Latest National Regulations on Unmanned Aircraft Systems in Military and Civil Aviation in Poland
The needs and possibilities concerning UAS are broad and will be growing, not only because of military, but also because of civil needs. Due to the lack of regulations, there are many questions to raise (certification, classification, registration, airworthiness, personnel licensing, collision avoidance, rules of the air, meteorology, aeronautical communications, security, environmental protection, responsibility, insurance).There are still many debates among policy makers and lawyers concerning future UAS regulations. Some recommend that the rules should not be more restrictive than existing ones concerning civil manned aircrafts. Looking at the Polish example of amendments to the Aviation Act it can be observed that leaving regulation to national parliaments is a long, costly and risky process. There is a necessity for preparing a proper UAS regulation (hard law) at European level, which will facilitate the process of preparing national laws and apply the same UAS principles for all EU countries.
1. UAS in Military and Civil Use
Unmanned Aircraft Systems (UAS) are used mainly in the military domain (such as for reconnaissance). Military experts acknowledge the need for military forces to acquire or develop systems without pilot. UAS can be useful in the mission areas of counter-terrorism, intelligence gathering and logistics support. Among the multitude of operational programmes concerning the modernisation of military forces in Poland endorsed by the Ministry of National Defence, there was one focusing on UAS procurement.
The needs and possibilities concerning UAS are broad and fast growing, not only in the field of military applications, but also of civilian ones in the mission areas of observation, search and rescue, meteorology, border protection etc. The UAS civil market is still growing in Europe. That is why it is necessary to regulate UAS operations in civilian air space on an international, European, and finally also national level (as in the case of Poland).
2. A Need for Regulations
Legal experts are calling for the formulation of policies concerning UAS, regarding both their military and civil use. Due to the lack of
regulations, there are many questions pending, pertaining to complex questions such as their airworthiness certification, personnel licensing, classification, registration, collision avoidance, traffic management, communication protocols, security issues, environmental protection, legal responsibility, insurance etc.1 Consequently, there is a multitude of seminars and conferences on UAS organised by industry, government, and associations and institutes all over the world.
International and European organisations especially are very active in exploring the issue of a suitable legal framework for UAS operations. The International Civil Aviation Organization (ICAO)2, the European Air Safety Agency (EASA)3 and Eurocontrol4 have
1 F. Tomasello, Certification and Approval of Unmanned Aircraft Systems (UAS) in Europe, ESPI seminar, Opening Airspace for UAS. A Regulatory Framework to introduce Unmanned Aircraft Systems in the Civilian Airspace, 4 XI 2010.
2 Unmanned Aircraft Systems (ICAO Cir. 288),AN/190, 2011.
3 Policy Statement Airworthiness Certification of Unmanned Aircraft Systems (UAS) E.Y01301Policy Doc. E.Y013-01 (issued 25-08-2009). EASA plans to propose common EU rules for operations and flight crews of these UAS by 2014 (legislation task RMT 0235 in Rulemaking Programme) According to EASA definition of UAV: „ An Unmanned Aircraft System (UAS) comprises individual system elements consisting of an “unmanned aircraft”, the “control Małgorzata POLKOWSKA, Polish Civil Aviation Authority
PERSPECTIVES E S P I
60
prepared some basic rules for future regulations.
The UAS issue has been in the centre of policy makers’ attention in recent years too, although actual concrete regulations are not yet prepared, but expected to come into force gradually over the next few years.
At present, the only applicable legal provision is article 8 of the 1944 Chicago Convention5 on pilotless aircrafts. This only stipulates that no such aircraft can be flown without pilot over the territory of a contracting State, unless special authorisation is given, and then only in accordance with the terms of this authorisation.
Article 8 also clarifies the safety and security provisions regarding civil aircraft, which must be ensured by each state. However, the Chicago Convention does not include any mention of UAS classification, nor does it provide any definition on what an UAS actually is. In fact, it only describes the conditions under which a pilotless aircraft can operate in the airspace of a state by using the safety and security regulations. All other particular rules in ICAO annexes, international conventions or EU regulations (ex. Regulation 216/20086) do not explicitly pertain to UAS related issues.7
The debate on future UAS regulations is still ongoing among policy makers and legal experts.
Some of them recommend that the rules should not be more restrictive than existing ones concerning civil manned aircrafts (in matters of certification, training, licensing systems, airworthiness or civil and criminal responsibility).
According to this point of view, there would be no sense in an over regulation of UAS use. The safety and security of UAS operations are the most important issues at stake, and consequently they should be resolved first. That is why there is perhaps little time left to national governments to regulate this issue, before a broader international regime is agreed upon. At present, there are only a few examples of
station” and any other system elements necessary to enable flight, i.e. “command and control link” and “launch and recovery elements”. There may be multiple control stations, command & control links and launch and recovery elements within a UAS.”
