The Impact of National Space Legislation on Private Space Undertakings A Regulatory Competition Between States

With the growing trend of privatisation and commercialisation of space activities, states have deemed the adoption of national space legislation the most suitable way to regulate and control private space initiatives in order to ensure compliance with international space law principles. Several states have thus far enacted national space laws, which diverge in their substances. Considering these differences in national space laws, the idea of regulatory competition is discussed and is contrasted with harmonisation of national space legislation. While harmonisation is explicitly excluded in the European Union’s space competence, there seem to be other ways to provide a more centralised approach to space legislation in Europe. These include the use of different legal bases, non-binding measures, the ‘enhanced cooperation’ mechanism, the ‘approximation of laws’ basis, the flexibility clause ex article 352 TFEU, and the ‘open method of coordination’. Harmonisation in this context can be desirable when keeping objectives such as the prevention of ‘flags of convenience’ and ‘forum shopping’ phenomena, increased technical safety through the harmonisation of quality standards, mutual cross-border recognition of authorisations, and increased consistency in the interpretation of international space law, in mind. The harmonisation of the registration of space objects should be encouraged as to ensure that all necessary information about space activities is transparently available. On the other hand, aspects like the national political sensitivity of space activities and the diversity in market characteristics in the space sector, contradict harmonisation. Current discretionary powers of states with regard to licensing, export control, and other regulatory aspects could make these states more reluctant to opt for harmonisation in these areas.