The Space Law Review: Netherlands
Introduction to the national legal, regulatory and policy framework
The Netherlands is a party to all five United Nations (UN) space treaties. In 1969, it ratified the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty), and in 1981 it ratified 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 Liability Convention) and the Convention on Registration of Objects Launched into Outer Space 1975 (the Registration Convention). The Netherlands is also one of the 18 parties to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979, which it ratified in 1983.
The Netherlands has been a member of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) since 1977 and is a member of several international intergovernmental organisations relevant for space activities, such as the European Space Agency (ESA), the European Union (EU) and the International Telecommunication Union (ITU). It has also ratified the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations.
The Ministry of Economic Affairs and Climate Policy is the government authority in charge of the space sector. The Ministry, through its Directorate-General for Enterprise and Innovation, defines the Dutch space policy. A new policy is adopted approximately every three years and describes the priorities of the Netherlands during ESA Ministerial Conferences in conjunction with national policy and participation in the programmes of the EU and the UN.2 The government set three main goals in the 2019 policy:
- maximise the social, scientific and economic relevance of space activity for the Netherlands;
- realise the Dutch contribution to European autonomous and affordable access and use of space; and
- retain the European Space Research and Technology Centre for the Netherlands and connect it to the Dutch space cluster.
The Ministry delegated the implementation of the Space Activities Act to its Radiocommunications Agency.3 Another agency of the Ministry that is relevant for setting up space activities from a business perspective is the Netherlands Enterprise Agency.4 The Netherlands Space Office (NSO)5 provides advice on, and implements, the country's space policy. The NSO reports to a steering group composed of the Ministry of Economic Affairs and Climate Policy, the Ministry of Education, Culture and Science, the Ministry of Infrastructure and Water Management, and the Netherlands Organisation for Scientific Research. The Minister of Economic Affairs and Climate Policy (the Minister) serves as coordinator. The NSO is governed by a covenant.6
The national legal and regulatory framework of the Netherlands consists of the following instruments:7
- the Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (the Space Activities Act), in force since 1 January 2008;
- the Decree of 13 November 2007 (the Space Objects Registry Decree), containing rules with regard to a registry of information concerning space objects;
- the Order of the Minister of Economic Affairs of 7 February 2008 (the 2008 Order), containing rules governing licence applications for the performance of space activities and the registration of space objects, as amended in 2010 and 2015 to update the related forms for registration of space objects, and for application for or amendment of a licence; and
- the Decree of 19 January 2015, expanding the scope of the Space Activities Act to include the control of unguided satellites (the Unguided Satellites Decree).
Regulation in practice
The Space Activities Act establishes a flexible licensing system for private space operators, including all necessary requirements, such as insurance and regulation of liability issues. The Act contains a series of conditions to be complied with by operators, relating to the safety of persons and property, environmental protection, public order and security, and financial security, as well as compliance with the international obligations of the state.
Since the Act's entry into force, licences have been granted to New Skies Satellites BV (NSS), ISISPACE BV, AMSAT-NL, TU Delft and Hiber BV. The licence to NSS was granted for the guidance of geostationary communications satellites. The remaining four operators were granted a licence for the operation of unguided space objects in low Earth orbit. In addition, Hiber BV was granted a second licence in 2020 for the operation of guided objects in outer space. In addition, in September 2021, Hiber BV decided to abandon its plans for a satellite constellation and announced that it 'will not be further developing its authorised satellite system and is currently in the process of surrendering its space system licence to the Administration of the Netherlands'.8 Regular supervision audits have been carried out for all licensees.
So far, no licensing fees have been charged to applicants. The Explanatory Memorandum to the Space Activities Act stipulates that the decision not to charge fees was made in view of the small number of licence applications that were expected, and because it was difficult to foresee what the costs would be. It was also announced that this decision would be subject to review when the total number of licence applications exceeds 20.9
The Space Activities Act defines 'space activities' as 'the launch, the flight operation or the guidance of space objects in outer space'10 and applies to space activities that are performed 'in or from within the Netherlands or else on or from a Dutch ship or Dutch aircraft'.11 The law does not apply to activities of Dutch citizens abroad, nor to space activities that are performed under the responsibility of the government. The Netherlands will not be launching space objects in the near future. The terms 'guidance' and 'flight operation' are further elaborated in the Act's Explanatory Memorandum:
The term “flight operation” is understood to mean the navigation, tracking and control of a space object during the flight phase, i.e. the phase between the launch of the space object and the time at which it takes up a position in outer space. Such activities can be performed from facilities, bases, earth stations or other control centres established on Dutch territory.
