Luca Iaboni
Avvocati Associati, Hilex
luca.iaboni@hilex.it

Italy – despite being counted among the countries with the largest presence in space, with a competitive entrepreneurial ecosystem – does not yet have a comprehensive law to regulate national space activities, unlike other European countries.

As is well known, due to the slow pace of international cooperation (now exacerbated by recent geopolitical events), some countries with strong interests in space have used national legislation to advance their regulation of space activities.

Current regulation of space activities in Italy

In Italy, space activities are currently regulated within two distinct areas of legislation.

The first area pertains to the overall coordination and governance of the space sector. Within this framework, recent legislative measures have been introduced, including those related to the Italian Space Agency (specific reference is made to Law No 7/2018, which primarily addresses the coordination and governance of Italy’s space sector) and provisions associated with acts of policy and space strategies adopted between 2019 and 2022.

The second area of legislation deals with the regulations governing space activities, which are rooted in international law. This category encompasses laws that derive from the ratification and implementation of international space treaties to which Italy is a signatory. These treaties include significant agreements like the Outer Space Treaty of 1967, the Rescue Agreement of 1968, the Liability Convention of 1972, and the Registration Convention of 1975. Of particular importance within these treaties are Articles VI, VII, and VIII of the Outer Space Treaty of 1967 (OST):

• Article VI of the OST establishes the principle of international responsibility for space activities by providing that states that are parties to the treaty shall: (1) bear international responsibility for national activities in outer space (including the Moon and other celestial bodies); (2) assure that national activities are carried out in conformity with the provisions set forth in the same treaty; (3) authorise and continuously supervise activities in outer space of non-governmental entities falling in their jurisdictions;
• Article VII provides that each state party to the treaty that launches or procures the launching of an object into outer space (always including the Moon and other celestial bodies), as well as each state from whose territory or facility an object is launched, is internationally liable for damages to another state party to the treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space (so, everywhere);
• Article VIII specifies that a state party to the treaty on whose registry an object launched into outer space is carried retains jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

The need for further national regulation

Taking into account the current Italian regulatory framework for space activities, there are at least three principles stemming from the OST that require intervention at the national level in order to better integrate the instruments implementing the provisions of the space treaties and to fill regulatory gaps in domestic legislation:

• the principle of the state's responsibility for national activities in space carried out individually or jointly with other states, both by institutional and private actors; hence the need to authorise and continuously supervise at the national level the space activities of private individuals involving the state as launching state;
• the principle of the financial liability of the launching state for damages caused by its objects in space (towards individuals and legal entities); hence the need to determine how to allocate this liability between the state itself and the private operators (the ever-increasing amount of space debris makes this point particularly sensitive);
• the principle regarding the registration of space objects where the state exercises jurisdiction and control over the object and the personnel on board as the registering state.

The first and most important gap in the Italian national legislation is related to the fact that the obligation of the state to authorise and continuously supervise the space activities of private individuals and organisations, enshrined in Article VI of the OST, has not been implemented yet (probably due to the initial scarcity of private operators, which has, however, faded over time).

Another strong motivation to adopt a national space legislation can be found in the Treaty on The Functioning of The European Union (TFEU) – previously known as the Treaty Establishing the European Community – which is one of two treaties forming the constitutional basis of the European Union (EU), the other being the Treaty on European Union.

Article 189, paragraphs 1 and 2, of the TFEU provide that:

1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, 'excluding any harmonization of the laws and regulations of the Member States' [emphasis added].

In essence, Article 189, paragraph 2 of the TFEU prohibits the harmonisation of Member States' national space legislation at European level. The lack of competence at the European level has meant, and continues, to mean that European countries can legislate autonomously without 'interference' from above.

Obviously, the opportunity to fill regulatory gaps and adopt a comprehensive national legislation on space activities also stems from the competition exerted by countries that have already adopted a domestic legislation (first and foremost, the US, which has been regulating the sector since the 1950s, but also a dozen EU Member States – France in the first place – that have adopted or recently amended national space legislations).

A further push towards domestic regulation originates in the Artemis Accords (to which Italy is a first-time signatory), that – according to some commentators – have effectively put in place an alternate framework relating to the law of outer space.

Pursuant to the principles contained in the Artemis Accords, each Member State must take appropriate measures to ensure that private (national) operators who will be associated with the program respect the principles of the Accords.

The incumbent Italian government, in office since 22 October 2022, has announced that it will submit to the Parliament a proposal for a comprehensive national space legislation in the context of the Budget Law for 2024 (that should be submitted by 15 October in order to be approved by 31 December 2023).

