Although the European Commission[1] considers that the new EU regulatory framework for drones “provides operators with greater operational flexibility compared to previous national regulations”, it must be noted that, on the contrary, the introduction of such a framework has made the law applicable to these operations more complex.

Summary & overview of the key dates in the regulation of civil drones in France and Europe.

 

Between a ‘pure’ European regulation, or one that provides for transitional measures or leaves room for manoeuvre to the Member States, and the French regulation, either permanent or transitional, or one that has been modified to take account of the change in terminology, operators are at a loss! And we can understand them. In this article, we attempt to shed some light on all the twists and turns of the standard with key dates.

Until 11 September 2018, each EU Member State could issue its own standards for drones weighing less than 150 kilograms; above this threshold, the European Union Aviation Safety Agency (EASA) was competent. But since the advent of the new basic regulation adopted in 2018 (Regulation (EU) 2018/1139 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), all drones, regardless of their mass, are subject to harmonised EU safety rules.

The extension of EASA’s competences has resulted in the publication of two main EU regulations (Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and third country operators of unmanned aircraft systems and Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on rules and procedures for the operation of unmanned aircraft).

The aim of introducing such regulations at European level is to harmonise the legal framework for drones in Europe in order to promote their economic development.

Previously, national drone regulations provided for three categories depending on the use of the aircraft (aeromodelling, experiments and specific activities). With the advent of the new European framework, the categorisation is now based on the level of risk of the operations, with the categories “Open” (low-risk operations, mainly for leisure but also for simple professional operations), “Specific” (moderate-risk operations for most professional operations) and “Certified” (for high-risk operations, requiring a high level of reliability of the aircraft and operations such as the transport of people with “taxi-drones“). The former national regimes ceased to exist on 31 December 2020, when the European Drone Regulation came into force.

The two Regulations mentioned above are directly applicable in the Member States and therefore superseded national regulations as soon as they came into force. However, it is important to take into consideration several points concerning the impact of the European regulation and the evolution of national regulation:

• Aviation safety is a European competence, unlike other areas which are national competences, such as public security or airspace management;
• The European regulation has a progressive application and includes provisions to ensure a progressive transition between national and European regulations. For this reason, certain national texts are maintained to ensure this gradual transition       ;
• The European regulation leaves some room for manoeuvre to Member States, either on a transitional or permanent basis;
• Some requirements of national regulations (even those that remain under national jurisdiction) were not always consistent with those of European regulations. By making the regulations consistent, it is possible to clarify and simplify their application for users.

First of all, it is necessary to specify the conditions of use of drones according to their categorisation as well as the main transitional measures associated with them.

As far as aeromodelling is concerned, it is important to underline that Regulation 2019/947 has left the possibility for Member States to define national rules applicable to these aeromodelling clubs and associations. This is the choice of France, which wanted to leave the possibility for aeromodelling clubs and associations to continue to apply pre-existing national requirements. These rules can be found in the Order of 3 December 2020 on the operation of aeromodels within aeromodelling associations in application of the implementing regulation (ED) 2019/947.

The ‘Open’ category is for low risk, visual flight operations with EC identification and class endorsement (C0, C1; C2, C3 and C4 – each class allowing certain types of use) and is made up of three sub-categories of operations: Al, A2 and AS.

This category should have been used as of 31 December 2020, however, the drones marked CE according to the terms of Regulation 2019/945 were not yet available on the market. It was therefore necessary to create a “Limited Open” category to operate during the transitional period with drones that do not comply with the above-mentioned regulation (without CE class identification) in accordance with the conditions set out in Article 22 of Regulation 2019/947.

Like the “Open” category, the “Limited Open” category provides for three sub-categories of activities similar to those of the “Open” category, although with different mass and distance-to-person thresholds.

Each Member State shall define, for each subcategory of the limited Open category, levels of training equivalent to the subcategories in the Open category. Thus, drones without a class designation may continue to be operated until 1 January 2024.

All drones placed on the market from 1 January 2024 onwards must carry a class designation in order to be used in the “Open” category.

