Sergi Giménez
Augusta Abogados, Barcelona
s.gimenez@augustaabogados.com

Laia Malet
Augusta Abogados, Madrid

Spain's commitment to the European space policy

Already in the 1960s, at the dawn of the space age, Spain entered into a close collaboration with the United States through the Mercury project and the Apollo program. This long-standing cooperation is still in full force with the operation – among other contributions – of the Deep Space Communications Complex¹ or the Space Centre at the INTA facilities² in Madrid.

Since the very creation of the European Space Agency (ESA) in 1975, Spain has devoted political and economic efforts to be seen as a reliable player in the field of outer space. Historically, Spain has participated, within the framework of the European Space Policy,³ in projects of such importance as Galileo and Copernicus. In 2018, the European Space Agency relied upon the Spanish technology company GMV⁴ to develop the control centres of the satellite systems (Collaborative Ground Segments of Galileo). Not only does GMV provide satellite navigation services for Europe, but in September 2022 it signed the largest contract ever awarded to a Spanish aerospace company outside the European Union to supply satellite navigation and positioning services to Australia and New Zealand.⁵

The participation of Spain in ESA as one of its founding partners also implies greater and deeper involvement in its missions, as well as in ESA’s optional programs, such as the International Space Station (ISS) and the Earth Observation satellites.

In the European aerospace industry, Spanish companies are among the few with the capacity to lead complete space systems due to the solid structure of its private sector, made up of medium-sized independent companies that have developed important technologies and components which are successfully used in the commercial and institutional markets.⁶ Today, the Spanish space sector is mature but has room for growth. It shows a turnover of almost €1,000m per year and devotes €180m to Research, Development and Innovation (R&D&I) alone. It also generates more than 4,000 annual direct jobs and more than 18,000 direct and indirect jobs, most of them highly qualified.⁷

Until now, Spain’s representation before ESA has been conducted by the Centre for the Development of Industrial Technology (CDTI)⁸ and the National Institute for Aerospace Technology (INTA).⁹ Thus, despite the strong activity developed over the years in the space sector by Spanish operators and public institutions, different governmental agencies with sometimes overlapping functions were in charge of representing Spain internationally. Furthermore, while on the industrial side, Spain has been involved in a good number of European initiatives; in the legal field there has been rather little activity to date.

This scenario is now expected to change with the creation of the Spanish Space Agency (Agencia Espacial Española (AEE)).

The new Spanish Space Agency

The first announcement of the creation of a Spanish national space agency was made in the 2021 National Security Strategy document (Estrategia Nacional de Seguridad (ESN)),¹⁰ where outer space is described as an opportunity for the Spanish economy, but also as a potential threat.¹¹ In March 2022, as part of the Spanish government’s efforts to recover the economic situation after the Covid-19 pandemic and within a wider European effort to develop the green economy and high-tech projects, the Strategic Project for Aerospace Economic Recovery and Transformation (PERTE)¹² was approved to mobilise nearly €4.5bn to boost R&D&I in the aerospace sector. In June 2022, the Spanish Council of Ministers approved the creation of the Space Council (Consejo del Espacio),¹³ an inter-ministerial group in charge of drawing up the bylaws and the initial plan of a Spanish space agency to be created, with the main objective of ensuring the development and implementation of a coherent national space policy, as well as optimising the management of economic resources dedicated by Spain to space activities.

Eventually, in September 2022, through Act 17/2022,¹⁴ the AEE was created.

The process of setting up the AEE has taken place in a somewhat unusual fashion. Firstly, a competition was held among Spanish cities to decide on its headquarters. This was mainly due to the government's desire to decentralise governmental agencies throughout the entirety of the Spanish territory. This turned out to be highly controversial given the Madrid-centric vision of most administrative bodies and decision-makers. Nevertheless, on 5 December 2022, the Council of Ministers decided that Sevilla would host the headquarters of the AEE.¹⁵

The AEE Bylaws were finally approved by Royal Decree 158/2023 on 7 March 2023.¹⁶ With an initial budget of €500m, the AEE shall coordinate and promote Spain's public and private space activities and has been provided with broad powers and authorities to this end, within the framework of the European project led by the ESA.

