The Space Law Review: Europe

I Introduction

The European Space Agency (ESA) and the European Union (EU) each coordinate the financial and intellectual resources of EU Member States to undertake space programmes. In doing so, both intergovernmental bodies are influential in shaping Europe-wide industrial space policy.

It is, however, important to distinguish that ESA is an international intergovernmental organisation that is independent of the EU. In 2004, ESA and the EU entered into a framework agreement to provide operational arrangements between them based on the principles of efficiency and mutual benefit, to avoid any unnecessary duplication of effort and to achieve a coherent and progressive development of an overall European space policy.

In June 2018, the European Commission (the Commission) proposed a Regulation 'establishing the space programme of the Union and the European Union Agency for the Space Programme'.2 Under this draft Regulation, the Commission sought to:

  1. increase its space budget to support the competitiveness and innovation capacity of the European sector;
  2. create an EU Agency for the Space Programme (EUSPA) to replace the European Global Navigation Satellite System Agency; and
  3. to bring all of the major EU-led space programmes – Galileo, the European Geostationary Navigation Overlay Service (EGNOS), Copernicus and the EU Space Surveillance and Tracking (EUSST) programme – under the control of a single body.

This created some political sensitivity in the relationship between ESA and the EU as the EUSPA was likely to overlap with ESA's competencies owing to the number of mutual Member States of both bodies.

The Regulation subsequently came into force on 12 May 2021 as 'Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No. 912/2010, (EU) No. 1285/2013 and (EU) No. 377/2014 and Decision No. 541/2014/EU' (the EU Space Regulation) with retrospective effect to apply from 1 January 2021.

On 22 June 2021, the Commission and ESA entered into a financial framework partnership agreement, to define the roles and responsibilities of the Commission, ESA and the EUSPA, updating the ESA–EU framework agreement from 2004.

II ESA

i History of ESA and its membership

In 1962, a selection of European states signed two conventions to establish two separate agencies: the European Launcher Development Organisation (ELDO) to develop a launch system; and the European Space Research Organisation (ESRO) to develop spacecraft. ELDO and ESRO were then merged to create ESA in 1975.

The purpose of ESA is 'to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications'.3

ESA is headquartered in Paris, France and has 22 Member States.4 Latvia and Slovenia are Associate Members, Canada takes part in some projects under a cooperation agreement, and Bulgaria, Croatia, Cyprus, Malta, Lithuania and Slovakia are currently in the Plan for European Cooperating States.

ii ESA establishments and facilities

ESA has multiple establishments and facilities5 that are situated in a number of European countries. These include:

  1. the European Astronaut Centre in Cologne, Germany, which is an astronaut training centre for European astronauts;6
  2. the European Space Astronomy Centre (ESAC) in Villanueva de la Cañada, Spain, which houses the scientific operations centres for astronomy and planetary missions;7
  3. the European Space Operations Centre (ESOC) in Darmstadt, Germany, which houses control rooms that are linked to ground stations to track and control satellites and carry out systems monitoring and payload operations;8
  4. the ESA Centre for Earth Observation (ESRIN) in Frascati, Italy, which manages ground segment and third-party Earth observation satellites;9
  5. the European Space Research and Technology Centre (ESTEC) in Noordwijk, the Netherlands, which is responsible for technical preparation, management and support and houses a test centre;10
  6. the European Centre for Space Applications and Telecommunications (ECSAT) in Harwell, United Kingdom, which provides support to activities related to telecommunications and integrated applications;11
  7. the European Space Security and Education Centre in Redu, Belgium, which houses a centre for space cybersecurity services, the Space Weather Data Centre and the ESA Education Training Centre;12 and
  8. the Guiana Space Centre in Kourou, French Guiana, which houses launch and launcher production facilities and the launch base.13

iii Governance

Article X of the ESA Convention defines two organs for governing ESA: the Council; and the Director General.

The Council comprises representatives of the ESA Member States14 and meets as and when required15 either at delegate level (at least twice a year) or at ministerial level (around every four years).16 Each ESA Member State has one vote irrespective of their geographical size or financial contribution17 and is represented by a maximum of two delegates18 who may be accompanied by advisers.19

The Council elects a chairman and two vice-chairmen every two years.20 The Council also has a Science Programme Committee that is responsible for mandatory scientific programmes21 and other subordinate bodies to assist the Council's duties.22 The Council is further assisted by the Bureau of the Council, which consists of the chairman and one authorised representative per ESA Member State.23

The Director General is appointed every four years by the Council by a two-thirds majority of all ESA Member States.24 The Director General acts as the Chief Executive Officer of ESA and its legal representative and is responsible for managing ESA, executing its programmes, implementing its policy and fulfilling its purpose25 with authority over its establishments that are listed above.

