Basic concepts in the area of unmanned aerial vehicles, which, especially for those not familiar with the subject, may seem synonymous, have been definitively defined by the Regulation of the European Parliament and of the Council (EU) 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations of the European Parliament and of the Council (Basic Regulation 2018/1139), 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 Aviation Safety Agency, 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 of the European Parliament and of the Council 2014/30. (EU) 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and establishing the European Union Civil Aviation Safety Agency and amending Regulations (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 (Delegated Regulation 2019/945) and Commission Implementing Regulation (EU) 2019/947 of 24 May 2019. on rules and procedures for the operation of unmanned aircraft (Implementing Regulation 2019/947).
Until the above-mentioned regulation came into force, using the nomenclature adopted in Polish law, an operator was referred to as anyone actually in command of an aircraft performing operations or a mission in the air, which corresponds to the current definition of a pilot.
This definition has changed under Regulation 2019/947 – as of 31.12.2020, we refer to the person actually responsible for the movement of the drone as the pilot of the unmanned aircraft. An operator, on the other hand, is an operator who is engaged in activities using unmanned aircraft, so it is a kind of terminological analogy with manned aviation using the concept of an airline operator, i.e. usually an airline. According to Article 3(13) of the Basic Regulation, ‘aircraft operator’ means any legal or natural person operating one or more aircraft or making an offer to operate one or more aircraft. As a subsidiary means of defining the term operator, reference can be made to Regulation No 785/2004 of the European Parliament and of the Council of 21.4.2004 on insurance requirements for air carriers and aircraft operators. According to this, an aircraft operator means the person or entity, other than an air carrier, who has continuous effective availability for use or operation of the aircraft; the natural or legal person in whose name the aircraft is registered shall be presumed to be the operator, unless that person proves that someone else is the operator. (“Legal issues and information – aviation insurance – Mentor Pilot” www.mentorpilot.pl) With the above in mind, it can be summarised that the operator (user) of an aircraft can be the owner, lessee or other holder of the aircraft. The scope of this concept is therefore broad and includes any user of an unmanned aircraft within the meaning of the regulations analysed for these objects, regardless of the legal title under which they wield it.
On the basis of Article 14 para. 5 of Implementing Regulation 2019/947, operators of unmanned aircraft systems are subject to registration if they carry out operations in the “specific” category regardless of the weight of the unmanned aircraft or in the “open” category using unmanned aircraft which have an MTOM (Maximum Take-off Weight) of 250 g or more or which, in the event of an impact, can impart kinetic energy of more than 80 joules to a human being, and which are equipped with a sensor capable of collecting personal data, unless the aircraft in question complies with Directive 2009/48/EC, the so-called ‘Toy Directive’. toy directive. A sensor capable of collecting personal data is primarily understood to be a camera, with the 249 g drones available on the market, if so equipped, triggering a registration obligation for the operator – in particular the owner. As regards the exemption based on the Toys Directive, it should be pointed out that toys, within the meaning of Article 2(1) of this act, are products designed or intended, whether or not exclusively, for use in play by children under 14 years of age. Therefore, when the instructions for use of a drone state that the product is intended for use by persons aged 14 and over – it is not a toy and its owner is subject to registration as an operator. Registration is done in the Member State of residence or principal place of business – in the case of Poland, registration is done electronically on the website of the Civil Aviation Office – https://drony.ulc.gov.pl/register. Upon registration, the operator shall be provided with a unique registration number, which he shall place on each unmanned aircraft he owns (operates) that meets the requirements set out in paragraph 5, i.e. updating the obligation to register. The regulations do not specify how the number is to be affixed – it could be by affixing a number plate, sticking an additional label or even writing the number by hand using, for example, a marker. However, it is worth bearing in mind that when one drone is used by several people, the number on the drone can be attached with, for example, strong Velcro so that it can be easily changed. The operator number on the drone must match that of the operator performing the operation.
