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Space, Cyber, and Telecommunications Program Faculty Publications Law, College of

2011

The EU Space Competence as per the of Lisbon: Sea Change or Empty Shell?

Frans G. von der Dunk University of Nebraska - Lincoln, [email protected]

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Part of the Air and Space Law Commons von der Dunk, Frans G., "The EU Space Competence as per the Treaty of Lisbon: Sea Change or Empty Shell?" (2011). Space, Cyber, and Telecommunications Law Program Faculty Publications. 66. https://digitalcommons.unl.edu/spacelaw/66

This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Space, Cyber, and Telecommunications Law Program Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. von der Dunk in Proceedings of the International Institute of Space Law (2011). Copyright 2011, F. von der Dunk. Used by permission.

THE ED SPACE COMPETENCE AS PER THE TREATY OF LISBON: SEA CHANGE OR EMPTY SHELL? Frans G. von der Dunk University ofNebraska, College of Law, Space and Telecommunications Law Program [email protected]

Abstract 1. The discussion on the EU space competence The entry into force of the Treaty of Lisbon late 2009 introduced a so-called The Treaty of Lisbon I entered into 'space competence' of the European force on 1 December 2009, following a Union into the already complicated decade-long effort to adapt the EU legal European 'spacescape'. It has governance structure to new been hailed by some as a sea change, a developments, notably including its watershed following which the EU expansion to 27 member states. finally and irreversibly has entered the Amongst its many innovative clauses realm of legislating for space, whereas there were a few which amounted to others fail to see it as more than an giving the Union what has been empty shell, a fig leaf for politicians to labelled a 'space competence'. Thus, be able to show at least some progress "[i]n the areas of research, towards a united European approach technological development and space, and policy with respect to space. the Union shall have competence to Whilst some discussion has focused on carry out activities, in particular to whether this 'shared competence', a define and implement programmes; specific term of art in EU law, would however, the exercise of that not better be qualified as a sui generis competence shall not result in Member 'parallel competence', no notable States being prevented from exercising attention has been paid to the more theirs"? fundamental question to what extent This clause was part of the Article the inclusion of the relevant clause in providing for the scope of shared the Treaty of Lisbon has resulted in a competence between the Union and its real change as to the legislative and member states, but the last part of the regulatory side of space activities clause quoted has led some to conclude undertaken in the European context. that this was not so much a shared The present paper will therefore try to competence but a "parallel analyse in somewhat more detail what competence,,3, as individual member the real significance of this new 'space states would retain sovereign discretion competence', is, might or will be. This as such to draft and implement their analysis will be undertaken with own national policies and in reference not only to the terminology this area. More specifically, of the Treaty of Lisbon and a related "I. To promote scientific and clause of the preceding but aborted technical progress, industrial Constitutional Treaty, but also with competitiveness, and the reference to the previous legislative implementation of its policies, the efforts of the European Union relevant Union shall draw up a European . To this end, it may to space, the few national space promote joint initiatives, support of EU member states, and research and technological the role of ESA in this context. development, and coordinate the

