Overeenkomst tussen bepaalde Lid-Staten van de Europese Organisatie voor Ruimteonderzoek en de Europese Organisatie voor Ruimteonderzoek betreffende de uitvoering van een telecommunicatiesatellieten-programma
The Government of the Federal Republic of Germany, the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Italian Republic, the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland, the Kingdom of Sweden and the Swiss Confederation (hereinafter referred to as ‘the Participants’), being Governments of States parties to the Convention for the establishment of a European Space Research Organisation opened for signature in Paris on 14 June 1962 (hereinafter referred to as ‘the Convention’),
the European Space Research Organisation (hereinafter referred to as ‘the Organisation’),
Having regard to the objectives elaborated after consultation with the European Conference of Postal and Telecommunications Administrations (CEPT) and the European Broadcasting Union (EBU) in accordance with the Resolutions of the Conference of Posts and Telecommunication Ministers (Brussels, April 1970 and Vienna, April 1972), namely to make available to the Postal and Telecommunications Administrations (hereinafter referred to as ‘the users’) as from 1980 reliable space links capable of handling part of the intra-European public telecommunications traffic and the exchange of television programmes,
Considering that the attainment of these objectives will call for major technological efforts that will assure the progress of European industry and enable it to participate more competitively in the development of other space communications systems,
Desiring, to this end, to carry out a European programme comprising the design, development, construction and setting-up of the experimental and pre-operational space segment of a space communications system and making reliable operational satellites available to users, and furthermore to develop in Europe the technology in this field,
Having noted the completion of the preparatory Phase of the said programme, and recalling the decision taken at the 44th Session of the Council of the Organisation, held on 20 December 1971, to undertake the succeeding experimental Phase (ESRO/C/ XLIII/Res. 3 (Final) Chapter 1.3),
Having regard to the Declaration dated 12 April 1973 made by the representatives on the Council of the Organisation of the Governments referred to above,
Having regard to the Resolution adopted by the Council of the Organisation at its 56th Session, concerning the acceptance of the request to execute this programme within the framework of the Organisation,
Having regard to the Memorandum of Understanding between the Organisation and the Department of Communications of Canada concerning their cooperation in advanced space technology, signed on 18 May 1972,
The Participants shall undertake a programme, broken down into Phases, whose objectives shall be to design, develop, construct and set up the experimental and pre-operational space segment of a space communications system matching the objectives of the users, and to make reliable operational satellites available to the users on completion of the programme. The elements of this space segment are described in Annex A to the present Arrangement.
The programme referred to in Article 1 above shall be broken down into two Phases. It was preceded by a preparatory programme definition Phase (Phase 1), already completed. These two Phases – described in detail in Annex A to this Arrangement – are as follows:
A technological and experimental Phase, during which the communication techniques and the spacecraft technologies required for the programme will be developed on the ground and tested aboard experimental and pre-operational satellites (Phase 2). This Phase may be reviewed, at any appropriate moment during its execution, with a view to the inclusion of a sub-Phase (2bis) comprising further work on advanced techniques and specialised studies.
A Phase devoted to the development of two operational flight units together, if necessary, with the launching, and evaluation in orbit, of a prototype model, and on its completion to making these operational flight units available to the potential users, one of them in orbit and the other on the ground, on terms to be agreed between the Participants and the users (Phase 3).
The decisions to proceed to sub-Phase 2bis and to Phase 3 shall be taken in conformity with the provisions of Article 5 below.
The Organisation shall, under Article VIII of the Convention, execute the programme referred to in Article 1 above, in conformity with the timetable and other provisions set out in Annex A to this Arrangement.
Except where otherwise provided in this Arrangement, the Organisation shall execute the programme in conformity with the rules and procedures in force in the Organisation.
A Programme Board, composed of the representatives of the Participants, shall be responsible for the programme and shall take all decisions relating to it, in conformity with the provisions of this Arrangement.
For matters affecting this and another programme of the Organisation, the Programme Board shall be advisory to the Council, to which it will on such matters make all necessary recommendations.
The Programme Board shall also be responsible for maintaining close links with the national and international telecommunication agencies, so as to be in a position to respond to any reorientation of the operational objectives of the envisaged space segment; it shall define the rules for using the space segment of the Phase 2 for experimental and pre-operational purposes.
