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Working Paper No. 25 – April 2009
THE EVOLUTION OF EUROPEAN SPACE GOVERNANCE: POLICY, LEGAL AND INSTITUTIONAL IMPLICATIONS
Florent Mazurelle Jan Wouters
Walter Thiebaut
THE EVOLUTION OF EUROPEAN SPACE GOVERNANCE: POLICY, LEGAL AND INSTITUTIONAL IMPLICATIONS
Florent Mazurelle, Jan Wouters and Walter Thiebaut1 ABSTRACT
This contribution addresses the emergence and challenges of European space
governance, of which the framework and ambitions have been laid out in the recently
adopted European Space Policy (ESP). The authors explore the legal and
institutional challenges linked to the further evolution of European space
governance. In doing so, they first provide an overview of the challenges arising out
of the conceptual interactions between European governance and space
governance. Next, the authors discuss the past and present legal set-up of Europe in
space. Finally, they consider the effect of the ESP on future governance, including
the possible implications of the Lisbon Treaty. The contribution concludes that the
future of space governance in Europe requires a novel legal solution which will have
substantial repercussions on how decision-makers perceive the Union and its
strategic role.
KEY WORDS
European Space Policy – European governance – space governance - Lisbon Treaty
AUTHOR(S)
Florent Mazurelle is International Law expert and Space Policy analyst at the
European Space Agency.
Jan Wouters is Professor of International Law and International Organizations, and is
Director of the Leuven Centre for Global Governance Studies and the Institute for
International Law at the University of Leuven. ([email protected])
Walter Thiebaut is former practical lecturer in Space Law at the University of Leuven.
© 2009 by Florent Mazurelle, Jan Wouters, Walter Thiebaut. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.
1 The views and opinions expressed by the authors may in no way be construed as representing those of their
respective organisations. This contribution will be published in International Organizations Law Review.
2
CONTENTS
1 INTRODUCTION ........................................................................................................... 3
2 EUROPEAN SPACE GOVERNANCE ................................................................................ 6
2.1 THE MEANING OF GOVERNANCE AND SPACE GOVERNANCE .............................................. 6
2.2 THE INTERGOVERNMENTAL NATURE OF EUROPEAN SPACE GOVERNANCE .................... 8
3 PAST AND CURRENT EUROPEAN SPACE GOVERNANCE FRAMEWORKS ........................ 99
3.1 THE WEAK PREMISES OF EUROPEAN SPACE GOVERNANCE .............................................. 9
3.2 ESA AND THE FIRST EUROPEAN SPACE GOVERNANCE REVOLUTION............................ 11
3.3 THE EC-ESA FRAMEWORK AGREEMENT: AN EMBRYONIC RENEWED EUROPEAN SPACE GOVERNANCE ARCHITECTURE .................................................................................. 13
4 IMPLICATIONS OF THE EUROPEAN SPACE POLICY ON GOVERNANCE: PREMISES FOR A
SECOND SPACE GOVERNANCE REVOLUTION ................................................................ 16
4.1 INTRODUCING THE EU IN SPACE POLICY .............................................................................. 16
4.1.1 The EU’s Political Legitimacy and Increasingly Assertive Role in Space ... 16 4.1.2 The European Space Policy: Decades in the Making ................................ 17
4.2 THE EUROPEAN SPACE POLICY AND GOVERNANCE ........................................................... 19
5 THE LISBON TREATY AND ITS IMPLICATIONS ON SPACE .............................................. 21
5.1 AN EU SPACE COMPETENCE ................................................................................................... 22
5.1.1 The “Space Clause” ................................................................................... 22 5.1.2 Scope of the Space Clause ....................................................................... 25
5.2 ENHANCED AND PERMANENT STRUCTURED COOPERATION ............................................. 27
6 CONCLUDING OBSERVATIONS ................................................................................... 29
3
1 INTRODUCTION
Gunther Verheugen, European Commission Vice President and Commissioner for
Enterprise and Industry, who is in charge of the space portfolio within the Barroso
Commission, identified space as an essential tool, rather than a mere instrument in
“manag[ing] the Union”, as well as “one of the critical technologies for the
implementation of several of its policies across Europe.”2 The essence of current
space policy efforts is to create a continuum where “the main public demand for
space solutions will be generated by key Union policies in fields such as transport,
the environment and the Common Foreign and Security Policy (CFSP).”3 Space is
undeniably a strategic tool, and considered as such not only in Europe, but by all
space faring governments. The political nature of space is particularly highlighted in
the programmes of the US,4 India or China.5 Iran’s first launch on 17 August 2008
followed by the placing in orbit of its first satellite on 2 February 20096 adequately
testifies that space remains of great political importance. In fact, it is often
overlooked that space technologies are but tools for the implementation of strategic
policies,7 as vectors of innovation and as sources for knowledge and progress. In
short, “space is a means to various ends, and not an end in itself.”8
2 Gunter Verheugen, Europe’s Space Plans and Opportunities for Cooperation, Space Policy 21
(2005) 93. 3 Gunter Verheugen, Europe’s Space Plans and Opportunities for Cooperation, Space Policy 21
(2005) 93-94. 4 Regarding the US space-dominance doctrine, see generally “U.S. National Space Policy”, available
at (visited 23 May 2007) http://www.ostp.gov, whereby the US President authorized a new national
space policy on August 31, 2006. This document establishes an overarching national policy that
governs the conduct of U.S. space activities and states inter alia that “[t]he United States considers
space capabilities -- including the ground and space segments and supporting links -- vital to its
national interests. Consistent with this policy, the United States will: preserve its rights, capabilities,
and freedom of action in space; dissuade or deter others from either impeding those rights or
developing capabilities intended to do so; take those actions necessary to protect its space capabilities;
respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to U.S.
national interests”. This policy supersedes Presidential Decision Directive/NSC-49/NSTC-8, National
Space Policy, and dated September 14, 1996. See also Alain Dupas, A New U.S. Strategy: ‘Dual Space
Dominance’?, Space News, March 29, 2004. 5 More particularly, the space programmes of India and China are very ambitious and are integral
elements of these governments’ overall geopolitical and economic strategies, which makes these space
programmes very proactive. Regarding the Chinese space programme, see generally R. Handberg and
Zhen Li, Chinese Space Policy: A Study in Domestic and International Politics (Routledge, 2007); see
also Sibing He, What Next for China in Space After Shenzhou?, Space Policy 19 (2003) 183–189;
regarding the Indian space programme, see generally (visited 24 January 2009) <http://www.isro.org>; 6 Nazila Fathi & William J. Broad, “Iran Launches Satellite in a Challenge for Obama,” New York
Times, 4 February 2009. 7 In this sense, we can refer to applications programmes, such as launchers (Arianne), earth observation
and remote sensing (GMES), navigation (Galileo) and satellite communications. These programmes
are means to achieve other policy objectives in e.g. security, sustainable development, crisis
management, education, health, climate change, independent access to space, etc. 8 Wulf von Kried, Which Future for Europe’s Space Agencies?, Space Policy 19 (2003) 160.
4
In Europe, space must serve the policies of the European Union (“EU”)9 and
thus give its institutions the means of playing an increasingly significant role both
domestically and in the world, as reflected in the European Space Policy (“ESP”)
which has recently been adopted.10 As observers have noted, the EU’s “entry into
space is bound to bring about significant changes both in terms of policymaking and
in the way the European public space undertakings are organized.”11 In 2005, while
preparing the ESP, the Commission had indeed already stated that the “necessary
implementation measures to attain the objectives of the European Space Policy will
be taken and will be established by adequate legal instruments. Thus there will be
the opportunity for the current principles of governance in space in Europe to evolve,
while securing long term political recognition for the strategic benefits of space.”12
One of the strategic orientations necessary to reach the goals the ESP has
set out for Europe in space will be to fully consider the challenge of space
governance as some observers still consider that “there are still two captains on the
European spaceship today”13: the European Space Agency (“ESA”) and the
European Commission, both of which are subject to control by different groups of
Member States in various degrees. Scholars have already organised workshops14
and produced various studies on the different models this new European space
governance could take,15 based on the orientations taken by the European
Commission and ESA together.
9 This contribution will generally refer to the “EU” whereas mention will be made to the European
Community, or “EC”, when consideration is given to “first pillar” activities only. As is known, when
the Lisbon Treaty enters into force, the EU will replace and succeed to the European Community:
Article 1, third paragraph, Treaty on European Union, as amended by Treaty of Lisbon amending the
Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13
December 2007 (O.J. 2007, C 306/1). 10 Communication from the Commission to the Council and the European Parliament, “European
Space Policy”, COM(2007) 212, 28 April 2007. 11 Wulf von Kried, Which Future for Europe’s Space Agencies?, Space Policy 19 (2003) 159; see also
generally Hobe S., Schmidt-Tedd B., Schrogl K-U., 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, Cologne, 2003, Documentation 1.c. 12 Communication from the Commission to the Council and the European Parliament, “European
Space Policy – Preliminary Elements”, COM(2005) 208 final, 23 may 2005, at 12-13. 13 Frans von der Dunk, Towards One Captain on the European Spaceship – Why the EU Should Join
ESA, Space Policy 19 (2003) 83. 14 See Kevin Madders & Jan Wouters, Finding a ‘Genuine’ Space Policy for Europe: the European
Space Policy Workshop Series, Space Policy 19 (2003) 41; Jan Wouters & Kevin Madders, Taking
Stock of Europe’s Developing Space Policy: From the European Space Policy Workshops to the
European Space Policy Forum, Space Policy 20 (2004) 31-36. 15 See e.g. Katharina Kunzmann & Thomas Reuter, Creating a legal Framework for a coherent
structure for European Space Activities, Space Policy 20 (2004) 59-61 (describing how a team of the
University of Cologne will tackle the future legal frameworks of European space activities). See also
Prof. Dr. Stephan Hobe, in Jan Wouters & Kevin Madders, Taking Stock of Europe’s Developing
Space Policy: From the European Space Policy Workshops to the European Space Policy Forum,
Space Policy 20 (2004) 33, recalling work carried out regarding future models; see also Stephan Hobe,
5
Decision-making is still in evolution and implementation models (e.g.
