Germany has introduced a new “Regulation for the Operation of Unmanned Aircraft Systems” (“Drone-Regulation“). On 7 April 2017, the new Drone-Regulation entered into force adapting national legislation to the risk-based approach of the European Union and setting the way for innovative technologies. However, the new rules also contain identification and qualification obligations as well as strict authorisation requirements for specific operations of Unmanned Aircraft Systems (“UAS”).

Some aspects of Germany’s new UAS regulations parallel the Federal Aviation Administration’s (“FAA”) Small UAS Rule (Part 107) that went into effect in the United States last August. Similar to the rules adopted by the FAA, Germany’s new UAS regulations place general restrictions on operating UAS beyond visual line of sight (“BVLOS”) and limit operations over people. Notably, however, Germany’s new regulations also provide a pathway for authorizing more advanced commercial UAS operations that go beyond the scope of the regulations in circumstances where it is safe to do so. This is similar to the waiver process adopted by the FAA in Part 107 for authorizing operations beyond the scope of the rule.

Enabling future technologies, abandoning authorisation requirements for UAS below 5 kg

Germany recognizes the great potential inherent in drones in the private as well as the commercial sector and tries to reconcile the immense potential of future technologies with increasing privacy concerns. To achieve this goal, the new regulation introduces changes mainly to the current German Air Traffic Regulation (“Luftverkehrs-Ordnung“), i.e. generally abandoning the former distinction between Flight Models (RC Aircraft) and UAS and the general obligation to obtain an authorisation for UAS operation.

• UAS with a total mass below 5 kg now generally do not require an authorisation, although there are certain exceptions to that rule.
• While Germany maintains a prohibition to operate UAS BVLOS, the new Regulation aims at providing more flexibility by a system of exceptional authorizations for BVLOS flights. Such exceptional authorizations can be issued by the authorities of the Länder and the Drone-Regulation does not provide for any guidance when BVLOS flights may be permitted. Only for smaller UAS with a total mass of less than 0.25 kg may be operated beyond visual line of sight without any authorisation, if special video goggles enabling FPV (“First-Person-View“) flights are used.

Restriction of operations in residential areas

To increase the protection of privacy, the new regulation contains additional obligations when operating UAS in or around residential areas.

• Authorizations will be required if the operation takes place within 1.5 km of a residential area.
• Owners of residential property will have to expressly consent to UAS operation above their property, if their rights can be violated. Especially with regard to commercially used UAS for air delivery it remains to be seen how this provision will be handled in practice. While it may be feasible for operators to obtain consent for instance during the order intake process, such consent would not extend to third parties such as neighbors.

Exceptional authorizations to become more important

• Many possible applications of UAS, especially for commercial purposes, will still rely on authorizations granted by the regional Air Traffic Authorities (“Landes-Luftfahrtbehörde“).Operations of UAS weighing more than 5 kg as well as operations by night generally require an authorisation.
• For heavy UAS of more than 25 kg this authorisation is only granted exceptionally.

Exceptional authorizations will become crucial to overcome certain restrictions in the new regulation. This applies to operations in the vicinity of residential areas or beyond visual line of sight, as well as to operations of more than 100 meters above ground level. These exceptional authorizations lie within the authority’s discretion and will be granted following a risk assessment. While these revisions generally provide for more flexibility which commercial operators of drones have asked for frequently, there is a risk for a regulatory patchwork since the individual authorizations will be dealt with at Länder level. Operators active throughout Germany cannot be sure that operating a drone in Berlin will be treated by authorities in same way as by the officials in Bavaria.

Identification obligation and qualification certificate

The new regulation introduces an identification obligation (“Kennzeichnungspflicht“) as well as a qualification certificate (“Kenntnisnachweis“). The operation of UAS weighing more than 2 kg will require the operator to provide a drone-license to prove the operator’s capability to operate the UAS. All UAS weighing more than 0.25 kg will require a fireproof identification plate with the name and address of the owner.

What’s ahead?

The new German rules follow the risk-based approach taken by the European Union in August 2016. However, it can only be regarded as an interim stage, as new regulation on the European level from the EASA is expected in order to extend EU competences to UAS below 150 kg (for more details see here). For businesses, it will be necessary to monitor carefully how this new German legislation will be handled in practice, especially how authorities will exercise their discretionary powers to grant exceptional authorizations in the different German Länder.