On 12 May 2017 the European Aviation Safety Agency (“EASA“) opened a consultation into sweeping new regulations on the operation of unmanned aircraft systems (“UAS” or drones) in European airspace. Individuals and companies that are interested in the future of UAS operations in the European Union (“EU”) should carefully review the Notice of Proposed Amendment and consider participating in the review process by submitting comments and letting EASA know their views on all aspects of the proposed regulations.

Under the current regulations, EASA only regulates large UAS with a maximum take-off weight of 150kg or more and the regulation of UAS with a maximum take-off weight of less than 150 kg is reserved to Member States. The European Commission and European Parliament are currently trying to extend the EU’s regulatory competences (jurisdiction) to include authority over all UAS weighing more than 250g. EASA’s new proposal will likely spur debate among industry stakeholders over whether this new and innovative technology should be regulated more broadly by EASA or by the individual Member States.

Who is in charge?

EASA, the European Parliament, and the European Commission argue that Member States’ regulation of UAS use is inconsistent and does not provide for adequate rules for cross-border UAS operations.

According to EASA, operators and manufacturers of UAS have “pleaded for a harmonisation” of the rules to allow for the creation of a European “market for UAS“. EASA argues that the current regulatory framework: (i) often creates barriers to entry for businesses in markets that could be made significantly more efficient by the use of UAS; and (ii) requires businesses to comply with a patchwork of different technical requirements in different Member States. Recognizing that a fragmented UAS regulatory system is hampering the development of a single EU market for UAS and cross-border UAS operations, the Notice of Proposed Amendment seeks to harmonise the regulation of UAS with a maximum take-off weight of 25kg throughout the European Economic Area (“EEA”).

It shouldn’t be surprising, therefore, that the Notice of Proposed Amendment was published just a few months after the UK’s Department of Transport launched its own review of domestic drone regulation in the UK and only one month after Germany introduced its new Regulation for the Operation of UAS.

What will the proposed European regulations do?

According to EASA, if enacted, the draft regulation will create a harmonised, proportionate regulatory framework to oversee the use of UAS throughout the EU. Specifically, the proposed regulations seek to mitigate two primary types of UAS risks:

(a) “air risk” (i.e. the risk of a collision between a manned aircraft and a UAS, or collision with another UAS); and

(b) “ground risk” (i.e. the risk of a collision between a UAS and people on the ground or critical infrastructure).

How will the new proposed regulations work?

To regulate UAS operations in a “proportionate” risk-based manner the regulations categorize UAS operations into one of three categories, as set out below. In order to mitigate both “air risk” and “ground risk” (as well as a number of other related concerns EASA has regarding the use of UAS, including privacy risks) in relation to each of those categories the draft regulation proposes the following:

(a) “Open category” – includes UAS with a maximum take-off weight of less than 25kg, flying below 120m and within “visual line of sight” of the pilot. Open category UAS flights will be allowed to operate without prior authorisation from a “competent authority” (a governmental body responsible for the certification and oversight of UAS operations in a Member State). The UAS and UAS operator will be required to conform to certain standards, and the operator will have to be registered with a competent authority.

(b) “Certified category” – includes large or complex UAS that: (i) operate continuously over populated areas, (ii) “beyond visual line of sight” of the pilot, (iii) in congested airspace, or (iv) UAS used for the transport of people, and/or the carriage of dangerous goods. Certified category UAS flights must be authorised by a competent authority, and the remote pilot and operator must be approved by the competent authority. The UAS itself must also conform to certain specified standards.

(c) “Specific category” – includes all other UAS operations that do not fall into the open or certified categories. Specific category UAS flights must be authorised by a competent authority; and the operator of the UAS must be registered with a competent authority. The UAS itself must also conform to certain standards.

In addition to the above, the draft regulation would allow Member States to designate certain airspace as, amongst other things, being restricted to only certain categories of UAS flights (or alternatively as being open to all UAS flights regardless of whether they conform to the standards and regulations set out in the Notice of Proposed Amendment).

What are the next steps for the proposed regulations?

EASA’s public consultation on the proposed regulations and stakeholders’ ability to submit comments on the Notice of Proposed Amendment ends on 12 August 2017. You can comment on the proposals here.

After the consultation ends, we expect that EASA will submit its final proposed regulations to the European Commission, probably around Q4/2017, to be considered and likely adopted as a Commission Implementing regulation pursuant to the EASA ‘Basic Regulation’ 216/2008. EASA currently estimates that the regulations will become effective in 2020.