The use of unmanned aircraft (Telepiloted or Teleoperated or UA, or even UAS) has been regulated in France (one of the very first countries in the world to have a regulation) since 2012.
This use is enshrined in French law and regulations, defined under the Civil Aviation Code. These laws and regulations have since been reinforced by the Transport Code, the Civil Code, the Criminal Code, the Insurance Code, the CNIL and decrees and orders … And above all the new European regulations!
Indeed, since 2019, it is no longer the DSAC (Directorate for Civil Aviation Safety) that is competent for drafting laws related to drones, but the EASA (European Aviation Safety Agency).
So what are these new laws?
- Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and third country operators of unmanned aircraft systems.
- Commission Delegated Regulation (EU) 2020/1058 of 27 April 2020 amending Delegated Regulation (EU) 2019/945 as regards the introduction of two new classes of unmanned aircraft systems.
- Commission Implementing Regulation (EU) 2019/947, of 24 May 2019 concerning the rules and procedures for the operation of unmanned aircraft.
- Amendment of the Implementing Regulation (EU) 2020/639, amending the rules and procedures for standard scenarios for operations performed in line of sight or out of sight.
- Space Order, of 3 December 2020, modifying the conditions and heights of flight.
- Commission Implementing Regulation (EU) 2021/1166 of 15 July 2021 amending Implementing Regulation (EU) 2019/947 as regards the postponement of the date of application of the standard scenarios for operations carried out in line-of-sight or out-of-sight …
The homologation of class drones having been delayed, the law Formation drone of 18 May 2018 which allows telepilots to fly under national scenarios, has been amended on 17 August 2021. This law will only be valid during the transition period which will end on 02/12/2023. As of this date, new remote pilots will no longer be able to operate drones without a class! Those who will be in operation before this date will be able to continue to operate their old drones until 02/12/2025.
What are the key points of the new regulation?
- The EU-2019/947 regulation does not distinguish between recreational and professional activities! Only the risk linked to the evolving drone is taken into account! The telepilot is considered as a risk aggravating vector !!!
- Telepilot is a skill and not a profession: Indeed, when a telepilot training is provided, it is sanctioned, following the success of a theoretical examination (of the only competence of the DGAC), by A CERTIFICATE OF APTITUDE and not by a diploma or a license or a permit.
- The PRACTICAL competence must be awarded by a third party holding the training qualification in its MANEX: Two types of validation are possible: The training certificate (end of classic training) and the certificate of aptitude (in the case of financing under the CPF).
- The CATD + AP (or CAP) training is not compulsory if the operator has submitted an application for operation via a SORA risk analysis: In this case, the training is exclusively the responsibility of the Operator and the telepilots cannot fly outside the perimeter defined by the SORA!
- An operator is not necessarily a telepilot: A Drone operator is a physical or moral person. This has nothing to do with a drone pilot activity. A micro-company is a physical person! A leisure pilot is also a physical person!
- The Declaration of drone operator: It is necessary to declare oneself as an operator as soon as one uses a drone of more than 250 g or that the drone is equipped with a sensor in the visible or invisible spectra, whatever its mass.
- Indoor flights are not subject to aviation regulations.
What does the remote pilot risk in the event of an infringement?
There are three types of offence, the penalties for which are proportionate to their nature:
– The contravention, dealt with directly by the police court,
– A misdemeanour, tried in the criminal court,
– A felony, judged by the Assize Court.
The use of a drone in the context of a professional activity can lead you to one of these three jurisdictions.
The nature of the offence is determined by 3 elements of the offence: Legal, Material, Moral. For an offence to be punished by a contravention, the “Legal and Material” elements must be met. For a misdemeanour, the “moral” element must also be present.
Some examples of offences:
- The following offences are punishable by fines
- Failure to make a prior declaration
- Failure to register
- Failure to present documents proving the qualification of a remote pilot
- Failure to respect safety distances (protection zones for third parties, etc.),
- Proximity (less than 30 m) of expressways and railways…
- The following offences are punishable
- Failure to comply with the MANEX mission (Battery level, wind speed, temperature, weight at take-off, etc.),
- Failure to hold a remote pilot certificate, aeronautical licence or equivalence issued by the DGCA,
- Flying in regulated, sensitive or protected areas without authorisation (e.g. Seveso sites, national parks, military zones, near airports, helipads and airfields, etc.),
- Failure to declare aircraft to the relevant authorities,
- Failure to report aircraft electronically (SGDSN – General Secretariat for Defence and National Security),
- Use of unauthorised (radio) frequencies, use of radio transmitters on aeronautical and military frequencies,
- Non-declaration of aerial photography and cinematography in the visible spectrum (DSAC declaration) and non-visible spectrum (Prefecture authorisation, DGSI, GTA investigation, etc.).
- The following are punishable by crime
- Endangering the life of others,
- Violation and/or non-respect of privacy,
- Programming error and error in the execution of the programming.
Nota Bene: It should be noted that endangering the lives of others is never covered by an insurance company.
It is therefore important to be aware of your actions when planning a drone mission, and to check whether your flight is likely to place you in one of these offence conditions.
As for the use of subcontractors for your missions, make sure that they respect the customs and regulations, because you can be associated, according to their nature, with their infringements.
What does the drone operator risk in case of infringement?
Principals have a duty of care in respect of any contract concluded with a view to :
- The performance of work,
- The provision of a service,
- The performance of a commercial act.
Any professional who contracts with a subcontracting company which does not comply with UAS legislation (among other things) could be prosecuted for failure to carry out due diligence on its subcontractors.
Penalties : The amount of the administrative fine provided for in the event of failure to comply with its obligations is a maximum of €2,000.00 per service provider (€4,000.00 in the event of repetition within one year) up to a limit of €500,000.00
Some articles to be familiar with
Art. L. 6232-12
- It is punishable by six months’ imprisonment and a fine of €15,000 for a remote pilot to cause an aircraft travelling without a person on board to fly over an area of French territory by clumsiness or negligence, in violation of a ban imposed under the conditions set out in the first paragraph of Article L. 6211-4.
- The following is punishable by one year’s imprisonment and a fine of €45,000 for a remote pilot:
- Engage or maintain an aircraft circulating without a person on board over an area mentioned in the first paragraph of this article;
- Not complying with the requirements of Article L. 6211-4.
Art. L. 6232-13
A remote pilot found guilty of one of the offences provided for in Article L. 6232-12 of this Code or of the offence provided for in Article 223-1 of the Criminal Code shall also be liable to the additional penalty of confiscation of the aircraft travelling without a person on board which was used to commit the offence.
Aircraft Order – Article 6
Suspension of the remote pilot’s or operator’s authorisation possible in the event of a safety violation.
The use of a UAS in conditions of use that do not comply with the rules laid down to ensure safety is punishable by: One year’s imprisonment and a fine of 75,000 euros under Article L. 6232-4 of the Transport Code;
- Violation of the privacy of others: Art 226-1 penal code, 45,000 euros fine, 1 year in prison
- Endangering the life of others: Art 223-1 penal code, 15,000 euro fine, 1 year in prison.