382 efforts needed for the exploration 2. The 'prehistory' ofthe European and exploitation of space. space competence 2. To contribute to attaining the objectives referred to in paragraph In the whole discussion on a European I, the European Parliament and the space competence often the suggestion Council, acting in accordance with is made that before the failed the ordinary legislative procedure, shall establish the necessary Constitutional Treatl and the more measures, which may take the successful Treaty of Lisbon were on the form of a European space program, table there was no such thing as a excluding any harmonization of competence of the Union and its key the and of the organs - from this perspective the Member States. Commission, the Council of Ministers 3. The Union shall establish any and the European Parliament - to appropriate relations with the legislate on space. But was there really . no 'space competence' at the EU level 4. This Article shall be without prior to the discussions regarding those prejudice to the other provisions of this Title.',4 (draft) ? Perhaps it all depends on how one Various commentators hailed these defines 'space competence'. Obviously, provisions as a sea change, the Union not being part of any (EU now finally having been given a full member) state's territory,6 it could also legislative role regarding the European not 'geographically' form part of the space effort, as opposed to merely (co-) EU realm. However, already long financing and supporting it. Others before the discussions on a have pointed out that an earlier version Constitutional Treaty had started in of the clauses had been considerably earnest in the early 2000's, the more far-reaching; from this European Community, then Union had perspective this particular version was a exercised regarding outer bit of a disappointment - if not indeed space activities in four distinct areas an empty shell. The present paper albeit in somewhat indirect presents an effort to evaluate and 0; 'accidental' fashion. appraise the true value of these Firstly, in 1986 the Single European provisions as lying somewhere between Ace added Articles 130f through 130q those two'extremes'. However, before such a proper to the EEC Treatl, whereby the EC institutions were charged with building evaluation and appraisal is possible, it and financing research and is important to understand the development framework programmes background leading up to this Treaty, endowed with large funds, and develop this particular competence clause and other, partly legislative instruments to this extended discussion. Thus, firstly, enhance research and development. the 'prehistory' leading up to the References to research and discussion on a European space development were widely accepted to competence will be briefly outlined include space as a relevant area before, secondly, the short 'history' of showing great potential for more down~ the evolvement of the relevant clauses to-earth technological, then also will be scrutinised from that economic and societal spin-offs.9 Thus, perspective - in order to then assess the the European Community also started clauses at issue as to their true merit: building relationships with the sea change or empty shell? European Space Agency (ESA)lo, the

383 prime European organisation involved Thirdly, when in the 1990's space in and related activities. remote sensing came to be of interest Secondly, following rapid also for commercial applications, a developments in the legal instrument to protect the sector In the late investments in remote sensing was 1980's and early 1990's the found wanting. The existing intellectual Commission was quick to move into rights protection regimes were this most practical, most commercial not very appropriate or effective, and and by any standards largest field of the Commission then lead an effort to space applications. After a 1990 Green develop such a legal tool, making Paperll had applied the calls for certain that space-derived data would liberalisation and privatisation in the explicitly be encompassed in, and general telecom sector by means of an appropriately dealt with in the context earlier Green Paperl2 to this specific of, the broader concept of databases subsector, in 1994 the first piece of EU which were in the end given special sui J3 16 law resulted: the Satellite Directive . generis protection by Directive 96/9. The Satellite Directive provided the Again, perhaps not amounting to framework for implementation of jurisdiction in or over outer space, but Internal Market principles into the certainly co-determinant with respect to satellite communications sector the potential for the relevant category throughout the Union, for example of activities in outer space to be imposing such principles as separation successfully undertaken. of regulatory and operational functions, Fourthly, as the major role certain the prohibition of concerted anti­ space applications could play in competitive practices and the developing European economies and prohibition of abuse of dominant and societies became clear, the Union also monopoly positions in that market. started to become a 'space player' in its Many Directives and Regulations own right. In 1994 it had already taken followed elaborating that regime, in the policy decision to become involved addition to Decisions on perceived in what was known as the Global market-distorting practices by Satellite System; 17 an idea service providers. 14 which soon evolved into Europe (with Also, the privatisation of the three the Union leading and ESA following) major international satellite operators building its own full-fledged system INTELSAT, INMARSAT and Galileo. By 2002 the Union was ready EUTELSAT was partially the result of to enunciate its first proper piece of EU these legislative developments. ls law on the issue, a setting Whilst in many respects the Internal up a Galileo Joint Undertaking,18 Market for satellite communications followed in 2004, 2008 and 20 I0 by has yet to be finalised, through such an more key Regu IatlOns.· 19 adoption of Directives, Regulations and EU interests in practical applications of Decisions the EU institutions have space soon led to another 'European exercised a large measure of space flagship' being developed jurisdictional competence in this major together with ESA; the Global area of the human space endeavour. Monitoring for the Environment and Not technically speaking in space Security (GMES). The primary political perhaps, but certainly with respect to, decision was announced in 2001 2°; and having a great impact upon, meanwhile, also the first piece of EU relevant activities in outer space. legislation on GMES has been

