French national space legislation: a brief 'parcours' of a long history.

• Author: Carminati, Giugi

1. INTRODUCTION II. A HISTORY OF FRENCH SPACE LEGISLATION III. PRE-2008 FRENCH REGULATION OF SPACE IV. POST-2008 FRENCH REGULATION OF SPACE A. Jurisdiction and Authority B. Liability and Indemnification V. CONCLUSION I. INTRODUCTION

   Although France was the last state in Europe to adopt a national space act, (1) it is by no means the least spacefaring nation of Europe. Indeed, it is often referred to--rightly so--as a major launching state. (2) France has a major space launching facility in its territory: the Guyane Space Center (GSC) used by a commercial space "workhorse," Arianespace. (3) The Ariane 5 fleet is the European Space Agency's (ESA) heavy launcher, and although it is launched six to seven times a year, only one or two of those launches are for institutional purposes. (4) In other words, the Ariane 5 is usually used commercially. France is also host to the ESA headquarters (located in Paris). (5) Furthermore, France continues to have a "large and growing space industry." (6) It is therefore unsurprising that space legislation has existed in France since the early 1960's, albeit not in the form of a uniform space act. France's significant ongoing involvement in private space activities makes it a significant player in the increasingly commercialized space industry.

2. A HISTORY OF FRENCH SPACE LEGISLATION

   On December 19, 1961, France created the Centre National d'Etudes Spatiales (National Center for Space Studies) (CNES). (7) The CNES was created to be: (1) a public scientific and technical institution; (2) of an industrial and commercial nature; (3) having financial autonomy; and (4) placed under the authority of the Prime Minister. (8) The CNES website proudly announces that as of October 29, 2013, "the agency's more-than 2,400-strong workforce constitutes an exceptional pool of talent, with some 1,800 engineers and executives, 35% of whom are women." (9)

   The CNES's duties are to (1) collect information on national and international space activities, (2) prepare and propose to the Interministerial Committee for Scientific and Technical research programs of national interest in space, (3) ensure execution of such research projects, either in its own laboratories and technical institutions or using private or public institutions or by financial participation, (4) follow, along with the Minister of Foreign Affairs, problems of international cooperation, and (5) ensure, either directly or indirectly, publication of scientific work regarding problems related to space. (10) These duties are consistent with the CNES's announced goal of being a public scientific research institution rather than an administrative and regulatory one. (11) And, as we will see, even in the context of licensing and authorization, the CNES largely maintains its role as a technical and scientific advisory institution.

   On July 19, 1989, the French legislature created the Space Committee. (12) The Space Committee was placed under the co-leadership of the Minister of Defense and Minister of Industries. (13) Its goals are to (1) analyze civil and military space plans, (2) examine the effect of space programs on the French and European industries, (3) prepare France's position statements regarding international space collaboration, and (4) recommend any necessary action to the Prime Minister. (14) The Space Committee meets twice a year and its secretariat is provided by the CNES. (15)

   Finally, on June 3, 2008, France issued the Loi relative aux operations spatiales (French Space Operations Act) (FSOA),16 which was--as stated previously--the first uniform law of its kind in France, and the last adopted by a European country to date. (17) According to the head of the CNES legal department, the FSOA establishes a coherent national framework reflecting France's international obligations:

   Basically, the French Space Operations Act establishes a coherent national legal framework which sets forth an authorisation and monitoring regime for Space operations carried out under French jurisdiction and]or for which the French Government bears international liability either under UN Treaties (namely the 1967 Outer Space Treaty, the 1972 Liability Convention and the 1976 Registration Convention) or under its European commitments with ESA and its Member States. (18) Subsequent to passage of the FSOA, the French legislature issued several implementing Decrees, including one "specifically dedicated to the issue of authorization." (19) The implementing Decrees are as follows: Decree no. 2009-640 (9 June 2009), Decree no. 2009-643 (9 June 2009), Decree no. 2008-518 (3 June 2008), and Decree no. 2009-644 (9 June 2009).

3. PRE-2008 FRENCH REGULATION OF SPACE

   The FSOA marked a turning point in French space legislation. This turning point naturally begs the question: how was space--and especially commercial space--regulated prior to 2008? Commentators answer by noting that, prior to 2008, the "regulatory framework for space activities had been determined by administrative practices with no unified legal basis." (20) However, France did exercise control and continuous supervision of private space activities for which it could be held "responsible and]or liable." (21) Given the absence of a regulatory regime, France exercised such control and oversight via "de facto control of the private activities arising in the French context." (22) The best illustration of this de facto control is France's de facto regulation of Arianespace.

   Arianespace is a French, private, company and "the world's number one in the commercial space launch services market." (23) But Arianespace was not directly controlled or supervised by the CNES. (24) Rather, CNES exercised a de facto control by being the largest shareholder among the French shareholders of Arianespace. (25) The other shareholders, however, were made up of private companies from other ESA countries. (26) In addition to this de facto control, Arianespace was governed by "a triangle of legal documents involving Arianespace, France and ESA." (27) These documents consisted of: the Arianespace Declaration of 1980, a Convention between ESA and Arianespace, and a continuing series of protocols between France and ESA. (28) This last series of protocols governed G8C. (29) The agreements apportioned responsibility and liability among France and ESA. For example, for ESA-operated launches, "ESA [was] liable and [would have] safeguard[ed] France from any claims for damages, excluding willful misconduct by the French government or its agencies." (30) However, if Arianespace were to conduct a launch for a third-party, leading to third-party liability for France, Arianespace would only have to reimburse France up to approximately sixty million euros. (31) This sixty-million-euro ceiling was later incorporated into the FSOA, as discussed below, and was replicated, in some fashion, by legislations all over the world. (32)

4. POST-2008 FRENCH REGULATION OF SPACE

   Before going any further, it is noteworthy to explain a word-use particularity arising from French-English translation. Although in the U.S. licensing system, the FAA is said to "license" space activities, thereby authorizing them, under the French system, licensing and authorization are two distinct concepts. Indeed, although licensing under a U.S. nomenclature is the end-all be-all of regulatory authority, in the French context a license is only one of multiple steps required to reach the end goal of "authorization." (33) As a result, the word "authorization" under the French system is better understood as referring to the word "licensing" in the U.S. system.

   Having said this, the FSOA focuses on three main issues, addressed in turn below: (1) creation of an authorization regime; (2) spreading of liability between the state and private entities; and (3) the creation of sanctions for noncompliance with the FSOA and ancillary laws and regulations. (34) The FSOA's stated goals are to:

   * set up a coherent national regime to authorize and monitor space operations under French jurisdiction or for which the French government bears international liability as a Launching State, in accordance with UN Treaties principles (Article VI and VII of the Outer Space Treaty, the Liability Convention, and the Registration Convention)...