Newest Technological Sensation: Drones and Their Regulation in the EU
In the last decade, the world has experienced new highs in technological developments. Fast growing technology throwing new devices into people’s daily lives periodically. First, it was all about smart phones, then smart watches followed and recently, in the last couple of years there is a new sensation; commercial drones.
Unmanned aerial vehicles (“UAV”), or drones as known in public, are basically “aircraft on which no pilot on board and controlled remotely”. Although drone technology is not new and drones have long been used in military and governmental operations, today, compact versions are increasingly operating in the daily life and the UAV industry has already become a multi-billion dollar business. The market for drones is experiencing a significant increase especially in the last couple of years and the more is coming. Nowadays you can see them everywhere, while shooting a scene from the air for a TV broadcast or carrying cargos or buzzing over you just for hobbyist purposes. The Teal Group, aerospace and defense market analysis firm, stated that commercial and military UAV market is anticipated to more than triple in the next decade, with a spending totaling to $135bn. According to another report of the Federal Aviation Authority (“FAA”), there will be approximately 7 million drones operating by 2020, and 2.7 billion of them will be commercial drones.
As all good things embody some negativities; the rise of such an innovative technology brings a number of risk and liability challenges as well. Drones which are used for illegal purposes such as drug dealing or trafficking other illegal goods and even more dangerously for terrorism can be given as examples. One of the latest incidents was by the perpetrator of New Year’s Eve attack to the Reina Night Club in Istanbul who used a drone to inspect the area before the attack. Besides such illegal usage, physical and/or pecuniary damages can be caused by drones intentionally or unintentionally.
Considering all these, developing drone specific regulations for safety and security as important as keeping up the fast growing sector and in many jurisdictions, governments have already started to put developing drone regulations on their agendas. In this article, we will explain drone regulations and major jurisdictions with a focus on the recent developments in the EU and Turkey.
Drones from Legal Perspective
Among the current and potential risks inherited in operating drones without any security, concerns about what it means to operate a drone legally, have become the top of mind for commercial drone operators and it urges the enactment drone-specific regulations to create a balance between the interests of rapidly growing market and the security and safety of the society. With this regard, many major jurisdictions are either introducing new regulations or amending the existing regulations. Below we will have a brief look at drone regulations in major jurisdictions.
1. Regulations on Drones in General
When compared with the regulations for manned aircraft, regulations for drones are in their infancy. Having said that, governments have become aware of the need for establishing adequate regulatory control in due course.
Generally, purpose of use of drones is the starting point in deciding whether to regulate and then comes enforcing the regulations, once they are set.
In major jurisdictions the standards used in general begin with a few simple rules: such as (i) operators must maintain a visual line of sight (VLOS) fixed on the vehicle at all times, (ii) UAVs must be under a certain size (usually<55 pounds/25 kilograms), (iii) UAVs must not be operated in close proximity to airports or sporting venues etc.
However, in certain jurisdictions, such as Canada and the EU, complex and comprehensive laws are already in place. For example, certification is a prerequisite for commercial use of drones in Canada and only the drones exceeding 25 Kg and which are not deemed as model aircraft weighting under 35kg require application to obtain for a special flight permit. Permits are issued by the Authority on a case by case basis in order to assess the risk.
In other jurisdictions such as the US and the UK; broader regulations are studied in order to replace simpler guidelines that are already in force. As the jurisdiction which hosts the most drones in the globe, the U.S. FAA, released the Part 107 regulations tailored for unmanned aircraft in June 21, 2016. Similar to Canada, in the US, flying the UAVs that are under 25kg and operated for hobby or recreational purposes and complying the other parameters laid out by the law, do not need any permission. Otherwise the FAA must issue an authorization on a case by case basis.
2. EU Drone Regulation
Other than the U.S., the EU is the most active jurisdiction in terms of drone operations. As for the moment, almost all of the Member States have regulations for drone operations, however, these different national legislative regimes are not harmonized and so far not a single EU Member State recognizes the accreditation of another one. This means that a drone operator, who received permission to operate in one Member State and wants to operate his drone in another Member State, is required to go through all the formalities of that Member State as well.
Considering the fact that in many legal aspects the EU acts as a uniform jurisdiction, there needs to be a uniform law in terms of operating drones as well. In other words, even though Member States have started developing their own national rules in order to facilitate this process, a true European Market will only emerge only if a uniform European Regulation is developed.