European agencies, joint undertakings) are but a second step in integrating space
into the realm of European policies and institutional framework. These need to be
based on the premise of a redefined and clarified European space governance
concept. This is the reason why the present contribution seeks to analyse space
governance itself.
The legal and institutional issues pertaining to the evolution of European
space policy are closely linked to the law of international organisations. Thus the
challenges raised in space are directly remittable to the political and legal
interactions between subjects of international law, contained within the particularly
normative and policy setting of Europe: ESA and the European Community. Such is
the case with these two regional international organisations that both hold
international legal personality, yet are not of the same nature as their respective
Member States. The process through which they are currently joining forces to
redefine its cooperation architecture and a shared institutional framework highlights
issues of direct relevance to public international law research and European studies.
Although the current governance framework has proven its value over three
decades, it may be ill-adapted to reach the ambitions set out in the ESP. We contend
that an embryonic renewed governance framework of space activities in Europe
already exists but that it may need to further evolve so as to optimally reach the
ambitions set out in the ESP. This article therefore explores the legal and institutional
challenges linked to the further evolution of European space governance. It will first
provide an overview of the challenges arising out of the conceptual interactions
between European governance and space governance (2). Subsequently, we will
discuss the past and present legal set-up of Europe in space (3) before considering
the effect of the ESP on future governance (4), including the implications stemming
from the Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community (“the Lisbon Treaty”)16 (5).
Prospects for a European Space Administration, Space Policy 20 (2004) 26-27; see also Kevin
Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 580-83 16 OJ, 2008/C 115/01. Throughout the text, reference will be made to the consolidated versions of the
Treaty on European Union and the Treaty on the Functioning of the European Union, OJ, 2008/C
115/01, 9 May 2008.
6
2 EUROPEAN SPACE GOVERNANCE
2.1 THE MEANING OF GOVERNANCE AND SPACE GOVERNANCE
It is significant that only recently have observers or public officials referred to the
institutional framework of space as “governance”, perhaps because this term
implicitly refers to a decision-making authority, and in the context of European
governance, to a redefinition of sovereign attributions within the scope of European
integration. Yet, the mentioning of “governance” in the ESP17 would indicate an
acceptance that a rationalised approach to space activities with increased EU
involvement has governance implications.
There is no one-size-fits-all definition for “governance” as the concept is
mentioned in an increasing number of areas, from economic development18 to
national institutional frameworks19 or in the context of the activities of European20 or
global organisations.21 Although at least seven different definitions have been given
to it,22 academic literature usually describes governance as “a complex set of
structures and processes, both public and private” even if often used “synonymously
with ‘government’.”23 As explained by prominent social scientists, “governance in its
essence is about the maintenance of collective order, the achievement of collective
goals and the collective process of rule through which order and goals are sought.”24
17 Communication from the Commission to the Council and the European Parliament, “European
Space Policy”, COM(2007) 212, 28 April 2007, at 11. 18 See generally Adrian Leftwich, Governance, democracy and development in the Third
World, Third World Quarterly 14 (3), 605-625; Adrian Leftwich, Governance, the state and the
politics of development, Development and Change 25 (2), 363-386. For examples of definitions by the
World Bank, UNDP, OECD and other institutions, see Thomas G. Weiss, Governance, Good
Governance and Global Governance: Conceptual and Actual Challenges, Third World Quarterly, Vol
21, No. 5, 797-798 (2000). 19 See e.g. Maura Adshead, Brid Quinn, The move from government to governance: Irish development
policy's paradigm shift, Policy & Politics 26 (2), 209-225. 20 Commission of the European Communities, European Governance: A White Paper, COM(2001) 428
final, 7 May 2001; see also e.g. Bulmer, Simon, The governance of the European Union: A new
Institutionalist Approach, Journal of Public Policy 13 (4), 351-380. 21 See e.g. Reinicke, Wolfgang, Francis Deng with Jan Martin Witte, Thorsten Brenner, Beth
Whitaker, John Gersham: Critical Choices: The United Nations, Networks, and the Future of Global
Governance, UN Vision Project on Global Public Policy Networks (International Development
Research Centre, 2000); Regarding global governance, see also generally, Thomas G. Weiss,
Governance, Good Governance and Global Governance: Conceptual and Actual Challenges, Third
World Quarterly, Vol 21, No. 25, 2000, 806-810. 22 See Rhodes, R.A.W. (2000) ‘Governance and Public Administration’, in Pierre, J. (ed.) Debating
Governance. Authority, Steering and Democracy (Oxford: Oxford University Press), pp. 55–63, cited
in Jan Zielonka, Plurilateral Governance in the Enlarged Union, JCMS 2007 Volume 45, Number 1,
at 189. 23 Thomas G. Weiss, Governance, Good Governance and Global Governance: Conceptual and Actual
Challenges, Third World Quarterly, Vol 21, No. 25, 2000, at 795. 24 Rosenau, J.N., Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World
(Cambridge University Press, 1997) at 175, in Jan Zielonka, Plurilateral Governance in the Enlarged
Union, JCMS 2007 Volume 45, Number 1, at 202.
7
The key element which all these definitions of governance share is that it implies a
sharing of power in order to better exercise such power.
Governance has become an increasingly present theme in different domains
because of its perceived importance for the efficient delivery of policies undertaken
in a cooperative manner, i.e. where not one single sovereign State can successfully
achieve a given objective, but where one or several actors are given authority by
sovereign States to take decisions cooperatively: reinforcing and streamlining
governance sets the basis for an appropriate legal infrastructure and sound
interactions among the actors concerned in order to reach commonly agreed goals.25
For the purpose of analysing European space governance, the European
Commission’s definition of governance is of particular interest.26 In its 2001 White
Paper on European Governance, it proposes to characterise European governance
as the rules, processes and behaviour that affect the way in which powers are
exercised at European level, particularly as regards openness, participation,
accountability, effectiveness and coherence.27 These five “principles of good
governance” reinforce the well-known EU law principles of subsidiarity28 and
proportionality.29 The aforementioned definition is directly relevant to space, a
domain best characterized in Europe by joint and conflicting Member State interests
as well as the layering of multiple actors, both at the national, European and
international level,30 resulting in a multiplication of roles and responsibilities that may
adversely affect the management and carrying out of collaborative space
programmes.
25 The definition given by the Commission on Global Governance also clearly illustrates the issues at
hand: Commission on Global Governance, Our Global Neighbourhood, (Oxford University Press,
1995, 2): “Governance is the sum of the many ways individuals and institutions, public and private,
manage their common affairs. It is a continuing process through which conflicting or diverse interests
may be accommodated and co-operative action may be taken. It includes formal institutions and
regimes empowered to enforce compliance, as well as informal arrangements that people and
institutions either have agreed to or perceive to be in their interest.” 26 However, note that some scholars have considered this as an example of schizophrenia: “It
advocates the progressive adoption of new forms of governance, such as self-regulation, co-regulation,
the open method of co-ordination and independent regulatory agencies. However, it also wants to
enhance the old and rather rigid ‘Community Method’ which envisages a strong central authority
managed by the Commission itself.” Jan Zielonka, Plurilateral Governance in the Enlarged Union,
JCMS 2007 Volume 45, Number 1, at 188. 27 Commission of the European Communities, European Governance: A White Paper, COM(2001) 428
final, 7 May 7 2001. 28 This principle, pursuant to Article V of the EC Treaty (Rome Treaty, 25 march 1957) OJ 321 E/3 29
December 2006, provides that the Community can only act if the specific competence was assigned to
it. National competence is therefore the rule, Community competence the exception. 29 See generally Article 5 of the Treaty establishing the European Community; see also Protocol (No
30) on the application of the principles of subsidiarity and proportionality (1997), annexed to the
Treaty establishing the European Community. 30 Kevin Madders & Jan Wouters, Finding a ‘Genuine’ Space Policy for Europe: the European Space
Policy Workshop Series, Space Policy 19 (2003) 42: “These actors include national space agencies and
other organizations, like Eumetsat, not to mention other institutions and bodies of the European Union
and nongovernmental organizations and interests.”.
8
Considering this complex and versatile notion of governance, and in the
interests of this contribution, European space governance will be considered under
its aspects of institutional law and European integration. More particularly,
consideration will be given to how decision-making power is effected through a
specific legal governance scheme, for which a definition can be proposed: European
space governance is the combination of the legal norms that emanate from
international, European and national legal frameworks which, together, organise a
coherent European decision making process in both space policy and programmatic
activities.