It is noteworthy that the Act of 3 July 2002. Aviation Law does not use the concept of a pilot in relation to unmanned aerial vehicles, and the persons referred to as operators are members of the aviation staff as defined in Article 94 of the Act. Aeronautical personnel are a kind of conglomerate of entities that are authorised to perform flight and other aeronautical activities. They include persons such as pilots of manned aircraft, cabin crew members, operators of unmanned aircraft, aircraft mechanics, aircraft mechanics, ATCO air traffic controllers, aircraft navigators and aircraft dispatchers. It is difficult to clearly close this catalogue of actors, as the rapidly developing manned and unmanned aircraft industry will see the emergence of new types of personnel involved in, for example, the development of aircraft software to enable automatic and autonomous flight. This issue is regulated differently at the level of supranational regulations. According to Article 3(31) of Regulation 2018/1139, the pilot of an unmanned aircraft is defined as the natural person responsible for the safe execution of the flight of the unmanned aircraft either by manually controlling the flight or, in the case of automatic flight, by monitoring its course and maintaining the ability to intervene and change course at any time.
A pilot of an unmanned aircraft performing operations must complete online training and pass the theoretical knowledge examination set out in section UAS.OPEN.020 of Regulation 2019/947. However, for flights in subcategory A3, there is no requirement to undergo practical training, even in as limited a form as for subcategory A2. The rationale for regulating compulsory training in this way, rather than in any other way, is that, although the operations are carried out with such large and heavy aircraft, they will be far from people and built-up areas, so that even in the event of loss of control of the aircraft or its crashing, the risk of damage to people and property is negligible.
Pilots must comply with a number of obligations in connection with the operation of an unmanned aircraft (section UAS.OPEN.060 of Regulation 2019/947):
1) Before commencing operations with an unmanned aircraft system, the pilot of the unmanned aircraft:
(a) be competent, in the subcategory in which the intended unmanned aircraft system operations are to be performed in accordance with sections UAS.OPEN.020, UAS.OPEN.030 or UAS.OPEN.040 – to carry out his/her tasks and must carry proof of competence when carrying out operations with an unmanned aircraft system, except when carrying out operations with an unmanned aircraft referred to in Section UAS.OPEN.020(5)(a), (b) or (c);
(b) obtain up-to-date information relevant to the planned operation of the unmanned aircraft system concerning any geographical zones published by the Member State in which the operation is to take place, in accordance with Article 15;
(c) observe the environment in which the operation is to be conducted, check for the presence of obstacles and, unless the operation is being conducted in Subcategory A1 using an unmanned aircraft referred to in Section UAS.OPEN.020(5)(a), (b) or (c), check the surroundings for the presence of any bystanders;
(d) ensure that the unmanned aircraft system is in a condition to guarantee safe execution of the planned flight and, when applicable, verify that the unambiguous remote identification system is active and up to date;
(e) if the unmanned aircraft system has an additional payload, verify that the mass of that system does not exceed either the MTOM specified by the manufacturer or the MTOM limit for the class of system concerned.
2) During flight, the pilot of the unmanned aircraft:
(a) shall not perform his duties while under the influence of psychoactive substances or alcohol or when unable to perform his duties due to injury, fatigue, medication, illness or other reasons;
(b) maintain the unmanned aircraft within visual line of sight VLOS and conduct a thorough visual survey of the airspace surrounding the unmanned aircraft to avoid any risk of collision with manned aircraft. The pilot of the unmanned aircraft shall abort the flight if the operation poses a risk to other aircraft, humans, animals, the environment or property;
(c) respect the operational restrictions in the geographical areas defined in accordance with Article 15;
(d) must be able to maintain control of the unmanned aircraft, except when there is a loss of connection or when conducting operations with the unmanned aircraft in free flight;
(e) operate the unmanned aircraft system in accordance with the manufacturer’s instructions provided by the manufacturer, including any applicable restrictions;
(f) comply with procedures developed by the operator, if available;
(g) ensure that a flashing green light is activated on the unmanned aircraft during night operations.