384 enunciated - in 201021 . It remains to be 3. The 'history' ofthe space seen of course, to what extent the competence Union is effectively now abdicating its leading position in this respect, with The proper history of the space GMES very recently being relegated competence started in the early 2000s, back to the member states as far as where the ambitious exercise to draft a crucial funding was concerned.22 Constitutional Treaty presented a Still, the increasing cooperation with vehicle for those contemplating true ESA in the context of these two integration of the European space flagship projects (and the prospects of efforts. more flagship projects on the horizon) Historically, ESA had taken care of also gave rise to the Framework such efforts by presenting a solid yet Agreement with ESA in 2003. 23 This flexible framework for international represented a treaty-like document cooperation. The 'solid' part was between two international organisations represented in particular by the of which one (ESA) still undoubtedly 'mandatory programmes', the scientific qualified as an intergovernmental and research and development organisation, whereas the other (the programmes to which all states had to Union) was a sui generis halfway house contribute at a predetermined scale?4 between such an organisation and a The 't1exible' part was represented in supranational construct. In any event, particular by the 'optional apparently the EU institutions had now programmes', which usually involved obtained a level of treaty-making actual launches and satellite operations powers with regard to space and space - and allowed member states to opt out activities, coupled to a general (co-) of a programme altogether (and then leading role in the relevant policy area. not contribute to it) or determine their As pointed out, it partly depends on scale of contributions at a different one's definition of 'space competence', level from that applied as a baseline but if that term is taken to refer to option essentially the same competences to legislate, adjudicate predetermined scale as for the and enforce with respect to space mandatory programmes.25 activities in any meaningful sense, the Since the ESA Director-General could above initiatives of the Union in the also himself propose European space context of space research and programmes,26 ESA was often seen as development, space communications, not merely a platform for member space remote sensing and space states to integrate their national space navigation should qualify. It is thus policies, but also as itself developing a clear that even before the Constitutional European space policy - even as with Treaty came about, the EU institutions regard to any such proposals it was still had somehow obtained and exercised the member states which had to agree such competences to draft EU by two-thirds majority before they legislation and adjudicate and enforce it would be implemented?? in several areas of space activities. To the extent that the totality of ESA's From that perspective therefore, the programmes thus agreed upon and question as to the real novelty of the executed could be deemed to constitute new clauses of the Treaty of Lisbon a proper 'space policy', however, it remains principally valid: what sort or certainly was not one that the level of 'space competence' is actually proponents of EU competence in space added by the latter? considered particularly coherent,

385 logical and/or helpful. The ingrained The ambitious effort to arrive at a inability of ESA to overcome key Constitutional Treaty, which tried to individual member state policy move the process of European divergences, the 'geographical integration considerably forward on distribution' principle as main focus of many fields and issues, now seemed the the 'industrial policy' 'of ESA,28 and perfect carrier for fully taking over the the principled absence of competence reins on the European space effort. for ESA to regulate any activities And indeed the Constitutional Treaty within the European 'spacescape' in provided for the clauses which, once any legal sense of the word all the Treaty itself came to fail and a conspired to point at the timeliness of much dressed-down follow-on drafting handing over the lead in the European exercise resulted in the Treaty of space effort to the Union. Lisbon, survived that failure and were There had been earlier efforts on the included in the latter. part of the European Union to take a There was one major exception more active, even leading role in however: Article 189(2) of the Lisbon defining European space policies. For Treaty as quoted above, had essentially example, in 1993 a Space Advisory copied Article 1II-254 of the Group had been established to Constitutional Treaty with respect to institutionalise cooperation and the EU competence henceforth to coordination between ESA and the "establish (...) necessary measures, Commission in matters ofouter space.29 which may take the form of a European In 2000, a European Space Strategy space program" - but had crucially was developed as part of a first joint added the phrase "excluding any meeting of the ESA Council and the harmonization of the laws and EU Council of Ministers (the two regulations ofthe Member States". highest organs of the organisations30) If the 'space competence' under the which spelled out the perceived Treaty of Lisbon is indeed not to be an respective roles of the two - with the empty shell, the key question clearly is: Union leading all efforts which should what 'necessary measures', including allow Europe to reap the benefits from development of a 'European space space activities for society and markets, program' could the EU authorities thus as opposed to scientific and research take when these could not result in and development oriented policies harmonization of laws and regulations 3 programmes, and projects. ! By 2003, ofEU member states? the Commission had effectively taken the steering wheel, when it produced ­ on its own - its White Paper "Space: a 4. The EU space competence: sea new European frontier for an expanding change or empty shell? Union An action plan for implementing the European Space Thus finally returning to the question policy".32 The call was expressly made of what the Treaty of Lisbon actually for, inter alia, space infrastructures and added to the existing opportunities of applications to serve the needs of EU the EU institutions to fundamentally political objectives and to update the and in a legal (or at least para-legal) institutional structure to provide the sense impact the European Union with new powers to drive, fund 'spacescape', the key clauses ofArticle and coordinate activities within this 189 should be seen to essentially enlarged Space Policy.33

