The Space Law Review: France
Introduction to the national legal, regulatory and policy framework
i Overview of the French space industry and legal framework
With an institutional space programme founded in 1946, France is one of the top three countries with the longest history as a leading space nation. Every year, the space sector generates billions of euros in revenue2 and directly employs 16,000 people in France. The French space industry comprises world-leading companies in satellite manufacturing, launching and satellite services. France has also actively supported and implemented the two flagship space programmes of the European Union: Galileo and Copernicus. France's spaceport is located in French Guiana, which is the flight base of all current European launchers.
Despite France's long history in space exploration, its first national space law was not adopted until the 2000s. Before adopting the French Space Operations Act No. 2008-518 of 3 June 2008 (FSOA), the French regulatory framework for space activities was determined by administrative practices. The government exercised oversight over French space activities by exercising de facto control of the private activities carried out in France. For example, the government indirectly supervised Arianespace by acting as one of the company's largest shareholders.
Changes to the space industry landscape, such as the privatisation of the intergovernmental satellite operator Eutelsat and the diversification of the activities of Arianespace (which started offering services using Russian launchers from the Guiana Space Centre), convinced the government of the necessity to adopt a national space law.
The FSOA, which entered into force in December 2010, became the first comprehensive space law in France. Its objectives include providing legal certainty for non-governmental entities intending to carry out space activities,3 enhancing the competitiveness of French space activities and ensuring that space operations are conducted in line with France's international commitments. France's international obligations arise under the five United Nations (UN) treaties to which it is a signatory. These are:
- the Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967;
- the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968;
- the Convention on International Liability for Damage Caused by Space Objects 1972;
- the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention); and
- the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 (the Moon Agreement).
France has ratified all the UN treaties except the Moon Agreement. The FSOA was also designed to absorb the commitments undertaken by France towards the European Space Agency (ESA) related to the Guiana Space Centre and other European states participating in the Ariane, Vega and Soyuz programmes.
The FSOA sets up the general principles that apply to the authorisation and monitoring of space operations (namely, launch operations and in-orbit operations) under French jurisdiction or for which the French government bears international liability. The law also has implementing regulations to allow the government to easily and rapidly adjust requirements when necessary.
Although the FSOA has been successful since its implementation, French public authorities have started the process of updating it to integrate feedback collected from operators and to reflect on the evolution of the space sector.
ii Key national regulatory authorities
The French space agency, the National Centre for Space Studies (CNES), was established in 1961. It is a public establishment under the authority of the Ministry of Economy, the Ministry for Higher Education, Research and Innovation (MEHRI) and the Ministry of Defence. The CNES has an independent budget and a staff of approximately 2,400 people. It is the largest space agency in Europe, with locations in Paris, Toulouse and French Guiana.
Under the FSOA, it is the responsibility of the Ministry of Economy to issue licences and authorisations. However, the instruction of applications and the monitoring of licences and authorisations is largely delegated to the CNES. The CNES agents in charge of instructing licence applications are legal and technical experts. A body of the MEHRI, the Directorate General for Research and Innovation (DGRI), assists the Ministry of Economy in the examination of the applications and the exercise of its responsibilities under the FSOA.
Regulation in practice
i Licence requirements and application process
Engaging in space operations requires licences and authorisations under the FSOA.
Sources of licensing requirements
Although the FSOA sets out the general licensing framework for space operations, it does not specify the requirements that need to be met to obtain an authorisation. These are set out in its implementing regulations. Licensing requirements are further detailed in Decree No. 2009-643 on authorisations granted in application of the FSOA of 9 June 2009 (the Authorisation Regulation). Technical requirements that applicants must meet are specified in a Ministerial Order of 31 March 2011 (the Technical Regulation). The latter also lists the documents to be provided by the applicant. Additional guidance is provided by the CNES in the form of a best practice guide, distributed to individuals on a need-to-know basis.
Scope of licensing requirements
Under the FSOA, licences and authorisations are required for individuals or entities carrying out space operations, which covers both launch and in-orbit operations. The applicant is the space operator, namely, the entity that will independently carry out the space operation.
