France: Game of drones – government reviews unmanned aerial vehicle legislation
Jean-Baptiste Charles and Olivier Purcell
At present, there are approximately 1,000 registered drone operators in France, and numbers are on the rise as the civil drone market is expanding rapidly. Setting aside recreational or competitive use, as well as military or police applications, the use of drones for commercial purposes is also expanding – for example, to verify electric power lines or the condition of buildings, or to carry out reconnaissance.
The increasing use of civil drones poses obvious problems. For instance, three recent sightings of drones have been reported by commercial airliners on their approach to land at John F Kennedy International Airport, New York. In France, in recent weeks there have been regular reports of unauthorised drones flying over nuclear power stations, raising major security concerns.
It is in this general context that the French government has decided to review the legislation applicable to civil drones.
Various terms are used to describe civil drones, such as ‘unmanned aircraft’, ‘unmanned aircraft systems’, ‘remotely piloted aircraft systems’ or ‘unmanned aerial vehicles’. Whichever term is used, drones are treated as aircraft under the Global Air Traffic Operational Concept and under French law.
France was one of the first countries to implement legislation specific to civil drones; however, the legislation does not apply to military or state-operated drones.
On April 11 2012 the Ministry of Transport’s Civil Aviation Authority (DGAC) enacted two decrees: the Aircraft Decree relating to the design of drones and the Airspace Decree relating to the use of drones in French airspace. The two decrees must be read together and refer to various appendices in other texts. As a result, the rules are both complex and user unfriendly.
The manner in which a civil drone may be operated is dependent on the type of drone and its intended use. Civil drones are divided into seven categories. Distinctions are made based on:
- the maximum take-off mass (MTOM);
- whether the drone is a model;
- whether it is remote controlled; and
- its power source.
The legislation then defines three types of use:
- aero modelling;
- prototypes; and
- “specific activities”, such as agriculture, handling of loads, towing banners, photography, aerial surveys, surveillance and other commercial uses.
Finally, four operational scenarios are identified, which determine which category of drone can be used in which type of scenario. Distinctions are made based on:
- whether the drone is flying within sight of the remote pilot;
- whether it is flying in populated areas; and
- the distance at which it is flying from the pilot.
For drones flying out of the pilot’s sight, specific avionics equipment and security devices are required.
The legislation imposes various obligations on drone operators. Depending on the category of drone and the types of operation to be carried out, the DGAC may require certification. In addition, pilots of certain categories of drone used in certain scenarios must have training, minimum flight time and an aircraft or helicopter pilot licence.
In addition to defining and maintaining protection zones on the ground, the drone operator must also have adequate insurance. In this respect the Aircraft Decree is vague, since it merely requires an operator to obtain insurance “necessary for its activity”. EU law, as applicable in France, is more precise in this respect, as EU Regulation 785/2004 on insurance requirements for air carriers and aircraft operators (which would include drones) provides for minimum insurance cover in respect of third-party liability by reference to the aircraft’s MTOM. Nevertheless, the regulation does not apply to model aircraft with an MTOM of less than 20 kilograms (kg) or to larger aircraft with an MTOM of less than 500kg used for non-commercial purposes or local flight instruction. As a result, the regulation does not entirely compensate for the vagueness of the Aircraft Decree in relation to insurance requirements.
The existing legislation relating to drones does not deal specifically with drone operators’ liability. However, since drones are treated as aircraft, existing aviation law in France should apply.
Under the Transportation Code, an aircraft operator is strictly liable for damage caused by an aircraft to persons or property on the ground, unless the damage results from the victim’s fault. This is the only available defence.
Where an aircraft in motion causes damage to another aircraft in motion, ordinary rules of liability in tort apply; a drone operator, which will be treated as having custody and control over the aircraft which causes the accident, will be liable to the other aircraft, but may also rely on force majeure as a defence. Force majeure is not available as a defence to a claim brought by a victim on the ground.
Drone operators are also exposed to criminal penalties. Public prosecutors recently charged a drone operator with endangering human life (under Article 223-1 of the Criminal Code) for carrying out unauthorised flights of a remote-controlled drone over populated areas. Various other criminal penalties can apply, such as for unauthorised photography.
The French authorities have recently announced their intention to modify the existing decrees. This echoes a European Commission communication of April 8 2014 regarding the integration of unmanned aircraft in European airspace.
The DGAC has sought input from the industry regarding the changes to be introduced to French legislation. The primary intentions appear to be to remove the administrative hurdles in the existing legislation and broaden the use of civil drones.
One of the planned amendments is to allow model drones to take photographs, provided that this is not the main purpose of the flight and it is a non-commercial flight. Other planned changes include removing the need for prior authorisation for the operation of certain categories of drone during daylight hours, in sight and within 200 metres of the remote pilot.
As regards the use of French airspace, a new set of general principles has been proposed, depending on altitude and use. For instance, civil drones would be allowed to use the airspace between 50 and 150 metres from the ground – airspace principally used by military, civil security, police and emergency services – provided that they give priority to state-operated aircraft. However, this would depend on the drone’s MTOM and the manner in which it is operated.
It has also been suggested that certain types of drone activity could be carried out over populated areas without authorisation, provided that a prior declaration is made.
The DGAC consultation process is ongoing, so further changes to the revised draft decrees are likely.
While the government’s intention appears to be to facilitate the operation of civil drones in France and to allow the market to expand further, it seems unlikely that the changes will simplify the rules themselves, since the manner in which drones may be operated will still be determined by reference to the category of drone, the type of activity and the operational scenario.
Further, as the use of civil drones for commercial purposes continues to flourish, concerns related to safety and security will also continue to rise. Recent reports of drones being operated illegally near airports or over nuclear power stations are likely to increase the number of regulatory safeguards and requirements for commercial drone operators. The commercial desire to remove hurdles to market development is thus likely to conflict with the administration’s concerns for public safety. It therefore remains to be seen how significant the final changes will be, and whether they will truly represent an improvement on the existing position.
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