Explanatory Memorandum to COM(2013)40 - Amendment of Regulation (EU) No 912/2010 setting up the European GNSS Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)40 - Amendment of Regulation (EU) No 912/2010 setting up the European GNSS Agency. |
|---|---|
| source | COM(2013)40  |
| date | 06-02-2013 |
Security requirements play an essential role in the design, implementation and operation of the infrastructures emerging from the Galileo and EGNOS programmes, whose use could affect the security of the Union and its Member States. Due to their strategic aspect, satellite navigation systems are sensitive infrastructures that could be susceptible to malicious use. Given the increasing usage of satellite navigation across a great number of fields of activity, an interruption in the supply of services could lead to significant harm to modern society.
Regulation (EC) No 683/2008 of the European Parliament and of the Council of 9 July 2008 on the further implementation of the European satellite navigation programmes (EGNOS and Galileo) provides that the Commission should manage all aspects relating to security of the two systems established under the Galileo and EGNOS programmes. However, the security of the systems is itself subject to accreditation which consists of verifying the compliance of the systems with the specified security requirements and ensuring compliance with the relevant security rules applicable to the Council and the Commission. As is the case for all accreditation activities, security accreditation of the two European satellite navigation systems must be carried out independently, particularly with regard to all parties involved in their design, construction and operation.
The European GNSS agency is responsible for this accreditation activity pursuant to the combined provisions of Regulation (EC) No 683/2008 and Regulation (EU) No 912/2010 of the European Parliament and of the Council setting up the European GNSS Agency, repealing Council Regulation (EC) No 1321/2004 on the establishment of structures for the management of the European satellite radio navigation programmes and amending Regulation (EC) No 683/2008 of the European Parliament and of the Council. The latter lays down the terms for implementing the accreditation task entrusted to the Agency and specifies that security accreditation decisions must be taken independently with regard to the Commission and the bodies responsible for implementing the programmes. The obligation of independence must also apply to the other tasks assigned to the Agency.
In order to ensure that the security accreditation activities are performed in an independent manner, including, to a large extent, with regard to the other activities of the European GNSS Agency, Regulation (EU) No 912/2010 provides the Agency with an independent body, the Security Accreditation Board, which constitutes one of the three separate roles of the Agency along with the Executive Director and the Administrative Board. The Security Accreditation Board has equivalent status to the Administrative Board and is solely responsible for accreditation decisions. These decisions are nevertheless made on behalf of the Agency, in the same way as the decisions of the Administrative Board, since the Agency alone has legal personality.
The European GNSS Agency's internal structural organisation is unusual in as much as it separates the activities associated with system security accreditation from the other activities, namely, security centre management, contribution to the preparation for commercialisation of the systems and any activities that the Commission might entrust to the Agency via delegations.
On 30 November 2011 the Commission adopted a proposal for a Regulation of the European Parliament and of the Council on the implementation and exploitation of European satellite navigation systems[3]. This future GNSS Regulation will replace Regulation (EC) No 683/2008 as of 1 January 2012 and determine the governance framework during the 2014-2020 period. In particular, it stipulates that most of the tasks associated with the operation of both the Galileo and EGNOS systems will be entrusted to the European GNSS Agency. The commitment expressed by the Commission in its proposal to delegating these tasks to the Agency is shared by the European Parliament and the Council, following discussions of the draft since the start of 2012. On 7 June 2012, the Council adopted a partial general approach (document 11105/12 of 11 June 2012) confirming this.
The question of the future of accreditation activities within the Agency will determine whether the European GNSS Agency will manage the exploitation of the two systems after 2013. In fact, for reasons associated with the potential for conflicts of interest and the fact that one cannot be both judge and interested party, the need for independence in security accreditation decisions, does not appear to be easily reconciled with the fact that such decisions are made within a body that is also responsible for exploitation, even though, as has been explained above, Regulation (EU) No 912/2010 lays down terms for a degree of independence for the Security Accreditation Board. In its proposal on the future GNSS regulation, the Commission, being aware of this difficulty, also stipulated that security accreditation of the systems would be one of the Agency's tasks until 30 June 2016 at the latest, at which time the exploitation activities would be in full flow. The question of the future of the accreditation activities following this date was therefore left open, which is to be the subject of a subsequent proposal.
