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09 December 2015
Drones, also known as remotely piloted aircraft systems or unmanned aerial vehicles, were originally used for military purposes. However, they are increasingly being used worldwide for commercial and private purposes, and Belgium is no exception to this trend. Recent initiatives illustrate growing interest in this up-and-coming industry, such as the launch of Belgium's first drone knowledge centre in Genk in October 2014 and the establishment of a test site for drones at Leuven University. Drones can be bought from consumer electronics retailers as easily as a mobile phone and it is estimated that Belgians buy 1,000 to 2,000 new drones each month. However, the development of what appears to be a promising industry has been seriously hindered by the lack of specific legislation.
Drones were first used in Belgium in 2008. Since then, the need for specific legislation has been discussed, but the legislature has yet to introduce a proper drone law. As a result, the commercial use of drones is governed by the general air traffic regulations in the Act of June 27 1937 and the Royal Decree of March 15 1954. These regulations do not formally prohibit the commercial use of drones; however, this does not mean that their commercial use is allowed. Drones fall under the broad definition of an 'aircraft' under Belgian law and, pursuant to Article 40 of the 1954 royal decree, aircraft are prohibited from operating without valid airworthiness and registration certificates from the Belgian Civil Aviation Authority (BCAA). The catch-22 is that drones cannot be granted airworthiness certificates or registered as aircraft, which makes their commercial use impossible in practice. Under the Royal Decree of March 16 2009, the BCAA can issue air traffic authorisation to aircraft without valid registration or airworthiness certificates under certain circumstances. However, the only waivers granted in this regard have been for drones used for scientific, research or testing purposes.
The regulations are clearer when it comes to the recreational use of drones. Pursuant to Ministerial Circular CIR/GDF-01 of June 1 2005, the use of 'aero models' – defined as remote-controlled aircraft used for recreational purposes which transport no persons or goods – is allowed, provided that:
The use of drones by children under 14 is also permitted, as long as the drone can be classified as a toy pursuant to the Royal Decree of January 19 2011 on toy safety and is used on private property.
The rapid growth of the drone industry worldwide, pressure from lobbies such as the Belgian Unmanned Aircraft System Association and the rising number of accidents and incidents involving drones have pushed the Belgian government to create a long-awaited set of rules on the use of drones for commercial and recreational purposes.
The Ministry of Transport announced a draft royal decree in April 2015 on regulating the civil and commercial use of drones. However, it will not apply to toy drones used by children under 14 or drones used solely for recreational purposes. Use of the latter will be allowed in principle if the drone's starting weight is less than 1 kg and its use complies with several requirements (eg, drones cannot be flown in public spaces in urban areas). The rules for the commercial use of drones will be comprehensively stricter. Commercial operators will need to register their activity with the BCAA and take out specific insurance.
The draft decree has already received positive feedback from the Privacy Commission and was recently scrutinised by regional governments. The decree has also been approved by the Belgian Unmanned Aircraft System Association. However, critics note that the permitted flying heights are lower than those in other European countries and the decree does not address issues of privacy sufficiently. According to recent Ministry of Transport declarations, the decree should be adopted by the end of the year.
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.
Karol Bucki assisted in the preparation of this update.
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Pierre D Frühling