Although there is a uniform regulation currently in effect, it covers only the drones with a Maximum Take-Off Weight (“MTOW”) of more than 150 kg, which are only for commercial and civil use.
Existing regulation was developed on the assumption that the “small” drones would only be operated locally. However, recent technological developments show that not only small but even micro drones are produced and they are capable of flying long distances and at quite high altitudes. Thus, today, most commercial drones no longer fall under the scope of the European Legislation.
By taking into account all the recent developments in the drone industry and with the aim of resolving the lack of uniformity in the drone regulations among the Member States, in 2013, the European Commission published an official roadmap (the “Roadmap”) for the integration of civil drones into the European common airspace with a focus on certification of the system, technology and the liability, insurance, privacy and data protection.
Following the Roadmap, on March 6, 2015 the Riga Declaration was issued by the EU Commission and major stakeholders emphasized that it must be ensured that all the conditions are met for the safe and sustainable emergence of innovative drone services, and regulations must help the industry to thrive and adequately deal with citizens at the same time.
In essence, the Riga Declaration draws the attention to three important aspects; (i) for the sake of the development of the drone market, a regulatory framework is a must do; (ii) this future framework regulation should not penalize the drone sector only because new technologies are developing; and (iii) the principle of proportionality should be applied.
By taking the Roadmap and the Riga Declaration into account, the EU Commission assigned European Aviation Safety Agency (“EASA”) for the preparation of detailed rules, which is planned to replace Regulation 216/2008, to facilitate the safe development of drone operations and the development of the industry in the EU.
By implementing the instructions given in the Riga Declaration, EASA has drafted the ‘Prototype’ Commission Regulation on Unmanned Aircraft Operations (“Proposal”) on August 22, 2016. The Proposal disregards the weight limit of 150kg, instead all drones fall under of three categories as; (i) Open Category, (ii) Specific Category, (iii) Certified Category, depending on the risk that their operation may cause;
As for the differentiating factors between the categories; only the drones under 25 Kg. will fall under the Open Category, which represents the lowest risk. Enforcement of rules shall be carried out by police force whereas it is carried out by Aviation Authorities for drones falling under the Specific Category, which represents medium risk. License is not required for remote pilots to operate drones under both categories.
On the other hand, regarding the Certified Category, drones under this category represents the highest risk and can only be operated under conditions comparable to those of commercial manned aircraft and license is required for remote pilot and the operator has to be approved by the National Civil Aviation Authority.
Limit between the specific category and the certified category has not been identified by a piece of draft legislation yet.
As regards to the limitations; in addition to the classic limitations of VLOS, maximum altitude, and distance from airport and sensitive zones, which are mandatory for open and specific categories, the Proposal also introduces new operational requirements such as Geofencing and I-Drone in order to enhance safety.
General principal stated under the Proposal is that operator of a drone shall be responsible for its safe operation. The operator shall comply with the requirements stated in the Proposal and other applicable regulations, in particular with those relating to security, privacy, data protection, liability, insurance and environmental protection. Supervision of licensing, maintenance, operations, training and so on, shall be carried out by the National Civil Aviation Authorities and EASA.
Since the introduction of the Proposal, a significant number of comments has been received and together with the significant inputs provided by an expert group have been taken into account to further develop the regulation text leading to the publication of a Notices of Proposed Amendments (NPA). The public consultation period for the NPA will finish on the 12 August 2017 and EASA will release a document addressing all comments and update the Proposal accordingly. After which, a final Opinion will be submitted to the European Commission at the end of 2017 which will take into account the feedback received to the Proposal.
All in all, EASA’s categorization of the drones in terms of requirement of licensing, operation and safety is a significant step into unification of drone regulations within the EU. Yet, as it has been stressed out as the most important aspect of introducing drone regulations; law makers must carefully balance between covering all aspects of the operation of drones and should not introduce overly burdensome regulations. The legislation needs to be both drone friendly, but at the same time provide security and safety to the citizens.
3. Turkish Drone Regulation
So far the current and the proposed regulations in major jurisdictions have been explained and now the question is, “where does Turkey stand in terms of drone market and regulations?” Turkey is also among the countries fascinated by the drone sensation. Although in terms of domestic production, Turkey is only active in military drone sector, the drone market is growing rapidly especially for hobby and recreational drones.
