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The latest update on UAV legislation in Belgium and in the European Union

On 25 April 2016, the Royal Decree of 10 April 2016 on the use of unmanned aircraft in Belgian airspace, which regulates the use of drones, entered into force. For the first time, Belgium has adopted a regulation governing the use of drones.

In all likelihood, by the end of 2018, the European Union will have new regulations governing both the use and manufacture of drones. These new European legislative instruments will eventually supersede any national regulations applicable to drones, including the Royal Decree of 10 April 2016.

What is this legal framework? What are the rights and obligations of UAV operators and pilots? We will attempt to answer these questions in this contribution. 

Drones, UAV, RPA,…? 

The BeUAS (Belgian Federation of Telepilot Aviation) and the French Federation of Civil Drone use the term "drone" to refer to any remote-controlled unmanned aircraft. Internationally, the term "UAV" (acronym of Unmanned Aerial Vehicle) is generally used. In civil aviation jargon, we refer to it as "RPA" (acronym of Remotely Piloted Aircraft).

In Belgium, the Royal Decree uses the terms "unmanned aircraft", or in short "RPA". The RPA is defined as an unmanned aircraft, with a maximum take-off weight of less than 150 kg and piloted from a remote pilot station. 

According to the European Commission's draft regulation, a drone is any aircraft operated or designed to operate autonomously or to be piloted remotely without a pilot on board. 

The definition adopted by the European Commission is consequently broader than that adopted in Belgium since European legislation will apply to all types of drones, with no maximum mass limit.

In the near future, EU legislation will supersede all national legislation or regulation, including the Royal Decree of 10 April 2016. This extension of EU competence is the result of a recent compromise concluded between the Council, the Commission and the European Parliament on 22 December 2017.

In this contribution, for the purposes of understanding, we will use the generic term "drone" to refer indifferently to RPA or UAV.

What are the legal obligations to fly a drone in Belgium? 

Pending the adoption and entry into force of the European legislation, the obligations of an operator and a drone pilot are defined individually by each Member State. In Belgium, the legal basis is to be found in the Royal Decree of 10 April 2016.

Exclusion of the recreational UAV from the scope of the Royal Decree

First of all, the Royal Decree excludes from its scope "recreational" drones (Article 3 § 2), i.e. the "family" drone which meets the following conditions:

-      The maximum take-off weight does not exceed 1 kg;

-      The drone flies at a height not exceeding 10 meters;

-      The drone is used for personal purposes and does not fly above any public space;

-      The drone does not fly over a gathering of people;

-      The UAV does not fly within a 3 km radius around airports or civil and military aerodromes and does not fly over prohibited areas such as industrial complexes, prisons, Zeebrugge gas terminal, nuclear installations;

-      Air safety and the safety of people and property on the ground are not compromised;

-      The applicable privacy legislation is respected.

These last two conditions could seem broad and difficult to meet. Indeed, an individual who flies a drone with a camera in his garden could theoretically violate the neighbour's privacy. Further, in the event of a failure of the drone, the latter could damage the neighbour's property. Therefore, must it be considered that this flight cannot benefit from the exemption provided for in Article 3 § 2 and that this individual must therefore comply with all the obligations imposed therein?

Probably not. Nevertheless, in the event of a claim, the aspiring pilot could be held liable since air safety and ground personnel and property were compromised and/or applicable privacy legislation was not respected.

In any case, flying a "recreational" drone, provided that the above-mentioned conditions of the Royal Decree are met, is not subject to any authorization.

Operating a drone in Belgium. What obligations? 

When the drone is not part of the recreational domain, then Belgian decree imposes a set of obligations on the "operator" of the drone and its "remote pilot". It should be noted that it is not excluded that an operator may also be a remote pilot.

The drone operator is the legal or natural person who engages in operations with one or more unmanned aircraft. The operator must essentially guarantee the safety of operations. It is up to him to analyze, a priori, the risk associated with the flight of the drone according to, in particular, the nature of the flight as well as the place and environment where the flight will be operated (presence of persons on the ground, risk of disruption to air safety, etc.). Depending on the risk involved, the operator will have to determine the class in which he operates (see below). In addition, it is the operator's responsibility to ensure the maintenance of the drone, to take out insurance, to process personal data in accordance with legal provisions, etc.

