Fifth Symposium @ Center for Space Law
Keio University MITA Campus, Tokyo
International mechanisms for cooperation in the space sector
Panel discussion n° 5International mechanisms for cooperation that will promote future space exploration

SPACE EXPLORATION AND INDUSTRYCOLLABORATION:THE FRENCH APPROACH

Philippe Clerc
CNES’ Head of legal and Regulatory Affairs
Deputy director

Tokyo 3rd September 20141

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INTERNATIONAL LEGAL FRAMEWORK FOR PUBLICPRIVATE COOPERATION IN THE SPACE SECTOROUTLINE UN Space law vs International and European competition
GOVERNMENTAL REQUIREMENTS

 Regulation and licenses
AGENCY COOPERATION MECHANISMS AND THEIR
TRANSLATION WITH INDUSTRY Bilateral, multilateral cooperation
 European Space Agency and European Union (EU)framework
 Implementation with industry

CONCLUSION : TOWARD NEW COOPERATION MECHANISM
TO ASSOCIATE INDUSTRY2INTERNATIONAL LEGAL FRAMEWORK FOR PUBLICPRIVATE COOPERATION IN THE SPACE SECTOR

1967 OST Treaty- Article VI governments have the responsibility to authorize andmonitor private space activities: launching state endorse liability fornational private space activities;- Article 2 prohibits appropriation by States of Outer Space, Moonand other Celestial Body by any means: this prohibition isconsequently applicable to the industry under such States‘
jurisdiction

WTO & EU Competition law constraints on industrygovernment relations :- Public procurement law- Public aid law (grants, subsidies…)- Principles of non discrimination and free access to the market…
(for other contracts: PPP, Concessions)3

GOVERNMENTAL REQUIREMENTS

 Any private space operation requires at least one specificgovernmental license or authorization. In France, incompliance with:
 The 2008’s French Space Operation Act regime:
Compliance with the “Technical Regulation for space systems and procedures” + Frenchinternational commitments (in particular in the sector of security and defense), liability regime: onground/Space, ceiling, waivers….

 Export control
 Frequency allocation national regulation:
 Space based service providers licenses regime
 Earth observation data dissemination control regime.

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AGENCY COOPERATION MECHANISMS 1/3

Bilateral & multilateral agreements between
governments and their space agencies- Common features: best effort obligation - no exchange offunds (contribution in bulk) - civil purpose - not adapted fortechnology transfer – confidentiality – allocation ofresponsibilities between agencies on given technical work
packages : interface coordination (steering committee) – noguaranty in case of failure in space – cross waivers of claims- open data policy except for prime investigators (PI) settlement of dispute between the parties- For program achievement, each agency has full sovereignty
to enter in contract with the industry according to it own rules:
see slide hereafter “ implementation with industry”

5AGENCY COOPERATION MECHANISMS (2/3)

The European Space Agency (ESA)
framework- A permanent cooperative organization with legal personality: An
ESA’ program decision = international treaty, without necessity ofratification.
- Framework well adapted for:- Voluntary cooperation through its optional programs- for development of civil programs and upstream development- Capacity to enter in specific international agreements (cooperationor contracts):- On behalf of its states-members or their industry- With its Member States (for instrument contributions)- Delegation of tasks to national space agencies …

ESA is a flexible and efficient organization to undertakeambitious Space cooperation in relation with Industry

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AGENCY COOPERATION MECHANISMS (2/3)

The European Unions framework (Lisbon Treaty)- Article 4.3 : an EU’s capacity in space policy and programs as a specific “sharedcompetence” with its Member States (MS) : i.e. a parallel competence- Article 189 allows UE to design and implement a European space program andcalls for a development of appropriate relationship with ESA.
- However, art. 189 deprives UE of legal capacity to harmonize MS’ national spacelegislations.
- Framework well adapted for:
- The assessment of needs of the user’s communities and consequently:- Space application programs- for operational and recurrent exploitation programs- No specific internal technical capacity- Legal instruments : R&TD Framework program (EUFT art. 180…) – Decisionof the European council and parliament under initial proposal of theEuropean Commission (Galileo, Copernicus) - Commission financial rules forprocurement…

UE provides a political and integrated dimension to European space efforts

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IMPLEMENTATION WITH INDUSTRYA top down approach from public organization to industry-Procurement (80% of CNES budget)
Grants (UE FP)
Creation of subsidiaries or public service delegation to stimulate the market
Partnership with industry y in basic R&D
Private Public Partnership (PPP) : not frequently used by space agency
Limitation by “competition law”: except for basic or upstream technology orbasic research agreement , cooperation with other public organization for ageneral interest mission, purchase regimes organized trough international
governmental agreement (ESA framework), defense systems

European Space Agency : ESA standard contract, guarantees
geographical return for national industry
European Union (EU) framework (also applied by CNES for its programs)
open competition for the European industry – no optional program (despiteTreaty art. 185)

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CONCLUSION : TOWARD NEW COOPERATION MECHANISMS
TO ASSOCIATE INDUSTRY (1/2)- Nor U.N Treaties on Space activities than ITU mechanisms
were designed to facilitate an independent access to space
activities on behalf of the private sector- Competition law limits Space Agency’s ability to support
industry initiative (in other words penalize the bottom upapproach)- Space Policy’ design & implementation still under the lead ofgovernmental space agencies (top down approach), even at
the international level (CEOS, GEOS, COSPAR, IADC,
Internal Charter on Space and Major Disaster), but not so
exclusively…

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CONCLUSION : TOWARD NEW COOPERATION MECHANISMS
TO ASSOCIATE INDUSTRY (2/2)- However, new mechanisms have been recently created tofacilitate cooperation with industry.
In France :- The “Avenir” (Future) Investment Program (PIA) to foster
industry competitiveness extended to space projects - CNES as
facilitator and contract officer on behalf Government- Co-Space : an high level committee initiated by the minister incharge of space affairs, between ministers, CNES and industry inorder to associate the latest to the design of new space policy andprograms.
- The “Collective for Space Care”, initiated by CNES in March 2014,
unites on a voluntary basis space operators and partners who
jointly acknowledge responsibility for complying with international
treaties and principle pertaining to space matters, compliant withapplicable Space legislations and applying the best practices
derived from them;- This collective could also serves as a consultation forum toprepare next evolution of the space law;

Thank you for your attention, any questions ?
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