The Future of the European Space Agency-EU relationship: Critical Aspects and Perspectives

Dimitris Liakopoulos*

Summary

This paper analyses the relationship of the European Space Agency (ESA) with the EU. Following the entry into force of the Lisbon Treaty, Art. 189 TFEU expressly provides that the Union should establish on-going connections with the ESA in order to work together efficiently. The introduction of such a legal basis, shows a substantial lack of political will, mostly by the ESA's Member States and the ESA itself, to move towards the creation of a single European entity responsible for space policy in the continent, under the umbrella of EU.

1. Introduction

The EU has assumed an increasingly important role in the space sector. This role has gone hand in hand with developing relations with the European Space Agency (ESA) and its Member States, the other two main players in European space policy. In this context, the European Commission (EC) has entrusted the ESA with some important responsibilities related to the implementation of specific EU space programmes. [1] The consolidation of an ever-closer relationship with the ESA would allow further developments in the division of their tasks. The ESA is an international agency that has to be acknowledged for its achievements over the last four decades. The EU relies on the technical excellence of the ESA, to which it delegates a large part of its space policy-focused budget, to such an extent that today the EU contribution to the ESA is one of the most significant. [2]

Despite the increasing importance of EU space programmes and its dependence on the ESA's technical competence, this has not yet resulted in a definitive evolution of the governance of space issues at a European level. Article 189 TFEU, after the Lisbon reform of 2007, expressly provides for the Union to establish all useful links with the ESA in order to continue their effective cooperation (Liakopoulos, 2018).

The objective of this contribution is to highlight the evolution of relations between the EU and the ESA after the the Lisbon Treaty bringing space policy under the remit of the competences of the Union. However, at the same time, there is a lack of political will, especially on the part of the ESA and its Member States, to make these relations evolve in a unitary sense, i.e. towards the creation of a single responsible entity of space-focused policies at a continental level, perhaps under the auspices of the EU (Muňoz-Rodriguez 2008) [3] .

  • 2. The Evolution of the EU's Competence in Space Matters

    The founding treaties of the European Communities did not in any way include a competence in space matters. The first attempt to guide Member States' action in this area is represented by two Resolutions of the European Parliament. [4] The Single European Act introduced a specific title dedicated to technological research and development.  This was then amended with the Maastricht Treaty, but did not provide for any transfer of competences and merely provided for complementary action by institutions in relation to the policies followed by Member States. However, it was with the Treaty of Lisbon that space was included among the policies pursued by the EU, albeit as a transversal intervention area.  In this way, it affects many sectors of activity and acquires autonomy when it receives explicit mention as a sector in itself. [5] The sector in question does not seem to have acquired the desired autonomy, as space activities must be linked to scientific research. In fact, the objectives of European space policy today seem to be added to a number of others provided for in general by Art. 189 TFEU, whose part 1 links the development of a European space policy to the Union's objective of "favoring technical and scientific progress, industrial competitiveness and the implementation of its policies". Such a formulation of Art. 189 TFEU has led to space policy being considered as "enslaved" by other European policies, while underlining, at the same time, a certain transversality between them.

    Article 4, part 3 of the TFEU, includes space policy as a matter of concurrent competence between the Union and Member States, with the fundamental clarification that EU action in this specific sector, as well as in those of research and technological development, is limited to the definition and implementation of space programmes.  Furthermore, the exercise of that competence cannot have the effect of preventing Member States from exercising their own policies, unlike what usually happens in relations between the EU and Member States on matters of shared competence (Decheva 2018, Bernard, Peers 2017, Foster, 2016). The Union, thus, has in space matters a sui generis competence, parallel and symmetrical with respect to the State, which remains with the Member States even after the exercise of powers by EU institutions. The spheres of national and European competence, therefore, operate on different levels, without interfering but integrating and coordinating with each other. [6] This means, in essence, that the European institutions, while playing an important role, cannot exhaustively condition Member States' policies on the subject (Hartkamp, Siburgh, Devroe 2017, Lenaerts, Maselis, Gutman 2014, Wierzbowski, Gubrynowicz 2015, Woods, Watson 2017, Türk 2010, Barnard, Peers 2017, Berry, Homewood, Bogusz 2013, Conway 2015, Nicola, Davies 2017, Usherwood, Pinder 2018, Da Cruz Vilaça 2014) [7] . The division of competences between the EU and Member States must be read in light of the principle of loyal cooperation, i.e. the obligation imposed on all national and European institutions to act in accordance with the role assigned to it by the Treaty.  In particular, it is for Member States to adopt all measures to ensure the scope and effectiveness of EU law. This seeks to avoid compromising the objectives set by the Treaty, through continuous consultation and collaboration.

