Regulation (EU) No 377/2014 of the European Parliament and of the CouncilShow full title

Regulation (EU) No 377/2014 of the European Parliament and of the Council

of 3 April 2014

establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 189(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure(2),

Whereas:

(1) Global Monitoring for Environment and Security (GMES) was an Earth monitoring initiative led by the Union and carried out in partnership with the Member States and the European Space Agency (ESA). The origins of GMES date back to May 1998, when institutions involved in the development of space activities in Europe made a joint declaration known as the ‘Baveno Manifesto’. The Manifesto called for a long-term commitment to the development of space-based environmental monitoring services, making use of, and further developing, European skills and technologies. In 2005, the Union made the strategic choice of developing jointly with ESA an independent European Earth observation capacity to deliver services in the environmental and security fields.

(2) Building on that initiative, Regulation (EU) No 911/2010 of the European Parliament and of the Council(3) established the European Earth monitoring programme (GMES) and the rules for the implementation of its initial operations.

(3) While the programme set up under Regulation (EU) No 911/2010 should continue under the multiannual financial framework 2014-2020, established by Council Regulation (EU, Euratom) No 1311/2013(4), the acronym ‘GMES’ should be replaced by the name of ‘Copernicus’ in order to facilitate the communication with the public at large. The Commission has registered the trademark so that it can be used by the Union institutions and licensed to other interested users, in particular the providers of core services.

(4) The Copernicus programme (Copernicus) is based on a partnership between the Union, ESA and the Member States. Hence, it should build on existing European and national capacities and should complement them by new assets developed in common. In order to implement this approach, the Commission should endeavour to maintain a dialogue with ESA and Member States owning relevant space and in situ assets.

(5) In order to attain its objectives, Copernicus should ensure an autonomous Union capacity for spaceborne observations and provide operational services in the field of the environment, civil protection and civil security, fully respecting national mandates on official warnings. It should also make use of the available contributing missions and in situ data provided mainly by the Member States. To the greatest extent possible, Copernicus should make use of capacities for spaceborne observations and services of Member States. Copernicus should also make use of the capacities of commercial initiatives in Europe, thereby also contributing to the development of a viable commercial space sector in Europe. In addition, systems to optimise the transmission of data should be promoted to further enhance capabilities in response to growing user demand for near real-time data.

(6) To promote and facilitate the use of Earth observation technologies both by local authorities and by small and medium-sized enterprises (SMEs), dedicated networks for Copernicus data distribution, including national and regional bodies, should be promoted.

(7) The objective of Copernicus should be to provide accurate and reliable information in the field of the environment and security, tailored to the needs of users and supporting other Union policies, in particular relating to the internal market, transport, environment, energy, civil protection and civil security, cooperation with third countries and humanitarian aid.

(8) Copernicus should be considered as a European contribution to building the Global Earth Observation System of Systems (GEOSS) developed within the framework of the Group on Earth Observations (GEO).

(9) Copernicus should be implemented consistently with other relevant Union instruments and actions, in particular with environmental and climate change actions, and instruments in the field of security, protection of personal data, competitiveness and innovation, cohesion, research, transport, competition and international cooperation, and with the European satellite navigation systems (Galileo and EGNOS). Copernicus data should be compliant with Member States' spatial reference data as well as with implementing rules and technical guidelines of the infrastructure for spatial information in the Union established by Directive 2007/2/EC of the European Parliament and of the Council(5). Copernicus should also complement the Shared Environmental Information System (SEIS), as referred to in the Commission Communication of 1 February 2008 entitled: Towards a Shared Environmental Information System (SEIS), and Union activities in the field of emergency response. Copernicus should be implemented in accordance with the objectives of Directive 2003/98/EC of the European Parliament and of the Council(6) on the re-use of public sector information, in particular transparency, the creation of conditions conducive to the development of services, and contributing to economic growth and job creation. Copernicus data and Copernicus information should be available freely and openly to support the Digital Agenda for Europe, as referred to in the Commission Communication of 26 August 2010 entitled: A Digital Agenda for Europe.

(10) Copernicus is a programme to be delivered under the Europe 2020 strategy for smart, sustainable and inclusive growth (the ‘Europe 2020 strategy’). It should benefit a wide range of Union policies and contribute to reaching the objectives of the Europe 2020 strategy, in particular by developing an effective space policy to provide the tools to address some of the key global challenges and meet the targets on climate change and energy sustainability. Copernicus should also support the implementation of the European space policy and support the growth of European markets for space-based data and services.

