EU DRONE REGULATIONS FOR DUMMIES

Summary

In the summer of 2019, new EU regulations for using civil drones will be published. From the moment of publication, it will take one year before these new regulations come into effect. The new regulations aim to create a level playing field in Europe and will remove (most) drone operations from the aviation domain in terms of regulation. Current manned aviation regulations are rule-based and have proven to be insufficiently flexible for the rapid changing drone market.

The new regulations are risk-based and divide the operations, whether commercial or recreational, in a low risk category (open category) and a medium risk category (specific category). The high-risk operations will remain in the (manned) aviation domain under the certified category (which is currently not addressed in the new regulations).
The open category places very few demands on the pilot or operator and implies a buy-and-fly approach. Pilot qualification can be as simple as an online exam. The drones themselves will need to have a European approved product certification (CE marking).

A lot of current commercial drone operations will be possible in this open category as long as they do not take place over or near (30m) people. This will imply a heavy influx of companies of all EU member states wanting to use drones as a tool (rather than drone centric service operators). The inspection of wind turbine blades – which usually takes place far from people – is a good example of the type of operation that will be placed in the open class.

All other operations, unless high risk, are performed in the specific category. For this category a risk assessment must be carried out by the operator with associated mitigation measures implemented, and approval requested from their National aviation authority. To ease the burden for operators and aviation authorities, a number of so-called standard scenarios will be created that should cover 90% of all operations. In a standard scenario the mitigation measures are spelled out and the operator has to declare or demonstrate that it is compliant. An example of an operation in the specific class could be aerial mapping over a populated area.

The regulations miss a lot of detail such as the required standard scenarios. These standard scenarios are being developed in most EU countries in the hope and expectation that their version will be adopted by the EU. Unless strict control is exercised and harmonisation between member states is formalised, we are set for a couple of years of regulatory ambiguities, ‘grey’ areas, frustration and further delays.

A strong word of advice to anyone wanting to enter the industry is to obtain permits, privileges and exemptions at a national level before the new EU regulation enters into force. After the summer of 2020 that will no longer be possible and you risk getting stuck in a ‘limbo’ if the new regulations are delayed or not yet properly implemented.

Introduction to EU drone regulations

Whether you are a serious hobbyist or a drone professional you probably have heard that new EU based regulations for drones are on their way. These are expected to be published between May and July of 2019. If you try to read these, you will be quickly submerged in jargon, abbreviations and legal terms such as ‘implementing and delegated acts’.

The title of this article suggests that the readers are dummies and that I am the expert on this matter… This is certainly not the case! The reason for writing this article is mostly that I didn’t understand the regulations myself and needed some clarity. If you see any errors, or something that is not clearly explained please let me know and I will adjust accordingly.

Why are new regulations needed? Well if you have ever tried to apply for a permit to fly a commercial drone in Belgium, as a foreign operator, you will understand that this was (and still is) a bureaucratic nightmare, nor do I envy foreign operators trying to apply for one in the Netherlands.

The aim of the new regulatory framework is to standardise the operational regulations in Europe and create a common market.

For those unfamiliar with the working of the European Institutions (council, parliament and commission) please refer to the separate paragraph at the end of this article for an explanation on this matter but feel free to skip…

This article will not describe the implications for current Dutch licensed operators. Our local drone journalist from Dronewatch has recently published an excellent article on this subject which can be found here(in Dutch).

I use both the term UAS (Unmanned Aircraft System) as well as drone in this article, both of course meaning the same but UAS is the term used in the new EU rules.

The process

Without barely anyone noticing, the responsibility for the operation of civildrones in European airspace below 150 kg MTOM (MaximumTake Off Mass) was transferred from the National aviation authorities to the European commission on the 7^thof December 2018.

Civil drones refer to all drone usage other than by the military, police or emergency services. They therefore range from hobbyists operating a DJI Mavic to cargo delivery. 

EASA (European Union Aviation Safety Agency) has been appointed by the European Parliament to propose to the European Commission the technical expertise to regulate drones below a maximum take-off mass of 150 kg.

