I INTRODUCTION TO THE NATIONAL LEGAL, REGULATORY AND POLICY FRAMEWORK
Germany is party to almost all the UN space treaties. The implementation of public international law treaties into German law requires a formal Consenting Act to be adopted by the German legislative body when the subject of the respective treaties are matters within the competence of the federal state.2 This is the case with the international space treaties.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967 entered into force in Germany in 1971. In the same year, the Consenting Act implementing the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 1968 was adopted. The Convention on International Liability for Damage Caused by Space Objects of 1972 was implemented in 1975. Finally, the Convention on Registration of Objects Launched into Outer Space of 1975 entered into force in 1979 following the respective Consenting Act.
In 1998, Germany signed the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, but has yet to ratify it.
Germany is not a party to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979.
The body acting in the function of a space agency is the German Aerospace Centre (DLR). The German government transferred all administrative functions related to the space sector to the DLR by law in 1998.3 The DLR is responsible for planning German space activities, implementing German space programmes and representing Germany’s space-related interests at international level.
The DLR signed the International Charter on Space and Major Disasters in 2010 and has since then contributed to providing satellite imagery for disaster monitoring purposes. It also represents Germany in the Inter-Agency Space Debris Coordination Committee (IADC), which was formally established in 1993 upon an initiative of the European Space Agency (ESA). As a member of the IADC, the DLR participates in drafting guidelines on space debris-related issues.
In 2007, Germany adopted the Satellite Data Security Act (the Data Security Act).4 This Act regulates the operation of high-quality Earth remote sensing systems and the provision of data generated by these systems with a view to protecting national security interests. It contains a number of authorisation, licensing and permit requirements for system operators and data providers (see Section III).
The publication of the National Space Programme in 2001 by the Federal Ministry for Economic Affairs and Energy (the Ministry) was a milestone in German space policy. The Programme aims to define a comprehensive approach to space policy, including Germany’s participation in the European Space Agency and the European Organisation for the Exploitation of Meteorological Satellites, and project funding at national level, including for systematic research and development programmes.
Subsequently, in 2010, the government published its national Space Strategy,5 which defines the principal goals to be pursued in the space sector. Among these, the government announced the adoption of a Space Act to create a comprehensive legal framework for government and private commercial space activities. The declared aim was to significantly increase the German share in the worldwide commercial turnover of space activities. The Space Act is yet to be published. The Ministry recently reaffirmed the intention of enacting national space legislation and announced that a first draft will be published in 2020. Consequently, at the time of writing, there are no specific laws and regulations in Germany with respect to, among other things, satellite launches, procurement of satellite launches or launch services agreements. Space-related law and regulation is rather exclusively focused on transferring orbit usage rights and granting the necessary frequency assignments for the operation of satellites and ground stations. The only specific space-related legislation regulates the operation of high-grade Earth observation systems that are subject to approval requirements and strict security regulations.
II REGULATION IN PRACTICE
As mentioned in Section I, Germany has not yet adopted any specific legislation or regulation governing commercial space activities. Therefore, many aspects that are relevant for space business activities, which would provide a comprehensive body of laws and regulations in this sector, are yet to be regulated. This includes issues related to launching activities, as well as insurance and liability.
Regulation in practice is thus focused on coordination and spectrum issues, which traditionally have been (and continue to be) part of the national telecommunications legislation, namely the German Telecommunications Act, as last amended in 2019 (the Telecoms Act). The Telecoms Act does not establish a ‘licensing’ regime in the strict sense, but rather regulates the proceedings for a satellite operator to obtain the rights required to use the necessary orbital slots and spectrum.