The operator's liability is thus particularly exposed and he will therefore ensure that he has an insurance policy specific to this type of operation. Where operating a drone for professional or commercial purposes, the operator’s insurance must comply with Article 7 of Regulation 785/2004 which specifies the insurance in respect of liability for third parties (i.e. minimum insurance cover per accident). 

Piloting a drone in Belgium. What obligations?   

As to the remote pilot, he/she must have sufficient knowledge of the flying rules (distance from other aircraft, distance from obstacles, prohibition to fly in controlled airspace or approach an airport more than 1.5 nautical miles (2.78 km), procedures in the event of loss of link, flight, take-off, landing and standby procedures, etc.), priority rules (priority for passage to manned aircraft, specific European rules ...), weather conditions, etc.

Under no circumstances is the drone allowed to fly automatically. It is essential for the remote pilot (or observer) to maintain direct visual contact with the drone ("Visual Line Of Sight" or "VLOS") within a certain distance. If there is an observer to help the remote pilot, the observer must have been trained by the operator and have the minimum knowledge required for this task. The number of observers may not exceed two.

In order to make sure that the pilot is fully aware of the rules, he/she must be in possession of either a certificate or a remote pilot licence, depending on whether the flight is in “class 2” (low risk) or “class 1” (moderate / high risk) (see below).

The certificate (class 2) allows the remote pilot to fly drones not exceeding 5 kg. The remote pilot must be at least 16 years old and must undergo theoretical and practical training. This certificate is valid for life and is limited to Belgian territory.

The remote pilot of a class 1 drone must be 18 years of age or older, have passed a theoretical and practical examination and have flight experience under the supervision of an instructor. In addition, even if the licence is valid for life, the licensed remote pilot must be in possession of a still valid medical certificate and demonstrate that he has flown at least 6 flights in the last 24 months for a total duration of at least two hours.

Special obligations according to risk: "classes 2, 1b and 1a”

In Belgium, UAVs are categorized according to the risk associated with the flight: if the risk to aviation safety and/or people and property on the ground is low, it will be classified as "class 2"; if the risk is moderate, it will be classified as "class 1b" and, finally, if the risk is high, it will be classified as "class 1a".

It is the operator's responsibility to assess the risk before the drone takes off (art. 68 of the Royal Decree).

A low-risk drone flight is classified as "class 2" and in this case the remote pilot must have a remote pilot certificate (see above). The maximum mass of the drone may therefore not exceed 5 kg. The drone is allowed to climb up to 150 feet (about 45 meters).

When the risks are moderate, the drone is classified as "class 1b". In this category, the drone can weigh up to 150 kg and can reach 300 feet (91 meters). The remote pilot must have a remote pilot licence (see above). In addition, the operator has to fill a declaration with the DGTA (Directorate General Air Transport of the Federal Public Service Mobility and Transport) at least 10 days before the first operation. The DGTA then checks whether all the required information have been submitted and that the risk assessment has been properly carried out by the operator. If this is the case, the DGTA acknowledges receipt to the operator and then the class 1b operation can start. The declaration remains valid for all class 1b operations carried out by the operator, as long as there are part of the same declared activity and until it is revoked by the DGTA or the activity is terminated by the operator.

Finally, the drone belongs to "class 1a" when the safety risks are high. If the flight is to be carried out near or over a crowd, involving the overflight of persons or carried out in derogation of the provisions of the Royal Decree, the flight is to be considered as high-risk operation (“class 1a”). In such a case, the remote pilot must have a licence. In addition, the operator is required to obtain prior approval from the DGTA. This request for authorization shall be submitted at least ten days before the first operation. Operations can start when the authorization is issued, i.e. when the risk analysis, risk mitigation measures and flight procedures have been accepted by the DGTA. This authorization is valid for one year (extendable).         

Prohibition of certain activities  

Finally, the Royal Decree prohibits certain types of activities, including passenger transport, mail or cargo transport or in-flight spraying, towing, acrobatic flights or formation flights.

Harmonization of legislation through the adoption of a European regulation

Since August 2015, the European Union, via the European Aviation Safety Agency (EASA), has been engaged in a dialogue with stakeholders in the sector (drone manufacturers, operators, model aircraft club, etc.) with a view to adopting a new harmonized regulatory approach for drones in Europe.

On 22 February 2018, EASA published an Opinion on the operation of drones (Opinion 01/2018), which served as a preliminary draft for the European Commission to draft its regulation laying down rules and procedures for the operation of unmanned aircraft (Draft Regulation). The Commission draft regulation is expected to be published by the end of 2018.

