Drones are unmanned aircraft systems operated remotely. Initially drones were intended mainly for military purposes but their civil deployment is rising. Drones are increasingly being used commercially, including for transportation, monitoring, aerial mapping, farming and scientific research. To achieve their purpose, drones are installed with cameras, sensors and GPS, having the ability to move around and record images.

Drones remain largely unregulated at EU level. Remotely piloted aircraft weighing more than 150 kilos fall within the remit of the European Aviation Safety Agency (EASA).

Those falling under that threshold are governed by national rules adopted by the EU member states. This has led to the development of fragmented regulations in several EU member states, including Germany, France, Italy and the UK. The conditions for the operation of drones and related safety issues vary between EU member states. For instance, in France, authorisation is required to fly a drone over the city of Paris. In the UK, drones weighing more than 20kg are treated in the same manner as manned aircraft, while in Germany drones are limited by weight.

This piecemeal framework inhibits the overall growth of the drone market in the EU. This was recognised by the European Commission in 2014, in a communication it had issued to the European Parliament and the council.

While underlining the social and economic benefits of drone usage, the EU Commission had noted the absence of an adequate regulatory framework in most EU member states and the fragmented regulatory framework in those EU member states that had effectively implemented legislation governing drones.

The lack of growth of the drone market in the EU, however, is not the only concern created by the lack of regulation of drones. There are overriding safety concerns that make drone regulation even more important. The reported incidents of drones flying too close to passenger aircraft have raised alarms in air safety.

The move towards harmonising regulation of drone usage at EU level has kicked off

Various quarters have expressed their unease over drone usage in view of its potential to undermine privacy. The European Data Protection Supervisor highlighted that drones have the potential of interfering with the rights to private and family life and to data protection, as guaranteed in the Council of Europe Convention on Human Rights and the Charter of Fundamental Rights of the EU. The interference arises from the fact that drones have the potential of capturing recognisable images of individuals by video or photograph.

The challenge for regulators is to minimise safety risks and privacy concerns, while allowing the market in drones to grow.

In light of the lack of a regulatory framework, the EASA has produced a prototype regulation on unmanned aircraft operations at a European level. Although it does not constitute a formal commitment of the EU Commission, this proposal represents the views of the EU agency responsible for EU aviation safety and provides groundwork for a future European regulatory regime for unmanned aircraft systems. The proposed regulation is intended to create a common European framework for operating drones regardless of weight.

The prototype follows a risk-based approach and proposes to impose various regulatory obligations on drone users depending on the nature of operation involved. It splits operations into three: open, specific and certified operations. The first two are categorised as low-risk operations and are subject to less stringent requirements or none at all. In the case of high-risk operations, drones must be certified, the remote pilot must be licensed and the operator approved by the competent authority.

In parallel, the EU Commission adopted a proposal to regulate drones in a bid to enhance European safety rules. It proposes to extend the applicability of the current civil aviation regulation to drones of all sizes, including drones below the 150kg threshold.

The plan is for these regulations to be streamlined and finalised during the course of this year. The move towards harmonising regulation of drone usage at EU level has kicked off.

jgrech@demarcoassociates.com

Dr Josette Grech is adviser on EU law at Guido de Marco & Associates.

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