The proposed regulations by EASA have been unanimously accepted by the European Commission on the 28^thof February 2019. These regulations are called the Implementing Act and are accompanied by the Delegated Act that was adopted by the European commission on the 12^thof March 2019.

The Implementing Act is currently set out in two documents, the Commission Implementing Regulations and the Annex to the regulations. These set out amongst others the following:

• Different (sub)categories of UAS operations
• Rules, procedures, competency and minimum age for pilots
• Airworthiness requirements for the UAS
• Cross border operations
• Registration of UAS operators
• Tasks and designation of competent authorities

The Delegated Act also comes in two documents, the Commission Delegated Regulation and the Annex to the regulations. The delegated regulations cover amongst others the following:

• CE and operator markings on a UAS.
• Technical requirements per UAS category
• Obligations of manufacturers, importers and distributors of UAS
• Requirements on non-EU country operators
• Remote identification

In short, the real regulations can be found in the Implementing Act.

These acts were sent to the EU parliament and the Council for the mandatory 2 months scrutiny period. If no objections are raised, then both acts will be published before the summer of 2019.

But the Delegated and Implementing Acts do not tell the full story. These are to be accompanied by guidance material. The reason for this being that by describing the exact details at a lower level in the guidance material,  the regulations themselves do not need to be changed when a detail is adjusted. That sounds logical but, as with everything the devil is in the details, and the guidance material is not yet published.  

The big question on everyone’s mind is what this means for me as a drone producer, drone service provider or drone hobbyist and when will we feel the impact? The fact that this regulatory framework has been accepted by the European Commission does not mean that these come into effect immediately.

Now that feels like a contradiction.  On one hand the responsibility for UAV operations below 150 Kg MTOM has already been transferred from National Civil Aviation Authorities to the European Commission. However, the National authorities still have to implement these regulations. This is due to the fact that, although these regulations will be valid for the whole of the EASA airspace, the national authorities still have the authority to determine the details, such as the specific airspace where drones cannot go, or which organisations can train and qualify drone pilots.

Between May and July of 2019, the new regulations will be published. The national CAA’s then have one year to implement these regulations before these come into force in July 2020. Up until that date it is still possible to operate under the current regulations and even apply for a permit/exemption based on these regulations. From July 2020 onward it is still possible to use previously obtained permits and exemptions for a period of two years up to July 2022. From then on it is only the EU regulations that are applicable. 

If you want to make use of the new regulations because they offer more flexibility than the current regulations in your country, you will have to wait until July 2020. Between July 2020 until the end of the transition period in 2022 you will get the best of both worlds.

The Regulations

The new European Regulations will bring changes to whole the drone industry. The main gain is that it creates a European wide structure and uniformity in comparison to the current shattered and incomprehensible regulations that differ in each country. The regulations also give UAV pilots more privileges than in the past.

Local Civil Aviation Authorities still have some say in matters such as designating no fly zones or creating special zones with specific regulations. However, the implementing act prevails over local regulations meaning that individual CAA’s cannot make the rules stricter.

Now what are these proposed regulations all about? The main change is that the new regulations are risk-based. This means that the risks of each type of operation and with different types of drones are evaluated. For example, flying a heavy drone over a populated area carries a far greater risk than flying a little hobby drone in a remote area.  Only the location matters, i.e. where you fly will be relevant but not what you do.

Other main principles in the new regulations are:

• Rules are made at European Level
• Implementation is done at national level
• No differentiation between commercial or recreational use
• Regulations are a mix of product specifications and aviation regulations
• Drones in the open category must be CE certified (with the exception of self-build drones)
• Drones will be partially removed from strict aviation regulations in most countries
• Operators can be natural persons as well as legal entities
• There is no requirement for insuring a drone against molestation and hijacking in the open category (no joke, this is currently mandatory in the Netherlands).

The product specifications for drones have been introduced since technical developments of drones have progressed in such a rapid pace that legislation was no longer able to keep up. At present a new model drone replaces the earlier version at an average rate of 9 months. Compare this to manned aviation where this cycle takes around 7 to 9 years.

