The Light UAS Operator Certificate (LUC) is defined in Article 2(9) of Implementing Regulation 2019/947 as a certificate issued to the operator of an unmanned aircraft system by a competent authority ‘as set out in Part C of the Annex’. Before moving on to the analysis of the provisions contained in the Annex, by way of introduction, it should be pointed out that in the case of Poland, the competent authority to issue the certificate will be the President of the Civil Aviation Authority (hereinafter: ‘the President of the CAA’). Pursuant to Article 21(2a) of the Act of 4 July 2002 – Aviation Law, the President of the Civil Aviation Authority shall exercise the powers of a Member State of the European Union, a competent authority of a Member State and a competent authority of a Member State as defined in the regulations and decisions of the European Union, not reserved in the Aviation Law, other acts and international agreements to the minister in charge of transport or other public administration bodies. The scope of the tasks and competencies of the President of the CAA is defined in that provision by reference to the broad, and moreover non-exhaustive, catalogue indicated in paragraph 2 of that article, covering, inter alia, the performance of the functions of the aviation administration and oversight authority as defined in the Act and the functions of the aviation authority as defined in international agreements and regulations, including those related to the regulation of the air services market.
Only a legal entity can apply for LUC, as explicitly expressed in the provision of paragraph 1 of section UAS.LUC.010 General requirements for LUC. The rationale for depriving natural persons of this opportunity is to recognise the potential difficulty, or even assumed impossibility, of entities without an extensive internal structure and with greater human, organisational and financial resources to meet the formal requirements. However, the qualification of natural persons conducting business activity in the context of the Polish legal regulation of business activity may cause interpretation doubts. Indeed, according to the content of the provision of Article 4(1) of the Act of 6 March 2018. – Entrepreneurs’ Law, an entrepreneur is a natural person, a legal person or an organisational unit that is not a legal person, to which a separate act grants legal capacity, performing business activity. Taking into account the rationality of the legislator and analysing the provision of the Annex to Executive Order 2019/947 in the context of the indicated ratio legis of the regulation, it should be considered that only entities that are legal persons may apply for the LUC certificate. The legal definition of a legal person is contained in the provision of Article 33 of the Act of 23 April 1964. – Civil Code, according to which legal persons are the State Treasury and organisational units to which specific provisions confer legal personality. The literature indicates that legal persons are certain organisational units, which, thanks to the attribute of legal personality, are endowed with legal capacity and the capacity to perform legal acts. Thus, in the Polish legal system, a dichotomous division into natural persons and legal persons is assumed, although the Civil Code also regulates the relations between these persons and organisations ref. Article 331 of this act. Thus, natural persons, regardless of whether they are entrepreneurs, will not have the possibility to obtain an LUC certificate, whereas, in the authors’ opinion, legal persons within the meaning of the aforementioned provision of Executive Order 2019/947 functionally include organisations referred to in Article 331 § 1 of the Civil Code, since, according to this provision, the provisions on legal persons apply mutatis mutandis to organisational units which are not legal persons and which are granted legal capacity by the Act. The broad subject matter scope of a legal entity under Polish civil law definitely goes beyond the framework outlined by Executive Order 2019/947. In the doctrine – albeit in a civilian perspective – different entities are included in this category by making various divisions, applying various criteria. These include, among others, 1) state, municipal, private legal persons, 2) entrepreneurs who are state-owned enterprises or limited liability companies, 3) not-for-profit persons (whose purpose is not defined as economic but who may carry out economic activities, e.g. foundations), 4) non-profit persons (whose purpose may not be economic, e.g. political parties), 5) corporate (e.g. associations), company (e.g. foundations), mixed (e.g. limited liability company) legal persons, 6) created following entry in the relevant register and created by special provisions, 7) the State Treasury as a person functioning in civil law relations.
