1. 1 Towards an Harmonized Approach for National Space Legislation in Europe Workshop, Berlin, 29 - 30, 01.2004  30 January 2004 Methods of Harmonization  Potential European Space Policy and its Impact on National Space Legislation  Sergio Marchisio  University of Rome “La Sapienza”

2. 2 2. Harmonization of national space legislation within the EC/EU’s context  The merits of European harmonization : a) bringing existing national space laws and legal schemes more in line with each other; b) providing for coordination, approximation and mutual recognition of national legislation or administrative provisions; c) filling the gaps among European countries, introducing space legislation where absent.  National space legislation should no longer be a pre-requisite for harmonization within the EC/EU.

3. 3 3. Harmonization as an instrument of a European space policy  Different meanings of the concept of “European space policy”:  The “long-term European space policy” in Article II of the ESA Convention of 1975 and the ESA European acquis in space field;  From the “true” European space policy (EU Presidency Conclusions, Brussels, 20 and 21 March 2003) to the “extended” European policy according to the Commission’s White Paper of 11 November 2003 and  To the EU “common” policy for space following the draft constitutional treaty for Europe (presented on July 2003).

4. 4 4. Harmonization needs within ESP  The EC/EU intends to pursue and consolidate a European space policy of its own throughout a transitional phase (2004-2007).  Harmonization becomes a requirement of the EU’s strategic autonomy.  A harmonized legal framework would better promote private-sector activities and space utilisation for achieving the objectives set forth in the WP: a) economic growth and industrial competitiveness, b) sustainable development, c) common security and defence, d) aiding development.

5. 5 5. Operators and service providers views  The need for an harmonized legal environment for private space activities has been clearly stressed on by the operators and service providers within the consultation’s process of the Green paper (London Workshop, 20 May 2003): “Common regulatory conditions are essential…Harmonized and streamlined licensing procedures throughout the Union; Harmonized spectrum allocation….”  The Decision n. 676/2002/EC of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community.  In the end, it is an issue involving the EU position in world space politics.

6. 6 6. Harmonization from a de lege ferenda perspective  The changing EC/EU’s approach towards space and space-activities and the elaboration of a European space policy not only as a tool to implement other Union’s policies (horizontal) but also as a policy per se (vertical) could justify future undertakings of the EC/EU in the fulfilment of new purposes of harmonization in this field.  Harmonization of national space legislation by the EC/EU remains a de lege ferenda perspective, that presents different features according to the scenario considered, namely the two (potential) phases, before and after the entry into force of the draft constitutional treaty.

7. 7 7. The legal basis issue  The main element coming into play is the legal basis for harmonization of national space legislation.  The starting point is the principle of conferral or “conferred powers” (Article 5 of the TEC), continuing with the definition of the competence ratione materiae and the specification of the means of exercise of the competence (permissible legislative instruments/decision- making process).  The current phase presents evident analogy with the precedent “Environment”.  Space is a “relevant technology” to support the implementation of existing EU policies (transport, trans-European networks, industry, research and development) with a multiplicity of legal bases according to the TEC.

8. 8 8. Harmonization in the present phase of European space policy  The promotion of European space activities and utilization by private sector by harmonization of certain sectors of national space legislation could also be founded on a legal basis combining: a) common objectives, like harmonious, balanced and sustainable development of economic activities (Article 2 of the TEC) b) explicit activities, like harmonization of the laws of member states and the strengthening of the competitiveness of community industry (Article 3, h and m) c) Article 95, on approximation of the provisions laid down by law, regulation or administrative action in member states which have as their object the establishment and functioning of the internal market (legal basis of the mentioned Radio Spectrum decision).  The appropriate measures foreseen by Article 308 on the inferred powers.

9. 9 9. Space as a sui generis shared competence  After the (potential) coming into force of the constitutional treaty, the Union will enter the phase of an EU “common” policy for space. From the beginning of the European Convention an agreed understanding has raised that space should be mentioned in the founding document to allow the establishment of a new ad hoc competence for the ESP.  The text of the draft treaty establishing a Constitution for Europe mentions space, as well as research and technological development, in Article 13, para. 3, on areas of shared competence.  It is, however, a shared competence sui generis, to carry out actions, in particular to define and implement programmes.

10. 10 10. Shared competence without pre- emption  EU’s comptence in space differs from the shared competence as defined in Article 11, para. 2, which establishes the principle of pre-emption (“The Union and the member states shall have the power to legislate and adopt legally binding acts…The member states shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence”).  On the contrary, in the field of space, the exercise of the competence by the Union may not result in member states being prevented from exercising their own competence.

11. 11 11. Article III-155  It is also relevant here Article III-155: the ESP shall be drawn up by the EU to promote scientific and technical progress, industrial competitiveness and the implementation of other policies. To this end, the Union may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.  This means that member states retain their legislative power in matters dealing with space activities, including the core parts of national space legislation.  At the same time, the EU’s shared competence could be exercised in order to harmonize national space legislation.

12. 12 12. EU’s competence on harmonization of national space legislation  The EU’s competence in the harmonization of national space legislation is confirmed a contrario by Article 16, para. 3.  This disposition expressly establishes that legally binding acts adopted by the Union on the basis of the provisions specific to the areas mentioned there (of supporting, coordinating and complementary action) may not entail harmonization of members states’ laws and regulations.  Last but not least, art. III-155, para. 2, gives to the EU the competence to establish the necessary measures (including the European space programme) for contributing to attain the objectives of the ESP. These measures can take the form of European laws or European framework laws.

13. 13 13. Framework laws on harmonization  It is clear indeed that the EU will be in a position to exercise its competence in the field also by adopting legal instruments, like European laws or Framework laws.  Since the issue in play is harmonization, the most appropriate instrument seems an European framework law, a legislative act binding, alike the directive, as to the result to be achieved, on member states to which it is addressed, but leaving the national authorities entirely free to choose form and means to achieve the result.

14. 14 14. Potential action by the EC/EU  The solution towards harmonization of national space legislation by the EC/EU seems indeed to be legally admissible.  After the entry into force of the constitutional treaty, the legal ground will be more solid.  In the current phase, devoted to the implementation of the EC/ESA Framework Agreement and the elaboration of the European space programme, due to the ongoing processes of drafting national space legislation in several member states, a first step could be a communication on the feasibility of an harmonized legal framework for national space legislation, with a careful assessment of its scope and legal implications.

15. 15 15. The first step: a communication on harmonization  In this respect, it is to be considered that the broadening of the EC/EU’s competences do not change the basic situation: only states are parties to the space law treaties that are to be implemented at the national level.  More fundamental changes would occur if, as envisaged in the WP (2007- onward), ESA should be positioned within the EU framework and its Convention modified accordingly.  In this case, the role of the EU vis-à-vis international space law should be radically modified.