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SPACE LAW IN PORTUGAL

“Space Exploration” – expression that still projects our mind to fiction films or pioneer agencies questing the cosmos.

This scenario has however been changing in the last years, fueled by massive dependency on information circulation and the huge investments in faster, more powerful, and universally accessible communication.

The world has changed. “Second space era” has started and Portugal is running at the front line, setting up a space port, at a unique location – the island of Santa Maria, in the Azores archipelago, mid north Atlantic-ocean.

Portugal emerged as an interesting development site, boosted by a legislative initiative to form a “Portuguese spatial legal framework”, providing along the way market players with the necessary security for the high investment characteristic of this sector.

Thus, firstly, the “National Strategy for Research and Technological Development for Space 2003-2008 was approved. Then, the “Portugal Space 2030 Strategy” was approved by Council of Ministers Resolution No. 30/2018, of 12 March.

Portugal definitively established Space as a national priority, and essential for the collective ambitions of Portugal, its companies, scientific and technological institutions, public and private.

In 2019, the Portuguese Space Agency, known as “Portugal Space”, was incorporated to promote the “Portugal Space 2030 Strategy”. Its headquarters, on the island of Santa Maria, Azores, already hint at the location of the main investments and developments. Portugal Space adopts the legal form of a non-profit association governed by private law.

Founding members of the Agency are Public: Fundação para a Ciência e Tecnologia (FCT), National Innovation Agency (ANI), the Ministry of Defense, and the Regional Government of the Azores; in December 2019, the Autonomous Region of Madeira joined as an observer, a prelude to becoming a full member of the Agency.

Its main purpose is to “develop the space sector and promote and implement the national space strategy, encouraging and managing the development of infrastructures, initiatives and national programs related to space, encouraging investment, the creation of qualified employment and the provision of services related to space sciences and technologies and stimulating scientific and technological knowledge and national entrepreneurial capacity in the space sector.”

National programs related to space shall be presented to the Portuguese Space Agency and carried out in close functional connection with the “Space Surveillance and Tracking Program”, for national defense matters and compliance to the powers of the Portuguese Institute of the Sea and Atmosphere, IP – Earth observation, meteorology, climate, sea and the responsibilities assumed within the framework of EUMETSAT.

The geostrategic position of the Azores is particularly interesting, having been the first discovered land out in the Atlantic in the 15th century, at the very beginning of the Portuguese discoveries’ era, and now allowing for a unique safe launching window at the same time accessible and equidistant from Europe, Western Coast of Africa, Central, Southern and North America.

The outstanding conditions of the Azores for the installation of a space port have been underlined by the result of the call for proposals to install and operate a Space Port. 14 international consortiums presented their interest in the construction and operation. Two proposals reached the final stage of the procedure, both being excluded by the public tender jury. One of the consortia challenged the decision in court, requesting, in addition to the admission of its proposal, the ban to launch a new tender for the same purpose.

On 11 November 2021, Luís Santos, coordinator of the Azores Mission Structure for Space, stated that the review and simplification of the Spaceport project and process have already been done and that the Government of the Azores was only pending authorization from the court to proceed with a new tender.

From a legal perspective, the construction and operation of space ports, as well as the provision of services related to them, is also a new territory that must consider various legal and regulatory aspects. From environmental requirements to assessing compliance with the current legal framework and the specific Space Port characteristics (for example very high noise and air quality).  Security is also another relevant aspect.

On the one hand, space technology is biased from double-use (i.e., civilian and military), and it is certain that a port can also if foreseen, be used for military purposes. Additionally, the spatial activities that take place in ports resort to explosive and combustible (and sometimes nuclear) materials, which require special attention to their storage, transport, and handling and to compliance with the rules in force. All these issues impact the safety of populations, including rocket launch routes. Criteria for locating a space port include “population density”, “meteorological conditions”, and “airspace complexity”. Finally, space debris is also a matter of concern.

State role in the new space activity is becoming currently regulatory, on multi-views, and Portugal, alongside the specific regulation of the Space Port activity, has started to produce specific regulation on space activity, taking the contributions of the private sector for this purpose.

MGRA is focusing its intervention in this new industry and exciting area of practice, having formed a team of specialists to think, produce critical decisions and assist both the market and the regulator.

This team has reviewed the “Space Activities Regulation” along with the regulator, published by ANACOM – Portuguese Regulatory Body for space activities. For the complete text of the revision click here.

We are also monitoring the bidding procedures and the requested developments with attention to the environment, operation insurance, JOA, and research programs.

This second race in space does not obey a common European framework, instead, the regulation of spatial activities is the responsibility of each Member State. Despite this, the EU has been very active in the space sector through its flag programs: the Copernicus (Earth observation), Galileo, and Egnos (positioning, navigation, and chronometric, together with the European Space Agency – and the “Space Surveillance and Tracking”.

EU requirements are applicable if access to space is made through horizontal takeoff (airplane instead of rocket with vertical release). In this case, rules of aviation will apply to the port.

The Portuguese program opens the chance for horizontal launches using the existing airport in Santa Maria. With this in mind, EASA (The European Aviation Safety Agency) had already proposed a certification model for suborbital flights such as aerodromes and validation of suborbital vehicles as aircraft.