386 contain no less than four, closely development, and coordinate the intertwined concepts. efforts needed for the exploration and exploitation of space". 4.1. A European space policy- Indeed, such programmes and Firstly, paragraph 1 provides that "[t]o activities would logically form part of promote scientific and technical a 'space policy'; actually are progress, industrial competitiveness, manifestations thereof at a more and the implementation of its policies, concrete and less overarching level, the Union shall draw up a European thus reinforcing the conclusion that by space policy". obtaining the 'competence' to draft (a) Of course, '(European) space policy' is European space policy, the EU not a legal term in the strict sense of institutions have actually prepared the the word. 'Space policy' refers to a ground for truly legislative initiatives, slightly abstract and largely strategic rather than as such taking them. That is formulation of overarching goals and essentially policy, not law - yet hugely objects, which may at some point be important for the legal realm. given shape by specific law or With a view to 'subsidiarity' and regulation - but are equally often given 'proportionality', the legitimacy of the shape by non-legal, essentially political Union promoting - including, most and policy instruments. This is also notably, by means of its budget - such true of the 'European space policy' joint initiatives, research and referenced in some key preceding EU development, and general coordinating documents as cited above. activities now no longer depends upon Nevertheless, it often does constitute a specific market-related need or the point of departure for specific requirement, but would in principle be legislative and regulatory initiatives. In broadly accepted across the spectrum particular in the EU context, where the of space activities and applications. principles of 'subsidiarity' and 'proportionality,34 require careful 4.3. European space programmes and legitimisation of any EU-Ievel other necessarv measures. legislative action as compared to Thirdly, the above 'competence' to leaving it for the individual member promote joint initiatives, research and states to regulate, the recognition of an development, and general coordinating EU 'competence' to draft an activities may still refer to fairly overarching space policy can be seen unspecific instruments to implement as the first recognition that any further any space policy, but in addition now legislative initiatives, firstly, at the EU paragraph 2 provides that for that same level should not be dismissed off-hand purpose the EU institutions may also and secondly, as far as still possible at "establish the necessary measures, the individual member state level, which may take the form of a should essentially fit within the broad European space program". framework ofsuch a policy. [t may be noted here that the relationship between a 'space policy', 4.2. European joint initiatives. as an overarching set of goals and Secondly, paragraph 1 also provides objectives and the specific 'space that the Union for the purpose of the programmes' and projects as the aforementioned space policy "may practical manifestation of that policy, promote joint initiatives, support has also led many authors to discuss research and technological the role of ESA in development of a