Under the new regulations, drone operations in the EU are subdivided into three categories:

1. In the open categoryoperations can take place that are considered low risk and do not require prior authorisation.
2. In the specific categoryoperations take place that considering the risks do require authorisation by a competent authority before the operation takes place. A risk assessment must be carried out and mitigation measures identified unless the operation is very common. In the latter case the risk assessment and mitigation measures have been previously identified and part of a ‘standard scenario’ which is approved by EASA.
3. In the certified categoryoperations take place that considering the risks require a certified drone, a licensed pilot and an organisation approved by a competent authority to ensure an appropriate level of safety.

The current proposed regulations do not cover the certified category.  In this category the drones will have to comply with standard aviation requirements and the operational rules are the same as for manned aviation.

How does one know in which category the operation will take place? The simple answer is that any operation that is not considered as open category automatically falls into the specific category. If even the specific category cannot be applied (for example flying a drone with a MTOM > 25 kg) then these fall in the certified category. 

The ‘where’ question will be addressed by the National Aviation Authorities. A one size fits all approach was not feasible so National Aviation Authorities get to say where drones cannot fly at all, where the open category is not allowed etc.

Interestingly enough, the regulations provide more freedom for the UAS operator in the fact that certain aspects have not been made explicit in the new regulations. For example, most countries in Europe would define VLOS (Visual Line Of Sight) as the distance to which the UAS can be seen but to a maximum of 500 meters. This is also the maximum distance from the pilot that a drone can currently be flown under most European Regulations at present. But this 500-meter limit is not present in the new regulations. If you equip a UAS with good lightening and the UAS can be seen at 1,500 meters distance, then you are free to do so…

The other interesting fact is that the regulations do not address drones as remotely piloted aircraft but as unmanned aircraft. This distinction might sound trivial but in the new regulations an autonomous flight will be permitted as the drone is not remotely piloted (with the exception of subcategory C4 in the open category, which is further explained below). Multiple drones operated by one pilot? No mention yet so the guidance material will hopefully provide more clarification.

Last but not least, if you read between the lines, you will see that the main identified risk factor is flights over – or near – people. Buildings are not addressed, and this offers further opportunities to operate in dense urban areas (at least if you have a way of controlling the people near these buildings).

Open Category

The open category is meant for low risk operations whereby no prior authorisation is required. Depending on the subcategory it can be as simple as ‘Buy and Fly’.

This category caters for all recreational drone users as well as for some commercial drone activities. The Open Category is subdivided into three subcategories that stipulate the use of a specific type of drone, whether the drone is to be registered, needs electronic ID, and the pilot requirements. The table below shows a simplified version of the subcategories.

So, for example, if you want to fly over uninvolved people (not part of your operation) this will mean that you can do so in the Open Category, but only with a drone that weighs less than 900 g. If you want to fly over people with a DJI Matrice 600 (MTOM > 7kg) then this operation would automatically fall into the Specific Category.

Market Product Legislation (better known as CE markings) will be required for all drones operating in the open category and will demonstrate compliance with the technical specifications. The CE marking and the subcategory must be clearly marked on the drone. A certificate of airworthiness is not a requirement for the open category.

However, this CE marking is not mandatory until at least July 2022 and even then, there will most likely be a transition phase whereby drones produced before will not yet have to be CE certified.

The exact details of the pilot training, who should examine them or how to register a drone, are all unclear at present. The following (operational) issues are already clear at the time of writing this article:

• The previous distinction between recreational and professional use of drones is removed.
• The maximum height limit is set at 120 m.
• The safe distance from people is a minimum of 5 metres (if the drone is equipped with a low speed mode, otherwise it’s 30 meters) and equal to the height at which the drone is flown (1:1 rule).
• Minimum age is 16

Specific Category

The ‘specific’ category is for all operations that do not comply with the limits of the ‘open’ category. In this category a risk assessment must be carried out for each and every operation, and mitigation measures must be identified and adopted. The outcome of the risk assessment must be authorised by the CAA of the member state.

