A future ‘EU Space Law’: A few Constitutional Considerations

A new and potentially extensive ‘EU Space Law’ is – according to the new EU Space Strategy on Defence and Security (the ‘Space Strategy’) released in March 2023 – currently under consideration by the European Commission and High Representative of the Common Foreign and Security Policy (‘High Representative’).

The communication amounts to a statement of intent on the part of the Union with regard to future legislative activities with respect to space. However, this blogpost will highlight two potential issues with the envisaged provisions and form of an EU space law: competence and legal autonomy. I demonstrate that the Union’s space-specific legal bases are likely inadequate for some select provisions of the envisaged space law, but also potentially consign an upper-limit to the defragmentation of the regulatory aspects of this sector required by current (geo)political contexts. This in turn may lead to competence creep through reliance upon less-specific legal bases. These actions may also produce uncertainty vis-à-vis the EU’s relationship with the European Space Agency (ESA) due to legal autonomy. These factors may together ultimately hinder European space industry development.

Current basis of and developments in EU Space law

Space law is not limited only to affairs in space, but covers a whole range of regulatory areas that go beyond establishing a system of governance in space itself. A core feature of it, and central complexity for the development of an EU Space Law, is the intrinsic dual-use nature of space technologies – which have both civilian and military applications. While the EU has already legislated in several of these areas, it has mostly done so only with respect to their civilian applications. These include the regulation of frequency bands for satellite telecommunications; the regulations limiting foreign investment into critical space infrastructure; the export of dual-use (often including space) components, and others.

However, recent upheaval in the geopolitical landscape, including the invasion of Ukraine; the perceived threat of a rising China; the increasingly dangerous state of the space environment; growing competition amongst many states and private industry in space; and therefore also the recognition of space and space-based infrastructure as crucial to the EU’s own ‘strategic autonomy’ (Space Strategy, page 6), has increased political will for legislative action in the space-security area. The last couple of years have thus seen an expansion of EU action in space affairs in an attempt to consolidate and coordinate/defragment the European space sector – and in doing so make it (meaning both public space institutions and the private sector) more efficient, responsive to threats, and generally futureproof. To this end, the  Space Strategy foreshadows the beginning of a significant extension of Union control over space infrastructure.

Thus, a central question underpinning these developments concerns the source and scope of the Union’s competence to legislate space-related activities; activities of fundamentally both a civilian and military character due to their dual-use nature. The peculiar nature of the EU, built on the basis of conferral and with Member States retaining many defence-related competences (or sharing or coordinating them in irregular ways at the supranational level) means expansion of activities of a latter character may be highly contentious.

The primary basis of competence for space activities within the EU rests in article 189 TFEU, which provides that:

“[…] 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.”

The Union can do so through the ordinary legislative procedure, but cannot conduct “any harmonisation of the laws and regulations of Member States” (paragraph 2). It may also establish “any appropriate relations” with ESA. Additionally, article 4 (providing guidance for competence divisions), paragraph 3 TFEU, also states that:

“In the areas of [Title XIX, including article 189], 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.”

These provisions – the only significant articles in the TFEU or TEU (with a small, contextually-irrelevant mention in art. 13 TFEU) addressing space affairs – specifically make clear that there is no scope for concrete harmonisation of the laws of Member States. There is furthermore zero mention of the security dimensions of space affairs, or vice-versa. This is a problem for a Union which must consolidate and optimise its position due to the factors aforementioned.

Beyond article 189 TFEU – a temptation for competence creep?

The Space Strategy, read alongside similar communications (especially the Space Traffic Management Communication (‘STM’)), indicates a wide range of potential legislative provisions of an EU Space Law. The majority are soft coordination measures clearly designed to facilitate a free and efficient flow of information between relevant actors. These are similar to those found in Regulation 2021/696 (the so-called ‘Space Regulation’), in which the Commission was careful to continuously assure Member States of its own competence limitations (see preamble paragraphs 12, 14 and 44 particularly). Some potential space law provisions acknowledge this: ‘a common regulatory approach regarding STM rules that enhances competitiveness of EU industry’ notes that it must respect ‘the respective competences of the EU and Member States’ [STM, p12].

Potentially problematic, however, is the inclusion of provisions that, contrary to the aforementioned legal base, are broad enough that they could harmonise aspects of Member States’ space activities. These include, for example: ‘specific rules for security-sensitive (military) space services’ [p10]; or ‘mandatory collision avoidance frameworks for all services to standards similar to current EU SST’ [STM, p11]. Such provisions could, though their form is not final, be interpreted as a harmonisation measure., contrary to the restrictions in art 189 TFEU.