(11) Copernicus should also benefit from the results provided by Horizon 2020, established by Regulation (EU) No 1291/2013 of the European Parliament and of the Council(7), in particular through its activities in research and innovation for future Earth Observation technologies and applications using remote sensing, airborne and in situ technologies and data to respond to the major societal challenges. The Commission should ensure appropriate synergy, transparency and clarity regarding the different aspects of Copernicus.

(12) The evolution of the Copernicus space component should be based on an analysis of options to meet evolving user needs, including procurement from national/public missions and commercial providers in Europe, specification of new dedicated missions, international agreements ensuring access to non-European missions, and the European Earth observation market.

(13) For the sake of clarity and in order to facilitate cost control, the maximum amount allocated by the Union to implement the Copernicus activities should be broken down into various categories. Nonetheless, in the interest of flexibility and to ensure the smooth running of Copernicus, the Commission should be able to re-allocate funds from one category to another.

(14) The provision of operational services depends on the good functioning, continued availability and safety of the Copernicus space component. The increasing risk of collision with other satellites and space debris is a serious threat to the Copernicus space component. Therefore, the Copernicus activities should include the protection of the Copernicus space component and its operations, including during the launch of satellites. In this respect, a proportionate contribution to the costs of services capable of providing such protection could be financed by the budget allocated to Copernicus insofar as possible following rigorous cost management and full compliance with the maximum amount of EUR 26,5 million in current prices established in this Regulation. Such contribution should be used only for the provision of data and services and not for the purchase of infrastructure.

(15) With a view to improving the implementation of Copernicus and its long-term planning, the Commission should adopt an annual work programme, including an implementation plan of the actions required to meet the objectives of Copernicus. That implementation plan should be forward-looking and should describe the actions needed to implement Copernicus taking into account evolving user needs and technological developments.

(16) The implementation of the Copernicus service component should be based on technical specifications given the complexity and resources allocated to Copernicus. This would also facilitate the public uptake of services as users would be able to anticipate the availability and evolution of services as well as cooperation with Member States and other parties. Therefore, the Commission should adopt and update, as necessary, technical specifications for all Copernicus services addressing aspects such as scope, architecture, technical service portfolios, indicative cost break-down and planning, performance levels, space and in situ data access needs, evolution, standards, archiving and dissemination of data.

(17) The implementation of the Copernicus space component should be based on technical specifications given the complexity and resources allocated to Copernicus. Therefore, the Commission should adopt and update, as necessary, technical specifications detailing the activities to be supported under the Copernicus space component and their indicative cost break-down and planning. Since Copernicus should build on investments made by the Union, ESA and Member States in the context of the Global Monitoring for Environment and Security, the activities under the Copernicus space component should take into consideration, where appropriate, elements of the ESA Long-Term Scenario (LTS) which is a document prepared and updated by ESA, establishing an overall framework for the Copernicus space component.

(18) Copernicus should be user-driven, thus requiring the continuous, effective involvement of users, particularly regarding the definition and validation of service requirements.

(19) The international dimension of Copernicus is of particular relevance in the exchange of data and information, as well as in access to observation infrastructure. Such exchange is more cost-efficient than data-buy schemes and strengthens the global dimension of Copernicus.

(20) The European Economic Area (EEA) Agreement and the Framework Agreements with candidate countries and potential candidates provide for participation by those countries in Union programmes. Participation by other third countries and international organisations should be made possible by the conclusion of international agreements to that effect.

(21) Member States, third countries and international organisations should be free to contribute to the programmes on the basis of appropriate agreements.

(22) The Commission should have overall responsibility for Copernicus. It should define the priorities and ensure the overall coordination and supervision of Copernicus. That should also include special efforts leading to raising public awareness about the importance of space programmes for European citizens. It should provide the European Parliament and the Council with all relevant information pertaining to Copernicus in a timely manner.

(23) In the implementation of Copernicus, the Commission should rely, where appropriate, on European intergovernmental organisations with whom it has already established partnerships, in particular ESA for the technical coordination of the Copernicus space component, the definition of its architecture, the development and procurement of space assets, data access and the operation of dedicated missions. In addition, the Commission should also rely on the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) for the operation of dedicated missions in accordance with its expertise and mandate.

