European Union – drone regulations
New drone regulation was recently passed on a European level: the Commission Implementing Regulation (EU) 2019/947 and the Commission Delegated Regulation (EU) 2019/945, both of which entered into force on 1 July 2019. The Delegated Regulation became applicable on that same day, whereas the Implementing Regulation, holding the actual rules and procedures for the operation of drones (or Unmanned Aircraft Systems), will become applicable on 1 July 2020.
In the Implementing Regulation, there are three key elements relevant to the registration as an operator, the registration of the drone and the competency of the drone pilot.
1 Three categories have been identified in which drone operations would take place:
- an open category
- a specific category
- the certified category.
These categories, 'open' being the 'lowest' one, are risk-based and take into account multiple elements, such as maximum take-off mass (MTOM) and whether the drone will be flown over a crowd.
2 A difference is made between the remote pilot and the operator of the drone. Whereas the remote pilot is the natural person responsible for safely conducting the flight by operating its flight controls, the operator means the natural person or legal entity operating or intending to operate the drone. The latter could therefore be regarded as the person responsible for the drone being flown, while it will not always be the pilot.
3 The regulation makes the distinction between a drone and a toy, the latter being a product designed or intended for use in play by children under 14 years of age (see Directive 2009/48/EC).
Drone operations in the 'lowest' or so called open category, which applies to drones with a MTOM of less than 25kg, might still require the operator to register. The Implementing Regulation requires that the operator must be registered if the drone:
(i) has a MTOM of 250g or more, or
(ii) can transfer above 80 Joules of kinetic energy to a human in case of an impact.
If, however, the drone is lighter than one of the above criteria, but is equipped with a sensor able to capture personal data (e.g. a camera), the drone operator must still be registered. Hence, contrary to the current UK rules, even operators of drones with a MTOM below 250g that have such a sensor or camera on board will have to register.
Operators of drones in the 'specific' and 'certified' categories will also have to be registered. Member States may enable model aircraft clubs and associations to register their members into the registration systems on their behalf.
Upon registration, the operator will receive a unique digital registration number for UAS operators. This registration number shall be established on the basis of standards that support the interoperability of the registration systems and must be displayed on the drone.
Scope of the new rules
Whilst the new rules unify the drone regulation in the European Union, in essence the registration of UAS operators itself remains a national affair. The Implementing Regulation provides that UAS operators shall register themselves in the Member State where they have their residence as a natural person, or where they have their principal place of business in case of a legal person. Further, it is stated that an operator can only be registered in one Member State at any one time.
In addition, the remote pilot who wants to fly a drone that has a MTOM of 250g or more, will at least have to follow an online training and an online test. This condition applies as well to remote pilots who want to fly a drone of less than 250g with an exception if the drone is (i) privately built, (ii) placed on the market before 1 July 2022, or (iii) considered a toy.
Only a drone that falls in the certified category will have to be registered, as operations with such drones are considered to pose a similar safety risk as manned aircraft. In that case the drone or unmanned aircraft will receive a nationality and registration mark that has to be painted on the drone.
These new EU regulations will replace the current legislation in all EU member states on 1 July 2020. However, for some provisions, a transition period is put in place. For example, Member States have until 1 July 2021 to ensure that the information on the geographical zones, including their period of validity, is made publicly available in a common unique digital format. Manufacturers are given a three year transition period to comply with the geo-fencing requirements.
We will watch with interest how the individual Member States implement the new drone regulation and how they will practically organise the registration of operators. It also remains to be seen how the Member States will guarantee compliance with this new set of drone regulation and how infringements will be sanctioned.
Related item: Docu-video - The future of drone regulation