The AEE has a dual nature, as it takes care of fostering technological development but also of addressing national security concerns. Hence, the AEE has been given authorities that, until then, corresponded to different governmental bodies and, more specifically, to the Ministry of Science and Innovation and to the Ministry of Defence.

The AEE shall from now on be the competent authority for coordinating the Spanish legal regime for outer space activities and the control centre to which space operators are liable for the fulfilment of their obligations.

The general purposes of the Spanish Space Agency according to its bylaws are as follows:

• the promotion, implementation and development of research, technological development and innovation in the field of space, security and national defence;
• outer space operations, satellite applications for the development of departmental competencies as well as use of satellite data;
• the technological and economic impact of the industry associated with the design, construction, operation and maintenance of satellite systems;
• empower the domestic space industry;
• promote and coordinate laboratories and technical establishments dedicated to technological development in the space sector that may be associated with the Agency;
• national and international coordination of the Spanish space policy, in full coordination with ESA and with the space policies and programs developed within the scope of the EU and the international organisations of which Spain is a member, through the competitive and efficient allocation of public resources;
• monitoring of the actions financed and their impact;
• advice on the planning of actions or initiatives through which R&D&I policies are implemented in the area of competence of the General State Administration;
• representing Spain in the international forums in the space sector, providing coherence and supporting the interests of the various departments.

It should be noted that, among the many competences attributed to the AEE, one of the most important, and the one that will define a fundamental legal framework, is the authority to elaborate a proposal for a National Space Policy and a preliminary draft of a National Space Act.¹⁷ Therefore, the next milestones that the AEE has set for itself are precisely to draw up a specific and appropriate regulatory framework for space activity in Spain. At this point in time, not even a preliminary draft has been published, so it will be necessary to monitor the development in this respect.

With the setting up of the Agency, Spain is on a par with other closely-related countries that have similar institutions that guide and direct the space strategies of their respective countries. Naturally, Spain does not aspire to compete against the big space agencies such as the National Aeronautics and Space Administration (NASA) or the Chinese National Space Administration (CNSA), but it certainly wishes to collaborate on equal footing with its closest neighbours and their space agencies, such as France, Germany, Italy and the United Kingdom.

Spain joins the Artemis programme

With the creation of the AEE, Spain committed itself to developing space sector opportunities and to joining NASA's Artemis Agreements. This took effect in a solemn ceremony on 30 May 2023 and positions Spain among the contributing states to the exploration of outer space, the Moon and other celestial bodies, beyond its participation in the ESA.¹⁸ Spain has thus become the 25th country to sign the Artemis Accords.

As is well known, the Artemis Accords have been set up as a network of bilateral agreements between the US (through NASA) and the participating states, and Spain's adherence to this project has not been any different. This formula of adhesion to an international agreement represents a change of paradigm with respect to the mechanism established for the existing Space Treaties, which were developed, drafted and executed as multilateral international treaties.¹⁹

On the other hand, the Artemis Agreements, much more than a programme of scientific and technological cooperation, have resulted in a very relevant change of scenario from the perspective of international space law. As such, it could become the applicable legal framework for the exploration of outer space for peaceful and transparent purposes, with the aim of initiating an international regime for the exploitation of lunar resources and space mining. There are many legal issues and economic controversies that this last point will raise in the coming years. It will be necessary to analyse how the new foundations laid by the Artemis Agreements and US legislation (particularly the Space Act 2015) are compatible with the old international treaties, which were signed by many of the same countries that are now joining the Artemis program without rendering them ineffective.

 The specific scope of Spain's participation is being defined at the time of writing these lines. The AEE sent a representative to the meetings and workshops held 22–23 June in London organised by NASA with the aim of exploring the details of the Spanish contribution. In any case, it seems that it will be geared towards promoting scientific cooperation within the framework of the Artemis Program, with various initiatives for advanced research and exchange of experts in fields such as quantum research or neutrino experimentation. During a recent visit to Spain, Bill Nelson, NASA’s Administrator, pointed out the important role that Spain will play in the construction of the rovers for the exploration of Mars.²⁰ However, on a practical level Spain's entry into the Artemis Programme has no immediate direct consequence.²¹ Nevertheless, it is not an irrelevant strategy with a view to the future and to establishing long-term diplomatic relationships that will keep Spain in a better position in the face of developments in outer space.

