Abstract
With the advent of the Treaty of Lisbon, the legal personality of the former European Community has been transferred to the European Union. This is a logical transition, given that the awkward three Pillar divide across the Community andUnion, introduced by the Treaty of Maastricht, has now been eliminated. With the Lisbon Treaty, the relations between the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have been finally put on a par.627 At the same time, the Lisbon Treaty introduces specific, but nevertheless limited powers for the Union in relation to its space activities.628 Moreover, the Union’s space competences are to be exercised in parallel to those existing at national level.629 This limitation is significant, given that the European Union’s two major space projects to date — Galileo and GMES — have been initiated using powers that existed prior to the introduction of the space competence in the Treaty of Lisbon. The Galileo project was based on the provisions of Art. 154 EC(Art 170 TFEU), while the GMES programme was introduced under the rules governing funding for research and development.630
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References
On the complex structures of the various satellite organisations in Europe (EUTMETSAT, ESOC), including their privatisation (EUTELSAT), see Francis Lyall, Larsen, P., Space Law, A Treatise, 2009, 356–364; for a history of the specialist international agencies and intergovernmental organisations, see P.I.Ph. Diederiks-Verschoor (ed. Kopal), Introduction to Space Law, 2008, ch. 1.
Some of these, notably EUTELSAT, have since been privatised, see Francis Lyall, id.
See Framework Agreement Between the European Community and the European Space Agency (hereafter Framework Agreement), Brussels, done 25 November 2003, entered into force 28 May 2004; OJ L 261/64 (2004).
Krige, J & Russo, A, The story of ESRO and ELDO 1958–1973. A history of the European Space Agency, 1958–1987, Vol I, retrieved from www.esa.int/esapub/sp/sp1235/sp1235vlweb.pdf.
The concept of a European Space Policy (ESP) was first promoted in a European Parliament Resolution of 17 September 1981 on Europe’s Space Policy (OJ C 260/102, of 12 December 1981), but not followed through until the development of the Galileo project. See: European Commission, Galileo — Involving Europe in a New Generation of Satellite Navigation Services, of 10 February 1999, COM(1999) 54 final. Proposals for inter-institutional cooperation were subsequently formulated by the latter, see European Commission, Towards a coherent approach for Space, of 7 June 1999, SEC (1999) 789. Recent publications and legislation is available relating to ESP and Galileo, See Commission Communication of 26 April 2007 on European Space Policy, COM(2007) final; see further Regulation of the European Parliament and of the Council on the further implementation of the European satellite navigation programmes (EGNOS and Galileo), No. 683/2008/EC, of 9 July 2008; OJ L 196/1 (2008).
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This was launched with the Report of the Three Wise Men, (Lothar Späath, et al), on which, see L.J. Smith/Hörl, K.U., Constructing the European Space Policy, in: P. Olla (ed): Commerce in Space: Infrastructure, Technologies and Applications, Univ. Michigan Press (2007), chap. 9.
Brownlie, Ian, Principles of International Law, 7. ed., 2008, Oxford, chap. 2, chap. 14.
Brownlie, n. 20, above, 13–14; 611, unless these have already achieved the status of customary international law. This is the case, at least for certain provisions of the OST, see Francis Lyall, Larsen, P., n. 6 above, 70–80.
The recognition of international law obligations has been accepted with regard to the European Union’s overriding liability for the Galileo GNSS system, inspired by the Liability Convention, in Article 17 of Council Regulation (EC) on the establishment of structures for the management of European satellite radio-navigation programmes, of 12 July 2004, No. 1321/2004, OJ L 246/1 of 20.7.2004, as amended by Regulation on the further implementation of the European satellite navigation programmes (EGNOS and Galileo), No. 683/2008/EC, of 9 July 2008; OJ L 196/1 (2008).
For the background to the various liability issues involved, see Policy Aspects of Third Party Liability in Satellite Navigation ESPI Report 19, Alfredo Roma, Schrogl, K.U, Sánchez Aranzamendi, M. (eds), July 2009; further L.J’smith, Facing up to Third Party Liability for Space Activities, Some Reflections, in Proceedings of the International Institute of Space Law 2009 (2010) Where is Paradise? The EU’s Navigation System Galileo — Some Comments on Inherent Risks (or Paradise Lost), in: IISL/AIAA Proceedings of the 50th Colloquium on the Law of Outer Space (2007), 346–358. A Commission Working Group on GNSS Liability was set up subsequent to presentation of a Draft EU Regulation for GNSS liability presented by Italy in 2007 and has already reported in: European Commission, Working Document, ‘Global Satellite Systems (GNSS) Extra Contractual Liability’, 24 June 2009, EGPC-09-07-06-02.