In terms of territorial scope, licensing requirements apply to:
- any operator, regardless of nationality, intending to launch or return a space object from or onto the national territory using means or facilities falling under the French jurisdiction;
- any French operator intending to proceed with the launch or return of a space object from or onto the territory of a foreign state using means or facilities falling under the jurisdiction of a foreign state or an area that is not subject to the sovereignty of a state; and
- French individuals or legal persons whose headquarters are located in France – regardless of whether the individual or the legal person is a space operator within the meaning of the FSOA – intending to proceed with the launch of a space object, or French space operators that intend to control an object in outer space.
A licence is also required when the control of a space object is transferred to a third party, specifically when:
- the control of a space object previously authorised under the FSOA is transferred to a third party; or
- a French operator intends to take control of a space object whose launch or control has not been authorised under the FSOA.
Types of licences
In France, there is one licensing process for launch operations and another process for satellite in-orbit operations. The FSOA provides for licences at company level and authorisations for each operation. The Ministry of Economy grants both licences and authorisations after the CNES instructs that the licence or authorisation may be granted. As indicated in Section I.ii, the DGRI also assists the Ministry of Economy in the examination of the applications.
To receive a general licence the operator must apply for a licence:
- certifying that it complies with the moral, financial and professional requirements;
- certifying the compliance of the systems and procedures with the Technical Regulation (under points (a) and (b), the operator will need to apply for an additional authorisation for each space operation); and
- equivalent to the authorisation for standard satellite operations, which constitutes a presumption of authorisation. In this case, no additional authorisation is needed.
There are no specific licences or authorisations for satellite constellations. However, as indicated in point (c), space operators can be granted a licence equivalent to an authorisation for standard satellite operations.
The applicant must demonstrate professional guarantees, financial guarantees and moral guarantees, and must satisfy technical, security and safety requirements. In addition, the applicant must demonstrate, through the provision of documentation, that its intended operation complies with the technical requirements set out by the Technical Regulation. Regarding the safety of people, quantitative safety objectives set out by the Technical Regulation must be met by the operator. Regarding the safety of the environment, the applicant must provide, among other documents, risk management plans and environmental impact studies that set out how it will avoid, reduce or offset adverse effects on the environment.
State institutions handle the licensing process in France. The process generally comprises the following stages.
- The applicant submits an application that has an administrative part and a technical part.
- The CNES processes the application and liaises with the applicant if it needs additional information.
- The CNES adopts a non-binding opinion and submits this to the Ministry of Economy.
- The Ministry of Economy, assisted by the DGRI, examines the application and decides whether to grant the licence or authorisation.
The Ministry of Economy has a legal requirement to complete the assessment process within four months of the submission of the completed application by the applicant. In exceptional circumstances, this period can be extended. Where an operator has already obtained a general licence at the company level and that operator applies for a specific operation authorisation, the Ministry of Economy's time to respond can be significantly reduced. The space licensing framework allows for relatively efficient and timely processing of applications.
Telecommunications licensing requirements
The regulatory framework for electronic communications is established by the French Post and Electronic Communications Code. Electronic communications activities are regulated by the Electronic Communications, Postal and Print Media Distribution Regulatory Authority (Arcep), which is an independent administrative authority. The provision of satellite-based electronic communications services and networks to French customers is subject to compliance with regulatory requirements. These requirements relate to service quality, security, lawful interception, mandatory data retention and privacy, among other things.
France transposed Directive (EU) 2018/1972 of 11 December 2018 establishing the European Electronic Communications Code by way of an implementing regulation dated 26 May 2021. The French government took this opportunity to remove the requirement to register with Arcep prior to the commencement of electronic communications activities in France.
Spectrum licensing requirements
The electronic communications regulatory framework also includes rules regarding access to spectrum and spectrum management. The FSOA does not contain a provision regarding spectrum. The spectrum regulators are the government (namely, the Prime Minister and the Minister in charge of electronic communications), the National Frequency Agency (ANFR) and assigning authorities. The latter include ministries, public establishments (e.g., the CNES) and independent administrative authorities with access to one or more frequency bands (e.g., Arcep).