ESA's Director General is assisted by 10 directors:

  1. the Director of Technology, Engineering and Quality who also heads ESTEC;
  2. the Director of Human and Robotic Exploration;
  3. the Director of European, Legal and International Matters who also heads ESA's headquarters in Paris;
  4. the Director of Space Transportation;
  5. the Director of Earth Observation who also heads ESRIN;
  6. the Director of Navigation;
  7. the Director of Science who also heads ESAC;
  8. the Director of Telecommunications and Integrated Applications who also heads ECSAT;
  9. the Director of Internal Services; and
  10. the Director of Operations who also heads ESOC.

iv Procurement of ESA activities

ESA's procurement framework consists of:

  1. Article VII and Annex V of the ESA Convention, which set out ESA's industrial policy;
  2. ESA Procurement Regulations and related Implementing Instructions;26 and
  3. general clauses and conditions for ESA contracts.27

All procurement is handled through ESA's esa-star tendering system,28 which maintains all current invitations to tenders and intended invitations to tenders.

The primary focus of ESA's industrial policy is to ensure equitable Member State participation based on the financial contribution of Member States when implementing ESA space programmes and the associated development of space technology.29 All ESA programmes are also computed based on geographical return, which takes into account the share of a country in the weighted value of contracts and its share in the contribution paid to ESA in a given period.30

There are three types of ESA activities: mandatory activities; optional activities; and 'third parties activities'.

All ESA Member States participate in mandatory activities for which each Member State makes contributions based on its gross national product. Mandatory activities are approved by the Council.

Optional activities include programmes for which each Member State can choose its level of participation and contribution. Examples of optional activities include launchers, Earth observation, telecommunications, manned flights and the International Space Station.

Third parties activities include programmes where ESA receives funding to manage space-related activities on behalf of other organisations such as the EU or the European Organisation for the Exploration of Meteorological Satellites (Eumetsat). The industrial participation in third parties activities is regulated by each respective agreement.

III EU space programmes and policy

Article 189 of the Treaty on the Functioning of the European Union (TFEU) gives the mandate to the EU to draw up a European space policy and to establish a European space programme to promote scientific and technical progress and to coordinate the exploration and exploitation of space. However, Article 189(2) of the TFEU excludes 'any harmonisation of the laws and regulations' of EU Member States in relation to space.

The current flagship space programmes that are funded by the EU and run by ESA include:

  1. the European satellite navigation programmes, Galileo and EGNOS;
  2. the Copernicus Earth Observation space programme;
  3. the EUSST programme; and
  4. the EU Governmental Satellite Communications (GOVSATCOM) programme.31

European satellite programmes

Galileo32

Galileo is the global navigation satellite system (GNSS)33 that is owned by the EU to provide high-precision positioning, navigation and timing information for services and users in the EU. Galileo's principal objective is to minimise dependence on the use of foreign navigation systems such as the US's Global Positioning System, the Russian Global Navigation Satellite System and the Chinese BeiDou Navigation Satellite system.

The Commission has overall responsibility for managing and overseeing the implementation of the Galileo programme and the EUSPA. Following the entry into force of the EU Space Regulation, the EUSPA is an EU agency that has delegated responsibility for the development and operational management of the Galileo programme from the Commission. The design, deployment, evolution and technical development of the infrastructure are outsourced to ESA.

EGNOS34

EGNOS is a European regional satellite-based augmentation system that is used to augment GNSS signals to improve the accuracy and reliability of GNSS performance. EGNOS was developed under a tripartite agreement between ESA (responsible for the design and development of the system), the Commission (responsible for international cooperation and coordination, operational management and maintenance of the system) and the European Organisation for the Safety of Air Navigation (responsible for defining the needs of civil aviation and deriving the mission requirements of the system).35 In 2009, the Commission designated the operational management and maintenance of EGNOS to the European Satellite Services Provider.36 Similar to the Galileo programme, the EUSPA has delegated responsibility from the Commission for overseeing the overall operational management including exploitation, evolution and promotion of the services and applications provided by EGNOS.37

Copernicus Earth observation38

Copernicus, also known as the Global Monitoring for Environment and Security Programme, is the EU's Earth observation programme intended to provide a unified system through which accurate, timely and easily accessible information is collected to 'improve the management of the environment, understand and mitigate the effects of climate change and ensure civil security'.39 Copernicus has a free and open data policy providing six categories of services: atmosphere;40 climate change;41 emergency;42 land;43 marine;44 and security.45

Copernicus is coordinated and managed by the Commission and is implemented in partnership with the EU Member States, ESA, Eumetsat, the European Centre for Medium-Range Weather Forecasts, Mercator Ocean and EU agencies.

