European Union: Next Generation Civil Aviation: Unmanned Air Vehicles - Applicable Legislation And Shortcomings

Last Updated: 10 February 2012
Article by Clyde & Co LLP and Peter Macara

Unmanned air vehicles (UAVs) are demanding their place in the civil aviation sector. These remote controlled systems are already widely used for military operations and their development for extensive civil applications is promising.

The advantages of increasing the use of UAVs speak for themselves. Among other things, manned aircraft and helicopters are much more expensive to purchase and maintain; these self managing systems, unlike manned aircraft, can fly longer and do not require a fully licensed pilot; non-fixed wing versions can fly at low altitudes; they are ideal for lengthy routine operations. Presently, the commercial exploitation already stretches from unmanned earth observation and natural resources management to law enforcement, only hindered by technological imperfections.

To be able to incorporate this kind of next generation aviation into the existing infrastructure legal clarity will need to be brought to the regulatory side relating to airworthiness, UAV operations and airspace.

Current legal framework

The 1944 Chicago Convention

The opportunity to grow can only be given to this industry if these operations can be performed outside segregated areas both in national and international airspace. Yet presently the lack of appropriate airspace regulations for UAVs is a market restraint. The Chicago Convention – applicable only to civil aircraft and not state aircraft – already explicitly provided in its original version that pilotless aircraft shall not be flown over the territory of a contracting State without special authorization by that State and only under its conditions. These unilateral conditions could pertain to areas such as airworthiness. The Convention is worded in such a way that provisions on nationality, the obligatory display of marks and carriage of documents such as registration and airworthiness certificates are equally applicable to UAVs.

It will be for domestic legislators to draw up specific regulations relating to the awarding of these certificates. Issues concerning the standards used and multilateral recognition of these particular documents will have to be addressed.

EU Regulations 1592/2002 and 216/2008

The objective of Regulation 1592/2002 (the EASA basic Regulation) and later Regulation 216/2008 was to establish and maintain a high uniform level of civil aviation safety in Europe. The basic Regulation applies to the design, production, maintenance and operation of aeronautical products engaged in civil aviation. Annex 2 provides an exclusion both for "unmanned aircraft with an operating mass of less than 150 kg" and for aircraft "designed for research, experimental or scientific purposes, and likely to be produced in very limited numbers." These aircraft do not have to comply with the EASA airworthiness requirements. There is ambiguity in the interpretation whether UAVs in general would fall under this Regulation but it is arguable that since only certain UAVs are exempted all others are included. On this basis, save where otherwise provided, the design and manufacture of the UAVs must be in accordance with the relevant certification specifications similar to manned aircraft and they must be issued with a Certificate of Airworthiness.

EU Regulation 1149/2011

This latest Regulation updates Regulation 2042/2003 relating to the continuing airworthiness of aircraft, aeronautical parts and products and related administrative procedures. In it, a wide definition of aircraft is put forward as constituting any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth's surface.

These common technical requirements and procedures for ensuring the continuing airworthiness of aircraft and its components apply if the aircraft is either registered or operated in a Member State.

Nevertheless, the same exception for light UAVs below 150 kg applies and they are thus excluded from EASA responsibility. Also, when the products or the personnel are engaged in military or policing services or the initial design was intended for military purposes only the Regulations do not apply. Precisely because military and other governmental UAVs are exempted from the aforementioned formal airworthiness certifications they could be tested and developed so quickly.

The need for differentiation

UAVs, unlike traditional aircraft, should be approached as remote controlled aircraft integrated in a whole system comprising a control station, a communication link, and a launch and recovery element. Consequently, all these elements should be certified too since they are inherently part of the aircraft's operational capacity. The JAA, Eurocontrol and EASA have endorsed this position considering the insufficiency of traditional airworthiness requirements for these systems.

Considerations arise as how to approach the airworthiness certificates in case these individual elements would control multiple vehicles or different types of vehicles. These issues are now addressed by the European Organisation for Civil Aviation Equipment (EUROCAE) by way of developing standard technical regulations which embrace the whole UAV operational structure (staff, control stations, traffic controllers etc) and by ICAO's Study Group that especially focuses on the present shortcomings of the Standards and Recommended Practices (e.g. Search And Rescue).

It is arguably important for this industry to attain a set of rules for UAVs and their flight safety which are not too different from the existing ones for traditional aircraft. Safety standards and procedures should be apt for UAVs but they should not be unfairly required to comply with industry-specific higher standards. EASA's view seems to go in to same direction (see JAA - Eurocontrol initiative on UAVs: Taskforce Final Report – A concept for European Regulation for Civil Unmanned Air Vehicles, 11 May 2004).

Integration into airspace

Unlike military UAVs, civilian UAVs cannot benefit from segregated military airspace and should make use of common non-segregated airspace. For example, in the UK unmanned aircraft with a mass of more than 7 kg (excluding fuel) must not be flown within controlled airspace, restricted airspace or an Aerodrome Traffic Zone unless permission has been obtained from the relevant air traffic control authority.

With regard to the future, integrating UAVs in greater number into commonly used airspace will involve satisfying some concerns.

In attributing a certain segment of airspace, consideration needs to be given foremost to the categorisation of aircraft in combination with their precise function. It is arguable that categories should not be based on individual characteristics of the vehicle (e.g. equipment) but on parameters such as weight. This would also allow airworthiness requirements to vary depending on the take-off mass of the vehicle, as is the case with traditional aircraft. The combination of both could mean in practice that certain surveillance UAVs which theoretically would qualify to fly in very low airspace could be excluded since their airspeed or weight would be unsuitable.

In addition, efficient airspace management will need to manage not only the flight itself but also the intensity of surrounding traffic. The reserving of airspace segments specifically for UAV traffic may seem an option. However, considering the quantities of traffic at this stage and the applicability of aeronautical requirements that apply to manned aircraft, separate segments seem disproportionate. Nevertheless, the differences in automation, communication and situational awareness might require specific attention. Letting small UAVs operate for example in low uncontrolled airspace, which is unused by general aviation, is no solution either given the lower reaction time in case of signal loss and collision risk. Only the smallest of UAVs with a weight up to a few kilogrammes could be permitted without significant risk. So far, in Europe at any rate, there have been no reported cases of collisions involving UAVs.


It is important for this emerging sector that the present lack of clarity with respect to airworthiness, pilot certification and airspace use is dealt with. A set of requirements should be provided which can be quickly integrated into the existing framework and which approaches pilotless aircraft in a comprehensive system. The adaptation of the existing JARs and ICAO Annexes to include UAVs would be a first step in ensuring a global harmonisation. The different functions and types of UAVs and their interaction with the existing aviation infrastructure can only be addressed by a multi-layered solution that takes into account the relevant considerations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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