Amendments to aviation law

On 30 August, draft amendment to the Aviation Law was published on the website of the Government Legislation Centre. This document introduces a number of changes concerning mainly unmanned aerial vehicles (popular drones), including but not limited to specifying the rules governing the flying of these devices.

In the face of the dynamically developing drone market and the stepwise growing number of unmanned aerial vehicle flights it is necessary to introduce new legal regulations which will govern the rules of carrying out such operations and will define the rights and obligations of individual entities in this respect.

This is the main idea behind the latest draft amendment to the Aviation Law¹ of the Ministry of Infrastructure. In the justification of the draft we can read that the proposed amendments are aimed at ensuring that the new EU legislation concerning unmanned aerial vehicles (UAV) included in Regulation no. 2018/1139², Regulation no. 2019/945³ and Regulation no. 2019/247⁴ is applied and has a systemic nature. The new regulations, as assumed by the authors of the amendment, are to govern issues related to UAV operations in a comprehensive way. Let us remember that as of 31 December 2020 domestic regulations and procedures concerning civil use of drones ceased to apply and were replaced by the above EU legislation.

Aviation law – a system change

When preparing the draft amendment to the Aviation Law, the Ministry of Infrastructure approached the issue in a comprehensive way, the clearest example of which is introduction of a completely new Section Via devoted in whole to unmanned aerial vehicles. In this way all of the proposed regulations concerning drones, operations carried out with their use, distribution of rights and obligations and liability can be found in the act in one place.

New categories of flights

One of the most significant changes introduced by the draft amendment to the Aviation Law consists in replacing the previous sports or recreational flights and non-sports and recreational flights with categories which stem directly from Regulation 2019/947, i.e. operations in the “open”, “specific” and “certified” category. This classification is based on the level of risk involved in aerial operations.

Leaving the details aside, particular categories may be characterised as follows:

Open category: visual line of sight operations (VLOS) which do not require an authorisation, carried out by UAV with a take-off mass of less than 25 kg, up to the maximum height of 120 m above the surface of the earth (or above an obstacle higher than 120 m); these are operations in which the risk for third parties is negligible;

Specific category: VLOS/BVLOS (beyond visual line of sight) operations carried out on the basis of a flight declaration in accordance with the standard scenario published by the EASA or the CAA (Civil Aviation Authority of the Republic of Poland), or on the basis of an authorisation from the President of the CAA; flights in this category are characterised by a higher risk for third parties; an authorisation or a declaration is not required when the UAV system operator has the LUC certificate (light unmanned aircraft system operator certificate);

Certified category: VLOS/BVLOS operations which require certification of the UAV based on the provisions of Regulation 2019/945 and certification of the operator, as well as – where applicable – the licensing of the UAV pilot. Flights in this category are characterised by a higher risk for third parties than the flights in the specific category which in this case is comparable to manned aircraft operations.

Therefore, the previous division of UAV operations based on their commercial nature (or its lack) has disappeared and has been replaced with a more reasonable, in my opinion, system of classification of operations taking into account their potential risk and level of complexity. The authors of the draft provided for a hierarchy of flight rules for each category and the related gradually increased level of their formalisation and the role of the CAA.

Thus, flights in the “specific” category may take place exclusively on the basis of an operational authorisation from the President of the CAA or based on an operational declaration of compliance with a standard scenario submitted by the operator. A standard scenario is a document specifying the manner and conditions of carrying out flights for the type of the operation in the “specific” category developed and issued by the EASA or (pursuant to Article 4 of Regulation 2019/947 – by the President of the CAA).

Alternatively, such operations may be carried out on the basis of an obtained light unmanned aircraft system operator certificate (LUC certificate), as referred to in Part C of the Annex to Regulation 2019/947 and in Articles 156e and 156f of the draft amendment to the Aviation Law.

Operations in the certified category require the use of a drone certified pursuant to Article 40 clause 1 letters a-c of Regulation 2019/945. The design, production and maintenance of UAV is certified, if:

the characteristic dimension of UAV is 3 m or more, and it is designed to be operated over assemblies of people;
it is it is designed for transporting people;
it is designed for the purpose of transporting dangerous goods and requiring a high level of robustness to mitigate the risks for third parties in case of accident.

It is also worth to mention that pursuant to the amended Article 21 clause 2 point 8 the President of the CAA will be obliged to keep a register of UAV, but relating this amendment to the wording of the EU legislation it has to be noted that this register will include only UAV whose structure requires certification.

Without a certificate of qualification, but in the register

Due to the fact that certificates of qualification have not been issued to operators of unmanned aircrafts since 31 December 2020, the draft amendment to the Aviation Law provides for a relevant amendment to Article 94 clause 2 of the act by considering an unmanned aircraft system operator holding a valid document confirming their qualifications and giving them the right to carry out operations and entered in the register of unmanned aircraft system operators as a member of aviation personnel.

