Introduction

Since the EU Commission Implementing Regulation (2019/947/EU) on the rules and procedures for the operation of unmanned aircraft systems (UAS) (24 May 2019) took effect on 31 December 2020, air operations with UAS (also known as 'drones') have been governed by EU legislation.

The EU legal framework leaves member states with a certain level of flexibility to regulate matters outside the scope of the EU Commission Implementing Regulation. Further, within the transitional period and until the complete implementation of the EU regulations in 2023, member states must adapt their domestic laws on UAS operations to the provisions of the EU regulations. Until such implementation is complete, both legal frameworks must coexist and not contradict each other. Thus, the assumption of competences in all EU territories is not on an exclusive basis.

Among the matters reserved for member states, the EU Commission Implementing Regulation provides that the competent authorities of each member state may have decision-making capacity in various areas, including:

  • the establishment of requirements and exemptions for non-EU Aviation Safety Agency operations under the member state's control, including the following activities:
    • military;
    • customs;
    • police;
    • search and rescue;
    • firefighting; and
    • border surveillance;
  • the establishment of a minimum age for UAS pilots;
  • the creation of national standard scenarios during the transitional period;
  • the establishment of obligations regarding UAS insurance;
  • the regulation of model aircraft and air shows and exhibitions; and
  • the definition of UAS geographical zones for safety, security, privacy or environmental reasons.

Adaption of domestic framework

Spain is developing domestic laws to adapt its regulations to the new EU regulations. A project of royal decree to adapt the legal framework on UAS operations in Spain is expected to be approved and take effect in 2021.

This project of royal decree will establish the measures and restrictions which will apply to operations within the competences of member states, including all of the aforementioned matters but with a particular focus on the UAS geographical zones established in the EU Commission Implementing Regulation.

In particular, the project of royal decree will seek to define the applicable requirements of such zones, highlighting the following:

  • UAS geographical zones for military, security and national defence will cover prohibited or restricted areas to facilitate UAS operations near to military facilities or their security zones. These zones will also cover critical infrastructure in strategical sectors.
  • UAS geographical zones for the protection of community infrastructure will establish certain operational requirements for UAS operations close to infrastructure facilities (eg, energy, water, gas and electricity supply facilities and telecoms facilities). Such requirements will also apply to UAS operations close to police stations, technology offices and private and public health facilities (eg, hospitals and clinics).
  • UAS geographical zones for citizen security and urban area protection will cover cities and assemblies of people in highly populated areas. To operate in these zones, UAS operators will have to communicate with the Ministry of the Interior 10 days before performing the activity. The ministry will be able to prevent the operation if danger is likely or such operation would risk the protection of people on the ground (eg, where demonstrations are taking place).
  • UAS geographical zones for the safety of operations close to aerodromes will establish the safety distance and air volumes with which UAS operations must comply. These zones will apply to airports and heliports and UAS operators who want to fly close to or over such areas will have to request the prior authorisation of the manager or the person in charge of the air facility.
  • UAS geographical zones for operational safety in controlled air space and flight information zones will establish requirements for coordination between the UAS operator and the air traffic service providers with which UAS operators must comply. Without such previous coordination, UAS operations will not be authorised. However, coordination will be unnecessary if the operation:
    • is a visual line of sign operation;
    • does not exceed 60m from the ground; and
    • is not in a UAS geographical zone close to an airport or heliport.

Comment

Most of these UAS geographical zones will have the same requirement – namely, the UAS operator must apply for the special permit of the manager or entity entitled to the control of the zone to allow the flight within the limits of such zone. As well as the existing requirements provided in the EU Commission Implementing Regulation, pursuant to the project of royal decree, UAS operators will have to be aware of their obligation to carry out the necessary communications and gather the required permissions from the manager of each UAS geographical zone when preparing operation flight plans.

Similarly, in overcrowded cities (eg, Barcelona and Madrid), UAS operators will likely have to obtain multiple authorisations prior to performing UAS operations, with the risk that any denials may compromise operations. The appropriate coordination between UAS operators and entities or administrations in charge of each UAS geographical zone should be planned so that restrictions do not hinder the economic development of this sector.