4 D. McMillan, EUROCONTROL, UAS, The Global Perspective 2011/2012, 9th Edition.
5 Convention on International Civil Aviation (Chicago Convention), was signed on 7 December 1944, ICAO Doc 7300.
6 Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC OJ L 79, 19.3.2008.
7 M.Polkowska, Prawo kosmiczne w obliczu nowych problemów współczesności, Warszawa 2011, p. 111.
countries that have introduced legislation on UAS, such as in the case of Canada, the U.S.
and Australia.8
3. Polish Regulations
Up to last autumn the UAS issue was not addressed by national regulations in Poland. A new Polish set of regulations went into force on 18 September 20119, amongst which one on UAS. It was the Polish Ministry of Defence that initiated the inclusion the UAS rules into the Polish Aviation Act (which regulates Polish civil aviation).
It must be noted, that the process of creating new amendments into the Polish Aviation Act (which is a Parliamentary procedure) took a few years. As always, updating a law has been a time consuming task. Furthermore, the subject, including UAS regulation, was quite difficult and the process of adapting the new law into practice has been quite lengthy as well.
Provisions regarding the regulation of aircraft classification and airworthiness, or pilot licensing have been particularly demanding.
At first, the subject of UAS caused a lot of objections concerning the need to regulate this issue in the context of the Polish Aviation Act. A further objection among experts on this issue concerned the lack of hard law on UAS at a European or International level. Certain experts consequently suggested that it may have been premature to regulate UAS on a national level.
Nevertheless, article 126 of the new Aviation Act pertaining to the use of UAS was finally accepted by the Parliament in July 2011, introducing the term UAS for the second time in Polish law. According to this article, every UAS operation in controlled airspace is possible only upon receiving permission from the President of the Civil Aviation Office. Controlled airspace is defined as the part of airspace that is under air traffic control supervision. If an UAS were to fly in non-controlled or non-classified airspace, then
8 A. Masutti, A regulatory framework to introduce Unmanned Aircraft Systems in Civilian Airspace, ESPI seminar, Opening Airspace for UAS. A Regulatory Framework to introduce Unmanned Aircraft Systems in the Civilian Airspace, 4 XI 2010.
9 The Aviation Act from 3 of July 2002 with later amendments (Dz. Urz. Nr 100, item 696 with amendments).
According to the article 126 of Polish Aviation Act each UAV operation in controlled airspace is possible after receiving the permission from the President of the Civil Aviation Office.
it would not require any previous permission.
Conditions concerning the segregation of Polish airspace are detailed in other parts of the Act.
The conduct of foreign UAS operations is also foreseen upon approval from the CAO President and the competent military authorities (art. 149).
The previous Polish Aviation Act of 2002 only included a single article on UAS matters (with no particular rules). The act referred to UAS civil operations and it did not regulate government use. Before the new 2011 amendment entered into force, there was some confusion regarding the UAS related terminology used. The Aviation Act was describing only pilotless operations, using language from the Chicago Convention.
All pilotless aircrafts were defined as a system, not used to sporting or recreation purposes, which is capable of autonomous flight or remotely controlled. The same definition was also included in regulations on the classification of conventional remotely controlled aircrafts (not UAS). Moreover the military and civil operations of UAS were never regulated in Poland.
The new rules included in article 126 regulate both civil and military UAS use in Poland’s airspace. They signify a step away from the total prohibition of UAV operations in controlled airspace. The new law also details the operational specifics of UAS use. It is mentioned in article 126 that UAS must be equipped with the same instruments as manned aircraft (on VFR or IFR basis) to perform flight, navigation and communication in segregated airspace.
It should also be noted that a variety of different government instances and institutions are involved in the issue of regulating UAS use in Poland, especially regarding the respect of air traffic safety. All the specific technical aspects of UAS operations and all the procedures of cooperation between UAS operators and air traffic controllers are currently the subject of a detailed regulation being prepared by the Polish Ministry of Transport and the Ministry of Defence. Furthermore, regulations concerning the classification of UAS up to 30Kg. that would include their specific operating conditions are still pending. These aircrafts are expected to be characterized as “models”. They would operate after obtaining a relevant license from the air traffic control body. Their operation would be prohibited for a distance of less than 50 m from populated areas.