The ANFR is primarily responsible for managing satellite filings. It receives the satellite system frequencies applications submitted by satellite operators and passes them to the International Telecommunication Union (ITU) by initiating the procedure provided by the ITU's Radio Regulations. The application to use a satellite system frequency assignment is passed to the ITU by the ANFR and is submitted to the Minister in charge of electronic communications for authorisation.
Remote sensing licensing requirements
According to the FSOA, any primary operator of space-based data (referred to as remote sensing data) in France must file a prior declaration to the French government. The government is responsible for ensuring that the activities of primary operators of remote sensing data do not jeopardise France's fundamental interests regarding national defence and the observation of international and political commitments. As such, the government may, at any time, prescribe measures restricting the activity of these operators to safeguard these interests (including shutter control). These provisions only apply to primary operators of remote sensing data carrying out their activities in France. Supervision of these requirements is carried out by a defence-related body reporting to the Prime Minister. The technical characteristics of the activities in scope and the types of restrictions that may be issued are defined in implementing regulations. Failure to file the above-mentioned declaration or to comply with the restrictions set out by the government can be sanctioned by an administrative fine of up to €200,000.
ii National registration requirements
Article 12 of the FSOA incorporates into French law the obligation of states, under the Registration Convention, to maintain a national registry of space objects in relation to space objects for which they are the launching state. States must report this information to the UN Office for Outer Space Affairs to be added to the Register of Objects Launched into Outer Space. According to the FSOA, the CNES is responsible for maintaining the national registry of space objects. Licensed operators must provide the CNES with the information necessary for registering the space object in the national registry. The implementing regulation to Article 12 sets out the information to be provided and the deadline by which to provide it.
iii Insurance requirements
In France, third-party liability (TPL) requirements cover both launch and in-orbit operations. TPL insurance or an equivalent financial guarantee is mandatory by law for an amount of €60 million for launch operations and €50 million to €70 million for in-orbit operations. An operator may be exempted from the obligation to take out insurance or provide a financial guarantee for a limited duration if it is proven to be impossible to take out insurance because cover is not available in the insurance market. To benefit from this exemption, the operator must file a request with the Ministry of Economy and produce evidence regarding its financial standing as part of its request.
iv Limits on liability
In accordance with France's commitments under the UN space treaties, the FSOA imposes (1) absolute, joint and several liability for damage on the ground and in air space, and (2) fault-based liability for damage caused in outer space. The FSOA provides for a time limitation on liability for both launch and in-orbit operations: except in the case of wilful misconduct, the licensed provider's liability ceases when all the obligations set out in the authorisation or the licence are fulfilled, or one year after fulfilling the obligations. After that period, the state is liable for damage under certain conditions set out by the FSOA.
Additionally, the FSOA provides a generous limitation on liability in the context of launch operations. The liability risk exposure of launch service providers is fully limited to the insured amount (i.e., €60 million). This means that if damage occurs during a launch operation, the TPL insurance would provide cover for an amount of €60 million, and if the required financial compensation goes beyond this amount, the state would pay the remainder.
In the context of in-orbit operations, satellite operators are exposed to unlimited liability risk for damage in outer space, which can be problematic if the required financial compensation goes beyond the amount covered by the TPL insurance. The regime differences can be explained by the fact that the risk of liability for in-orbit operations is significantly lower than for launch operations.
v Space debris mitigation requirements
There is no explicit definition of 'space debris' in the FSOA; however, it is described as non-functional space objects of human origin, including fragments thereof, in Earth orbit or entering the Earth's atmosphere. France has taken the ambitious approach of explicitly incorporating space debris avoidance and mitigation into its space regulatory framework. The Technical Regulation imposes two sets of space debris mitigation obligations on licensed FSOA operators for launch operations and in-orbit operations. The obligations are based on the Inter-Agency Space Debris Coordination Committee guidelines, the International Organization for Standardization's (ISO) Space systems – Space debris mitigation requirements standard (ISO 24113:2010) and the European Code of Conduct for Space Debris Mitigation adopted by ESA. In the context of the licence application process, applicants must provide plans, measures and studies in relation to space debris mitigation and collision risk prevention. The CNES oversees the documentation provided by applicants to ensure that it complies with the Technical Regulation.
vi Monitoring and enforcement
The FSOA provides the CNES and the Ministry of Economy with supervision and enforcement powers.
