Economy and Maritime Affairs and Science, Technology and Higher Education.
Administrative rule
Decree-Law No 16/2019, of 22 January, which establishes the regime for access to and exercise of space activities, aims to regulate the exercise of space activities under the responsibility, authorisation and supervision of the Portuguese Republic, in accordance with the international obligations to which it is subject, to facilitate and promote access to and exercise of space activities for all operators established in Portugal and from Portuguese territory, to ensure that space activities respect the international principles governing the use of outer space, namely its peaceful use, and to protect the political and strategic interests of the Portuguese Republic, ensuring that private space activities do not conflict with them.
According to the aforementioned Decree-Law, operators are liable for damage caused in the exercise of space activities, namely within the framework of objective liability for damage caused by the space object on the surface of the earth or to aircraft in flight, as well as liability in the event of fault for damage outside this framework.
In this context, as part of the licensing procedure for space activities, operators will be required to cover their liability by a third party liability insurance policy with a minimum capital to be determined in an administrative rule to be approved by the members of the Government responsible for finance, the economy and maritime affairs, and science, technology and higher education, which may also determine other minimum conditions of the insurance policy, as well as the situations in which the insurance is not required or the amount insured is reduced.
On the other hand, should the Portuguese Republic be held liable for any damage caused by a space object, in accordance with the international obligations to which it is subject, the State has the right of recourse against the operator responsible for that space object, within the limits set by an administrative rule to be approved by the members of the Government responsible for finance, the economy and maritime affairs, and science, technology and higher education.
In this context, and with the aim of approving the statutory instrument provided for in Decree-Law No 16/2019 of 22 January, to establish the minimum capital of civil liability insurance and the limits of the State’s right of recourse against operators responsible for space objects, Agência Espacial Portuguesa - PT Space (the Portuguese Space Agency) was requested to provide technical advice on the terms of reference in this area.
Considering the report submitted by PT Space, and also taking into account the Convention on Liability for Damage Caused by Space Objects, adopted in Washington, London and Moscow on 29 March 1972, approved for accession by Decree No 14/2019 of 16 April;
Therefore, pursuant to articles 18 and 19 of Decree-Law No 16/2019 of 22 January, the Government, through the Ministers of Finance, Economy and Maritime Affairs, and Science, Technology and Higher Education, hereby decrees as follows:
Article 1
Subject-Matter
1 – This administrative rule establishes the minimum capital and other minimum conditions of third party liability insurance provided for in article 19 of Decree-Law No 16/2019, of 22 January.
2 - This administrative rule establishes also the limit of the State’s right of recourse, in accordance with article 18 of Decree-Law No 16/2019, of 22 January.
Article 2
Scope of application, insurance cover and capital
1 – The insurance contract shall guarantee the obligation of launch and/or return operators and command and control operators to compensate third parties for damage caused in the exercise of space activity, in accordance with and for the purposes of Decree-Law No 16/2019, of 22 January, without prejudice to article 5.
2 - The insurance contract shall guarantee:
a) Objective civil liability for damage caused by the space object on the Earth’s surface or to aircraft in flight;
b) Liability in case of fault for damage not covered by the previous point.
3 – The minimum limits of the insured capital shall correspond to the values calculated in accordance with the following paragraph or, if lower, to the maximum probable damage in accordance with paragraph 5 of this article.
4 – In the case of a space operation covered by a unitary licence, the minimum insured capital, irrespective of the number of claims and the number of injured parties, shall be determined by the mass of the object in question, according to the following values:
a) Mass less than or equal to 50 kg: EUR 2 million;
b) Mass exceeding 50 kg but not exceeding 100 kg: EUR 5 million;
c) Mass exceeding 100 kg but not exceeding 200 kg: EUR 10 million;
d) Mass exceeding 200 kg but not exceeding 300 kg: EUR 20 million;
e) Mass exceeding 300 kg but not exceeding 400 kg: EUR 30 million;
f) Mass exceeding 400 kg but not exceeding 500 kg: EUR 40 million;
g) Mass exceeding 500 kg: EUR 60 million.
5 – The maximum probable damage referred to in paragraph 3 of this article shall be calculated by the Space Authority in accordance with standards established by it and published on its website.
6 – In the case of space operations covered by a global licence, the minimum insured capital shall be equal, irrespective of the number of claims and the number of injured parties, to the sum of 70% of the minimum insured capital required for each of the operations covered, determined in accordance with the preceding paragraphs.
7 – In the case of jointly licensed space operations, the minimum limits of insured capital shall be those applicable to each licensed operation in accordance with the preceding paragraphs.