2.2 THE INTERGOVERNMENTAL NATURE OF EUROPEAN SPACE GOVERNANCE
Although space activities are fundamentally within the realm of Member State
competence - mostly implemented through ESA or at national level - this does not
exclude EU involvement in such activities, e.g. research and development, a
competence provided by the EC Treaty31 and implemented through the Framework
Programme instrument. Similarly, the funding of the Galileo programme through the
Community’s competences in the area of transport policy.32 However, it should be
emphasised that these activities have specifically been agreed upon by EU Member
States and implemented through comitology,33 which ultimately gives Member States
a large share of the responsibility in the implementation of Community
programmes.34
There is not a single “identifiable centre of authority with a built-in hierarchy
and division of tasks”35 which constitutes the leading identifiable element of
hierarchical governance. Instead, decision-making is very diffuse, taking place
collectively through public international law principles within ESA or the EU and their
respective governing rules, wherein Member States retain control to a very large
extent. There are indeed different layers of space activities and different actors with
31 Title XVIII of the Treaty establishing the European Community.
32 Title V of the Treaty establishing the European Community.
33 See Andrea Hamann, Hélène Ruiz Fabri, Transnational Networks and Constitutionalism,
International Journal of Constitutional Law, July-October, 2008, 481-508, at fn. 65, which defines
comitology as “the procedure whereby the European Commission involves national administrations in
preparing implementation of EU legislation. Such legislation often instructs the Commission to work
with a committee of representatives of member states to ensure that implementation measures are
appropriate to the situation in each affected country.” See also generally Council Decision of 28 June
1999 laying down the procedures for the exercise of implementing powers conferred on the
Commission (1999/468/EC; OJ L 184/23 of 17 July 1999). 34 Regarding comitology, see e.g. Thomas Christiansen, Tensions of European Governance: Politicized
Bureaucracy and Multiple Accountability in the European Commission, Journal of European Public
Policy 4:1, March 1997, at 84. 35 Jan Zielonka, Plurilateral Governance in the Enlarged Union, JCMS 2007 Volume 45, Number 1,
191.
9
decision-making authority (national governments, industry, service providers, private
and public users, intergovernmental agencies such as ESA or Eumetsat,36 and
different actors within the EU itself).
As a European intergovernmental organisation, ESA emanates from the
collective will of its Members, who in turn are in control of a more fundamental power
play across Europe regarding national competences and how Member States share
these with the international organisations they have created. One can thus argue
that Member States have been quite reluctant in supporting initiatives towards a
renewed space governance system precisely because “governments of Member
States fear that new modes of governance will shift power from the European
Council to various networks which cannot be fully controlled by them.”37 Political
ramifications go well beyond the area of space as such challenges are ultimately an
issue of whether the supranational capabilities of the EU will in the end be reinforced
with respect to national competences. The particularity of European space
governance is that it is based on interactions firmly anchored in principles of
international law: European States, as sovereign subjects of international law, have
always decided how to organise their cooperation to conduct, together, space
activities through intergovernmental systems. This testifies to the fact that they
regard space as intrinsically strategic, so much so that they strive to cooperate in
space through legal frameworks that would guarantee their control over space
decision-making.38
3 PAST AND CURRENT EUROPEAN SPACE GOVERNANCE FRAMEWORKS
3.1 THE WEAK PREMISES OF EUROPEAN SPACE GOVERNANCE
Up until the early 1960s, European space activities were conducted solely by States,
as a pure exercise of sovereignty in global interactions and substantially for their
military spin-offs, particularly between space launchers and ballistic missiles.39
36 European Organisation for the Exploitation of Meteorological Satellites, see generally the
Convention For the Establishment of a European Organisation for the Exploitation of Meteorological
Satellites (EUMETSAT) as amended by the EUMETSAT Council in Resolution EUM/C/Res. XXXVI
of 5 June 1991, and subsequently accepted by all EUMETSAT Member States. 37 Jan Zielonka, Plurilateral Governance in the Enlarged Union, JCMS 2007 Volume 45, Number 1,
197. 38 In this sense, space can also be compared to the domain of security. If an area is felt fundamentally
strategic to a sovereign state or group thereof, these governments will be considerably less inclined to
reform an intergovernmental architecture in order to conserve control over that area. 39 See generally Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997),
3-37.
10
Space was politically driven by the confrontations of the Cold War: “[f]or both the
United States and the Soviet Union, space was an important field of political and
military confrontation… However, some of the major European countries had
considerable potential for entering the space age in the late 1950s and did develop
limited national space programmes,”40 with the United Kingdom and France as
Europe's space pioneers.
Several European States, however, taking into account the large benefits of
cooperation in space, created two separate European organisations, the European
Space Research Organisation (“ESRO”) and the European Launcher Development
Organisation (“ELDO”) in order to join strengths and capabilities. As parallel, national
efforts increased within several domains, and alongside the cooperative frameworks
of ESRO and ELDO,41 such illustrated the weak governance model of European
space efforts and attempts at full-fledged cooperation. Different crises rocked the
ELDO framework as European States battled over an atlanticist approach (defended
by the United Kingdom) or a European integration model (defended by France).
Nevertheless, space has long been considered fundamental to the interest of
the EU/EC, as illustrated by Recommendation 130 of the Assembly of the Western
European Union (“WEU”) adopted on 14 June 1966. The Recommendation called for
WEU governments to “[p]repare for the inclusion of a permanent European space
vehicle launcher development organisation within the framework of a future single
European Community.”42 Already, policy-makers had considered the EC as Europe’s
space leader. European States, however, did not go as far. From the onset, space
cooperation in Europe was to be dissociated from European integration. While the
Treaty of Rome, establishing the European Economic Community (“EEC”), was
signed in Rome on 25 March 1957, the ELDO Convention was signed on 29 March
1962 and the ESRO Convention on 14 June 1962. At that time, negotiations were
still ongoing regarding the United Kingdom’s accession to the European
Communities, which was rebuffed by Charles De Gaulle in January 1963,43 although
the UK was a founding party to the ESRO44 and ELDO45 Conventions. Thus, two
diverging paths were being forged: the European Communities and
intergovernmental cooperation on space, both of which were considered as separate
40 A History of the European Space Agency, vol. 1 (ESA SP-1235) 9.
41 See generally Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997),
78-89. 42 WEU Assembly, Proceedings, 13
th Ordinary Session (1966), Vol. 2 (Documents), Doc. 389, pp. 152-
3, cited in Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 121. 43 Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997) 41.
44 A History of the European Space Agency, vol. 1 (ESA SP-1235) 67.
45 A History of the European Space Agency, vol. 1 (ESA SP-1235) 105.
11
by European decision-makers and paving the way to decades of parallel
governance.
The responsibility over the political dimension of space was thereafter
conferred to a third entity, keeping the EEC on the sideline: the European Space
Conference (“ESC”),46 born under the auspices of ELDO in 1966 in response to its
first crisis.47 The ESC “became the dominant forum for Europe’s space community
from 1967 to 1975” in order “to develop the comprehensive space policy that had
been lacking in Europe since the beginning.”48 The ESC brought space to a new
policy dimension in Europe. It recognized its importance and strategic backdrop and
had the subject directly dealt with by ministers, as is still the case today. Following
almost a decade of tribulations of this unmanageable ESRO-ELDO-ESC troika,
Member States decided to create a single entity, bringing together the mandates of
all three organisations: the European Space Agency, signalling the first revolution in
European space governance.
3.2 ESA AND THE FIRST EUROPEAN SPACE GOVERNANCE REVOLUTION
Today, despite an evolution towards increased EU involvement, the ESA
architecture remains the very foundation of European space governance. The ESA
Convention, which was opened for signature in Paris on 30 May 1975 and which
entered into force on 30 October 1980,49 together with the Terms of Reference and
Rules of Procedure of the ESA Council and subordinate bodies,50 provides the legal
framework for decision-making processes within ESA.51 These procedures
guarantee the binding effect of decisions taken in the ESA Council and subordinate
bodies. As its decision-making provisions show, it is the legal pinnacle of space
activities set up as an intergovernmental activity: Member States are at the heart of
the ESA system and ESA itself, as a subject of international law, does not have a
wide range of autonomous competences. In essence, the ESA decision-making
46 Kevin Madders A New Force at a New Frontier (Cambridge University Press, 1997), 122.
47 Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 149.
48 Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 149.
49 The text of the ESA Convention (Ref. CSE/CS(73)19, rev. 7) was approved by the Conference of
Plenipotentiaries held in Paris on 30 May 1975; 14 ILM 864 (1975). In accordance with Resolution
No. 1 of the Conference of Plenipotentiaries, the European Space Agency (ESA) functioned de facto
from 31 May 1975. The ESA Convention entered into force on 30 October 1980. 50 Pursuant to Rule 24 of the ESA Council Rules of Procedure, there are four plenary subordinate
bodies in ESA: the Science Programme Committee (SPC), the Administrative and Finance Committee
(AFC), the Industrial Policy Committee (IPC) and International Relations Committee (IRC). Under
Article XI.8(a) of the ESA Convention only the SPC has decision-making authority upon delegation by
the Council. All other subordinate bodies, created sui genersis pursuant to Article XI.8(b) of the ESA
Convention, can only recommend a decision to Council, ESA’s final decision-making authority.. 51 For optional programmes, Member States have also created specific Programme Boards where
Participating States take programmatic decisions pursuant to Article XI.8(b) of the ESA Convention.
12
framework is constructed in such a way that Member States either make all
significant decisions or delegate them to the ESA Director General, an organ of the
institution.52 Either way, Member States remain the deciders, with the Director
General as the one who initiates decisions.
The ESA Convention is a cooperative agreement among its Member States.
