EU drone regulation package
On 22 August 2018, Regulation (EU) 2018/1139 was published in the Official Journal of the European Union. This is generally known as the ‘new’ Basic Regulation as it replaced Regulation (EC) No. 216/2008 on common rules in the field of civil aviation. The new Basic Regulation came into force on 11 September 2018. It covers unmanned aircraft regardless of their operating mass. Therefore, the EU jurisdiction is now extended to all type of drones (either below or above 150kg operating mass). The scope of the new Basic Regulation is to establish common provisions applicable, among others, to the design, production, maintenance and operation of aircraft (including drones), as well as their engines, parts, non-installed equipment and equipment to control aircraft remotely, where the aircraft are: (i) registered in a member state; or (ii) registered in a third country and operated by an aircraft operator established in a member state; or (iii) unmanned aircraft neither registered in a member state nor in a third country and that are operated within the territory of the European Union.
According to recital 26 of Regulation (EU) 2018/1139:
Since unmanned aircraft also operate within the airspace alongside manned aircraft, this Regulation should cover unmanned aircraft, regardless of their operating mass. Technologies for unmanned aircraft now make possible a wide range of operations and those operations should be subject to rules that are proportionate to the risk of the particular operation or type of operations.
Under Regulation (EU) 2018/1139 relevant definitions for drones are the following:
- ‘unmanned aircraft’ means any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board;
- ‘remote pilot’ means a natural person responsible for safely conducting the flight of an unmanned aircraft by operating its flight controls, either manually or, when the unmanned aircraft flies automatically, by monitoring its course and remaining able to intervene and change the course at any time; and
- ‘equipment to control unmanned aircraft remotely’ means any instrument, equipment, mechanism, apparatus, appurtenance, software or accessory that is necessary for the safe operation of an unmanned aircraft, which is not a part, and which is not carried on board that unmanned aircraft.
Pursuant to article 55 of the new Basic Regulation, the design, production, maintenance and operation of unmanned aircraft (and their engines, propellers, parts, non-installed equipment and equipment to control them remotely), as well as certification and registration duties, shall comply with the essential requirements set out in Annex IX. In particular, the essential requirements set out in Annex IX provide as follows.
Unmanned aircraft must be designed and constructed so that they are fit for their intended function, and can be operated, adjusted and maintained without putting persons at risk.
If necessary to mitigate risks pertaining to safety, privacy, protection of personal data, security or the environment arising from the operation, unmanned aircraft must have specific functionalities that take into account the principles of privacy and protection of personal data by design and by default.
The organisation responsible for the production or for the marketing of the unmanned aircraft must provide clear and consistent information to the operator of an unmanned aircraft or to the maintenance organisation on the kind of operations for which the unmanned aircraft is designed together with the limitations and information necessary for its safe operation, including operational and environmental performance, airworthiness limitations and emergency procedures.
The operator and the remote pilot of an unmanned aircraft must be aware of the applicable EU and national rules relating to the intended operations, in particular with regard to safety, privacy, data protection, liability, insurance, security and environmental protection.
The operator and the remote pilot must be able to ensure the safety of operation and safe separation of the unmanned aircraft from people on the ground and from other airspace users. This includes good knowledge of the operating instructions provided by the producer and of all relevant functionalities of the unmanned aircraft.
Without prejudice to obligations of member states under the Chicago Convention, unmanned aircraft the design of which is subject to certification (see below) shall be registered and marked by way of digital and harmonised national registration systems.
Operators of unmanned aircraft shall be registered if they operate any of the following unmanned aircraft:
- one that, in the case of impact, can transfer to a human kinetic energy above 80 joules;
- the operation of which presents risks to privacy, protection of personal data, security or the environment; and
- the design of which is subject to certification.
Taking into account the nature and risks of the activity concerned, the operational characteristics of the unmanned aircraft concerned and the characteristics of the area of operation, a certificate may be required for the design, production, maintenance and operation of unmanned aircraft.
If unmanned aircraft are subject to certification (see above), additional essential requirements are established. In particular.
Unmanned aircraft must be designed in such a way that the safety of the person operating the unmanned aircraft or of third parties in the air or on the ground, including property, can be satisfactorily demonstrated.
Unmanned aircraft (including equipment) must function as intended under any foreseeable operating conditions, throughout, and sufficiently beyond, the operation for which the aircraft was designed.
Organisations involved in the design of unmanned aircraft must take precautions so as to minimise the hazards arising from conditions – both internal and external to the unmanned aircraft – that experience has shown to have a safety impact. This includes protection against interference by electronic means.
