Possible decision-making procedures. These will have to be analysed for each model. They will be checked for added value vis-a" -vis the current situation. The problem of inconsistent membership. Switzerland and Norway are member states of ESA, but not of the EU, while the EU members Luxembourg und Greece as well as the accessing countries have not acceded to the ESA Convention yet. The position of these states has to be considered within each model. How to find a balanced approach: most ESAprogrammes are based on optional participation,
4
Document CONV 850/03 of the European Convention. Article I-13 para. 3 of the Draft Constitution reads: ‘‘The Union shall have competence to carry out actions, in particular to define and implement programmes; however, the exercise of that competence may not result in Member States being prevented from exercising theirs’’. 5
6 Frans von der Dunk, Towards one captain on the European spaceship—why the EU should join ESA, Space Policy 19 (2003), pp. 83–86. 7 Supra Note 1.
ARTICLE IN PRESS K. Kunzmann, T. Reuter / Space Policy 20 (2004) 59–61
while EU provisions are generally binding on all member states.
4. Industrial policies The report will in its third part examine whether and to what extent the material rules of both organisations’ industrial policies affect each other. The main feature of ESA’s industrial policy is the principle of geographic distribution, also known as ‘‘industrial’’, ‘‘just’’ or ‘‘fair’’ return. This principle guarantees member states an industrial return in the form of contracts awarded to their industries equivalent to at least 80% of their contributions to the Agency’s programmes.8 Thus, as an incentive to member states to commit themselves to higher contributions, the fair return principle contributes to the Agency’s success.9 The industrial policy of the EC, on the other hand, is based on free competition and the free movement of goods and services among member states.10 In the field of research and technological development (RTD), however, certain instruments are considered to resemble the principle of geographic distribution to a certain extent.11 The first question to be examined concerns the applicability of EC law to ESA and vice versa. The closer the two organisations cooperate the more their legal regimes might interfere.
8
Article IV para. 6 Annex V to ESA Convention. E. Morel de Westgaver/P. Imbert, Le ‘‘juste retour’’: contrainte ou ! instrument d’integration europeene? ESA bulletin 59 (1989), pp. 62, 64. 10 Articles 28, 49, 87 EC. 11 Bernhard Schmidt-Tedd, Rechtliche Implikationen der gemeinsamen ESA/EU-Raumfahrtsstrategie, ZLW 2001, pp. 202, 208. 9
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Moreover, questions arise as to whether ESA’s industrial policy and the EC’s common market rules, such as the free movement of goods and services granted by the EC Treaty, are consistent and whether the EC rules on state aid apply and, if so, which exceptions might be pertinent. Furthermore, the EC secondary law on public procurement and the provisions on research and technological development might be relevant to ESA’s practice. These questions may lead to different results depending on which of the models of institutional cooperation mentioned above is favoured. Should the research come to the conclusion that the rules do not comply the necessary and possible measures to overcome the conflict of norms will be assessed. These include modification of the ESA and EU treaties as well as measures that could be adopted without such major changes or the need for ratification by all member states.
5. Conclusion What the ESA–EU institutional structure will look like in the end is a political decision of the national governments involved. In order to provide for a base for these decisions the research project, it will determine the legal framework for each model and propose possible solutions for the respective legal problems.
Space Policy 20 (2004) 59–61
Report
Crafting a legal framework for a coherent future structure for European Space Activities$ Katharina Kunzmann, Thomas Reuter Institute of Air and Space Law of the University of Cologne, Albertus-Magnus-Platz, Koln . D-50923, Germany
Abstract As ESA and the EU seek to formalise and regulate their new, closer relationship, a major research project being carried out at the University of Cologne aims to analyse the pros and cons of the various possible models of cooperation. This report describes the aims and methods of the project. One task it has set itself is to propose solutions to the legal problems that will inevitably arise when two organisations with differing constitutions and memberships get together. r 2003 Elsevier Ltd. All rights reserved.
