Legal certainty for Unmanned Aerial Vehicles underway


What to expect in 2016:

  • The European Commission to further work towards an EU regulatory framework for UAV
  • The European Parliament and the Council to vote upon proposed new Basic Regulation
  • Following publication of EASA's "Technical Opinion", further safety rules to be adopted
  • Some Member States to launch national legislation taking to account the EASA Technical Opinion

Last month, the European Commission announced its new aviation strategy, emphasizing that the Union should take measures to unleash the full potential of unmanned aircraft. The Commission aims to put in place a legal framework that should create legal certainty, and proposes that Regulation (EC) 261/2008 ( the " Basic Regulation") be adapted to UAV.

Today, unmanned aircraft with an operating mass of less than 150 kg are regulated at Member State level, unmanned aircraft with an operating mass of more than 150 kg are regulated at EU-level, by EASA. The Commission proposes to reform the "Basic Regulation", in order to integrate all drones, regardless of their operating mass, into the EU aviation safety framework. The Commission wishes to ensure that drones operations are coherent with the current EU aviation safety and air traffic rules and wishes to avoid fragmentation.

The Commission proposes to add a specific Section on unmanned aircraft to the Basic Regulation (new Section VII: articles 45 – 47), where it would be provided that the design, production, maintenance and operation of unmanned aircraft (including engines, propellers, parts, non-installed equipment and equipment to control them remotely) shall comply with essential requirements set out in a new Annex (with general requirements regarding airworthiness and an obligation for organizations involved in the design, production, maintenance, operations, related services and trainings of drones to implement and maintain an appropriate safety management system). The new section would provide a legal basis for the Commission to create an obligation for certification and declaration of the design, production, maintenance and operation of unmanned aircraft. These certification and declaration requirements will be set out in delegated acts that the Commission can adopt in accordance with Article 47 of said new Section.

Earlier this year EASA presented its "Concept of Operation of Drones" where it adopted a risk-based three-tier approach with "open", "specific" and "certified" categories. This approach was now confirmed in EASA’s Technical Opinion on the introduction of a regulatory framework for the operation of unmanned aircraft, as published on 18 December 2015, and developed by EASA in parallel with the draft modifications to the Basic Regulation.

The "open" category would include operations with a maximum take-off mass of less than 25 kg operated within safe distance from persons on the ground and separated from other air space users, under direct visual line of sight. Also for the open category, flying would be prohibited in "no-drone zones", as would be flying above crowds of more than 12 people.

Operations above 150m or beyond the visual line of sight are considered "specific" and would require an authorisation.

The "certified" category, involving more serious risks, would involve licensing and certification.

The European Parliament and the Council of the European Union now need to develop their position on the Commission's proposal. If the proposal is adopted, the Commission will have a legal basis to further adopt the specific rules that EASA develops.

It is expected that the EASA Technical Opinion will be used as a basis for the further rulemaking, also by Member States where they wish to regulate notwithstanding the ongoing EU initiatives.

The open category is receiving priority treatment in the regulatory activities.