This likewise applies with regard to the guidance of space objects in outer space (outer-space activities in the broad sense). This includes all command and control activities in relation to a space object (usually a satellite) – e.g. the execution of major and minor manoeuvres designed to keep a satellite in its position in outer space or to adjust its position/orbit, checking that there is no space debris in the vicinity that might cause problems, and monitoring the fuel level of geostationary satellites, etc., so as to ensure that satellites can be decommissioned when they are no longer in use (by placing them into a “decommissioning orbit” around 200 km higher than the geostationary orbit).12
The Unguided Satellites Decree extended the material scope of the Space Activities Act to include the control from the Netherlands of unguided space objects in outer space by means of a communications link. Hence, a licence is currently required for the following space activities:
- launching space objects into outer space;
- operating the flight of space objects in outer space;
- guiding space objects in outer space; and
- controlling unguided space objects in outer space.
ii Procedure and requirements
To obtain a licence, an application must be addressed to the Minister13 and sent to the Radiocommunications Agency.14 A decision must be issued within six months.15 If this deadline is not met, the General Administrative Law Act provides that the applicant must be notified as soon as is practicable and that a reasonable time limit be specified, within which the decision can be expected. So far, all licence applications have been decided within six months.
The licence is issued for the duration of the space activities, which means that an operator who has been granted a licence for the operation and guidance of communication satellites in geostationary satellite orbit does not need to apply for a new licence for each new communications satellite in geostationary orbit.16 Although new satellites that carry out the same activity and are similar to the satellites for which the licence was granted do not require a new licence, they do need to be notified to the Radiocommunications Agency. Licences are not transferable.17
The 2008 Order sets out the procedure and specifies the information and documents to be furnished by the applicant and the requirements it must fulfil, which, as the Space Activities Act provides, can relate to knowledge and experience, and proof of frequency rights, among other things.18
The 2015 amendment of the 2008 Order lists the information to be submitted in five categories, as follows:
- the fullest possible description of the space activities, including a description of the applicant's knowledge and experience of conducting space activities;
- relevant technical information about the space activity;
- documentary proof of a liability insurance policy;
- financial documents consisting of:
- a financial statement for the past financial year, including the audit opinion (if issued);
- a projected profit and loss account, with explanatory notes;
- a liquidity forecast, with explanatory notes; and
- a risk analysis indicating what management measures have been taken to safeguard the continuity of the space activities; and
- documentary evidence of the authorisation to use frequency spectrum.19
These five categories (outlined below) are further specified in the application form, which can be completed online.20
- Plans, knowledge and experience: applicants must provide a business plan, a project plan or other information that specifically relates to the (planned) space activities. This information must also demonstrate that the applicant has knowledge of and experience in performing the space activities for which a licence is being requested. If third parties are engaged by the applicant to perform part of the work for the space activities for which a licence is requested, information on the third parties must also be provided.
- Aerospace engineering information: applicants must provide relevant space technology information about the nature of the mission, the degree of guidance and propulsion, design and development, testing, operations (including information on how communication with the satellite system occurs from the Netherlands), expected lifespan and method of decommissioning, as well as a 'space debris mitigation plan' (or a summary thereof).
- Insurance information: applicants must submit documentary evidence of insurance coverage for liability arising from the launch as well as the subsequent space activities, preferably by means of one or more certificates of insurance, which provides:
- information about the insurance contract of the applicant or, if this insurance is included in the launch contract, about the insurance contract of the launch company (name of insurer, cover, amount of cover, period of coverage, etc.);
- a mention of the Dutch government as 'additional insured'; and
- proof that the insurance premium has been paid.
- Financial information: applicants must provide the following:
- the annual accounts for the past financial year, including the auditor's report, if available;
- a forecast profit and loss account with explanatory notes;
- a liquidity forecast with explanatory notes; and
- a risk analysis indicating which measures (financial, insurance and space technology) have been taken to guarantee the continuity of space activities.
- Permission to use frequency spectrum: applicants must provide proof of the orbital position and frequency rights allocated to it, relating to one or more space objects or space activities for which the licence is requested, including:
- a supporting document (e.g., a print screen) of frequency registrations in the Master International Frequency Register of the ITU or evidence of registration pursuant to 11.41 of the ITU Radio Regulations;
- the ID number and satellite name under which the satellite network or satellite system is known to the ITU; and
- proof (e.g., a copy) of any radio amateur licence used (if the amateur frequency band is used when sending commands to the space object).
