1. Introduction
As a branch of administrative law, the law of unmanned aerial systems is characterised by a non-standard system of legal sources. Until 2018, the vast majority of drone law regulation was created at national level, but since the entry into force of 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 Agency for the Safety of Air Navigation. (EU) 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Agency for Civil Aviation Safety and amending Regulations of the European Parliament and of the Council (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 of the European Parliament and of the Council (hereinafter Regulation 2018/1139 or the Basic Regulation), the sources of law have been extended to include European legislation and guidance documents created by the European Union Agency for Aviation Safety Aviation Safety (hereinafter referred to as EASA or the Agency).
Sources of drone law can be divided into three main categories: European law, national (Polish) law and soft law – guidelines from the President of the Civil Aviation Authority and Acceptable Means of Compliance/Guidance Material issued by EASA.
2. European law
This category of legislation includes a whole range of acts that relate both to the basics of flying unmanned aircraft, their design, production and certification, but also the rules that are the foundation for the creation of U-Space, geographical zones for BSP flights, and guidelines for operator training and registration.
The main acts in this category (although this is not an exhaustive list) are:
- Regulation 2018/1139 – this is the underlying regulation, setting out the basis for the operation of all aviation, including unmanned aircraft weighing less than 150 kg. Its primary objective is to establish and maintain a high uniform level of civil aviation safety in the Union. This act also contains delegations for the Commission to issue non-legislative acts – implementing regulations and delegated regulations. The Basic Regulation was the first to introduce a definition of a drone into European law: according to Article 3(30), an unmanned aircraft means any aircraft performing or intended to perform operations autonomously or being remotely piloted without a pilot on board.
- Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aerial systems and operators of unmanned aerial systems from third countries (as amended) – is an act whose scope is the production and release of different types of unmanned aircraft on the EU market.
- Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on rules and procedures for the operation of unmanned aircraft (as amended) – is the act that establishes the basis for flight operations, divides unmanned aircraft operations into three categories of flight; open, specific and certified. The legislation sets out the rules for the operation of unmanned aircraft, relates to personnel, including pilots of unmanned aircraft and organisations involved in operations using them. The act includes information on the training and examination of UAV pilots, the registration of operators, the creation of geographical zones for BSP flights and the use of standard scenarios Regulation 2019/947 also sets out the basis for the issuing of LUC certificates, or the determination by Member States of the possibility of flying within model associations and clubs.
- Commission Implementing Regulation (EU) 2021/664 of 22 April 2021 on the regulatory framework for U-space – this is the act that lays the foundations for the designation of U-spaces, i.e. special spaces where BSP operators and pilots will be provided with services to enable them to perform out-of-sight operations as safely as possible. The regulation will apply from 26 January 2023.
In addition to the aforementioned acts, there are also a number of regulations within the broad framework of European law which, in their scope, hook into the subject of unmanned aircraft or the issues of performing operations with them. These include Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on occurrence reporting, analysis and follow-up of civil aviation incidents, Commission Regulation (EU) No 139/2014 of 12 February 2014. laying down requirements and administrative procedures for aerodromes in accordance with Regulation (EC) No 216/2008 of the European Parliament and of the Council, or Commission Regulation (EU) No 1321/2014 of 26 November 2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on approvals of organisations and personnel involved in such tasks.
With the market for drones constantly evolving and finding new applications for them, it is difficult to create an exhaustive list of legislation that would guarantee a complete picture of drone regulation.
3. Polish law
As far as Polish law is concerned, regulations concerning unmanned aerial vehicles are limited to only a few legal acts, i.e. the Act of 3 July 2002. Aviation Law (as amended) and regulations issued on the basis of delegations contained therein. The author does not include in the so-called drone regulations acts concerning, for example, competition law or acts regulating the broadly defined conduct of business activities
By analogy with Regulation (EU) 2018/1139, it is not only the articles that speak explicitly about drones and their operators that apply to drones, but also the provisions on air navigation, certification of aeronautical products, different types of airspace, or those that speak about the tasks of the President of the Civil Aviation Authority. It is worth bearing this in mind, as it is easy to get caught up in the fact that apparently some thing in the regulations has not been regulated, but has been, only in a way that does not explicitly mention drones.
It should also be noted that the Polish Aeronautical Law until the date of writing (July 2022) has not been amended to reflect the revised terminology introduced in the Base Regulation 2018/1139, according to which the natural person actually responsible for flying an unmanned aircraft is called a pilot. It is still referred to as an operator in the Polish regulations.
Regulations explicitly treating UAVs may include:
Article 95 (1) A certificate of competence shall be a document stating the possession of certain qualifications and authorising the performance of certain aviation activities.