    Matters of space policy have always been characterised by the search for a legal basis capable of legitimizing the intervention of EU institutions in this area. However, a narrow and fragmented vision has been adopted towards this sector.  In fact, as mentioned, space has always been perceived not as a sector in itself but falling within the matters already regulated by the EU. [8] It was in a 1999 working document that the EC, noting the predominant role of the United States in space technology, underlined the strong need for the independence of Europe, which, could not be separated from the on-going relations between the EC/EU and the ESA.

  • 3. Relations Between the European Union and the European Space Agency

    The ESA was established in 1975. It has 20 Member States, not all of which are Members of the  EU, plus Canada, which takes part in some projects through a cooperation agreement.  Estonia, Slovenia and Hungary participate in the ESA as European Cooperating States. Therefore, not all EU member countries are members of the ESA and vice versa.

    Until the establishment of the European Space Agency (ESA) in 1975, [9] the cooperation between European States in matters of space policy had not produced any concrete results. The ESA, although created with the aim of giving rise to a European space policy, having been formed naturally outside the then European Communities, has continued to develop outside the process of European integration, albeit in parallel. Indeed, it was Union institutions, rather than ESA Member States, that pushed for the activation of effective cooperation initiatives in the space sector. In particular, the European Parliament has played a key role in supporting initiatives for the development of EU's space policy, specifically by conditioning the legislative agenda in the direction of moving from an intergovernmental European space policy to a supranational policy of the Union.

    The process of achieving a productive cooperation between the EU and the ESA has been slow and difficult, due to the different starting targets, namely the ESA's "right return" leadership, politics, and liberalism, an open, free and competitive market, own of EU. Since the 1990s, the European institutions have repeatedly expressed the need to strengthen the synergy and improve the complementarity between the then EC and the ESA, while respecting their respective competences. [10]

    It was in 2000 that, at the Council's invitation, the EC published, together with the ESA, a strategic document that pursued three main objectives, centered on: consolidation of space activities, maintaining an independent and economically sustainable access to space; deepening of scientific knowledge for a better understanding of the planet; and ensuring benefits for markets and society thanks to the demand-oriented exploitation of the space community's technical skills. [11] The consolidation of cooperation between the two organizations took place with the Council resolution on the European space strategy of 16 November 2000, in which the EC was invited to establish, in cooperation with ESA, a joint task force with an aim to deepen the European space strategy and to make proposals for its execution. Precisely because of the growing collaboration between the EU and the ESA, the ESA's director general decided to consult with a group of independent experts on the role that it could play in the implementation of European space policy. The result of these works is contained in the "Bildt report" of 2000, in which it was hoped that the ESA would become the EU Space Agency, with the task of implementing space policy on the basis of what was established by the competent European institutions. As was easily imaginable, probably then more than now, the results of "Bildt report" did not arouse particular enthusiasm, especially in ESA environments. Following the indications provided in 2002 by the Commission-ESA task force, the then CE and ESA signed a Framework Agreement [12] in Brussels in several areas of activity, with a view to achieve two objectives: the coherent and progressive development of a common European space policy and the establishment of an efficient common base supporting mutual cooperation between the ESA and the EU, while respecting the institutional and operational structures of both. Despite this progress, cooperation between the ESA and the EU remained limited to individual projects, and although a joint EU-ESA, [13] was also envisaged, there was no clear distinction and distribution of skills between the two organizations.

    The establishment of a cohesive European space policy, outlined in EU Communication of 26 May 2007, consisted of a joint Commission document and ESA Director-General. [14] In fact, although the development of a space policy was considered a strategic choice for the EU to assume a global leading role in economically relevant sectors, the high costs and risk factors associated with these activities have led to an increase in the coordination of activities and programs between the EU, the ESA and their Member States. In this way, the EC/EU-ESA Framework Agreement has provided a solid basis for coordination mechanisms between present and future intergovernmental and European actions.