Heavier UAS would operate according to the flight rules (the same as manned aircrafts with crew) and airspace classification. Their operation would be monitored against a
submitted flight plan. Such UAS should be equipped with the same instruments as manned aircraft. In the draft of the regulations there are some provisions guarantying their safe operation in Polish airspace. In the event of an emergency involving loss of communications with the aircraft, suitable technical equipment should ensure the UAS’ autonomous flight and the continuation of its operation according to the planned parameters. This emergency safe mode should ensure the safety of the other airspace users. UAS operators and air traffic controllers are obliged to know the parameters of the particular UAS. The same airspace use priority rules applicable to conventional airplanes would apply to UAS. Such air traffic management regulations concerning UAS were also adopted by France, the U.K., Sweden and the U.S.
The updated regulations of the new Aviation Act also took into account certain suggestions offered by Eurocontrol.10 These Eurocontrol specifications are currently the only international document on the use of military UAS, and they address various aspects of UAS operations within the context of air traffic management regulations. This document does not represent a formal legal norm, but it does include useful criteria and conditions regarding UAS operations. It also demonstrates the future direction of changes in the relevant legislation, while presenting various national points of view on this problem.
According to national law, UAS might only operate in segregated airspace. In the Eurocontrol Specifications it is stipulated that that UAS should follow the same criteria as manned aircraft. The ICAO rules of air traffic must be observed. These rules provide a globally accepted framework for UAS flight in non-segregated airspace too. On the other hand, in case UAS operation is not compatible with air traffic regulations, it should only be accommodated within temporary reserved airspace.11 All Polish detailed regulations will
10 Specifications for the Use of Military Unmanned Aerial Vehicles as Operational Air Traffic outside Segregated Airspace”EUROCONTROL-SPEC-0102; 26/07/2007.
11 J. Maj-Marjańska, P. Pietrzak, Prawne aspekty użytkowania bezzałogowych statków powietrznych II – 2011 / 18 Bezpieczeństwo Narodowe, s. 197 i następne.
All UAS operational conditions, including procedures of cooperation between UAS operators and air traffic controllers are the subject of a detailed regulation under preparation by the Ministries of Transport and Defense.
take into account not only Eurocontrol, but also relevant EASA (regarding airworthiness certifications for UAS products) and ICAO Policies on UAS. This is the reason why the new amendments to the ICAO Annex 2, the ICAO UAS Manual, and the EASA rules for UAS are eagerly awaited by the aviation community in Poland.
4. Conclusions
The military and civil use of UAS is expected to continue growing in the future, because of the inherent advantages to their use. Poland’s civil and military national aviation authorities should prepare to operate this rapidly developing new technology. Adopting a proper regulatory framework at a parliamentary (Acts) and a ministerial (Regulation) level should aim at unifying terminology according to international definitions, especially regarding the definition of the different aircraft types. In short, it is necessary to regulate the safe use of UAS in the airspace and lay down various rules on UAS separation from aircrafts, their use of airports, and the criteria of their airworthiness standards.
The existence of such a clear regulating framework would be the necessary first step to determining safety rules and deciding liability
issues related to UAS use, both in the air and on the ground. Achieving the maximum possible respect for public safety standards should be the primary objective of any such initiative.
It seems logical that any progress in adopting European legislation on UAS operations would greatly assist relevant national efforts as well. In addition to this, leaving national parliaments to take the lead in adopting such legislation could prove to be lengthier endeavour than a European approach to the issue. At the same time, preparing suitable national laws on civil and military UAS operations could prove challenging for member states, in the absence of broader European and international guidelines.
From this point of view, it could make more sense to boost regulatory efforts on a European and international level sooner rather than later, in the interest of achieving the highest possible degree of transparency and compatibility of national legislations on this matter.
The adoption of a European regulatory framework for the civil and military use of UAS could facilitate and accelerate its correct implementation at a national level.
Mission Statement of ESPI
The European Space Policy Institute (ESPI) provides decision-makers with an informed view on mid- to long-term issues relevant to Europe’s space activities. In this context, ESPI acts as an independent platform for developing positions and strategies.
Available for download from the ESPI website www.espi.or.at
Short title: ESPI Perspectives 60 Published in May 2012
Editor and publisher:
European Space Policy Institute, ESPI
Schwarzenbergplatz 6 • A-1030 Vienna • Austria http://www.espi.or.at
Tel: +43 1 7181118-0 / Fax: -99 Email:office@espi.or.at
Rights reserved – No part of this report may be reproduced or transmitted in any form or for any purpose without permission from ESPI. Citations and extracts to be published by other means are subject to mentioning “Source: ESPI Perspectives 60, May 2012. All rights reserved” and sample transmission to ESPI before publishing.
ESPI Perspectives are short and concise thought or position papers prepared by ESPI staff as well as external researchers.
Any opinion expressed in this ESPI Perspective belongs to its author and not to ESPI.
The author takes full responsibility for the information presented herein.