General supervisory role of state agents
All the elements checked during the licensing process are subject to continuous supervision. This includes, in particular: professional guarantees; financial guarantees; moral guarantees; guarantees provided by the space operator demonstrating that the operation does not jeopardise national security, defence interests or international obligations of France; compliance with the Technical Regulation; and safety of people, property and the environment. The FSOA grants audit rights to the agents of the government and the CNES. Thus, the agents have broad powers to request information and documents and to inspect facilities and premises of the licensed operator where space operations are carried out. They are bound by an obligation of professional secrecy set in the FSOA, and failure to comply with this obligation may result in criminal sanctions set out by the French Criminal Code.
As part of their supervisory roles, the Ministry of Economy, the CNES and the president of the CNES are granted emergency powers by the FSOA. The Ministry of Economy is entitled to take any emergency measures necessary concerning the launch or the on-orbit command of a space object, and to protect people, property, public health and the environment. The president of the CNES oversees technical risks relating to the preparation and performance of launches. The president has the power to take emergency measures to ensure the safety of facilities and activities at the Guiana Space Centre.
Sanctions for non-compliance with the FSOA
The FSOA grants sanctioning powers to the Ministry of Economy. Licences and authorisations may be withdrawn or suspended in the event of failure by the licence holder to comply with its regulatory obligations resulting from the FSOA and the licence or authorisation, or when the operation for which the licence has been requested is likely to compromise national defence or France's compliance with its international commitments. The Authorisation Regulation lists the different cases where the licence or authorisation can be suspended or withdrawn.
In the event of suspension or withdrawal of the authorisation or licence to control a launched space object, the Ministry of Economy may require the operator to take appropriate measures, at its own expense and in accordance with generally accepted rules of good conduct, to limit the risk of damage associated with that object. This is an adversarial procedure and the licence holder is permitted to submit observations before any withdrawal decision is issued.
The Ministry of Economy is also given powers to issue injunctions to comply with the law and to impose financial penalties of up to €200,000 for breaches of FSOA requirements.
Legal review of decisions
The FSOA does not provide for a specific process to legally challenge decisions issued by the Ministry of Economy. Such an action would fall under the general principles of French public law, according to which administrative decisions can be disputed before an administrative court for the purpose of obtaining their annulment under certain conditions.
Distinctive characteristics of the national framework
The FSOA has achieved positive results since it entered into force in 2010. Authorisations have been delivered in an efficient and timely manner; the possibility to obtain a licence at company level has reduced the application time for operators conducting ongoing space activities; regulatory requirements have been duly implemented by space operators; and no accident has occurred on the ground, in flight or in orbit. The FSOA created a specific licensing process for launch operations and set out the obligation to ensure the re-entry of launcher stages after each launch, which is vital to ensuring the security of space activities. The FSOA has (1) guaranteed that technical and legal requirements based on best international practices are complied with by space operators, (2) validated the cross-waiver of liability clauses in contracts between space participants and (3) provided for a liability ceiling and mandatory insurance obligations for amounts below this ceiling. The FSOA has also put in place a light-touch regulatory regime for remote sensing and a specific intellectual property regime regarding inventions made or used in outer space, with the aim of fostering innovation.
The FSOA has proved to be an asset in the relationship between space operators and their customers and insurers. However, it is currently being revised to adapt to the rapidly changing environment of the space industry.
i Regulatory initiatives
Although the FSOA provides a solid legal framework for space activities, public institutions and industry stakeholders have requested that it be updated to reflect the evolution of space activities.
