New legal situation for UAS through European regulations: What does this mean for drone operators?

07.06.2021 – Karlotta Victor (BWI)

On 22 April 2021, the European Commission adopted the third Implementing Regulation concerning UAS: the so-called U-space Regulation, which will become mandatory for operators of UAS (Unmanned Aircraft System) in certain so-called U-space airspaces in 2023. This Commission Implementing Regulation (EU) 2021/664 completes the Commission Delegated Regulation (EU) 2019/945 and the Commission Implementing Regulation (EU) 2019/947 into a trio of EU regulations for the safe use of UAS. This article should provide an overview of the new relevant regulations for UAS operators and let UAS operators know which legal documents might be additionally relevant.

The three regulations cover all phases from manufacture and sale to the UAS operating and the actual coordination of flights. Since the implementation of Reg. (EU) 2019/945 & Reg. (EU) 2019/947 on 31 December 2020, UAS are categorized into different categories of UAS operations (open, specific, certified). The categories are based on the risk assessment of the mode of operation and determine the corresponding operating conditions and approval requirements. Reg. (EU) 2019/945 provides regulations on the design, manufacture, maintenance, trade and import of UAS. Depending on the category, there are different technical requirements for the equipment of the UAS. The decisive change resulting from the new regulations is contained in Reg. (EU) 2019/947. Up to now, commercial providers had to obtain a permit for every ascent, according to the previous national law in §§ 21a and 21b LuftVO – even if they operated recurring modes. Now the operator needs just a single permit for such recurring activities, for the respective mode of operation. This reform thus supports in particular the commercial use of UAS. Nevertheless, a one-time operation can also be authorised. According to reg. (EU) 2019/947 operators are further obliged to register with the competent national authority to ensure traceability, e.g. for administrative offences. In addition, it opens up the possibility for Member States to designate so-called geographical UAS zones with special operating conditions. The Member State even has the right to issue a general ban on operations (no-fly zones). This can impose a lower as well as a higher level of operating conditions, thus modifying the general operating conditions or licensing requirements of the Reg. (EU) 2019/947 nationally. Finally, it should be pointed out that while the aforementioned Regulations primarily create their own, needs-based regulations for UAS, this only applies to UAS in the open and special category. According to Reg. (EU) 2019/945 & Reg. (EU) 2019/947, UAS in the category certified are explicitly subject to the requirements of manned aircraft in terms of design, manufacture, maintenance as well as operation.

The Commission Implementing Regulation (EU) 2021/664, published on 22 April 2021, aims to enable operations in busy airspaces in a safe and efficient manner, also to operate BVLOS (beyond visual line of sight). For this purpose, the Reg. (EU) 2021/664 provides Member States with the instrument to qualify an airspace as a U-space airspace. In U-space airspaces, a management system and corresponding information exchange will be mandatory. This will require UAS operators to obtain certain services from a (private) so-called U-space Services Provider (USSP) for each flight. The services may differ depending on the U-space airspace. In any case, the network identification service according to Art. 8, the geo-awareness service acc. to Art. 9, the UAS flight authorisation service acc. to Art. 10 and the traffic information service acc. to Art. 11 of Reg. (EU) 2021/664 are mandatory. All services serve the objective of the U-space Regulation to avoid conflicts and dangerous situations and to ensure a high level of safety in the airspace for all parties involved. For example, the USSP informs the operator before departure through the UAS flight authorisation service, about any temporal-spatial conflict situation with other aircraft. If the airspace for a requested route is free, the USSP will grant an UAS flight authorisation to the operator. In addition, the operator receives information about air traffic in the immediate vicinity through the traffic information service and information about permanent or temporary spatial conditions of the U-space airspace through the geo-awareness service during the flight. If any collision hazard occurs, the operator must initiate emergency measures.

Even though the U-Space Regulation is not yet in effect and U-space airspaces have not yet been designated, it should be known that special conditions already apply in certain airspaces today. Besides the UAS Regulation trio, other regulations of the EU for general aviation may also apply for UAS operators. In order not to lose track, the following illustrations give the UAS operator an overview of the requirements they have to comply with under Reg. (EU) 2019/947 since 31 December 2020 (Fig. 1). Also of which additional requirements they already have to comply with in certain airspaces and which they will have to comply with in future U-space airspaces (Fig. 2).