Considering the increasing popularity of use of drones, the Civil Aviation Directorate of Turkey (“CAD”) has issued an Instruction came into force in Turkey on February 22, 2016 after 2 years of work (“Instruction”).
When reviewed, it is easy to conclude that the Instruction has been drafted under the influences of different countries. For example, registration provisions are adopted from the US, flight permits are adopted from Canada and the rules regarding operations are adopted from EASA.
The Instruction sets forth the general conditions on how drones can be operated for commercial purposes within the Turkish airspace. Only the non-governmental drones and drones weighing more than 500 gr. are falling under the scope of the Instruction.
Similar to major jurisdictions, the Instruction considers the weight of drones to categorize them for registration purposes as IHA0 – IHA1 - IHA2 - IHA3 based on the procedure and principles of registration, operation, navigation, maintenance and airworthiness. Pursuant to the Instruction, drones which fall within the scope of IHA0 and IHA1categories (weighing between 500 gr. and 25 kg) are not subject to special flight permits. The operators of these drones are only required to accept and acknowledge the Safety and Compliance declarations which are available on the CAD’s website.
On the other hand, for the drones falling under IHA2 – IHA3 categories (drones weighing more than 25 kg) manned aircraft registration procedures apply.
The Drones recording system of the CAD differs from the other countries, (such as the US and Ireland) by requiring both the pilot and the drone to be recorded. According to the figures of the last year; there are 8349 drones and 11.839 drone operators are recorded to the CAD’s registry.
Also by the later amendments to the Instruction, the responsibility placed on pilot has been increased and stated that the Pilot shall be fully responsible of operating the drone in a safe manner and avoiding any and all accidents.
In addition to its provision regarding the operation of drones, the Instruction also introduced a compulsory insurance for some operators. Pursuant to the Instruction, every drone operator/owner has liability against third parties but only the drones exceeding 25 kg must be insured according to the Insurance Regulation. Legislation is silent on the compulsory insurance for the drones below 25 kg.
As for non compliance with registration requirements; penal provisions in the Instruction refer to the provisions under “Part 5” of the Turkish Civil Aviation Law . Drone flights without obtaining a flight permit and/or an authorization from the CAD may result with an imprisonment up to 3 years and/or being charged with an administrative pecuniary penalty of TL 500 to TL 10,000. (€125 - €2.500).
Furthermore, it is also important to note that currently in Turkey, the state of emergency rules entitles the governorates of the cities to ban drone use due to security purposes. Such powers will survive until the end of the state of emergency, which has just been extended for another 3 months around the date of this paper. There are already numerous bans in place in Istanbul and in other cities on the use of drones.
It will be no surprise that the quantity and types of drones will keep increasing rapidly and the issues caused by them shall also increase correspondingly. Therefore, it is quite important to focus on legal perspective as much as the technological perspective.
Although in certain major jurisdictions, the regulations are already in place and the basic principles for airworthiness, certification and licensing have already been identified; drone technology is developing very fast and thus, different legal issues are coming up all the time; such as health and safety, data protection, privacy and so on. This require new measures and precautions to be introduced or updating of the ones existing, to comply with the development of the technology.
On the other hand, the biggest struggle faced by the governments so far, is the dilemma of having to regulate small UAV systems which operate locally or domestically in order to protect the general public, while striving not to stifle their development and use.
All in all, it can be said that the laws are falling behind of the rapid technological developments. In order the regulations and the technological status to be on the same page, it would be better if innovators and law-makers collaborate on the introduction of new rules.
ABOUT THE AUTHOR: Serap Zuvin and Can Yilmaz
Serap Zuvin is the founding partner of Serap Zuvin Law Offices. Ms. Zuvin has specialized on corporate finance. She has been extensively involved in various cross-border joint ventures and mergers and acquisitions. She has established the subsidiaries and/or representative offices of multinational companies in Turkey.
Can Yilmaz is an associate lawyer at our office. Mr. Yilmaz focuses on corporate finance and aircraft finance law. Mr. Yilmaz provides legal assistance to corporate clients in cross border finance transactions with a focus on loan and acquisition financing.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.