Turning to procedural issues, it should be noted that an application for a LUC Certificate submitted to the President of the ULC under section UAS.LUC.010 must include a description of the unmanned aircraft operator‘s management system, including its organisational structure and safety management system (SMS) as defined in UAS.LUC.030.Firstly, the UAV operator seeking LUC certification shall establish, implement and maintain a safety management system commensurate with the size of the organisation and the nature and complexity of its operations, taking into account the hazards and relevant risks associated with these operations. In the EU civil aviation accident investigation legislation, a safety management system is defined as a systematic approach to safety management, including the necessary organisational structures, responsibilities, policies and procedures, and includes any management system which, independently or in an integrated manner with other management systems of the organisation, addresses safety management.
In this context, it should also be recalled that the entry into force of European drone regulations marks a change in the terminology already well-established in Poland. The person actually responsible for the movement of the drone is referred to as the pilot of the unmanned aircraft, while the operator referred to in the LUC certificate provision under review will be referred to as the operator who is engaged in activities using unmanned aircraft.
In addition, the application for an LUC certificate must include the name(s) of the responsible member(s) of the operator’s staff, including the person responsible for approving operations with unmanned aircraft. This requirement is particularly important as operators using an LUC certificate, under this certificate, do not have to apply for an authorisation for operations from the competent authority, but it is necessary to indicate the personalities of these persons already at the application stage.
A declaration that all documentation submitted to the competent authority has been verified by the applicant and found to be in compliance with the relevant requirements is also an essential element of the application.
Regulation 2019/947 imposes a number of obligations on the LUC holder – therefore also to be determined or established at the application stage – including the appointment of a manager in charge, the definition of a clear division of duties and responsibilities throughout the organisation, the need to establish and continuously maintain a safety policy, or the appointment of key safety personnel. Also linked to the obligation to establish and maintain a risk management process is the ‘promotion of safety’ within the organisation taking the form of training, but also ensuring proper communication within the organisation. The need to document all key changes within the company furthermore includes so-called change management, internal investigations and the use of subcontractors. An LUC-certified unmanned aircraft system operator must also establish an independent function responsible for monitoring compliance and adequacy of compliance with the relevant requirements of the regulation under review, including a system to ensure that relevant findings are communicated to the responsible manager to ensure effective implementation of corrective measures where necessary, as well as establishing a function responsible for ensuring that safety risks associated with the service provided or product delivered by subcontractors are assessed and mitigated as part of the operator’s safety management system. These two ‘functions’ are to be understood as explicitly assigned job duties or responsibilities of personnel.
The President of the ULC, once he has ascertained that the operator has submitted a complete application and that the above requirements have been met, issues the LUC certificate, which contains, among other things, a description of the privileges for the certificate holder, the authorised scenarios and types of operations that can be performed, the authorised locations of operations, but also special restrictions, if any.
Despite the considerable organisational, personnel and financial requirements involved, holding an LUC certificate provides the operator-entrepreneur with an advantage that can far exceed the costs. This is primarily the ability to self-authorise (understood as authorising) its own operations, albeit within the limitations and conditions set out in the certificate. These conditions will be defined in analogy to those set out in UAS.LUC.050(2)(e), i.e. they may relate to the performance of operations under specific conditions (for example, the prohibition of operations during high winds), the use of aircraft equipped appropriately for the type of operations to be performed, or in which types of airspace and at what altitude the operator may order flights.
As part of the approval, the competent authority grants the LUC holder the authority to approve its operations without having to apply for an authorisation for the operations and to declare the operations performed according to a standard scenario. This element appears to be the main advantage of having a certificate, since with the dynamic development of the aviation market, operators holding an LUC will not have to wait for the competent authority to approve their operations (in the form of issuing a permit or acknowledging receipt of complete documents for operations requiring only a declaration).
Magdalena Ostrihansky, attorney at law
Maciej Szmigiero, PhD in Law, attorney at law
The above text is a comprehensive extract from the chapter entitled ‘Light Unmanned Aircraft Operator Certificate (LUC) – Theoretical Issues and Practical Aspects of the Application of Executive Regulation 2019/947’ published in the monograph ‘Legal Aspects of the Use of Unmanned Aircraft’ published in 2021, edited by Anna Konert. Oficyna Wydawnicza Uczelni Łazarskiego.