(24) Taking into account the partnership dimension of Copernicus and in order to avoid duplication of technical expertise, the implementation of Copernicus should be delegated to entities with the appropriate technical and professional capacity. Such entities should be encouraged to open the execution of those tasks to competition up to an adequate level in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council(8) (‘the Financial Regulation’).

(25) Copernicus should include a service component ensuring delivery of information in atmosphere monitoring, marine environment monitoring, land monitoring, climate change, emergency management and security. In particular, Copernicus should deliver information on the state of the atmosphere including at the local, national, European and global scale; information on the state of the oceans, including through the setting-up of a dedicated European grouping for marine monitoring; information in support of land monitoring supporting the implementation of local, national and European policies; information in support of climate change adaptation and mitigation; geospatial information in support of emergency management, including through prevention activities, and civil security including support for the Union's external action. The Commission should identify appropriate contractual arrangements fostering the sustainability of service provision.

(26) In the implementation of Copernicus service component, the Commission may rely, where duly justified by the special nature of the action and specific expertise, on competent entities, such as the European Environment Agency, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), the European Maritime Safety Agency (EMSA) and the European Union Satellite Centre (SATCEN), the European Centre for Medium-Range Weather Forecasts (ECMWF), other relevant European agencies, groupings or consortia of national bodies, or any relevant body potentially eligible for a delegation in accordance with the Financial Regulation. The choice of the entity should take due account of the cost efficiency of entrusting those tasks and the impact on the entity's governance structure and on its financial and human resources.

(27) The Joint Research Centre (JRC) of the Commission has been actively involved in the GMES initiative and in the implementation of the GMES initial operations established under Regulation (EU) No 911/2010. The Commission should continue relying on the JRC's scientific and technical support for the implementation of Copernicus.

(28) Public procurement of the entities entrusted with the implementation of Copernicus should be compatible with Union rules or equivalent international standards, to the extent allowable by the provisions on public contracts in the Financial Regulation. Specific adjustments necessary to these rules, as well as the arrangements for the prolongation of the existing contracts, should be defined in the corresponding delegation agreements. It should aim, first and foremost, to obtain best value for money, control costs, mitigate risks, improve efficiency and reduce reliance on a single supplier. Open access and fair competition throughout the supply chain and the balanced offering of participation opportunities to industry at all levels, including, in particular, new entrants and SMEs, should be ensured. Possible abuse of dominant position and of long-term reliance on single suppliers should be avoided. In order to mitigate programme risks, to avoid reliance on a single source of supply and to ensure better overall control of Copernicus and its costs and schedule, multiple sourcing should be pursued, wherever appropriate. Moreover, the development of European industry should be preserved and promoted in all areas relating to Earth observation, in accordance with international agreements to which the Union is Part.

(29) The risk of poor contract performance or of non-performance should be mitigated as much as possible. To that end, contractors should demonstrate the sustainability of their contractual performance with respect to the commitments undertaken and the duration of the contract. Therefore, contracting authorities should, wherever appropriate, specify requirements relating to the reliability of supplies and of the provision of services. In addition, in the case of the purchase of goods and services of a sensitive nature, contracting authorities may subject such purchase to specific requirements, particularly with a view to ensuring security of information. Union industries should be permitted to rely on non-Union sources for certain components and services where substantial advantages are demonstrated in terms of quality and costs, taking account, however, of the strategic nature of Copernicus and of Union security and export control requirements. Advantage should be taken of public sector investment and industrial experience and competence, while ensuring that the rules on competitive tendering are not contravened.

(30) In order to better evaluate the total cost of a product, service or work being tendered, including its long term operational cost, the total cost over the useful lifecycle of the product, service or work being tendered should be taken into account wherever appropriate during the procurement, by using a cost effectiveness approach such as lifecycle costing when pursuing procurement based on the criterion of the most economically advantageous tender award. For that purpose, the contracting authority should make sure that the methodology intended to compute the costs for the useful lifecycle of a product, service or work is expressly mentioned in the contract documents or the contract notice and that it allows the accuracy of the information supplied by the tenderers to be verified.