See judgments of the ECJ in: case 22/70 Commission v Council (European Road Transport Agreement), ECR [1971] 263; Opinion of ECJ, 1/91 Draft Agreement between EC and EFTA, [1991] ECR; Conferring legal personality on the Union was discussed during the deliberations on the European Convention, but it was felt premature at that stage to compromise sovereignty over foreign affairs, see Amato Report, CONV 305/02 of 1 October 2002, cited in: Philippe de Schoutheete, Andoura, S, The Legal Personality of the European Union, Studia Diplomatica, Vol LV, 2007, n. 1.
A notable trend towards measuring the “constitutionality” of integration is commented on by Erika Szyszcak, Experimental Governance and Open Method of Coordination, European Law Journal (2006), 486–502.
Where Community and now Union rules are adopted to achieve objectives of the Treaty, then Member States may not assume obligations outside the framework of the Treaties that could affect these obligations or alter their scope, see ECJ Opinion 1/91, EFTA, above n.29; Opinion 2/91, ILO [1991] ECR 1061.
P. J. G. Kapteyn, Verloren van Themaat, P., (ed Gormley), Introduction to the Law of the European Communities, 3rd. English edition, 1260.
Opinion 1/94 related to the legality of the Community acceding to the WTO, see further Meinhard Hilf, The ECJ’s Opinon 1/94 on the WTO — No Surprise, but Wise? [1995] 6 EJIL, 1–15.
F. G. von der Dunk, Towards one captain of the European spaceship — why the European Union should join ESA, 19 Space Policy (2003), 83–6; L.J. Smith & K.U. Höorl, Constructing the European Space Policy, Past, Present and Future, in P. Olla (Ed.), Commerce in Space, Infrastructure, Technologies and Applications (2008), 187–208; T. Hoeber, ESA + EU: Ideology or pragmatic task sharing, 25 Space Policy (2009) 206–8; S. Hobe et al., Entwicklung der Europäischen Weltraumagentur als ‘implementing agency’ der Europäischen Union: Rechtsrahmen und Anpassungserfordernisse, in Kölner Schriften zum internationalen und europäischem Recht, Band 17 (2009), 282–339.
For a discussion as to how the constitutionality of the Union has been primarily developed through deliberative interpretation of the treaties, see Antoine Vauchez, The transnational politics of judicialization; Van Gend en Loos and the making of the EU polity, European Law Journal 16 (2010) 1–28.
S. Weatherill, Competence Creep and Competence Control, in P. Eeckhout & T. Tridimas (Eds.), 23 Yearbook of European Law (2004), 6–7: “EU action may ‘creep outward’ but it does not wholly foreclose State choice in the relevant area. Competence is shared (...) it is the Member states, within the EU framework, that have been the primary actors in the centralizing process of ‘creeping competence.’”
Jan Wouters, Space in the Treaty of Lisbon, Yearbook of Space Policy, 2009, 116–123; see further, Draft Joint Position of Member States to ESA on issues regarded as critical for the successful preparation of Space Council VII (final), 2010.
Art. 275 The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy, nor with respect to acts adopted on the basis of those provisions. For a critique of case law relating to the competence demarcation in external affairs, see: Christophe Hillion, Wessel, R, Competence Distribution in EU External relations after ECOWAS: Clarification or Continued Fuzziness? Common Market Law Review 46 (2009) 551–586.
A. Gaubert, A. Lebau, Reforming European Space Governance, Space Policy 25 (2009) 37–44, 42.
id.
Art 5(3) ‘under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member States, either at central level or regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. This has led the EU to strive for better regulation, including better consultation, see European Commission, Third Progress Report on the Strategy for Simplifying the Regulatory Environment, COM (2009) 19.
Erika Szyszczak, n 31, above.
id. S 490.
Id. 490.
President José M.D. Barroso, “The Ambitions of Europe in Space”, Transcript, Speech 09/476, delivered during the Conference on European Space Policy, Brussels, 15 October 2009.
Rules coordinating a large part of procurement for military equipment and services have been in force in the European Union since 2004. The latest reform of EU defence procurement legislation is Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, No. 2009/81/EC, of 13 July 2009; OJ L 216/76 (2009). The scope of the Directive is outlined in its Article 4. The Directive entered into force on 21 August 2009. See further, Anglo-French defence cooperation: Entente or bust, Economist, 14 October 2010.
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Smith, L.J. (2011). The legal personality of the European Union and its effects on the development of space activities in Europe. In: Schrogl, KU., Pagkratis, S., Baranes, B. (eds) Yearbook on Space Policy 2009/2010. Yearbook on Space Policy. Springer, Vienna. https://doi.org/10.1007/978-3-7091-0942-7_4
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