The use of orbital slots and spectrum usage rights for the operation of satellite systems require the previous transfer and assignment of the respective rights by means of a satellite filing and a national spectrum assignment proceeding. The national authority in charge of making the filings to the International Telecommunication Union (ITU) is the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways (BNetzA), headquartered in Bonn.
i Licensing requirements
According to the Telecoms Act, any entity wishing to use orbit slots and spectrum via satellites is subject to the obligations resulting from the ITU Constitution and Convention.6 The operation of a satellite system requires the transfer and assignment of orbit and frequency usage rights from the German government to the operator. Both proceedings, the transfer of orbit rights and assignment of frequency usage rights, are conducted by BNetzA. Any satellite system or network must first be registered, coordinated and notified to the Radiocommunication Bureau of the ITU through BNetzA. Furthermore, if necessary, the operator must apply for the assignment of frequencies required to operate ground stations, namely the spectrum required for Earth–space and space–Earth connections.
ii Licensing procedures
As mentioned above, the procedure to apply for the necessary transfer of orbit and frequency usage rights is regulated in the Telecoms Act. The requirements to be fulfilled by the applicants are based on the relevant ITU Radio Regulations. In addition, in December 2018 BNetzA published administrative rules setting out the ‘Procedures for the advanced publication, coordination and notification of satellite systems in the name of Germany and for the assignment of orbit and frequency usage rights’ (the Administrative Rules). The Administrative Rules describe in detail the national procedure to be followed and the conditions to be fulfilled by the operator to obtain the necessary orbit and frequency usage rights.
The operator must submit an application to BNetzA requesting the authority to initiate the filing of its satellite system at the ITU Radiocommunication Bureau and start the international advance publication (if required), coordination and notification proceedings. When submitting the application to BNetzA, the operator must prove that it has financial means available to pay the administrative costs incurred in the ITU proceedings and charged by the ITU-based Council Decision 482.8 The operator must also show evidence of the availability of qualified staff to assist BNetzA throughout the proceedings, including, if required, travelling abroad to support BNetzA in international negotiations and coordination meetings.
iii Conditions to obtain a licence
In principle, orbit and frequency usage rights will be transferred to the operator if the following conditions, set out in the Telecoms Act,9 are met:
- the requested orbit and frequency usage rights must be available (i.e., allocated to the relevant satellite systems and not already assigned to another operator);
- the planned satellite system must be compatible with other spectrum uses and registrations of other satellite systems (i.e., it must not cause harmful interferences to other spectrum uses and satellite systems); and
- public interests must not be infringed.
These general conditions are further specified in BNetzA’s regulatory practice, in particular based on the Administrative Rules, as follows. Prior to the submission of an application to BNetzA to commence the satellite network filing at the ITU, the operator must verify that the frequencies it intends to use are allocated to satellite-based radio services in the national Frequency Allocation Ordinance10 and the Frequency Usage Plan.11 The Frequency Allocation Ordinance is issued by the Ministry and is based on the ITU Radio Regulations as implemented in German law.12 The Frequency Usage Plan is published by BNetzA. It contains further details and specifications set by BNetzA at national level as to the specific services allowed in the different bands and the technical usage conditions to be complied with. Compliance with the Frequency Allocation Ordinance and the Frequency Usage Plan will be reviewed by BNetzA prior to submitting an application for a satellite network filing to the ITU and is a precondition for initiating the international procedures.
As to the application form, the operator is required to use the relevant ITU forms. In accordance with the requirements for the transfer of orbit and frequency usage rights under the Telecoms Act13 as further detailed in the Administrative Rules, BNetzA stipulates that the following must be included in the application:
- the applicant’s details (name, address and legal form, including shareholdings in the company);
- completed ITU forms in paper form and in electronic format, and all necessary supporting data (if the ITU requires a coordination request, applicants must submit the required advance publication information and coordination request);
- a statement with respect to the public interest in the filing, including a statement on whether the project is being supported by public funds or a public guarantee, or that this support has been applied for, stating the level of support and the source;
- details regarding the implementation of the coordination procedure, including a description of the envisaged proceeding and, as mentioned above, evidence of the availability of qualified staff and financial resources, evidence of the availability of the required ITU resources, in particular the ITU’s BR International Frequency Information Circular (BR IFIC) – Space Services, and designation of a contact person and representative for international coordination procedures;
- a binding statement that the applicant will comply with the ITU’s provisions;
- evidence of a trust account or bank guarantee to cover the ITU’s cost-recovery charges, and a binding declaration that the applicant will cover BNetzA’s costs in the filing procedures; and
- a detailed business and frequency usage plan, including, in particular, a detailed description of the satellite network, the type of services to be offered, evidence supporting the need for the requested frequency and orbital resources, and a detailed explanation of how efficient and interference-free use will be ensured by the applicant.