(31) The contracting authority should be able to restore a level playing-field when one or more companies have, prior to a call for tenders, privileged information on the activities associated with the call for tender. It should be possible to award a contract in the form of a conditional stage-payment contract, introduce an amendment, under certain conditions, in the context of its performance, or even impose a minimum level of subcontracting. Finally, due to the technological uncertainties that are a feature of Copernicus, contract prices cannot always be forecast accurately and it is therefore desirable to conclude contracts in a specific form that do not stipulate a firm fixed price and include clauses to safeguard the financial interests of the Union.

(32) With a view to keeping Copernicus in its maximum amount by reducing to the largest extent technical and schedule risks and their associated cost and ensuring sustained reliability of supply, Copernicus should make maximum use of prior public sector financial and infrastructure investments as well as of the industrial experience and competence acquired through such investments in GMES. This should be particularly true for what concerns the recurrent space and ground segment components developed by ESA and its Participating States in the context of the GMES Space Component optional programme with a financial participation of the Union. In the latter case use of the negotiated procedure without prior publication of a contract notice or its equivalent should be duly considered by the contracting authority.

(33) In order to achieve the objectives of Copernicus on a sustainable basis, it is necessary to coordinate the activities of the various partners involved in Copernicus, and to develop, establish and operate a service and observation capacity meeting the demands of users. In this context, a committee (the Copernicus Committee) should assist the Commission in ensuring the coordination of contributions to Copernicus by the Union, the Member States and inter-governmental organisations as well as coordination with the private sector, making the best use of existing capacities and identifying gaps to be addressed at Union level. It should also assist the Commission in monitoring the coherent implementation of Copernicus. As sound public governance requires uniform management of Copernicus, faster decision-making and equal access to information, representatives of entities entrusted with budget implementation tasks should be able to take part as observers in the work of the Copernicus Committee. For the same reasons, representatives of third countries and international organisations who have concluded an international agreement with the Union should be able to take part in the work of the Copernicus Committee subject to security constraints and as provided for in the terms of such agreement. Such representatives should not be entitled to take part in the Copernicus Committee voting procedures.

(34) The work of the entities to which the Commission has delegated implementation tasks should also be measured against performance indicators. This would provide the European Parliament and the Council with an indication of the progress of the Copernicus operations and Copernicus implementation.

(35) The Commission Delegated Regulation (EU) No 1159/2013(9) has established the registration and licensing conditions for GMES users and has defined criteria for restricting access to GMES dedicated data and GMES service information.

(36) The data and information produced in the framework of Copernicus should be made available on a full, open and free-of-charge basis subject to appropriate conditions and limitations, in order to promote their use and sharing, and to strengthen European Earth observation markets, in particular the downstream sector, thereby enabling growth and job creation.

(37) The Commission should work with data providers to agree licensing conditions for third-party data to facilitate their use within Copernicus, in compliance with this Regulation and applicable third-party rights.

(38) The access rights to Copernicus Sentinel data granted under the GMES Space Component Programme as approved by the ESA Programme Board on Earth Observation on 24 September 2013 should be taken into account.

(39) Since Copernicus is a civil programme under civil control, priority should be given to the acquisition of data and the production of information, including high-resolution images, that do not constitute a risk or threat for the security of the Union or its Member States. However, as some Copernicus data and Copernicus information may require protection, to ensure the secure circulation of such information, within the scope of this Regulation, all participants in Copernicus should ensure a degree of protection of EU classified information equivalent to that provided by the rules on security as set out in the Annex to Commission Decision 2001/844/EC, ECSC, Euratom(10) and by the security rules of the Council set out in the Annexes to Council Decision 2013/488/EU(11).

(40) As some Copernicus data and Copernicus information, including high-resolution images, may have an impact on the security of the Union or its Member States, in duly justified cases, the Council should be empowered to adopt the measures in order to deal with risks and threats to the security of the Union or its Member States.

(41) The Union should be the owner of all tangible and intangible assets created or developed under Copernicus. In order to comply fully with any fundamental rights relating to ownership, the necessary arrangements should be made with existing owners. It should be understood that the provisions on ownership of intangible assets laid down in this Regulation do not cover intangible rights that are not transferable under relevant national laws. Such ownership by the Union should be without prejudice to the possibility for the Union, in accordance with this Regulation and where it is deemed appropriate on the basis of a case-by-case assessment, to make those assets available to third parties or to dispose of them. In particular, the Union should be able to transfer the ownership of, or license the intellectual property rights arising from, work under Copernicus in the interest of a strong uptake of Copernicus services by downstream users.