3) During flight, pilots of unmanned aircraft and operators of unmanned aircraft systems shall not fly near or within areas where rescue operations are underway, unless authorised to do so by the responsible rescue services.
4) For the purposes of paragraph (2)(b), pilots of unmanned aircraft may be assisted by an observer of the unmanned aircraft. In this case, there must be clear and effective communication between the pilot of the UAV and the UAV observer.
The minimum age for a pilot performing drone operations in the ‘open’ category is 16 years.
This requirement does not apply to pilots:
- where they carry out an operation in subcategory A1 using a Class C0 drone which is a toy within the meaning of Directive 2009/48/EC;
- for drones constructed for private use with a maximum take-off weight of less than 250 g;
- where they carry out the operation under the direct supervision of a BSP pilot who is competent and over 16 years of age.
The competence, training and minimum age requirements for pilots of UAVs are set out in the provisions of Implementing Regulation 2019/947, in particular – for open category operations – in Part A of the Annex.
When an operation in subcategory A1 is performed with an unmanned aircraft without a class designation, acquired before 1 January 2024, with an MTOM of less than 250 g, or a BSP with a C0 designation, the pilot is not required to undergo training, but is required to read the manual provided by the manufacturer of the unmanned aircraft system. When an operation in subcategory A1 is carried out with a Class C1 unmanned aircraft, the pilot of the BSP – in addition to the obligation to read the manufacturer’s manual – is required to complete an online training course and then pass an online theoretical knowledge examination by scoring at least 75% of the total points from 40 multiple-choice questions. The online training and the online examination are conducted via the Civil Aviation Authority’s website, and there is no limit on the number of times the examination can be taken.
For operations in subcategory A2, in accordance with paragraph 2 of section UAS.OPEN.030 of Part A of the Annex to Implementing Regulation 2019/947, the pilot of an unmanned aircraft is required to be familiar with the manufacturer’s manual provided by the manufacturer of the unmanned aircraft system and to hold a certificate of competence as a pilot of an unmanned aircraft issued by the competent authority or an entity designated by the competent authority of a Member State (in the case of Poland, the President of the Civil Aviation Authority) As specified in the above provision, the condition for obtaining a certificate is that all of the following conditions are met in the order indicated:
(a) completion of the aforementioned online training course and online examination on the Civil Aviation Authority’s website;
(b) completion of practical training through self-study;
(c) a declaration of completion of the practical training in the self-study mode and passing a supplementary theoretical knowledge examination (before an examiner) conducted in Poland in an entity designated by the competent authority of the Member State, obtaining at least 75 % of the total points, consisting of 30 multiple-choice questions.
A pilot wishing to operate in subcategory A3, i.e. unmanned aircraft with an MTOM of up to 25 kg, is required to be familiar with the manufacturer’s manual provided by the manufacturer of the unmanned aircraft system and to complete the online training and pass the online theoretical knowledge examination mentioned above. Such low requirements for subcategory A3, which are the same as those for subcategory A1 where BSPs with an MTOM of 900 g or less are allowed to fly (500 g during the transition period until 1.1.2024), are due to the fact that flights in subcategory A3 can only be performed away from people and buildings, thus reducing potential risks on the ground.
For special category operations, unmanned aircraft pilots must meet the competency requirements specified by the competent authority in the authorisation of the operation or in the standard scenario set out in Appendix 1 of the Annex, or specified in the light UAS operator certificate (LUC).
Maciej Szmigiero, PhD in Law, attorney at law
Sources:
- M. Żylicz, Prawo lotnicze międzynarodowe, europejskie i krajowe, Warsaw 2011
- K. B. Wojciechowska, Prawo lotnicze. Komentarz, Warsaw 2022
- M. Ostrihansky, M. Szmigiero, Prawo dronów. Bezzałogowe statki powietrzne w prawie Unii Europejskiej oraz krajowym, Warsaw 2020
- https://drony.ulc.gov.pl/register
