The European Commission on March 12, 2019 adopted the ‘Implementing Regulation on rules and procedures for the operation of unmanned aircraft’ along with the ‘Delegated Regulation on unmanned aircraft systems and on third-country operators of unmanned aircraft systems’ and its Annex. The latter specifies the technical requirements for safe operations of unmanned aircraft systems (“UAS”) in the European Union, along with guidelines to ensure the safety and privacy of EU citizens. The Regulations are now before the EU Parliament and the EU Council for a mandatory 2 month scrutiny period. If objections are not raised by the EU Parliament or by the EU Council, the regulation will become gradually applicable by 2019 and by 2022, after the transitional period the regulation ends, will be fully applicable.
This blog restricts itself to the overall framework put in place by the Delegated Regulations (“Regulations”) and does not examine the Annex which lists out detailed requirements for different categories of drones or the Implementing Regulation.
The Regulations makes reference to 3 main categories of UAS, namely:
- the ‘open’ category which does not require prior authorisation by the competent authority nor a declaration by the UAS operator before the operation takes place;
- the ‘specific’ category which, due to risks involved, requires authorisation by the competent authority before the operation takes place, except for certain standard scenarios where a declaration by the operator is sufficient or when the operator holds a light UAS operator certificate (LUC) with the appropriate privileges;
- the ‘certified’ category which requires the certification of the UAS, a licensed remote pilot and an operator approved by the competent authority, in order to ensure an appropriate level of safety.
Upon a bare perusal of the Regulations, one can identify the following themes informing the document. This is also how this blogpost is structured:
- Independence and competence of conformity assessment bodies (“CAB”);
- Obligations of economic operators (“EO”); and
- Market surveillance and border control;
- Other important provisions; and
2. Independence and competence of conformity assessment bodies
The Regulations define an unmanned aircraft as one operating or designed to operate autonomously or be piloted remotely. In light of the considerations with respect to safety, noise pollution and privacy amongst others, the Regulations propose to put in place CABs which would be responsible for performing conformity assessment activities such as calibration, testing, certification and inspection. The various modules for undertaking conformity assessment by the manufacturer of UASs have been detailed in Article 13 of the Regulations read with Parts 7, 8 and 9 of the Annex attached to the Regulations. The conformity shall then be verified by the CABs. As per Article 22 of the Regulations, CABs have to be independent third-party organisations. Further, they cannot be stakeholders in the value chain of the designing, production, use or maintenance of UASs, amongst other, including any consultancy services which deal with UASs. It is interesting that the Regulations allow business associations and professional federations representing these stakeholders to function as CABs, “on the condition of its independence and the absence of any conflict of interest….” The Regulations also list out detailed requirements of the resources that CABs should have to undertake the assessment and the qualifications of personnel who will undertake the said assessment. The Regulations clarify that the remuneration of the top-level management of the CABs and the personnel responsible for carrying out the assessment shall not be linked to the “number of assessments carried out or on the results of those assessments.” This is a commendable step to ensure neutrality and independence.
To maintain oversight over CABs, the Regulations propose that member states designate independent notifying authorities (“NA”) governed by Section 4 to undertake “assessment and notification” of CABs. Further, member states may designate national accreditation bodies to “monitor” CABs. The Regulations go a step further and lay down requirements in Article 20 to safeguard the impartiality and objectivity of NAs. We can therefore see multiple levels of checks and balance, firstly impartiality within CABs, secondly, oversight of CABs by NAs and thirdly, neutrality within NAs themselves.
3. obligations of economic operators
The Regulations define EOs to include the manufacturer, its authorised representative, the importer and the distributor. The obligations placed on manufacturers are listed out in Article 6. These include, amongst others, compliance with requirements set out in the Annex, drawing up technical documentation, carrying out conformity assessment procedures and drawing up EU declarations of the same, affixing CE markings (the general principles for the same are listed out in Article 15 of the Regulations) and affixing class identification number to products. Other obligations can be found in Article 6 of the Regulations.
It is noteworthy that the Regulations obligate the manufacturer to inform market surveillance authorities (“MSA”) established under the Regulations in case they have reason to believe that any products place on the market are not in conformity with the requirements under the Regulations. The Regulations put in place multiple provisions to enforce cooperation between manufacturers and national authorities to safeguard the interests of EU citizens and ensure compliance with the Regulations. Such provisions to ensure cooperation with national authorities have also been provided for importers and distributors. These provisions ensure that importers and distributors are obligated to inform the relevant national authorities in case any non-compliance product finds its way to the market.
