Operations and maintenance
One drone, one pilot
Does the ‘one drone, one pilot’ rule apply in your jurisdiction?
Yes, it does apply currently. RD 1036/2017 establishes that the pilot shall not perform a flight in respect of more than one aircraft at the same moment. However, this restriction is not clear as a result of the entry into force of Regulation (EU) 2019/947 in early 2021, where no restriction is provided in this regard. For example, the requirements for operations under the Specific category provide that the unmanned aircraft system (UAS) operator must designate a pilot for each UAS operation, however not for the specific UAS. This may open the door to carry out multiple operations controlled by one single pilot at the same time. In fact, the Aviation Safety State Agency (AESA) is presently being confronted by drone operators with a number of applications in this respect.
Do specific rules regulate the maintenance of drones?
The conditions for drone maintenance are provided in RD 1036/2017. Operators are obliged to establish a maintenance programme adjusted to the recommendations of the manufacturer. AESA has published on its website a set of guiding materials and acceptable means of compliance with the reviews and tests to be carried out in a drone operator’s maintenance programme, which provides the minimum necessary revisions and tests to be carried out on the aircraft. The operator is obliged to have an updated log system of the status, inspections and significant events that occurred in each aircraft. Similar rules apply under Regulation (EU) 2019/947, where UAS operators are required to have duly qualified personnel for the maintenance of its UAS.
Basic operational rules and restrictions
What rules and restrictions apply to flights performed in ‘visual line of sight’ (VLOS) and ‘beyond visual line of sight’ (BVLOS)? Is there a distinction in this regard?
Under RD 1036/2017, visual line of sight (VLOS) is defined as an operation mode where the pilot maintains constant and direct visual contact with the aircraft without the assistance or help of any optical or electronic devices (eg, first-person view glasses). The main difference with beyond visual line of sight (BVLOS) is that, in the latter, there is no direct contact with the aircraft. In addition, RD 1036/2017 also foresees the possibility of operating under extended VLOS by using alternative means to keep contact with the aircraft, using observers with permanent radio contact with the pilot.
Except for drones below 2kg maximum take-off weight (MTOW), the general rule in Spain is that all operations shall be carried out in VLOS conditions. This notwithstanding, BVLOS can be carried out if a specific authorisation is requested and obtained from AESA, or if the aircraft has been installed with a sense-and-avoid system approved by AESA or the aircraft has a certificate of airworthiness allowing it to carry out BVLOS flights.
However, since the entry into force of Regulation (EU) 2019/947 in January 2021, the restrictions and obligations foreseen in this legislation apply. In the Open category, in principle, VLOS will always apply and in case of BVLOS operations, these must be carried out in compliance with the Standard Scenarios’ requirements approved pursuant to the Commission Implementing Regulation (EU) 2020/639 of 12 May 2020.
What rules and restrictions apply to critical and non-critical operations? Is there a distinction in this regard?
Under RD 1036/2017 all operations shall be considered as non-critical unless expressly provided for therein. Critical operations definition and requirements are provided in article 44 of RD 1036/2017, whereby in cases of great risk or human or natural disasters some exemptions and other specific rules shall apply. When local or state authorities request citizens’ collaboration in disaster situations, those operators that have volunteered to help the public authorities may be declared exempt from complying with most of the requirements. However, coordination with air traffic control will be necessary as well in these cases. In the case of damage during disaster situations, operators may claim compensation from the administration.
Critical operations shall be also considered as operating in special facilities, being those affected by national defence or state security as well as those performed above or near critical infrastructures that are considered of strategic interest, such as nuclear power plants, transport facilities, energy, water and communication facilities. Flying above or near these zones shall be subject to the distance restrictions provided for under article 32 of RD 1036/2017 and also to the provisions of Act 8/2011, of 28 April, pursuant to which protection measures on critical infrastructures are established but ultimately shall be subject to the restrictions established by the State Secretary.
Is air transport via drone (eg, cargo and mail) regulated in your jurisdiction? If so, what requirements, limitations and restrictions apply?
Under Spanish regulations, the use of drones for transportation of cargo is not yet regulated. To our knowledge, to date just a handful of licences have been granted to operators for the carriage of goods under high security and safety measures. The Spanish aviation authority may therefore allow certain UAS operators to carry out transport operations in specific cases if previously and specifically authorised for said purposes, mainly for experimental tests.
Regulation (EU) 2019/947 may open the door to carriage of goods by drone under the Specific or Certified categories. The reasons may lie on the requirements of the Open category where, during a flight, the UAS will not carry dangerous goods or drop any material. Therefore, the Regulation provides that if this requirement is not met, then a UAS operator shall be required to obtain the necessary operational authorisation of the competent authority (ie, the member state).
Do any specific provisions governing consumer protection and tracking systems apply with respect to cargo and delivery operations via drone?
What insurance requirements apply to the operation of drones?
RD 1036/2017 sets out the obligation for the operator to subscribe and maintain an insurance policy or any other equivalent financial guarantee to operate drones. This insurance must be specific for the aviation industry because drones fall under the category of ‘aircraft’ under Spanish law. Therefore, a normal liability insurance policy is not enough. It would be necessary to subscribe specific insurance, often referred to as third-party liability insurance, covering operators for damage caused by their aircraft or its payload to the ground (people and property damage) and other airspace users.
This insurance is subject to the limits set forth in Royal Decree 37/2001, of 19 January, by which compensation for damage is updated in the Air Navigation Act (specifically article 119), which is applicable for remotely piloted aircraft systems that do not exceed 20kg MTOW.
The above-mentioned Royal Decree establishes economic compensation for each aircraft and accident that are limited in relation to the weight to a certain amount in special drawing rights. For drones of more than 20kg MTOW, the limits and liabilities for surface damage of Regulation (EC) No. 785/2004 shall apply.
What safety requirements apply to the operation of drones?
The safety requirements of RD 1036/2017 are aligned with the general safety measures foreseen by other supranational bodies, the European Aviation Safety Agency and the International Civil Aviation Organization mainly. Operators are responsible for the safety of each drone operation and also for compliance with other applicable legal provisions, such as personal data protection regulations, for example.
Common obligations apply for drones not exceeding 25kg MTOW other than security distances for take-off and during the flight. Furthermore, the flight needs to comply with the drone’s operations manual, and generic or specific security tests and safety risk assessments need to be performed before the operation. During the flight, pilots must ensure they avoid reckless manoeuvres and take additional measures in the case of operations performed above properties or groups of people on the ground. Before the operation is performed, the pilot should establish protection zones as well as recovery zones in case of malfunctions during the flight.
Under Regulation (EU) 2019/947, the safety requirements change depending on the features of the operation in which the flight is classified, which can be minimal or included in the aircraft by design in the UAS (Open category), additional to the ones provided by design in the UAS (Specific category) or similar to the conventional aircraft (Certified category).
Law stated date
Give the date on which the information above is accurate.
28 July 2020