(2) Certificates of competency shall be issued for the following specialties of aviation personnel: (5a) operator of unmanned aircraft used for purposes other than recreation or sport.
Art. 126 (1) Unmanned aerial vehicle flights may be performed in Polish airspace.
(2) An unmanned aircraft (UAV) shall be equipped with the same flight, navigation and communication facilities as a manned aircraft operating under visual flight rules (VFR) or instrument flight rules (IFR) in a particular class of airspace. The derogations applicable in this respect for manned aircraft apply equally to unmanned aircraft (UAVs).
(3) Flights of unmanned aircraft equipped in accordance with paragraph 2 may be performed on the basis of a filed flight plan in the manner and under the conditions referred to in paragraph 5, subject to Article 149.
(4) Flights of unmanned aircraft not fitted with the equipment referred to in paragraph 2 may be performed in areas delimited from airspace open to the general public, taking into account the rules issued under Article 121(2).
(5) The Minister responsible for transport, in agreement with the Minister of National Defence, shall define, by way of an ordinance, the detailed manner and conditions for the performance of flights by unmanned aerial vehicles in Polish airspace and the procedures for cooperation between operators of such vehicles and air traffic service providers, taking into account the principles of safe use of airspace.
Article 126a. (1) An unmanned aircraft, including a flying model, may be destroyed, rendered inoperative or its flight may be overtaken where:
(1) the flight performance or operation of the unmanned aircraft:
(a) endangers the life or health of a person,
(b) poses a risk to protected facilities, equipment or areas,
(c) disrupts the mass event or endangers the safety of its participants,
(d) gives rise to a reasonable suspicion that it may be used as a means of a terrorist attack;
2) the unmanned aircraft performs flight in the airspace in the part in which flight restrictions have been introduced or over the territory of the Republic of Poland, in which the flight of the aircraft is prohibited from the ground level up to a specified height.
(2) To destroy or immobilise an unmanned aircraft or take control of its flight in the case referred to in:
1) section 1 item 1 letters a, b and d – are entitled to officers of the Police, Border Guard, the State Protection Service, the Internal Security Agency, the Foreign Intelligence Agency, the Central Anti-Corruption Bureau, the Military Counterintelligence Service, the Military Intelligence Service, the Customs-Sanitary Service and the Penitentiary Service, the Marshal Guard, soldiers of the Military Police and the Armed Forces of the Republic of Poland as well as employees of specialised armed security formations,
2) section 1 item 1 letter c – are entitled officers of the Police, Border Guard, the State Protection Service, the Internal Security Agency, the Military Counterintelligence Service, soldiers of the Military Gendarmerie and employees of specialist armed protection formations,
3) section 1 item 2 – are entitled soldiers of the Armed Forces of the Republic of Poland
– on the principles laid down in separate regulations.
Article 149 The performance of international flights by foreign civilian unmanned aircraft shall require a permit granted by the President of the Office in consultation with the competent military authorities. The President of the Office shall immediately forward a copy of the decision on authorisation to the air traffic service provider.
4. Soft law
Aviation is one branch of law in which guidelines and recommendations, i.e. soft legislation, play an extremely important role. At European level, soft law is referred to as AMCs (Acceotable Means of Compliance) and GMs (Guidance Material), which are documents issued by the European Union Aviation Safety Agency (EASA). The process of producing these documents is quite time-consuming, as they are subject to consultation with both EU Member States, EASA Member States (Switzerland, Norway, Iceland and Liechtenstein), but also ANSPs (air navigation service providers) and market representatives. The agreed AMC/GM are adopted by the EASA Executive Director in the form of a decision. The guidelines are adopted in English and are not translated into the authentic languages of the EU Member States.
In the field of unmanned aerial vehicles, the most relevant guidance issued for Commission Implementing Regulation (EU) 2019/947 is available at the link:
https://www.easa.europa.eu/downloads/135910/en
and the guidelines to Commission Implementing Regulation (EU) 2021/664 (currently under revision in NPA 2021-14), available at the link:
https://www.easa.europa.eu/downloads/134303/en
At the level of Polish national law, the President of the Civil Aviation Authority is authorised to issue aviation guidelines, and he frequently exercises this privilege. Despite the problematic position of the ULC President’s Guidelines in the hierarchy of legal acts and possible sanctions for not applying them, it has become established that the Guidelines are recognised by BSP operators and pilots as if they were universally binding regulations. All of the ULC President’s Guidelines are available online, in the Official Journal at the link:
https://edziennik.ulc.gov.pl/actbymonths
Magdalena Ostrihansky, attorney at law
