EU drone regulations
Swiss parliamentary motion
Switzerland is home to an advanced ecosystem for drones. According to a recent report by the Drone Industry Association Switzerland, Swiss drone companies are expected to increase their revenues from 521 million Swiss francs in 2021 to 879 million Swiss francs in 2026. The industry, which is mostly clustered around the two universities ETH Zurich and EPFL Lausanne, has created about 3,000 jobs. The report points out that Switzerland ranks globally as number one in market size per capita.
The Swiss drone industry requires a modern legal framework to keep at the forefront of this key future technology.
At the European level, a uniform regulatory framework for civil drones entered into force on 31 December 2020. The framework primarily consists of two interlinked regulations:
- the Delegated Regulation (EU) 2019/945 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems; and
- the Implementing Regulation (EU) 2019/947 on the operation of unmanned aircraft.
Although Switzerland is not a member of the European Union, it has adopted, since 2002, most of the European Union's aviation laws through the EU-Switzerland Air Transport Agreement. The Swiss government had planned to adopt the two EU drone regulations on that basis. However, this process has stalled for the time being.
The EU drone regulations would have introduced new rules and procedures for drone manufacturers and operators in a number of areas. The regulations would also have affected traditional model aircraft flights. The Swiss aeromodeller community voiced harsh criticism that the regulations pose a threat to their decades-old hobby.
A parliamentary motion was therefore submitted, requesting to exclude the issue of model aircraft from the adoption of EU Regulation 2019/947 and leave it under national law. While the Federal Council advised the rejection of the motion, both chambers of the Swiss Parliament approved it.
As a result, the EU drone regulations did not enter into legal force in Switzerland on 31 December 2020, as was the case in the EU member states. For the time being, national law continues to apply to civil drones and model aircraft flying in Switzerland.
Parliament did not pay much regard to the fact that Switzerland cannot unilaterally decide under the bilateral agreement which provisions of an EU regulation it wishes to adopt and which it does not. The partial adoption of an EU regulation requires the consent of both parties. The Federal Council has been tasked to persuade the European Commission to achieve the exclusion of model aircraft from the scope of the regulations if Switzerland adopts them, but this is unrealistic and will likely end in an impasse.
At the same time, the Swiss Federal Office of Civil Aviation (FOCA) consulted with stakeholders in the Swiss drone ecosystem. The result was a mixed bag of opinions on the effects of the provisional non-adoption of the EU drone regulations in Switzerland.
The Swiss Parliament will probably have to deliberate and decide again whether to adopt the EU drone regulations in full, including their provisions on model aircraft. The parliamentary majority will hopefully decide in favour of their adoption. The following arguments, some of which were advanced during the stakeholder consultation, support this position.
First, the EU drone regulations introduce only minor and manageable constraints on model aircraft hobbyists. In fact, the regulation provides for a far-reaching exemption for members of model aircraft clubs or associations. Upon request by a club or association, the FOCA may issue an authorisation for all members to fly model aircraft in accordance with conditions and limitations that are tailored to the specific situation of the club or association. On that basis, the FOCA may allow flights exceeding normal mass and height limitations. Electronic registration is required, regardless of club or association membership, but this is quickly and easily done.
Second, as a member of the European Aviation Safety Agency (EASA), Switzerland can play an effective role in shaping aviation laws at the European level. The FOCA was actively involved in the drafting process of the EU drone regulations. The risk-based approach to the authorisation of complex drone operations (ie, the specific operation risk assessment), which was largely developed in Switzerland, was included in the regulations. The FOCA was also able to alleviate requirements for model aircraft in the EASA's original draft regulation. On the other hand, pursuing an isolated path would lower Switzerland's impact and influence on future European aviation and drone laws. The non-adoption of the EU drone regulations would also reduce the influence that Swiss drone manufacturers and operators have on the future regulations and standards that will govern their industry.
Third, the EU drone regulations are the basis of a modern legal framework, which will provide the Swiss drone industry with full market access in the EU. The current Swiss laws are unable to do so. While the European harmonisation of the rules may bring more complexity for individual companies in some areas, this is outweighed by the opportunity to seamlessly expand businesses and activities throughout Europe. On the other hand, the non-adoption of the EU drone regulations would result in two different (and potentially conflicting) legal frameworks running in parallel. Businesses would be facing additional workloads and cumbersome authorisation procedures for the cross-border use of drones.
Fourth, the EU drone regulations lay an initial foundation for the unmanned traffic management system, or "U-Space", which aims to develop highly automated drone operations, including urban air mobility. In April 2021, the EU Commission published a U-Space regulatory package. Switzerland is clearly committed to advancing the research, development and implementation of U-Space, but it is difficult to see how this will play out without subscribing to the European drone framework.
For further information on this topic please contact Andreas Fankhauser at bellpark legal ag by telephone (+41 43 204 0090) or email ([email protected]). The bellpark legal ag website can be accessed at bellparklegal.com.