Article V of the Convention enables all ESA Member States to cooperate at will on
any given activity, apart from the scientific programme (mandatory for all Member
States with contributions based on GDP).53 The Convention hence solves the need
to undergo a new ratification process for each new cooperation activity, which would
require a new treaty under international law, with its national ratification processes,
as was the case under ESRO. The ESA Convention thus serves as a legal umbrella
allowing permanent cooperation activities in space among its Member States and
with third parties in a simplified legal manner.
The force of the ESA system is its flexibility, which stems from a balance
between mandatory and optional activities,54 the latter totalling the large majority of
space investments by Participating States.55 Under this system, a country may invest
as much as it wishes in the programme although the Convention takes GDP as a
starting base. The percentage of funds invested by a country to a given programme
is then redistributed to industries under its jurisdiction through the “fair return”
mechanism,56 whose implementation is under constant evolution and refinement.
The combination of this industrial policy principle together with optional programmes
has assured steady public investments in space over the past three decades.57
The central element that determines ESA’s governance architecture is its
voting system. Two basic principles guide the decision-making procedures by force
in the Agency: the intergovernmental nature of the Agency’s structure and its
majority rule. The basic principle of decision-making in the Agency is the one
Member one-vote rule, provided for under Article XI.6(a) of the Convention, which
stems from the public international law principle of sovereign equality, according to
52 ArticleX of the ESA Convention: “The organs of the Agency shall be the Council, and the Director
General assisted by a staff.” 53 Article XIII.1 of the ESA Convention.
54 See Article V.1 of the ESA Convention. In addition, the ESA Director General is directly nominated
by Member States, owing its legitimacy to Member States, and is thus responsible before them (Article
XII.1(a) of the ESA Convention). 55 Member States participating in an ESA optional programme or referred to as “participating states”.
56 See Annex V of the ESA Convention.; see also generally E. Morel de Westgaver, P. Imbert, Le
“juste retour”: contrainte ou instrument d’intégration européenne?, ESA Bulletin 59 (1989), 62-67 ;
see also Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 209. 57 It should however be highlighted that this industrial policy principle is a central contentious issues
concerning the future governance between ESA and the EU. Each institution’s legal norms regarding
procurement have very different consequences on Member States, the competitiveness of their
respective industries and their market shares. It is thus likely that a renewed governance system will
first require a political decision with respect to Europe’s industrial policy.
13
which there are no other relevant criteria in determining a Member’s voting power but
the very sovereignty of a State.
However, like ESRO and ELDO, it has been argued that ESA lacks a real
capacity to conduct space policy, a fact underlined in the European Commission’s
first Communication on Space as early as 1988.58 The political dimension of space
boldly illustrates European trials and tribulations regarding a political vision for
Europe and its integration into a viable model of governance. If history shows us that
“Europe was not ready for such a unifying policy”59 in space, it also shows that
integration in Europe is a key underlying issue, and probably the key solution,
constantly torn between sovereign reflexes of national competences and a subliminal
wish to carry Europe forward as a united and hence more powerful entity capable of
resisting contemporary geostrategic pressures and serve as a model in tackling
global challenges. As early as 1970, however, the European Commission was
invited to the ESC meetings,60 an indication that although separately maintained,
Member States knew that it was difficult to keep the two realms free from influence.
3.3 THE EC-ESA FRAMEWORK AGREEMENT: AN EMBRYONIC RENEWED EUROPEAN
SPACE GOVERNANCE ARCHITECTURE
Today’s ESA-EC cooperation system is based on the ESA/EC Framework
Agreement,61 which was signed in November 2003 and entered into force in May
2004 and is up for automatic renewal for 2008-2012.62 It establishes the Joint
Secretariat, the High Level Space Policy Group (“HSPG”) and the Space Council as
an institutional mechanism for cooperation.
The Space Council is defined as “joint and concomitant meetings of the
Council of the European Union and of the Council of ESA at ministerial level.”63 The
HSPG is not mentioned per se but stems from the need for the Joint Secretariat64 to
“consult on a regular and informal basis high-level representatives of the Member
States of the European Community and of the European Space Agency, with the
purpose of reaching common understanding on issues related to the
58 Communication from the Commission, “The Community and Space: A Coherent Approach”,
COM(88) 417 final, 26 July 1988. 59 Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 214.
60 Kevin Madders, A New Force at a New Frontier (Cambridge University Press, 1997), 569.
61 Official Journal of the European Union, 6 August 2004, L 261, at 61-68.
62 Article 12 of the EC-ESA Framework Agreement. This was supported by EU and ESA Member
States, see Resolution on the European Space Policy, 25 May 2007, at para. 12. 63 Article 8.1 of the EC-ESA Framework Agreement. The competences of the Space Council are
described in Article 8.2 of the EC-ESA Framework Agreement. 64 The Secretariat is provided for by Article 8.3 of the EC-ESA Framework Agreement.
14
implementation”65 of the Framework Agreement. In practice, the Joint Secretariat
prepares common positions that are submitted and discussed by EU and ESA
Member State Delegations in the HSPG, thus preparing the decisions of the Space
Council as well as the steady implementation of the Framework Agreement.66
The EC-ESA Framework Agreement is in itself an embryonic renewed
European space governance architecture. Formally, however, the Agreement simply
draws a bridge between two organisations “fully respecting their institutional settings
and operational frameworks.”67
Member States have reiterated this institutional philosophy based on a
utilitarian approach68 when the Space Council identified roles to both ESA and the
EU thereby touching upon one of the key elements of governance: roles and
responsibility. This fact makes clear that Member States as well as ESA and
European Commission officials have elaborated upon their merging ties - the
essence of the ESP - around the interaction between actors, organising a multi-
layered governance.
In broad terms, the Commission has focused its involvement in space on a
number of key applications (e.g. in the areas of navigation and Earth observation),
with the founding elements (including some applications such as access to space)
and scientific responsibilities remaining ESA competences.69 The root of the
distinction is that the EU federates user demand while ESA performs research and
development activities necessary to meet the requirements of the users. Although
the Framework Agreement provides that the EC and ESA will cooperate in science,
technology, earth observation, navigation, communication by satellite, human space-
flight and micro-gravity, launchers and spectrum policy,70 Member States have
nonetheless curtailed this holistic approach with a more restrictive allocation of
responsibilities: the Space Council, on 7 June 2005, decided that the EU “will use its
full potential to lead in identifying and bringing together user needs and to aggregate
the political will in support of these (…) policy objectives… it will be responsible for
65 Article 8.4 of the EC-ESA Framework Agreement.
66 Article 1.1 of the EC-ESA Framework Agreement.
67 Article 1.2 of the EC-ESA Framework Agreement; see also Articles 2.1, 2.2 and 4.3 of the EC-ESA
Framework Agreement. 68 Article 1.1 of the EC-ESA Framework Agreement, whereby the European space policy must link
political and user “demand” with technical “supply” of space assets. 69 On 26 September 2008, the Space Council has welcomed the European Commission’s proposal to
“organise a high level political conference on a long term global vision for space exploration, opening
a public debate on the European role in this global endeavour, and based on appropriate preparatory
studies coordinated by ESA to assess the European domains of excellence, and elaborate different
scenarios for a European contribution with associated costs and planning.” This in effect blurs the
premises of how the EU and ESA had set out respective roles and responsibilities, but also shows that
the ESP and governance is an ever evolving process. See Space Council Resolution on Taking Forward
the European Space Policy, 26 September 2008, 13569/08. 70 Article 3.1 of the EC-ESA Framework Agreement.
15
ensuring the availability and continuity of operational services supporting its policies,
and will contribute to the development, deployment and operation of corresponding
dedicated European space infrastructure, in particular for Galileo and GMES. It will
also pursue an optimum regulatory environment to facilitate innovation, access to
international markets and the effective coordination with ESA of the European
position in international fora.”71 ESA, on the other hand, “and its Member and Co-
operating States will develop space technologies and systems, supporting innovation
and global competitiveness and preparing for the future. Their activities will focus on
exploration of space and on the basic tools on which exploitation and exploration of
space depend: access to space, scientific knowledge and space technologies. They
will pursue excellence in space-based scientific research. On a voluntary basis, they
will support the technological preparation, including validation, of space systems
responding to user needs, including those relevant to EU policies.”72
This state of affairs, under constant evolution,73 appears to be the result of a
pragmatic division of labour: although some areas are conceptually within the
strategic remit of an EU political responsibility, such as an autonomous access to
space capacity, which could quite naturally be considered as a common and
collective European political and budgetary responsibility, remains to date an ESA
responsibility.
European space governance is therefore currently evolving on the premises
of two different dynamics. First, new players with political legitimacy can bring to
space a new flux of political coherence and institutional investments. This is a key
reason behind the recent strengthening of ties between the EU and ESA. Second,
space is a strategic asset and must be part of the toolbox of the EU if Europe wants
to play a more prominent role in the world through its various external policies. The
latter issue is also a factor slowing down renewed space governance in Europe:
space will truly become a strategic asset when the EU has clarified for itself its
political role, in other words when a “political Europe” has clearly emerged. In that
sense, the key issue is European governance, and not specifically space
governance.
71 Orientations from the second Space Council, 7 June 2005, at para. 3.
72 Orientations from the second Space Council, 7 June 2005, at para. 3.
73 See Space Council Resolution on Taking Forward the European Space Policy, 26 September 2008,
13569/08, which explores new avenues for the European Union in space, in e.g. exploration.