To assess risks a standard methodology has been devised by JARUS (Joint Authority for Rulemaking on Unmanned Systems). JARUS is a group of experts from National Civil Aviation Authorities worldwide that make recommendations on technical, operational and safety requirements for the safe integration of drones into the manned airspace. This methodology is called the SORA(Specific Operation Risk Assessment).

The SORA methodology divides the risk of a drone operation into two distinct classes:

1. Air risk: the the risk of a collision between the drone and another airspace user.
2. Ground Risk: the risk of collision of the drone with people, animals or objects on the ground.

For any operation that is not covered by a standard scenario, the operator must conduct the full (SORA) risk assessment and obtain permission from the CAA to go ahead with the operation.

In practise this would imply a huge workload for both the drone operators and the CAA’s. In order to circumvent this workload, the concept of standard scenarios (STS)has been put into place. These standard scenarios describe the most common types of drone operations in conjunction with the risk assessment and the mitigation measures.

Mitigation measures are those actions that you intend to take to either prevent an incident or to limit the consequences. For example, maintaining a UAS would help to prevent a crash and the use of a self-deploying parachute would limit the consequences.

Take for example the inspection of wind turbine blades offshore. Irrespective in which country the operation is carried out, the risks and mitigation measures are going to be very similar if not identical. With the use of a standard scenario the operator can carry out this operation without having to perform the risk assessment every time. The standard scenario describes the mitigation measures, the technical requirements etc and the operator can either declare himself that he will work compliant (declaration) to this scenario or that this needs to be checked by a CAA (authorisation). That choice will be different depending on each standard scenario. If the mitigation measures are easy to implement, then a declaration by the operator is sufficient. If these are more demanding, then an authorisation by a CAA is required.

Now where do these standard scenarios come from? In theory these should be created and/or approved by EASA. At present different and many overlapping standard scenarios are being created in each Member State and subsequently approved by the local CAA. The idea being that an individual STScan then be given to EASA and they would simply adopt these (they wish…).

But this is where it gets messy. Take for example two STS’s that have been created in the Netherlands. One for flying in controlled airspace around an airport and one for flying in dense urban area. These both have a mitigation measure describing that the UAS must have a certificate of airworthiness.  This may sound logical, but outside the Netherlands there are no certificates of airworthiness for an UAS. Simply dropping this requirement/mitigation measure is not an option, so alternative mitigation measures must be implemented.

After July 2020 it is no longer possible for CAA’s to create STS’s applicable to their own country. Those that have been approved prior will remain valid for the next two years until July 2022, unless their expiry was set earlier by the CAA. Sometime in Q4 of 2019 EASA is expected to publish two STS’s.

And here EASA is seriously defaulting at present. Only two STST’s by the end of 2019 is nowhere near enough to implement the regulations by the CAA’s. Furthermore, there is no organised harmonisation between Member States on how to proceed with the creation of STS’s to help EASA. Private initiatives between trade organisations and CAA’s are initiated to achieve at least some harmonisation between member states for the creation of STS’s. The ‘Drone REGIM’ initiative by UVS(Unmanned Vehicle Systems) International is good example of this. UVS is a non-profit organisation promoting the use of remote piloted systems.

So, if a company is in the possession of a permit to fly an STS in a country does that mean that they can do so in all other member states without having to ask permission? The short answer: no. The operator will have to contact the CAA of the country where they want to fly and check if any special local conditions apply. The CAA of the country where the operator wants to fly will then contact the CAA of the country where the operator is registered. The latter will then give the permission.    

The mutual recognition by each Member State is a hot topic and a discussion point. The general EU principle is that an authorisation granted in one country in accordance with EU regulation should be recognised by all Member States. In practise however, each Member State is allowed to make changes to adapt the standard scenarios to the local conditions.

Besides conducting the SORA risk assessment, or using a standard scenario, there is a third way in how an operator can qualify for an operation in the specific category. This is through the process of obtaining the Light UAS Operator Certificate (LUC). A LUC qualified operator is allowed to assess the risks themselves and implement their own mitigation measures. Obtaining the LUC will not be an easy matter and cannot be compared to any existing permit in Europe. The operator will have to demonstrate a full functioning safety management system and a good understanding of the SORA risk assessment. The larger operators in Europe with experience in dealing with oil majors and other heavy industry with high safety standards are probably the best placed at present to quickly obtain a LUC.