1. Introduction What happens if two international organisations decide to cooperate more closely? Will one organisation impose its rules on the other? Will they even merge into one organisation? Or will they merely cooperate on a case-by-case basis? These questions are emerging with regard to the European space sector as the European Space Agency (ESA) and the European Union (EU) restructure their relationship. In order to answer these questions and shed more light on the possible implications of this cooperation, the Institute of Air and Space Law of the University of Cologne carrying out a research project on the ‘‘Legal Framework for a coherent future structure of European Space Activities’’. The project aims to elaborate concrete propositions for an institutional realignment of the European Space Sector and to produce an extensive research report, analysing the legal impact of possible models of further cooperation between ESA and the EU. This research report is expected to be completed in May 2005. European cooperation has achieved remarkable success in the space field over the past few decades. Cooperation within ESA and other organisations has
$
The authors are currently carrying out a research project under the supervision of Prof. Dr. Stephan Hobe, Director of the Institute of Air and Space Law of the University of Cologne. E-mail address: [email protected] (K. Kunzmann). 0265-9646/$ - see front matter r 2003 Elsevier Ltd. All rights reserved. doi:10.1016/j.spacepol.2003.11.007
allowed achievements which no European nation could have borne single-handedly. As identified in the Wise Men’s Report,1 the European space sector is, however, currently facing a major turning point. The EU (through its Commission (EC)) has become a major player in the space field. Its role and its relationship with ESA have yet to be determined. The long, inefficient and costly discussions preceding the Galileo project have shown that the current institutional structure is not fit for the challenges that lie ahead. The results of the Brussels Convention, foreseeing in its Draft Constitutional Treaty for the first time an explicit EU competence on space, further increase the need for concise task sharing provisions. The joint effort of the EU and ESA to issue a White Paper on Space2 and the conclusion of a Framework Agreement between ESA and the EC3 are therefore to be seen as the first steps towards a coherent institutional landscape for space activities. 1 Carl Bildt, Jean Peyrelevade, Lothar Sp.ath, Towards a Space Agency for the European Union, Report to the ESA Director General, Paris 2000, cf. Hobe, Stephan/Schmidt-Tedd, Bernhard/Schrogl, KaiUwe, Project 2001 Plus, Legal Aspects of the Future Institutional Relationship between the European Union and the European Space Agency, Workshop 5/6 December 2002, Brussels, Proceedings, Documentation 1.c. 2 White Paper on Space, a new European frontier for an expanding Union, COM (2003) 673, released 11 November 2003. 3 Framework Agreement between ESA and EC, concluded on 25 November 2003, http://www.europa.eu.int/comm/space/doc pdf/ agreement en.pdf, accessed 11 December 2003.
ARTICLE IN PRESS 60
K. Kunzmann, T. Reuter / Space Policy 20 (2004) 59–61
Our research report will consist of three parts. In the first part, the history of cooperation between ESA and the EU will be described. The second part will deal with the institutional implications of the different models of closer cooperation between ESA and the EU, whilst the third part will elaborate on questions regarding the industrial policy and consistency of both organisations.
2. History The first part of the research report will trace the history of the rapprochement between ESA and EU. After a brief description of the history of European involvement in space flight and the merger of ELDO and ESRO, it will examine the development of the EC/ EU to become a major player in the space field. This evolution has been based on two major components: on the one hand, space applications have evolved to become indispensable instruments in almost all fields of politics. Thus, space is relevant to existing EC policies, e.g. in the area of deregulation of the telecommunications sector or the application of remotely sensed data within the agricultural or environmental sectors. On the other hand, the EC new space has established related competences. The most prominent examples are the Single European Act, introducing inter alia research as one of the Community’s policies, and the Treaty of Maastricht, establishing a Common Foreign and Security Policy (CFSP) for the newly founded European Union. The next step in this development was the inclusion of a specific competence for the EU in space matters in the Draft Constitution of the Brussels Convention (articles I-13 and III-155).4 Article I-13 para. 3 of the Draft Constitution mentions space as a special category of competences shared between the Union and member states.5 Article III-155 contains more detailed provisions on how the EU is to exercise its competence in space matters. The report will analyse these provisions and discuss their impact on the relationship between ESA and the EU. Another important field of research will be the forms of cooperation between ESA and the EU up to present. The most prominent example is the Galileo project. The structure that has finally been agreed upon will be examined carefully, as will questions regarding the legal personality of the Galileo Joint Undertaking, the debate on industrial return and the effectiveness of the decisionmaking procedures. In a second step, the ‘‘lessons to be