16
4 IMPLICATIONS OF THE EUROPEAN SPACE POLICY ON GOVERNANCE: PREMISES FOR A
SECOND SPACE GOVERNANCE REVOLUTION
4.1 INTRODUCING THE EU IN SPACE POLICY
4.1.1 The EU’s Political Legitimacy and Increasingly Assertive Role in Space
A genuine European space policy has been on the agenda for the past two decades.
It was becoming increasingly clear, especially since the end of the Cold War, that
Europe had “not achieved its full potential in this field, in part because of
haemorrhages in support on the part of the states on which it most depends, in part
because of the absence of a common guiding vision.”74 Furthermore, ESA’s technical
nature has adversely affected its policy-making abilities: it is not politically-
responsive because it has no formal political link with European society as a whole.
The EU system, however, through its institutions and organs (the European
Parliament, the Economic and Social Committee, the Committee of Regions) as well
as through the sheer scope of its policies, has a clear substantial connection to
European society itself, not just Member State interests as expressed in the Council
of Ministers. It thus appeared that the EU was a better suited player to provide
Europe with a sustainable and genuine space policy, one around which Member
States and citizens could find a common political understanding and vision. Because
the EU’s legitimacy stems from a political consensus in Europe and because its
policy-driven activities need the support of space assets, the EU would naturally be a
better driver for a space policy.75
This rationale can be illustrated through two elements. First, space is
strategic, and as such, the demand for space systems, and therefore their
continuous development, must be based on clear strategic objectives of a global
74 Kevin Madders & Jan Wouters, Finding a ‘Genuine’ Space Policy for Europe: the European Space
Policy Workshop Series, Space Policy 19 (2003) 41. 75 See already the Communication from the Commission to the Council and the European Parliament
“The Community and space: a coherent approach,” 12 July 1988, (COM(88) 417 def.), where it is
stated that the Community, as “both the clearest expression and most powerful instrument of European
integration, and a major political structure firmly anchored through Parliament in Europe’s
democratic life”, could give added value if it were “to put the full weight of its democratic legitimacy
and of its established role in European society behind the ambitious new programmes which the ESA
has decided to launch, and to further enhance, by strengthening its links with the ESA, the political
credibility of Europe’s space effort on the international stage” (p. 11). It may be noted that the
Commission’s Communication came at the request of the European Parliament: see Resolution A2-
66/87 of 17 June 1987 on European space policy (O.J., 1987, C 190/78).
17
nature. Defence and security are the best examples of such a strategic rationale,76
and are for example deeply embedded in the US space policy.77
Second, although ESA has clearly proven its ability to implement ambitious
and successful space programmes, it has also displayed, over time, difficulties in
elaborating a comprehensive and solid space policy.78 Several reasons account for
this shortcoming, including a reluctance regarding security programmes and the fact
that ESA Member States are generally represented by their research ministries
rather than more strategy-minded national policymakers: observers have noted that
“one might (…) question the current practice of giving responsibility for space to
research ministries (…) when science and research clearly have only a minority
share of space activity”79 and that the “EU intends to fill the policy void which ESA,
because of its administrative character, cannot make good.”80 ESA’s sole political
body, in fact, remains the Council at ministerial level, which only takes place every
few years.81 Furthermore, the ESA architecture, although flexible and innovative,
concentrates decision-making power in programmes, through the decision-making
authority of Programme Boards,82 which concentrate attention on the technical and
budgetary challenges of a specific programme, seldom on global policy challenges to
which specific programmes are meant to contribute.
4.1.2 The European Space Policy: Decades in the Making
Although the EEC first began participating in space research as of 1979,83 the
earliest calls for a European space policy date back to 1988,84 “a truthful admission
76 See generally G. Brachet, B. Deloffre, Space for Defence: a European Vision, Space Policy 22
(2006) 92-99. 77 See generally “U.S. National Space Policy”, available at (visited 23 May 2007)
http://www.ostp.gov. 78 Article II of the ESA Convention states that ESA will inter alia implement its mandate “by
elaborating a long-term European space policy.” 79 Alain Gaubert, Public Funding of Space Activities: A Case of Semantics and Misdirection, Space
Policy 18 (2002) 292. 80 Wulf von Kried, Which Future for Europe’s Space Agencies?, Space Policy 19 (2003) 160.
81 Article XI(2) of the ESA Convention.
82 Programme Boards are created pursuant to Article XI.8(b) of the ESA Convention; regarding
Programme Boards, see generally Kevin Madders, A New Force at a New Frontier (Cambridge
University Press, 1997), 201. 83 See Proposition for the Resolution of 25 April 1979 on the Community's participation in space
research, OJ C 127 of 21 May 1979, p. 42. 84 Communication from the Commission to the Council and the European Parliament, “The European
Community and Space: A Coherent Approach,” COM(88) 417 final; see also generally A History of
the European Space Agency, vol. 2 (ESA SP-1235) 676-78. See also earlier involvement by the
European Parliament: Resolution of 17 September 1981 on Europe's space policy, OJ C 260 of
12.10.1981, p. 102. The European Parliament adopted further Resolutions pertaining to space policy:
Resolution of 17 June 1987 on Europe's space policy OJ C 190 of 20.07.1987, p. 78; Resolution of 22
18
that there was no proper policy,”85 with subsequent Communications in 199286 and
1997.87 Although these Communications had little effect in practice, the Commission
and ESA nonetheless began a dialogue regarding space policy following a 1998
request by the EU Council.88 In 1999, a Commission Working Document first outlined
preliminary conclusions regarding the importance of space and the coordination
between the Commission and ESA.89 An early proponent of a European space
policy90, the European Parliament has also taken stock of these evolutions and
strongly supported the Commission in developing Europe’s space policy.91 Finally, a
significant first step was crossed on 16 November 2000, when the Councils of the
EU and ESA adopted two complementary Resolutions on a European Space
Strategy92, setting up a Joint Task Force, a first joint forum for discussion, which
would later be transformed into the Joint Secretariat under the EC-ESA Framework
Agreement.93
Greater momentum was reached with the Green94 and White95 Paper
processes on European space policy which led to greater ESA-Commission
cooperation.96 More specifically, the Green Paper process was instrumental in
bringing together stakeholders, observers and analysts around the issue of how to
increase the relevance of space in Europe. A dedicated Green Paper workshop took
place in Rome on 28 April 2003 regarding institutional matters, which highlighted the
key role of the EU in space, that space policy ought to be guided by the highest
political authorities, and that ESA should become the space agency of the EU, hence
tackling the governance issue as an underpinning element for success of European
October 1991 Europe's Space Policy, OJ C 305 of 25.11.1991, p. 26; Resolution of 6 May 1994 on the
Community and Space, OJ C 205 of 25.7.1994, p. 467. 85 Walter Thiebaut & Jan Wouters, A Black Hole Where EU Space Policy Should Be, European Voice,
Vol. 12 No. 42, 16 November 2006. 86 Communication from the Commission to the Council and the European Parliament, “The European
Community and Space: Challenges, Opportunities and New Actions,” COM(92) 360 final. 87
Communication from the Commission to the Council and the European Parliament, “The European
Union and Space: Fostering Applications, Markets and Industrial Competitiveness,” COM(96)617
final. For an overview, see Jan Wouters, The EU and Space Policy: Constitutional and Institutional
Aspects, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Legal Aspects of the
Future Institutional Relationship between the European Union and the European Space Agency, Cologne,
Institute of Air and Space Law, 2003, 17-33. 88 2109
th Council Meeting, Research, Luxembourg, 22 June 1998.
89 Commission Working Document, “Towards a Coherent European Approach for Space,”
SEC(1999)789 final. 90 See Resolution of 17 September 1981 on European space policy, OJ C 260, 12.10.1981, p. 102.
91 See e.g. European Parliament Report on the Commission Working Document, “Towards a Coherent
European Approach for Space,” 19 April 2000, A5-0119/2000. 92 OJ (EC) C 371/2, 23.12.2000; ESA/C-M/CXLVIII/Res.1 (Final).
93 Article 8.3 of the EC-ESA Framework Agreement.
94 EC Green Paper: European Space Policy, COM(2003) 17 final, 21 January 2003.
95 EC White Paper on Space: A New European frontier for an Expanding Union – An Action Plan for
Implementing the European Space Policy, COM(2003) 673, 11 November 2003. 96 OJ C 149, 21.6.2003, p. 10.
19
space efforts.97 Testimony of the closer ties between the two institutions, the EC-
ESA Framework Agreement, whose kick-off discussions began in September 2002,
was finalised in the wake of this process, paving the way for the drafting of the ESP.
On 28 April 2007, the European Commission adopted the ESP, as a
Communication to the Council and European Parliament.98 This policy has been
thought out and drafted in close cooperation with ESA and Member States through
the mechanisms of the EC-ESA Framework Agreement. On 22 May 2007, after a
process lasting approximately 18 months, EU and ESA Member States assembled in
the Space Council welcomed and supported the ESP through a Resolution adopted
by consensus as presented by ESA and the Commission.99 This process may seem
somewhat peculiar, but is in fact respectful of governing law regimes: the ESP
Communication, adopted by the Commission, is only politically binding upon the
latter, which, through a communication, informs other EU institutions of a specific
policy orientation; in order for the ESP to have relevance to Member States, the
primary actors of space in Europe, the Space Council needed to issue a resolution
referring to the European Space Policy, and hence render this policy orientation
binding – at least politically - upon the Member States themselves.