The “Specific” category is for moderate risk operations, in sight or out of sight, with European standard scenarios (STS-01 and STS-02) and EC identification with class mention (C5 or C6).

However, in the interests of transition, EU Regulation 2019/947 has provided for the possibility for a Member State to continue to use national standard scenarios until 1 January 2026 for operators declared under national scenarios before that date. Thus, three national standard scenarios (S-1, S-2 and S-S) are maintained so that they can continue to be used in the “Specific” category during the transition period. The Order of 3 December 2020 on the definition of national standard scenarios sets out the operating conditions and national requirements associated with the above-mentioned S-1, S-2 and S-3 scenarios.

On 1 January 2026, the national scenarios S-1, S-2 and S-5 will come to an end. Any operator wishing to continue to operate under the reporting regime after 1 January 2026 will have to do so under a standard European scenario.

The European standard scenarios (STS-01 and STS-02) are not yet applicable. They will only become applicable from 1 January 2024, before which date only the national standard scenarios are applicable in France.

If the operation does not fit into the standard scenarios (whether national or European), the operator must obtain a permit to operate after carrying out a risk assessment.

With regard to the “Certified” category, there is a significant technical and safety regulatory gap that prevents certified operations from being carried out. Rules will have to be adopted on the initial airworthiness and continuing airworthiness of UAVs subject to certification, as well as on the operational requirements applicable to VTOL aircraft with crew on board. Similarly, rules will have to be adopted on the design and operation of vertiports.

The purpose of this article is to review and explain the main changes that have taken place or will take place in 2023.

The actual changes

Among the main effective changes identified, some fall under national competence, while others fall under European competence.

Effective changes under national jurisdiction

With regard to purely national measures, operators taking aerial photographs are no longer required to make a declaration (visible spectrum) or seek authorisation (outside the visible spectrum – infrared camera, thermal camera, etc.) since 1 January 2023. This is due to the publication of decree no. 2022-1397 of 2 November 2022 implementing article L.6224-1 of the code des transports relating to the regime governing the capture and processing of data collected from an aircraft in certain areas (repealing article D.133-10 of the civil aviation code).

Another major change is a purely national measure: the list of areas prohibited to aerial data collection has been modified. A new order of 2 January 2023, setting the list of zones prohibited to the capture and processing of data collected from an aircraft (ZICAD), came into force on 4 January 2023. It repeals the order of 10 June 2021 setting the list of zones prohibited for aerial photography, cinematography or any other remote detection sensor (ZIPVA).

The actual changes falling under EU competence

At European level, the ‘U-Space package‘, i.e. the establishment of an ecosystem for the management of manned and unmanned aircraft traffic, has been in force since 26 January 2023. The regulatory basis of U-Space is based on three implementing regulations; Commission Implementing Regulation (EU) 2021/664 of 22 April 2021 on a regulatory framework for U-Space, Commission Implementing Regulation (EU) 2021/665 of 22 April 2021amending Implementing Regulation (EU) 2017/373 as regards requirements for air traffic management/air navigation service providers and other air traffic management network functions in U-Space designated in controlled airspace and finally Commission Implementing Regulation (EU) 2021/666 of 22 April 2021 amending Regulation (EU) No 923/2012 as regards requirements for manned flights in U-Space.

More practically, and as DGCA clearly explains[2] , U-Space is based on 3 main elements:

• airspace designated as U-space by the State, in which the vast majority of aircraft operating there are drones. These areas can be penetrated by manned aircraft under certain conditions. In uncontrolled airspace: the “electronic perceptibility” of the aircraft and in controlled airspace the “dynamic reconfiguration of the airspace” under the responsibility of the control service;
• standardised digital services known as “U-space services”. Four of these services are mandatory for UAS operators within U-space. The providers of these services are called “U-space service providers” (USSP). They must have a European certificate issued by the national authority of a European State or by the European Union Aviation Safety Agency (EASA);
• Common information services (CIS), forming a basic digital infrastructure for each U-space. They consist of the provision of data enabling the use of U-space services and consequently traffic in U-space (e.g. airspace and traffic information) for the needs of USSPs but also of air navigation service providers, UAV operators and all other relevant actors (e.g. Air Force).

