Transfer of Ownership of Satellites: The ESA Experience

1. Transfer of ownership of satellites: the ESA experience4th Luxembourg Workshop on Space and Satellite Communication Law4-5 June 2015Ioanna Thoma

2. Legal Framework for the transfer of ownership at ESA I. ESA Convention Article IV, Annex III (optional programmes covered by V, 1b): “The Agency, acting on behalf of the participating states, shall be the owner of the satellites, space systems and other items produced under the programme as well as of the facilities and equipment acquired for its execution. Any transfer of ownership shall be decided on by the Council.” II. Implementing Rules III. International Agreements with major partners (EU, Eumetsat) IV. Resolutions in case of ad hoc transfers

3. TRANSFER TO A PRIVATE ENTITY: ARTEMIS I. Background • Developed under the Data Relay Technology Mission Programme – ESA owner of the ARTEMIS satellite • Mid-2013 end of mission lifetime & decision to prolong the satellite’s mission and the provision of some services to ESA with no additional funds • Competition – TEB – selection of successful operator II. Decision & Transfer • Annex III, Article IV of the Convention: “acting on behalf of the participating states” is a programmatic “guarantee” not a legal rule establishing an agency relationship between ESA and participating states • Lack of specific rule in Implementing Rules: decision by all ESA MS • Frequency allocation: ANFR as administrator of the frequency for ESA (ESA not member of ITU); consent by all national frequency authorities

4. ARTEMIS (continuation) • Resolution • Transfer of all tangible and intangible assets • Recall consent by frequency authorities • Address liability regime given that ESA remained the LS (VII of the Outer Space Treaty and article I of the Liability Convention) • UK: state assuring national activities carried out in space by UK company bears international responsibility for the operations of this UK company after the transfer of ownership (VI of the Outer Space Treaty) • if a claim is pursued against ESA in the event of any damage caused in the meaning of the Outer Space Treaty, the United Kingdom will substitute ESA in such claim or in the alternative compensate ESA for any loss suffered as a result of such claim

5. ARTEMIS (continuation) • Registration: provide information to the SG of the UN regarding the date of change in supervision of the ARTEMIS Satellite, the identification of the new owner or operator, any change of orbital position, any change of function of the space object in accordance with article 4(a) of UN Resolution 62/101 on the Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects. ESA as state of registry • Transfer Agreement between ESA and the UK company (Law of England and Wales, consideration for the contract)

6. TRANSFER TO A CONTRACTOR:IMPLEMETING RULES ARTES 5, ARTES 7, ARTES 20, ARTES 21 • Ownership remains with the Agency • However, for tangible assets, the ownership may be left to the Contractor whenever the Agency and the Contractor agree when concluding the contract that there is a further useful utilisation of such assets for purposes connected with the objectives of the contract. • Approval of IR: by all interested PS and by Council by simple majority of MS (article XI.6.d ESA Convention, article I.3 of Annex III ESA Convention)

7. TRANSFER TO EUMETSAT: agreements and arrangements I. Cooperation Agreements with Eumetsat: METEOSAT (3 generations), METOP (2 generations) • Eumetsat becomes the owner of the satellites developed by ESA at the point of lift-off of the launch vehicle (: the ignition is irreversibly commanded or the moment of intentional release of the clamps holding the launcher to the launch pad). Contractors transfer the ownership to ESA just at the point of lift-off and not previously. ESA is therefore the owner for a nominal second. • Eumetsat becomes the owner of other equipment including spares and ground support equipment at the latest upon completion of the commissioning of the satellite in question, unless Eumetsat decides that it should be scrapped or left to the contractor. • Approval of the agreements by ESA Council

8. EUMETSAT (continuation) II. Implementing Arrangements for Sentinel-3, Sentinel-4 and Sentinel-5 concluded on the basis of the Framework Agreement between ESA and EUMETSAT concerning the cooperation on the GMES Space Component • Approved by ESA Council • Distinction between Sentinel-3A and Sentinel-3B • Distinction between Sentinel-4A and Sentinel-4B on board MTSG-S • Distinction between Sentinel-5A and Sentinel-5B on board MetOp-SG: • Special case of software IPRs (COTS, commercial S/W)

9. TRANSFER TO THE EU I. EGNOS • Implementing Rules of ARTES 9 (EGNOS): transfer of the assets produced under the programme, “including, if need be, the ownership relating to them, to an entity suitable to make operational use of EGNOS”. Decision related to the phasing of the programme at double two thirds majority. • 2007 ESA – GSA agreement providing for transfer to GSA of EGNOS assets; After the 2008 GNSS Regulation, agreement for transfer to European Community/European Union. • Decision taken in February 2009 (including CH and NO). Conditional upon: (1) a delegation agreement between ESA and the European Community, and (2) an agreement between the EGNOS Operators Infrastructure Group and the European Community, were concluded in the interval. • EGNOS assets did not include any operational spacecraft, it was purely an accounting and terrestrial legal act with no space law related issues.

10. TRANSFER TO THE EU (continuation) I. GALILEO delegation agreement on the deployment phase and Copernicus delegation agreement(2014) EU direct and immediate owner of all tangible and intangible assets developed with the delegated funding, including IPRs. Possibility for contracts to be entered into by ESA in the name and on behalf of the EU: the EU becomes owner upon acceptance by ESA. One exception: Sentinel-1A already launched prior to the conclusion of the agreement. ARTEMIS’ example applicable for Sentinel-1A. II. International liability of ESA ESA qualified as a launching State within the meaning of international space law treaties and declared accepted by the Council of ESA by a decision of 13 December 1977 and notified accordingly to the United Nations.

11. TRANSFER TO THE EU (continuation) • Insertion of hold harmless clause for obligations accruing to ESA, as a launching state, under space law and the Convention on International Liability for Damages caused by Space Objects (1972). • Exception: gross negligence and wilful misconduct – burden of proof on the side arguing for the case. III. Registration • ESA registers S-1A, -2A, -3A, -1B, -2B, -3B, -5P at the SG of UB according to the Convention on Registration of Objects Launched into Outer Space (1976). • Identification of the EU as owner

12. TRANSFER TO THE EU (continuation) IV. Frequency filings • For S-1A, -2A, -3A, -1B, -2B, -3B, -5P frequencies are administered by ANFR and frequencies filed under FR-ESA. • In case of changes of filings, the EU would undertake the actions required for the change of Notifying Administration with the support of ESA. • For S-6A and 6B: EUMETSAT, NASA and ESA shall reach an agreement regarding the administration.

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