The new reform of EU drone regulation is likely in order to establish a precise common framework for drone operations, at least in the civil field, taking into account both the Riga Declaration on Remotely Piloted Air Systems: Framing the future of aviation, of 6 March 2015, and the Resolution of the European Parliament on the safe use of remotely piloted aircraft systems (RPAS), commonly known as UAVs, in the field of civil aviation (2014/2243(INI)) (October 20, 2015) that followed (hereinafter, REP of 20 October 2015) as well as the proposal by the European Aviation Safety Agency (EASA) to establish common rules for drone operation in Europe from September, 2015, developed and materialized in a recent Proposed Amendment (NPA) first published in 2017 and after that adopted as Regulation (EU) 2018/1139 which will entry into force on 11 September 2018.
While Regulation 216/2008 refers to aircraft and drones within this group in a general way, it also therefore does so for unmanned aircraft regardless of whether they are remotely controlled or not (automated aircraft that include a flight program), the REP of October 20, 2015 refers specifically to RPAs, that is, to remotely controlled drones. Moreover, this REP differentiates between two different categories of RPAs according to their nature, which should then be subject to different requirements within the EU regulatory framework: those for professional use and those for recreational use.
In addition, the REP of 20 October 2015 is clear in its anticipation of the need to “develop a clear, harmonized and proportionate European and global regulatory framework”, removing the 150 kg threshold, and “replacing it with a regulatory framework for the EU that is coherent and comprehensive”, on the basis “of a risk assessment that avoids the imposition of disproportionate regulations for companies, which are likely to undermine investment and innovation in the RPAs sector, while at the same time providing appropriate protection for citizens and helping to create sustainable and innovative jobs” (statements 20 and 21).
This is the main of the new EU common rules (Regulation (EU) 2018/1139) which include drones within the scope of more ambitious general civil aviation regulation in the European Union which principal aim is “to establish and maintain a high uniform level of civil aviation safety in the Union” (article 1(1) Regulation (EU) 2018/1139) and the “Single European Sky airspace” (article 40) which is based on a risk-based approach and the principle of proportionality (statement 27), and therefore attending “to the nature and risks associated with the different types of aircraft, operations and activities” (statement 12).
It is important to note that the New common rules include “unmanned aircrafts”, i.e. drones, not only RPA, meaning “any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board” (article 3(30) Regulation (EU) 2018/1139). There are doubts regarding the application of the new regulation for drones used indoors, in fact De Molina suggests that the EU regulation is based on the Single European Sky airspace and therefore “still only applies to outdoor drones” and therefore the solution is ethics (de Molina et all, 2018).
The specific regulation for drone technology is in the Section VII of the Regulation (EU) 2018/1139 “Unmanned Aircraft”, articles 55 to 58, based on a certification system to be implemented by the Commission.
Of course at national or local level, the possibility of domestic regulation is determined by European regulation (Sarrión Esteve, Benlloch Domènech, 2017: 123) and the new EU common rules although being a general regulation leaves EU member States the competence for regulate drone carrying out military, customs, police, search and rescue, firefighting, border control and coastguard or similar activities and services undertaken in the public interest by or on behalf public authorities and the personnel and organisations involved in these activities (article 2(3a) Regulation (EU) 2018/1139). Nevertheless, Member states can consider – due to safety, interoperability or efficiency gains grounds- preferable to apply instead of their national law the EU regulation (statement 18 and article 2(6) Regulation (EU) 2018/1139).
But although the EU regulation is also open to a degree of flexibility “taking into account various local characteristics within individual Member States, such as population density” (statement 27 new EU common rules) it not allows EU Member States to except the application of the regulation to the design, production, maintenance and operation activities of unmanned aircrafts (article 2(8) Regulation (EU) 2018/1139).
Nevertheless, the new EU common rules stipulate that EU Member States have the possibility to “lay down national rules to make subject to certain conditions the operations of unmanned aircraft for reasons falling outside the scope of this Regulation, including public security or protection of privacy and personal data in accordance with the Union Law” (article 56(8) Regulation (EU) 2018/1139).
Therefore, National Legislation can introduce more requirements for drone operations under public security or fundamental rights protection issues in accordance with the EU law.