    With the entry into force of the Treaty of Lisbon, the role of the ESA in the elaboration and implementation of a European space policy has been recognized by the aforementioned Art. 189 TFEU, whose part 3 highlights the need for the EU to establish a synergistic programme of activities with the ESA. It is important to note, however, how the wording of this provision is general, given that it only provides that: The Union establishes all useful links with the European Space Agency", thus leaving open the possibility of future developments, both in reation to the inclusion of ESA in European institutional framework, as an EU space agency, and also in terms of EU accession to the international agency, without the need to amend EU treaties.

  • 4. The Different Solutions Available for Future Relations Between the EU and the ESA

    The growing importance of European space programmes and the EU's dependence on the technical expertise of the ESA have not, over the years, translated into an evolution of space policy-related governance at a European level. In November 2012, both the EU and the ESA Council at ministerial level set out to outline possible paths for EU relations with the ESA in order to continue their effective co-operation.

    With regard to the EU, the Communication of 2012 identified five structural obstacles in EU/ESA relations. [15] A first obstacle, according to the EU, would be the differences in funding regimes. Indeed, the management of EU funding by the ESA is still quite complex, as the Union and ESA operate on the basis of different policies in this area which must necessarily coexist. ESA programs, in most cases, are financed by Member States' holdings and pursue the goal of geographical return. Instead, EU rules require compliance with the strict principle of the most economically advantageous tender, which also applies to ESA implementation cases of EU programmes. [16] These regulatory differences have given rise to difficulties especially when programmes are financed through joint ESA and EU participations, thus exacerbating decision-making times and making programs and their impact less effective.

    A second obstacle is the asymmetric composition of these two organizations. In fact, there are currently 17 EU members that are part of the ESA, while Norway and Switzerland, non-EU members, are also members of the ESA.  Furthermore, the prevailing voting system in the ESA Council, regarding fundamental decisions such as satellite launching, is unanimity, giving ESA non-EU members a disproportionate influence on issues that can have repercussions on the EU. At the same time, however, the Union cannot impose any duty of loyalty to EU programmes to ESA members who are not part of the same Union. The asymmetry concerning the composition of the two organizations today may seem less problematic than the first obstacle.  However, this could lead to in the future, in relation to an effective collaboration between the EU and the ESA. 

    This membership problem is directly linked to the third structural obstacle, which relates to asymmetries in the fields of security and defence. The Treaty of Lisbon, with the establishment of the European External Action Service, [17] has strengthened EU's competence in the field of security and defence. Space infrastructures are often used for civil and defense purposes. To contribute to the achievement of a common security and defence policy, the Union will need to strengthen the links and synergies between civil and defence dimensions in the space sector, and facilitate collaboration between Member States and ESA. However, the relationship between the EU and the ESA is complicated by the fact that the ESA has non-EU Member States among its members, which raises the issues outlined above In particular, the potential sale of sensitive technologies to third countries could pose strategic security problems for the EU.

    The fourth structural obstacle is the absence of mechanisms for coordinating policies. In fact, ESA space activities do not have structural mechanisms that ensure constant connection and coordination with the development of more general EU policies. The 2003 EU/ESA Framework Agreement itself, despite its wide scope, does not provide for specific mechanisms in this regard. Some forms of coordination and cooperation have been agreed in the course of negotiations relating to individual programmes, but there is no formal mechanism at a political level that guarantees the consistency of initiatives undertaken by the ESA in relation to the EU's policies.

    Finally, the fifth structural obstacle in EU/ESA relations is the absence of ESA political and financial responsibility and the resulting asymmetry with the EU in this regard. Indeed, ESA, as a European international agency, has no formal link with the European Parliament, thus depriving it of the direct relationship with the citizens benefiting from any EU policy. The European Commission (EC), in fact, pursuant to Art. 317 of the TFEU, implements the budget and is accountable to the European Parliament and the Council for any delay in the implementation of EU programmes (Geiger, Khan, Kotzur 2016). At the same time, the responsibility of the Commission alone reduces ESA incentive to complete the programmes, especially those co-financed, within the estimated timeframe and budget.

    Since the aforementioned 2012 Communication, the EC hoped that, in close cooperation with ESA, it would be possible to present to Member States with a series of possible options to bring the highlighted structural barriers closer together. These possible options would aim to improve the cooperation between the EU and the ESA and to place the ESA under EU authority as an intergovernmental organization (following the model of the European Defence Agency), or to work towards transforming the ESA into an EU agency (according to the model of current regulative or decentralized agencies).

