THE DOCKET

THE SKY IS NOT

With a new EU regulation in
play, expect to see more

THE ONLY LIMIT

drones in European skies.
Giulia Mauri explains

O
n July 4, 2018, the European
Union adopted a new regulation
(Regulation (EU) 2018/1139)
that repeals EASA’s Basic Regulation
and introduces a New Basic
Regulation. Regulation 1139 is the
first step towards a European legal
framework for unmanned aircraft sys-
tems (UAS), better known as
‘drones’, which includes remotely
piloted aircraft (RPA). According to
EASA, this New Basic Regulation,
together with its implementing mea-
sures expected to be adopted by year-
end, is expected to increase the level
of safety of UAS operations, harmo-
nize legislation among European
Member States and create an EU
market that will reduce the cost of
UAS and allow cross-border opera-
tions.
Coming into force on September 11th
of this year, the new regulation is one
of the measures that the European
Union is taking – and has been taking
– to promote the development of a
European drone industry. According
to the Commission, the European
drone sector is expected to directly
employ more than 100,000 people and

96 - BART: OCTOBER - NOVEMBER - 2018

have an economic impact exceeding
EUR 10 billion euros per year, mainly
in services.
Since the Riga Declaration of March
2015, the aviation community has
established five main principles to
guide the development of a regulato-
ry framework for drones in Europe: i)
Drones need to be treated as new
types of aircraft with proportionate
rules based on the risk of each opera-
tion; ii) EU rules for the safe provi-
sion of drone services need to be
developed; iii) Technologies and stan-
dards need to be developed for the
full integration of drones in the
European airspace; iv) Public accep-
tance is key to the growth of drone
services; and v) The operator of a
drone is responsible for its use. In
2017, the Warsaw Declaration, adopt-
ed by the main stakeholders in the
drone and aviation industry, called for
the five principles enshrined in the
Riga Declaration to be implemented
on the basis of European actions
aimed at creating a “EU drone ecosys-
tem” by 2019. The Warsaw declara-
tion also highlighted the need to reg-
ulate the access of drones to the air-
space.
Meeting Industry Demands
The New Basic Regulation is the lat-
est (but certainly not the last) step in
the direction of harmonizing drone-
related rules at the European level
and creating the “EU drone ecosys-
tem” envisaged under the Riga and
Warsaw declarations.
One of the main demands of the
drone community has always been
that the European market should be
harmonized so that training, certifi-
cates and licenses obtained in one
Member State remain valid in others
and allow companies to develop truly
European businesses with cross-bor-
der operations. However, only large
civilian drones starting from 150 kilo-
grams and up currently fall under the
monitoring powers of EASA. The
smaller models are largely unregulat-
ed at the European level and there-
fore remain subject to the regulation
of the individual Member States.
Although the national legislation of
most states contains a distinction
between different categories of
drones (according to weight/flight
reach/usage), and in most Member
States there is the obligation to obtain
a special permit or authorization
and/or to have the drone registered,
the legislation on drones differs from
State to State. Operators therefore
must obtain a separate authorization
for every Member State if they want
to set up operations that involve
cross-border activities.
Regulation 2018/1139 answers
these requests emanating from the
industry and it is the first step in har-
monizing the European market. It
also helps create a level playing field
that would allow the drone industry to
develop to its full potential in Europe
and be able to compete with drone
industries currently being developed
in the US and Asia.
A Revolutionary Approach
Under the New Basic Regulation,
EASA’s competences have been
extended to include drones and urban
air mobility. The New Basic
Regulation also enlarges EASA’s role
in such areas as environmental pro-
tection, research and development
and international cooperation. EASA
also receives a coordinating role in
cybersecurity as it relates to aviation.
As a follow-up and implementation
of the New Basic Regulation, EASA
has already submitted proposals for
two additional regulations concerning
drones to the Commission. The
implementing regulations proposed
by EASA in this field bring an innova-
tive way of regulating. The proposed
regulations are, in the words of
EASA, “operatic-centric, performance-
based, proportionate and risk-based”.
This approach is revolutionary.
EASA and the EU are not determin-
ing the type of applicable regulation
on the basis of the relevant object, but
on the basis of each object’s use.
After all, flying a drone over a crowed
city versus over the countryside or
the sea does not entail the same level
of risks.