Acknowledgements. This post has been developed thanks to the Independent Thinking UNED Research project Actual challenges for the regulation of the civil use of drones (DroneLawChallenges).
I will present my paper Actual Challenges for fundamental rights protection in the use of drone technology” in the upcoming UACES Annual Conference, Bath, at the Panel 408: UACES Research Network: Advances in Unmanned-Vehicle Research in a European Security Context
More about dronelawchallenges:
De Miguel Molina, M., Santamarina Campos, V., Carabal-Montagud, M.A., De Miguel Molina, B. (2018). Ethics for civil indoor drones: a qualitative analysis, International Journal of Micro Air Vehicles, 2018. Available at: http://journals.sagepub.com/doi/10.1177/1756829318794004
Sarrión Esteve, J. (2014). Actual Trends and Challenges of the Constitutional Fundamental Rights and Principles in the ECJ Case Law from the Perspective of Multilevel Constitutionalism. Available at SSRN: https://ssrn.com/abstract=2656394 or http://dx.doi.org/10.2139/ssrn.3014376
Sarrión Esteve, J. (2017). El régimen jurídico de la utilización de los drones. Una aproximación multinivel a la legislación europea y española. Revista de la Escuela Jacobea de Postgrado, 12, 103-122.
Sarrión Esteve, J. Benlloch Domènech, C. (2017). Rights and Science in the drone era. Actual Challenges in the civil use of drone technology. Rights and Science: R&S, 0, 117-133. Available at https://rightsandscience.juri-dileyc.com/wp-content/uploads/sites/6/2017/10/J.-Sarrio%CC%81n.-C.-Benlloch.-Rights-and-science-in-the-drone-era.pdf
Sarrión Esteve, J. (2018). Actual Challenges for Fundamental Rights Protection in the Use of Drone Technology (August 27, 2018). Available at SSRN: https://ssrn.com/abstract=3239562
 Riga Declaration on Remotely Piloted Air Systems: Framing the future of aviation, 6 March 2015, available at: http://ec.europa.eu/transport/modes/air/news/doc/2015-03-06-drones/2015-03-06-riga-declaration-drones.pdf (Accessed 25 August 2018)
 European Parliament resolution of 29 October 2015 on the safe use of remotely piloted aircraft systems (RPAS), commonly known as UAVs, in the field of civil aviation (2014 / 2243 (INI)), available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2015-0390+0+DOC+PDF+V0//ES (September 27, 2016)
 EASA. European Aviation Safety Agency, Proposal to establish common rules for the operation of drones, presented firstly on September 2015, available at: https://www.easa.europa.eu/download/ANPA-translations/205933_EASA_Summary%20of%20the%20ANPA_ES.pdf (Accessed 27 September 2016)
 EASA. European Aviation Safety Agency, Notice of Proposed Amendment 2017-5 (A) Introduction of a regulatory framework for the operation of drones, available at: https://www.easa.europa.eu/system/files/dfu/NPA%202017-05%20%28A%29.pdf (Accessed 25 August 2018)
 Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91. OJEU L 212/1 (August, 22, 2018).
 However, the EU new common rules introduce an open concept of unmanned aircraft and if one reads article 2 It is not so clear that it only applies to outdoors drones, it seems to me that the Regulation covers in general drones.
 In particular a Member State may decide to apply concrete EU rules in the activities of national competence “where it considers that, considering the characteristics of the activities, personnel and organisations in question and the purpose and content of the provisions concerned, those provisions can be effectively applied”. This decision must be notified to the Commission and the Agency with all relevant information (art. 2.6 New common rules). It is a revocable decision.
 It is interesting because EU Member States may decide to exempt from the EU regulation several categories of aircrafts: aeroplanes, helicopters, sailplanes, powered sailplanes with some requirements, but not for unmanned aeroplanes, unmanned helicopters, unmanned sailplanes, unmanned powered sailplanes. There is a general presumption of more risk in unmanned vehicles that in human drived ones.
 There is a map with national regulation development at DroneRules.eu, Dronerules consortium, Facilitating Access to Regulation for Light Remotely Piloted Aircraft Systems (RPAS), http://dronerules.eu/en/recreational/regulations [Accessed 25 August 2018], and UAV Coach Master List of Drone Laws, https://uavcoach.com/drone-laws/ [Accessed 25 August 2018].COMMENT