4.2 THE EUROPEAN SPACE POLICY AND GOVERNANCE
The White Paper process had suggested a rather ambitious governance revamping.
It outlined two phases of critical importance: phase one (2004-2007) where ESA
remains the implementing agency of the Union for space matters in the
implementation of the Framework agreement, and phase two (2007-onwards), which
“will begin with the coming into force of the proposed European Constitutional
Treaty, establishing space as a shared competence between the Union and the
Member States, if the draft Treaty of the Convention on the future of Europe is
followed. ESA should then be positioned within the EU framework and its Convention
modified accordingly.”100 In 2005, the Preliminary Elements to the ESP went as far
as describing potential governance scenarios.101
As early as 7 June 2005, Member States invited “the Joint Secretariat in close
consultation with the High-level Space Policy Group to identify possible cost-efficient
97 See Annex III of the EC White Paper on Space: A New European frontier for an Expanding Union –
An Action Plan for Implementing the European Space Policy, COM(2003) 673, 11 November 2003. 98 COM(2007)212.
99 Resolution on the European Space Policy, 25 May 2007, 10037/07.
100 EC White Paper on Space: A New European frontier for an Expanding Union – An Action Plan for
Implementing the European Space Policy, COM(2003) 673, 11 November 2003, at 38. 101
Communication from the Commission to the Council and the European Parliament, “European
Space Policy – Preliminary Elements”, COM(2005) 208 final, 23 may 2005, at 13.
20
scenarios for optimising the organisation of space activities in Europe in the future
and to initiate a wide-ranging appraisal of these in comparison to present processes,
taking all relevant factors into account.”102 By contrast, in 2007, during the wake of
the failed European Constitutional Treaty (the negative outcomes of the French and
Dutch referenda severely curtailing EU Member States’ political ambitions and
audacity), the ESP provided for a governance chapter of limited scope. The ESP
simply recalls the now long-standing proviso regarding respective competences.103
At best, it is redundant in light of previous Space Council orientations; at worse, it
perhaps suggests a step backwards in light of the White Paper outputs.
However, the ESP concedes that the “different approaches, separate legal
processes and divergent membership of the EU and ESA can lead to cumbersome
decision making processes”, thereby emphasizing that the current cooperation
framework, while useful, suffers from too many obstacles for an efficient governance
system. It therefore calls for a “clear framework to ensure efficient policy making and
programme management.”104 The ESP does not offer particular future institutional
solutions, as had sometimes been the case in the past,105 but simply recalls the need
to conduct “an appraisal of the main possible cost-efficient scenarios for optimising
the organisation of space activities in Europe and adapting the EU-ESA relationship
accordingly” as had been requested by the June 2005 Space Council,106 a rationale
welcomed by Member States.107 More recently, ESA and EU Ministers, assembled in
the Fifth Space Council on 26 September 2008, have reiterated the need to further
address the issue of governance.108
102
14499/1/05 RECH 214 ENV 532 COSDP 814 TRANS 235 REV 1, at para. 5. 103
The ESP states that the “EU will use its full potential to lead in identifying and bringing together
user needs and to aggregate the political will in support of these and of wider policy objectives” while
“ESA and its Member and Co-operating States will develop space technologies and systems,
supporting innovation and global competitiveness and preparing for the future.” Communication from
the Commission to the Council and the European Parliament, “European Space Policy”, COM(2007)
212, 28 April 2007, at 11. 104
Communication from the Commission to the Council and the European Parliament, “European
Space Policy”, COM(2007) 212, 28 April 2007, at 14. 105
See Communication from the Commission to the Council and the European Parliament, “European
Space Policy – Preliminary Elements”, COM(2005) 208 final, 23 may 2005, at 13; see also Bildt C,
Peyrelevade J, Spath L., Towards a Space Agency for the European Union, Report to the ESA Director
General, (last visited 24 January 2008) http://esamultimedia.esa.int/docs/annex2_wisemen.pdf 106
Communication from the Commission to the Council and the European Parliament, “European
Space Policy”, COM(2007) 212, 28 April 2007, at 11. 107
Resolution on the European Space Policy, 25 May 2007, 10037/07, at para. 12. The 22 May 2007
Space Council recalled “the invitation expressed in the orientations of the second meeting of the Space
Council for a wide-ranging appraisal of possible cost-efficient scenarios for optimizing the
organization of space activities in Europe,” and has invited “Member States, the European
Commission and the ESA Director General to look for possible improvements of this cooperation, in
order to further develop the orientations of the second meeting of the Space Council into more
operational and practical arrangements.” 108
Space Council Resolution "Taking forward the European Space Policy", 26 September 2008,
13569/08, at 6, which states that “organising the governance of space in line with the Resolution of the
21
Therefore, albeit reluctantly, the ESP sets a way forward regarding
governance. How it will be elaborated and implemented, and through which
discussion mechanism with Member States, remains to be defined. By default, the
provisions of the EC-ESA Framework Agreement therefore still apply today.
5 THE LISBON TREATY AND ITS IMPLICATIONS ON SPACE
If one remains true to the objectives set out in the ESP, modifying the space
governance landscape cannot be merely a cosmetic effort.109 Several scenarios
have been identified already,110 although no elements today point to a specific
orientation or political commitment by European authorities. In the light of past
experiences (e.g. the EU Satellite Centre, the Galileo Supervisory Authority), it can
be assumed that future European space governance will be based on creative legal
solutions. In this respect, an a priori list of scenarios may shed confusion over the
ESP’s true objectives: detailing scenarios simply brings decision-makers in a
situation of choosing the most-adapted pre-existing structure. We contend, however,
that benchmarking must remain second to the political objectives set out in the ESP.
Only those objectives can guide the form of future European space governance, and
hence a tailor-made solution which may require creative legal solutions. In this
respect, the space competence conferred to the EU in the Lisbon Treaty and its
implications for governance will become a central legal issue which will need to be
clarified before tailoring new governance models.
By mid 2007, indeed, Member States were able to agree on amendments to
the EC and EU Treaties, ending the political stalemate created with the French and
Dutch rebuttal of the Constitutional Treaty in 2005. The Treaty of Lisbon may have
substantial repercussions on space activities in Europe, and on its governance.
Several issues can be highlighted, beginning with the clause of an EU competence
4th Space Council and with the political ambitions of EU, ESA and their respective Member States, in
particular the optimisation of the decision-making process in the field of space in the Council of the
European Union as well as in other EU institutions” is identified as a key issue to be addressed. It
should also be noted that the Fifth Space Council has considered governance under different
programmes, namely GMES, GNSS and security, highlighting the fact that joint activities all have
governance challenges. It also illustrates the current need to find ad hoc governance considerations for
the specific implementation of these activities as the result of a currently ill-adapted general European
governance framework. 109
The strategic objectives described in the ESP, which must be the basis of any governance
revamping, are the following: (i) to provide Europe with timely and accurate access to space and space
data in order to remain a significant world actor; (ii) space must be an integral part of Europe’s
research and development agenda (knowledge economy, Lisbon agenda); (iii) space is a tool that must
be better integrated into the implementation of EU policies, including the Common Security and
Defense Policy; (iv) space activities must be politically responsive and address cross-pillar activities. 110
Communication from the Commission to the Council and the European Parliament, “European
Space Policy – Preliminary Elements”, COM(2005) 208 final, 23 may 2005, at 13.
22
regarding space, but also legal possibilities for further integrating space into the
realm of European policies.
5.1 AN EU SPACE COMPETENCE
As is known, the EU – currently and more accurately, the EC - has exclusive
competences in areas such as trade policy and, as far as the Eurozone is
concerned, monetary policy. In other strategic areas, such as security and defence,
the EU does not play a prominent role as its competence is restricted to actions of a
lesser scope. In these areas, the intergovernmental geometry of the EU is at its
highest. At any rate, when one refers to “supranational competence”, it amounts to
competences that currently fall within the Community pillar and are either of an
exclusive or shared nature.
Although some may contend that the current EU competences in areas that
deal with space, e.g. transport, research, or through the catch-all Article 308 of the
EC Treaty,111 provide a strong enough basis for the implementation of space
policies, one must also recognize that such an area-specific competence in space
can only lead to a limited EU space responsibility and thus an incomplete
governance framework. The ESP, unfortunately, does not abide by this rationale,
stating that “Community investment has been made under existing competences…
and this should continue.”112 This statement is relevant only insofar as we consider
the current legal framework of European space governance, but curtails any vision of
progress regarding governance. Space must be considered as a whole, as one
strategic area, not as an issue which can be divided into several policy dimensions,
like a mosaic. This would undoubtedly lead to political confusion, and a failed
governance solution.
5.1.1 The “Space Clause”
Under the pre-Lisbon Treaty provisions, the EC has no explicit competence over
space policy.113 Quite clearly, an explicit Treaty-based space competence would
111
Article 308 EC Treaty (Rome Treaty, 25 march 1957), OJ 321 E/3 29 December 2006, states “[i]f
action by the Community should prove necessary to attain, in the course of the operation of the
common market, one of the objectives of the Community, and this Treaty has not provided the
necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after
consulting the European Parliament, take the appropriate measures.” 112
Communication from the Commission to the Council and the European Parliament, “European
Space Policy”, COM(2007)212, 28 April 2007, at 11. 113
For an overview of the existing legal bases and their evolution throughout the last decades, see Jan
Wouters, The EU and Space Policy: Constitutional and Institutional Aspects, in Stephan Hobe, Bernhard
23
“inevitably strengthen the EU’s political position since it provides a mandate for it to
formulate a European space policy.”114 It is clear that for a full-fledged space policy
to gain strategic momentum, the EU must have a clear and specifically allocated
space competence. If not, it runs the risk of being at the mercy of Member State
political whims. Attention must therefore be given to the space clause inserted by the
Lisbon Treaty in the Treaty on the Functioning of the European Union (“TFEU”).
