The Portuguese Space Agency is carrying out a technical consultation to assist the Government in regulating the civil liability of space operators.
Portugal Space launched today the technical consultation on the terms of reference of the national regime of civil liability insurance for space activities, in line with the need for regulation of Articles 18 and 19 of Decree-Law No. 16/2019 of 22 January (Space Law), which determine the liability of operators as well as the requirement for mandatory insurance, as stated by the Convention on International Liability for Damage Caused by Space Objects of March 1972, to which Portugal acceded by Decree No. 14/2019 of 16 April.
Under the Portuguese Space Act, operators are liable for damage caused in the exercise of space activity but there is the need to determine the minimum value of the civil liability insurance, as well as the maximum amount of the State right of recourse.
Thus, interested parties are called to comment on the minimum capital of the civil liability insurance contract and also on the minimum conditions of the insurance contract and the cases in which insurance may be waived or reduced, amongst other topics. Interested parties can also comment on the maximum amount of the State’s right of recourse over the operator, a right established in the Portuguese Space Act.
“The right to return to the State operates when, under the international law, the State is called to assume responsibility for the damage caused. And the State has the right of recourse over the operator, up to the amount that now must be fixed”, says Carolina Costa, Legal Officer from Portugal Space.
According to the Convention on International Liability for Damage Caused by Space Objects, the launching state may not coincide with a national territory. Carolina Rêgo Costa explains that “there may be up to four launching states, i.e. states may launch a space object individually or jointly, a state may promote the launch, may hold the territory where the launch occurs or may hold the facility where the object is launched.” It is up to the launching State to determine its internal liability regime for operators of space activities.
The proposal put forward for discussion establishes that the maximum value of the liability insurance must be the lower between EUR 50 million or the amount determined by the insurance company according to the calculation of the maximum probable loss of the operation.
As for the State’s right to return, the maximum amount is set to EUR 50 million, as indicated in the maximum insurance cover. since the Portuguese Space Act had determined that the State has that right, what the Technical Consultation intends is to determine its maximum value. “This means that if the damage is greater than that amount, the Portuguese State, if it is called upon to guarantee that damage, will not bring upon the operator an amount greater than EUR 50 million”, refers the Legal Officer from Portugal Space. This rule does not apply in cases where the operator fails to comply with its the legal duties.
Most European countries have established a higher civil liability insurance value, about 10 millions more, than the amount now proposed in the public consultation. Taking into account that the most recent European legislation on this subject dates back to 2018, “We want to understand if in the last three years, and with all the developments that have taken place in the sector, we have conditions for an estimated value below that average”.
The Technical Consultation addresses not only the national operators or those established on national territory, but also to any interested entities, including third-country space agencies, operators, insurers, brokers.
All the information regarding the technical consultation is available at the Portugal Space website, from today July 22 to August 15.
Those interested can send comments and/or suggestions through the email firstname.lastname@example.org.