387 European space policy. Many civil programmatic' competences of the EU space programmes in Europe (certainly institutions as relative to those of EU the more visible and sizeable ones), member state authorities - but not of a following the dichotomy of mandatory very revolutionary nature, as Galileo and optional programmes under the and GMES most clearly show. The ESA Convention, are ESA, that is recent events concerning GMES, European, space programmes - in moreover, may put into serious doubt other words: are deemed to somehow whether that acceptance may not be constitute a European space policy. equally 'silently' be allowed to slip However, this equation overlooks that away dropped (even if only for down­ often space programmes arise not to-earth budgetary reasons). (necessarily) as a consequence of some Whatever one's evaluation of this, overarching space policy, but as however, that still did not amount to a individual, quite autonomous answers legal competence properly speaking ­ to specific societal interests - or even, that is, indeed, where the more simply and cynically, specific Constitutional Treaty presented a industrial or economic interests. novelty, as essentially copied in this The reference in the Treaty of Lisbon particular part of paragraph 2 of to space programmes developed by the Article 189 ofthe Treaty ofLisbon. Union in the context of a space policy Henceforth, the competence that the and supported, as necessary, by EU institutions with respect to space specific legal measures is by contrast would henceforth have, would no considerably more coherent, and due to longer be completely dependent on the reference in the same sentence to sector-specific characteristics related to "the ordinary legislative procedure" commercial markets and require clearly points to major space application of the free market and programmes (of which Galileo and competition principles relatively GMES were already examples) as narrowly focused on a free and level accompanied by the necessary legal playing field for commercial enterprise framework, or even to legal measures throughout the Union - as had considered desirable or necessary, happened, most elaborately, in the properly taking 'subsidiarity' and satellite communications sector. There, 'proportionality' into due account. indeed the Commission essentially had By way of those clauses therefore, set about harmonising market access, effectively the competence of the EU state aid and licensing issues all in as institutions to draft a European space far as distorting the Internal Market, policy to those extents has now been only now and then inserting clauses more or less silently acknowledged, in protecting wider public interests such particular to the extent such a policy as public or universal services. would tie in with the general remit of Had the Constitutional Treaty been the EU institutions to further the accepted, the Commission would have economic and societal development of had for the first time the competence to the member states within an ever more address 'space' and 'space activities" 35 coherent Union • Thus, from this in their full measure, not only as perspective the competence of the commercial activities but also as a new Union to now (also) develop and area where scientific, commercial, implement European space societal and strategic interests would programmes as per the Treaty of all have to be accommodated by more Lisbon is an extension of the 'politico- fundamental legislation and regulation.

388 This brings analysis to the last element, activities, one could validly pose the where the Treaty of Lisbon added to ­ question whether in this specific or rather detracted from the respect there is any domestic law of Constitutional Treaty's approach. substance which would Union legislative activity in this area. 4.4. No harmonisation ot'nationallaw. So what then does the additional, for 4.5. Sea change or empty shell? many disappointing clause of As for example the last question above paragraph 2, mean, when it conditions cannot yet be answered with definitive the competence by "excluding any authority, whether the EU 'space harmonization of the laws and competence' as resulting from the regulations ofthe Member States"? Treaty of Lisbon represents a sea Differently from other areas, where change or an empty shell would also following 'subsidiarity' and remain an open question as ofyet. 'proportionality' individual member Here, 'the of the pudding' may states would no longer be entitled to well be 'in the eating' indeed. In other draft their own legislation to the extent words, will the EU authorities for those competences had been example feel comfortable in addressing transferred to the EU level and such commercial manned from transfer would ipso facto allow the EU an EU-perspective by way of institutions to guarantee a harmonised legislation in view ofthe above - and if regime, if necessary by harmonising they undertake an effort, will they be existing national regimes, here such stopped in their tracks by member harmonisation is not possible. states referring to the above clauses? What this means from the other end is At present, therefore, the most that can ultimately related to the extent in be said is that the 'space competence' which (the) member states have currently looks more like a shell than a already elaborated relevant domestic sea change; a shell, however, which law on an issue of space activities. could become incrementally filled (and One prominent example thereof itself increase in the process) through concerns private space activities, and the constant appropriate interaction the licensing thereof. So far, six EU between EU institutions and EU member states have established a member states within the framework of national space law providing in any 'subsidiarity' and 'proportionality'. appreciable detail for a licensing system including for example liability and insurance obligations for licensees. 36 It follows, that this now Endnotes excludes a competence for the Union to try to harmonise those licensing, Treaty of Lisbon amending the liability and insurance requirements. Treaty on European Union and the On the other hand, currently one Treaty establishing the European specific new branch of private space Community (Treaty of Lisbon), activities seems about to be taking off Lisbon, done 13 December 2007, - commercial manned spaceflight, also entered into force 1 December 2009; often (somewhat imprecisely) labelled OJ C 306/1 (2007). ''. In the absence of any specific reference, let alone adaptation 2. Art. 4(3), Treaty establishing the to this sub-sector of private space European Community as amended by

