Andreas Fankhauser June 24 2020 EU drone regulations will apply in Switzerland bellpark legal ag | Aviation - Switzerland Andreas Fankhauser Aviation IntroductionSwiss positionIntroductionIn 2019 the European Union issued a package of regulations relating to the use of drones. The package consisted of two interlinked regulations:the EU Commission Implementing Regulation (2019/947) on the procedures and rules for the operation of unmanned aircraft; andthe EU Commission Delegated Regulation 2019/945 on unmanned aircraft and on third-country operators of unmanned aircraft systems.Both regulations entered into force on 1 July 2019, but the EU Commission Implementing Regulation was set to become applicable for drone operators one year later. As a result of the COVID-19 pandemic, the EU Commission further postponed the application of the implementing regulation by six months until 1 January 2021.Swiss positionAlthough Switzerland is not a member of the European Union, both the EU Commission Implementing Regulation and the EU Commission Delegated Regulation will be adopted into Swiss law. Following suit with the EU Commission, Switzerland will apply the implementing regulation from 1 January 2021. Only then will the regulation have immediate effect on how drones are operated in the European Union and Switzerland. The current Swiss regime on the operation of drones will remain in force until the end of 2020.The EU Commission Delegated Regulation primarily affects drone manufacturers, importers and retailers. It will apply in Switzerland from 1 July 2020.The EU drone regulations rely on the following basic concepts:Operation centric – the focus is on the type of operation being conducted, rather than on who is conducting it or why it is being done.Risk based – the emphasis is on the risk that the operation presents and so more effort or proof is required where the risk is greater. One consequence of this is that there is no longer a requirement to hold an authorisation purely on the basis that a drone is flown for commercial purposes. It is the risk of the operation that determines whether an authorisation is necessary.Performance based – the requirements are aimed at identifying the required capabilities or performance levels for a particular type of operation, rather than creating a set of all-encompassing prescriptive rules.In line with these basic concepts, the regulations provide for three categories of drone operation, depending on the risks posed thereby:The open category covers operations that present a low risk to third parties and are subject to no further authorisation requirements. This category is further divided down into subcategories, to allow for different types of operation without the need for an authorisation.The specific category deals with operations that pose greater risks than those of the open category and requires an authorisation from the civil aviation authority based on a safety-risk assessment.The certified category concerns operations that present an equivalent risk to that of manned aviation and so will be subjected to a similar regime, including the certification of the aircraft and operator and the licensing of the pilot.Most small drones, especially those piloted by hobbyists, will be required to comply with the procedures and rules of the open category. The main changes to and additional rules under the current Swiss regime are as follows:Online training and test – the EU drone regulations require most remote pilots operating in the open category to complete an online training course and successfully complete an online theoretical knowledge examination before they can fly. There is no requirement to undertake any practical flight test. While the current Swiss regime provides for no mandatory training courses and knowledge tests, many drone pilots complete courses and acquire certificates on a voluntary basis. However, the Swiss Federal Office of Civil Aviation (FOCA) will not recognise those courses and certificates when they switch over to the new EU regime.Minimum age – the EU drone regulations set a minimum age of 16 for remote pilots operating in the open category, but some exceptions apply. EU member states can lower the minimum age to 12, which Switzerland will do. According to the FOCA, younger children may fly a drone under supervision of a person who meets all of the requirements of a remote pilot and is at least 16 years old.Flights in the open category are limited by the following factors:the drone's weight must be less than 25kg;the remote pilot must not fly the drone further than 120 metres from the ground; andthe remote pilot must maintain a direct visual line of sight (ie, they must be able to determine the flight attitude and direction of the drone at any time). The FOCA is not opposed to flying drones in first-person view mode (ie, a remote pilot with goggles and an observer standing next to them with the drone in visual line of sight).For further information on this topic please contact Andreas Fankhauser at Proton Legal LLC by telephone (+41 44 214 69 97) or email ([email protected]). The Proton Legal LLC website can be accessed at www.proton-legal.com.