The need for harmonising a mosaic of national laws and policies
In 2024, a mosaic of laws applicable to space activities exists within the European Union: eleven Member States have national legal frameworks applicable to in-orbit operations to regulate operators and space objects. Indeed, all European states (with the exception of Latvia) are parties to the 1967 Outer Space Treaty, which sets out a number of obligations. In this respect, “the activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall be subject to authorisation and continuing supervision by the appropriate State party to the Treaty.” Given the growing number of non-governmental entities conducting space activities, European states must work together to comply with their international obligations.
To this end, Brussels is currently working on a draft EU Space Law. Rather than waiting for each Member State to adopt its legislation, the European Commission is considering adopting a legal instrument that would serve as a framework for the Member States in setting up an organised single market.
This initiative represents a strong political message for the region’s space market, particularly regarding the development of sovereign capabilities in outer space, as well as the strategic need for the EU to develop its industry and maintain its autonomy in the space sector. Although all the legal developments have yet to be unveiled, this EU Space Law would be based on three fundamental pillars: safety, resilience and sustainability of operations and systems.
From a strategic and political approach to a broader legal framework
Since 1 December 2009, the Treaty of Lisbon has given the EU international legal personality and new competencies in security, defence and space policy, set out in Article 189 of the Treaty on the Functioning of the European Union (TFEU). This treaty enables the EU to sign international agreements. It strengthens the role of the European Parliament in establishing a space policy aimed at promoting scientific progress, industrial competitiveness and the application of European policies, without, however, being able to harmonise national legislation. Subsequently, the European institutions’ renewed interest in outer space evolved in 2021 with the adoption of Regulation 2021/696, which established the European Union Space Programme Agency (EUSPA) and organises the operational and commercial aspects of the most important European space initiatives, notably navigation with the Galileo satellite system and Earth observation with the Copernicus services. As well as providing a framework for the development and funding of EU space activities, this regulation has laid the foundation stone for Europe’s space strategy to position itself alongside other space powers at the international level. Subsequently, in 2022, the EU recognised space as a strategic domain whose role is critical for society, the economy, security and defence. As such, it has worked on a common understanding of space threats, their identification and their perception by other major powers. It has also developed a strategic compass designed to strengthen the EU’s security and defence policy between now and 2030.
Despite this desire to adopt a shared vision and strengthen European industry, it seems that the Member States are not succeeding in demonstrating unity and are consolidating their national industries in an individual and fragmented way.
So, rather than maintaining the status quo, and in order to strengthen joint working while maintaining national strategies, the European Commission is proposing several options as part of the EU Space Law draft.
Strengthening the competitiveness of the EU space industry and the legal stability of the sector
European Commission President Ursula von der Leyen presented the EU Space Law project as part of her State of the Union 2023 speech. The final version is expected to be adopted in Spring 2024, before the next European elections in early June. This initiative has been described as intended to enhance legal certainty, reduce the fragmentation linked to the diversity of national legislation within the EU, and ensure greater competitiveness for the sector.
The regulations could also become a real competitive advantage by reassuring the space market through safety, resilience and sustainability measures that would provide companies with a seal of confidence vis-à-vis their partners and customers, both institutional and private.
The European Commission aims for Europe in space to be more than “a musical ensemble made up of only conductors who sometimes manage to play harmoniously,” as researcher Alban Guyomarc’h describes it.
And for good reason: the space market is as much subject to the influence of national public authorities as it is to that of the private sector, made up of Europe’s long-established companies (Airbus, Thalès, Eutelsat, SES, etc.) and smaller companies. Following President von der Leyen’s statement, the European Commission launched a consultation to gather the views of all stakeholders in space activities on the adequacy of national and international legislation and the need to establish guidelines.