Where next and conclusions

The new regulations can be compared to an architect’s drawing of a new house, or better an artist impression. It shows the basic structure and all the dimensions but misses the detailed structural design as well as the nuts and bolts.

In the open category the new regulations are the clearest and can be implemented despite missing details such as the qualification and certification requirements of the pilots. In the specific category a lot – and in my opinion too much – detail is missing and there are currently no standard scenarios.   Here EASA seriously defaults on their responsibility of providing the necessary details to properly implement the regulations and in the harmonisation between the different countries for the creation of standard scenarios.

It is the responsibility of each Member State’s CAA to have the regulations implemented by July 2020. That may seem a long time, but most CAA’s of EU Member States are currently struggling with manpower. We can be quite sure that their attention will be fully focussed on getting the new rules implemented instead of granting permits and exemptions based on the current regulations.  

My advice to those entering into the industryis to apply for a permit under the existing regulations. Do this sooner rather than later. Otherwise you risk being stuck in a limbo between the old and the new. No one knows what delays are to be expected.

Most striking for present operators is the fact that most of their operations for which extensive permits are currently required will fall in the open category under the new regulations. A lot of non-drone centred organisations will enter the market both from your country as well as from the other EU member states. Take the example of onshore wind turbine blade inspections. This will in most cases be far from people and with a drone weighing less than 25 kg. This operation can thus be conducted in the Open Category. This opens the door for companies specialised in a specific field to start using drones as just another tool. This without having to acquire all the aviation knowledge and writing an operational manual which has been a barrier to entry till present. 

Brexit and EU drone regulations

We are talking about EASA controlled airspace and not the airspace of the Member States of the European Union. However, with a Brexit, the United Kingdom will leave the single European Airspace and the EASA drone regulations will therefore not automatically apply. Future negotiations between the EU and the UK will have to resolve this matter and for the time being the current National regulations will apply. Most likely the UK will obtain a similar status as Iceland and Norway, who both have a working arrangement with EASA.

References

1. Civil Drone | EASA-website
2. Implementing the new European drone legislation: what will change? | Luna Vanderispaillie Unifly
3. EU Drone regulation update. |eu
4. Implications of the new EU drone regulations in the Netherlands | Dronewatch

About the author

Pieter Franken is the managing director of Terra Drone Europe, a drone service providing company specialised in survey and inspections. He is one of the founding fathers and chairman of the Dutch trade organisation for certified drone operators (DCRO) and sits on the working and expert groups helping the Dutch Civil Aviation Authorities with the SORA’s and development of Standard Scenarios.

For any comments please email me at: pieter@terra-drone.eu

European Institutions and rule making

All EU member states are sovereign, independent countries but they have pooled their sovereignty on some matters to obtain benefits of size.  At the heart of the EU decision making process are the EU institutions such as the Parliament(voted directly by all citizens), the EU commission(EU government with one member per Member State) and the European Council(heads of state of each country). Generally, the European Commission proposes new laws and the parliament, and the Council adopts these new laws. This means that both Parliament and the Council must agree independently to these new laws, after which the Member States and the implements them. In practise this means that if neither the Council or Parliament object within a two-month time frame, the new EU regulation on drone operations will be published somewhere between May and July 2019. 

Legal Actsof the EU are laws which are adopted by the institutions of the EU and come in various forms.  A regulationis a law that is binding for all Member States. A directiveis a law that binds Member States to achieve a particular objective. A recommendationor opinionhas no binding force.

The new drone regulations are found in the Implementing and the Delegated Act. This is a European invention to simplify the system of rulemaking by separating the ‘legislative’ (Delegated Acts) from its executive aspects (Implementing Acts).

In dummy terms the implementing act is more political and describes the regulation on broader terms and on the ‘how’. The delegated act comes closer to real rule making and describes the ‘what’ of the regulation as laid out in the implementing act. The regulations in the delegated act come directly from the European Commission.