Similar obligations as those placed on manufacturers are also placed on importers, and distributors. The Regulations also put in place a mechanism for inter se oversight amongst EOs by requiring downstream EOs (importers and distributors) to ensure that upstream EOs (manufacturers) have complied with their obligations. These provisions further strengthen compliance and deter manufacturers from cutting corners with respect to their obligations under the Regulations by giving importers and distributors an active role in ensuring compliance by manufacturers. An active role in enforcing compliance is also given to EOs by way of Article 11 of the Regulations which require them to provide certain information to MSAs upon being requested to do so.
An interesting provision of the Regulations states that importers and distributors shall be considered manufacturers for the relevant chapter if they place a product on the market under their own name or trademark or modify the product already on the market in such a way that affects its compliance status. This goes to establish compliance responsibility commensurate with any profit or initiative taken by certain EOs to earn profit.
4. Market surveillance and border control
The Regulation proposes market surveillance and control of products entering the Union market, under Article 35. The MSAs of respective member states shall be responsible for evaluating any product which has been acted against by other member states or which they have reason to believe presents a risk to the health or safety of persons or to other aspects of public interest.
The MSAs shall also be empowered to direct the respective EOs to take corrective action to make any non-compliant product, compliant, or to withdraw the product from the market or to recall it within a reasonable period. Additionally, the MSAs are required to inform the relevant notified authorities as well as the Commission and other member states if they believe the non-compliance affects the latter’s jurisdiction as well. Such safeguards are also strengthened by Article 36 (6) of the Regulations which require member states other than the member state initiating the corrective procedure to swiftly supply the Commission and the other member states with any additional information that it has regarding the non-compliant product.
It is noteworthy that MSAs are empowered to prohibit, restrict, recall or withdraw any product which EOs fail to bring into compliance in the reasonable period of time mentioned in the paragraph above.
5. Other important provisions
The Regulations even allow for scrutiny of compliant products in certain cases. Further, brief requirements are listed out for UAS falling in the ‘certified’ and ‘specified’ categories and for Third-country UAS operators. To augment the credibility of CABs, the Regulations propose an appeal mechanism from the decisions of CABs under Article 31 of the Regulations.
The Regulations are a commendable step to establish a uniform regulatory framework for UAS to be operated in the European Union as well as ensuring the safety and privacy of its citizens with respect to such use. India has also recognised the importance of such regulation of UASs and accordingly India’s Directorate General of Civil Aviation (“DGCA”) published the ‘Requirements for Operation of Civil Remotely Piloted Aircraft System (“RPAS”)’ which is part of the Civil Aviation Requirements (“CAR”) announced under the provisions of Rule 15A and Rule 133A of the Aircraft Rules, 1937. India may take inspiration from the Regulations to fill in the gaps in the requirements for operation of RPAS. Such a comparison of the two documents is beyond the scope of this blogpost.
 Refer Article 3 (11) of the Regulations.
 Refer Article 3 (17) of the Regulations.
 Refer Article 3 (1) of the Regulations.
 Refer Article 22 (3) of the Regulations.
 Refer Article 22 (3) of the Regulations.
 Refer Article 22 (6) of the Regulations.
 Refer Article 22 (7) of the Regulations.
 Refer Article 22 (8) of the Regulations.
 Refer Article 19 (1) of the Regulations.
 Refer Article 19 (2) of the Regulations.
 Refer Article 19 (17) of the Regulations.
 Refer Article 17 of the Regulations.
 Refer Article 13 of the Regulations.
 Refer Article 3 (23) of the Regulations.
 Refer Article 6 (9) of the Regulations.
 Refer Article 8 (7) and (9) of the Regulations.
 Refer Article 9 (2), (4) and (5) of the Regulations.
 Refer Article 8 of the Regulations.
 Refer Article 9 of the Regulations.
 Refer Article 10 of the Regulations.
 Refer Article 36 of the Regulations.
 Refer Article 36 of the Regulations.
 Refer Article 36 (2) of the Regulations.
 Refer Article 36 (4) of the Regulations.
 Refer Article 38 of the Regulations.
 Chapter III of the Regulations.
 Chapter IV of the Regulations.
 These rules were announced in exercise of the powers conferred by sections 5 and 7 and sub-section (2) of section 8 of the Aircraft Act, 1934 (XXII of 1934) and section 4 of the Indian Telegraph Act, 1885 (XIII of 1885), and in supersession of the Indian Aircraft Rules, 1920,