Article 3
Space operation in another launching State
Where the applicant has concluded an insurance contract for a space operation taking place exclusively on the territory of another launching State, this insurance may be accepted by the Space Authority, provided that the relevant contract guarantees, under conditions similar to those required by national legislation, the liability of the operators and the international liability accruing to the Portuguese State by virtue of the Convention on Liability for Damage Caused by Space Objects, adopted in Washington, London and Moscow on 29 March 1972, and approved for accession by Decree No 14/2019, of 16 April, and the insurance company provides solvency guarantees under conditions similar to those required of insurance companies in the European Union.
Article 4
Term of insurance
The insurance contract shall guarantee the civil liability of the insured in respect of claims arising during the period of cover and shall cover claims for compensation submitted up to two years after the expiry of the contract, unless they are covered by another valid subsequent insurance contract.
Article 5
Exclusions
1 – The civil liability insurance contract shall exclude payments due for criminal, administrative or disciplinary liability of the insured.
2 – The civil liability insurance contract shall not guarantee claims that give rise to payments or compensation of any kind that could expose the insurer to any sanction, prohibition or restriction under United Nations resolutions or other standards applicable in the Portuguese legal system.
3 - The insurance contract may provide for the following exclusions:
a) Damage caused to the policyholder, if different from the insured;
b) Damage caused to any person whose liability is guaranteed by the insurance contract, as well as to the spouse, the person living in a de facto union with the insured, the ascendants and descendants or persons living with or dependent on the insured;
c) Damage caused to a member of the governing bodies, or to a person who holds a position of administration, management, direction or leadership, or who acts in a legal or voluntary capacity on behalf of the person whose liability is guaranteed;
d) Damage caused to the insured’s employees or agents while they are working for the insured, provided that such damage is the result of an accident covered by the legislation on accidents at work;
e) Damage caused as a result of acts or omissions committed by the insured or by persons for whom the insured holds civil liability, in collusion with the injured party with a view to obtaining for the latter an illegitimate benefit under the insurance contract;
f) Damage caused by war, strikes, lockouts, riots, civil commotions, assaults as a result of labour disturbances, terrorism, acts of vandalism, civil or military insurrection or decisions by authorities or forces usurping authority.
Article 6
Deductible
1 – The insurance contract may include a deductible of up to 10 % of the sum insured, which shall not be invoked against injured third parties or their successors or the Portuguese State.
2 – The insurer shall be fully liable for the compensation due, without prejudice to the right to be reimbursed by the person responsible for the amount of the deductible.
Article 7
Right of recourse
The insurance contract may provide for the insurer’s right of recourse against the insured in cases of damage resulting from:
a) Acts and/or omissions committed by the insured or a person for whom the insured holds civil liability, while in a state of dementia or under the influence of alcohol, narcotics or other drugs or toxic products.
b) The intentional misconduct of the insured or the person for whom the insured holds civil liability.
Article 8
Termination of the insurance contract
Without prejudice to any other general grounds for termination, and to the provisions of paragraph 2 of article 12 of Decree-Law No 16/2019 of 22 January, the insurance contract shall terminate:
a) On the date the operator’s activity ceases or the licence period for which it was granted ends;
b) On the date the license surrender becomes effective;
c) On the date the licence is revoked by the Space Authority, in accordance with Decree-Law No 16/2019, of 22 January.
Article 9
Right of recourse of the State
The limit of the State’s right of recourse provided for by Decree-Law No 16/2019, of 22 January, shall be equal to the total value of the insured capital that applies to the licensed space operation(s) where the damage occurred, without prejudice to paragraph 3 of article 18 thereof.
Article 10
Waiver of insurance or reduction of the sum insured
At the request of the parties concerned, the Space Authority may, on a reasoned basis, waive the insurance requirement or decrease the insured amount in the following cases:
a) Operations involving the launch, return, command, and control of small space objects, as defined in the Regulation governing access to and exercise of space activities by the Space Authority;
b) Space operations conducted solely for scientific, research and development, or education and training purposes;
c) Operations that demonstrate a clear reduction in risks, as determined by the Space Authority based on its criteria;
d) When another form of financial guarantee is provided, such as a bond or bank guarantee.
Article 11
Other compulsory insurances and guarantees
This administrative rule shall not exempt or interfere with the obligation to secure other insurance and guarantees as required by law, even where they cover, even partially, the risks referred to in article 2.
Article 12
Entry into force
This administrative rule will come into effect on the day following its publication.
The Minister of Finance, Fernando Medina Maciel Almeida Correia, on 1 September 2023. - The Minister for the Economy and Maritime Affairs, António José da Costa Silva, on 4 September 2023. - The Minister of Science, Technology and Higher Education, Elvira Maria Correia Fortunato, on 4 September 2023.