The Programme Board may establish such advisory bodies as it may deem necessary for the proper execution of the programme.
The decisions of the Programme Board shall be taken in conformity with the provisions of this Arrangement. Unless expressly provided otherwise, the voting rules laid down in the Convention and in the Rules of Procedure for the Organisation's Council shall apply mutatis mutandis.
Decisions on the start, and precise content, of sub-Phase 2bis and of Phase 3 of the programme shall be taken by the Programme Board by a two-thirds majority, provided this majority represents at least two-thirds of the contributions to the programme. If no decision to proceed to Phase 3 can be arrived at in this way, those States that wish, nevertheless, to continue with the programme, shall consult among themselves and determine arrangements for such continuation. They shall report accordingly to the Council, which shall take any measures that may be required.
The expenditure resulting from the execution of the programme by the Organisation under this Arrangement shall be met by the Participants, in accordance with the detailed provisions set out in Annex B to this Arrangement, and within the limits of the firm financial envelope for each Phase as determined in conformity with the provisions of the present Article.
The Participants agree to contribute to the financing of Phase 2 of the programme on the basis of a firm financial envelope of 115.1 million accounting units (at mid-1972 price levels), to which will be added a share of the Organisation's common and support costs currently estimated at 28 million accounting units.
As soon as possible during Phase 2 and once the conditions laid down in Article 5 above have been met, the Participants shall determine, by the majority defined in Article 5, a firm financial envelope for the execution of Phase 3.
The annual budgets relating to the programme shall be subject to the approval by the Programme Board by a two-thirds majority, within the relevant firm financial envelope.
The Participants agree, in order that the firm financial envelope of a Phase may be revised in the event of changes in price levels, to apply the procedure in force in the Organisation at that time.
Where a firm envelope needs to be revised for reasons other than changes in price levels, the following provisions shall apply:
If the cumulative overruns of estimated costs to completion do not exceed 20 % of the amount of the firm financial envelope of the Phase in progress, no Participant shall be entitled to withdraw from the programme and the Programme Board shall decide on the additional expenditure by a two-thirds majority.
If the cumulative overruns of estimated costs to completion exceed 20 % of the amount of the firm envelope in question, the Participants who so wish may withdraw from the programme subject to the provisions of Article 17. Those Participants that wish to continue the programme shall consult among themselves and determine the arrangements for such continuation. They shall report accordingly to the Council, which will take any necessary decision.
Intellectual property rights arising from the execution of the programme, as well as access to technical information so arising, shall be reserved to the Participants, but the Organisation shall have the right to make use of them free of charge for its activities as a whole.
The Participants authorise the Organisation to conclude the necessary contracts for the execution of the programme in conformity with the Organisation's rules and procedures. However, in placing contracts and sub-contracts for the execution of this programme, preference shall be given, wherever possible, to execution of the work in the territories of the Participants, taking into consideration the Council's decisions in the matter of industrial policy and distribution of work.
The Organisation, acting on behalf of the Participants, shall be the owner of the satellites developed under the programme, as well as of the facilities and equipment acquired up to the end of Phase 3 for its execution. Any transfer of facilities and equipment acquired shall be decided on by the Programme Board in consultation with the Council of the Organisation.
The Participants shall indemnify the Organisation in respect of any liability it may incur should its international responsibility be involved as a result of the execution of the programme.
Any compensation for damage received by the Organisation with respect to the programme shall be credited to the annual programme budgets referred to in Article 6, paragraph 4.
Any dispute which arises between two or more of the Participants, or between any of them and the Organisation, concerning the interpretation or the application of this Arrangement, and which cannot be settled by mutual consent, shall be submitted at the request of any party to the dispute to a single arbitrator to be appointed by the President of the International Court of Justice. The arbitrator may not be a national of a State which is party to the dispute nor be a permanent resident of such a State.
Those parties to the Arrangement which are not parties to the dispute shall have the right to join in the proceedings and the arbitrator's decision shall be binding on all the Participants and the Organisation, whether or not they have joined in the proceedings.
This Arrangement shall be open for signature by the Participants from 1 June 1973 to 21 September 1973.