Although no specific governmental proposal has been officially presented yet, a congressman from the main political force supporting the current Italian government recently presented a bill on the coordination of space and aerospace policy that, if nothing else, could anticipate some of the topics that will be covered by the future national space law.

A proposed bill

Overall, the bill aims to build a harmonious and collaborative national system for the space sector, enhance coordination among the various players, consolidate Italy's position, ensure national security and international presence in the space and aerospace sector, and to emphasise the importance of promoting private participation in investments, supporting research and innovation, promoting growth, developing new technologies, and determining the rights, duties, and responsibilities of all players in the space sector.

In particular, the bill includes a legal definition of the concept of a space operator and it deals with the regulation of space activities carried out by these operators by also outlining the procedures and requirements for obtaining authorisation for space operations in Italy. It emphasises the importance of compliance with technical standards, legislation on safety and protection, and the fulfillment of international obligations. The Interministerial Committee for Space and Aerospace Research Policies (COMINT) – established to ensure coordination between ministries and the Italian Regions – plays a crucial role in evaluating applications and making decisions regarding the issuance of authorisations for space operations.

According to the bill, mandatory professional requirements of space operators are going to be identified by way of a COMINT resolution, whilst reputational requirements – that must be met by the space operator, if it is a natural person, or the persons performing administrative and management functions, in the case of a space operator established as a company – will be those provided for financial intermediaries under Legislative Decree No 58 of 24 February 1998 (ie, the Consolidated Law on Finance).

COMINT has the authority to suspend or revoke the authorisations and licences issued by it if the holder fails to fulfill its obligations or no longer meets the necessary requirements. This can also occur if there is a risk that the operations for which the authorisations were granted would jeopardise national defence needs or the fulfillment of the international obligations of the Italian Republic. COMINT may also require space operators to take appropriate measures, at their own expense, to limit the risk of damage caused by the object.

The bill also highlights the liability of space operators for damages caused during authorised operations and the requirement for insurance or financial guarantees (to be issued by one or more credit institutions or insurance companies) to cover potential risks and to ensure compensation for any damage that may be caused to third parties during space operations. In general, space operators are held responsible for damages caused to third parties on the territory of the state during the authorised space operations.

In the case of services commissioned by a state administration for public interest or national defence, the liability for damages caused is borne by the state, with the possibility of recourse against the space operator if the damage was caused intentionally or due to gross negligence.

Before starting its space activities, the space operator is required to provide proof of the required insurance or financial guarantees to a specific public office. The minimum amount of the insurance or financial guarantee is determined by a public office, considering factors such as the nature and scope of the space operation and the potential risks involved.

The liability of the space operator is established under Article 2050 of the Italian Civil Code, which provides that whoever causes damages to others in the performance of a dangerous activity, by its nature or by the nature of the means employed, is liable to pay compensation, unless it proves that it has taken all appropriate measures to avoid the damage.

According to the bill, the supervision and control of space and aerospace activities is entrusted to the Ministry of Enterprises, in cooperation with the Italian Space Agency. The Ministry is responsible for supervising the performance of space operations and other space and aerospace activities by authorised space operators, as well as ensuring the adequacy of their insurance and financial guarantees. The Ministry also oversees the development and utilisation of space and aerospace technologies by companies in other sectors and the collection, use, and dissemination of spatial data for economic purposes. The Ministry may request data, information, and documents from the entities involved in these activities and may carry out inspections. The collected information is processed and stored in accordance with confidentiality requirements.

COMINT or the Ministry of Enterprises can issue instructions to space operators regarding the launching, control, or landing of a space object. They can also order measures necessary for the safety of persons and property, protection of public health and the environment, national defence, or fulfillment of international obligations. COMINT may also prescribe measures to entities involved in space and aerospace activities to safeguard fundamental state interests.

Lastly, the bill grants responsibilities to the Ministry of Defence, that can propose prohibitions or limitations on the collection, transfer, use, or dissemination of space-sourced data. These prohibitions or limitations can be permanent or temporary and can apply to specific spatial data or specific geographical areas.

Disputes concerning measures relating to the regulation and authorisation of space activities and operations, as well as measures imposing administrative sanctions for the infringement of provisions concerning the performance of such activities and operations, fall under the exclusive jurisdiction of the administrative courts.

Outlook

Time will tell whether a proposal for a comprehensive space law will actually be put forward by the Italian government and then approved by Parliament.

The development of the space economy in the coming decades will be influenced and hopefully encouraged by international, supra-national and national regulatory frameworks around the world.

The ability to adapt to market needs, which is always a requirement in a regulatory environment, will be put to the test.