    The analysis of the possible options highlighted by EC, however, cannot fail to start from the basic position of the maintenance of the status quo (see Hobe 2004, pp. 28ss, Remuss 2018, Hoerber and Stephenson 2015). [18] Such an option would leave the relationship between the EU and the ESA unchanged, bringing them back to the 2004 framework agreement. The two organizations would remain separate entities without efficient mechanisms that could ensure greater coherence and coordination between them. The Union would continue to finance, or co-finance with the ESA some space programmes the execution of which would, however, be delegated to the ESA. These programmes will be developed on the basis of specific agreements negotiated ad hoc, whose objectives will be determined according to the institutional frameworks of the EU and the ESA respectively.

    The second option would be to improve cooperation between the EU and the ESA while preserving the status quo. In doing so, the two organizations would remain separate entities, although the interface and the relationships between them would be adapted by amendments to the existing EU/ESA framework agreement of 2004 and an overhaul of the delegated agreements. The political and mission objectives would be determined jointly by the EU and the ESA, and drawn together in a new framework agreement. This would be adopted by the ESA and the EU Council, with the approval of the European Parliament. For the implementation of programmes, the new framework agreement would have new coordination mechanisms in which the ESA would continue to develop internally its capacity to manage the differences between the two financial regimes, working towards a gradual alignment of accounting systems and internal procedures across the EU.

    The third option would be to establish a programmatic structure dedicated exclusively to the management of EU programs, creating a "EU pillar". [19] In defining such an option, it is necessary to adopt a rather pragmatic approach, which takes the starting point from the problems it intends to solve.  In this respect, it is considered essential that the proposed "EU pillar" is designed to operate in compliance with Union rules. Such a construction would allow the problem of the discrepancy between the financial rules of Union and the ESA to be resolved. Consequently, acting within an "EU pillar", therefore an environment similar to the EU, would not give rise to any problems related to the asymmetric composition of the two organizations. In fact, the "EU pillar" would be hosted within the ESA, including, from a logistical point of view, sharing some common services with the "EU pillar" and the intergovernmental ESA. The creation of an "EU pillar" within the ESA would have no effect on the current functioning of the remaining intergovernmental departments of ESA. Such an option would require a more in-depth analysis of legal and institutional issues, in particular with regard to political responsibility. Such an approach would need to operate in full compliance with the applicable financial rules and, in particular, the budgetary principles provided for in the Financial Regulation. [20]

    The fourth option would consist in transforming ESA into a Union agency, while at the same time maintaining some of ESA's intergovernmental character, as optional programs other than EU programs funded directly by Member States outside the EU budget. This agency would thus have a legal basis in EU law and would operate under the latter legal order.

    The four options advanced by the EC for the resolution of structural limits in the current relations between the EU and the ESA present different outcomes related to the effectiveness and costs associated with their application. The suitability of the individual options to address and resolve the structural problems and operational inefficiencies need to be seen in the light of potential benefits, including savings generated in terms of staff costs and any impact on the time taken to adopt decisions.  Furthermore, they should aim to improve the ease and speed of the application of any necessary legal provisions.

    In terms of their ability to resolve the highlighted structural limitations by different options, it is quite clear that the first one outlined above is the least effective solution. In fact, the maintenance of the status quo would perpetrate the current inefficiencies underlying the pro-posed reform of relations between the EU and the ESA. The second option would only partially solve the current problems by postponing their solution to a later stage, through a gradual alignment of the two systems by amending the existing 2004 framework agreement. Options three and four would largely resolve the current structural limitations in relations between the EU and the ESA, with the fourth option having the greatest impact. Indeed, both the creation of an "EU pillar" including the ESA, the transformation of the ESA into a full-fledged EU agency would almost completely solve the structural obstacles mentioned.

    The analysis of the different options on the basis of the specific structural obstacles highlighted, leads to the conclusion that the discrepancy between the relevant financial rules would be almost entirely resolved with options three and four, while option two would alleviate these issues. Likewise, the two asymmetries found, with regard to the composition of the two organizations and in the field of security and defence, are almost completely resolved if the ESA becomes both an EU agency and if an "EU pillar" is created within the ESA.  The hoped for greater synergies and cooperation within the status quo put forward in the second option would only partially solve the specific structural obstacles in question. Regarding the absence of policy coordination mechanisms, this would be completely addressed by the fourth option and only in large part by options three and two. Indeed, political coordination and alignment of industrial policy objectives will grow with a rapprochement between the ESA and the EU, while the decision-making mechanisms will remain problematic unless the ESA is transformed into a Union agency.

