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Analysis on the Portuguese Space Act

An increasing number of states are developing plans for setting-up spaceports, with suborbital flights and small satellites taking the center stage. In Europe, Portugal has been taking relevant steps, as it approved its Space Strategy 2030 on March 12, 2018. The country also approved the Space Act at the Council of Ministers, is setting up a space agency, and launched the Atlantic International Satellite Launch Program to support the development of a spaceport in the Azores for small satellites.

The first stage of the Satellite Launch Program called upon companies to submit expressions of interest and a total of 14 were submitted, in accordance with information provided by the Portuguese Ministry of Science, Technology, and Higher Education. Interested companies included Ariane Group, Virgin Orbit, Roscomos, Sierra Nevada, Rocket Factory, Elecnor Deimos, Avio, PLD Space, among others. In total, 11 companies from the European Union (EU), two from the U.S., and one from Russia expressed interest. From these 14 consortiums, the High Level Scientific Committee short listed five expressions of interest submitted by launcher provider companies. The second stage will follow, with a Feb. 19 closing date for proposal submission submission.

We talked with Portuguese Lawyers Magda Cocco and Helena Correia Mendonça, partner and principal associate of law firm Vieira de Almeida (VdA), about Spaceports and the Portuguese Space Act.

VIA SATELLITE: The first stage of the Satellite Launch Program ended: 14 applicants submitted their expressions of interest, and now five where shortlisted. What was this first stage all about?

Cocco: In accordance with the information publicly provided, the purpose of this International Call for Interest was to encourage and invite enterprises and public organizations from around the world to collaborate with Portuguese enterprises and research laboratories to design, install, and operate a spaceport on the Island of Santa Maria, in the Azores. The ultimate goal is to provide low-cost, frequent and regular access to space for small satellites.

Therefore, this first stage allowed companies to express their interest in building a spaceport and/or operating and launching from the Azores.

From these 14 expression of interest an High Level Scientific Committee, composed of national and international experts of recognized international merit, selected five which, according to information publicly provided, will be invited to submit a full committing proposal for the second phase. These are AVIO, AZUL Consortium, Isar Aerospace Technologies GmbH, PLD Space, and Rocket Factory Augsburg.

VIA SATELLITE: Which models could be adopted for the Space Port?

Mendonça: Several models could be followed in general. For instance, a public-private partnership, a concession agreement or even an authorization regime.

The level of intervention by the state is different in each model: a Public-Private Partnership (PPP) model has more intervention by the state, whereas the authorization model is the one where the level of intervention may be lower. We will have to see how the Portuguese government intends to address this subject ¬¬¬— we expect, however, that there will be a strong collaboration or at least discussion with the private sector under the program in the decisions on this topic.

VIA SATELLITE: And the models for operation and exploration also impact the regulatory approach for a spaceport?

Mendonça: Yes, operation/exploration and legal issues are intrinsically connected. In Portugal, there was a clear decision not to include in the Space Act the licensing of spaceports, which means that, in our opinion, it is foreseeable that this model will not be the one to be adopted.

VIA SATELLITE: So, does this mean that a specific regulatory framework for the Azores spaceport is to be expected?

Cocco: There will need to be, of course, regulatory provisions applying to the spaceport. And we think that these provisions will be most likely adapted to the specificities of this particular spaceport. Naturally, it will also be important to take into attention all usual relevant legal issues that apply to a spaceport.

VIA SATELLITE: What legal issues are those?

Cocco: One of the most relevant issues relates with liability and insurance of the spaceport operator. And this, on its turn, requires that we make a distinction between the spaceport operators and the launch and satellite operators. Those manage, administer and maintain a spaceport; these ones launch and/or operate a space object in space. It is important to address who is liable for space operations: if only the launch operator or also the spaceport operator. In our opinion, the most balanced and straightforward solution would be to establish liability only for the launch/satellite operator.

In addition, spaceports continue to be subject to existing legal frameworks such as environmental, noise, nuclear, explosives, security, among others. And there may be the need to review and adapt the existing legal provisions to the particularities of a spaceport. What is more, spaceports usually provide services relevant for launches and returns, including navigation services, and shall comply with certain safety requirements. And this goes beyond simply amending existing frameworks to respond to spaceports’ particularities.

VIA SATELLITE: Navigation and safety. How can this be addressed in a spaceport?

Mendonça: From a regulatory point of view, we think it is important, firstly, to distinguish between three main areas for regulation: building a spaceport, operating a spaceport and providing services.

When it comes to building, environmental analysis (noise, sonic boom, local air quality), security (given the dual-use nature of space technology) and safety, all need to be addressed.

When it comes to operation, the approval of safety policies, safety risk management, emergency plans, among others, is essential.

The provision of spaceport services connected with launching and landing also raise important issues. Flight control/navigation, traffic management procedures, control and tracking transfer (air to space and vice-versa) also need to be tackled.