The PLD Space Miura programme

Spain presently has a sufficiently mature private sector space industry with in-house launch capability. The Spanish company, PLD Space, is about to become yet another competitor in the micro satellite launcher market with the launch of the MIURA-1 suborbital rocket. Under a contract worth €1m with ESA, this Spanish company is responsible for carrying out the Liquid Propulsion Stage Recovery 2 (LPSR 2) program, a study on the reusability of rockets, specifically the MIURA 5 rocket, from Kourou in French Guiana.²²

The Chief Executive Officer of PLD Space, Raúl Torres, explained in an interview²³ that ‘as with a meteorite, atmospheric re-entry is an aggressive environment that damages structures and other subsystems such as propulsion’. With the ESA contract, PLD Space hopes to advance the study of re-entry and braking of the rocket stage under hypersonic and supersonic conditions. PLD Space's test rocket, MIURA-1, already incorporates certain technology which, if validated, will then be incorporated into the MIURA-5 rocket for the planned 2025 flight, which is expected to have a successful re-entry and recovery.

Apart from what this means in terms of technological advances, it also means for Spain to have its own satellite launch capability. To date, only 13 countries have launched their own rockets from within their own territory. For this reason, the Spanish government has devoted, in a third round of investment, €150m to the PLD Space project together with the French Space Agency (CNES).²⁴ In line with this, the MIURA-1,²⁵ as a tester of the MIURA-5, is planned to be launched from the Huelva Spaceport. A first attempt at launch was made on 31 May 2023 but had to be postponed due to adverse weather conditions. A second attempt scheduled for 17 June also suffered the same fate, and the third attempt is foreseen for September, once the peak of the summer season with its high temperatures is over.²⁶

The next step – towards a national Space Act

The above summary indicates the progress made in Spain and the commitment towards further development of the space industry.

Yet, like many other countries, Spain still lacks a proper legal framework that assists all stakeholders (government, private industry, citizens) in achieving this goal. Thus, one of the very first tasks that the AEE will have to tackle is the promotion of a national Space Act that, while fully respecting Spain’s obligations towards the international community under the Space Treaties, takes due care of the present needs and challenges. A preliminary draft was submitted back in 2014, and maybe it will be used as a starting point. However, the situation has changed in many respects since then, and it would not be prudent to anticipate expectations on that basis. At the time of writing, a general election has been held in Spain and experience shows that it takes some time until the officials appointed by the new government begin deploying their policies. It is therefore likely that we will still have to wait for a while until the draft of the new Space Act sees the light. What seems certain, though, is that presently an enthusiastic attitude in the Spanish legal community is eager to assist in overcoming these challenges.

Notes

1     See www.mdscc.nasa.gov.

2     See www.inta.es/INTA/en/donde-estamos/Estaciones-espaciales.

3     In April 2021, the EU Council and the European Parliament adopted a Regulation establishing the new EU space programmes, which covers objectives, projects and simplifies the current legal framework, reducing the framework of existing EU programs such as Copernicus, Galileo and EGNOS to one for the following seven years. The main objective of the updated EU Space Policy is to move the EU towards a leading role in the space sector. For more information on the EU Space Policy (2021–2027), see the following links: www.consilium.europa.eu/en/policies/eu-space-programme/; for the content of the Regulation, see www.boe.es/doue/2021/170/L00069-00148.pdf; and for more information on the development of the main European space programs, including, in particular, the Government Communications Programme (Govsatcom) and Space Situational Awareness (SSA), see https://defence-industry-space.ec.europa.eu/eu-space-policy/eu-space-programme_es.

4     Galileo is a European satellite navigation system on which more than a billion phone users worldwide depend: seewww.esa.int/Applications/Navigation/Galileo/What_is_Galileo. Copernicus is Europe's big space bet to obtain information on the environment, the effects of climate change and the challenges for citizen security. Information on GMV's activity in both programs is available at www.gmv.com/es-es/sectores/espacio#gmv-en-el-programa-galileo and www.gmv.com/es-es/sectores/espacio#copernicus-557, respectively. The Copernicus Programme is 25 years old, with 10 Spanish companies involved (El programa Copernicus cumple 25 años, con diez empresas españolas involucradas: www.infoespacial.com/texto-diario/mostrar/4314413/programa-copernicus-cumple-20-anos-diez-empresas-espanolas-involucradas).