First, however, we should take a look at the space clause which was included
in the Treaty establishing a Constitution for Europe,115 the ashes of which modelled
the Lisbon Treaty and which served as a significant step forward regarding the future
of European space governance, as it provided, for the first time, a space
competence for the EU in Article III-254:116
“1. To promote scientific and technical progress, industrial
competitiveness and the implementation of its policies, the Union shall draw
up a European space policy. To this end, it may promote joint initiatives,
support research and technological development and coordinate the efforts
needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1,
European laws or framework laws shall establish the necessary measures,
which may take the form of a European space programme.
3. The Union shall establish any appropriate relations with the
European Space Agency.”
In the wake of the Constitution’s failure, however, the Lisbon Treaty followed the
mandate given by the June 2007 European Council to the Intergovernmental
Conference (IGC), which limited the scope of the future space clause by stressing
that in “the Article on European space policy, agreed in the 2004 IGC, it will be
specified that measures adopted may not entail harmonisation of the laws and
regulations of the Member States.”117 The new Article 189 TFEU118 reads exactly like
Schmidt-Tedd and Kai-Uwe Schrogl (eds.), Legal Aspects of the Future Institutional Relationship
between the European Union and the European Space Agency, Cologne, Institute of Air and Space Law,
2003, 17-33. 114
Stephan Hobe, Prospects for a European Space Administration, Space Policy 20 (2004) 28 (in the
context of the draft Constitutional Treaty). 115
OJ 2004/C 310/16, 310/17. 116
OJ 2004/C 310/01. 117
Annex 1, para. 19.(o), Presidency Conclusions of the Brussels European Council, 21-22 June 2007,
11177/07, CONCL 2, 23 June 2007. 118
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the
European Union, OJ, 2008/C 115/131, 09 May 2008.
24
the Constitution, at least in its first paragraph, but it is worth quoting the two following
paragraphs which diverge from the original Constitution drafting:
“2. To contribute to attaining the objectives referred to in paragraph 1, the
European Parliament and the Council, acting in accordance with the ordinary
legislative procedure, shall establish the necessary measures, which may
take the form of a European space programme, excluding any harmonisation
of the laws and regulations of the Member States.” [emphasis added]
4. This Article shall be without prejudice to the other provisions of this Title.”
[emphasis added]
This redrafted version of the space clause contains both substance and form. First,
the mandate provision regarding the harmonisation of Member State legislation was
taken into account, which greatly impedes any role the Commission could have
played in space and regulatory matters. In effect, decision-making remains entirely
with Member States: the latter retain their national competences, as follows also
from Article 4(3) TFEU: “In the areas of research, technological development and
space, the Union shall have competence to carry out activities, in particular to define
and implement programmes; however, the exercise of that competence shall not
result in Member States being prevented from exercising theirs.”
However, this clause is not without importance, although it safeguards the
status quo regarding the balance of power between the EU, ESA and Member
States. By specifically mentioning space in the Treaty, EU Member States have
given space a strategic dimension and the recognition it previously lacked..
Furthermore, the EU is now not only specifically empowered to draft a European
Space Policy119 but also allowed to “promote joint initiatives, support research and
technological development and coordinate the efforts needed for the exploration and
exploitation of space” through a European Space Programme.120 Moreover, ESA is
specifically mentioned in the Treaty, giving an insight on future evolutions and
confirming that ESA, in effect, is the EU’s natural space agency.
As of yet, it is difficult to give an exact interpretation of the space clause, as
this will greatly depend on practice and on the evolution of the European political
environment.
119
The lack of any such provision before the Lisbon Treaty, of course, has not precluded the
Commission from drafting the 2007 ESP. One should however expect that the specific mention of this
provision in the Lisbon Treaty should reinforce the Union’s legitimacy and political leadership in
space policy-making. 120
Article 189, para. 1 and 2, Consolidated versions of the Treaty on European Union and the Treaty
on the Functioning of the European Union, OJ, 2008/C 115/131 and 115/132, 09 May 2008.
25
5.1.2 Scope of the Space Clause
The additional wording in the Lisbon Treaty as compared to the Constitutional Treaty
may be construed as a clarification by Member States of the extent to which they
intend to involve the EU in space. A major debate that took place in the Convention
on the future of Europe concerned the catalogue of competences of the EU, and
thus the nature and extent of EU competence over space activities, and hence, in
this particular case, European space governance.121 The Constitutional Treaty, in its
Article I-12, had proposed to rename the categories of Union competences into
exclusive and shared competences as well as complementary/supporting
measures.122 The latter cover “areas where Member States had not transferred
legislative competencies to the Union and that in those areas the Union could
therefore only adopt measures to supplement or support the action of States but
which could not under any circumstances harmonise, replace, amend or definitively
affect Member States’ legislation in any way.”123 The Constitutional Treaty hence
provided that “[i]n certain areas and under the conditions laid down in the
Constitution, the Union shall have competence to carry out actions to support,
coordinate or supplement the actions of the Member States, without thereby
superseding their competence in these areas.”124
The space clause, however, seemed to carry inherent contradictions
regarding the actual scope of the space competence. Article I-14(3) of the
Constitutional Treaty, delimiting the shared competences of the EU, both signalled
the intent to have space as a shared competence, while stating that “[i]n the areas of
research technological development and space, 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” (emphasis added).
Meanwhile, the Constitutional Treaty provided in the general definition of the
shared competence contained in Article I-12.2 that “when the Constitution confers on
the Union a competence shared with the Member States in a specific area, the Union
121 The Lisbon Treaty inherited the innovations on competencies developed for the Draft
Constitutional Treaty. See generally Isabelle Bosse-Platière, Traité de Lisbonne et clarification des
compétences, Revue du Marché commun et de l’Union européenne, N#520, July-August 2008, at
443. 122
OJ 2004/C 310/15. Working Group V had proposed to change the name of “complementary
measures” to “supporting or assisting measures” though many members of the Convention have
considered it confusing. These clauses will be kept and inserted in the amended EU Treaty. 123
OJ 2004/C 310/. 124
Artcile I-12.5, OJ 2004/C 310/.15
26
and the Member States may legislate and adopt legally binding acts in that area. The
Member States shall exercise their competence to the extent that the Union has not
exercised, or has decided to cease exercising, its competence” [emphasis added].
Although space was therefore mentioned by the drafters of the Constitutional
Treaty in the shared competences category (Article I-14), it nonetheless remains that
the “space competence” definition contained in Article I-14(3) was regarded as
repugnant to the more general definition of “shared competence” contained in Article
I-12(2). Accordingly, at face value,, it is legally safer to define the “space
competence” as a supporting action than as a “shared competence” in the sense of
Article I-12(2) of the Constitutional Treaty.
Although it was difficult to clearly determine whether space was considered
by the Member States as a shared competence or as a parallel competence, the
June 2007 European Council and the subsequent Lisbon Treaty somewhat clarified
the issue. Member States decided that the EU’s space competence would not
include the power of harmonisation of national law and therefore could not amount to
a full-fledged shared competence.125 Although it is part of the Article on shared
competences, the space competence instead constitutes a supporting
competence.126 A further limit to the EU’s potential extension of competences is
provided for in a new Protocol on the Exercise of Shared competence,127 whose sole
article clearly provides that the Union competence does not include an entire area of
competence, but only the very activity in which the EU has taken action.
It should however be emphasized that treaties, even as detailed as the
Lisbon Treaty, are living instruments, through various means: practice; Member
State decisions within the institutional framework provided by the Treaty; the
European Court of Justice’s case law; and doctrine. The evolution of the space
clause will therefore depend to a large extent on the interpretation of Member States.
The clause remains flexible as political will ultimately will determine the clause’s
actual scope. Significant evolutions however can be accomplished under this new
Treaty. Only Member States can decide to which extent these leaps can be taken,
125
For the definition of ‘shared competence’ see Art. 2(2) TFEU: “When the Treaties confer on the
Union a competence shared with the Member States in a specific area, the Union and the Member
States may legislate and adopt legally binding acts in that area. The Member States shall exercise their
competence to the extent that the Union has not exercised its competence. The Member States shall
again exercise their competence to the extent that the Union has decided to cease exercising its
competence.”
126 For the definition of this type of competence see Art. 2(5) TFEU: “In certain areas and under the
conditions laid down in the Treaties, the Union shall have competence to carry out actions to support,
coordinate or supplement the actions of the Member States, without thereby superseding their
competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of
the Treaties relating to these areas shall not entail harmonisation of Member States' laws or
regulations.” 127
OJ 2008/C 115/307.