(42) The financial interests of the Union should be protected through proportionate measures throughout the expenditure cycle, including the prevention, detection and investigation of irregularities, the recovery of funds lost, wrongly paid or incorrectly used and, where appropriate, administrative and financial penalties in accordance with the Financial Regulation.

(43) Since Copernicus is a complex programme, the Commission should be assisted by independent experts from a broad constituency of stakeholders, including in particular experts nominated by Member States on security issues, representatives of relevant national entities responsible for space and Copernicus users, to provide it with the necessary technical and scientific expertise, as well as inter-disciplinary and cross-sectoral perspectives, taking account of relevant existing initiatives at Union, national and regional levels.

(44) In order to ensure uniform conditions for the implementation of this Regulation as regards the adoption of the annual work programme, the technical specifications for the service and space components, security aspects and the measures to promote the convergence of Member States in the use of Copernicus data and Copernicus information and their access to the technology and development in Earth Observation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council(12).

(45) Since Copernicus is user driven, it requires the continuous, effective involvement of users, particularly regarding the definition and validation of service requirements. In order to increase the value of users, their input should be actively sought through regular consultation with end-users from the public and private sectors. For that purpose, a working group (the ‘User Forum’) should be set up to assist the Copernicus Committee with the identification of user requirements, the verification of service compliance and the coordination of public sector users.

(46) The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of the data requirements necessary for the evolution of operational services, the conditions and procedures regarding access to, registration and use of Copernicus data and Copernicus information, the specific technical criteria necessary to prevent the disruption of Copernicus data and Copernicus information and the criteria for the restriction of acquisition or dissemination of Copernicus data and Copernicus information due to conflicting rights. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(47) The actions financed under this Regulation should be monitored and evaluated in order to allow for readjustments and new evolutions. In particular, the evaluation should assess the effects of the Copernicus data and Copernicus information policy on stakeholders, downstream users, the influence on business as well as on national and private investments in Earth observation infrastructures. The evaluation should also address the possible future involvement of relevant European agencies, such as the European GNSS Agency. In order to maximise the results and capitalise on the knowledge and expertise acquired through the implementation phases of Copernicus, new organisation models should be explored for future planning, ensuring long-term economic commitment.

(48) Since the objective of this Regulation, namely the establishment of Copernicus, cannot be sufficiently achieved by the Member States because it will also comprise pan-European capacity and depend on the coordinated provision of services throughout the Member States that needs to be coordinated at Union level, but can rather, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(49) This Regulation lays down a financial envelope, which is to constitute the prime reference amount, within the meaning of point 17 of the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management(13), for the European Parliament and the Council during the annual budgetary procedure.

(50) It is appropriate to align the period of funding of this Regulation with that provided for in Regulation (EU, Euratom) No 1311/2013. Therefore, this Regulation should apply from 1 January 2014.

(51) It is also necessary to repeal Regulation (EU) No 911/2010 in order to establish an appropriate framework for governance and funding and to ensure a fully operational Copernicus. Any measure adopted on the basis of Regulation (EU) No 911/2010 should remain valid in order to ensure its continuity,

HAVE ADOPTED THIS REGULATION:

(1)

Opinion of 16 October 2013.

(2)

Position of the European Parliament of 12 March 2014 (not yet published in the Official Journal) and decision of the Council of 24 March 2014.

(3)

Regulation (EU) No 911/2010 of the European Parliament and of the Council of 22 September 2010 on the European Earth monitoring programme (GMES) and its initial operations (2011 to 2013) (OJ L 276, 20.10.2010, p. 1).

(4)

Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual financial framework for the years 2014-2020 (OJ L 347, 20.12.2013, p. 884).

(5)

Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ L 108, 25.4.2007, p. 1).

(6)

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

(7)

Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ L 347, 20.12.2013, p. 104).

(8)

Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).

(9)

Commission Delegated Regulation (EU) No 1159/2013 of 12 July 2013 supplementing Regulation (EU) No 911/2010 of the European Parliament and of the Council on the European Earth monitoring programme (GMES) by establishing registration and licensing conditions for GMES users and defining criteria for restricting access to GMES dedicated data and GMES service information (OJ L 309, 19.11.2013, p. 1).

(10)

Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedure (OJ L 317, 3.12.2001, p. 1).

(11)

Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1).

(12)

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(13)

OJ C 373, 20.12.2013, p. 1.