With the adoption of the European Union (EU) laws regulating unmanned aircraft as of 1 January 2023 – as part of a bilateral aviation agreement[i], Switzerland is now bound by the rules and regulations put in place and monitored by the European Union Aviation Safety Agency (EASA).
The laws generally set statutory safety standards for the manufacture, approval and operation of civil drones. The new EU Regulations, namely 2019/947[ii] and 2019/945[iii], provide a distinction between three categories depending on the potential operational risk. These categories are ‘open’, ‘specific’ and ‘certified’.
The ‘open’ category provides for drone use without authorisation under certain conditions, namely in cases where drones are flown on sight, remain below 120m altitude and have a maximum flight weight of 25kg. This in principle includes most of recreational drones. The open category is divided into three sub categories, namely A1, A2 and A3. Furthermore, every drone under the scope of this category would require a class identification label, namely C0, C1, C2, C3 and C4, or a CE marking. Drones without either label or marking would fall under the transitional category[iv] which could still be flown according to a set of risk assessment criteria under ‘limited open’ special rules.
The operation of drones from a weight of 25kg would fall into the ‘specific’ category and therefore approval by the Swiss Federal Office of Civil Aviation (FOCA) would be required.
The ‘certified’ category is intended for considerably high risk operations.
Notably, there is no differentiation in place in the EU framework between non-commercial and commercial operations. Nevertheless, given the set conditions for operational aspects, it would not be farfetched to assume that most commercial purpose activities may fall into the specific category. This, however, does neither negate the possibility of non-commercial operations falling under the specific category, nor commercial activities being caught under the scope of the open category. Therefore, the purpose of the operation in question would generally not be decisive in the context of the scope of each category.
In accordance with the recent developments, certificates issued on the basis of the EU framework by EU Member States will be recognised in Switzerland, similarly those issued by the Swiss FOCA will be duly recognised by the former. The existing certificates, on the other hand, issued based on national laws may need to be adapted in line with the new framework.
Depending on the potential type of use, an applicant may now either declare compliance with a standard procedure, alternatively apply to FOCA for a single or multi – use operating licence, essentially based on risk assessment conducted by the applicant themselves. In this regard, a transition period of 8 months is put in place allowing for the following:
- to adapt existing operating licences in line with the new legal basis;
- to grant operators newly falling into the ‘specific’ category sufficient time to obtain a licence under the EU framework, during which time these operators would still be able to operate under the rules of the previous Ordinance on Special Category Aircraft (OSCA).
In this context, for drone manufacturers, operators and pilots the EU framework would arguably bring about certain advantages alongside disadvantages. Simply put, these stakeholders have to put their products and operations in conformity with the set rules in order to ensure production and continuity of their operations. Also, drone pilots would need to go through a range of training depending on the use case, pursuant to the EASA’s acceptable means of compliance. In doing so, a Swiss entity would be eligible for a ‘certificate of conformity’ or an EASA ‘design verification report’ etc. which would in return effectively grant not only manufacturers, but also operators and pilots, access to the EU market due to mutual recognition of compliance measures and authorisations as well as process simplification. However, compliance costs may pose significant challenges for smaller operators, potentially leading to market consolidation of certain players and further impediment to the creation of a level playing field in the sector.
In addition, there seems to be no longer a clear-cut distinction between two regimes of ‘visual line of sight’ (VLOS) and ‘beyond visual line of sight’ (BVLOS). Consequentially, such would further pave the way for those companies carrying out VLOS operations to also venture into BVLOS activities, given that risk assessment and compliance measures for these would be similar, if not identical.
Moreover, under the EU framework Swiss entities would potentially be in a position to become qualified authorities for a range of procedural and administrative tasks, hence an increase in sector specific business opportunities.
On the other hand, the EU U-space Regulation adopted in 2021 aims to harmonise the necessary requirements for manned and unmanned aircraft in order to ensure safe operation in the U-space airspace and to mitigate air and ground risks. In other words, the management of drone traffic will be ensured through the U-space. Switzerland is set to also apply the said Regulation which will enable a market for Swiss U-Space service providers.
Lastly, with the recent developments compliance is placed at the centre of the equation for entities in the sector. As a result of which, costs and resources for doing business would inevitably increase.[v]
At BPS Legal we assist with better understanding of newly adopted rules and drawing an effective compliance framework for Swiss entities in the sector depending on the particularities of products and operations thereof.