    With regard to the legal adjustments necessary for the application of the different options envisaged, with the exception of the first which would not require any adjustment, the second option would seem to be relatively simple to apply, since it would require mere amendments to the current EU framework agreement of 2004, or the conclusion of a new framework agreement. The third option, as stated by EC, [21] itself, would require the adoption of an EU legislative Act that contains the legal definitions of the functions assigned to an "EU pillar", its structure, financial requirements subject to a detailed quantitative cost-benefit analysis and an assessment of the complex institutional and legal implications of the option in question. It should also contain the necessary changes to the ESA legal framework. The fourth option would seem to present the greatest difficulties in terms of legal adjustments. In this case, in fact, the ESA in its current form would cease to exist as an intergovernmental organization and it would be necessary to set up an EU agency.  This would require the adoption of the relevant regulations concerning personnel and financial matters, including possible transitory regulations. Precisely because of the difficulty in achieving a political consensus in the near future, this option is to be considered the least viable from the point of view of its feasibility.

    The same positions described above were already expressed in ESA report on the status of the ESA/EU reports presented to the ESA Council in December 2013.  This described the most promising options as those concerning an "improved status quo" and the one concerning a "EU Chamber", not very dissimilar, therefore, from options 2 and 3 contained in the aforementioned Commission report of February 2014.

    Despite such good intentions, however, the same ESA Council the met at ministerial level in Luxembourg on 2 December 2014, has adopted, inter alia, a resolution on the evolution of the agency.  Chapter V, on the evolution of relations between the ESA and the EU recognized and noted the willingness of ESA Member States to maintain the status of the ESA as an independent and intergovernmental space organization, playing its part in the implementation of programmes agreed and conducted on their behalf. At the same time, the ESA Council recognised the benefits of a lasting and fruitful partnership between the agency itself and the EU in the development and joint application of the European space policy, together with the respective Member States, through a dynamic and gradual approach that is faithful to 2004 Framework Agreement. In the same resolution of 2014, the ESA Council also expressed the need to renew the reliable and sustainable partnership between the ESA and the EU in order to facilitate the application and evolution of the jointly developed space policy.

    The resolution of the ESA Council held at ministerial level in Lucerne on 1 and 2 December 2016 did not take different from earlier pronouncements. In fact, once again, the ESA Council called for a strengthening of cooperation between the ESA and the EU, but always under the 2004 Framework Agreement, in order to achieve common objectives and programmes for the benefit of European citizens.  In this way, they sought to underline the importance of establishing agreements for a sustainable and mutually beneficial cooperation that would take into account, however, the differences between the ESA and the EU.

    In relation to the future of European space policy after Brexit, it is anticipated that the United Kingdom's participation in purely ESA programmes is unlikely to suffer any negative consequences. It is predicted that the United Kingdom will have a status similar to that of Switzerland and Norway.

    It is likely that other programmes will certainly be significantly impacted as they are funded and/or include the participation of the United Kingdom as an EU Member State. It is not possible to quantify the economic and legal impact of Brexit in these specific areas: much depends on the nature of the severance and any legal agreements made as part of this process. 

    The space programmes that could suffer the greatest repercussions will be the Galileo program for the creation of a civil global positioning system, financed by the EU as an alternative to the American GPS system (which remains owned and controlled by the US Ministry of Defence). Its entry into service is scheduled for the end of 2019 and will have 30 satellites orbiting 3 planes inclined with respect to the earth's equatorial plane of about 56 ° and at an altitude of about 23,000 km. The United Kingdom participates in the program as an EU Member State, but also as a member of ESA. This follows the Copernicus programme, an EU-funded programme to establish a monitoring network of global climatic and environmental conditions. The United Kingdom participates in the programme as an EU Member State, but also as an ESA and EUMETSAT Member State and many UK citizens occupy positions as contractors or ESA staff.

    5. Concluding Remarks

    In view of the different assumptions made by the 2014 EC report, and the persistent resistance of the ESA and its Member States towards a total convergence of European space policy within the EU, the most viable solution in terms of effectiveness and ease of application is the creation of a dedicated entity within the ESA. The advantage of this option is to preserve ESA's intergovernmental structure, strongly supported by the Agency's Council, while creating an appropriate framework to manage the financial resources made available by the Union.