5     The Spanish technology multinational GMV closed a crucial deal for the Spanish space industry with the US corporation Lockheed Martin, with a positive impact on the country's economy and employment. The contract, worth €180m, covers the development of the heart of the SouthPAN system, which will provide satellite navigation and precise positioning services in Australia and New Zealand. The contract strengthens Spain's position as a player in the global space industry and consolidates GMV's position as the largest employer in the space sector in Spain and the fifth largest in the EU. For information published in the media concerning this transaction, see, for example: http://actualidadaeroespacial.com/gmv-firma-el-mayor-contrato-de-una-empresa-espacial-espanola-fuera-de-la-ue; www.gmv.com/es-es/comunicacion/prensa/notas-de-prensa/posicion-navegacion-y-sincronizacion/gmv-clave-en-la-provision; https://www.businessinsider.es/galileo-protagonista-mayor-contrato-industria-espacial-espanola-europa-299263. www.elespanol.com/invertia/empresas/tecnologia/20221130/espanola-gmv-contrato-southpan-australia-nueva-zelanda/722178210_0.html.

6     Some of the Spanish companies that currently make up the substratum of the business tissue are PLD Space, Elencor, GMV, GTD, Rymsa Espacio, Indra, Aernnova Aerospace, Alestis, Aciturri Aeronáutica, SL, Sener, Técnicas Reunidas (IberEspacio), Airbus Defence & Space, Hispasat and Eumetsat. Spain hosts one of ESA's largest centres of activity, the European Space Astronomy Centre (ESAC), dedicated to the development and operation of ESA's satellite instrumentation, which carried out important ESA scientific operations: see www.esa.int/About-Us/ESAC.

7     More details can be obtained from the official information which the Ministry of Industry publishes on a regular basis. For example, see https://industria.gob.es/es-es/Servicios/AgendasSectoriales/Agenda%20sectorial%20de%20la%20industria%20espacial/agenda-sectorial-industria-espacial-versión-final.PDF.

8     The CDTI is a Spanish public enterprise, dependent on the Ministry of Science and Innovation, which promotes technological innovation and development of Spanish businesses, channelling requests for investment in R&D&I projects at a national and international level. The CDTI participates in the management of around 80 per cent of Spanish industrial activities in space programs, holding the Spanish delegation to ESA. For more information on the CDTI and its functions and activity in the industrial sector for the year 2021, see: www.cdti.es/index.asp?MP=6&MS=5&MN=1&r=1920*1080. The CDTI Annual Report (2021), pp 66-67 is available at www.cdti.es/index.asp?MP=35&MS=0&MN=1&TR=A&IDR=120&iddocumento=862&xtmc=&xtcr=2&r=1920*1080.

9     INTA, as a technology centre of the Ministry of Defence, is a dual Public Research and Defence Organisation, providing technological services in the areas of its competence, including space. For more information on INTA, its Statute, its Annual Action Plan 2023, as well as the Strategic Plan for 2021–2025, see the official website at www.inta.es/INTA/es/quienes-somos/#.

10    Available at  www.boe.es/buscar/doc.php?id=BOE-A-2021-21884.

11    Like many other countries, Spain has redefined the purposes of its military air force to task them with threats from outer space. By Royal Decree 524/2022, of 27 June (State Official Gazette No 155, of 29 June 2022, accessible under BOE-A-2022-10787 Real Decreto 524/2022, de 27 de junio, por el que se dispone el cambio de denominación del Ejército del Aire por la de Ejército del Aire y del Espacio – see https://boe.es/diario_boe/txt.php?id=BOE-A-2022-10787. The Spanish Air Force (Ejército del Aire) was renamed into Air and Space Force (Ejército del Aire y del Espacio). Interestingly, this provision devotes just two lines to confirm the change of the army’s name, but a full seven pages to explain the reasons behind such name change! These explanations offer a good summary of the Spanish authorities’ views towards activities in outer space.

