The Space Law Review: European Union
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. ESA and the EU entered into a framework agreement in 2004 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.
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 exclusive peaceful purposes, cooperation among European States in space research and technology and their space applications'.2
ESA is headquartered in Paris, France and has 22 Member States.3 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 facilities4 that are situated in a number of European countries. These include:
- the European Astronauts Centre in Cologne, Germany, which is an astronaut training centre for European astronauts;5
- the European Space Astronomy Centre (ESAC) in Villanueva de la Canada, Spain, which houses the scientific operations centres for astronomy and planetary missions;6
- 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;7
- the ESA centre for Earth Observation (ESRIN) in Frascati, Italy, which manages ground segment and third-party Earth observation satellites;8
- the European Space Research and Technology Centre (ESTEC) in Noordwijk, the Netherlands, which is responsible for the technical preparation, management and support and houses a test centre;9
- the European Centre for Space Applications and Telecommunications (ECSAT) in Harwell, United Kingdom, which provides support to activities related to telecommunications and integrated applications;10
- 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;11 and
- the Guiana Space Centre in Kourou, French Guiana, which houses launch and launcher production facilities and the launch base.12
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 States13 and meets as and when required14 either at delegate level (at least twice a year) or ministerial level (around every four years).15 Each ESA Member State has one vote irrespective of their geographical size or financial contribution16 and is represented by a maximum of two delegates17 who may be accompanied by advisers.18
The Council elects a chairman and two vice-chairmen every two years.19 The Council also has a Science Programme Committee that is responsible for mandatory scientific programmes20 and other subordinate bodies to assist the Council's duties.21 The Council is further assisted by the Bureau of the Council that consists of the chairman and one authorised representative per ESA Member State.22
The Director General is appointed every four years by the Council by a two-thirds majority of all ESA Member States.23 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 purpose24 with authority over its establishments that are listed above.
ESA's Director General is assisted by 10 directors:
- the Director of Technology, Engineering and Quality who also heads ESTEC;
- the Director of Human and Robotic Exploration;
- the Director of Industry, Procurement and Legal Services who also heads ESA's headquarters in Paris;
- the Director of Space Transportation;
- the Director of Earth Observation who also heads ESRIN;
- the Director of Navigation;
- the Director of Science who also heads ESAC;
- the Director of Telecommunications and Integrated Applications who also heads ECSAT;
- the Director of Internal Services; and
- the Director of Operations who also heads ESOC.
iv Procurement of ESA activities
ESA's procurement framework consists of:
- Article VII and Annex V of the ESA Convention, which sets out ESA's industrial policy;
- ESA Procurement Regulations and related Implementing Instructions;25 and
- general clauses and conditions for ESA contracts.26
All procurement is handled through ESA's Electronic Mailing Invitation to Tender System, 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.27 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.28
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.
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 laws and regulations' of EU Member States in relation to space.
The current flagship space programmes that are run by the EU include:
- the European satellite navigation programmes, Galileo and the European Geostationary Navigation Overlay Service (EGNOS);
- the Copernicus Earth Observation space programme; and
- the EU Space Surveillance and Tracking (EUSST) programme.
European satellite programmes
Galileo is the global navigation satellite system (GNSS)30 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 European Commission (the Commission) has overall responsibility for managing and overseeing the implementation of the Galileo programme and the European GNSS Agency (GSA). The GSA 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.
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).32 In 2009, the Commission designated the operational management and maintenance of EGNOS to the European Satellite Services Provider.33
Copernicus Earth observation34
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.35 Copernicus has a free and open data policy providing six categories of services: atmosphere;36 climate change;37 emergency;38 land;39 marine;40 and security.41
Copernicus is coordinated and managed by the Commission and is implemented in partnership with ESA, Eumetsat, the European Centre for Medium-Range Weather Forecasts and Mercator Ocean.
The EUSST programme 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).
Future of esa and eu cooperation
In June 2018, the Commission published a proposal for a Regulation 'establishing the space programme of the Union and the European Union Agency for the Space Programme'.42 Under this Regulation, the Commission has proposed to:
- increase its space budget to support the competitiveness and innovation capacity of the European sector;
- create an EU Agency for the Space Programme to replace the GSA; and
- to bring all of the major EU-led space programmes – Galileo, EGNOS, Copernicus and EUSST – under the control of a single body.
This has created some political sensitivity in the relationship between ESA and the EU as the proposed EU Space Agency is likely to overlap with ESA's competencies owing to the number of mutual Member States of both bodies.
At the date of finalising this chapter, the proposal is still awaiting the European Council to adopt a first reading position.43
1 Joanne Wheeler MBE is the managing partner and Vicky Jeong is an associate at Alden Legal Limited.
2 This is set forth in Article II of the Convention for the Establishment of a European Space Agency (the ESA Convention), accessible at: https://esamultimedia.esa.int/docs/LEX-L/ESA-Convention/SP-1317_EN.pdf.
3 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.
13 Article XI(1) of the ESA Convention and Rule 1(1) of the ESA Council Rules of Procedure.
14 Article XI(2) of the ESA Convention and Rule 1(1) of the ESA Council Rules of Procedure.
16 Article XI(6)(a) of the ESA Convention.
17 Rule 1(2) of the ESA Council Rules of Procedure.
18 Rule 3 of the ESA Council Rules of Procedure.
19 Rule 5(1) of the ESA Council Rules of Procedure.
20 Article XI(8)(a) of the ESA Convention.
21 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.
22 Rule 7 of the ESA Council Rules of Procedure.
23 Article XII(1)(a) of the ESA Convention.
24 Article XII(1)(b) of the ESA Convention.
29 To find more information about Galileo, see: https://www.gsa.europa.eu/european-gnss/galileo/galileo-european-global-satellite-based-navigation-system.
34 To find more information about Copernicus, see: https://www.copernicus.eu/en/about-copernicus/copernicus-brief.