Delay in adopting EU drone regulations – Commentary

introduction
European drone regulations
Swiss parliamentary motion
Go forward

introduction

Switzerland is home to an advanced ecosystem for drones. According to a recent report by the Drone Industry Association Switzerland, Swiss drone companies are expected to increase their revenues from 521 million Swiss francs in 2021 to 879 million Swiss francs in 2026. The industry, which is mainly clustered around the two ETH universities Zurich and EPFL Lausanne, created approximately 3,000 jobs. The report highlights that Switzerland ranks first in the world in terms of market size per capita.

The Swiss drone industry needs a modern legal framework to stay at the forefront of this key technology of the future.

European drone regulations

At European level, a uniform regulatory framework for civilian drones entered into force on December 31, 2020. The framework mainly consists of two related regulations:

• Delegated Regulation (EU) 2019/945 on unmanned aircraft systems and third country operators of unmanned aircraft systems; and
• Implementing Regulation (EU) 2019/947 on the operation of unmanned aircraft.

Although Switzerland is not a member of the European Union, since 2002 it has adopted most of the European Union’s aviation laws through the EU-Switzerland Air Transport Agreement. The Swiss government had planned to adopt the two EU drone regulations on this basis. However, this process has stalled at the moment.

Swiss parliamentary motion

EU drone regulations would have introduced new rules and procedures for drone manufacturers and operators in a number of areas. The regulations would also have affected flights of traditional model aircraft. The Swiss model aircraft community has been highly critical that the regulations pose a threat to their decades-old hobby.

A parliamentary motion was therefore tabled, asking to exclude the issue of model aircraft from the adoption of EU Regulation 2019/947 and to leave it within the framework of national law. While the Federal Council advised against the motion, both chambers of the Swiss Parliament approved it.

Therefore, EU drone regulations did not enter into force in Switzerland on December 31, 2020, as it did in EU member states. For the time being, national law continues to apply to drones and model civil aircraft flying in Switzerland.

Parliament did not attach much importance to the fact that Switzerland cannot decide unilaterally under the bilateral agreement which provisions of an EU regulation it wishes to adopt and which it does not. The partial adoption of an EU regulation requires the consent of both parties. The Federal Council has been tasked with persuading the European Commission to obtain the exclusion of model aircraft from the scope of the regulations if Switzerland adopts them, but this is unrealistic and will likely end in a stalemate.

At the same time, the Federal Office of Civil Aviation (FOCA) consulted the players in the Swiss drone ecosystem. The result was a mix of opinions on the effects of not temporarily adopting the European drone regulations in Switzerland.

Go forward

The Swiss Parliament will likely have to deliberate and decide again whether to fully adopt the EU drone regulation, including its provisions on model aircraft. The parliamentary majority will hopefully vote in favor of their adoption. The following arguments, some of which were put forward during the stakeholder consultation, support this position.

Firstly, EU drone regulations introduce only minor and manageable constraints for model aircraft enthusiasts. In fact, the regulations provide a far-reaching exemption for members of model aircraft clubs or associations. At the request of a club or association, OFAC may issue an authorization for all members to fly model aircraft in accordance with conditions and limitations appropriate to the specific situation of the club or association. Based on this, OFAC may authorize flights in excess of normal weight and height limits. Electronic registration is compulsory, regardless of club or association membership, but it is done quickly and easily.

Secondly, as a member of the European Aviation Safety Agency (EASA), Switzerland can play an effective role in shaping aviation law at European level. FOCA has actively participated in the process of drafting European regulations on drones. The risk-based approach to licensing complex drone operations (c. OFAC was also able to ease the requirements for model aircraft in the original draft EASA regulations. On the other hand, pursuing an isolated path would reduce Switzerland’s impact and influence on future EU aviation and drone laws Failure to adopt EU drone regulations would also reduce the influence of Swiss drone manufacturers and operators on future regulations and standards that will govern their industry.

Third, the EU drone regulations form the basis of a modern legal framework, which will provide the Swiss drone industry with full access to the EU market. Current Swiss laws do not allow this. Although European harmonization of rules may bring more complexity for individual businesses in some areas, this is offset by the ability to seamlessly expand businesses and activities across Europe. On the other hand, failure to adopt European drone regulations would lead to the parallel application of two different (and potentially contradictory) legal frameworks. Companies would face additional workloads and cumbersome authorization procedures for cross-border drone use.

Fourth, EU drone regulations lay the initial groundwork for the unmanned traffic management system, or “U-Space”, which aims to develop highly automated drone operations, including urban air mobility. In April 2021, the European Commission published a U-Space regulatory package. Switzerland is clearly committed to advancing the research, development and implementation of U-Space, but it is hard to see how this will play out without subscribing to the European drone framework.

For more information on this subject, please contact Andreas Fankhauser at bellpark legal ag by telephone (+41 43 204 0090) or by e-mail ([email protected]). The bellpark legal ag website can be accessed at bellparklegal.com.