12    The main goal of PERTE Aerospace is to convert the Spanish aerospace industry into a key player in the major transformations in the sector in the short and medium term: see www.ciencia.gob.es/Noticias/2022/Marzo/El-Gobierno-aprueba-el-PERTE-Aeroespacial--que-prev--movilizar-cerca-de-4.500-M--para-impulsar-la-I-D-I-en-el-sector-aeron-utico-y-del-espacio.html

13    ‘Real Decreto 452/2022, de de 15 de junio, por el que se crea y se regula la composición y el funcionamiento del Consejo del Espacio’ (State Official Gazette No 143 of 16/06/2022, available at www.boe.es/buscar/doc.php?id=BOE-A-2022-9985).

14    ‘Ley 17/2022, de 5 de septiembre, por la que se modifica la Ley 14/2011, de 1 de junio, de la Ciencia, la Tecnología y la Innovación’ (State Official Gazette No 214, of 06/09/2022, available under: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2022-14581).

15    ‘Orden PCM/1202/2022, de 5 de diciembre, por la que se publica el Acuerdo del Consejo de Ministros de 5 de diciembre de 2022, por la que se determina la sede física de la futura Agencia Espacial Española’ (State Official Gazette No 292, of 06/12/2022, available at www.boe.es/diario_boe/txt.php?id=BOE-A-2022-20638).

16    ‘Real Decreto 158&2023, de 7 de marzo, por el que se aprueba el Estatuto de la Agencia Espacial Española’ (State Official Gazette No 57, of 08/03/2023, available at www.boe.es/buscar/act.php?id=BOE-A-2023-6082).

17    The Minister of Science and Innovation, Diana Morant, chaired the first meeting of the Governing Council of the Spanish Space Agency in Seville on 20 April 2023, to define the first objectives of defining the National Space Plan and a Space Act: see www.lamoncloa.gob.es/serviciosdeprensa/notasprensa/ciencia-e-innovacion/Paginas/2023/200423-morant-agencia-espacial-europea.aspx.

18    NASA’s press release relating to Spain’s signature of the Artemis Agreements is available at: www.nasa.gov/press-release/nasa-welcomes-spain-as-25th-artemis-accords-signatory.

19    From straightforward rejection by some states such as Russia, to the Chinese silence, the Artemis Accords have generated a whole range of reactions. From a legal perspective, a significant number of scholars consider these agreements to be incompatible with the present ‘Corpus Iuris Spatialis’. For an initial description of some of the issues raised by the Artemis Accords, see, for instance, Rossana Deplano, ‘The Artemis Accords: Evolution or Revolution in International Space Law?’ (ICLQ, vol 70, July 2021, pp 799–819).

20    See https://elpais.com/ciencia/2023-05-29/el-maximo-responsable-de-la-nasa-ratifica-el-acuerdo-para-la-participacion-espanola-en-la-vuelta-a-la-luna.html.

21    See www.elespanol.com/omicrono/defensa-y-espacio/20230513/artemis-mision-espacial-espana-acuerdo-biden-sanchez/763423657_0.html#:~:text=La%20esperada%20visita%20del%20presidente%20del%20Gobierno%20espa%C3%B1ol%2C,en%202025%20y%20establecer%20una%20futura%20colonia%20lunar.

22    See https://actualidadaeroespacial.com/pld-space-y-el-cnes-en-kourou-donde-se-lanzara-el-miura-5-en-2024/ and https://actualidadaeroespacial.com/la-cnes-francesa-selecciona-al-operador-espanol-pld-space-para-el-lanzamiento-de-sus-miuras-desde-kourou.

23    The interview can be accessed at http://radioskylab.es/2023/04/14/2x005-suborbital.

24    Media information on the multiple investment rounds of the PLD Space Project is available at www.eleconomista.es/capital-riesgo/noticias/12183838/03/23/Sesenta-millones-de-euros-propulsan-el-Miura1-primer-satelite-privado-espanol.html.

25    For technical data on the MIURA-1 mission, see www.pldspace.com/en/miura-1.

26    Press conference announcing the postponement of the launch of MIURA-1 scheduled for 31 May 2023 in Huelva: https://www.youtube.com/watch?v=k4p8qEo1JaE  Most recent news announcing the September launch: https://www.elconfidencial.com/tecnologia/2023-06-27/nueva-fecha-cohete-miura-1-lanzamiento-pld-space_3673355/