iv Insurance coverage requirements
The statutory and regulatory provisions do not include any requirements on insurance coverage and third-party liability.
v Compliance with space debris mitigation guidelines
Regarding compliance with obligations under international law on space activities, there is no reference in the law or in the Administrative Rules to specific obligations. Neither is there a reference to legally non-binding instruments, such as the space debris mitigation guidelines in relation to end-of-life disposal. It remains to be seen whether the Space Act will include provisions regarding the obligations of satellite system operators in this respect.
vi National security and safety requirements, and lawful interception
Service providers and telecommunications network operators are subject to technical protection requirements established in the Telecoms Act.14 To the extent that a satellite network is operated in or from the German territory or publicly available satellite-based telecommunications services are offered in Germany, these requirements apply. The relevant provisions oblige service providers and network operators to take appropriate organisational and technical measures for the protection of privacy of telecommunications and against violation of personal data protection. BNetzA publishes a detailed catalogue specifying the technical requirements regarding data and system security. Furthermore, notification requirements apply in the event of violations of personal data protection.15
In addition, as mentioned in Section I, operators of high-quality Earth remote sensing satellite systems are subject to the Data Security Act. This Act establishes special security requirements regarding the handling of data generated by these systems until the data is disseminated and provided to the persons requesting access to them (see Section III).
The Telecoms Act also establishes obligations with respect to lawful telecommunications interception requirements.16 These requirements apply to operators of telecommunications installations for the offer of publicly available telecommunications services. The respective requirements are further specified by an Ordinance issued by the Ministry.17 Technical details are set out in the Technical Guidelines for the implementation of interception measures as published by BNetzA. The Technical Guidelines, however, cover the implementation of interception measures with respect to terrestrial mobile and fixed networks only. While the operation of satellite networks from German territory falls into the scope of application of the requirements under the Telecoms Act, the Technical Guidelines do not provide any specifications as to the implementation.
vii Administrative proceedings
BNetzA reviews an operator’s application in detail, and, in general, only submits the satellite system filing to the ITU if and when the application is deemed to be complete.
Following submission of the application and advanced publication (where required) in the ITU’s International Frequency Information Circular, BNetzA requires applicants to actively participate in the international coordination procedure. While BNetzA assists the applicant during this phase, the responsibility for achieving the necessary coordination lies with the applicant.
The transfer of orbit and frequency usage rights requires previous coordination at national level, conducted by BNetzA. If objections are raised by other German satellite systems operators and spectrum users, BNetzA will decide if it is necessary to modify the filing at the ITU. Again, BNetzA expects the applicant to actively participate in the national coordination procedure, including performance of technical studies regarding compatibility issues.
After successful completion of the filing procedure at the ITU and the coordination proceeding at national level, BNetzA transfers the requested orbit and frequency usage rights to the operator by issuing a respective formal assignment. This procedure includes the national procedure for the assignment of individual frequency usage rights as provided for in the Telecoms Act.18 The requirements set forth in the Telecoms Act in this respect are largely identical to the requirements and conditions fulfilled by the operator during the satellite system filing at the ITU.
BNetzA charges a one-time fee for conducting the satellite system filing procedure at the ITU. The fee is calculated in accordance with the Frequency Fee Ordinance19 and covers administrative costs. In addition, the operator must pay any other costs related to the filing procedure as well as the costs under Council Decision 482, which are payable directly to the ITU. Furthermore, under the Telecoms Act, the operator is also subject to a yearly fee according to the Frequency Protection Fee Ordinance.20
viii Monitoring and enforcement requirements
After transferring the orbit and frequency usage rights to the operator, BNetzA monitors the actual use of the rights. Specifically, BNetzA is entitled to revoke the assigned rights if they have not been used for more than a year or if the conditions for the assignment of the rights are no longer being fulfilled.21
In addition, the general provisions of the Telecoms Act related to the revocation of frequency assignments apply.22 The revocation is subject to BNetzA’s discretion under certain conditions set out by law. In general, BNetzA is entitled to revoke frequency assignments if frequencies remain unused, are not used for the purpose for which they have been assigned or the frequency holder repeatedly violates the assignment conditions.