The States shall become parties to this Arrangement:
either by signature not subject to ratification or approval,
or by depositing an instrument of ratification or approval with the Government of the French Republic if the Arrangement was signed subject to ratification or approval.
This Arrangement shall come into force when it has been signed by the Organisation and when the aggregate contributions payable - on the basis of the scale set out in Annex B - by the States that have become parties to this Arrangement in accordance with paragraph 2 of this Article amount to two-thirds of the total contributions payable.
For the purpose of paragraph 3 of this Article, the deposit, with the depositary Government, of a declaration of intent to apply the Arrangement provisionally and to seek ratification or approval as soon as possible shall be considered as the deposit of an instrument of ratification or approval.
The Government of any Member State of the Organisation which has not signed the Arrangement by 21 September 1973 may become party to it after it has come into force, provided the other Governments party to the Arrangement agree. The Government in question must deposit an instrument of accession with the Government of the French Republic.
Unless the Programme Board unanimously decides otherwise, a Government that becomes a party to this Arrangement after its entry into force shall pay a contribution equal to that which it would have paid if it had been a party to the Arrangement at the moment of its entry into force and this contribution shall be credited pro rata to the contributions of the Participants.
The Government of a State that is not a Member of the Organisation may present a request to the Council of the Organisation to accede to the programme; a Council decision to grant such a request shall require unanimity and must be taken in agreement with the Programme Board, which shall unanimously determine the terms of accession.
The Organisation shall notify the Participants, after consultation with the Programme Board, when the programme has been duly completed in accordance with the provisions of this Arrangement and this Arrangement shall expire upon receipt of such notification.
The Participants may decide to cease the execution of the programme by a two-thirds majority representing also at least twothirds of the contributions to the programme.
A Participant wishing to withdraw under the terms of Article 5 and Article 7, paragraph 2 (b), of this Arrangement shall notify its withdrawal to the Organisation. This withdrawal shall take effect at the date of the notification, subject to the following provisions:
The withdrawing Participant shall be bound to pay in the manner agreed its contributions adopted under the current or previous annual budget (s).
The withdrawing Participant shall remain bound to pay its share of the payment appropriations corresponding to approved contract authority used under the budget for the current or previous financial year(s) and relating to any programme Phase whose execution is in progress.
The withdrawing Participant shall remain a member of the Programme Board until its obligations under (a) and (b) above have been fulfilled. It shall only have a right to vote on matters which are directly related to these obligations.
The withdrawing Participant shall retain the rights acquired up to the date on which its withdrawal takes effect. As regards actions and developments decided upon after its withdrawal, no further right or obligation shall arise in respect of that part of the programme to which it no longer contributes, unless and to the extent agreed otherwise between the remaining Participants and the withdrawing Participant. The provisions of Article XVII of the Convention of the Organisation shall apply mutatis mutandis.
Should a non-Member State which has acceded to the programme in accordance with the provisions of Article 14 of this Arrangement wish to withdraw from the programme, the provisions of this Article shall apply mutatis mutandis.
Annexes A and B to this Arrangement form an integral part of it.
This Arrangement may be reviewed at the request of a Participant or of the Organisation. Any amendments shall come into force when all parties have notified their approval to the depositary Government.
The Annexes to this Arrangement may be revised by the Programme Board in accordance with the provisions of the revision clauses of those Annexes.
Upon entry into force of the Arrangement, the Government of the French Republic shall register it with the Secretariat of the United Nations, in accordance with Article 102 of the United Nations Charter.
The Government of the French Republic shall be the depositary of this Arrangement and shall notify the Participants and the Organisation of the date of entry into force of this Arrangement and any amendments thereto, and of all instruments of ratification, approval, accession and declaration of intent to apply the Arrangement provisionally.
IN WITNESS WHEREOF the undersigned representatives, having been duly authorised thereto, have signed this Arrangement,
DONE in Neuilly-sur-Seine, this twelfth day of April nineteen hundred and seventy-three in the English, French and German languages, all three texts being equally authoritative, in a single copy, which shall be deposited in the archives of the Government of the French Republic, which shall transmit certified copies to each of the Participants and to the Organisation.