Participants were able to share their views on the situation of the space sector in Europe and indicate the problems encountered in the implementation of their activities, in particular with regard to the shortcomings of existing legislation vis-à-vis non-European companies, the complexity of legal frameworks and the need to adapt rules to new space activities and international competition. The consultation also aimed to respond to changes in the industry and technologies, particularly concerning the increase in space debris and emerging threats. It also sought to understand, from the point of view of those taking part in the consultation, the challenges involved in maintaining the integrity and functionality of space infrastructures, particularly in the face of digital and physical threats.
Consolidating space safety
The safety pillar aims to improve the management of space traffic and reduce the risk of collisions. By 2021, an action plan had been established to develop synergies between Europe’s space, defence and civil industries and draw up a space traffic management strategy. This initiative was followed by Council conclusions encouraging this approach and recognising the role that the Commission could play in facilitating the coordination of Member States’ efforts regarding legislation and standardisation in this area.
The aim is to encourage convergence of national positions without prejudice to national competencies while preserving the role of the Member States in drawing up, supervising and applying the rules in this area. This safety component is based in particular on the joint communication of 2022 entitled “An EU approach to space traffic management,” which sets out a series of actions to be adopted.
The consultation circulated at the end of 2023 specifies that the “safety” pillar refers to practices designed to ensure the protection and well-being of astronauts, spacecraft and the orbital environment. The questions posed framed the discussion. Firstly, the consultation sought participants’ views on the risks of collision in space and during re-entry into the Earth’s atmosphere caused by the growing number of space activities and debris. Secondly, it proposed to establish a scale of the main risks to space safety (accidental collision, Kessler syndrome, interruption of essential space services, victims (on the ground) of debris re-entering the atmosphere and risks posed by debris to aircraft in flight and astronauts on the space station).
The consultation involved risk reduction and preventing accidents or incidents that could have harmful consequences. It also asked about the adequacy of current national and international space laws and whether specific requirements or recommendations should be imposed on these issues. Several sets of rules apply to debris management, including the international 2007 Space Debris Mitigation Guidelines, the European Space Agency’s Zero Debris Charter, standards (e.g. ISO 24113), and national laws.
The European Commission strives to establish a common vision by building a legal framework based on three founding pillars for space activities’ safety, resilience and sustainability.
Increasing the resilience of space systems
The draft EU Space Law includes a ‘resilience’ pillar to protect infrastructures, whether ground- or space-based, against threats, in particular hostile and harmful activities in cyberspace. It is also a question of considering the physical protection of assets and having a stable and coherent framework to ensure space security. To this end, discussions were held on the concept of critical infrastructure, its definition and protection. This notion implies specific rules from a legal and political point of view and does not concern all space infrastructures. It may nevertheless be relevant to certain strategic components of the European space programme, in particular Galileo, Europe’s global satellite navigation system, and IRIS2, Infrastructure for Resilience, Interconnectivity and Security via Satellite, a sovereign and secure satellite constellation in multiple orbits focused on government services.
The Commission is considering resilience measures and practices to guarantee the integrity and functionality of space infrastructures and assets. The aim is to prevent events linked to digital/ICT and physical risks and protect against them, resist them, respond to them, mitigate them, and restore operations.
Here again, the consultation proposed that participants assess the risks and threats, taking into account the difficulty of ensuring the replacement and repair of systems for assets placed in outer space, once they have been damaged or hacked. It questions the complexity of the international supply chain, which relies on components from multiple manufacturers and sources that are not necessarily subject to software integrity checks or other types of supply chain controls. Other key points on which the Commission wishes to intervene are the lack of standardisation adapted to the cybersecurity of space infrastructures and the poor cybersecurity protection or lack of updating of commercial off-the-shelf products used in satellites. Indeed, although the Directive on measures for a high common level of cybersecurity across the Union (NIS2) and the Directive on the resilience of critical entities (CER) contain provisions that States can incorporate at the national level, they do not take account of the specificities of the orbital environment, which the draft EU Space Law should remedy.
