European skies are ready for drones. Are you?

In a previous blogpost, we announced that the European authorities were in the process of developing EU-wide rules and procedures for operating civil drones. Recently, these rules were adopted in their definitive form and will enter into force on 1 June 2020. The new drone rules are integrated in both an Implementing Act, containing the requirements related to the operation and registration of drones, and a Delegated Act, listing the requirements for CE marking, technical requirements, drone maintenance and third-country operators.

These extensive rules provide a welcome development for any actor active in the drone industry. This is especially so in Belgium as the current legal framework for drones, set out in the Royal Decree of 16 April 2016, rather restricts than facilitates drone use, which halts the development of the Belgian drone industry. Moreover, uniform EU rules will also end today’s unworkable situation, in which different rules apply from country-to-country and make it nearly impossible to operate drone flights between multiple EU countries.

Operator registration replaces drone registration

Currently, drone owners are obliged to register a drone with the competent authorities. This will change. The new rules put in place a system of operators’ registration for each drone weighing more than 250 grams. An operator can be a physical person or a company using the drone. The operators’ registration will allow easier identification for liability issues.

The flight risk determines the applicable rules

The most important change brought by the Drone Package is the categorisation of drones into three different categories: the open, certified and specific categories. The new rules thus end any distinction between recreational drone pilots and professional drone use, which  is currently the case in Belgium.

The categorisation of the drone will be based on the risk involved when operating the drone. The risk level will depend on several parameters, which include: the height of the flight, whether the drone operator keeps the drone in continuous visual contact when flying the drone, and whether the drone flies in the proximity of people.

The open category: low risk flights

Flying a drone under 25kg will be possible without prior authorisation from the competent authorities and/or operator’s declaration provided that:

• the drone does not fly higher than 120 metres
• the pilot is able to maintain continuous visual contact with the drone
• the drone does not carry dangerous goods or is not used to drop material
• the drone does not fly over assembliess of people, which is defined as “gatherings where persons are unable to move away due to the density of the people present” (think about festivals, demonstrations, etc.)

While an “open category” drone cannot fly over assemblies of people, this does not mean that it is not allowed to fly over people at all. In this respect, the Implementing Act provides specific rules depending on whether the drone flies over people, near people or far from people (class A₁-A₃). Additionally, the Delegated Act provides additional subcategories subject to specific rules depending on the weight of the drone and the kinetic energy that the drone may transfer upon impact with a human (class C₀-C₄). For example, every drone weighing more than 250 grams, is obliged to have an electronic ID and a geo-awareness system, meaning that the drone needs to be able to read a map and can warn it’s operator when entering a no fly zone.

It might be complex to categorise your drone within a specific A and/or C class. An overview table will make that easier. The correct classification is important as this will also determine the type of training the operator will need before being able to fly the drone.

The new rules provide new opportunities, especially in this open category, as the operator of such a drone will only need to go through a rather succinct online test before being able to fly a drone up to 120 metres in height. Several operations that now require particular licences will fall under the open category.

The certified category: high risks

When a drone transports dangerous goods or even people, such an operation will fall within the certified category. It concerns air taxi services or even international freight transport. It is clear that this category will be subject to a strict set of rules that are very similar to the rules applying to traditional aircraft.

Operating drones for those specific purposes always: requires the authorisation of the competent national authorities, will involve an extensive risk-assessment, and such a drone may only be flown by a certified operator.

The specific category: every use of a drone not in the open or specific category

Every drone flight not covered by the open or certified category, will be subject to the rules of the specific category. For example, this could involve drones flying higher than 120 metres or flights for which the operator is not able to maintain visual contact with the drone, but that are not transporting people or dangerous goods. The specific category allows the transport of non-dangerous goods. Parcel deliveries by drone will fall within this category.

Depending on the intended operation, drones in the specific categories will need:

• an authorisation from the competent authority based on a Specific Operational Risk Assessment. Such a risk assessment takes into account potential injuries to third parties both on the ground and in the air and damage to critical infrastructure;
• a declaration by the drone operator in the so-called ‘standard scenario’ (for which Guidelines are expected from EASA), which is followed by a confirmation of receipt by the competent authority before the flight takes places;
• a ‘light’ version of the operator’s certificate granted by the competent authority, which involves self-authorisation.

The age limit for flying a drone within the specific category is set at 16 years old, but member states may lower that age to 14. However, a drone operator will need to show a minimum pilot competency, such as the ability to apply operational procedures and use aeronautical communication.

Current authorisations granted to drone operators, operators’ certificates and declarations issued on the basis of national law, will remain valid until 30 June 2021. By 1 July 2021, Member States will convert such authorisations in accordance with the new rules.

Conclusion

The new regulations mark the birth of a far-reaching European legal framework and will allow EU-wide drone operations under a uniform set of rules. However, the uniformisation of the European rules do not mean that the Member States are entirely left out of the discussion. Member states will be able to prohibit certain drone operations, require additional authorisation conditions, limit the access to certain classes only, determine no-fly zones, etc. It will be interesting to see how the Belgian legislative bodies will cope with the new European rules as it means a complete turnaround from the legislation that applies today. It may only be hoped that Member States will not overcomplicate the matter and allow the massive economic and environmental potential of drone use to flourish.