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The new drone regulations: the sky is the limit?

Introduction

On 11 June 2019, the EU Commission has published in the Official Journal of the European Union two regulations paving the way for a Single European Sky airspace, where drones or unmanned aircraft (hereafter: drones) will share the airspace with airplanes or helicopters, i.e. Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft and Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems

The EU Commission has declared that the objectives of these two regulations are to protect the safety and the privacy of EU citizens while enabling the free circulation of drones and a level playing field within the European Union.

 

Regulation 2019/945

Regulation 2019/945 harmonizes the requirements for the design and manufacture of drones. For instance, it provides for standard airborne noise emission. It also provides for harmonized rules on making drones available on the EU market, including rules relating to the certification (“CE marking”, harmonised standards, market surveillance authority, etc.). This type of harmonization is quite common in European law as already exists for many more traditional equipment, the advantage of this legislation lies mainly in the first overall EU standardization effort. 

 

Regulation 2019/947

Regulation 2019/947, on the other hand, represents a real legislative step forward. It is the result of long discussions that began in 2014. It also disrupts the Belgian regulatory framework relating to the unmanned aircraft (Royal Decree of 10 April 2016 on the use of unmanned aircraft in Belgian airspace), which is known to be particularly rigid and difficult to implement. The EU regulation retains the principle, similar to that already applicable in Belgium, that rules and procedures applicable to drone operations should be proportionate to the nature and risk of the operation or activity and adapted to the operational characteristics of the unmanned aircraft concerned and the characteristics of the area of operations, such as the population density, surface characteristics, and the presence of buildings. According to these criteria, the operation will be categorised as "open" (lowest risks), "specific" (higher risk) or "certified" (highest risks). Of course, the obligations of the operator and the pilot and the type of unmanned aircraft differ according to the category.

When operating in the “open” category, the operator and the pilot may have their unmanned aircraft fly up to a height of 120 metres while remaining in visual line of sight (VLOS), transport non-dangerous goods, approach people at a safe distance (but cannot fly over an assembly of people) … and this without prior authorisation from the national authorities. However, even for “open” category flights, there are certain operational limitations, requirements for the remote pilot and technical requirements for UAS, as defined in the 2019/947 regulation, which apply.

If the operation goes beyond the criteria set out for the “open” category (e.g. flight beyond visual line of sight operation (“BVLOS”), flight over a person, etc.), it may be categorized as a “specific” operation. The operator shall have to identify and mitigate the operational risks and based thereon shall seek for prior authorisation from the national authorities. The authorities shall issue an operational authorisation to the extent that the operational risks are adequately mitigated. The regulation does provide for exception to the prior authorization requirements: 

  • the EU Commission may publish standard scenarios, predefined standardized flights for which no prior authorization is required, but only a prior declaration with the authorities;
  • the regulation also provides for the possibility for operators to be certified (Light UAS operator certificate, LUC) for whom no more authorization nor declaration is required.

In any case, operating a drone in a "specific" class is a challenge because the EU common rules of the air and operational provisions regarding services and procedures in air navigation apply (regulation 923/2012).

The “certified” category is reserved for operations which expose the highest risk of harm to third persons in case of accidents, i.e. fly over assemblies of people, transport people, carry dangerous goods that may result in high risk for third parties in case of accident. In this category, the design, production and maintenance of the drone has to comply with higher certification requirements, the operator has to be certified and the pilot must hold a licence issued by the national authorities. The EU technical requirements and administrative procedures related to air operations are applicable, which means regulatory complexity is equivalent to a conventional air flight.

Regulation 2019/945 will enter into force on 1 July 2019 while regulation 2019/947 will enter into force on 1 July 2020. The 2019/947 regulation provides for a transitional period during which national authorisations, certificates and licences already granted remain valid. However, these will have to be converted by 1 July 2021 at the latest.

 

Drone regulations: a step forward to innovation

The objectives of uniformity of rules and procedures for the operation of drones and those allowing free circulation of drones seem to have been achieved. Operational, certification and marketing rules are harmonised. There is systematic recognition of decisions adopted by another national authority. This is a real step forward.

There has also been a shift in responsibilities. Until now, in most European countries, drone flights exceeding certain thresholds (e.g. 10 metres in height in Belgium) have to be declared to or authorised by the authorities and require a pilot licence or a certificate.

The new regulations significantly widens the possibility for conducting drone flights without prior authorization as these thresholds have been substantially increased by the European Commission. Yet, the risks associated with the operation of drones are no lower than they have been until now. On the contrary, the Commission expects exponential growth of drone flights in the coming years. It is clear that, in such circumstances, systematic flight authorisation is no longer possible and that the solution adopted by the Commission has the merit of making things easier. But this certainly also increases the risks involved.

It shall be now left to the operator and the pilot flying in the "open" category (and the “specific” category in the case of standard scenarios or LUC for which no prior authorization is required) toduly organize their flights without prior external control: it is up to them to determine the risk associated with their flight according to the 2019/947 regulation, to registerif their drone weighs more than 250 grams, in the case of an impact can transfer to a human kinetic energy above 80 Joules or if the drone is equipped with a sensor able to capture personal data, to fly in a manner that minimises nuisances to people and animals, etc. 

It is therefore essential that operators and pilots are well informed before embarking on the drone adventure. In this way, the regulation specifies that “UAS operators and remote pilots should ensure that they are adequately informed about applicable Union and national rules relating to the intended operations, in particular with regard to safety, privacy, data protection, liability, insurance, security and environmental protection”. In our opinion, this means that both the operator and the pilot also bear an important legal liability exposure which may be covered through specialized insurance poliices.

New publications from EASA (European Union Aviation Safety Agency) are expected in the coming months, including pre-defined risk assessments (scenario such as over sparsely populated areas, uncontrolled airspace, very low levels, BVLOS, etc.) and soft law (Guidance Material (GM) and Acceptable Means of Compliance (AMC)).

 

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Also, for any other questions, do not hesitate to contact Me Philip Peerens,Partner, ([email protected])  and Me Thibault Caeymaex, Senior Associate ([email protected]).