Ensuring the sustainability of outer space
The Commission also wants to encourage the long-term conduct of space activities, preserving orbits and systems as far as possible, as part of the “sustainability” pillar. It works on the environmental impact of space activities, particularly with environmental protection rules and standards of responsible behaviour. The consultation recalls the importance of minimising the negative impacts of operations throughout the life cycle of space activities. It proposes a sectoral methodology limiting the carbon footprint by applying eco-design principles to space activities.
The Commission proposes an interesting approach to knowledge of the space sector and the exchange of information between stakeholders in order to put in place the right conditions for the sector’s development. It encourages satellite operators to share data helpful in identifying the risks posed by in-orbit collisions or interference between radio frequencies, in order to contribute to the proper management of space traffic. However, it is highly likely that companies will be reluctant to share too much information about their commercial strategy and that operators of strategic satellites will be reluctant to reveal their position and trajectory to as many people as possible.
In addition, the Commission has the opportunity to support the development of new in-orbit services, such as satellite resupply and repair by companies able to carry out rendezvous and proximity operations. These regulations will help to create a market for in-orbit services, which could benefit from European funding and technological maturation projects under Horizon Europe.
However, Member States must ensure that these objects are not misused to damage other space objects and that the companies providing these services communicate effectively about their activities so that they are not perceived negatively. Legally, it is a question of estimating the implications in terms of registration and damage of a mission that requires satellites to be connected, plugged into each other or interlinked for a more or less limited period of time.
Because sustainability is everyone’s business, the Commission proposes several options for establishing an EU Space Law. Firstly, adherence to non-binding standards, with criteria (labels) established by a steering committee and a non-binding charter. Secondly, establishing a binding framework for granting national licences with specific requirements and harmonised minimum rules that would apply indiscriminately to European and non-European companies. Another solution would be to combine the first two options in order to achieve a balance between what is necessary to apply and what it would be ideal - but not compulsory - to put in place at the European level. For example, some reference standards could be made mandatory, while others would be applicable on a voluntary basis (with the possibility of requiring compliance through contractual provisions, for example, for institutional public contracts). Brussels envisages using regulation to boost the competitiveness of the space sector by transforming standards into guarantees of quality and reliability for virtuous and exemplary companies. This could constitute official recognition that would give them privileged access to certain public contracts.
Conclusion
The method used by Brussels to draw up an EU Space Law is an interesting one: by opening up the draft EU Space Law to consultation, it relies on a plurality of opinions while reducing - as far as possible - the risk of criticism.
In this way, it has the flexibility needed to adapt the legal framework under construction to the needs of public authorities, industries, operators and users and to technological development while at the same time having a solid set of rules. Furthermore, the stated ambition to propose the future draft as a reference text that could be presented at the Summit of the Future to be held during the 78th session of the United Nations General Assembly in New York in September 2024 shows the EU’s willingness to consider action at international level and the possibility of establishing bilateral agreements with foreign powers in order to assert its position as an influential space power.
Whether the Member States will allow the EU to position itself as a reference entity in the international community remains to be seen. While Article 114 of the TFEU on measures to align the laws of the Member States is seen as the primary legal basis for the development of EU Space Law, the aim is to achieve a satisfactory level of harmonisation of technical norms and standards serving as a reference for the Member States, in order to avoid obstacles to the single market. However, under the terms of Article 189 of the TFEU, despite the possibility for the EU to “coordinate the necessary efforts for the exploration and use of space,” the States remain exclusively competent to organise the administrative and procedural arrangements applicable to their national activities, including the issuing of permits, registration and liability.
For the Commission, the aim is to take account of the specific characteristics of national space activities and their national strategies while guaranteeing stable, coherent and effective measures for the private sector and strengthening the single market.
Henceforth, it remains to be seen whether this legislative proposal submitted by the European Commission will be approved by the Council of the EU and the European Parliament.
Laetitia Cesari
This commentary represents the personal views of the author.