New German drone regulation comes into force

Irrespective of the imminent EU-wide harmonised regulation, the “Ordinance for the regulation of the operation of unmanned aerial vehicles” (Drone Regulation), which was launched by Federal Minister for Transport Dobrindt, came into force on 7 April 2017.

Weight-based licence and safety concept

According to the Regulation, unmanned aerial vehicle systems (hereinafter “drones”) and model aircraft are to be treated equally due to the comparable operational risk they pose. The following phased approach applies depending on weight and operating conditions:

• Drones up to 250 g are not subject to any special restrictions
• Drones weighing more than 250 g must as of 1 October 2017 have a fireproof plate containing the name and address of the owner attached to them so that the owner can be identified
• Pilots of drones weighing more than 2 kg must as of 1 October 2017 evidence their special knowledge by taking an exam – also online –  (“drone licence”) at an office or agency approved by the German Federal Aviation Authority (Luftfahrt-Bundesamt)
• A take-off licence is required to operate drones weighing more than 5 kg, special drones and for operating drones at night
• Operating drones weighing more than 25 kg is prohibited without a special licence

Operation over residential properties prohibited

The general ban on operating drones weighing more than 250 g and camera drones over residential properties, unless express permission has been given by the owner or any other beneficial owner, is new (Sec. 21b (1) sentence 1 no. 7 German Aviation Regulation (Luftverkehrs-Ordnung)). This prohibition which has been imposed with reference to privacy and personal rights, as well as local residents’ need for peace and quiet, is likely in practice to mean that drones will in urban and densely populated areas only be able to be flown over certain streets and undeveloped areas. Besides practical issues, such as the legal consequence of consent not being given by all owners/beneficial owners and the requirements placed on exceptions, especially the general nature of this prohibition gives reason for criticism.

Changes made by the Bundesrat

In order to protect emergency helicopter flights, the Bundesrat (lower house of the German parliament) has also prohibited the operation of drones over and within a lateral distance of 100 metres from hospitals. The restriction of altitude to a maximum of 100 metres, which is intended to provide a clear distinction from manned air traffic, does not apply to model aircraft flying out of consideration for model aircraft enthusiasts.

Privileges of authorities and organisations with security tasks

The Drone Regulation also gives special privileges to authorities and organisations with security tasks, such as fire brigades, emergency services and civil protection and disaster control with respect to using drones for reconnaissance and identifying the situation. These are not required to evidence any special knowledge and do not need a licence to use drones weighing more than 5 kg and they are not subject to the operating prohibitions of Sec. 21b German Aviation Regulation for sensitive areas either.

Outlook

EASA is also about to launch a harmonised regulatory regime following an amendment of the Basic Regulation, which expands the powers of the EU to cover drones weighing less than 150 kg. Following the non-binding “Prototype” Regulation of 22 August 2016, the regulatory approach can already be identified (risk-based approach focusing on operational restrictions (e.g. “geofencing”), obligation to comply with industry standards and personnel and organisational requirements, as well as obligatory registration of drones weighing more than 250 g). In light of this, the German Drone Regulation which has now come into force can certainly only be seen an intermediate step along the road towards creating a regulatory framework which not only bears security and privacy in mind, but also promotes innovation.