The EU Drone Regulation – No Such Thing As A Magic Stick

This blog post was first published at the website of The Interdisciplinary Internet Institute. 

In her speech “Time for delivery” at the aviation summit in Brussels in January 2016, European Commissioner for transport Violeta Bulc announced that this year the Commission will deliver a proposal for a basic legal framework for the safe use of drones at the European level. EU-wide rules will materialise the European Commission’s aviation strategy revealed in the EC 2014 communication and, as many hope, boost the market while building confidence in drones’ manufacturers and users. Unfortunately, the Commission does not have a magic stick that would instantly create a well-balanced and sustainable EU regulatory landscape. Up until now, member states’ steps towards smart regulation have been slow and, as it will be shown below, a daunting task for many of them, in particular for the small ones.

Welcome to the drone age

In March 2015 the French and UK prime ministers unveiled a 1.5 billion-pound cooperative drone project and emphasized that the “most advanced vehicle of its kind in Europe” will strengthen the security and police cooperation in the EU. While this bilateral cooperation focused on combat drones, great opportunities in the commercial sector should not be overlooked. Only in the first three quarters of 2015, drone companies raised over $300M in equity financing. However, manufacturing the drones is only part of the business that comes from their development. Storing and analysing the huge quantities of data that are gathered during inspections is the bigger opportunity. For instance, in the agricultural sector drones are used to help farmers monitor their field and conduct longitudinal research in order to assess effects of various farming techniques. The vast data that has been collected over years from the same area enables the most efficient “machine learning” to maximise the benefit gained by the farmer. An even more sophisticated way of drone deployment is the recently revealed Facebook’s Internet-delivering drone. Solar-powered and located in the space, this gigantic drone is believed to provide internet connection to people in some of the most remote places of the world.

Trend: introducing more lenient rules for drone users

In the EU, common standards set in the EASA regulations apply uniformly to all aircrafts above 150kg. As this group includes aircrafts that primarily fly over national borders, the need for the regulation on the EU level is indisputable. In contrast, the regulation of aircrafts below 150kg has been left to national legislators and national aviation agencies. These small and light aircrafts are normally used locally, mostly for recreational or commercial purposes. Remotely Piloted Aircraft Systems (RPAS) or Unmanned Aerial Vehicles (UAV), commonly known as drones, would typically fall into this category.

Member states’ approaches to regulating drones vary considerably. In the UK, the Air Navigation Order differentiates between drones below 20kg and drones that weigh between 20 and 150 kg. In contrast to the latter, drones in the former group require no special licence. However, they should only be flown within the visual range of the remote pilot or observer and to a maximum height of 400 ft (approx. 122 m). The UK Civil Aviation Agency distinguishes the recreational and commercial use of drones. Commercial users are required to secure a licence and be listed in the CAA register, whereas using an aircraft for purely recreational use does not impose any regulatory burden. Furthermore, the UK legislation recognises two additional categories of drones: the ones below 7 kg, for which lenient rules apply and the more strictly regulated vehicles used for surveillance. The UK has been praised to have one of the most developed drone regulations not only on the EU but also on the global level, and for this reason, as recently acknowledged by the House of Lords, often used as an example by foreign decision-makers.

Similarly to the UK system, the Dutch legislation differentiates between two groups of drones: the ones used for recreation (equivalent to model planes or modelvliegtuigen) and those used commercially. Drones in the former group can weigh a maximum of 25 kg, should not be flown more than 300 m above ground, need to stay within the user’s visual line of sight and must be kept at least 3 km away of the airport zones. Drones that fall into the second group, on the contrary, can weigh up to 150 kg, are allowed to reach the maximum height of 150 m and should not fly closer than 3 km from the airports, 150 m from populated areas and 50 m from the industrial areas. Commercial drone users are required to apply for a licence and are subject to some other administrative requirements. Research done in 2015, demonstrates that the Dutch legislation is adequate, though not a fore-runner, and suggest, in line with the UK approach, to introduce an additional category of smaller drones, for which some requirements would be abolished.

Timeline and geographical plan for flying a drone in your backyard

In both countries, the civil airplane agencies have made quite some progress in the recent years and have strived to actively address the challenges triggered by the growing popularity of drones. Unfortunately, not all the member states were able to follow their example. Slovenia, for instance,  still relies on the outdated rules regulating ultralight airplanes. According to this regime, aircrafts below 150 kg can fly to the maximum height of 300 m. If the aircraft carries a camera, which is the case for almost all the drones, the user needs a licence and has to be registered with the air traffic control. On average, securing the permission takes approximately 2 weeks. In addition, unless the drone is below 5 kg, the user has to provide the authorities with a timeline and geographical flying plan. As the Slovenian civil aviation agency’s officers recently admitted, the current rules are unrealistic. The excessive burden imposed on users and legal uncertainty can hamper development and prevent taking the advantage of drones in commercial and private purposes. Although the Slovenian rules for drones are conservative and user-unfriendly, they do not translate to stronger privacy and human rights protection. On the contrary – the Information Commissioner’s office has warned about some serious privacy risks and called for delineating of drone no-fly zones. Unfortunately, despite of the evident challenges, the Slovenian Ministry for infrastructure does not seem to feel the urge to update the rules. Recently, a spokesperson announcedthat the Ministry decided to wait with any further steps until common rules are adopted on the European level.

How far can the EU go?

Every proposal for a regulation on the EU level needs a valid legal basis. The TFEU limits the EU legislative powers by defining three levels of its competence: exclusive competence, which for example applies to custom union regulation, antitrust measures and monetary policy, shared competence, which relates to, e.g., internal market and consumer protection, and supportive competence, typical in the areas of tourism or education. Importantly, every regulatory step has to be carefully considered in the light of two EU principles: subsidiarity and proportionality to make sure the EU does not exceed its mandate and interferes with the member states’ sovereign powers.

The 2015 European Commission staff working document gives a good insight in the EC’s understanding of its competence in relation to drones. According to this document the EU regulation is necessary, first, because drones can affect manned aviation, for which the EU rules already exist, and second, because there is an evident cross-border dimension, namely, many drones are bought online and deployed in cross-border activities.

Not everyone agreed with the EU taking the leading role in the regulation of drones across the EU. The House of Lords’ EU committee has thoroughly discussed the issue and some of the members argued that national regulation is a better fit as it is more responsive to local need. For operators that intend to only fly in a single country, local laws and standards should be adopted to address societal and  privacy concerns.

However, 80% of the respondents to the 2014 EC consultation expressed belief that the rules for drones should be adopted on the EU level and, finally, the UK committee reached a similar decision stating that the EU level regulation is welcome, suppose it is adaptable to the needs of the local industry.

In the shadows of the EU’s paternalism

The EU mission to take advantage of new technologies and digitalisation can help move the slow-paced countries too. For smaller member states, such as Slovenia, which claim to lack resources and knowledge to properly address technological challenges, the EU imposed rules can be a convenient solution. While blindly following the EU guidance in such cases may seem rational, it also reflects the ease with which some countries accept the EU’s regulatory paternalism. If Europe is determined to lead in the technological development, all member states should exhibit the same motivation and be able to understand and consider impacts of the future regulation. One way to achieve this is by strengthening cooperation between regulators and developers’ community.  On the EU level the H2020 program has already offered a few funding opportunities and member states could follow the same approach, which may, eventually, lead to sustainable legislative proposals. One thing is sure – not a magic stick but cooperation and smart investments can bring us to the next level.