The Commission's approach regarding the date of 30 June 2016 was widely supported when the draft was discussed by the members of the various parliamentary committees. Within the Council, the Member States emphasised the need to carry out accreditation activities independently and wanted the issue of the future of system security accreditation after 1 January 2014 to be settled as quickly as possible. Furthermore, on 7 June 2012, the Council adopted a declaration (document 11279/12 ADD 1) in which it deemed that accreditation activities should be performed in a strictly independent manner with regard to the other tasks entrusted to the European GNSS Agency, that a structural and effective division should be made within the Agency between its various activities by 1 January 2014 at the latest, and that the Chairperson of the Security Accreditation Board should be the only person in the Agency responsible for accreditation activities. Accordingly, the Council asked the Commission to submit such a proposal to amend Regulation (EU) No 912/2010 in good time.
It is important to resolve the issue of the future of the security accreditation of the European satellite navigation systems during the future financial framework 2014-2020. This means that Regulation (EU) No 912/2010 must be amended.
Amending Regulation (EU) No 912/2010 also presents an opportunity to incorporate changes in the text to bring it into line with the principles contained in the common approach of the European Parliament, Council and Commission on the decentralised agencies, as approved by the Commission on 12 June 2012.
Finally, the proposal on the abovementioned future GNSS Regulation adopted by the Commission on 30 November 2011, which provides for the possibility of extending the tasks of the European GNSS Agency and assignment of operational tasks, significantly affects its staff requirements and, hence, has consequences for its future budget. It is therefore important to amend the legislative financial statement associated with Regulation (EU) No 912/2010.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- 1) Entrusting accreditation to the private sector:
- 2) Creating a new regulatory agency for accreditation:
- 3) Entrusting accreditation to another existing regulatory agency:
- 4) Entrusting accreditation to the Commission:
- 5) Entrusting accreditation to the Council:
- 6) Reinforcing the separation of activities within the European GNSS Agency:
The Commission's proposal was not subject to an impact assessment nor did it follow formal consultation of the parties concerned.
With regard to the amendments designed to align Regulation (EU) No 912/2010 with the principles of the interinstitutional approach to the decentralised agencies, an impact assessment and formal consultation of the parties concerned was not required because this approach was itself the result of consultation between the Commission, the Council and the European Parliament.
With regard to the amendments concerning security accreditation of the European satellite navigation systems, it is important to note that the Member States, which are closely involved in all security-related matters, are in this case, the main, or in fact only, parties concerned other than the institutions of the Union and the European GNSS Agency. The Member States were widely consulted on this point during discussions on the future GNSS Regulation within the Council, which made its position known in the abovementioned declaration of 7 June 2012. In addition, the arrangements finally adopted were the focal point of extensive discussions with the European GNSS Agency. The European Parliament has received the proposal for the future European GNSS Regulation but has not yet issued a specific opinion on the matter.
In addition, the various solutions that could theoretically be envisaged for system security accreditation after 2013 have been assessed. There are six potential solutions.
Accreditation of European satellite navigation system security directly affects the security of the Union and its Member States, which want to be closely involved in the accreditation work and decisions. Consequently, entrusting accreditation to the private sector is not a serious option.
Creating a regulatory agency for accreditation of the security of the European GNSS systems might seem to be a good idea but clashes with the Union institutions' shared commitment over the last few years not to create any new regulatory agencies. In addition, this solution would have a significant cost, disproportionate to actual requirements. In fact, the permanent staff responsible for system security accreditation accounts for approximately ten people.
An alternative solution to creating a new agency would be to entrust security accreditation to another existing regulatory agency. Among the various agencies of the Union, only the European Aviation Safety Agency (EASA) and, to a lesser extent, the European Defence Agency appear, in principle, capable of providing security accreditation of complex systems such as Galileo and EGNOS.
It should, however, be noted that such an accreditation task does not fall within the scope of the current tasks of these agencies. In addition, with regard to the EASA which should eventually be responsible for EGNOS certification, there is a serious risk of conflict of interests between this future certification role and any potential security accreditation task. With regard to the European Defence Agency which is principally concerned with the promotion of cooperation between Member States in matters relating to arms and the defence industries, entrusting it with the security accreditation of Galileo and EGNOS might appear to contradict the assertion that both systems are civil systems under civil control.
