Licence requirement

Art. 8 et seq. of the preliminary draft of the new Federal Act on Space Operations ("PD-SOA") govern the licensing requirements for companies engaged in space operations. The primary aim is to increase safety in space operations and protect traditional police interests. The authorisation under Art. 8 PD-SOA is therefore a traditional police authorisation.

Any company based in Switzerland conducting space operations requires authorisation (cf. Art. 8 PD-SOA [personal scope of application]). According to the EAER's explanatory report this requirement also applies to foreign companies if they conduct their space operations on Swiss territory.

Space operations are subject to authorisation under Art. 8 PD-SOA. This includes the launch, positioning, operation, control and monitoring of space objects or satellites (Art. 3 lit. a PD-SOA). In contrast, the specific purpose of a satellite's activity, such as data transmission, research, or Earth observation, does not require authorisation. However, such space operations may be subject to authorisation under the relevant sectoral regulations (e.g. telecommunications/data protection law).

Conditions for approval

The preliminary draft of the new Federal Act on Space Operations sets out the requirements for granting an authorisation in Art. 9. Whether these are met is examined in detail in the licensing procedure by the supervisory authority (administrative procedure). A company wishing to conduct space operations must in particular meet the following requirements:

• The applicant must demonstrate that it has sufficient resources to safely conduct the space operation(s) to be authorised (cf. Art. 9 para. 1 lit. a PD-SOA).
• The persons entrusted with the management of the company must guarantee sound business management (cf. Art. 9 para. 1 lit. b PD-SOA).
• The responsible personnel must be competent and trustworthy (cf. Art. 9 para. 1 lit. d PD-SOA).
• The applicant must demonstrate that it has taken the necessary measures to avoid environmental and space pollution (cf. Art. 9 para. 1 lit. f PD-SOA).

Anyone meeting the authorisation requirements under Art. 9 PD-SOA is entitled to authorisation under Art. 8 PD-SOA, for which cost-based fees may be charged. The EAER's explanatory report states that each space operation requiring authorisation must be described with sufficient precision. We believe, however, that a single authorisation is sufficient for a project comprising various space operations by the same company. The authorisation may be granted subject to conditions and requirements (cf. Art. 11 PD-SOA).

In cases of increased risk, the supervisory authority may require liability insurance as part of the authorisation process (cf. Art. 9 para. 1 lit. j in conjunction with Art. 26 PD-SOA). Conversely, for low-risk activities, such as small satellites, the authority may grant reduced requirements (cf. Art. 10 PD-SOA). This demonstrates the risk-based nature of the PD-SOA's authorisation system.

Licensing requirements for third-party companies

The company may engage third parties for space operations if the following conditions are met:

• The third party has the necessary equipment and expert personnel (cf. Art. 14 para. 1 lit. a PD-SOA).
• The third party must actually perform the assigned tasks (cf. Art. 14 para. 1 lit. b PD-SOA).
• The third party contractually assures the company it will perform the assigned tasks with due care and in accordance with the authorisation (cf. Art. 14 para. 1 lit. c PD-SOA).

It is not entirely clear whether third parties engaged for a space activity require a separate authorisation under Art. 8 PD-SOA. In our view, they do not. The fact that third-party companies are regulated in the third section ("Rights and obligations of the operator") rather than the second ("Licensing requirements"), and so the positioning of Art. 14 PD-SOA makes it clear that third-party companies are not subject to the licensing requirements of Art. 8 PD-SOA.

Revocation, wirthdrawal and adjustment of the licence

The supervisory authority may revoke a licence under Art. 8 PD-SOA if the licensee fails to commence operations within the set deadline (cf. Art. 17 para. 1 PD-SOA). This provision prevents parties from obtaining licences in advance. The supervisory authority may also withdraw the licence if the requirements of Art. 9 PD-SOA are no longer met. Pursuant to Art. 17 para. 5 PD-SOA, the company is not entitled to compensation (e.g., for unamortised investments) if the revocation or withdrawal results from unlawful conduct.

The supervisory authority may also adjust the authorisation in response to significantly changed circumstances (cf. Art. 18 lit. a PD-SOA). For example, it may order additional measures to ensure the safe operation of a space object. In practice, an appropriate transition period should be granted for such adjustments to permanent authorisations.

Author: Joel Drittenbass