    The compromise solution present in the 2014 EC report, supported in this paper, however, does not diverge significantly from the proposal made by the Minister of scientific policy of the Kingdom of Belgium, Paul Magnette, at ESA Council meeting at ministerial level to Naples on 20 and 21 November 2012 [22] . According to the Belgian government, the future strengthening of synergies between the EU and the ESA should be based on the consistency and complementarity of transactions between the two entities. Such a design would consist of two temporal phases, a short-term one that should ensure that the ESA constitutes the Space Agency for the EU.  In this approach, the ESA would be the only European agency for research, technology, and development of space systems, putting its expertise and infrastructure at the service of the EU and its policies. A second phase, in the medium term (according to the Belgian Government to be put in place from 1 January 2021), should provide that the ESA should become European Space Agency, through a model of EU sui generis agency.  This would allow it to continue to work with all current ESA Member States, preserving their culture and the characteristics that have ensured their success over the years, starting with those provisions that promote investments by its Member States in research, technology, and development of space infrastructure. In essence, therefore, the proposal of the Belgian government in 2012 did not provide for the transformation of the ESA either in the general direction of the Commission or in a decentralized EU agency. The application of this proposal, from an EU point of view, would imply the adoption of necessary measures to ensure that the ESA systematically provides the Agency for the development and application of Union's operational space programs. At the ESA level appropriate management and control methods should be identified for the programmes delegated by the EU, creating a third category of programmes, within a set of harmonized provisions allowing these activities to be conducted in accordance with the rules currently in force in the EU.

    Despite the constant calls for a structural convergence of relations between EU and the ESA the path to such an implementation seems rather tortuous. The ESA, and especially its Member States, will be reluctant to renounce, as they have already expressed several times, their sovereignty for the benefit of the EU's aims in this area.

    Moreover, as highlighted above, EU Member States also did not recognise full competence for the Union in space policies, assigning it a shared competence through which it is parallel and symmetrical to that of the Member States.

    The only realistic solution for future institutional relations between the EU and the ESA and of the on-going initiatives and common strategies for the operational development of an integrated European space policy seems to be the compromise one indicated as the third option in an EC report of 2014, which envisages the creation of a "EU pillar" within ESA; not very dissimilar, however, by the proposal put forward by the Belgian minister Magnette a few years earlier.

    *Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy). Full Professor of International and European Criminal and Procedural Law at the De Haagse Hogenschool-The Hague. Attorney at Law a New York and Bruxelles.

    e.mail: d.liakopoulos.981@gmail.com

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    [1] By way of example, the GMES (Global Monitoring for Environment and Security) program, jointly presented by the European Commission and ESA in 2001, can be cited with the aim of providing information services that allow access to data under EU control, and precise information on environmental and safety matters meeting the needs of a wide audience. The most recent Copernicus programme, which replaced GMES, and with which the Commission delegates to ESA a series of tasks, including the technical coordination of the space component of the Copernicus program, the management of allocated funds and the assurance of monitoring and of the control. See, regulation no. 377/2014 of the European Parliament and of the Council of 3 April 2014 establishing the Copernicus program and repealing Regulation 911/2010, in OJ, L 122 of 24 April 2014, p. 44. The EGNOS (European Geostationary Navigation Overlay Service) program, based on a tripartite agreement between the EU, ESA and Eurocontrol, concerning the development of a global satellite navigation system, in which ESA is called upon to deal with the technical aspects, while the EU identifies user needs and ensures the establishment of the system.

    [2] Currently, a substantial part of the EU's space budget, around 75%, is donated to ESA, while 20% of ESA-managed funds originate from the EU budget. Consequently, the EU today is the largest contributor to ESA and the amount of the EU budget devolved to it over the coming years will exceed the individual contributions of all ESA States Parties. See, Report from the Commission, on the appropriate relations between the European Union and the European Space Agency (ESA), of 6 February 2014, COM (2014) 56 final, p. 3.

    [3] This refers in particular to the already mentioned Commission Report of 2014, which was followed up by the Communication from the Commission to the Council and the European Parliament on the establishment of appropriate relations between the European Union and the European Space Agency of 14 November 2012, COM (2012) 671 final.

    [4] See the Resolution of the European Parliament of 25 May 1979 on community participation in space research, in OJ, Series C 127, p. 79; and, the Resolution of the European Parliament of 17 September 1981 on Europe's space policy, in OJ, Series C 260, p. 81.

