Last year, the Commission of the European Union adopted two regulations concerning the operation of drones in the Member States of the European Union. These are, in particular, Regulation 2019/945 of 12 March 2019, on unmanned aircraft systems and on third-country operators of unmanned aircraft systems (hereinafter the “Regulation 2019/945”) and Regulation 2019/947 of 24 May 2019, on the rules and procedures for the operation of unmanned aircraft (hereinafter the “Regulation 2019/947”) which include gradual effectiveness. The first wave of changes will come into effect as of 1 July 2020, when, inter alia, the division of drones into categories according to the type of operation and, for majority of unmanned systems mandatory registration, will apply. The second wave of changes will come into effect as of 1 July 2021, when individual Member States will define the geographical zones for unmanned systems.
Regulation 2019/947 lays down detailed rules for the operation of unmanned systems as well as for personnel, including remote control pilots and organizations involved in such operation.
Regulation 2019/945 then lays down requirements for the design and manufacture of unmanned aircraft systems (UAS) intended to be operated under the rules and conditions defined by Regulation 2019/947 and of remote identification add-ons. It also defines the type of UAS whose design, production and maintenance shall be subject to certification. It also establishes rules on making UAS intended for use in the ‘open’ category and remote identification add-ons available on the market and on their free movement in the EU. Regulation 2019/945 also lays down rules for third-country UAS operators, when they conduct a UAS operation pursuant to Regulation 2019/947 within the single European sky airspace.
Reasons for introducing legislation for unmanned systems
The technological development of drones is moving by leaps and bounds, when their possibilities for both use and misuse are constantly shifting. As in the case of air transport, operators of drones, including remote pilots, should be subject to uniform application of and compliance with the rules and procedures for the operation of those drones.
In addition to the harmonization of currently differing national regulations, the main reasons for introducing uniform legislation across the EU Member States are related to the protection of safety of people on the ground and other airspace users, property, but also privacy and personal data protection, security and environmental protection arising from the operation of these unmanned systems.
Category by the type of operation
The operating conditions for drones are adjusted according to the category to which the drone belongs. The legislation distinguishes between three categories: (i) “open”, (ii) “specific” and (iii) “certified”, which are further defined in Regulation 2019/947.
- The open category includes unmanned systems designed primarily for general public with a maximum take-off weight of up to 25 kg.
- The specific category then includes unmanned systems that could be used in business activities, and which is primarily intended for drones for commercial use.
- Drones from the certified category, which consist of drones whose operation carries the most risks, could also be used marginally for business activities. The certified category thus includes unmanned systems intended for the transport of persons or for the transport of dangerous goods or whose size exceeds 3 meters, and which are designed for operation over assemblies of people.
For business activities – specified and certified category?
Before the unmanned system of the specific category is put into operation, the operator of the unmanned system must obtain an authorisation from the competent national authority of the Member State.
The competent authority shall grant the authorisation if the risk assessment concludes that:
- operational safety objectives are taking into account operational risks;
- the combination of mitigating measures relating to the operating conditions for the operation, the competence of the personnel involved and the technical characteristics of the drone is adequate and robust enough to maintain safe operation taking into account the identified risks on the ground and in the air;
- the operator of unmanned system has provided a statement confirming that the intended operation complies with applicable EU and national rules, in particular with regards to privacy, data protection, liability, insurance, security and environmental protection.
It can be assumed that the operator will not be the pilot of the operated drone in all cases, so the operator must designate a remote pilot who must meet certain conditions in order to control the drone and whose compliance must be ensured by the operator. During the flight, the remote pilot must act in accordance with safe flight conditions, which include prevention of collision risk, observe restrictions in geographical areas, follow operator’s procedures and not to fly in or near rescue areas. The minimum age for remote control pilots operating unmanned systems in a “specific” category is 16 years.
Introduction of compulsory registration
The new registration obligation will apply as of 1 July 2020 to unmanned system operators whose operation poses risks to privacy, personal data protection, security or the environment, and which may transmit kinetic energy higher than 80 joules on persons in the event of collision. Considering the risks to privacy and protection of personal data, operators of unmanned aircraft should be registered if they operate an unmanned aircraft which is equipped with a sensor able to capture personal data.
Unmanned system operators, in the case of natural persons, shall be registered in the Member State in which they reside or, in the case of legal persons, in which they have its registered office. The unmanned system operator cannot be registered in more than one Member State at a time. Registration is therefore only required in one Member State and the operator will receive a unique digital registration number allowing his identification, which can be applied in another Member State. For registration of unmanned system operators, it will be necessary to provide identification data, insurance contract, declaration of competence of persons involved in the operation, authorizations, and certificates of drone operators. To register unmanned systems, it will be necessary to provide the manufacturer’s identification data, the designation of the unmanned system assigned by the manufacturer and the serial number of the unmanned system.
Member States are now obliged to entrust one or more authorities with the task of carrying out the relevant control activities, including the administration of the registration. In the Czech Republic, the division of powers can be expected between the Civil Aviation Authority and Air Navigation Services.
Air Navigation Services in the Czech Republic is already operating the Fly Responsibly website, which aims to “acquaint not only drone pilots but also the general public with the regulations and principles of safe flying, prevent flying in restricted areas, prevent possible injuries or property damage and expand general public knowledge about safe operation of drones in the Czech Republic.”
Defining the geographical zones for unmanned systems
Regulation 2019/947 also lays down operating conditions in geographical zones for unmanned systems. This is the first step in putting the U-space system into operation, which we discuss briefly below.
When defining UAS geographical zones, Member States may for safety, security, privacy, or environmental reasons:
- prohibit certain or all UAS operations, request particular conditions for certain or all UAS operations or request a prior operational authorisation for certain or all UAS operations;
- subject UAS operations to specified environmental standards;
- allow access to certain UAS classes only
- allow access only to UAS equipped with certain technical features, in particular remote identification systems or geo-awareness systems. When Member States define UAS geographical zones, for geo awareness purposes, they shall ensure that the information on the UAS geographical zones, including their period of validity, is made publicly available in a common unique digital format.
The “U-space” system, comprising of infrastructure, services and procedures to ensure safe operation of unmanned systems and supporting their integration into the aviation system, is also still in development, however Regulation 2019/947 already contains essential requirements for the implementation of the three pillars of the U-space system, namely registration, geo-awareness and remote identification, which will need to be further completed.
The aim of the U-space system is a massive deployment of drones, the goal of which should be the transport of parcels or mail and persons by 2030. The introduction of U-space is currently planned under four phases starting with manual beginnings to a fully automated system of registration and management of drone operation in day-to-day operation.
Technological progress brings technologies, in this particular case in the form of drones, that could streamline and simplify business activities. However, the above-mentioned regulations currently regulate in particular the procedural system for the introduction of compulsory registration of drones.
Legal coverage and institutional security of the operation of drones in business activities is therefore at the starting line for the time being, however, it must be taken into account together with its implications for practice.
Provided that the legal regulation of flying with drones would interest you or directly concern you, do not hesitate to contact us with trust.
Tereza Pšenčíková, LL.B., LL.M., lawyer – firstname.lastname@example.org
Mgr. Jakub Málek, partner – email@example.com
29. 06. 2020