Non-compliance with the relevant provisions of the Telecoms Act constitutes an administrative offence sanctioned with fines.
ix Dispute resolution mechanisms available for appeals against licence decisions
BNetzA issues formal decisions regarding the transfer of orbit and frequency usage rights as well as the frequency assignment under national law in the form of administrative acts. The same applies to any other BNetzA decision related to the rejection of applications, the revocation of assigned frequency rights and the fees charged. Administrative acts can be challenged by filing an objection with BNetzA first. If BNetzA confirms the contested decision by issuing a respective decision, this decision may then be challenged before the administrative courts.
III DISTINCTIVE CHARACTERISTICS OF THE NATIONAL FRAMEWORK
Germany provides for a special legal framework for the operation of high-quality Earth remote sensing systems and the dissemination of data generated by these systems. This highly regulated space activity serves national security objectives. To this end, Germany enacted the Data Security Act in 2007. The Act:
- applies to the operation of high-quality Earth remote sensing systems by German nationals or by legal persons or associations of persons under German law;
- applies to foreign legal persons or foreign associations of persons if their head office is located in Germany;
- applies to the extent that non-changeable command sequences for controlling the orbital system are executed from German territory;
- applies only to private, commercial (i.e., non-governmental) operations of Earth remote sensing systems;
- regulates the handling of data generated by high-quality Earth remote sensing systems up to their dissemination, the latter being defined as circulating or making available the data to third parties; and
- provides for restrictions with respect to the acquisition of operators by foreign entities or German entities with foreign shareholders.
In addition to the above, there are various authorisation and licensing requirements. The authority responsible for supervision and implementation of the Act is the Federal Office for Economic Affairs and Export Control (BAFA).
A high-quality Earth remote sensing system falling into the scope of application of the Data Security Act is defined as a space-based transport or orbital system, including the ground component, generating Earth data, to the extent that its sensors are technically capable of generating data with a particularly high content of information. In 2008, the Ministry published the Ordinance on the Data Security Act. This Ordinance defines, among other things, the data to be considered as having a particularly high content of information. In general, this is the case if sensors are capable of generating a geometrical resolution of 2.5 metres or less in at least one spatial direction. The Ordinance also defines additional and more specific criteria in this respect.23
The operation of an Earth remote sensing system is subject to an authorisation issued by BAFA.24 The prerequisites for obtaining an authorisation are set out in detail in the Data Security Act.25 The authorisation will be granted if, among other things, the operator:
- provides proof of its reliability;
- executes the command sequences related to the control of the various elements of the system in Germany and protects against any modifications by third parties;
- protects the data transmission against unauthorised access; and
- establishes appropriate technical and organisational measures preventing unauthorised access by third parties to the technical equipment controlling command functions of the system and the equipment for receiving, processing and storing data, as well as access to the respective premises.
Procedures used to ensure protection of system control functions and data transmission must be approved by the Federal Office for Information Security (BSI). Further obligations to be complied with by operators relate to documentation and information requirements.
The Data Security Act distinguishes between the system operator – the entity controlling the operation of the Earth remote sensing system – and the data provider. The latter is defined as any person disseminating data generated by a high-quality Earth remote sensing system26 (i.e., making the data available to third parties). A data provider is subject to a licensing requirement.27 To obtain a licence, the data provider must proof its reliability and submit evidence showing that appropriate technical and organisational measures have been taken to protect data transmission, processing and storage as well as access to the respective equipment and premises. Again, procedures used to comply with these requirements must be approved by the BSI. The data provider is also subject to various notification and information requirements. Officials of BAFA are entitled to enter the premises of the data provider and take measures to ensure compliance.
