Rising to new challenges – the EU's legal framework for widespread commercial drone operations

The new EU regulatory framework for drones and drone operations

Recognizing that the existing aviation rules, which were mainly conceived for large manned aircrafts, are not suitable to regulate more widespread drone operations in civil airspace, the EU legislator has started to create a dedicated harmonized legal framework for drones and Unmanned Aircraft Systems ("UAS"; UAS means drones and the equipment to control them remotely) with the new basic Regulation (EU) 2018/1139 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency ("EASA-BR").

The primary objective of the new regulatory framework is to ensure that the operation of drones in the civil airspace is safe, secure and sustainable.  In this regard, it particularly addresses the specific risks related to drone operations in the fields of safety, security, privacy and data protection and the environment.  At the same time, unjustified regulatory obstacles which have hampered the development and operation of drones in the past should be removed. 

To do so, the new regulatory framework adopts a risk-based approach.  This means that different regulatory requirements apply depending on the risks associated with the type of drone and drone operation.

The EASA-BR itself particularly widens the scope of the EU aviation rules to include all kinds of drones as well as the competencies of the European Union Aviation Safety Agency ("EASA").  In addition, it introduces general essential requirements relating to the design, production, maintenance and operation of drones and related equipment as well as requirements for personnel and organisations involved in those activities.

Based on the EASA-BR, the European Commission has adopted two interrelated Regulations containing more detailed rules and requirements relating to UAS:

• Commission Delegated Regulation (EU) 2019/945 ("UAS-DR") provides for technical minimum requirements for the design and manufacture of UAS.
• Commission Implementing Regulation (EU) 2019/947 ("UAS-IR") contains operational requirements (e.g., operational authorisation, declaration or certification and registration of the UAS, certification of the operator and licensing of the remote pilot).
• Both UAS Regulations entered into force on 1 July 2019.  The UAS-DR also applies from this date.  The requirements of the UAS-IR apply stepwise, beginning on 31 December 2020.

In accordance with the general risk-based approach of the regulatory framework, the UAS Regulations introduce three categories of operations with different requirements, taking into account weight, specifications and intended operation of the UAS:

• The "open" category addresses low risk operations, subdivided into three subcategories A1, A2 and A3 (each with different operational limitations, e.g., regarding the overflying of persons, requirements for remote pilots and technical requirements for the UAS, e.g., take-off mass).  For UAS operations in the "open" category no operational authorisation is required.
• The "specific" category addresses riskier operations that exceed the limitations defined in the open category (e.g., operation beyond the visual line of sight (BVLOS), use of drones with a weight with more than 25 kilogram, higher than 120 meter or with the purpose of dropping material).  For UAS operations in the "specific" category operational authorisations from the national competent authorities are generally required.  In addition, drone operators are required to conduct a multi-step safety risk assessment process (e.g., the so-called Specific Operational Risk Assessment, SORA).
• The "certified" category addresses operations with high safety risk (e.g., transport of dangerous goods if in case of accident they pose high risk to third parties).  For UAS operations in the "certified" category the certification of the UAS and its operator as well as licensing of the remote pilot is necessary.

Most UAS applications relevant for logistics will likely fall in the "specific" or "certified" category.  For instance, UAS used for transportation purposes will often have a large take-off mass or will be designed to transport (dangerous) goods and drop them at their destination.  Furthermore, a proper use of UAS in the logistics sector will usually only be possible if they can operate in a larger radius beyond the pilot's visual line of sight.

The U-Space Package

The safe integration of a rising number of UAS operations alongside manned aircraft in the civil airspace also requires an active management of the airspace.  To that end, the European Commission recently adopted the U-Space package.  The term U Space describes the so called Unmanned Traffic Management, a set of services and measures for coordinating and organizing the traffic of manned and unmanned aircrafts.  The three Regulations of the U-Space package will supplement the existing regulatory framework by establishing, in addition to the technical and operational requirements of the EASA-BR and the UAS Regulations, rules and procedures for manned and unmanned aircraft to operate in certain areas of the airspace, in particular areas with an expected large number of simultaneous operations of UAS or areas where UAS operate alongside manned aircraft.

• The first Regulation of the U Space package, Commission Implementing Regulation (EU) 2021/664, creates the regulatory framework for the U Space.  It basically implements rules for the safe operation of UAS in certain UAS geographical zones (so-called U-Space airspace), for the safe integration of UAS into the aviation system and for the provision of certain services that allow the safe management of a large number of UAS operations (so-called U-Space services). 
• To that end, the second Regulation of the U Space package, Commission Implementing Regulation (EU) 2021/665, lays down the requirements for certain service providers in the U Space airspace, aiming at the coordination between air traffic service providers and U Space service providers.
• Finally, the third Regulation of the U Space package, Commission Implementing Regulation (EU) 2021/666, provides for requirements for manned aviation operating in the U Space airspace.
• The U Space Regulations will apply from January 2023.

What's up next?

Commercial use of UAS will massively influence all industry sectors in the upcoming years, in particular the logistics and transportation sector.  EASA is currently elaborating on the technical specifications and operational guidelines in order to allow the industry and competent authorities to prepare for the implementation of the EU legal framework.  Further, it remains to be seen whether the Member States will enact national legislation accompanying the EU legal framework, potentially providing for further requirements for the operation of UAS (e.g., in Germany a draft law "implementing" UAS-IR was adopted in May 2021).  Our Hogan Lovells SOAR practice will continue monitoring the ongoing developments on the EU level as well as related legislative approaches in the Member States.

Authored by Nadine Otz and Corbinian Schwaab.