Based on these requirements, a detailed space activities information document (SAID) is prepared by the licence applicant following a document requirements description (DRD) provided by the Radiocommunications Agency. The DRD goes into even more detail on the various requirements, which is beyond the scope of this chapter. The content of the DRD is confidential by default unless otherwise agreed.
The Radiocommunications Agency lists some practical steps on its website that licence applicants are advised to follow.21 They are advised to request a meeting with the Agency well in advance to discuss the purpose of the space activities, frequency rights and orbit positions and to enter into a cooperation agreement (the Agency acts as the notifying authority to the ITU for satellite companies and arranges filing rights). Applicants are also advised to submit their application form and accompanying documents at least six months before the start of the space activities.
The Radiocommunications Agency will then engage experts to review the application by means of an audit, looking at financing, insurance and technology of the planned space activities, and checking whether the activities are safe and whether the applicant has sufficient knowledge and experience. Based on the audit report, the Agency will decide whether it will grant a licence, what the level of insurance should be and how it will check compliance. These regular supervision audits are also carried out with the help of external experts.
Supervision audits take place approximately every three years and take into account the availability of the licence holder. They are based on an updated SAID. A licence can be amended or a new licence can be issued if the information and circumstances change substantially – for example, the activity changes significantly, the company is restructured or major growth occurs.
Conditions regarding the safety of persons and goods, the protection of the environment in outer space, financial security, protection of public order, security of the state or fulfilment of the international obligations of the state can be attached to the licence.22
Sufficient insurance coverage is a key requirement for granting a licence. The amount of the required insurance is what the Minister considers to be the maximum possible cover for the liability arising from the space activities for which a licence is requested, taking into account what can reasonably be covered by insurance.23
This leaves room for flexibility and has, for instance, resulted in the determination of a lower amount for in-orbit third-party liability insurance for unguided satellites, as explained in Section III.i.
iv Safety and security
A licence can be refused or revoked if the safety of persons and goods, environmental protection in outer space, the maintenance of public order or national security are jeopardised.24 In the case of safety or environmental risk, necessary measures will be taken, and the licence holder will be instructed to perform accordingly.25 In case of a safety incident, the licence holder must implement all reasonable mitigation and remediation measures to the greatest extent possible and provide all relevant information.26 So far, no applications have been refused and no licences have been revoked under these provisions.
In terms of registration requirements, licensees must furnish information required for the Space Objects Registry, which the Minister maintains.27 The 2008 Order reiterates the obligation to register and refers to a special form to be used. The Space Objects Registry Decree sets out the details for this process.28 The Netherlands has created a unique format for its national registry in that it consists of a national part and a UN part, flowing from its interpretation of the definition of 'a launching state'. This is further explained in Section III.iii.
vi Redress and liability
The Space Activities Act stipulates that the state has the right to recover from private operators any compensation paid by the state for damage caused to third parties.29 The liability of the licence holder is limited to the sum insured.30
vii Enforcement and penalties
Chapter 5 of the Space Activities Act31 addresses the enforcement and administrative penalties the state can impose. The provisions set out the procedures and time limits of the various steps involved. The right to impose an administrative penalty ends five years after the infringement is committed, but if an objection is raised or an appeal is brought, the expiry date is deferred until a decision has been made on that objection or appeal.32
viii Compliance with Space Debris Mitigation Guidelines
Debris mitigation is not addressed explicitly in the Space Activities Act or its regulations, but, in practice, compliance with the following international guidelines (among others) is required: the COPUOS Space Debris Mitigation Guidelines; the Inter-Agency Space Debris Coordination Committee (IADC) Space Debris Mitigation Guidelines; the ITU's Recommendation S.1003; the International Organization for Standardization's Space systems – Space debris mitigation requirements; and the European Code of Conduct for Space Debris Mitigation. The licence application form asks for a debris mitigation plan or a summary thereof. The DRD further details the requirements, including the measures and methods for debris mitigation and remediation, the life expectancy of satellites and the plans for decommissioning. Furthermore, it is mandatory to report any anomalies, calculate collision risks according to existing criteria (specified by, among others, the IADC and the Combined Space Operations Center) and adapt missions when necessary.