    [5] Part of the doctrine questioned how much such an explicit mention was really necessary, but concluded in the affirmative in terms of the attribution of dignity to the space sector within the framework of EU policies, although the then European Community had long since be concrete actions in aerospace.

    [6] The EU member states, under negotiation of the Treaty of Lisbon, expressly wanted to protect themselves from the possibility that in this specific field of shared competences with the Union the principle of preemption could be applied, provided for in art. 2, par. 2, TFEU.

    [7] It would therefore not be a "pre-eminent" but "parallel" competency, since there are no hierarchical relationships or applications of the principle of primacy, but rather the presence of a mere coordination or a generic influence with respect to national policies. In this regard, it should be noted that the art. 189, par. 2, TFEU, in providing for the legal basis for the adoption of European space programs through acts adopted by ordinary legislative procedure, expressly excludes that such acts may provide for harmonization of the laws and regulations of the Member States.

    [8] The first Commission communications on space were closely related to other European policies, in particular telecommunications, satellite navigation and terrestrial observation. See, in this regard, the Commission communication of 26 July 1988, COM (1988) 417 final; the Commission Communication of 23 September 1992, COM (1992) 360 final; the Commission Communication of 4 December 1996, COM (1996) 617 final; the Commission Communication of 24 September 1997, COM (1997) 466 final.

    [9] ESA has essentially replaced two pre-existing organizations, the ELDO (European Organization for the Development and Construction of Space Carriers) and ESRO (European Space Research Organization), both established in 1962.

    [10] See the Communication from the European Commission on the European aerospace industry: responding to the global challenge, COM (1997) 466 final of 24 September 1997; the Council Resolution on the strengthening of the synergy between the European Space Agency and the EC of 22 June 1998, in OJ Series C 224; the Council Resolution on the development of a coherent space strategy of 2 December 1999, in OJ, Series C 375.

    [11] See the Commission Communication on Europe and Space: A new chapter begins, COM (2000) final of 27 September 2000.

    [12] The EC/ESA Framework Agreement, negotiated by the Commission, was subsequently approved, on behalf of the then Community, by the Council with the Decision of 29 April 2004 concerning the conclusion of the Framework Agreement between the European Community and the Space Agency European Union, in OJ of 6 August 2004, L 261, p. 63.

    [13] In particular, article 8 of the Framework Agreement provides that co-ordination and facilitation of cooperative activities must be carried out through regular joint and concurrent meetings of the EU Council and the ESA Council at ministerial level, giving rise to the "Council space".

    [14] See, COM (2007) 212 final of 26 May 2007. In addition to this Communication, the Commission's Green Paper of 21 January 2003 should be recalled on the medium and long-term future of space use for the benefit of Europe, and the White Paper of 11 November 2003, which stressed that European space policy had to be implemented in the context of a multi-annual space program periodically updated.

    [15] See the Communication from the Commission to the Council and the European Parliament on the establishment of appropriate relations between the European Union and the European Space Agency, of 14 November 2012, COM (2012) 671 final.

    [16] In this regard, the CE/ESA Framework Agreement of 2004 expressly provides, in art. 5, par. 3, which: "...[A]ny 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...".

    [17] Art. 27, par. 3 of TEU provides that the High Representative of the Union for Foreign Affairs and Security Policy, in the execution of his duties, shall use a European external action service, working in collaboration with the diplomats of Member States.

    [18] In fact, there would be a further option that was not taken into consideration by the European Commission, where the EU would become an ESA member in the same way as the Union is a member of the World Trade Organization. Such an option is clearly supported by those who believe that ESA should remain the cornerstone of European space policy, although it seems unrealistic according to many observers of the EU political system.

    [19] The European Commission does not refer to a pre-existing definition of "EU pillar"/ESA, although in some communications to the European Parliament it stated that this pillar would constitute a step towards greater operational efficiency, greater symmetry in defense matters and security, coordination and political responsibilities, creating an environment and conditions closer and closer to those provided for by EU law.

    [20] Regulation n. 966/2012 of the European Parliament and of the Council of 26 October 2012 on the financial rules applicable to the general budget of the Union, in OJ, L 298.

    [21] See: Report from the Commission, Progress report on establishing appropriate relations between the European Union and the European Space Agency (ESA), of 6 February 2014, COM(2014) 56 final, p. 7.

    [22] Woods, L., Watson, P (2017), Steiner & Woods European Union law, (Oxford University Press, Oxford) pp. 37ss