Even though the draft regulation may evolve, it is already possible to define the guidelines that will govern the operation of drones throughout the European Union in the short term. Four general principles emerge from the draft regulation: (i.) the applicable safety rules will depend on the risk of the operation, (ii.) the operator is responsible for the safety of the operation, (iii.) the remote pilot is responsible for the safety of the drone flight and (iv.) all operators must register.

The operational risk determines the applicable operating rules

The operational risk criteria fully determine the applicable operating rules. In this respect, the Opinion published by EASA (Opinion 01/2018) specifies that three types of categories should be used: the "open" category, the "specific" category and the “certified” category.

The "open" category

The open category allows the operator, subject to certain conditions, to use his drone without prior authorization from the competent authorities. Drones in this category may rise to an altitude of 120 meters and must remain in the visual line of sight of the remote pilot. 

The draft regulation provides for three sub-categories: A1, A2 and A3 depending on whether the operator is considering flying over people (but not crowds) (A1), approaching people (A2) or neither flying over nor approaching people (A3). The weight of the drone may not exceed 900g if it falls into category A1, 4 kg in category A2 and 25 kg in category A3. In addition, drones must have a unique identification (serial number) and geolocation.

Furthermore, the remote pilot of open category drones must have completed a course and passed an (online) examination on the operation of drones or have a certificate issued by the competent authorities.

The "specific" category

The specific category is a "catch-all": all operations that do not meet the requirements of the "open" category fall under this category.

Prior authorisation from the competent authorities is required in this category. The operator shall therefore submit to the authorities a risk assessment and the measures to mitigate this risk, taking into account in particular the characteristics of the area overflown, the type of operation envisaged, the environmental impact, the pilot's level of competence, the type of drones, etc.

To facilitate the operator's work and the assessment of the authorities responsible for processing the request, EASA will publish standard scenarios specifying the conditions and risk reduction measures to be undertaken. 

The Light UAS Operator Certificate (LUC)

The Commission introduces in its draft regulation the possibility for an operator to have a specific certification (Light UAS Operator Certificate - LUC). The holder of this certification is then exempted from requesting prior authorization from the competent authorities when considering a operation falling under the "specific" category. The operator holding a “LUC” must then comply with a series of conditions, such as the establishment of and compliance with a safety management system and the drafting of a manual - which will be submitted to the competent authorities.

This validity of the certificate is not limited in time.

Registration of operators

All operators of UAVs, with the exception of drones weighing less than 250g, will have to register in the Member State where they are located (residence or registered office). Each operator will thus receive a registration number entered in a register accessible by the authorities of every Member States.

Conclusion

At the moment, operating a drone in Belgium is particularly regulated. Indeed, if the use of the drone is not for "recreational" purposes (weight of a maximum of 1 kg, altitude of 10 metres, use for personal purposes and on private property), the operator must either file a prior declaration (and obtain an acknowledgement of receipt before starting its operation) or request an authorization from the DGTA, accompanied by a risk analysis.

Moreover, in any case, the drone flying over Belgian territory can never exceed 150 kg or rise to more than 91 meters above the ground. It cannot fly automatically since it must remain within the line of sight of the remote pilot. In any case, the drone must avoid flying over people as much as possible. In addition, the drone may not be used to transport equipment in areas that are difficult to access or be used for spreading.

With the introduction of the next European regulation, operating a drone will be greatly simplified: no authorization will be required to fly a drone up to a height of 120 meters and, if certain technical characteristics are encountered, approach and fly over people (except a crowd).  The drone can also be used to transport equipment in the specific context of agriculture, horticulture and forestry. It is only if the operator plans an operation that does not comply with the technical standards of the draft regulation that he/she will have to request special authorization from the authorities. But in the latter case, if  the operator holds a Light UAS Operator Certificate,  the operator shall be authorize to self-assess the risk and will not have to request authorization from the authorities.  

These represent a welcome administrative simplification and administrative harmonization... As to the certificate and licenses that have been issued by the Belgian authorities, the draft regulation provides these obtained prior the entry into force of the draft regulation will remain valid for one year. During this transitional period, the national authorities will have to convert these authorizations and licenses according to the harmonized European regime... After this delay, they will not be valid anymore.

 

Thibault Caeymaex

Senior Associate

Koan