Organisations involved in unmanned aircraft design, production, maintenance, operations, related services and training shall meet the following conditions:
- must have all the means necessary for the scope of its work;
- must implement and maintain a management system to ensure compliance with the relevant essential requirements, manage safety risks and aim for continuous improvement of this system. Such management system must be proportionate to the organisation’s type of activity and size;
- must establish an occurrence reporting system, as part of the safety management system, to contribute to the continuous improvement of safety. Such reporting system must be proportionate to the organisation’s type of activity and size;
- must establish arrangements, where relevant, with other organisations to ensure continuing compliance with the relevant essential requirements; and
- any person involved, including the remote pilot, shall possess the knowledge and skills necessary to ensure the safety of the operation and proportionate to the risk associated with the type of operation. This person shall also demonstrate medical fitness, if this is necessary to mitigate the risks involved in the operation concerned.
The essential requirements set out by Regulation (EU) 2018/1139 have established only a preliminary regulatory framework for drones within the European Union. Detailed provisions have been recently laid down by way of delegated and implementing acts adopted by the European Commission, on the basis of technical opinions released by the European Aviation Safety Agency (EASA) about the regulation of drones. The EASA has classified unmanned aircraft operations in three categories, taking into consideration the risks involved: open category (low risk); specific category (medium risk); certified category (high risk). This classification has been confirmed by the set of rules recently implemented by way of the mentioned EU Commission acts, namely: Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems and Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft. These Regulations came into force on 1 July 2019 but shall effectively apply in each member state from 1 July 2020.
Open category (low risk)
This category of operation that does not require a prior authorisation by the competent authority, nor a declaration by the operator before the operation takes place. Safety is ensured through operational limitations, compliance with industry standards, requirements on certain functionalities, and a minimum set of operational rules. Enforcement shall be ensured by the local authorities (eg, police).
In particular, the open category provides for a mandatory registration if the drone weight is more than 250 grams, visual line of sight operations only, maximum platform weight of 25kg, maximum altitude of 120 metres above ground level (except if flying over a fixed obstacle), limited flights over uninvolved people and prohibition to transport dangerous goods or to drop any material.
The open category is then further divided into three operational subcategories that allow different types of operations without the need for an authorisation, as follows:
- A1 (fly over people) – operations can be conducted only with low weight drones (less then 250g), basically those often defined as ‘toy aircraft’, so that risk of harm or injury to other people is very limited. Flights over open-air assemblies of people is in any case forbidden.
- A2 (fly close to people) – operations can be conducted only with drones up to 4kg weight that are compliant with specific product standards. The pilot must maintain the vehicle to a safe horizontal distance of 30 metres from uninvolved people and must have passed a competency examination before operating drones in this subcategory.
- A3 (fly far from people) – includes only operations that are conducted far from residential, commercial, industrial or recreational areas (often generally defined as ‘congested areas’).
Drones that are sold for operations within the open category will be subject to a set of product standards, comparable to the CE marking system for goods. In this respect, five classes of drones have been established (mainly based on the drone weight): C0 (can be flown in all subcategories); C1 (can be flown in all subcategories), C2 (can be flown in subcategories A2 and A3), C3 (can be flown in subcategory A3) and C4 (can be flown in subcategory A3). The full details of the product standards are laid down in the Annex to the Delegated Regulation (EU) 2019/945. Since drone manufacturers will need time to produce vehicles 100 per cent compliant with the new rules, some transitional provisions have been developed until 1 July 2022.
Specific category (medium risk)
This category of operation requires an authorisation by the competent authority following a risk assessment performed by the operator before the operation takes place, except for certain ‘standard scenarios’ for which a declaration by the operator is sufficient. A manual of operations shall list the risk mitigation measures. In the case of standard scenarios, the safety risk assessment has already been conducted by the EASA, or by the national Civil Aviation Authority, and, therefore, the drone operator must only comply with certain conditions and limitations provided by the authority for each specific scenario. Flight operations can be started once the authority has positively verified that the operator’s declaration is accurate.
Standard scenarios will be published by the EU Commission as an Appendix to Implementing Regulation (EU) 2019/947.
Certified category (high risk)
Under this category of operation certification of the unmanned aircraft and its operator will be required, along with maintenance approval and licensing of the remote pilot. The certified category applies to drones with large dimensions (more than 3 metres) or engaged in the transport of dangerous goods or people. Being the most futuristic of the three categories, this category is strictly regulated and relevant rules are comparable to those applied to manned aviation.