Other points that need to be addressed include communication radio frequency allocation, and tracking and telemetry in accordance with international requirements. In addition, criteria and environmental impact assessments for each launch or set of launches, safety and risk assessments for each launch, and emergency and contingency plans for launches and returns, are also relevant.

VIA SATELLITE: What will be the impact of the Portuguese Space Act be on the spaceport?

Cocco: The Portuguese Space Act does not include spaceport licenses as we said above. However, there are several points of contact between the Act and the future spaceport.

The most obvious one is that the Space Act covers spaceports but only for purposes of certifying that the launch site operator possesses the technical, economic, and financial capacity for the space operations it intends to perform, and that the systems and processes implemented respect applicable law and comply with the requirements set out in the technical regulation to be approved by the Space Authority (this is called the “pre-qualification” regime). This certification is not mandatory and aims essentially at streamlining the space operations licensing procedure, by waiving re-submission of information contained in the certificate in the licensing process.

In addition, it is expected that the detailed requirements for launches and space objects’ operations to be set out in regulations will impact how the spaceport needs to be built and operated.

Finally, we note that the Act, as it is today, provides that the procedures for licensing space activities (as well as for registering and transferring space objects) relating to activities taking place in the Autonomous Regions of the Azores and Madeira, as well as the applicable fees, are to be defined by regional act. Because the spaceport will be in the Azores, this means that space activities taking place there will be subject to legal provisions we are currently not aware of. There may also be the risk that this may create additional burdens to space operators, who may end up subject to the requirements of the Space Act and to additional requirements (and procedures) of the regional act.

It is therefore urgent to approve the regulations, as well as the regional acts, so that the operators can have clarity on their obligations and what they have to do to perform space activities in Portugal, especially in the Azores.

VIA SATELLITE: What obligations would operators launching from Portugal be subject to?

Mendonça: There was, from the beginning, a central guideline from the government that the Act should promote private activity, as well as Research and Development (R&D). As a result, many of the solutions enshrined in the Act streamline the process for obtaining a license for space activities.

Space operations (which are of two types: “launch and/or return;” “command and control”) are subject to license, but this license can be individual for each type of operation, or blanket — for a set of operations of the same type. It is also possible to issue a joint license, whereas a space operator can obtain a license for itself and on behalf of other operators for operations of the same or of different type, further streamlining the licensing procedure.

A special procedure (reduction of deadlines, streamlined requirements for the performance of the activity) may also be established in certain circumstances: e.g., if the space activity is solely for scientific, research or education purposes, or for testing purposes with low risks; if the applicant is a public entity or an international organization acting under international agreements concluded by Portugal; or if the applicant has obtained authorization for the space operation in another State whose legal framework guarantees the compliance of the applicable international obligations.

In addition to the license, the Act creates the voluntary pre-qualification regime we referred above for the spaceport. This pre-qualification also extends to the operators, to the space object and to the systems and processes implemented at the command and control center.

It is also important to note that the Act establishes that the Space Authority is a one-stop shop for all licenses required for the space operation, i.e., not only the license under the Space Act, but others such as nuclear, environmental, airspace. The Space Authority is, for the time being, Autoridade Nacional de Comunicações (ANACOM), the telecoms regulator, a choice that was made partly, in our opinion, because this is the entity responsible for orbital slots in Portugal.

VIA SATELLITE: And what are the requirements for obtaining a license?

Mendonça: The requirements include, among others, that the space operation duly safeguards any damages to Earth or to space, in accordance with applicable national and international commitments; that the space operation ensures the minimization of space debris as much as possible, in accordance with international principles and standards; and that the space operation complies with applicable public security standards and does not endanger public health and the safety of populations. In addition, the applicant shall have the technical, economic and financial capacity for the space activities it intends to carry out. These provisions aim at guaranteeing the sustainability of space activity and outer space also in line with international requirements and concerns.

These requirements are expected to be detailed in the future regulations to be approved by the Space Authority, which cover regulations for granting of licenses, for the pre-qualification procedures, for registration of space objects and for transfer of space objects.

VIA SATELLITE: One of the central legal concerns for operators is, as discussed above, liability and insurance. How is this addressed in the Space Act?

Cocco: The liability regime of the Act follows best international practice whereas the operators’ liability is capped in the case of the right of recourse being brought by the state due to its international liability under the UN Space Treaties. The amount of the cap is not indicated — a future order will determine it and it is possible to foresee different caps in accordance with the risk of the operation.

The Act provides for mandatory insurance but allows the insured amount to be decreased and even waived in certain instances: small space objects and space operations carried out exclusively for scientific, research or education purposes. There is also the possibility that an alternative financial guarantee be accepted by the Space Authority and for the insurance to be waived or reduced for operations that carry low risks as determined by the Space Authority on a case by case basis. A future order will also provide more detail on this subject. VS