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Coronavirus - New regulations on the use of unmanned aircrafts introduced by the Italian Civil Aviation Authority – Italy

  • Italy
  • Competition, EU and Trade
  • Coronavirus
  • Diversified industrials - Aerospace, defence and security

17-04-2020

Introduction

In this briefing we look at the regulatory framework applicable to remotely piloted aircrafts in Italy, as recently updated by the Italian Civil Aviation Authority. In particular, this Authority, in line with the Government’s decisions adopted to face the COVID-19 outbreak, has recently published various notes loosening the rules applicable to the flights of these devices in order to allow local police forces to monitor citizens’ movements currently restricted due to the lockdown.

Overview of the regulatory framework applicable to remotely piloted aircrafts under EU and Italian law

The analysis of the regulatory framework applicable to remotely piloted aircrafts under Italian law shall begin with the relevant provisions of EU Regulation No. 2018/1139[1], the “basic” Regulation on civil aviation.

This EU Regulation contains a definition of “unmanned aircraft” in its Article 3, which includes “any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board” and a basic discipline of these aircrafts in its Articles 55 to 58.

The inclusion of these aircrafts in the general civil aviation Regulation was primarily aimed at granting their safety and security, as highlighted by the relevant Recitals of the Regulation. In particular, Recital 26 states that unmanned aircrafts have been included thereto since they “operate within the airspace alongside manned aircrafts”.

The Articles of the Regulation dedicated to unmanned aircrafts are accordingly focused on the safety of these devices. Indeed, they provide that such aircrafts should comply with the essential requirements set out in Annex IX to the Regulation (listing the essential requirements for unmanned aircrafts[2]).

Article 56 further establishes that a certificate may be required for the design or manufacturing of unmanned aircrafts and of their parts, while the following Articles 57 and 58 leaves to the European Commission to adopt implementing and delegated acts for the specification of the rules and procedures regarding the construction and the use of unmanned aircrafts.

On 24 May 2019, the Commission has subsequently adopted the Implementing Regulation No. 2019/947 on the rules and procedures for the operation of unmanned aircrafts.

The Implementing Regulation distinguishes between  operations to be conducted using unmanned aircrafts thus defining the “open”, “specific” and “certified” operations, depending on their necessity to be authorized by the national competent authority to be designated by each Member State, according to Article 17.

The same Commission adopted on 12 March 2019 the Delegated Regulation No. 2019/945 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems, by which the relevant requirements for the design and maintenance of remote-pilot aircrafts were established. In particular, the Delegated Regulation refers to specific obligations falling on producers and importers, sets out specific rules on the conformity of the products.

The most important piece of legislation regarding remotely piloted aircrafts under Italian law is Article 743 of the Navigation Code which, after a general definition of “aircraft” as “any machine designed to transport people or thing by air” goes on by establishing that remotely piloted aircrafts, identified by general Civil Aviation Authority’s definition, shall also be included into the abovementioned category.

The Italian Civil Aviation Authority has then issued a general regulation on remotely piloted aircrafts on 16 December 2013 and has updated it multiple times, lastly on 11 November 2019.

This regulation establishes that all unmanned aircrafts whose take-off mass lower than 25 Kg shall comply with some relevant regulations including the following: (i) their operator shall be registered in the platform “D-Flight” held by the same Authority; (ii) the aircraft shall be identified by a QR Code; (iii) depending on the nature of the operations to be carried out, the operator must comply with relevant regulations on the use of the airspace.

Italian Civial Aviation Authority’s Note of 23 March 2020 introducing derogations to the general Regulation on remotely piloted aircrafts in the context of the COVID-19 crisis 

With note No. 0032363-P published on 23 March 2020 and valid until 3 April 2020 (Note) the Italian Civil Aviation Autority (ENAC) has introduced relevant derogations to some of the provisions of the Regulation on remotely piloted aircrafts, adopted on 11 November 2019 (Regulation). These derogations’ effectiveness has later been extended until 28 April 2020 with ENAC's note No. 36155-P published on 9 April 2020.

The derogations have been adopted in order to facilitate controls of the citizens’ compliance with the Prime Minister’s Decree of 8 and 9 March 2020 that, in order to limit the spread of COVID-19 infections, have established significant restrictions to the possibilities to move within the national territory. In particular, the abovementioned Decrees, along with another one adopted by the Prime Minister on 22 March 2020, allowed movements of persons within different municipalities only if motivated by work-related reasons, health necessities or absolute urgencies.

Before any other consideration, it must be noted that ENAC’s Regulation distinguishes between Remotely Piloted Aircrafts (in Italian Aeromobile a Pilotaggio Remoto – APR) on the one hand, and Remote Pilot Aircraft Systems (in Italian Sitema Aeromobile a Pilotaggio Remoto – SAPR) which include both the APR and the components necessary for its control and command.