In 2007, during the preparatory work for the drafting of Regulation (EC) No 638/2008 reforming the governance of the programmes, it was planned to entrust the security accreditation of the two European satellite navigation systems to the Commission. This solution was abandoned at the time because it appeared that it could not be reconciled with the obligation of independence, with the Commission managing all questions relating to the security of the systems under the terms of that Regulation. The same difficulty continues to apply today since the future GNSS Regulation which is intended to replace Regulation (EC) No 638/2008 from 1 January 2014 also provides for the Commission to ensure the security of the programmes, including system security. Furthermore, the Member States are very attached to the structure of the Accreditation Board as it currently exists within the European GNSS Agency and it would be difficult, on an administrative level, to incorporate such a body in the Commission departments.
There are several advantages associated with entrusting the security accreditation of European GNSS systems to the Council. First and foremost, the Council is not involved in the management of the programmes and its independence would not be called into question. It has a degree of expertise in accreditation of complex systems since it has already approved around fifty systems for its own needs. In addition, it is the body most able to assume responsibility for the political consequences of accreditation-related decisions, which could have significant repercussions on the progress of the programmes in terms of costs and schedules. Finally, the Member States, which want to be very closely associated with the accreditation process, are naturally much better represented in the Council than in any other Union body.
The disadvantages involved in implementing this solution, however, outweigh the advantages. In fact, the Council is not a managing authority and although it effectively has experience in accrediting a number of systems, up to now these have been Council internal systems only designed to ensure its smooth running. Furthermore, transferring and incorporating the structure made up of the Administrative Board and its subordinate components as they currently stand with staff including permanent officials into the administration of the General Secretariat of the Council would present the same administrative difficulties as a transfer to the Commission.
This involves modifying the internal organisation of the Agency so that there can be no further doubt concerning the independence of the accreditation activities vis-à-vis the other activities carried out by the Agency.
This solution, which means further separating the activities of the European GNSS Agency and reinforcing the independence of the two different bodies under a single legal and institutional roof, can provide the right degree of independence in the exercise of accreditation activities and is ultimately the solution that is least onerous, simplest and easiest to implement. Moreover, it was recommended by the Council in its declaration of 7 June 2012.
With regard to the need to ensure that activities associated with accreditation of the systems are carried out independently and hence to reinforce the separation of these activities and the other activities of the European GNSS Agency, the proposal provides mainly for an increase in the powers of the Security Accreditation Board and those of the Chairperson of the Security Accreditation Board, by partly aligning them with those of the Administrative Board and the Executive Director respectively.
It is also provided that the Security Accreditation Board must prepare and approve the part of the Agency work programmes describing the operational activities associated with system security accreditation as well as the part of the annual report concerning the activities and prospects of the Agency concerning systems' security accreditation activities and forward them in due course to the Administrative Board so that they can be incorporated in the Agency's work programme and annual report. It must also exercise disciplinary authority over its Chairperson.
The Chairperson of the Security Accreditation Board plays a role in relation to security accreditation activities comparable to that of the Executive Director in other Agency activities. In addition to representing the Agency, a function which is already laid down in Regulation (EU) No 912/2010 in its current version, he/she will henceforth manage the security accreditation activities under the direction of the Security Accreditation Board and ensure the implementation of the part of the Agency work programmes associated with accreditation. At the invitation of the Parliament or the Council, he/she may also submit a report on the performance of its tasks and make a statement before these institutions.
As regards the implementation of the interinstitutional approach to the decentralised agencies, the alignment with the principles set out in this approach notably affects the rules for adopting decisions by the Administrative Board, the mandate of the members of the Administrative Board and the Security Accreditation Board as well as those of their Chairpersons, the existence of a multiannual work programme, the powers of the Administrative Board concerning staff management, evaluation and revision of the Regulation, prevention of conflicts of interest and processing of non-classified sensitive information.
The legal elements of the proposal referred to in point 3 above do not in themselves have any budgetary implications.
However, the legislative financial statement associated with Regulation (EU) No 912/2010, which accompanies the proposal and incorporates the new staff requirements of the Agency relating to the new tasks which may be entrusted to it, such as the exploitation of the European GNSS systems, translates these requirements in financial terms. In budgetary terms, the amounts required are already included in the Commission's proposal for the next financial framework 2014-2020. They will be financed by redeployment within the budget headings of the GNSS programmes in the same way as the additional requirements for 2013. It should be noted that the expenditure associated with the new staff requirements of the Agency will be partially offset by a reduction of 30 posts in the Commission's establishment plan during the same period, i.e. from 2014 to 2020. The budget details are shown in the legislative financial statement in Annex.
It should be noted in any event that the figures referred to in the legislative financial statement are dependent on the adoption of the financial framework 2014-2020 by the budgetary authority and the adoption of the future GNSS Regulation.