The dissemination of data generated by high-quality Earth remote sensing systems is subject to a procedure requiring the data provider to verify any request for data dissemination to determine the sensitivity of the request.28 In principle, a request qualifies as being sensitive if the following aspects, considered together, have the potential to harm Germany’s vital security interests: the data information content achieved through the operation of the sensor and the processing form used; the target area displayed with the data; the point in time and the time period between the generation of the data and responding to the request; and the location of the target ground segments. Further details regarding this verification process are set out in the Ordinance on the Data Security Act. Any request from the German government or the German military or intelligence authorities is not considered sensitive, meaning that it will be processed without any further verification. Such a request must also be given priority under certain circumstances established in the Data Security Act.29 The Ordinance specifies the conditions for detecting potential harm to Germany’s security interests, thereby identifying sensitive requests. Furthermore, the Ordinance includes various annexes containing positive and negative lists of states and recipients to be considered when verifying the sensitivity of a request.30
Responding to a sensitive request for transmission of data generated by high-quality Earth remote sensing systems requires a formal permit. This permit is also required if the data is to be disseminated without a request.31 Upon the application of a data provider, BAFA will grant the permit if dissemination of the data does not jeopardise Germany’s vital security interests, disturb the peaceful coexistence of states or interfere with Germany’s external relations. Under certain circumstances specified in the Data Security Act, a data provider may apply for a collective permit to avoid case-by-case applications to respond to sensitive requests for data transfer.
IV CURRENT DEVELOPMENTS
i Pending cases
In Germany, as in a number of other EU Member States, the spectrum assignments under the EU Decision on mobile satellite services (MSS) (the MSS Decision)32 are currently under dispute. The European Commission awarded spectrum based on this decision to facilitate the development of a competitive internal market for MSS across the European Union and to ensure gradual coverage in all Member States.33 Inmarsat Ventures Limited (Inmarsat) and Solaris Mobile Limited (now EchoStar Mobile Limited) were the operators awarded spectrum.34
In 2017, BNetzA initiated a public hearing regarding Inmarsat’s plans to use the spectrum awarded under the MSS Decision for the operation of a European Aviation Network (EAN).35 BNetzA concluded that the spectrum use for the EAN was permitted under certain conditions to be met by Inmarsat and, in 2018, issued a ‘specifying frequency assignment’ allowing the use of this spectrum for the EAN operated by Inmarsat and partners to offer high-speed internet access in aircrafts. However, BNetzA’s decision is being challenged and is subject to administrative and court proceedings initiated by competitors. The underlying issues relate to the requirements to be fulfilled by Inmarsat regarding the satellite system, including that ground components are to be complementary to the satellite components and the coverage obligations according to the common conditions in the MSS Decision. Furthermore, competition aspects are at the core of the disputes. Competitors claim that change of spectrum usage from providing MSS, in particular to provide broadband coverage in underserved areas to offering high-speed internet access to passengers in aircrafts, is not covered by the MSS Decision and thus should have been subject to a new award proceeding open to all interested companies.
Administrative and court proceedings are still pending at the time of writing.
ii Legislative initiatives
As mentioned in Section I, the Ministry announced that a first draft of the Space Act will be published in 2020. While it is known that the Space Act will aim to encourage private commercial space activities, there is little public information available on its specific contents. The coalition agreement of the current government merely states that a Space Act will be initiated to ensure investment and legal certainty for non-governmental space activities. According to Ministry officials, the goal is to create a legal framework for commercial space activities encouraging private investment with low bureaucratic hurdles and as little regulation as possible. In particular, national provisions limiting liability of and enabling affordable insurance coverage for private entities in the space market are considered to be essential if commercial activities are to be promoted in the German market. Apparently, the Space Act will not establish national provisions for space mining activities. The Ministry announced in this respect that it would rather support activities at international level aiming at consistent international rules regarding space mining.
Furthermore, the government included in the coalition agreement their intention to participate in the establishment of a global space weather centre to research and mitigate space weather risks for national technical infrastructure.
It remains to be seen if, when and to what extent national legislation will be adopted with respect to space-related activities.
