Implementing the new European drone legislation: what will change?

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Unmanned aircraft –drones- is a fast-developing sector of aviation, with great potential for producing new jobs and growth. The term ‘unmanned aircraft’ includes very large aircraft similar in size and complexity to manned aircraft, but also very small consumer electronics aircraft.

Especially smaller drones are increasingly being used in the Europe Union (EU), but under a fragmented regulatory framework. Although national safety rules apply, the rules differ across the EU and several key safeguards are not addressed in a coherent way.

Therefore EASA, the European Aviation Safety Agency, published an opinion earlier this year including a proposal for a new regulatory framework for drone operations. The proposed Regulation will be officially published as soon as it has been adopted by the EU Commission, although it is already available to the stakeholders in its current form.

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Luna Vanderispaillie, Legal Officer of Unifly, explains: “The new European legislation is a great boost for the drone industry. It brings an overarching structure and uniformity to the current fractured legislative landscape. This will help the drone industry reach its potential, as drone professionals and enthusiasts will be able to deploy their drones faster and with less paperwork.

Under the new legislation, drone pilots will enjoy more privileges than they currently have. The member states do have some leeway, as they have the option to create specific zones that deviate from the general rule.

These can be zones where drones cannot fly, for instance in cities, as well as areas where drone traffic is allowed more freedom, such as BVLOS flights. Droneports and airports will likely request these permissions from the authorities.

Most importantly, the European legislation – specifically the implementing rule – prevails over the local rules. The member states cannot make the rules stricter. The basic legislation is valid everywhere, should a member state impose too many restrictions they are liable to be sued as this goes against the practical working of the law.

The new EU legislation comprises two parts, the implementing rule and the delegated act.

Implementing rule

The goal of the implementing rule is to have a more uniform European legislative landscape for drones. As I said, the member states will still have the freedom and flexibility to define drone zones, but on the whole everything will be much clearer and more uniform across Europe. The implementing rule defines which registrations are necessary and what to registrate. It defines more general criteria for open, specific and certified categories.

Generally speaking, the “open category” lines up with the recreation rules as we know them now. This caters to the wishes of the recreation drone pilots, as well as some of the commercial drone pilots. The subcategories A1, A2 and A3 define where you can fly with regards to people, from flying closely to needing to stay far away.

EASA opinion matrix open category
If you want to fly close to and over people, you’ll need a drone from class C0 and C1. These are the only two classes where flights over uninvolved bystanders are allowed. In class C2 you can still fly at a safe distance over uninvolved people.

At its core, the implementing rule is operation centric and focuses on a risk-based approach: defining the risks and the proposed actions, then selecting the drone in function of these parameters. For instance, a low-speed drone can fly closer to people than a faster one.

The open category is the only one where you can fly a drone relatively freely, possibly without needing to register. The drone operators need to register themselves in categories C1, C2, C3 and C4, as well as for the drones that are privately built. The specific and certified categories entail all other actions, from basic drone activity to highly detailed professional use.

Drones in the specific and certified category need to be registered. Every drone that deviates from the standard open category, falls under the specific category. Here drone operators must perform a risk assessment according to the SORA methodology or an alternative accepted by the National Aviation Authorities and propose mitigation measures to operate in this specific category. 

The legal framework also provides the inclusion of standard scenarios, which will allow to avoid the preparing of the rather complex SORA since it involves a pre-established risk assessment and included mitigation measures, for instance for the inspection of buildings, windmills, or BVLOS flights. The goal here is to create more room for commercial operations and to lower the workload on the side of the authorities.

In addition, larger drone operators can ensure their own certification via LUC, the Light Unmanned Aircraft Operator Certificate. If you can demonstrate mitigating measures within the company and apply for the LUC, you will be given permission to approve your own operations. Apart from the commercial standard scenarios, large drone operators who want to service a niche market will be able to approve their own operations with mitigation measures.

The certified category is only mentioned in the proposed amendment, it is not part of the Opinion.

 

The delegated act

The goal of the delegated act is to provide more flexibility for the member states. It describes the technical requirements such as for instance for e-identification and maximum speed.

These are the underlying technological nuts and bolts supporting the legislation. They are formatted in a very generic way to have maximum flexibility in the technical aspects. Rather than describing properties, the delegated act describes the properties something needs to have. For instance, the delegated act mentions that every drone in the open category needs to include an information notice in the packaging, describing the class and the general rules that class needs to adhere to.

Another question is how to calculate 80 joule of kinetic energy upon impact with a person. How do you calculate that? More importantly, how can manufacturers take it into account? All drones will be subject to specific criteria to obtain the CE marking that denotes all equipment approved for use in Europe.

Next steps

The new legislation will be ready by September or October 2018. At that point, member states will have 6 months to adapt to it. The standard scenarios still need to be created. The work in creating these is performed by JARUS WG6, the Joint Authorities for Rulemaking on Unmanned Systems.

An operator or manufacturer can propose scenarios to its member state as alternatives to those published by EASA. The standard scenarios created by the EU will probably be published by the concept of alternative means of compliance (AltMoCs). The practical implication is not clear yet.

You may have noticed the “online training” mentioned under the competence of the pilot. The online training as well as an online test will be done in a manner and format established by the Agency. At the minimum, it will mention something like “check the local rules”, much like we in Belgium have droneguide.be. The question remains how the member states will apply this in practice, something we will only see in March 2019. There will always be wiggle room, as in every piece of legislation. Even though most of the basics are already known, there can still be changes made to it by the Commission and it still needs to be approved.

In conclusion, the European regulation will be an improvement in particular for recreational drone users, but also for commercial operators. Strict current regulations will make place for a more balanced European legal framework.”