UK: The Future European Drones Regulation: Per Aspera Ad Astra

Last Updated: 27 June 2019
Article by Sarah Moens

Drones are currently a hot topic. Now that several countries already have national drone legislation, there was a pressing need to regulate things at European level as well. The aim is to create a single European legal framework for the use of drones. The national drone rules will soon be replaced by these uniform European rules.

Current situation

Currently in Europe, different national laws apply to the use of drones. Each Member State regulates the private and commercial use of drones weighing less than 150 kg autonomously. This gives rise to numerous practical problems. For example, a drone operator must comply with different legislation each time the drone crosses a national border. Furthermore, you need another pilot or pilot license whenever this happens, since national drone pilot licences are not recognised in another Member State. There are major differences between the national rules. Whereas in one country a drone is only allowed to fly at a maximum height of 90 metres, in another country it is allowed to fly at a maximum height of 120 metres. In one country, only flights within the pilot's vision range ("VLOS" or "visual line of sight") may be performed, while in another country, a drone can fly outside the pilot's vision range ("BVLOS" or "beyond visual line of sight").

Europe had no choice but to put an end to this untenable situation. Harmonised European legislation was required. The first step in this direction was already taken in 2018. On the basis of Regulation 2018/1139 ("the basic regulation"), Europe also became competent for drones with a mass of less than 150 kg.

On 11 June 2019, the Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems and the Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft were published.

The Regulation on the rules and procedures for the operation of drones will apply from 1 July 2020. However, transitional provisions are included for certain requirements relating to the use of drones and the adaptation of authorisations, declarations and certificates. This means that Member States will have to comply with all the provisions no later than July 2021. By then, the new European rules will replace the existing national rules.

Content

The new Regulations contain the technical and operational requirements that drones must meet. Not surprisingly, a great deal of attention is paid to privacy and safety. Europe wants to avoid situations like in London Gatwick, where a drone was spotted but not tracked down and where all flights were cancelled because of the risk. In the new rules, a drone must therefore be registered and identifiable at all times. A great deal of importance is also attached to environmental protection for the citizens, and in particular to the limitation of noise emissions.

Without going into detail on the technical details, different categories are distinguished on the basis of the risk of the operation. The 'open' category includes low-risk flights. Most drone operations will fall into this category. If there are more risks associated with the flight, they will belong to the "specific" category. For drone flights with a very high risk, the "certified" category applies. A distinction between commercial use and private use of drones is no longer made.

The Commission Delegated Regulation further lays down the requirements for third-country drone operators, meaning operators that are resident or established or with a principal place of business outside of Europe, when they want to conduct drone operations in Europe.

Advantages

The European rules will encourage cross-border activities. A drone still has to be registered in a certain country. But the permission to fly from the European country where the drone is registered will in most cases be sufficient for the drone to circulate throughout Europe. At last, we can talk about a single European sky airspace for drones.

It is clear that, compared to the Belgian rules, the European rules are more flexible in many areas and embrace more possibilities. The Belgian legislator will therefore have no choice but to go the extra mile, at least in terms of drones. For example, a drone will be allowed to fly at a height of 120 metres on the basis of European regulations, as opposed to the maximum height of 91 metres in Belgium. Moreover, it will also be possible to fly at night. Furthermore, for some flights, it is no longer necessary to be 18 years old, but one can become a drone pilot at the age of 16. The European rules therefore represent an improvement for the sector.

However, Member States are not completely silenced. For example, they can still impose national rules for reasons relating to environmental protection, privacy and security for some areas like hospitals, industrial plants and gatherings of people.

Next steps

The European Aviation Safety Agency (EASA) will publish guidance material to assist drone operators later this year. EASA will also make a proposal to the European Commission for a U-space Regulation. U-space concerns all the necessary procedures and services, including infrastructure to ensure the safety of drone flights in the airspace. This is important for future activities with drones that are seen as highly invasive and innovative. It will take some time before this Regulation can be expected and before the drone adventure can finally take-off.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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