This reflects a deeper Constitutional problem; lack of any harmonisation – in this sector, at this moment in time – is problematic. Without it, it seems unlikely that the Union may be able to adequately de-fragment the European space sector as it must. Under such conditions, competence creep (into that of Member States, and potentially ESA (see below)) may be hugely tempting through reliance upon tangential, related legal bases. As mentioned, ‘space law’ covers many regulatory areas, and competence creep (known as ‘function creep’ outside the EU context) is common within the space sector.

It is worth considering the possibilities of where such (currently hypothetical) competence creep may fall. As an example, the Werner case, and following case law, establishes that measures restricting/controlling product exports, despite having foreign policy and security objectives, fall within the exclusive EU competence area of the Common Commercial Policy. Hence, Regulation 2021/821 on dual-use goods’ export controls (directly relevant for space law) is based on art. 207 TFEU. Thus, so long as a provision has (part of) its substance in an area of (exclusive or shared) EU competence, it is able to be adopted; evading the limitations of art. 189 TFEU.

Another envisaged EU Space Law provision is the ‘stimulation of ‘New Space’ (referring to scaling up the emerging private space industry) including via systematic development of anchor-customer contracts, mobilisation of grants-loans-equity with European Innovation Council/Investment Bank/Investment Fund support, and synergies with the EU Defence Innovation Scheme’ [summarised, p. 13]. Such a provision may therefore simultaneously have its legal substance (not objectives) its feet in areas of space, commercial policy, common security, and of civil (and security/defence) infrastructure of Member States (which is what space infrastructure is), all in only one potential provision. There are thus potentially several other legal basis-options for at least this specific provision to be based on. The breadth of the potential provisions may mean adoption of the some together set may therefore inevitably come with accusations of competence creep – as no matter the basis, the law may branch into several different regulatory areas, each often corresponding to different competences in EU law.

Of course, competence creep in EU law is absolutely nothing new (though still highly controversial). However, it should be remembered that space-related provisions innately address dual-use civil and defence space infrastructure of Member States (or processes that make or operate it). Thus, such competence creep may be opposed more ferociously than other areas less integral to their military operations.

(Legal) autonomy: ESA and the UK

Were adoption of an EU Space Law to occur, problems of legal autonomy may also arise through the EU’s relationship with the independently-mandated ESA. It perhaps explains why there is so little reference to ESA in the potential space law provisions – despite ESA sharing, and being equally integral to, the European space sector. The strategy opens with the acknowledgement that ‘Europe is a global space power’ – as opposed to just the EU. This appears to implicitly acknowledge the widely-accepted need for rigorous coordination between both institutions’ initiatives. Despite this, very little is mentioned of ESA, despite ESA having, for example, private-sector engagement initiatives of its own similar to those in a potential EU Space Law.

But the EU (or rather, the CJEU) is not forgiving in its defence of any perceived threat of EU legal autonomy. Any overlap between the two institutions’ respective spheres of competence caused (primarily) by the EU’s expansion of space (and security) competences – whether through competence creep or not – means there may be scope for dispute should they pull in different directions. And pull in different directions they might: while most EU states are parties to ESA, some, notably the UK, are part of ESA but not the EU. Those who have kept up to date with the saga surrounding the Horizon research programme will know that the EU and post-Brexit UK often do not see eye-to-eye even for the sake of scientific advancement; an issue of notably lower stakes than cooperation with what could be a rival space power.

Concluding Remarks

Although the final dimensions of an ‘EU Space Law’ remain unknown for now, its potentially exceeds the inherent specific limitations of the Union’s ability to act. More fundamentally, there is no specific, concrete basis for the Union to act in the way that the Space Strategy (and geopolitical necessity) suggests that it wishes to. Therefore there is also an upper-limit to de-fragmentation of the current legal regime, to the detriment of industrial development. Indeed, at a time of immense international competition in space, the last thing Europe needs is regulatory fragmentation, or the inability to fix it.

In the absence of broader, specific space-oriented competences – that account for dual-use systems – that allow this, competence creep into both the competences of the Member States and perhaps ESA seem both possible and likely to occur. The alternative option is for the EU to do less than it must to Europe to stay internationally competitive in space into the far future – at the moment, it does not even have independent access to space. Thus, if a competence creep for the EU is coming, it should be welcomed unless a legal and political workaround to above issues is possible.