389 the Treaty of Lisbon amending the Treaty on European Union and the 10. See also The Community and Space Treaty establishing the European -A Coherent Approach, Commission Community (Treaty on the Functioning Report, COM(88) 417 final, of 26 July of the European Union), Lisbon, done 1988. For an excellent recent account 13 December 2007, entered into force of EU involvement in European space 1 December 2009; OJ C 115/47 activities, see further I. Marboe, (2009). National Space Legislation: The European Perspective, in Nationales 3. So e.g. S. Hobe, et ai, A New Weltraumrecht - National Space Law Chapter for Europe in Space, 54 (2008), 31-46. Zeitschrifi fur Lufi- und Weltraumrecht ESA had been established in 1975 by (2005),346-7. means of the Convention for the Establishment of a European Space 4 Article 189, Treaty on the Agency (ESA Convention), Paris, done Functioning of the European Union. 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); 5. Treaty establishing a for Space Law - Basic Legal Documents, Europe, Rome, done 29 October 2004, C.l.l. not entered into force; OJ C 310/1 (2004). II. Towards Europe-wide systems and services - Green Paper on a common 6. See Art. II, Treaty on Principles approach in the field of satellite Governing the Activities of States in communications in the European the Exploration and Use of Outer Community, Communication from the Space, including the and Other Commission, COM(90) 490 final, of Celestial Bodies (), 20 November 1990. /Moscow/Washington, done 27 January 1967, entered into force 10 12. Towards a Dynamic European October 1967; 610 UNTS 205; TIAS Economy - Green Paper on the 6347; 18 UST 2410; UKTS 1968 No. Development of the Common Market 10; Cmnd. 3198; 6 lLM 386 (1967). for Telecommunications Services and Equipment, Communication from the Single European Act, Commission, COM(87) 290 final, of Luxembourg/The Hague, done 17/28 30 June 1987; OJ C 257/1(1987); as February 1986, entered into force 1 per Council Resolution on the July 1987; 25 ILM 506 (1986); OJ L development of the common market 169/I (1987). for telecommunications services and equipment up to 1992, of 30 June Treaty of Rome, or Treaty 1988, OJ C 257/1 (1988). establishing the European Economic Community (EEC Treaty), Rome, done 13. Commission Directive amending 25 March 1957, entered into force I Directive 88/30l/EEC and Directive January 1958; 298 UNTS 11. 90/388/EEC in particular with regard to satellite communications (Satellite 9. Cf. e.g. Toksvig Report on European Directive), 94/46/EC, of 13 October space activities, Doc. B 2 565/86, of 6 1994; OJ L 268/15 (1994). July 1986.

390 14 Some early examples of such 15. Cf. e.g. Art. 3, Satellite Directive, in legislation are: Commission Directive conjunction with the other articles of amending Directive 90/388/EEC with the Directive and the 1990 Green regard to the abolition of the Paper effectively calling for restrictions on the use of cable abolishment of the various anti­ television networks for the provision of competitive elements in the legal already liberalized telecommunications structures ofthese three organisations. services, 95/51/EC, of 18 October 1995; OJ L 256/49 (1995); 16 Directive of the European Commission Directive amending Parliament and of the Council on the Directive 90/387/EEC with regard to legal protection of databases, 96/9/EC, personal and mobile communications, of 11 March 1996; OJ L 77/20 (1996). 96/2/EC, of 16 January 1996; OJ L 20/59 (1996); Commission Directive 17. Council Resolution on the European amending Directive 90/388/EEC with Contribution to the Development of a regard to the implementation of full Global Navigation Satellite System competition in telecommunications (GNSS), of 19 December 1994; OJ C markets, 96/19/EC, of 13 March 1996; 379/2 (1994). OJ L 74/13 (1996); and Decision of the European Parliament and of the 18. Council Regulation setting up the Council on a coordinated authorization Galileo Joint Undertaking, No. approach in the field of satellite 876/2002/EC, of 21 May 2002; OJ L personal communications systems in 138/1 (2002). the Community, No. 710/97/EC, of 24 March 1997; OJ L 105/4 (1997). 19. Those concern Council Regulation Some early examples of decisions on the establishment of structures for enforcing competition policy in the area the management of the European are: Commission Decision declaring a satellite radio-navigation programmes, concentration to be incompatible with No. I32112004/EC, of 12 July 2004; the common market and the OJ L 246/1 (2004); Regulation of the functioning of the EEA Agreement European Parliament and of the (IV/M.490 Nordic Satellite Council on the further implementation Distribution), No. 96/177/EC, of 19 of the European satellite navigation July 1995; OJ L 53/20 (1996); programmes (EGNOS and Galileo), Commission Decision relating to a No. 683/2008/EC, of9 July 2008; OJ L proceeding under Article 85 of the EC 196/1 (2008); and Regulation of the Treaty and Article 53 of the EEA European Parliament and of the Agreement (IV/35.518 - Iridium), No. Council setting up the European GNSS 97/39/EC, of 18 December 1996; OJ L Agency, repealing Council Regulation 16/87 (1997); and Commission (EC) No 132112004 on the Decision declaring a concentration to establishment of structures for the be compatible with the common management of the European satellite market and the EEA Agreement radio navigation programmes and (COMP/M.4403 Thales/ amending Regulation (EC) Finmeccanica/Alcatel Alenia Space & No 683/2008 of the European Telespazio), of 4 April 2007; OJ C Parliament and of the Council, 034/5 (2009). No.912/201O/EU, of 22 September 2010; OJ L 276/11 (2010).