It is a far-fetched change. So far, “commercial” operations were reserved for individuals holding a certificate of qualification. The currently applicable EU legislation combined with the planned amendment to the Aviation Law, on the other hand, will make such use of UAV available to all. This change is obviously directly related to the change of the system of categories of UAV operations discussed above.

At the same time, the President of the CAA is to be obliged to keep a register of UAV with the use of an ICT system. Each UAV operator is to have a registration number assigned. Thus, entry in the above register is required for any kind of drone operations.

Who can check the operator?

So far, operations of individuals using UAV systems could be verified from the perspective of their compliance with legal regulations by the President of the CAA and the police. In the draft amendment to the Aviation Law the list of entitled entities has been significantly, or even drastically, extended and is to include:

individuals authorised by the President of the CAA, police officers, but also officials from the Border Guard, State Protection Service, Internal Security Agency, Foreign Intelligence Agency, Military Counterintelligence Service, Military Intelligence Service, Central Anti-Corruption Bureau, Tax and Customs Service, Prison Service, Military Police, guards from the Marshal’s Guard or municipal police, and in forests and national parks – by forest rangers and members of the Park Guard.

Though the very idea of making activities of operators subject to control of competent authorities deserves positive evaluation, nonetheless the list of entities authorised to verify compliance of operations with legal regulations that is included in the amendment seems to be too broad. This is because one cannot expect officials from all of the formations and services mentioned in the proposed provision to know (domestic and European) aviation law and applicable procedures. One may wonder, on the one hand, why Marshal’s Guard and municipal police are included on that list and, on the other hand, why airport protection services are missing. However, we should bear in mind that it is only a draft at the beginning of the whole legislative process.

The draft provides for a possibility of destroying, stopping UAV or taking control over it in strictly specified cases related to generally understood safety of drone operations. A similar provision (Article 126a) is currently included in the Aviation Law, but it has been modified in the draft amendment and moved to the Section devoted to drones. The provision includes a list of services authorised to perform such actions.

Liability for damage caused as a result of UAV destruction or stoppage, or taking control over it is on the part of the pilot or UAV system operator.

Obligatory third-party liability insurance

The draft also provides for an obligation for an operator using UAV with a take-off mass of between 0.25 kg and 20 kg to conclude a third-party liability insurance contract. This obligation deserves positive evaluation. Operating a drone, i.e. an aircraft, poses a potential risk to both life and health of third parties and property which is related to a number of factors, such as the mass of UAV considered in combination with its speed and height on which it is moving, risk of emergence of a technical defect or a human mistake.

Obviously, constant technological development leads to mitigation of such risks, but unfortunately they cannot be completely eliminated. The risk is involved not only in the operations in the “specific” or “certified” category, but also – what we should keep in mind – flights in the “open” category. Thus, activities in respect of UAV operations, as any other aviation activities, should be subject to obligatory third-party liability insurance.

Flying in zones

An essential change proposed in the draft amendment is designation of geographical zones for UAV systems by the Polish Air Navigation Services Agency (Polska Agencja Żeglugi Powietrznej – PAŻP). PAŻP may designate such zones both on its own initiative and at a request. The zones are to be designated for a specified period and should have clearly defined borders. PAŻP will each time determine the terms and conditions for UAV operations in the designated zone.

The draft amendment also provides for delegation of legislative powers to the minister competent for transportation to issue a regulation specifying:

types of geographical zones with their maximum dimensions;
list of entities authorised to submit a request for zone designation;
elements (draft) of the request;
issues related to the payment of fees for activities related to zone designation.

What next?

The draft amendment is currently being discussed and assessed. Unfortunately, the schedule of further works on this document is not known, though in the final provisions we can read that the Minister of Infrastructure intends the act to come into effect on 1 January 2022.

It is a very important draft which, as intended by its authors, is to order all issues related to drone flights and enable correct application of the EU legislation applicable in this respect.

Now we have to wait for the results of the legislative works and the practice of application of the new regulations.

Author:

Piotr Dudek
Director of the New Technologies Department, Defence & Aerospace
TGC Corporate Lawyers

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^[1]Act of 3 July 2002 – Aviation Law (Dz. U. of 2020, item 1970)
^[2]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 (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 (Official Journal of the EU L 212 of 22 August 2018, p. 1);
^[3]Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems (Official Journal of the EU L 152 of 11 June 2019, p. 1);
^[4]Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircrafts (Official Journal of the EU L 142 of 11 June 2019, p. 45);