In the context of the FSOA reform, certain issues have been raised by stakeholders. Concerning launch activities, the space debris mitigation requirements set out by the Technical Regulation provide that only two elements can be placed in orbit in the context of the launch of multiple space objects. To address the market of large constellations, the industry has expressed an interest in receiving more clarity on the practical implementation of this requirement.
In anticipation of a potential increase in collisions of space objects in orbit (particularly due to smallsats), it was suggested that space objects' contribution to collision risk in the Earth orbital environment could also be considered in the launch authorisation process to strengthen the security of space activities. Regarding in-orbit operations, the operators' application of the FSOA demonstrated that the notion of 'space operator' is likely to trigger varying interpretations in certain complex scenarios – for example, where satellites are jointly owned and controlled by two operators or where the control of a satellite is transferred to a foreign affiliate of the operator or a third-party operator. Stakeholders have expressed a need to clarify the notion of 'space operator' to make the determination of the FSOA's scope of application easier for companies.
Additionally, adjustments to the Technical Regulation and harmonisation of the FSOA and other jurisdictions' applicable national laws have been discussed to support emerging space activities, such as in-orbit servicing and suborbital flights.
Finally, the government recognised the need to revise the FSOA to clarify the conditions under which governmental defence-related space activities must be carried out and review the legal regime for remote sensing.
There is no publicly available information on the timing of the reform for civil space activities; however, a revision of the FSOA concerning the above-mentioned defence-related aspects is expected by the end of June 2022.
ii Policy initiatives
Following the appointment of its new president, Philippe Baptiste, in April 2021, the role of the CNES in creating a start-up ecosystem for space activities has been emphasised. In July 2021, the CNES presented the 10 start-ups selected in the context of its new incubator SpaceFounders. The New Space fund initiated by the CNES, CosmiCapital, achieved a major milestone in October 2021 when Karista, an independent venture capital company specialising in early-stage funding, announced its first closing. The fund will have an investment capacity of €38 million. Its main objective is to take advantage of the unprecedented acceleration of the New Space economy and invest in French and European technology start-ups within this sector. The CNES also offers key small and medium-sized space suppliers an accreditation scheme for a broad range of products and services encompassing launchers, orbital systems, ground segments, satellites, balloons and spaceplanes, to promote the excellent work they do for the agency's programmes.
The importance of the space sector for the French economy has been recognised at the highest level of government. On 12 October 2021, France's President, Emmanuel Macron, announced that part of the national investment plan 'France 2030' (estimated at €2 billion) would be dedicated to supporting initiatives in reusable mini launchers, smallsats, constellations and New Space. This is in addition to the €365 million of investment for research and development announced as part of the post-covid-19 economic stimulus plan 'France Relance'. In 2019, President Macron approved the creation of the French Space Forces Command, which performed its first military exercise in space in March 2021. Investments in this programme are set to reach €4.3 billion by 2025.
Outlook and conclusions
President Macron's announcement in October 2021 on investments in the space industry confirms France's determination to operate on a level playing field with other spacefaring nations and to do more to promote wealth creation in the space sector. In the year ahead, we expect progress to be made on the revision of the FSOA. The objective of the French public authorities is to maintain a regulatory environment that supports investment and modern, flexible regulations. Spring 2022 will mark the end of Philippe Baptiste's first year as head of the CNES and other initiatives should be expected from the French space agency in the months following. It is clear that all stakeholders in France are willing to push the agenda of the space sector forward in the coming years.
1 Willy Mikalef is a counsel at Bird & Bird.
2 In a written response of Frédérique Vidal of 18 December 2021 to a question of the Member of Parliament Jean-Luc Lagleize, the annual industrial revenue generated by the space sector was estimated at €4.6 billion.
3 Pierre Lasbordes, Report on behalf of the Committee on Economic Affairs, the Environment and Planning on the Bill on Space Operations, adopted by the Senate, Nos. 614 and 775, 2 April 2008, p. 16.