Distinctive characteristics of the national framework
i Small satellites
The definitions of 'operation' and 'guidance' in the Space Activities Act effectively exclude nanosatellites from the Act's scope of application, as these satellites cannot usually be navigated, manoeuvred or controlled in the sense of orbit correction. This situation will change because the technological capabilities of small satellites are developing at a very fast pace, and soon they will be manoeuvrable and thus will be 'guided' or 'operated' from the Netherlands. This means they will fall under the definition of space activities and the Netherlands will require them to be licensed to comply with its obligations under Article VI of the Outer Space Treaty and will register them in the national part of the Space Objects Registry.
The government passed an administrative measure in 2015, clarifying that 'unguided' satellites fall under the scope of the law and thus require a licence. This administrative measure was signed by the King on 19 January 2015 and entered into force on 1 July 2015. It also made the Space Activities Act applicable to unguided satellite missions. With broader definitions of 'operation' and 'guidance', non-manoeuvrable small satellites therefore fall under the scope of application of the Act.
A matter that was also addressed in the administrative measure was the limit of third-party liability insurance that would be required from small satellite operators. The coverage imposed on operators of geostationary satellites in Europe is generally €60 million; however, this was considered prohibitive for operators of small satellites. The Explanatory Memorandum to the Unguided Satellites Decree argues that the annual premium for liability insurance covering up to US$20 million in damage caused during in-orbit operations would be affordable for operators of small satellites.33 This amount has since been required from small satellite operators, with the understanding that the launch itself would need to be covered separately. Launch insurance is usually included with the launch contract, but this would need to be verified during the audit.
ii Generic licence free of charge
As explained in Section II.ii, a licence is granted for an activity, not for a satellite. Regular supervision audits take place, and any developments, such as deorbiting, new satellites, changes in orbit and annual insurance certificates, must be communicated to the regulator but do not require a new licence. Licences are currently free of charge, which is unique and attractive for operators, especially those who launch and operate multiple satellites.
iii Registration practice
As mentioned in Section II.v, the Netherlands has set up a national registry for objects launched into space (the Space Objects Registry), as required by the Registration Convention.34 However, it has created two separate parts of this national registry: a national part and a UN part. The UN part only contains space objects for which the Netherlands considers itself the launching state. According to the UN space treaties, registration must be carried out by a launching state, which is defined in the Registration Convention and the Liability Convention as a state that launches or procures the launching of a space object, or a state from whose territory or facility a space object is launched. There is no definition of 'procuring a launch', but many states accept the qualification of 'launching state' when one of their private entities purchases launch services from a foreign launch provider, and consequently, they register the space object with the UN in accordance with the Registration Convention.
A particularity of Dutch practice is that the Netherlands does not consider itself a launching state for satellites launched abroad for Dutch private entities. Instead, its understanding of procuring a launch is that it only applies when the government itself procures a launch for a government satellite, as was the case for the Brik-II military satellite, launched in June 2021.35 Therefore, the satellites of private operators licensed under the Space Activities Act are not entered into the UN part of the Space Objects Registry but in the national part, which contains the space objects for which the Netherlands does not consider itself a launching state but does consider itself as the state responsible under Article VI of the Outer Space Treaty, resulting in an obligation to carry out authorisation and supervision.
In addition, the Netherlands does not register those satellites with the UN as per the Registration Convention but instead provides information about objects entered into this national part of the registry in accordance with Article XI of the Outer Space Treaty, which does not mention the launching state but refers to states 'conducting activities in outer space'. The use of this legal provision to provide information to the UN about space objects without formal registration as a launching state is not unique; in the past, it was used by the United Kingdom to register satellites on behalf of Inmarsat IGO.
iv Future activities
The Space Activities Act is unique in that it explicitly provides for the possibility of broadening its scope of application in the future by an Order in Council to include the organisation of space activities by natural or juridical persons from within the Netherlands.36 The Explanatory Memorandum mentions space tourism as an example,37 but it may apply to other future activities, such as space resource utilisation.
An assessment is currently being carried out on whether the legal and regulatory framework should be adapted in view of the adoption of the COPUOS Guidelines for the Long-term Sustainability of Outer Space Activities of 2019 and, more generally, the robustness of the framework to address the plans of (future) licensees. The results of this assessment will be used as input for a planned amendment of the law to make it more robust and flexible so that it is future-proof. Open norms will be strived for, which will be beneficial for operators. Any amendment or new law must go through the parliamentary process and public consultation via the Staatscourant (the official gazette). The process will start with informal one-on-one interviews with the current licensees, then a draft will follow a public consultation process. It will take several years before a new law is adopted.
