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23 November 2016
A legal vacuum has been filled with a new royal decree on "the use of remote controlled aircraft in Belgian airspace", which entered into force on April 25 2016 (for further information please see "Drones: unidentified legal objects?").
The Belgian Unmanned Aircraft System Association defends the interests of all players in the Belgian drone market and comprises over 180 members. It has played an important role in the industry's adoption of the decree and made significant efforts to inform members of the new legal framework and its consequences for the sector.
All market players ‒ from manufacturers to service providers ‒ can now develop their activities within the new legal framework, under which safety is paramount. The new regulatory regime provides the required legal certainty to commercialise and operate drones in Belgium, which has been welcomed by the sector.
The decree applies to all drones with a maximum take-off weight of 150 kilograms (kg) that take off or land in Belgium or operate in Belgian airspace.
The decree does not apply to drones that are flown inside buildings or used for military, customs, policy or search and rescue purposes (or similar).
The use of an autonomous drone (ie, a system that does not allow a pilot to intervene and take control of a flight) remains forbidden. Transporting cargo, mail or passengers using drones is also forbidden.
The decree creates a specific remotely piloted aircraft systems register in which all drones must be registered. A request for registration must be addressed to the Belgian Civil Aviation Authority (BCAA). Online forms are available and registration certificates will be delivered accordingly.
The decree designates three classes of drone in order to enhance safety: Class 1 drones, Class 2 drones and drones used solely for private and recreational purposes.
User obligations differ between each class: the use of Class 1 drones is considered riskier than the use of Class 2 drones; hence, the obligations are more onerous for Class 1 drones than for Class 2 drones. As for drones used solely for private and recreational purposes that comply with the strict requirements established under the decree (eg, weighing less than 1kg and not being flown in public areas), no licensing, certification or registration is necessary.
In addition to air traffic rules, the decree contains several other obligations for drone pilots that relate to certification or licensing. As drones cannot be commercially operated without prior certification or licensing, pilots will need prior certification if they wish to operate a Class 2 drone and a prior licence if they also wish to operate a Class 1 drone.
Drone manufacturers must, among other things, comply with specific technical requirements and apply for conformity certificates.
As regards insurance requirements, the decree obliges commercial and professional drone operators to have third-party liability insurance relating to their aviation activities and use of their drones in accordance with Article 7 of EU Regulation 785/2004 on insurance requirements for air carriers and aircraft operators. Article 7 requires operators to have third-party liability insurance with a minimum coverage of 750,000 special drawing rights.
The decree obliges non-commercial operators to have third-party liability insurance, but does not refer to the minimum coverage established in Article 7.
The decree does not oblige operators to insure the hull of the drone.
Since the decree entered into force, 450 people have registered for the BCAA exams to obtain certification or a licence to operate a drone commercially.
Further, discussions are ongoing with the competent minister regarding implementation of the decree. This fast-growing sector requires a legal framework that promotes innovation and competition.
For further information on this topic please contact Pierre Frühling or Elisabeth Decat at Holman Fenwick Willan LLP by telephone (+32 2 643 34 00) or email (firstname.lastname@example.org or email@example.com). The Holman Fenwick Willan website can be accessed at www.hfw.com.
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Pierre D Frühling