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14 November 2018
On 4 July 2018 the European Parliament and Council adopted EU Regulation 2018/1139, which entered into force on 11 September 2018 and replaced the basic regulation (ie, EU Regulation 216/2008). Therefore, as of 11 September 2018, the basic regulation was repealed (Article 139(1) of EU Regulation 2018/1139).
The new basic regulation promises a number of significant changes to the German aviation landscape over the next five years. It is based on the new aviation strategy adopted by the European Commission on 7 December 2015, which aims to:
The implementing rules set out in the previous basic regulation will be amended to accord with the new basic regulation within five years (ie, no later than 12 September 2023). However, before their full adoption, certain terms in the implementing rules (eg, 'commercial operation' and 'complex motor-powered aircraft') will be understood as referring to the definitions set out in the previous basic regulation (Article 140(2) of EU Regulation 2018/1139).
The articles of each version of the basic regulation are compared in Annex X, which is provided at the end of the new basic regulation.
Application of new basic regulation to all unmanned aircraft
The numbering (and some of the contents) of the annexes has been changed and new annexes have been added.
Annex I now lists the aircraft to which the basic regulation does not apply (ie, aircraft referred to in Article 2(3)(d) – formerly Annex II Aircraft – which includes historic aircraft, aircraft for research and military aircraft, unless the aircraft is of a type for which a design standard has been adopted by the European Aviation Safety Agency (EASA)). However, unmanned aircraft with an operating mass of up to 150kg are no longer on the 'exception list' because the new basic regulation applies to all unmanned aircraft (Article 2(1)(b)(iii), Articles 55 to 58 and the new Annex IX on the essential requirements for unmanned aircraft).
'Unmanned aircraft' are defined as any aircraft that operate or are designed to operate autonomously or are piloted remotely without a pilot on board (Article 3(30)). Pursuant to Article 56, a certificate or declaration (in accordance with the delegated acts referred to in Article 58 and the implementing acts referred to in Article 57) may be required in order to produce, maintain or operate unmanned aircraft.
However, by way of the derogation set out in Articles 55 and 56, the relevant provisions of EU Regulation 216/2008 will continue to apply until the delegated acts referred to in Article 58 and the implementing acts referred to in Article 57 enter into force (Article 140(5)). Further, those regulations will not prejudice the German authorities' ability to establish national rules for operating unmanned aircraft under certain conditions for reasons which fall outside the scope of the new basic regulation, including public security or the protection of privacy and personal data in accordance with EU law (Article 56(8)).
In Germany, a new law regarding unmanned aircraft came into effect on 1 October 2017 and established, among other things, that the operation of certain unmanned aircraft (or any unmanned aircraft under certain conditions) is subject to approval by the authorities (Sections 21a to 21f of the Air Traffic Ordinance). However, the requirements as to when unmanned aircraft and their operators require certification differ from those in the new basic regulation. Therefore, the new law concerning unmanned aircraft may need to be amended, particularly when the new delegated acts and implementing acts enter into force (for further details please see "German drone regulation superseded by new EU aviation safety rules").
Moreover, the German authorities must ensure that information regarding the registration of unmanned aircraft and their operators that are subject to the new basic regulation's registration requirements is stored in digital, harmonised and interoperable national registration systems.
Ultralight airplane limit increased to 600kg
Under Article 2(8) of the new basic regulation, the German authorities need not apply the regulation to operations of ultralight airplanes (other than unmanned) which have no more than two seats and a maximum take-off mass of less than 600kg (the previous limit was 450kg; see Annex II of the old basic regulation).
Seat of EASA
Article 94(3) of the new basic regulation expressly states that the permanent seat of the EASA is Cologne. Further, Article 130 states that the EASA and Germany will enter into a headquarters agreement.
Revised rules regarding certification, oversight and enforcement
The Federal Aviation Office could lose some of its control over certain tasks relating to air operator certification, oversight and enforcement. Under the new basic regulation, the competent authorities that issue air operator's certificates and operating licences may be different (eg, it could be either an EU member state or the EASA). Therefore, according to Article 134, EU Regulation 1008/2008 has been amended as follows:
(b) it holds a valid AOC issued in accordance with Regulation (EU) 2018/1139 of the European Parliament and of the Council either by a national authority of a Member State, by several national authorities of Member States acting jointly in accordance with Article 62(5) of that Regulation or the Agency. (Emphasis added.)
1. Aircraft used by a Community air carrier shall be registered, at the option of the Member State whose competent authority issues the operating license, either in its own national register or in the national register of another Member State. However, when used under a dry lease or a wet lease agreement in accordance with Article 13, such aircraft may be registered in the national register either of any Member State or of a third country.
Thus, the German authorities may request the EASA or another EU member state to carry out the tasks relating to certification, oversight and enforcement referred to in Article 62(2) with respect to any or all natural and legal persons, aircraft, safety-related aerodrome equipment, air traffic management and air navigation systems and constituents, flight simulation training devices and aerodromes for which the German authorities are responsible under the new basic regulation and the delegated and implementing acts adopted on the basis thereof (Article 64).
Once the EASA or EU member state has accepted such a request, it will become the competent authority responsible for the tasks covered by that request and the German authorities will be relieved of the responsibility for those tasks (Articles 64(1) and 64(2)). Having reallocated the responsibility for such tasks to the EASA or another member state, the German authorities could revoke this reallocation at any time (Article 64(8)).
Further, organisations may request the EASA to act as the competent authority responsible for the tasks relating to certification, oversight and enforcement with respect to that organisation if it holds or is eligible to apply for a certificate from the national competent authority of one EU member state, but has or intends to have a substantial proportion of facilities and personnel covered by that certificate located in one or additional member state(s) (Article 65). Such a request may also be made by two or more organisations which form part of a single business group if each organisation:
For further information on this topic, please contact Christine Kranich at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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