V OUTLOOK AND CONCLUSIONS
There is a broad range of government-backed programmes, including financial subsidies, to promote a national space strategy. The DLR’s activities cover a number of areas, including, but not limited to, Earth observation, satellite communications, navigation, space science and human space flight. The DLR and the Ministry also support various research and development activities based on the National Space Programme. State subsidies are granted for private space-related activities, such as research on space technology, space robotics, space transport systems, satellite-based telecommunications and navigation.
According to the national budget for 2019, the National Space Programme was allocated €285 million; the DLR received €522 million, which included funds for five new DLR institutes; and €857 million was allocated for international activities within the ESA, covering, among other things, the financing and the use and operation of the International Space Station. According to the Ministry, the various funds allocated to space-related activities significantly contribute to preserving a competitive German and European space industry.
At the same time, there is a growing New Space community in Germany. There are start-ups providing turnkey solutions for functional satellites and ground stations, working to build lunar rovers and spacecraft to transport the rovers to the Moon, and researching the production of fresh food in space, to give just a few examples. However, the lack of national legislation facilitating private investment and commercial activities is seen as a major obstacle to the growth and competitiveness of the German space market. The adoption of investment-friendly legislation for private and commercial space activities thus remains a challenge.
1 Grace Nacimiento is a partner at GvW Graf von Westphalen.
2 Art. 59 para. 2 sentence 1 of the German Constitution.
3 Law governing the transfer of administrative functions in the sector of outer space activities, 22 August 1998.
4 Act to give Protection against the Security Risk to the Federal Republic of Germany by the Dissemination of High-Quality Earth Remote Sensing Data, 28 November 2007.
5 See the original in German at https://www.dlr.de/dlr/Portaldata/1/Resources/documents/2019/zukunftsfaehige-deutsche-raumfahrt.pdf.
6 Section 56 para. 1 Telecoms Act.
7 Sections 56 and 55 para. 1 Telecoms Act.
8 Council Decision 482, Implementation of cost recovery for satellite network filings.
9 Section 56 para. 2 Telecoms Act.
10 Frequency Allocation Ordinance of 27 August 2013, as amended in 2018.
11 BNetzA Frequency Plan, as at March 2019.
12 Germany is party to the Constitution and Convention of the ITU. The Frequency Allocation Plan implements Art. 5 of the ITU Radio Regulation (RR). Art. 5 Section IV RR contains the Table of Frequency Allocation, which is implemented through the Frequency Allocation Ordinance.
13 Section 56 para. 2 Telecoms Act.
14 Sections 109 Telecoms Act.
15 Section 109a Telecoms Act.
16 Section 110 Telecoms Act.
17 Telecommunications Interception Ordinance of 3 November 2011, as amended in 2017.
18 Section 55 para. 1 Telecoms Act.
19 Frequency Fee Ordinance of 21 May 1995, as amended in 2016.
20 Frequency Protection Fee Ordinance of 15 June 2015.
21 Section 56 para. 4 Telecoms Act.
22 Section 63 Telecoms Act.
23 cf. Section 1 para. 2, No. 1-3 Ordinance on the Data Security Act of 2008, as amended in 2014.
24 cf. Sections 3 et seq. Data Security Act.
25 cf. Section 4 Data Security Act.
26 Section 2 para. 1 No. 2 Data Security Act.
27 cf. Section 11 et seq. Data Security Act.
28 Section 17 Data Security Act.
29 Section 21 Data Security Act.
30 cf. Annex 1: negative list of states with respect to the location of ground components; Annex 2: positive list of target states for data transmission; Annex 3: negative list states for data transmission with respect to the location of the requesting person; Annex 4: positive list of potential recipients of data. cf. Annex 5 for a detailed chart showing the steps of the sensitivity verification.
31 Section 19 Data Security Act.
32 Decision No. 626/2008/EC of the European Parliament and the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS), OJ 2008 L 172/15.
33 Art. 1 Decision No 626/2008/EC.
34 Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS), OJ 2009 L 149/65.
38 Bake in Space, bakein.space.