A single provider in a U-space may be designated by the State to provide these CIS services. This type of provider is called a single CISP (common information service provider). It must also have a European certificate.

Further changes, not yet effective, are expected by the end of this year 2023.

The changes to come

While many of the changes for 2023 are already in place, others are still under discussion.

Changes that will occur

Manufacturers or importers of drones are required to provide in the packaging of drones or their spare parts an information notice relating to their use and regulations (Article L. 425-1 of the Consumer Code). The content of this notice, currently defined in the annex to the order of 19 April 2019 on the information notice relating to the use of aircraft flying without a person on board, will be revised shortly to take into account the European notice for drones with a class designation.

Decree No. 2019-1253 of 28 November 2019 on criminal penalties applicable in the event of failure to comply with obligations intended to reinforce the safe use of civil aircraft circulating without a person on board will be the subject of a new version shortly. This decree sets out the fines applicable in the event of failure to comply with certain obligations (registration of drones, training of remote pilots).

In addition, a decree concerning “notified bodies”, i.e. the bodies that assess and issue the CE marking with class identification for drones, will soon be published. As a reminder, it is the responsibility of manufacturers to implement the appropriate means to ensure that their aircraft comply with the requirements of the European class markings, in particular by calling on a notified body.

A decree on market surveillance will also be adopted. It is up to the authority of each Member State to carry out market surveillance on its territory. In France, the DSAC (Direction de la sécurité de l’aviation civile) is competent in this area and monitors the manufacture and maintenance of aircraft.

Concerning aeromodelling clubs and associations, for which France has defined its own rules (as European law allowed it to do): the aforementioned Order of 3 December 2020 on the operation of aeromodels within aeromodelling associations will undergo some changes. The considerations provided for in Article 16 of the above-mentioned Regulation 2019/947 concerning the issue of operating licences to approved federations and aeromodelling associations (leisure and competition) with at least one       activity location will be introduced in this new text   (request made by Cerfa, this allows the zones to be published in the aeronautical information specifying the maximum flight height).

Considerations on flights at model aircraft sites will also be added (flight in the absence of third parties not involved in the operation in the area of operation, minimum horizontal distance of 150 metres from residential, commercial and industrial areas).

Changes under discussion

In addition, several proposals have been put forward by the Directorate General for Civil Aviation (not yet validated by the ministries) concerning the revision of the “Space” decree of 3 December 2020 (relating to the use of airspace by aircraft without crew on board). Among these proposals are the end of the night flight ban (while retaining the requirement for a light signal), the obligation to fly in segregated airspace for all visual flights above 120 metres (with a possible derogation directly in the operating permit), the abolition of the maximum flight height of 50 metres for aircraft with a mass of more than 2 kg (S-2 scenario) and the possibility of operating in the “Open” category in public areas in built-up areas (for commercial/professional flights for teleporters qualified for STS-01 or S-3 scenarios).

A bill has been introduced concerning the spraying of plant health products by drone (Bill 703 to authorise the aerial spraying of plant protection products), which concerns “large” drones weighing more than 25 kg at take-off. The latter must be deployed under an operating licence from the DGAC with a risk analysis (as they are outside the scenarios provided for by the regulations).

However, the development of comprehensive drone regulation will continue well beyond 2023, as the European Commission intends to propose a comprehensive package of measures to strengthen the entire drone ecosystem by 2030.

 

 

Laurent ARCHAMBAULT

Partner at the Paris Bar (SELENE Avocats)

Member of the Council for Civilian Drones (part of the Directorate General for Civil Aviation)

Member of the SFDAS, lecturer in air law at the Universities of Aix-Marseille and Toulouse, drone pilot and private pilot (VFR/IFR)

 

Cassandra ROTILY

Doctor of Law

Head of legal and new technologies departments at Air Space Drone

Member of the Council for Civilian Drones

Associate researcher at CERDACC (EA 3992)

 

 

[1] Communication “A Drone 2.0 strategy to foster a smart and sustainable unmanned aircraft ecosystem in Europe”.

[2] Ministry of Ecological Transition, “U-space: the digital management of drone air traffic”.