Drones are no longer the reserve of hobbyists, the military and technologists. Following a Royal Decree dated 10 April 2016 with respect to the use of remote piloted aircraft (OG 15 April 2016) (the Drones Law), drones are now recognised as aircraft, allowing their commercial use. The Drones Law entered into force on 25 April 2016. However, the rules of the EU’s Basic Regulation on aviation safety rules transferred the competence for all drones, including small drones weighing less than 150kg, to the EU. Consequently, the European Commission has adopted respectively on 12 March 2019 and 24 May 2019 a Delegated and an Implementing Regulation, which came into force on 1 July 2019 and will apply from 1 July 2020 onwards.
For now, the 2016 Drones Law still regulates the commercial use of small (with a take-off weight not exceeding 150kg), remotely piloted aircraft on Belgian soil or airspace.
The Drones Law is not applicable to the recreational use of drones with a maximum take-off weight of less than 1kg, the indoor use of drones or the use of drones for public policy (such as military use, customs, police, salvage, coast guards and firefighting). The commercial use of drones is classified in the following two categories:
- class 1: a flight operation with a high (1a) or moderate (1b) risk:
- every operation that potentially may imply moderate or high risk for aviation safety or the safety of people or goods on the ground, such as an operation in an area where the safety of people on the ground is possibly put at risk in case of an emergency, or which by its very nature and the area where it is operated, may imply such a high risk;
- the pilot is at least 18 years of age;
- the pilot must have a drone pilot licence; and
- the maximum flight altitude is 300 feet above ground level.
- class 2: a flight operation with a low risk:
- every operation with a drone with a take-off weight of less than 5kg for low risk activities such as air photography, geodesy and observation;
- the pilot is at least 16 years of age;
- the pilot must have a drone pilot certificate; and
- the maximum flight altitude is 150 feet above ground level.
Specific aviation rules apply. The Drones Law also prohibits the transport of persons or goods, spray flights, formation flights, aerobatics flights, towing and flights on air traffic service routes. However, in individual cases the Minister of Transport or the BCAA can allow an exception.
For class 1 drones a specific pilot licence is required, whereas only a pilot certificate is required for class 2 drones. The certificate and licence are valid for life provided that the pilot has a valid medical certificate for recreational pilots and executes at least six flights of at least two hours each during the preceding 24 months.
A drone can only be commercially operated in the following cases:
- the manufacturer has a conformity certificate for the drone, which must be obtained from the BCAA;
- the drone is registered with the BCAA in the special and separate register for drones (the drone will be registered by the BCAA and a registration certificate will be issued upon fulfilment of the registration conditions listed in the Drones Law);
- for class 1b operations: after an analysis, a preliminary declaration is obtained, stating that these operations are low risk; and
- for class 1a operations: a preliminary admission is obtained.
The operation of a drone is thus subject to the supervision of the BCAA.
The Delegated Regulation harmonises the technical requirements of the UAS while the Implementing Regulation sets out the rules and procedures for the operation of the unmanned aircraft system (UAS). Both regulations feature annexes that go into further detail.
The implementing regulation creates three categories: open, specific and certified:
- The open categories are in principle low-risk drones. They do not require prior authorisation by the competent authorities, nor a declaration by the drone operator before the operation takes place. But if the drone weighs more than 250 grams, the drone operator will need to be registered. The requirements refer to line-of-sight operations, maximum platform weight of 25kg, maximum altitude 120 metres above ground level (except where flying over a fixed obstacle over 70 metres), limited flight over uninvolved people and meet criteria of classes C0-C4. The remote pilot must have the ability to take control so autonomous operations are excluded.
- The specific category means a category of drone operations that, considering the risk involved, require authorisation by the competent authority before the operation takes place. The exception to this rule applies to standard scenarios for which a declaration by the drone operator is sufficient or when the operator holds a light drone operator certificate with privileges.
- The certified category means a category of drone operation that requires certification of the drone and its operator as well as licensing of the flight crew. This is the most futuristic of the categories, as it applies to UAS with dimensions of more than 3 metres, or if it transports dangerous goods or people. Nevertheless, under current Belgian law the transportation of goods or passengers by a UAS is prohibited.
The Delegated Regulation sets out the product requirements for drones, with the main focus being open-category drone operations. It divides them into five classes, classes C0-C4, which need to be visible on the drone itself through a class identification label. Furthermore, this regulation provides an electronic identification system in the form of a direct remote identification .
As stated above, both Regulations will apply from 1 July 2020 onwards. However, there will be a two-year transition period thereafter to suspend certain open category requirements. The Regulations will then be fully applicable by 2022. The classifications and provisions contained in the Belgian Drone KB will have to be amended after the new Regulations come into effect, as they are directly binding and will replace a great deal of the Belgian Royal Legislative Act.
As required for aircraft, drones also need to be insured for their professional or commercial operation and use, in accordance with article 7 of Regulation (EC) No. 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators. For the recreational use of a drone, civil liability insurance is required.
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