Unmanned aircraft systems ('UAS'), that are also referred to as drones, consist of an area within the aviation sector that is constantly growing and is posed to generate significant economic growth and social benefits.
The term “UAS” includes a wide variety of aircraft, from very large aircraft similar in size and complexity to manned aircraft to small consumer aircraft. In the context of the European Union ('EU') the use of these smaller drones is sensibly increasing. For this reason, unlike in the previous years, the European authorities considered appropriate to develop a common regulation for this sector that encompasses not only the large drones but also the small ones.
To that end, in September 2018, with the entry into force of the Regulation (EU) No. 1139/2018 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, this entire field will be now governed by uniform rules intended to harmonise the legal framework within the EU regardless the weight of the drones but paying more attention in their inherent risks.
This has resulted in a significant change given that before this, there was a dual regulation. On the one hand, the previous Regulation (EC) No 216/2008 –the so-called 'Basic Regulation'–, on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, only provided regulation to those drones with an operating mass over 150 kg and expressly excluded certain types of drones either for their activity or their weight, i.e. those UAVs with an operating mass of no more than 150kg. Thus, on the other hand, the competence of these excluded drones fell over the different Member States of the EU causing a fragmented legal framework within Europe.
The new European Basic Regulation (1139/2018)
As anticipated, last 22nd August it was published in the Official Journal if the European Union ('OJEU') the new Regulation (EU) No. 1139/2018 ('the new Basic Regulation') and went into force on 11 September 2018. This new ruling repeals the Regulation (EU) No. 216/2008 and the Regulation (EU) No. 552/2004.
The European Union by implementing the new Basic Regulation will regulate civil drones of all sizes and weights. The reason behind this comprehensive regulation is represented by the observation that unmanned aircraft already share the same airspace with the manned aviation, regardless their operative weight.
In addition to the above, the text also encompasses matters such as the design, manufacturing and maintenance of the UAV, the operational activities and the process of registration of the operators.
This new Regulation pays special attention to the risks that may represent each operation rather than the weight of the vehicle. As mentioned, this has involved a sensible variation in the European regulation.
Besides, the new Regulation might be construed, at this moment, as a "law of minimums", on which certain areas have to be developed over the years by the competent European bodies such as the European Commission and the European Aviation Safety Agency ('EASA') in accordance with the terms of its transitional provisions established in Art. 140.
Least but no last, this new Basic Regulation shall allow the EU to increase the level of safety of drones operations, to harmonise legislation among the EU Member States, and to create an EU market that will reduce the costs of unmanned aircraft and allow cross-border operations.
Previous European Regulation: competence of national laws
As previously mentioned, before September 2018, the regulation of those drones excluded by the Regulation (EC) 216/2008 (those of an operating mass of no more than 150 kg) fell over the different Member States.
As a result of this, Spanish authorities developed several rules intended to regulate the Remote Piloted Aircraft ('RPA')–which may be considered as a sub-category of the UAS– such as the temporary Act 18/2014 and the Royal Decree 552/2014. Finally, in December 2017, the Royal Decree 1036/2017 ('RD 1036/2017') entered into force and included provisions regarding:
- the scope of application: (i) Specialised aerial operations: Construction, Agroforestry activities, Surveillance, Photography, Aerial publicity, Observation and patrolling, et al.; (ii) Experimental flights and; (iii) operations related to customs, police, rescue and search, firefighting, coastguards or similar services regardless the operating mass of the RPA.
- the Identification Plate, Registration and Airworthiness Certificate
- the Airspace Operating Conditions, allowing –upon certain conditions– the use of the RPAs over urban areas, settlements, and gatherings of people, night flights or BVLOS ('Beyond Visual Line of Sight') operations and;
- other matters such as the obligation of the operator of taking out an insurance policy upon certain circumstances; authorisation and supervision of the Spanish Aviation Safety Agency ('AESA'); other obligations of the operator and qualification of the pilots; requirements for the design, maintenance and production organisations and; liability of the manufacturers…etc.
The implementation of the new Regulation in Spain
As per its own nature this new European Regulation shall prevail over the rest of the national regulations in place before its entry into force. Accordingly, the actual applicability of the Spanish national regulation, the RD 1036/2017, is quite uncertain. It shall be now on the Spanish authorities to carry on an interpretation of both regulations in order to ascertain whether the national rule contradicts the European regulation. In such a case, those provisions will be repealed by the provisions of the European Regulation.
In this regard, it is undisputable and already established that the new European Regulation leaves national legislation areas such as drones used for military, police or other public functions. Besides, it will also be on the Member States to provide regulation over those aircraft of simply design or which operate mainly on a local basis.
In addition to this, Art. 56.8 of this Regulation will allow the Member States to make subject to certain conditions the operations of unmanned aircraft due to circumstances falling outside the scope of this Regulation such as the public security or privacy or personal data protection in accordance with the European Law. The latter results of certain importance under Spanish law, given that the RD 1036/2017 only gives regulation over the RPAs, leaving outside the autonomous vehicles already included within the concept of UA (unmanned aircraft) set forth in Art. 3 (30) of the new Regulation, which seems not to be permitted so far under Spanish Law.
However, with regard to the rest of areas, it is likely that the RD 1036/2017 shall be involved into an amendment process in order to adapt their provisions to the new European Regulation. However, this whole process can be postpone some years until the areas encompassed within the transitional provisions will be developed by the competent European authorities, for instance in matters related to the certifications and airspace operational conditions.
All in all, in the meantime, the RD 1036/2017 will remain of application unless certain provisions contradict the European Regulation. In such a case, as already mentioned, the provisions of the European Regulation will prevail.