A Legal Regime for Third Party Claims Relating to the Malfunctioning of GNSS

1. 03/05/2015 A LEGAL REGIME FOR THIRD PARTY CLAIMS RELATING TO THE MALFUNCTIONING OF GNSS A LEGAL REGIME FOR THIRD PARTY CLAIMS RELATING TO THE MALFUNCTIONING OF GNSS Initiatives for new legislation and indications for further developments avv. Walter Vasselli Head of Compliance and Regulation Finmeccanica Legal and Corporate Affairs

2. Initiatives for an EU Regulation Italian Government/Finmeccanica initiative : First Draft Regulation presented to space industry, advisors (legal, insurance and finance) and Commission/GSA in Rome Workshop (Jan 07) Revised Draft Regulation based on comments of all parties gathered in workshops and seminars (first half 2007) Final Proposal of Regulation + Commentary submitted to Commission/GSA (Jun 2007) EU Commission initiative: Group of experts delegated by MS with support of Allen&Overy (WG) internal working paper and conclusions - delivered (Dec 2009) Midterm Review Report - published (Jan 2011) Communication by Commission on New Space Policy for Europe, including a section on GNSS - expected soon (next March/April 2011) Common objective: a harmonized legal regime in Europe

3. WG Preliminary conclusions : in general The existing legislation in MS has been assessed against the following policy objective - the applicable liability regime should strike the right balance between two conflicting interests : Defendants - The players in the EU GNSS chain face the risk of handling multiple legal proceedings and/or of paying high damages . They could not predict the liability regime applicable, which would prevent them from preparing in advance to meet their financial obligations. This would deter them from playing their role, undermining the existence of the EU GNSS and thereby the interest of the public at large. Claimants - Each victim in the EU must be guaranteed prompt and adequate compensation . "Prompt" does not mean "automatic (e.g. to ascertain the causal link between the damage and the GNSS signal). "Adequate" does not mean "full" in all circumstances (e.g. indemnification of victims may be limited in order to ensure that the risks of the players in the EU GNSS chain are manageable). The legislation applicable depends upon the person against whom claims are directed: the owner and/or the operator. In any case, the Commission considers that in both cases, existing applicable legislation do not meet the policy objective . There is a need for a legislative initiative at EU and at global level to address these shortcomings .

4. WG Preliminary conclusions: within EU A new liability regime should have the following features in order not to infringe EU Treaty and FEU Treaty: strict liability regime but with a limitation ceiling (at a first stage this is more favourable to the victims than the existing scheme); possibility to refer to fault-based and unlimited liability (only at a second stage - recourse to the existing scheme with systems for backup coverage to be defined). The modalities of the limitation are yet to be defined: global limitation per year, global limitation per incident or per capita limitation; the ceilings could be set at different levels depending upon the services provided (Open Service, Safety of Life, Search and Rescue, Commercial Services, Public Regulated Services). The situation of claimants could be further eased with the setting up of a Compensation Fund which would indemnify them (directly or indirectly).

5. WG Preliminary conclusions: Third Countries Claimants in Third Countries would be attracted by the scheme contemplated in the EU Regulation (e.g. strict liability of GNSS operator or service providers based in EU), but they would not be prevented from seeking compensation based on legal grounds as applicable in the local jurisdictions, with potential conflicts of laws (e.g. place where the damage occurred, different remedies). The EU may publish disclaimers in order to influence court judgments in Third Countries, which may however be unenforceable locally. As an alternative, the Commission may enter into bilateral agreements in order to extend the application of the EU Regulation, but this process would anyway be complex for the high number of jurisdictions involved given the global coverage of the GNSS. An EU (like any national or regional) regulation is acknowledged to be insufficient with respect to the international ambit of any GNSS.

6. Midterm Review of European GNSS The Commission has placed the risk management at the heart of its works. Among other risks (technology, operation, market, governance), the risk of liability related to the two European systems [Galileo and Egnos] causing direct or indirect losses to their users or to third parties has been identified and classified as a high priority issue to be addressed: <>. <> The Report from the Commission to the European Parliament and the Council ( COM(2011) 5)

7. Debate at international level: Unidroit A number of different initiatives have been taken by international organizations for research on liability aspects related to GNSS and/or assessment of possible regulations in the relevant sectors (ICAO, ECAC, IMO, ICG, ESPI). Among other organizations, Unidroit was particularly involved: a feasibility study was presented to Unidroit by Italian Government and Finmeccanica on Mar 2007 as a starting-point paper for the debate; after various internal discussions and reports to the annual Unidroit Boards, a preliminary study was prepared by the Unidroit Secretariat and published on Mar 2010 in order to provide an overview of the applicable international regimes; an informal consultation meeting was held on Oct 2010 in order to discuss among experts current initiatives and possible developments.

8. Background for any TPL regime for GNSS Any regulation (at national, European or international level) should be conceived as the legal framework for third party claims that is necessary to implement in order to ensure on the one hand appropriate protection to public and private stakeholders and on the other hand effective compensation to all users and the community at large. By setting a clear regime for the liability deriving from the malfunctioning of services and equipment, an ad hoc legal regime may also be a major cornerstone underlying a safe and fast development of all markets and activities based on GNSS interoperable applications. Mandatory provisions may be established as a regulatory foundation for contractual and insurance schemes in order to prevent claims to be targeted against single public or private entities and so distribute litigation among a number of operational and institutional players at various levels (no deep pocket). In the context of a shared legal and financial responsibility (PPP) between private industry (not only space but all sectors) and public entities (e.g. States participating to GNSS programmes ), a specific legal regime may balance economic sustainability to be ensured to operators and adequate remedies to be granted to victims.

9. Policy lines for further developments Services within GNSS to be defined clearly (in EU to include both Galileo and Egnos and in uniform convention to address compatibility/interoparability issues); Providers of GNSS Services to be certified as Qualified Providers either under contract with the relevant GNSS Operator or by regulations in local jurisdictions; Channelling of liability to Qualified Providers for the malfunctioning of signal or equipment, according to a principle of strict liability and limitation of such Qualified Providers liability up to a cap covered by compulsory insurance (FIRST TIER); Supplementary compensation to be made available in the relevant jurisdiction for amounts in excess of cap, however up to a limited amount, by recourse to a fund (e.g. financed by public entities and/or private industry) and/or to direct contributions of States (SECOND TIER); Special regime for OS distinction between OS as a free common utility (at user risk) and OS for commercial exploitation (subject to the same rules of other GNSS Services); GNSS Operator subject to the rules applicable to Qualified Providers only when supplying services to providers and end users in the marketplace; Immunities for PRS may be provided in certain circumstances (specific defense or security applications), anyway subject to rules established at EU/international level; Measures against unqualified providers and producers of uncertified equipment .