Among the advances of the Lisbon Treaty are health and research policies, and also space policy, where, hitherto, EU activity has been restricted to research, through the framework programme and the development of the Galileo satellite navigation and the GMES satellite global surveillance systems. In future, the EU will be able to define a genuine European space policy, including elements that concern security and defence. This new body (which, in no sense is exclusive as member states formally retain their autonomy) will gradually pose the question of what role the European Space Agency (ESA) should perform. Coordination for the body was recently set up. We now publish (only in English) the ESA secretariat's recent analysis of the Lisbon treaty provisions on space. This information document was sent to the delegations on 6 March and the ESA Council has been requested to make a formal note of this fact.
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EUROPEAN SPACE AGENCY COUNCIL
Information document
Space in the “Lisbon Treaty”
Background
The Treaty amending the Treaty on European Union and the Treaty establishing the European Community (today known as the “Lisbon Treaty” ) was signed by heads of States and Governments on 13 December 2007 in Lisbon and enters into force on 1 January 2009 or on such later date when all EU Member States have ratified it. The Lisbon Treaty amends the Treaty on European Union (TEU), and the Treaty establishing the European Community (TEC) which is renamed Treaty on the Functioning of the European Union (TFEU) (On the date of publication of this note, no official consolidated version of the TEU and TEC as modified by the Lisbon Treaty is available).
The Lisbon Treaty enhances the efficiency of the Union, taking particularly into account the enlargement of the past recent years. Consequently the most significant amendments aim at reorganizing the institutional and decision making process of the EU. The Lisbon Treaty merges the “three pillars” construction in one single European Union, which succeeds to the European Community, though it maintains in general, the separate rules which applied to decision making under each pillar.
The Lisbon Treaty creates legal bases for the action of the EU in certain areas not previously explicitly covered, among which “Space”, using substantially the same wording as foreseen in the Treaty Establishing a Constitution for Europe of 2004 (“the Constitutional Treaty”).
The Constitutional Treaty was finalized following a debate within EC, ESA and their respective Member States which led, concomitantly, to the inclusion of space in the competences of the EU and to the conclusion of the EC-ESA Framework Agreement. In fact, the provisions of the Lisbon Treaty based on the Constitutional Treaty need detailed implementation mechanisms, in particular for what concerns the relations with ESA (see section II b) below), subject to interpretation by Member States, as and when decisions are taken by them. In such a context, the Framework Agreement and the Orientations of the Space Councils held in 2005, 2006 and 2007 have identified and provided for coordination mechanisms between the two organizations, anticipating to an extent the new EU treaty (see, for example, in the Framework Agreement, the acknowledgement of complementary capacities, the identification of cooperation models, the elaboration of a single European space policy, the creation of the Space Council and the Joint Secretariat).
I. Space related provisions in the Lisbon Treaty
The Lisbon Treaty refers to “space” in two articles:
in Article 4.3 of the 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."
2. in Article 172a, included in the Title XIV of the TFEU headed "Research and technological development and space":
“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, 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.
3. The Union shall establish any appropriate relations with the European Space Agency.
4. This Article shall be without prejudice to the other provisions of this Title."
The above provisions are substantially similar to those already included in the Constitutional Treaty with few amendments (Article I-14 .3 of Constitutional Treaty was identical to art. 4.3 TFEU. Paragraphs 1 and 3 of art. 172a TFEU are identical to paragraphs 1 and 3 of Article III-254 of the same Treaty, while the second paragraph of such article was: “To contribute to attaining the objectives referred to in paragraph 1, the European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme”. Paragraph 4 of art. 172 a TFEU was not included in the Constitutional Treaty).
II. Analysis
a) Within the EU
The provisions of the Lisbon Treaty make a clear attribution of competences to the European Union in the space field, thus dissolving the uncertainties existing in the present situation (In the absence of a clear competence, the EU action has been up to now based on diversified grounds (e.g. support to R&D, transport) when not on the theory of the implicit powers). Such provisions lead to its qualification as a support competence (Article 2.5 TFEU foresees that "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 ") and not as a shared competence (Article 2.2 TFEU defines Shared Competences as follows: "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”) and explicitly exclude the use of those provisions by the EU for harmonisation of Member States' legislation.
The Lisbon Treaty confirms the shared competences (Article 4.2 TFEU foresees: “Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty") and support competences (Article 4.4 TFEU foresees “In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.” Article 6 TFEU foresees: “The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (a) protection and improvement of human health;(b) industry;(c) culture;(d) tourism;(e) education, youth, sport and vocational training;(f) civil protection;(g) administrative cooperation") of the EU in different fields in which space based applications can serve as a tool. These include in particular agriculture and fisheries, environment, transport, trans-European networks, energy, development cooperation and humanitarian aid, industry, education and civil protection. Also the common foreign and security policy constitutes a field of interest for space based applications (First paragraph of art. 11 TEU as amended by the Lisbon Treaty foresees: "1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence”).