391 navigation services Galileo­ 20. Council Resolution on the launch of Definition phase, of 19 July 1999; OJ the initial period of global monitoring C 221/0 I (1999). for environment and security (GMES), of 13 November 2001; OJ C 350/4 30. Cf. Art. Xl, ESA Convention, resp. (200 I). Art. 16, Treaty on European Union as amended by the Treaty of Lisbon 21 Regulation of the European amending the Treaty on European Parliament and of the Council on the Union and the Treaty establishing the European Earth monitoring programme European Community, Lisbon, done (GMES) and its initial operations 13 December 2007, entered into force (2011 to 2013), No. 91 1/20 I OIEU, of I December 2009; OJ C 115/1 (2009). 22 September 2010; OJ L 276/1 (2010). 31 See Council Resolution on developing a coherent European space 22 See e.g. strategy, of 2 December 1999; OJ C b11J2:lL\Y'I:Y}\',-,<;j2ill:q1f\Y~Q9ml civiII II01 375/1 (1999); and Council Resolution 19-ec-wants-nations-fund-gmes.html. on a European space strategy, of 16 November 2000; OJ C 371/2 (2000). 23. Framework Agreement Between the European Community and the 32. White Paper - Space: a new European Space Agency (Framework European frontier for an expanding Agreement), Brussels, done 25 Union An action plan for November 2003, entered into force 28 implementing the European Space May 2004; OJ L 261/64 (2004); 53 policy, COM(2003) 673 final, of II ZLW 89 (2004). November 2003; emphasis added.

24. See Art. V(1 )(a), ESA Convention. 33. See esp. §§ 2, 3, White Paper ­ The contributions of the various Space: a new European frontier for an member states were based on the expanding Union. respective Gross National Products; cf. Art. XIII( 1). 34 See Art. 5, Treaty on the Functioning ofthe European Union. 25. See Art. V(l)(b), ESA Convention, th in conjunction with Art. XIII(2). 35. Cf. Preamble, 9 consideration, Treaty on European Union. 26 See Art. Xll(1)(b), ESA Convention. 36. This concerns, in chronological order, Sweden, the United Kingdom, 27. Cf. Art. XI(5)(a) & (c), ESA Belgium, the Netherlands, France, and Convention. Austria; see e.g. I. Marboe & F. Hafner, Brief Overview over National 28. See Art. VII & (in particular) Artt. Authorization Mechanisms in II, IV, V, Annex V, ESA Convention. Implementation of the UN International Space Treaties, in F.G. 29. Cf. e.g. Preamble, § (5), Council von der Dunk (Ed.), National Space Resolution on the involvement of Legislation in Europe (2011), 29-73. Europe in a new generation of satellite

392