UAS operations in Europe are currently disciplined by Regulation (EU) 2018/1139 on common rules in the field of civil aviation, the so-called “new basic regulation.” The new set of rules repealed the dual approach of the previous 2008 regulation, i.e. Reg. (EC) 2008/216. According to this latter legal framework, the EU lawmakers only provided rules for UAS with an operating mass over 150 kg and expressly excluded the regulation of certain types of drones, either due to their activity or their weight. This means that each EU Member State and their national aviation agencies had regulatory powers for all the other kinds of drones throughout a decade. This meant however the fragmentation of the system. A number of extremely detailed regulations by multiple national authorities raised the risk of hindering this vibrant field of technological innovation. The swirl of administrative acts by the Italian civil aviation authority, i.e. “ENAC,” illustrated this deadlock in the mid 2010s (Pagallo 2017a).
In order to guarantee certainty, harmonization and clarification of the rules on drones, the new 2018 EU regulation sets up a centralized, top-down framework, in which the main ruling powers are devolved to both the European Commission and the European Aviation Safety Agency (EASA). The new regulation is adopted in the name of the subsidiarity principle. The latter governs the exercise of the EU’s competences, as laid down in the Treaty of the European Union (Article 5(3)), and applies to all the cases in which the Union has no exclusive competence, as for civil aviation. In the wording of the new Act, “since the objectives of this Regulation, namely establishing and maintaining a high uniform level of civil aviation safety, while ensuring a high uniform level of environmental protection, cannot be sufficiently achieved by the Member States because of the largely transnational nature of aviation and its complexity, but can rather, by reason of their Union-wide scope, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity” (Rec. 88).
The new basic regulation concerns all drones regardless of their size and weight, although there are some exceptions, which are up to EASA to regulate with its guidelines, pursuant to Annex I and Art. 141(4) of the regulation. Member States can lay down specific national rules for UAS, either by granting specific exemptions to some European requirements, or amending the implementing and delegated acts of the Commission, in accordance with Art. 56(8) and 71 of the regulation (Bassi 2019a). However, the aim to guarantee standards for the safety, efficiency and environmental impact of air traffic—so that drones can gradually begin to share the air space—is mostly defined at the EU level. Similarly to the US regulatory model, which mostly revolves around the powers of the Congress and the Federal Aviation Administration, the regulatory powers of the EU are devolved both to the Commission and to EASA. Since 2019 onwards, scholars had thus to pay attention to the European Commission’s implementing and delegated acts, mandated by Reg. 2018/1139. Such acts establish a specific set of detailed rules for different classes of UAS operations (Bassi 2020). Examples are the Delegated Regulation (EU) 2019/945 on unmanned aircraft systems and on third-country operators of UAS, and the Implementing Regulation (EU) 2019/947 on the rules and procedures for the operation of unmanned aircrafts, as amended by the Commission Implementing Regulation (EU) 2020/639 of 12 May 2020, related to standard scenarios for operations executed in or beyond the visual line of sight.
In addition, there are the regulatory powers of EASA. They are both hard and soft. As to the hard tools of EASA, pursuant to Art. 75(2)(b) of Reg. 1139/2018, the Agency has the power to develop, upon request of the Commission, technical rules that cannot be changed by the Commission without prior coordination with the Agency. This power of EASA is disciplined by Article 115(1) of Regulation (EU) 2018/1139 and by an ad hoc internal ‘Rulemaking Procedure’ (EASA 2015) (MB Dec. No 18-2015). As regards the soft powers of EASA, the Agency can issue such acts, as the Guidance Material and Acceptable Means of Compliance that flesh out the measures to comply with the regulation, including e.g. the description of the methodology for conducting a Specific Operation Risk Assessment and the model of a pre-defined risk assessment.
