The Situation: Interest in drone technology continues to grow across Europe.
The Result: European nations are responding with regulations designed to encourage continued innovation while encouraging responsible drone use.
Looking Ahead: Drone users should remain aware of possible further regulatory provisions in the future.
As the market for civil unmanned aircraft systems—also called "drones"—expands, several European countries, including France, Germany, Italy, and the United Kingdom, have already adopted a regulatory framework. An overview of current regulations follows.
France: A Pioneer in Drone Regulation
The French Transport Code defines drones as "any aircraft capable of rising or circulating in the air" (Article L. 6100-1). Despite this simplistic definition, France has been at the forefront of the regulatory initiative on drones.
On April 11, 2012, two decrees regulating the conception and the use of drones were issued, and were soon replaced by the Security Reinforcement on the Use of Civilian Drones Law of October 24, 2016. This law provides more precise definitions and specifies obligations that apply both to users and manufacturers.
Drone users are now required to undergo a special training (Article L. 6214-2 of Transportation Code) and manufacturers are to provide information notices relating to the use of drones (Article L. 425-1 of Transportation Code), install safety devices, and register their products with the French Civil Aviation Authority.
Also, by making drone pilots liable in case of wrongfully flying over restricted areas—as defined by the governmental order dated January 27, 2017, and by increasing the applicable penalties (Article L. 232-12 and L. 232-13 of Transportation Code), this legislation tends to deter undesirable uses, potentially fostering insecurity. As such, gains are realized in both clarity and safety, and this should not be seen as a luxury when dealing with drones.
The French legislature is aware it cannot afford to stop advances in drone technology. By 2018, several decrees are expected to complete the current regulatory landscape regarding training obligations, electronic registration requirements, and mandatory installation of safety devices for drones whose weight is equal or exceeds a certain threshold (which is to be set out by the aforementioned decrees—and not to exceed 800 grams).
Germany: Entering into a New Era of Drone Regulation
Acknowledging the growing commercial value and increasing use of drones, the German government recently established a regulatory reform that can be considered the beginning of a new era of drone regulation.
Under German legislation, drones are mostly subject to general aviation rules and commercial regulations, but are not exempt from more specific regulatory restrictions pertaining to data protection, IP, and radio spectrum regulation.
The main aviation provisions governing the use of drones are found in legal orders issued by the German Ministry of Transport (Sec. 21a – 21f Air Traffic Order and Sec. 19 Air Traffic Admission Order as of March 30, 2017). Even though significant regulatory restrictions apply, flying drones for private or commercial purposes is allowed. And contrary to France, Germany has already set up weight related regulatory obligations: the takeoff weight ("TOW"). For example, the use of drones with a TOW below 0.25 kg is generally unregulated whereas all drones above this TOW will require a fireproof identification tag by October 1, 2017. Pilots flying a drone with a TOW of more than 2 kg must take a theoretical examination, while drones with a TOW of more than 5 kg require an additional license. While the use of drones with a TOW above 25 kg is generally prohibited, operators can apply for derogations.
In addition to general aviation rules, pilots must respect no-fly zones that include sensitive areas ranging from airports via military and industrial facilities, to federal highways. Such restrictions directly affect drone pilots, but can also have an impact on producers if, for example, they ought to install or program GPS-based software recognizing no-fly zones.
No-fly zones apply territorially, but also spatially as drones must stay under a maximum height of 100 meters and be operated within line of sight. But here again, operators can apply for derogations (Sec. 21b (3) LuftVO) that facilitate the development of new drone-based business models. The conditions under which derogations will be granted are case specific. As a rule of thumb, it is more likely that broader exceptions will be granted for specific use in nonresidential areas, i.e., for agricultural and silvicultural purposes (Sec. 21b (2) LuftVO).
Finally, other regulatory restrictions affect both drone users and producers. For example, the operation of drones is subject to compulsory liability insurance requirements, which is particularly important since drone owners are subject to strict liability. Drone owners must bear in mind that drones equipped with cameras must comply with data protection and IP laws when taking pictures. Also, the radio control, the remote control and the transmission features of drones must abide by international and national telecommunications laws that regulate spectrum use by defining the applicable frequency bands and determining other technical specifications.
Italy: Regulating Drone Use and Operator Training
Italy was among the first countries to adopt a regulation on drones. Indeed, as early as December 16, 2013, the Italian Body for Civil Aviation ("ENAC") enacted the Air Means by Remote Pilotage. This regulation includes specific distinctions between aircrafts on the basis of their use and their technical characteristics and subsequent amendments introduced a distinction based on the activity carried out. Thus, the Air Means by Remote Pilotage regulates two main activities: (i) aircraft systems with remote pilotage that are used for specialized operations or in scientific activities, experimentation, and research and (ii) air models used only in activities for leisure or competition purposes.
Starting July 16, 2015, the ENAC regulation was regularly amended to modernize Italian unmanned aircraft law. These reforms targeted safety measures. For example, drone pilots must now undergo a specific training and can be subject to obtaining flight authorizations. Finally, drone pilots must now comply with specific legal requirements and preclude both undesirable use and flying over prohibited areas and locations.