It is not unlikely that as part of this review, a decision to charge a fee will be taken, in view of changed circumstances in the space sector. However, this would likely be a one-time fee that is relatively low and serves only as a threshold. The expectation is that the concept of a licence for the activity and not the satellite will be maintained, and thus a future fee would also be modest and a one-off for the activity. Moreover, the same fee would likely be charged for any kind of licence under the Space Activities Act.
Other topics that could be addressed in the future include space traffic management and space situational awareness.
A new national space policy is expected to be adopted before the next ESA Ministerial Council, which is expected to take place in late 2022.
Outlook and conclusions
The Netherlands' current legal and regulatory framework on space law is perceived positively both nationally and internationally. The framework is transparent, fair and reasonable. There is no undue burden on the industry, and requests are received regularly from companies that are considering establishing their activity in the Netherlands. The country is generally open to these requests, as long as there is a commitment to societal engagement, including employment and sustainability. Companies value the process, the legitimacy and the credibility that a Dutch licence provides to their activities nationally and internationally. This is reflected in companies obtaining considerable investments after being licensed.
A revision of the Space Activities Act can be expected in the coming years to make it more robust in light of the rapidly changing environment. However, the regulatory framework will undoubtedly remain focused on encouraging innovation in the space industry in a safe and secure environment, taking into account the interests of all stakeholders and society at large.
1 Tanja Masson-Zwaan is assistant professor and deputy director of the International Institute of Air and Space Law at Leiden University.
2 The current policy dates from 2019. See https://www.rijksoverheid.nl/documenten/beleidsnota-s/2019/06/19/bijlage-1-nota-ruimtevaartbeleid-2019 (in Dutch).
3 In relation to the Ministry of Economic Affairs and Climate Policy, see https://www.government.nl/ministries/ministry-of-economic-affairs-and-climate-policy, and in relation to the Radiocommunications Agency, see https://www.agentschaptelecom.nl/ and https://www.agentschaptelecom.nl/onderwerpen/ruimtevaart (in Dutch). The general website of the Radiocommunications Agency is also available in English at https://www.agentschaptelecom.nl/radiocommunications-agency.
6 See https://zoek.officielebekendmakingen.nl/stcrt-2008-500.html (in Dutch).
7 Most are available in English at https://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html.
9 See https://zoek.officielebekendmakingen.nl/kst-30609-3.html (in Dutch), Sec. I.3.2. It seems likely that this number will be reduced in the near future, as by now considerable experience and insight into the actual costs has been gained.
10 Sec. 1.b, Space Activities Act.
11 Sec. 2.1, Space Activities Act.
12 Explanatory Memorandum, supra note 8, Sec. I.3.2.
13 Sec. 4.1, Space Activities Act.
14 Art. 3, 2008 Order.
15 Sec. 5, Space Activities Act.
16 Sec. ?.?, Space Activities Act.
17 Sec. 8.1, Space Activities Act.
18 Sec. 4.3, Space Activities Act.
19 The Dutch phrase in this regard is 'frequency space'. See https://www.unoosa.org/documents/pdf/spacelaw/national/Netherlands_BZ116174B.pdf (via https://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html).
22 Sec. 3.3, Space Activities Act.
23 Sec. 3.4, Space Activities Act.
24 Sec. 6.1.b and 7.1.c, Space Activities Act.
25 Sec. 7.4, Space Activities Act.
26 Sec. 10, Space Activities Act.
27 Sec. 11, Space Activities Act.
28 Art. 4, 2008 Order. The current form can be found at https://www.agentschaptelecom.nl/onderwerpen/ruimtevaart/documenten/formulieren/2017/april/4/aanvraag-registratie-ruimtevoorwerpen.
29 Sec. 12.1, Space Activities Act.
30 Sec. 12.2, Space Activities Act.
31 Sec. 13-26, Space Activities Act.
32 Sec. 17, Space Activities Act.
33 Explanatory Memorandum, Sec. 3. Available in English at https://www.unoosa.org/documents/pdf/spacelaw/national/Netherlands_BZ116174A.pdf (via https://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html).
35 See https://www.isispace.nl/news/brik-ii-first-signals-received/. Brik-II will soon become the first object registered in the UN part of the Space Objects Registry and will be notified to the UN under the Registration Convention as a satellite for which the Netherlands is the launching state.
36 Sec. 2.2.b, Space Activities Act.
37 Sec. II, Art. 2, Space Activities Act.