learned from Galileo’’ will be brought together. They will be borne in mind when considering other possible models of cooperation in part two of the report. The latest development in the cooperation between ESA and EU is the conclusion of a Framework Agreement between the two organisations. The legal impacts of this agreement will be examined in depth in the second part of the research report. The first part of the report will conclude with a presentation of the different proposals for the future relationship between ESA and EU that have been suggested up to now. These range from accession of the EU to ESA, on the one hand,6 to the integration of ESA into the framework of the EU, on the other hand.7
3. Institutional implications The second part of the report will deal with the institutional implications of further cooperation between ESA and EU. In a first step, the focus will be on the Framework Agreement concluded between ESA and the EU. The report will raise the question of whether it provides for an adequate long-term relationship, or whether it can only serve as a first step on the way to a more coherent institutional solution. However, the report will not only examine the results of the Framework Agreement negotiations. Other, more far-reaching possible institutional solutions will be analysed as well. Four fundamental questions have to be tackled with respect to each model of cooperation. *
*
*
*
Do the existing ESA Convention and the EC Treaty provide the necessary legal basis to implement the specific model? If they do not, proposals for respective treaty amendments will have to be elaborated. Possible decision-making procedures. These will have to be analysed for each model. They will be checked for added value vis-a" -vis the current situation. The problem of inconsistent membership. Switzerland and Norway are member states of ESA, but not of the EU, while the EU members Luxembourg und Greece as well as the accessing countries have not acceded to the ESA Convention yet. The position of these states has to be considered within each model. How to find a balanced approach: most ESAprogrammes are based on optional participation,
4
Document CONV 850/03 of the European Convention. Article I-13 para. 3 of the Draft Constitution reads: ‘‘The Union shall have competence to carry out actions, in particular to define and implement programmes; however, the exercise of that competence may not result in Member States being prevented from exercising theirs’’. 5
6 Frans von der Dunk, Towards one captain on the European spaceship—why the EU should join ESA, Space Policy 19 (2003), pp. 83–86. 7 Supra Note 1.
ARTICLE IN PRESS K. Kunzmann, T. Reuter / Space Policy 20 (2004) 59–61
while EU provisions are generally binding on all member states.
4. Industrial policies The report will in its third part examine whether and to what extent the material rules of both organisations’ industrial policies affect each other. The main feature of ESA’s industrial policy is the principle of geographic distribution, also known as ‘‘industrial’’, ‘‘just’’ or ‘‘fair’’ return. This principle guarantees member states an industrial return in the form of contracts awarded to their industries equivalent to at least 80% of their contributions to the Agency’s programmes.8 Thus, as an incentive to member states to commit themselves to higher contributions, the fair return principle contributes to the Agency’s success.9 The industrial policy of the EC, on the other hand, is based on free competition and the free movement of goods and services among member states.10 In the field of research and technological development (RTD), however, certain instruments are considered to resemble the principle of geographic distribution to a certain extent.11 The first question to be examined concerns the applicability of EC law to ESA and vice versa. The closer the two organisations cooperate the more their legal regimes might interfere.
8
Article IV para. 6 Annex V to ESA Convention. E. Morel de Westgaver/P. Imbert, Le ‘‘juste retour’’: contrainte ou ! instrument d’integration europeene? ESA bulletin 59 (1989), pp. 62, 64. 10 Articles 28, 49, 87 EC. 11 Bernhard Schmidt-Tedd, Rechtliche Implikationen der gemeinsamen ESA/EU-Raumfahrtsstrategie, ZLW 2001, pp. 202, 208. 9
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Moreover, questions arise as to whether ESA’s industrial policy and the EC’s common market rules, such as the free movement of goods and services granted by the EC Treaty, are consistent and whether the EC rules on state aid apply and, if so, which exceptions might be pertinent. Furthermore, the EC secondary law on public procurement and the provisions on research and technological development might be relevant to ESA’s practice. These questions may lead to different results depending on which of the models of institutional cooperation mentioned above is favoured. Should the research come to the conclusion that the rules do not comply the necessary and possible measures to overcome the conflict of norms will be assessed. These include modification of the ESA and EU treaties as well as measures that could be adopted without such major changes or the need for ratification by all member states.
5. Conclusion What the ESA–EU institutional structure will look like in the end is a political decision of the national governments involved. In order to provide for a base for these decisions the research project, it will determine the legal framework for each model and propose possible solutions for the respective legal problems.