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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. (jan.wouters@ggs.kuleuven.be)

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

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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.

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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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