United Kingdom: Drones Feature in Plans for High-Tech Economy
In July 2017, the UK government issued its Response to the official Consultation launched in December 2016 on the safe use of drones in the United Kingdom. The Consultation and Response are part of the government's initiative to unlock the United Kingdom's high-tech economy and indicates the likely direction of travel of future drone legislation. The Response sets out groundbreaking changes to the current regime, and some of these changes are expected to be in place in early 2018. The first major change will be compulsory registration of all drones weighing over 250 g and their users operating in UK airspace.
The Current Law. The Civil Aviation Authority ("CAA") is responsible for supervising compliance with the Air Navigation Order 2016 ("ANO"), which is the principal legislation governing the use of drones. The ANO regulates the use of drones by reference to their use, their weight, and whether or not they have surveillance capability.
Under the ANO, all operators of drones for commercial purposes must have a permission to do so issued by the CAA (ANO, Article 94(5)). Permissions are issued for 12 months and are subject to an annual renewal process. Potential operators are required to provide an operations manual to show how drone flights will be conducted and to demonstrate pilot competence. Evidence of pilot competence includes demonstrating sufficient understanding of aviation theory, aviation law, and good flying practice and by passing a practical flying assessment.
For leisure purposes, no permission is required to operate a drone weighing between 7 kg and 20 kg (in each case, not including fuel), provided certain rules are followed. For example, for all drones with a weight of more than 7 kg, the person in charge of the drone must maintain direct, unaided visual contact with the drone; the drone must not be flown near aircraft, persons, vehicles, vessels, and structures; and the maximum height at which the drone may be flown is 400 feet (ANO, Article 94(3)). Drones equipped with surveillance equipment and weighing under 20 kg are subject to additional restrictions, mostly regulating how close the drone may come to people, vessels, structures, and congested areas (ANO, Article 95 (2)).
Drones weighing between 20 kg to 150 kg are regulated in the same way as manned commercial aircraft, and drones weighing above 150 kg will be subject to EU Regulation (EC) 216/2008.
Drone operators violating the terms of a CAA permission and/or the above restrictions in a manner likely to endanger an aircraft or any person in an aircraft can be punished by an unlimited fine or by imprisonment for a term not exceeding five years, or both. An operator convicted of recklessly or negligently causing or permitting a drone to endanger any person or property is subject to an unlimited fine or by imprisonment for a term not exceeding two years, or both. Violations where there is no endangerment are subject to a maximum fine of £2,500.
Drone operators also need to comply with applicable nonaviation laws. For example, although leisure users do not need permission from the CAA to fly a surveillance drone weighing under 20 kg at certain heights and distances away from congested areas, this does not mean that the operator can fly the drone over Ministry of Defense restricted property or are permitted to interfere with air traffic, particularly around airports. One particular concern in the United Kingdom is the use of drones to convey prohibited items in and out of prisons. Drone operators must comply with laws regarding trespass, nuisance, and terrorism. They are also subject to data protection laws, and careful compliance with data protection laws will become increasingly important when the General Data Protection Regulation comes into force in May 2018, in particular because the fine for a data protection violation will increase from £500,000 to the greater of €20 million or four percent of global turnover.
New Laws in Short Order. In the Consultation Response, the UK government stated that safety, security, and privacy were its priorities, and the Response stated that the following measures will be implemented shortly:
All operators of drones weighing 250g and above will be required to register themselves and their drones. This is likely to include embedding electronic identification and tracking capability within the registration process so that enforcement action can be improved.
Competence testing, possibly in the form of online tests, will be extended to leisure users.
The government is considering tightening up the rules on areas in which drones can be flown, including an outright ban on flying drones within the proximity of airports, and increasing the penalties for violation of drone laws. The government will support the drone sector and the insurance sector working together to improve the insurance offerings available to drone users. Looking out further into the future, the government has said it will continue to explore the development of an unmanned traffic management system and the implementation of geo-fencing to prevent drones being used in unauthorized areas.
European Union: Regulation of the "U-space"
The European Union aims at producing effective EU-wide rules to make drone use in low-level airspace safe, secure, and environmentally friendly. The "U-space" the European Union wants to regulate covers altitudes of up to 150 meters. The European Union affirms its will to "pave the way for the development of a strong and dynamic EU drone service market" (see European Commission's press release of June 16, 2017, on the matter). As such, it targets the implementation of rules concerning registration of drones and drone operators, their e-identification, and geo-fencing by 2019.
Key Takeaways (by Jurisdiction)
- Drone operators must undergo special training;
- Drone operators are liable in case of wrongful use of their drone; and
- Manufacturers must provide information notices, install safety devices, and register their products.
- Drones are subject to specific regulations depending on their weight; and
- Drone operators must respect special no-fly zones and spatial restrictions.
- Drones are subject to specific regulations depending on their use; and
- Drone operators must undergo special training and can be required to obtain flight authorizations.
- Currently, drones are subject to specific regulations depending on both their use and weight;
- Drone operators are subject to both civil and criminal liability in case of breach or wrongdoing; and
- New UK laws will be in place shortly requiring registration of all drone users and drones.
For further information, please contact your principal Firm representative or one of the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com/contactus/.
Alexandre de Verdun
Maximilian P. Krause
Elizabeth A. Robertson
Rhys W. Phelps
Martin J. Wortmann
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our "Contact Us" form, which can be found on our website at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.