On 8 April 2014, the Spanish Air Navigation Safety Agency ("AESA") published a note (the "Note") stating that no civil commercial or professional UAV operations are legal in Spain. Apart from military and experimental licenses, which are granted subject to very restrictive conditions, only recreational flights in recreational areas are currently admitted.
While only a few dedicated websites and blogs have referred to the Note, certain respected market players of the local and international UAV industry have received the Note with optimism. This is due to their belief that it reflects the firm intention of the Spanish authorities to establish, as soon as possible, a clear legal framework for drones for civil professional applications.
What is a drone?
AESA is the entity responsible for ensuring that the use of remotely-controlled unmanned aerial vehicles in Spain is carried out safely and in accordance with the law.
According to the Note, a drone is a remotely-controlled aerial vehicle. Traditionally the term referred only to military aerial vehicles, but today it is used to refer to a variety of aerial vehicles that are remotely-controlled, both military and civilian, including when they are used commercially or professionally.
However, when the use of drones is exclusively for recreational or sporting purposes, they are considered model aircraft and subject to their own specific legal regime.
The Note clarifies that drones are indeed considered aircrafts and, as such, subject to the general aviation legal regime in force in Spain, as well as all other aircraft regulations.
For the time being under Spanish legislation drones may only obtain authorisation from the Spanish Civil Aviation General Directorate to operate for experimental purposes under a Special Experimental Certificate of Airworthiness or “Certificado de Aeronavegabilidad Especial Experimental”.
Can drones be used in Spain?
In Spain the use of drones for civilian purposes is not allowed. (For military use there are special rules which allow for their use exclusively in segregated airspace.)
In other words, the use of remotely-controlled aerial vehicles is not allowed, nor has it ever been, for commercial or professional purposes, such as carrying out aerial works like photography for intelligent agriculture, visual reporting of any kind, inspecting high voltage power lines or railways, border patrol, fire detections or scouting of areas affected by natural catastrophes.
The use of drones/model aircraft by individuals for recreational or sporting purposes
The use of model aircraft is regulated by the Spanish Aeronautical Federation, and each Autonomous Region and Municipality can have its own specific rules regarding the recreational or sporting use of drones, although all of these rules must respect the general aviation legislation.
Model aircraft must fly below 100 meters of altitude and are barred from flying over urban centers or groups of people (such as beaches, concerts or streets of any city). Any violation must be reported and may give rise to a penalty.
Therefore, individuals that purchase a lightweight and easily-used aircraft at a generalist shop with a remote radio control and GPS, with or without a camera incorporated into it, or purchase a kit in order to build a remote controlled multi-rotor helicopter with a camera, or construct themselves a plane for first-person-view with a frontal camera and automatic pilot and video transmission, can only use them in the areas specifically designated for their use in accordance with the rules regarding model aircraft. These individuals must consult the regulations of their municipality or autonomous region and are recommended to contact a model aircraft club nearby in order to fly their model aircraft safely. Under no circumstances can they use their aircraft for a professional or commercial activity.
Professional use of drones/aerial work
As stated above, the use of remotely-controlled aerial vehicles is not allowed, nor has it ever been allowed, for commercial or professional purposes.
Carrying out specialised work (also known as aerial work), such as aerial filming, surveillance, detecting and/or extinguishing fires, cartography or inspection, requires the authorisation of AESA (as stated in articles 150 and 151 of the Air Navigation Act (Ley 48/1969)). Until the new rules are adopted regulating the use of these aircraft, AESA cannot give authorisation because it does not have a legal basis on which to do so. Therefore, the use of drones to carry out this kind of work with professional or commercial purposes without authorization is illegal and any breach may be sanctioned.
The abovementioned includes both carrying out this kind of work on behalf of third-parties, as well as at one's own account.
The general aircraft regulations contain a series of provisions that make the flying of drones impossible in the majority of cases. The specific rules regarding these aircraft, which AESA is working on in collaboration with the drone industry, will contain specific provisions regarding their use and will substitute or complement the general rules, making their use possible under certain conditions and limitations.
The new regulations are expected to establish a classification of these aircraft, specifying which categories will be exempt from having a license plate and a certificate of airworthiness; establishing the requirements for the certification of those which require it, as well as for their manufacturing, maintenance and operation; and establishing the conditions for their access to airspace, determining what particular area and under what conditions they can fly, as well as the specific security measures that may be required in those areas.
Until these rules are published, drones cannot be used to carry out aerial works. AESA can only give single authorisations for development or demonstration purposes, as well as for the flights required for their certification.
The so-called "area of free movement"
There is a misguided belief that in the airspace from the ground to 400 feet, drones can fly without any restrictions. This belief might stem from the fact that manned aircraft must normally fly 500 feet above the ground, except for takeoff and landing. However, AESA has jurisdiction over all airspace that extends over the ground.
Flight of drones in closed areas
Completely closed areas (industrial or sport halls, convention centers, private homes) are not subject to the jurisdiction of AESA, as they are not part of the airspace. The owners of these areas can freely decide whether they authorise the flight of drones inside them and in what conditions. A football stadium is not considered a closed area, unless its roof covers the entire surface without any opening.
Current sanctioning regime
The Air Navigation Act does not include a specific provision regarding the use of drones. However, as explained above, drones are legally considered as aircrafts by AESA and therefore their use without a proper license may be sanctioned for violating, among others, the provisions:
- applicable to flying over controlled airspace, such as an intrusion into airport areas; or
flying over a city or urban area, and in general, flying without a certificate of airworthiness or without being previously registered with the Aircraft Matriculation Registry or "Registro de Matrícula de Aeronaves".
According to the Note administrative sanctions are to be imposed proportionally to the risks incurred.
Furthermore, in case of damage to third parties, criminal or civil proceedings may be initiated.
The current legal uncertainty surrounding the regulatory framework for UAVs in Spain suggests that specific legal advice should be sought before any civil operations are initiated.