EU Space Law – Three reasons against, three reasons in favour

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The EU Space Law is a legislative initiative of the European Commission with the purpose to establish a common EU approach to resilience, safety, and sustainability in space (see more in this EJIL:Talk! post). It was announced, rather unexpectedly, in September 2023 by European Commission President Ursula von der Leyen. According to the Commission Work Programme 2024 that was released in October 2023, a draft of the EU Space Law was expected during the first quarter of 2024. Without specific insight into the content of the proposed legislation, a targeted consultation was launched between October and November 2023 to gather input from stakeholders who could be affected by an EU Space Law, including satellite operators and manufacturers, launch service providers, and scientists. Since its announcement, EU Member States and space operators active in the EU are in anticipation of the EU Space Law and the changes it may bring. During the European Space Conference in January 2024, it was mentioned that the European Commission would release a draft by March 2024. That month, the French Parliament adopted a Resolution supporting the adoption of an EU Space Law. On 9 April, Internal Market Commissioner Thierry Breton, speaking at the ITRE Committee of the European Parliament, said that the presentation of the EU Space Law will be delayed, likely until the summer and perhaps until after the EU elections of June 2024, because more time is needed. This development was met with criticism by MEP Niklas Nienass, who referred to a study carried out by the International Institute of Space Law including recommendations for European legislation for space activities and which was concluded within six months.

The EU Space Law will need to overcome several obstacles to become a functional and beneficial piece of legislation. Several EU Member States already have national space legislation and are actively engaged in space activities, while an increasing number are adopting domestic frameworks and expanding their presence in the space sector. In a heavily regulated environment, where countries have long established and enforced national laws, the practical implementation of a space law at the EU level may be contested. Three reasons against the EU Space Law can be put forward:

  1. Lack of EU competence in space: The competence of the EU in the field of space is codified in Article 189 of the Treaty on the Functioning of the European Union (TFEU). According to this article, the EU can set up a European Space Policy, promote research and development, and coordinate efforts in space exploration and exploitation. However, any harmonisation of the laws and regulations of EU Member States is explicitly excluded from the EU competence. Instead, the proposed EU Space Law would be based on Articles 114 and 191 TFEU. These articles respectively concern the harmonisation of rules of the internal market and the protection of the environment. Space activities undoubtedly have implications for both the internal market and the environment, and EU Member States often include them in their domestic frameworks, particularly as part of the licensing process. For example, operators seeking authorisation may be required to furnish information related to their business status or follow debris mitigation guidelines. Despite certain aspects of the space sector touching upon EU competence in the internal market and the environment, the exclusion of space laws and regulations of EU Member States from harmonisation persists. Consequently, drawing a clear distinction between the space-related issues regulated at the national level and those that are regulated at the EU level may prove unrealistic.
  2. Legal uncertainty: The purpose of national and international laws regulating space activities is to provide legal certainty to States, international organisations, and private companies operating in the space domain. Nearly half of the EU Member States have enacted domestic frameworks covering space activities within their jurisdiction, and several others are in the process of adopting them. These laws serve as implementation of Article VI of the 1967 Outer Space Treaty, which mandates that States authorise and supervise their national activities in space. While the scope and content of the domestic frameworks share similarities – including provisions related to the licensing of space activities, issues of liability and insurance, requirements for debris mitigation, and processes for registering space objects – they also exhibit significant variations. Some frameworks concentrate on specific types of activities, such as space resource utilisation or spaceport operation. Therefore, attempting even a minimal harmonisation is complex and potentially counterproductive. Although the EU Space Law is not intended to achieve such harmonisation, the streamlining of licensing procedures has been mentioned among its priorities. Furthermore, addressing resilience, safety, and sustainability without affecting existing provisions concerning space debris and security already incorporated in domestic frameworks and applied by several operators presents challenges. Currently, due to the lack of clarity surrounding its content, the EU Space Law acts as a destabilising factor, and its potential disruptive impact on existing domestic frameworks cannot be accurately gauged. On the one hand, surpassing the scope of regulation in domestic frameworks may lead to redundancies and confusion. On the other hand, if the EU Space Law fails to achieve a level of harmonisation, its necessity may be called into question.
  3. Lack of timeliness: The most significant drawback of the EU Space Law is its lack of timeliness. On one hand, EU Member States develop their space laws and policies with medium and long-term perspectives, and the absence of a clear timeline certainly impacts their plans, subsequently affecting their space priorities and national industry. On the other hand, several regulations concerning the space sector are expected to be implemented imminently and may be influenced by the EU Space Law. For example, the NIS 2 Directive and the Critical Entities Resilience Directive are slated for implementation by October 2024. They cover essential and important services and critical entities within the space sector. The space sector is described as the operators of ground-based infrastructure that support the provision of space-based services. However, this definition does not directly include space-based infrastructure, which is susceptible to cybersecurity threats and resilience risks, nor does it protect the components of the EU Space Programme. The EU Space Law could potentially complement the NIS 2 Directive and the CER Directive by broadening their scope. It is imperative for this to be known before the two Directives are implemented, as EU Member States formulate their national cybersecurity and resilience strategies. Beyond the practical considerations, space technology merits a high level of protection, and any discrepancies in the regulatory frameworks designed to protect it undermine their purpose.

