Regulation 2019/947: implications of the new European laws on drones in Spain

Written on 22 Mar 2021

As from 31 December, the new European Regulation on the rules and procedures for the operation of unmanned aircraft in all Member States, poses significant changes with respect to the previous legal regime in Spain in this area. The provisions of the Regulation could enable new business models that were not previously possible under the laws then in force.

The regulatory framework on unmanned aircrafts (drones) in Spain has undergone many changes since the first provisions on the matter were approved in 2014, possibly due to the increase in the recreational use of drones and their great potential in certain operations (such as home delivery of online purchases). In an effort by the European legislator to establish common requirements across the EU for the operation of drones, Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft (the "Regulation") was adopted and has become applicable in all Member States as of 31 December 2020.

The Regulation is applicable to any drone operation regardless of the weight of the drones or their purpose (both recreational and professional), for which it establishes a set of requirements that depend on the category in which the operation of the aircraft is categorised (that is, under the Regulation, open, specific or certified). However, the Spanish laws on the matter (Royal Decree 1036/2017) will continue to be applicable in those aspects that do not contravene the Regulation and in those aspects that are not regulated therein.

According to the distinction made by the Regulation, the open category covers those drone operations involving a low risk (e.g. light recreational drones), which do not require an operational authorisation by the competent authority for the purposes of the Regulation (in Spain, the State Aviation Safety Agency "AESA"), nor a declaration by the operator prior to commencing the operation. As for the specific category, this comprises all those drone operations involving a medium risk (e.g. drones flying over concentrations of people), which would require an authorisation from AESA to operate in Spain, as well as the application of the corresponding adequate mitigation measures. Exceptionally, operations under the specific category may be conducted without an AESA authorisation, if (i) the operations are conducted according to one of the standard scenarios of the Regulation (explained below) and the operator submits an operational declaration to AESA or (ii) the operator holds a light UAS operator certificate with the relevant entitlements. Finally, the certified category covers those drone operations involving high risk (e.g. drones carrying dangerous goods), which require the drone to be certified, the drone pilot (if applicable) to hold a licence, and the drone operator to hold an air operator's certificate issued by AESA.

In this regard, the requirements for operating in Spain under the Regulation depending on the relevant category vary significantly compared to the requirements set forth in the Royal Decree 1036/2017. In particular, the concepts of specialised aerial operation and experimental flight no longer apply, which included all drone operations in Spain and which were then subject to a prior notification or authorisation regime. It is important to note that certain operations under Royal Decree 1036/2017 that required a certain type of entitlement can now be carried out under the open category in accordance with the Regulation, hence these operations would now not require an entitlement from AESA. For example, topographic operations carried out with drones weighing less than 25 kilograms, at a height of less than 120 metres and within the visual line of sight of the pilot can be carried out in Spain without any type of entitlement.

In any event, the Regulation establishes that the entitlements to operate and to pilot drones obtained under the corresponding national laws will remain valid until 1 January 2022. After that date, operators that carried out their activities in Spain under the prior communication regime will have to assess whether they can continue to operate in the open category, whether their operations can be covered under a standard scenario so they only are required to submit an operational declaration, or whether they shall seek authorisation. AESA will be responsible for converting the authorisations obtained in accordance with Royal Decree 1036/2017 and which are compatible with the Regulation before the aforementioned date.

Further to the above, we clarify that the Regulation provides two standard scenarios for operating under the specific category without requiring authorisation from the competent authority. Standard Scenario 1 ("STS-01") comprises of operations conducted within the visual line of sight of the pilot over a controlled area of land within a populated environment. Standard Scenario 2 ("STS-02") includes operations to be conducted beyond the visual line of sight of the pilot in a controlled area of land within a sparsely populated environment. In any case, the Regulation sets out a number of mitigation measures for each standard scenario to be carried out by individual operators seeking to benefit from a particular standard scenario.

Furthermore, under the provisions of the Regulation, all operators whose operations may pose a risk to safety, security, privacy and the protection of personal data or the environment must register themselves to AESA (and include the registration number on their aircraft). This is, for purposes of the Regulation, (i) any drone operation under the specific category regardless of the weight of the drone, and (ii) operations conducted under the open category that are carried out by drones weighing more than 250 grams or equipped with a sensor capable of collecting personal data. In addition, the owner of a drone whose design is subject to certification must also register the drone to AESA. It is important to note that entitled operators under the Royal Decree 1036/2017 (either under a prior communication regime or by authorisation) are not exempt from this registration requirement.

On a separate note, we understand that the Regulation could enable the automation of services such as home delivery services. In this sense, new operators could emerge in the future operating under the specific or certified category, as appropriate, that provide these services via drones. In any case, we understand that such operations will have to be authorised by EASA as, in principle, they would not fall under the standard scenarios set out in the Regulation and mentioned above (as the operation would probably be carried beyond the line of sight of the pilot and in populated areas).

The Regulation should have been applicable from 1 July 2020 but, due to the current extraordinary circumstances caused by the Covid-19 pandemic, the various operators were allowed to continue their activities under the existing requirements prior to the Regulation for an additional 6 months. After this period of time, the Regulation is now applicable in Spain and operators must adapt to the new regulatory framework. The Spanish government has prepared a draft Royal Decree to complement the legal regime offered by the new European Regulation on drones, which has already been submitted for public consultation.