Two basic features of this regulatory model of governance for UAS in the civil aviation field can be further stressed in light of the current regulation of autonomous ground vehicles (AVs), or self-driving cars. Although UAS and AVs may look somehow similar, the ways in which they are disciplined in the EU suggests some striking differences. In addition to technological and geo-political reasons (Pagallo 2011), such different regulatory approaches concern alternative models of top-down regulation, and their interplay with the soft tools of the law. As to the different types of top-down regulation, in addition to Regulation (EU) 2018/113 in the field of civil aviation, there is a set of common rules established at the EU level also in the field of AVs. The list includes both a regulation on the approval and market surveillance of motor vehicles, and three directives on liability for defective products, the sale of consumer goods, and insurance against civil liability (Pagallo et al. 2019). Contrary to the field of UAS, however, the most critical legal issues of current traffic law depend on the legislation of each EU member state, as occurs with matters of redress, damages, or tortuous liability. We are far from even beginning to imagine a quasi-federal legal framework for the use of AVs at the EU level. All the amendments which have been made to existing traffic laws, in order to allow for the testing and use of driverless technology on public roadways, are up to national legislators: Spain passed its own law with the Dirección General de Tráfico from November 2015; Belgium with the Royal Order from March 2016; Italy with the “Smart Road” decree from February 2018; France with the norms on “la croissance et la transformation des entreprises” from April 2019; and so on. Although both regulatory models of civil aviation and road traffic laws are thus top-down and dualistic—because there is a distribution of competences between the EU and its member states—only the regulatory framework of UAS appears highly centralized.
A second crucial difference between UAS and AVs, and hence, another crucial facet of the EU regulatory model of governance for UAS has to do with the role of soft law. The lack of any robust soft law for AVs, as a matter of fact, appears as the by-product of an on-going process to determine the rules of hard law in that field. As regards the governance of UAS, the soft powers of EASA can hardly be overestimated. They are established by Articles 75 and 76 of the basic regulation, and comprise (i) opinions and recommendations on the current legal framework; (ii) the development of standards for the integration of UAS operations in the single European sky strategy; (iii) monitoring functions that regard the application of the 2018 regulation; and, (iv) the coordination of the activities by member states, which includes certifications, duties of oversight—in particular cooperative and cross-border oversight—and enforcement tasks (Bassi 2020).
Some of these soft powers of EASA on e.g. development of standards can be properly conceived of as the middle ground between the top-down regulatory approach illustrated thus far, and the forces of the market. According to a study of the EU institutions, the drone services market is going to grow noticeably, with estimates “between €10bn by 2035 and €127bn for the coming years” (European Commission 2017). Yet, such growth would be impossible without efforts of coordination and cooperation with the drone industry. Going back to EASA’s Guidance Materials and Acceptable Means of Compliance, it is remarkable that the principal aim of such acts is to assist operators, for example, when applying for an authorization in the specific category of the operation to be performed. In the description of the rulemaking procedure followed for the adoption of its Opinion 5/2019, EASA has stressed that the definition of standard scenarios for specific drones operations is developed on the basis of the “in-service experience of some Member States.” Stakeholders and national experts of different member states are involved in the process (EASA 2019).
The EU top-down regulatory approach to the field of civil aviation is thus crucially complemented, all in all, by the soft tools of the law. Soft law represents the interface between the common standards on safety, efficiency and environmental impact of the air traffic—as the main goals of the current reform of the air traffic management system in Europe—and the role that the forces of the market play in this context. The overall aim of the EU lawmakers is to attain that the whole framework, including UAS sharing the air space with traditional aircrafts, is at full speed by 12 September 2023, i.e. as established in Article 140 of the 2018 Regulation.
Still, the governance of UAS and the legal regulations of the sector regard also but not only the field of civil aviation. UAS affect further fields as different as public security legislation, telecommunication and data protection law, product liability, criminal law, or insurance law (Custers 2016). Attention should be drawn as well to the impact of UAS operations on the protection of people’s rights, such as the right to dignity and freedom of assembly and association, privacy and non-discrimination, down to the criminal safeguards of the individuals (Finn and Wright 2012). The next section examines what model of governance may follow as a result of this broader view on the normative impact of UAS.