Civil drones are being talked about a lot recently. Not only are they to be found in every second electronics retailer. Multicopters (also called “quadcopters”, “hexacopters” or “octocopters” – depending on the number of arms and rotors) can also be purchased at very low prices by now.
And yet, drones are clearly to be distinguished from other electronic toys such as remote-controlled model cars. Drones can be considerably dangerous – both directly and indirectly – for other persons and things, which is illustrated through several recent incidents: One example is the remote-controlled drone which seems to have had no problem trespassing even highly secured areas such as the White House. Here it becomes obvious that this drone could have been equipped with far more dangerous items than just a camera. But also beyond intentional threatening scenarios, accidents through untrained and inconsiderate drone pilots are bound to occur in air space, for instance through collisions or crashes. In contrast to the traffic on the road, the space in which drones move is not only two- but three-dimensional (back/forth, left/right, up/down), so that the risk of collision basically always exists. The example of the almost-clash of a drone with a passenger airplane underlines this fact.
It is therefore questionable how the various immanent dangers of civil drones can be put to an end, without excluding a rightful and thoughtful use at the same time. After all, one should not ignore and disregard the fact that drones open diverse rightful and extremely promising possibilities of application for the future. The creation of beautiful aerial photography is just one of many thinkable uses. The German transport company DHL, for instance, uses drones in order to deliver medication from the German mainland to the island Juist. Moreover, drones are also used in disaster areas: Thanks to the possibility of creating an immediate overview image, victims can be identified quickly and thus rescue teams can be coordinated more targeted. Particularly because drones can cross impassable terrains, they will be irreplaceable for these just mentioned purposes.
Seen from the legal perspective, for example the existing national German laws already amount to a flood of paragraphs which is hardly manageable for the hobby pilot but which is necessary to minimise dangers (for details see Schmid, K&R 2015, 217 pp.). It is clear, that there are problems from the user side concerning the realisation of these laws: The legal situation is hardly recognisable and clear enough for the hobby pilot. In this author’s opinion, this problem can only be solved through the introduction of a mandatory prior training of prospective drone pilots – just as there is for road traffic. For commercial users one might even contemplate the introduction of a “drone flying license”. However, it cannot be expected that a drone pilot of one member state also has to deal with the respective legal regulations of other states – or even undertake trainings and acquire a separate “drone flying license” for every member state he wants to fly within. Therefore, an Europe-wide regulation, which applies to all member states, could be appropriate.
The drone specific regulations within the German Air Traffic Law for example originate merely from the national German law, and not the European law, even though the latter is usually applied when it comes to regulations of air traffic. This is due to the regulation of the EC-act on establishing common rules for civilian aviation ((EC) Nr. 216/2008, more specifically, article 4 para. 4 in conjunction with appendix II lit. i) of this regulation). This passage determines that unmanned aviation systems with a service mass of less than 150 kg are not covered by EC-regulations, but remain a legal issue of the member states.
However, it is fairly questionable if this – for the use of civil drones quite irrelevant – weight limit is still up to date, or if a common European regulation would not rather also be appropriate for the use of civil drones. Keeping in mind that national borders are virtually non-existent in aviation, and that – as in road traffic – overflights do not stop at national borders, it soon becomes clear that it is not possible to think of “isolated member states” with this case, as well. Much rather here, too, a solid common basis is needed – again, as with road traffic – which not only contributes to the minimisation of dangers, but creates a legal security with cross-border users.
The necessity of an Europe-wide, common regulation could even be derived directly from the Charter of Fundamental Rights of the European Union (in the following referred to as the Charter). In this respect, civil drone flights also touch diverse EU-basic rights in various areas:
First, the right to life (art. 2 para. 1 of the Charter) and the right to the integrity of the person (art. 3 para. 1 of the Charter) can be infringed if other persons are being harmed through drone flights. Naturally, this way the right to liberty and security (art. 6 of the Charter) can also be affected. If aerial photos are taken of foreign persons and things through drones, the private life (art. 7 of the Charter), but above all the protection of person-related data (art. 8 of the Charter) are affected. But also the drone pilot has fundamental rights, such as the right to liberty (art. 6 of the Charter) as well as the freedom of arts (art. 13 s. 1 of the Charter), which in turn protects the creation of aerial photography. If drone flights are undertaken for commercial reasons, e. g. for selling aerial photographs to a third party, or for the inspection of power lines or pipelines, then the right to professional freedom (art. 15 of the Charter) and the freedom to conduct a business (art. 16 of the Charter) can be infringed. Last but not least, the drone pilot’s right to property (art. 17 of the Charter) is always then affected if the use of his/her drone – thus, his/her “property” – is declared illicit through too strict regulations.
As diverse rights from the Charter can potentially be infringed on both sides it becomes clear quickly that an Europe-wide regulation must not take sides. Rather an extensive balancing of goods and interests between both parties has to be done, so that an Europe-wide, common regulation can serve all interests sufficiently.
Alexander Schmid works as an academic assistant at the Chair for Public Law, Public Security Law and Internet Law at the University of Passau. Since 2014 he is working on his blog called “HighFocus” that is addressing the legal issues of using civil drones. He is the author of several articles on drones published by “HighFocus” and other media platforms.