When finalized and adopted, the
new regulations will introduce three
categories of operations, classified
according to the level of risks
involved in any such operation: open,
specific and certified. Each category
is subject to different rules. Low-risk
operations are considered ‘open’. For
such operations, no authorization or
declaration is needed by the UAS
operator. However, the operation is
subject to strict limitations, and the
operations must be conducted in visu-
al line of sight. This means the UAS
pilot must keep visual contact with
the drone at all times. In addition to
this, the drone must fly at a level fixed
at below 120m of altitude and it must
be compliant with the technical
requirements defined in the applica-
ble regulation.
From a practical point of view, if
you buy a drone, you will need to
register it online (unless you buy a
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THE DOCKET
very small drone that is below 250g).
The registration should then be
physically displayed and uploaded
on your drone. You will also need to
follow an online training that
explains the dos and don’ts of your
drone’s operation. Once you have
completed these formalities, you will
be able to fly your drone; however,
as indicated above, within the 120m
of altitude and away from restricted
areas.
‘Specific’ operations are ‘medium-
risk’ operations. Operations involv-
ing drones weighing more than 25
kg and/or operated beyond visual
line of sight fall into this category.
UAS operators active in these types
of operations are required to con-
duct a risk assessment using a stan-
dardized method (called SORA)
elaborated by EASA and define, on
the basis of such assessment, the
mitigating measures that they pro-
pose to take. On this basis, UAS
operators must obtain an authoriza-
tion from the competent national avi-
ation authority before starting opera-
tions. The authorization issued by
the NAA will identify the authorized
operation, as well as any applicable
limitation or mitigating measure.
Finally, ‘certified operations’ are
operations that are considered ‘high-
risk’. They include, for example,
operations of large drones in an air-
space subject to air traffic control.
For these drones and pilots, civil avi-
ation rules apply similarly to the
rules applicable to ‘manned aviation’.
Pilots of drones involved in certified
operations must be licensed, the rel-
evant UAS operator must be certi-
fied and the drone itself must be cer-
tified for airworthiness’ purposes.
Safety oversight on these types of
98 - BART: OCTOBER - NOVEMBER - 2018
operations will be carried out by the
competent national civil aviation
authority.
In addition to introducing these dif-
ferent categories of drones and
bringing most drones under the reg-
ulatory powers of the European
Union, the new regulations will also
bring some necessary flexibility. For
example, Member States will be able
to identify the zones of their territo-
ry that are accessible to drones and
restrict or relax national rules con-
cerning access to certain national
airspace zones. By introducing this
flexibility, the new regulations take
into account national specificities
and allows Member States to
address them as they see fit.
Welcomed News
The New Basic Regulation, as well
as its implications, has been wel-
comed by the industry. Mrs. Paula
Iwaniuk of Drone Manufacturers
Alliance Europe declared that: “the
main objective of the Basic
Regulation is to establish and main-
tain a high uniform level of aviation
safety in Europe.” She notes that
this update of the Basic Regulation
empowers the EU to regulate civil
drones. “The rules will help EU resi-
dents, businesses and governments
while maintaining the admirable
safety record of drone technology,”
she says.
I would add to this that, as it often
happens, technology evolves faster
than law. The European legislator
has tried to fill the gap that, for
many years, has existed between
drone technology and drone legisla-
tion and regulation. It is positive to
note that the New Basic Regulation,
as well as the relevant implementing
measures, have been prepared so as
to be flexible and adaptable to new
technological developments. EASA’s
legislation, based on a flexible per-
formance-driven approach, could be
used as a model for regulating sec-
tors of the industry where techno-
logical developments soon make
purely prescriptive legal measures
obsolete.
✈
Giulia has more than 20 years’ experi-
ence in advising national and inter-
national clients on all aspects of avia-
tion and transport related transac-
tions, including asset-finance and
leasing, regulatory issues, carrier’s
liability and litigation matters. Giulia
also acts as a mediator and she is the
co-founder of Mediation4Aviation, a
mediation platform dedicated to the
aviation industry. Giulia co-chairs
the European and Legal Affairs
Committee of the European Business
Aviation Association and is an active
member of the Industry Affairs Group
of the European Regions Airline
Association.