While the specific competence in the space domain under art. 172a entails mainly actions of support to R&D, coordination, promotion, the Lisbon Treaty does not provide guidance on the definition of appropriate instruments and mechanisms (e.g. funding sources) for the future actions of the EU concerning space (be it competence for space or the other areas).
Furthermore, it remains to be seen what the “necessary measures” and the “European space programme” invoked in the second paragraph of Article 172a will be, what instruments and funding schemes will be developed and what industrial policy will be followed if those instruments are specific to space activities.
Paragraph 3 of article 172a implies the acknowledgement of ESA as an interlocutor of the EU in the space matters, without the need of an act of international public law, as it has been in the past (It is to be recalled that one of the major objectives pursued with the conclusion of the EC-ESA Framework Agreement of 2004 was the mutual recognition of the two organizations as having legal personality under international law). More important, this paragraph implicitly solves the potential conflict of competences between the two organizations (see comparative analysis below), which, in its absence, could be entailed by the application of the principle stated in the last paragraph of art.4 of the new TEU (Last paragraph of Article 4 of the TEU as modified by the Lisbon Treaty foresees: « The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives »), for those States member of both organizations. The Lisbon Treaty does not provide elements to qualify what “appropriate relations” with ESA imply, but is consistent with the Framework Agreement which entered into force in 2004.
For what concerns paragraph 4 of art. 172a, which was not included in the draft Constitutional Treaty, a possible interpretation is that the limitations to the EU action in space activities, as included in the second paragraph of art. 172a, should not be interpreted extensively to the other EU competences in Research and Technological Development.
b) In relation with the ESA Convention
The comparative reading of the space related provisions of the Lisbon Treaty and art. II of the ESA Convention leads to the following first remarks:
with the Lisbon Treaty, both EU and ESA have the competence to elaborate (ESA) or draw up (EU) “a European space policy”. The utilisation of the indefinite article “a” in both TFEU and ESA Convention could imply the coexistence of more than one policy; the word “European” is not defined in the treaties, but a certain difference of interpretation between the two organizations could exist, due to the difference of their membership; to overcome these differences, and following the provisions of the EC-ESA Framework Agreement which foresees the joint elaboration of the European Space policy, the European Commission and ESA Director General issued the first version of this latter which was welcomed and supported by the EU Council and ESA Council meeting in May 2007 within the “Space Council” ;
The respective roles of ESA and EU to implement such a European Space Policy have been defined during the second Space Council and the GMES programme is being implemented within the ESA/EC Framework Agreement ;
the objectives of promoting science and technological development are common to the two organizations, but the mention “for exclusively peaceful purposes” does not appear in the TFEU ;
both treaties make reference to the industrial dimension of space related activities; TFEU explicitly mentions the term “industrial competitiveness”. On its side, ESA is in charge of “elaborating and implementing the industrial policy appropriate to its programme and by recommending a coherent industrial policy to the Member States; in its implementation, ESA industrial ESA/C(2008)19 policy has as a target to ensure worldwide competitiveness of European industry ;
Article 172a, second paragraph foresees that the EU establishes a “European space programme” while the ESA Convention foresees that the Agency's purpose is pursued by “elaborating and implementing activities and programmes in the space field”. The Lisbon Treaty does not provide elements to define the content of the European space programme of the EU. Recent discussions in the High Level Space Policy Group are demonstrating that the concept and content of the European space programme need further reflections: is it a planning tool for all space programmes in Europe (national, ESA, EC, operational …)? Or is it just a collection of data for information? In the frame of ESA, the term space programme has a consolidated interpretation, meaning the set of research, design, funding, procurement and other implementing activities necessary to carry out an identified space mission ;
finally, since the European Union will have a single legal personality and it will succeed to the European Community, the EU will automatically succeed to the EC in its relations with ESA, including in the Framework Agreement, the GMES Agreement and the other legal instruments regulating the cooperation between ESA and EC.
III. Conclusions
The Lisbon Treaty provisions relevant to space regulate formally a situation which has built-up in the last years the current relations between the EU, ESA and its Member States in the space field. The EC-ESA Framework Agreement represents, at least in the short term and without the need of modifications, a suitable instrument to ensure that the actions of the two organizations remain coordinated and complementary, that one single European space policy is adopted and implemented, that the resources available in the two organizations are utilized in the most efficient way with the final aim to avoid contradictions and duplications. In the longer term the acknowledgement of the EU competence in space should open new perspectives for strengthening the role of Europe in the space field, provided that the Member States of the two organizations, support the identification of clear and coherent objectives in the EU and ESA, control the actions of the two organizations and the interactions between them and provide adequate financial means appropriate to the role of each organization.
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