In this regard, the Italian regulatory framework appears to be slightly different from the one applicable at the EU level, where EU Regulation No. 2018/1139, as explained above, defines “unmanned aircraft” as “any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board” including both the device and the technological equipment needed to operate it (see Article 3 para. 1 No. 30).

That duly noted, the Note primarily establishes that local police’s monitoring activity can take place with the use of remotely piloted aircraft weighing less than 25 Kg in derogation of the Regulation’s provisions concerning the obligation register the aircraft on the “D-Flight” platform and to make it identifiable with a QR code.

The D-Flight platform is an online tool created by ENAC in order to comply with Article 56 para. 7 of the EU Regulation No. 2018/1139, which represents the EU “basic” aviation Regulation, entered into force on 11 September 2018. Indeed, this Article has demanded Member States to ensure the information about registration of unmanned aircrafts and of operators of unmanned aircrafts is stored in digital, harmonised and interoperable registration system.

Secondly, the Note allows the carrying out of critical operations in Visual Line of Sight (VLOS) mode (i.e. operations in which the horizontal and vertical distance between the SAPR and the remote pilot allows the latter to maintain visual contact with the aircraft during the course of the whole operation, in order to have a direct control of the flight) also on urban areas not densely populated.

This derogation shall be read in conjunction with Article 10 of the Regulation. This provision primarily defines critical operations as the ones which are not conducted in VLOS mode or which include the overflight of at least one of the following: a) populated or industrial areas or gatherings of persons; b) urban areas; c) critical infrastructures. According to Article 10 of the Regulation, every critical operation to be carried out with the use of SAPRs shall be either compliant with the standard scenarios published by ENAC[3] or expressly authorized by the same Authority on the basis of the risks it potentially implies.

In this regard, the Note authorizes the carrying out of critical operations on urban areas by local police forces without the need of any ENAC’s authorization or to be compliant with ENAC’s published standard scenarios.

The Note also allows State-owned aircrafts, as defined by Article 744 of the Italian Code of Navigation[4] and local police forces to carry out operations involving SAPRs near civil aviation airports (identified as “red areas”) at a maximum height of 15 meters, provided that such operations are related to the COVID-19 crisis and that the State entity using the SAPR has communicated its operations to the airport’s tower in order to coordinate their respective activities.

This provision derogates to the ENAC’s Circular No. ATM-09 of 24 May 2019, whose para. 7 establishes minimum distances to be maintained between remotely piloted aircrafts and civil as well as military airports.

In light of the foregoing and also taking into account the fact that the Government’s measures aimed at restricting the free movement of persons within the national territory have been lately confirmed and extended until 3 May 2020 with Prime Minister’s Decree of 10 April 2020, it is therefore possible that in the near future local municipalities’ police forces would purchase unmanned aircrafts from their producers in order to surveil their territory.

In this regard, it must be noted that according to the press, various Italian municipalities have recently acquired drones in order to monitor persons’ movements and avoid the worsening of local COVID-19 outbreaks[5].

International clients which manufacture unmanned aircrafts and would like to initiate this activity might need legal advice and support for the purposes of the compliance with Italian national regulations and of the relations with local municipalities which may be interested in purchasing such aircrafts to control COVID-19 outbreaks.


[1] EU Regulation No. 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No. 2011/2005, (EC) No. 1008/2008, (EU) No. 996/2010, (EU) No. 376/2014 and Directive 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulation (EC) No. 552/2004, and (EC) No. 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No. 3922/91.

[2] Annex IX to the Regulation lists the general requirements for unmanned aircrafts including the following: (i) the operator or the remote pilot shall be aware of the national and EU legislation applicable and must be able to grant the safety of the operations at any moment; (ii) the aircraft shall be designed and manufactured in a way that guarantees its airworthiness; (iii) the organizations active in the design, production, maintenance of unmanned aircrafts or conducting any operation using them shall have all the means necessary for these works, including the implementation of a safety management system and of a reporting system; (iv) any operation involving such aircrafts must be conduct in compliance with the relevant laws and regulations and safety procedures applicable.

[3] Available on the D-Flight platform at the following link: https://www.d-flight.it/new_portal/scenari-standard/.

[4] Article 744 of the Italian Code of Navigation defines as State-owned aircrafts all aircrafts, regardless if manned or unmanned, used by one of the following institutions: police forces, Customs authorities, fire departments, civil protection and other public services run by the State.

[5] See for example the unmanned aircrafts recently acquired by the municipality of Finale Ligure, a small town in the north of Italy (https://bit.ly/3cjq6HS) and San Giorgio a Cremano, near Naples (https://bit.ly/34I2sCq).

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