EUSST

The EUSST programme46 was set up in 2014 to develop space surveillance and tracking capability at EU level to protect EU space infrastructure, facilities and services by creating a network of ground-based and space-based sensors to survey and track orbital objects for the EU user community. The EUSST programme provides analysis and information on conjunction (i.e., collision avoidance), re-entry (e.g., estimation of time frame and likely location of possible impact) and in-orbit fragmentation (i.e., detection and characterisation, including alerts on break-ups or collisions).

The following seven EU Member States compose the EUSST consortium and work with the EU Satellite Centre to provide space surveillance and tracking services to all EU Member States, EU institutions, spacecraft owners and operators, and civil protection authorities: France, Germany, Italy, Poland, Portugal, Romania and Spain.47

GOVSATCOM

The GOVSATCOM programme48 was one of the elements of the Global Strategy for the EU's Foreign and Security Policy of June 2016. It aims to provide reliable, secure and cost-effective communications capabilities to the EU and the EU Member States (including EU agencies and institutions) for managing security and safety critical missions and operations. Three main use cases that have been identified for GOVSATCOM are as follows:

  1. crisis management (including civilian and military missions and operations, natural and man-made disasters, humanitarian crises and maritime emergencies);
  2. surveillance (such as for border and maritime security or monitoring illegal trafficking); and
  3. key infrastructures (including EU space infrastructures such as Galileo and EGNOS).49

GOVSATCOM has become a part of the EU Space Programme 2021–2027 under the EU Space Regulation.

IV OUTLOOK AND CONCLUSIONS

In recent years, the EU has been active in furthering its space-related initiatives. The adoption of the EU Space Regulation in 2021 is a prime example of this, in which €14.8 billion was allocated for the implementation of EU space programmes between 1 January 2021 and 31 December 2027.50 In January 2021, the European Investment Fund managed to attract €300 million to support the innovation and growth of space technology small and medium-sized enterprises in Europe under the InnovFin Space Equity Pilot.51 At the end of 2020, the Commission announced that it is looking to procure its own satellite-based connectivity system, which would comprise a constellation of low-Earth orbit satellites.52

Similar to the EU, ESA published its five immediate priorities and a vision for the next four years in its Agenda for 2025,53 which included plans to strengthen the connection between ESA and the EU to develop a joint ambition for space in Europe. The summer of 2021 also presented an exciting opportunity to individuals who are interested in space exploration when ESA opened its applications to become an ESA astronaut to the public.54

An increasing number of European countries are recognising the value of the space industry and are looking to attract New Space companies to their countries. For example, Estonia, Malta, Poland and Lithuania are preparing draft national space legislation and policies with an ambition to grow, support and foster innovative space companies and technology in their countries.


Footnotes

1 Joanne Wheeler MBE is the managing partner at Alden Legal Limited. The author wishes to thank Vicky Jeong, previously at Alden Legal, for her assistance with this chapter.

3 This is set forth in Article II of the Convention on the Establishment of a European Space Agency (the ESA Convention), accessible at: https://download.esa.int/docs/LEX-L/ESA-Ratification-acts/United_Kingdom_(28_Mar_1978).pdf.

4 These are: Austria; Belgium; the Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Luxembourg; the Netherlands; Norway; Poland; Portugal; Romania; Spain; Sweden; Switzerland; and the United Kingdom.

14 Article XI(1) of the ESA Convention and Rule 1(1) of the ESA Council Rules of Procedure.

15 Article XI(2) of the ESA Convention and Rule 1(1) of the ESA Council Rules of Procedure.

17 Article XI(6)(a) of the ESA Convention.

18 Rule 1(2) of the ESA Council Rules of Procedure.

19 Rule 3 of the ESA Council Rules of Procedure.

20 Rule 5(1) of the ESA Council Rules of Procedure.

21 Article XI(8)(a) of the ESA Convention.

22 Article XI(8)(b) of the ESA Convention. ESA's plenary subordinate bodies include Administrative and Finance Committee, Industry Policy Committee, International Relations Committee and Security Committee: https://www.esa.int/About_Us/Law_at_ESA/ESA_s_organs_and_functioning.

23 Rule 7 of the ESA Council Rules of Procedure.

24 Article XII(1)(a) of the ESA Convention.

25 Article XII(1)(b) of the ESA Convention.

38 To find more information about Copernicus, see: https://ec.europa.eu/defence-industry-space/eu-space-policy/copernicus_en.

46 To find more information about EUSST, see: https://www.eusst.eu/.

48 To find more information about GOVSATCOM, see: https://ec.europa.eu/defence-industry-space/govsatcom_en.

50 Article 11(1) of the EU Space Regulation.

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