Nevertheless, the plan for an EU Space Law is a natural extension of the EU’s mission to position itself among the global space players. Three reasons to consider the EU Space Law as a positive development are:

  1. Strategic autonomy: In the current geopolitical context, the autonomy of space capabilities is of utmost importance, given the number of civil, commercial, and defence applications that rely on space technology. The European Union has been long operating the EU Space Programme, providing reliable Earth observation data and applications through Copernicus, enhanced geolocation services through Galileo and EGNOS, secure connectivity through GOVSATCOM and the forthcoming IRIS2 constellation, and Space Situational Awareness that is essential for space missions. The EU Space Programme not only promotes the uptake of satellite applications, but also provides autonomous space capabilities to the EU and its Member States. It is governed by the EUSPA Regulation, which among others lays down the conditions for accessing the data and services of the EU Space Programme and ensures a high level of security for each component. While space programmes of States and their private companies should adhere to domestic frameworks with broader scopes, the EU Space Programme operates outside such regulations. The implementation of the EU Space Law could guarantee an equivalent level of regulatory protection for the EU Space Programme, an important asset of EU autonomy in space.
  2. Minimum standards: Resilience, safety, and sustainability are quintessential for securing the benefits of space technology and maintaining the accessibility of the Earth’s orbits, while preserving the space environment. Several EU Member States have domestic frameworks in place encompassing measures that address these three pillars. An EU framework would ensure that all EU Member States implement at least minimum measures in this regard. Such coordination is crucial, particularly considering the high level of space cooperation among EU Member States, which could benefit from streamlined regulation. For instance, the resilience and safety of the space sector are respectively among the goals of the Critical Entities Directive and the NIS 2 Directive, which bind all EU Member States. Furthermore, the UN Long-Term Sustainability Guidelines for Space Activities promote the sustainable conduct, cooperation, and regulation of the space sector. Adopted by the UN Committee on the Peaceful Uses of Outer Space in 2019, while non-binding, they are regarded by States, including EU Member States, as instrumental in ensuring the proper conduct of governmental and non-governmental space activities. Resilience, safety, and sustainability also facilitate compliance with the international space law framework, which mandates avoiding harmful interference with activities in outer space, protecting the space environment, and mitigating incidents that can trigger liability for damage and impede the freedom to explore, use, access, and scientifically investigate outer space. By establishing a minimum level of regulation, the EU Space Law can promote the lawful conduct of space activities.
  3. Uniform approach to space: Except for establishing a minimum level of regulation, the EU space law fosters a unified stance in space, particularly regarding resilience, safety, and sustainability. In turn, this engenders a robust regional space characterised by innovation, technological advancement, and commercial growth. Such a cohesive approach to space also facilitates the realisation of other EU policies, such as the EU Space Strategy for Security and Defence, the EU approach for Space Traffic Management, as well as other policy initiatives leveraging space, such as the EU Green Deal. Moreover, the scope of the EU Space Law is likely to address space actors, in contrast to space activities covered by domestic space frameworks, further homogenising the EU approach to space. Given these factors, the EU Space Law can significantly contribute to achieving and sustaining an enabling space ecosystem in Europe.

The lack of details and the ongoing delays in presenting a draft EU Space Law evoke memories of the effort to introduce a European Code of Conduct in 2008 and 2014, which ultimately did not yield a positive outcome.  This situation also shows a political inability to effectively act as a unified voice. Allowing momentum for the negotiation and adoption of an EU Space Law to dissipate, especially on a negative note, would be challenging to recreate. Indeed, this is an ambitious endeavour that will require time, but that was understood before discussions about an EU Space Law entered into the public domain. While this process unfolds, it is essential to consider the concerns that are raised regarding the competitiveness of the EU space sector and the launch of publicly-funded EU satellites by the private US sector. With this in mind, the answer to whether we need a EU Space Law should be affirmative, provided that a clear timeline and adequate and transparent dissemination of information regarding its content are established.

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Comments

Rossana Deplano says

April 29, 2024

Very informative and timely post. Thank you!

Vinicius Fortes de Barros says

April 29, 2024

When I was researching for my dissertation, I noticed that Europe was not a major influence in drafting the OST and the Moon Agreement. Maybe EU Space Law can help foster the theme among EU nations or even claim for countries to ratify the Moon Agreement. This could be a major improvement in both EU and non-spacefaring nations.