Unmanned Flights in the European Skies: Reform of the EU Regulatory Framework for Drones
By: GVZH Advocates
The use of drones has become quite widespread and nowadays. There are various ideas and applications of the technology in several sectors: from media to surveillance, agriculture to transport, recreational uses, as well as widespread use in the military sphere. The advantages are easy to see – due to the fact that they are ‘unmanned’, drones can be employed in various ways which could avoid the injury or loss of a human pilot, not only in military operations, but also for civilian purposes, rendering the mission both safer, and often less costly and complicated.
These advantages, however, present their own risks and various legal issues may arise from the operations of ‘unmanned aircraft’: drones can fly dangerously close to people, also trespassing on private property. Some can take images or videos of identifiable individuals. Thus, breaching their right to privacy or confidentiality. They can present cybersecurity issues, being vulnerable to hacking, interception, and signal manipulation. The use of drones is therefore regulated in various countries and regions, so as to ensure the safe use of drones in the airspace.
Within Europe, two regulations came into force in 2019 and will become directly applicable in all European Member States as from the 31st December 2020, replacing the 2008 legislative framework. The new regulations are as follows:
- Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft; and
- Commission Delegation Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems.
These Regulations will be applicable to the Member States of the European Union (‘EU’) and those of the European Union Aviation Safety Agency (‘EASA’). The reform of the regulatory framework surrounding drones aims at creating a harmonised drone market in Europe, as well as facilitating the enforcement of one’s privacy rights and contributing to addressing security and environmental concerns.
Additionally, the framework also provides for an Unmanned Traffic Management System, referred to as ‘U-Space’. U-Space is a set of new procedures aimed towards supporting safe, efficient, and secure access to airspace for large numbers of drones. Thus, U-Space ensures the smooth operation of drones in all operating environments and in all types of airspace. This system harmonises the necessary conditions for manned and unmanned aircraft to operate safely, focusing on preventing collisions and mitigating air and ground risks. U-Space is currently under discussion and is set to be launched in 2021.
U-Space works hand-in-hand with the broader Single European Sky ‘SES’ initiative – a European Commission (‘EC’) initiative for air traffic management across the EU, which was launched back in 2004 to reduce fragmentation of the airspace over Europe, whilst improving the performance of air traffic management in terms of capacity, safety, efficiency, and the environment. Currently, the EC is proposing an upgrade of the SES framework, which will also address the safe integration of drones into all classes of airspace.
OPEN, SPECIFIC AND CERTIFIED CATEGORIES
When it comes to regulating the operation and use of drones in Europe, a risk-based approach is adopted. Thus, there is no distinction between leisure or commercial activities, or the type of use of the drone, but rather, a risk and performance-based approach to safety is taken up. This means that the different types of risks are identified and regulated.
Regulation 2019/947 (‘the Regulation’) adopts the above-mentioned risk-based approach by defining three categories of operations: the ‘open’, ‘specific’ and ‘certified’ categories:
- The ‘open’ category refers to operations which are classified as low-risk and thus, no authorisation is required before starting a flight. Under this category, operations must be in the visual line of sight (‘VLOS’), their altitude must be below 120m, and the operation/s must be performed with a privately built drone which is compliant with the technical requirements defined in the Regulation.
- The ‘specific’ category includes riskier operations, where operational authorisation is required from the national competent authority before starting the operation. Here, the drone operator must conduct a safety risk assessment in order to obtain such authorisation. Operations involving drones of more than 25kg and/or which are operated beyond the VLOS typically fall under the ‘specific’ category.
- Lastly, the ‘certified’ category relates to high-risk operations, where certification of the drone operator and aircraft are required, together with the licensing of the remote pilots. Safety oversight will be performed by the relevant National Aviation Authorities and EASA.
HOW TO BE COMPLIANT AS FROM 31ST DECEMBER 2020
As mentioned above, the Regulations will become fully applicable as from the 31st December 2020 and thus, it is important to ensure that you are in compliance with this framework. Drone operators refer to individuals who are registered and responsible for the operation, whilst remote pilots are those individuals who actually control the drone. If you are a drone operator or remote pilot, here are some steps which should be taken in this regard:
- Registration: you should register yourself as a drone operator or remote pilot with the National Aviation Authority of your country of residence, or the country of your main place of business. If your drone weighs less than 250g and has no camera or other sensor to detect personal data, or if your drone is considered as a toy (as per Directive 2009/48/EC), then you will not be required to register. In Malta, registration is free until 31st December 2020; as from 1st January 2021, an annual fee of €25 will be in place. Upon registration, you will receive a unique ‘drone operator registration number’ which must be displayed on all the drones you own. Such registration will be valid in all other EASA Member States. Contact us for assistance with registration as a drone operator or remote pilot in Malta;
- Rules & risks involved: as a drone operator or remote pilot, you must also be aware of the rules and risks connected with the operation, and must have the appropriate training for the operation to be conducted;
- Training: as a remote pilot operating drones of classes C1-C4, you would be required to complete online training and sit for an online test. Upon passing the test, you will be presented with a Remote Pilot Certificate of Competency (License). Such licenses are renewable every 5 years;
- Insurance: you need to ensure that you have acquired the right insurance which is required for your drone. All drone operators operating their drone in Malta must have a valid third-party insurance; and
- Flight authorisation: you must be aware of where you are authorised to fly, and where you need to have a flight authorisation before entering that particular geographical zone.
OBLIGATIONS ON MANUFACTURERS UNDER THE NEW FRAMEWORK
By virtue of Article 6 of EU Regulation 2019/945, various obligations are placed on manufactures of Unmanned Aircraft Systems (‘UAS’). The main obligations on manufacturers are identified below:
- Manufacturers must draw up the technical documentation and carry out the relevant conformity assessment procedure or alternatively, have it outsourced (as per Articles 17 and 13 of EU Regulation 2019/945 respectively);
- Manufacturers must keep such technical documentation together with the EU Declaration of Conformity for a period of 10 years after the UAS product has been placed on the market;
- Manufacturers must indicate several items on the product, including their name, registered trade name or trademark, website address and postal address; and
- Manufacturers shall ensure that the product is accompanied with a manual and information notice in a language that is understandable by consumers and other end-users.
INNOVATION IN THE DRONE INDUSTRY & FUNDING OPPORTUNITIES
Partially motivated by the many issues caused by the COVID-19 pandemic, the emerging technology industry in Europe has continued its advancement, with several tech start-ups being established across Europe, including those operating in the design and manufacturing of unmanned aircraft. A prime example of the ever-increasing use and sophistication of drones can be seen in the recent partnership of UPS with German dronemaker Wingcopter to create next generation delivery drones for postal delivery services.
HOW CAN WE ASSIST?
In view of the EU Regulations which will become applicable as from the 31st December 2020, should you require any guidance or assistance with any drone-related matters, including registration as a drone operator, remote pilot or manufacturer in Malta, please contact us on firstname.lastname@example.org.