Oops my Galileo signal made me do it
What are the possible civil liability implications for the EU from the operation of the Galileo?
Galileo is to be Europe’s own Global Navigation Satellite System (GNSS). It is expected to provide a highly accurate, guaranteed global positioning service under civilian control. It will be interoperable with the Global Positioning System (GPS), the American version of GNSS. Remarkably enough, whereas GPS was introduced as a military system, Galileo will be the first solely civilian GNSS, offering a great number of civilian applications. It is expected to become fully operational by the year 2020 as part of the EU’s funding programme for research and innovation Horizon 2020.
For the operation of Galileo, advanced technology will need to be employed. A number of satellites will be placed into fixed orbits in outer space; the satellites will be constantly emitting navigational signals indicating their position at any given time and in a very precise way. The navigational signals will be received by any person possessing the necessary technology such as a GNSS receiver (the so called navis technology). When receiving the signals from at least four satellites, the receiver can pinpoint the position of persons and goods around the globe exactly to the metre. The benefits of using this technology will be many. Better navigation of different modes of transportation such as the navigation of planes or ships. Besides navigational data, Galileo satellites will provide information for timing and positioning. Hence, various applications concerned with the synchronisation of economic networks (i.e. at banks or financial institutions) or scientific applications related to the environment and meteorology are expected to emerge. But still, when there are advantages, there are also risks and legal challenges. Questions relating to the civil liability of the operator of the Galileo system in case of a GNSS failure - especially liabilities connected to the signal in space provision - have attracted a lot of interest lately. For example, a failure in the provision of the signal (i.e. signal loss or an erroneous signal) resulting from negligence on the part of the (EU) operator may lead to damage scenarios with catastrophic consequences: An aircraft crash into a densely populated area or a shipwreck with disastrous consequences for the environment would be two examples.
Given the fact that the EU is expected to be the owner and operator of the Galileo system, several questions must be asked from a liability law perspective. Inter alia: What are the possible civil liability implications for the EU? Can defective information from signals lead to civil liability implications? Can the EU benefit from the defence of state immunity? If not, what would be the possible legal basis for the assertion of liability claims against the EU? Will article 340 of the TFEU be sufficient enough to address such kinds of damage scenarios? What other current international or national liability law instruments could come into play? And lastly, what need may arise in the future for the initiation of a centralized approach such as the adoption of an EU Regulation or Directive?
In our opinion, the specificities and the risks entailed within the field of GNSS technology may trigger the application of the precautionary approach. Thus, a specific EU GNSS regulatory instrument may be a future option before the fully operational phase for Galileo. However, its form, its specific provisions and the way it will be dealing with liability from signals remain to be seen. For instance, what type of liability will the EU legislator initiate? Is there any possibility for channelling liability to the operator? And lastly, what will be the chances for the creation of alternative mechanisms for compensation such as the creation of a compensation fund?