27
although the essence of the Lisbon Treaty indicates that Member States today have
a restrictive conception of competences conferred to the EU.128
The issue is therefore how Europe, in practice, intends to manage European
space governance. Currently, only but a few months after the ESP was announced
and the ESP Resolution adopted by the Space Council, EU Member States have
voluntarily limited EU action to the current status quo, as the Lisbon Treaty confirms:
safeguarding Member States competence in an area where the EU may act, but only
in support to Member State actions. This is a clear indication that Member States
regard space governance as of the remit of their sovereign attributions, and that
European institutions may yet not be mature enough to fully undertake the strategic
activities of space. Although simply as conjecture, the space governance framework
may therefore not evolve as rapidly as one could have foreshadowed at the time of
the drafting of the White Paper on space policy, although the third paragraph of the
space clause may be, one day, a convenient legal basis for an evolution of the space
governance framework, as it states: “The Union shall establish any appropriate
relations with the European Space Agency.”129
5.2 ENHANCED AND PERMANENT STRUCTURED COOPERATION
Two of the most innovative features of the Lisbon Treaty are the provisions
reinforcing enhanced cooperation and provisions on permanent structured
cooperation.130 Under the enhanced cooperation mechanism131 - a refinement of the
provisions previously inserted with the Amsterdam Treaty and are intended to avoid
increasingly frequent deadlocks in a decision-making body of 27 Member States -
nine or more Member States132 will be allowed to cooperate in an EU domain of non-
exclusive competence (e.g. space), including CFSP,133 if this cooperation aims “to
further the objectives of the Union, protect its interests and reinforce its integration
128
See Isabelle Bosse-Platière, Traité de Lisbonne et clarification des compétences, Revue du Marché
commun et de l’Union européenne, N#520, July-August 2008, at 443-45. 129
Article III-254 of the Constitutional Treaty, OJ 2004/C 310/16, 310/17. 130
See generally Sophie Dagand, The Impact of the Lisbon Treaty on CFSP and ESDP, ISIS Europe,
European Security Review no. 37, February 2007, at 5-6. 131
Articles 20 and 326 thru 334, Consolidated versions of the Treaty on European Union and the
Treaty on the Functioning of the European Union, OJ, 2008/C 115/01, 09 May 2008 (echoing Article
I-44 of the Draft Constitution). 132
Article 20.2, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/28, 09 May 2008. 133
Article 331.2, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/191, 09 May 2008.
28
process”.134 Such cooperation will only bind participating EU Member States and
decisions cannot be considered as forming part of the acquis communautaire.135 In
essence, this mechanism further facilitates - in the EU system - the institutional
variable geometry already found in the ESA Convention.136 In practice, this provision
may enable the launch of new space programmes by the EU, in any domain,
including defence. Also significant is the fact that “expenditure resulting from
implementation of enhanced cooperation, other than administrative costs entailed for
the institutions, shall be borne by the participating Member States, unless all
members of the Council, acting unanimously after consulting the European
Parliament, decide otherwise.”137 In the case of space, a programme undertaken
under the enhanced cooperation scheme would thus funnel fresh investments in
space, above and beyond the Financial Perspectives. Whether the rules applicable
to this cooperation framework will be sui generis, and therefore tailored to the
Member States’ wish will need to be determined.
A novel provision of the Lisbon Treaty is the permanent structured
cooperation138 which may also help European space activities enter new domains,
such as defence. Under this mechanism, specifically designed for the common
security and defence policy, participating Member States who fulfil certain criteria139
and have made military capability commitments140 to engage in missions calling for
both civil and military assets in the performance of such tasks as “disarmament
operations, humanitarian and rescue tasks, military advice and assistance tasks,
conflict prevention and peace-keeping tasks, tasks of combat forces in crisis
management, including peace-making and post-conflict stabilisation”141 as well as
“strengthening international security in accordance with the principles of the United
134
Article 20.1, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/27, 09 May 2008. This is the former Article I-
44.4 of the Draft Constitution. 135
Article 20.4, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/28, 09 May 2008. 136
Article V.1.b of the ESA Convention. 137
Article 332, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/191, 09 May 2008. 138
Article 42(6), Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/39, 09 May 2008; regarding structured
cooperation see generally Bruno Angelet, Ioannis Vrailas, European Defence in the Wake of the
Lisbon Treaty, Egmont paper 21, May 2008, at 33. 139
These criteria are set out in Article 1 of the Protocol 10 on Permanent Structured Cooperation,
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the
European Union, OJ, 2008/C 115/275, 09 May 2008. 140
See generally Protocol 10 on Permanent Structured Cooperation, Consolidated versions of the
Treaty on European Union and the Treaty on the Functioning of the European Union, OJ, 2008/C
115/275, 09 May 2008. 141
Article 43, Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/39, 09 May 2008.
29
Nations Charter.”142 In order to participate, the Lisbon Treaty clearly provides that
Member States not only need to maintain a certain level of technical readiness and
capacities143 but also strive to harmonise their capabilities and the inter-operability of
their respective assets.144 Although space is not specifically mentioned, modern
defence capacities and equipment today increasingly rely on space-based assets.
The European Defence Agency is called upon to play a leading role with technology
in this framework,145 as the EU’s defence technology research coordinator.146 The
actual scope of this mechanism remains to be clarified as the border between the
concept of structured cooperation, enhanced cooperation and the delegation of a
task to a group of Member States147 remains hazy,148 but its potential to fit with the
ESP’s security ambitions are important and should not be overlooked, as these novel
flexibility mechanisms to circumvent the rigidities of inter-governmentalism in
defence matters may have, in the long run, incidence on how cooperative space will
be governed in Europe.
6 CONCUDING OBSERVATIONS
The existence of two autonomous international organisations sharing space
responsibilities in Europe leads to unpredictable decision-making, lack of coherence,
and often duplication of activities with its significant budgetary implications. The
recent ESP is the first true attempt in federating the two systems. However, the ESP
is not the final act: its success and promises will depend on how Member States
decide to refurbish and federate two systems into a single coherent mechanism, how
they will interpret and implement the ESP and new Treaty provisions. The ESP, in
this sense, is a mandate for modifying European space governance for the second
142
Protocol 10 on Permanent Structured Cooperation, Consolidated versions of the Treaty on European
Union and the Treaty on the Functioning of the European Union, OJ, 2008/C 115/275, 09 May 2008. 143
Article 1, Protocol 10 on Permanent Structured Cooperation, Consolidated versions of the Treaty on
European Union and the Treaty on the Functioning of the European Union, OJ, 2008/C 115/275, 09
May 2008. 144
Article 2, Protocol 10 on Permanent Structured Cooperation, Consolidated versions of the Treaty on
European Union and the Treaty on the Functioning of the European Union, OJ, 2008/C 115/275, 09
May 2008. 145
Articles 2(e) and 3 of Protocol 10 on Permanent Structured Cooperation, Consolidated versions of
the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ, 2008/C
115/276, 09 May 2008. 146See generally Article 45 Consolidated versions of the Treaty on European Union and the Treaty on
the Functioning of the European Union, OJ, 2008/C 115/40, 09 May 2008. 147
Article 42.5 Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, OJ, 2008/C 115/40, 09 May 2008. 148
On structured cooperation, see also generally, The Lisbon Treaty and Its Implications for
CFSP/ESDP, European Parliament, Policy Department External Policies, Briefing Paper, February
2008, at 6-7.
30
time in half a century. But this evolution will solely depend on the Member States’
evolving and sometimes unpredictable political will, which on its turn needs to be
transcribed into legal norms.
The purpose of this contribution has not been to propose solutions regarding
European space governance or actual frameworks. We deem impossible to
foreshadow this, as so many decisions will depend on political evolutions of a
scope that remains uncertain. Further in-depth studies will be necessary - as the
ESP evolves and grows, as the Lisbon Treaty comes into force and as its provisions
are interpreted over time and practice - of specific models as there are “several
difficult issues that ESA and the Commission will have to get to grips with in arriving
at an agreement aligned to the competences of organizations of differing character.
These include the Commission’s own role with respect to areas that are
intergovernmental (e.g. defence) and ESA’s role with respect to dual use activities in
light of the ‘peaceful purposes’ clause of the ESA Convention. Also included are the
scope and procedures for decision-making in pursuit of jointly defined objectives, the
question of the precise institutional relationship between the EU and ESA
(cooperation versus integration model) and the question of the possible application
of Union law principles and rules (e.g. in the field of competition law and public
procurement law) to EU–ESA joint programmes in particular. One has too to take
account of the (slightly) differing composition of their respective Member States.”149
Furthermore, the recent participation of the Commission in space
programmes, Galileo and GMES, have shed light on legal difficulties impeding the
possibilities for a sound, efficient and flexible ESA-EC cooperation. In particular, EU
funding instruments were somewhat ill-adapted to the space programme cycle
organised under the ESA framework, as well as the juste retour mechanism, which
essentially is in perfect contradiction with the uncompromising rules of open
competition enshrined in the EC’s primary and secondary legislation.150
We maintain that no a priori model is yet satisfactory with respect to the
objectives set out in the ESP and that the future of space governance in Europe will
require a novel legal solution which will have substantial repercussions on how
decision-makers perceive the Union and its strategic role. The issue of space
governance, in this respect, remains secondary to the greater issue of European
governance itself. One thing is clear: because of its aspects of multi-actor
149
Kevin Madders & Jan Wouters, Finding a ‘Genuine’ Space Policy for Europe: the European Space
Policy Workshop Series, Space Policy 19 (2003) 41-42. 150
For this reason, the EC-ESA Framework Agreement clearly provides in its Article 5.3 that “any
financial contribution made by one Party in accordance with a specific arrangement shall be governed
by the financial provisions applicable to that Party. Under no circumstances shall the European
Community be bound to apply the rule of "geographical distribution" contained in the ESA
Convention.”
31
governance and its intertwined layers of decision-making mechanisms, space will be
a true case study and a genuine test for European governance itself and for the
future of the EU as a global actor.
32
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