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12 September 2018
On 26 June 2018 the European Council adopted a new regulation which provides basic rules for civil aviation security across EU member states.
Previously, EU competency in Germany had been limited to unmanned aircraft above 150kg. Therefore, any lighter unmanned aircraft or drone fell under the Regulation for the Operation of Unmanned Aircraft Systems (for further details please see "New regulation on drones planned in Germany").
However, the new regulation envisages EU-wide rules for civil drones of all sizes, ranging from drones weighing only a few grams to large unmanned aircraft that can be as heavy and fast as airplanes. The extent to which the German authorities will adapt to the new regime remains to be seen.
In addition to regulating drone of all sizes, the new EU regulation introduces proportionate risk and performance-based rules.
Therefore, unmanned aircraft that present a high risk (eg, commercial aviation aircraft) will need to undergo a more detailed approval procedure and meet certification and registration requirements. For example, operators must register their drones if they transfer more than 80 joules of kinetic energy on impact with a person.
Aircraft that present a low risk (eg, light-sport aircraft) will need only to conform to standard EU market surveillance mechanisms such as the CE mark, which indicates that a product conforms with EU health, safety and environmental protection requirements. CE marking will be particularly useful for low-risk mass-produced unmanned aircraft.
The new regulation's risk-based approach aims to provide a framework for safely operating drones while maintaining growth and innovation in the aviation sector.
In Germany, the existing requirement that all drone owners attach a plaque to their aircraft specifying their name and address will likely remain, but it will need to be expanded to ensure that both the drone and its operator are registered. The evidence currently required for drones weighing more than 2kg will probably be replaced by a certification procedure in accordance with the new EU rules.
Further, the maximum height at which drones are legally permitted to fly in Germany (100 metres) will likely change. While the EU regulation permits flights up to a maximum of 120 metres, it provides only for minimum requirements. Therefore, it remains to be seen whether Germany will maintain its stricter limit or adapt to the EU standard.
Even under the new regime, German regulation may still provide for location-specific requirements, such as those relating to population density and air traffic. It may also define the zones where drone operations are prohibited, restricted and permitted.
For example, as the current regulation on drones sets out that model aircraft require only a plaque, aeromodelling is widely permitted; however, the regulation does not apply to model airfields. This exception will most likely remain valid, as the EU regulation leaves model airfield regulation in the hands of the German authorities.
In Germany, operating drones in and over sensitive locations (eg, police and rescue worker areas, crowds, main traffic routes, flight arrival and departure areas) and operating drones which weigh more than 0.25kg over residential areas are currently forbidden. As the new EU regulation permits German authorities to define these zones, these prohibitions are likely to remain in force.
However, the German authorities must clarify whether they intend to uphold the existing drone classification system based on weight or adapt to the EU approach and classify drones based on risk and performance.
The main advantage of the new EU regulation on civil aviation security is that it provides a unified law covering the basic principles for safely using all types of drone. Such clarification is welcome news for Germany, where previously only fragmented rules and regulations on lighter unmanned aircraft and drones existed.
However, as the EU regulation fails to address every issue relating to drone safety, Germany's existing drone regulation will continue to apply where no new rules are implemented or where Germany remains the competent authority.
For further information on this topic please contact Linda Sellami at Arnecke Sibeth Dabelstein by telephone (+49 30 814 59 13 00) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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