Drone Regulatory Regulierung

Eyes in the Sky I : Regulatory Framework for operation of Drones in Switzerland

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Drone Technology opens new business opportunities

For some time now, drones – or more technically speaking “Unmanned Aviation Vehicles (UAVs)” or “Remotely Piloted Aviation Systems (RPAS)” – are making the headlines. The term “drone” is used for aircrafts that are remotely piloted or autonomously navigated without a human pilot on board of the aircraft. It includes various types of unmanned aviation vehicles, from very large aircraft which resemble in size and complexity manned aircraft to very small consumer electronics aircraft. Today, the Federal Office of Civil Aviation (FOCA) estimates that around 20,000 drones and model aircrafts populate the sky in Switzerland – the number is rising from day to day of course. Drone technology is widely seen as the next disruptive technology, enough powerful to reshape business, economy and our daily life. The technology has matured rapidly in past years and is ready to make the shift from being purely military equipment to becoming a reliable new technology for civil use.

An increasing number of companies are seeking to expand their business models into the sky using drone technology. The commercial potential for civil drones is assessed to be nearly unlimited. Frequently, cameras are mounted on the drones to take aerial photos or videos. Drones can be used commercially in various fields including monitoring and safety inspection of infrastructure (rail tracks, oil pipe lines) or environmental disasters (flooding or forest fires), agriculture (e.g. precision farming), aerial filming and imaging for the media, geomapping or delivering of all kinds of goods. Many industries are already feeling the impacts of the drone technology. Swiss Post, for example, is currently testing the use of drones for the delivery of packets to remote areas or for fast delivery of high priority deliveries such as medical laboratory samples.

Facing the challenges

In order to collect data, drones with mounted cameras often fly close to objects or above populated areas. Besides the technical hurdles, drones challenge the existing aviation regulation in terms of safety and security. Besides health and safety concerns, drones with cameras are challenging the current data protection regime and privacy legislation – we will address these issues in a second article on drones.

One crucial aspect for the future success of drones will be to ensure that all necessary safeguards for their safe and sustainable use are in place while, at the same time, allow this emerging technology to evolve without excessive red tape. According to the European Aviation Safety Agency (EASA) the European Union will, in the next couple of years, develop or amend the existing legal framework. Also, Switzerland needs a strategic and continuing sensible approach to regulation in order not to jeopardize the technological progress. This is particularly important because many of the highly innovative companies who take a leading role in the development of drone technology are based in Switzerland.

Current legal framework for operation of drones in Switzerland

The current legal framework for operation of drones in Switzerland is lacking far behind the progress of drone technology. The term “drone” does not yet exist in the current legal rules. Therefore, drones, model aircrafts and other unmanned aviation vehicles are governed by the same provisions even though for example in terms of safety regulation the various types of unmanned aviation vehicles should be regulated differently. Operation of drones, which are flown mostly above populated areas or close to objects is much riskier than the operation of model aircrafts which are operated mostly in an open area.

Size matters

The applicable requirements for the operation of drones are tied to the operation mass of the drone. In contrast to other countries (most notably the Federal Aviation Administration in the US) current Swiss legislation does not make an artificial distinction between drones used for commercial or for non-commercial purposes. This is the case because the risks for third persons or objects on the ground remain the same, irrespective of whether the drone is used for business or otherwise.

The following categories have to be separated:

a. Drones above 150 kg: Drones weighting more than 150 kg but are not used for military, customs, police, firefighting, search or rescue work, are governed by Regulation (EC) No 216/2008 (2 February 2008) on common rules in the field of civil aviation and establishing a European Aviation Safety Agency. The Regulation is directly applicable in Switzerland and replaces national rules within its scope of application. Drones used by the Swiss Military are subject to separate military aviation regulation.

b. Drones between 30 kg and 150 kg: For drones within these weight limits, Swiss aviation legislation exclusively applies. Operation of such big drones always requires an operation authorization from FOCA. FOCA specifies the requirements for authorisation and the operating conditions on a case-by-case basis. The aircraft proprietor must have entered into a third part liability insurance policy with guaranteed cover of at least one million Swiss francs.

c. Drones between 0.5 kg and 30 kg: Also for these smaller drones Swiss aviation legislation exclusively applies. The vast majority of drones that are (or will be) used for commercial purposes will have an operation mass below 30 kg. Therefore, the following remarks will focus on regulation for these smaller drones.

Rules on operation and safety

The operator of a small drone (i.e. between 0.5 kg and 30 kg) does not require a special permission of FOCA. Nevertheless, general restrictions of airspace (e.g. aerial traffic bans or general airspace bans) of course also apply for operation of smaller drones. Operation of such smaller drones requires insurance coverage of the proprietor with guaranteed cover of at least one million Swiss francs. The Swiss Ordinance on Special Category Aircraft requires that the insurance policy must be carried by the operator when the drone is in operation. For operation of model aircrafts of less than 0.5 kg, coverage for third party liability claims is not required.

Even though no special permission for operation of small drones is required, a number of restrictions set out in the Swiss Ordinance on Special Category Aircraft have to be followed:

Visual line of sight between the drone and the operator

The operator of the drone must always maintain a direct visual line of sight to the drone. Interpretation of “direct visual line of sight” between the operator and the drone is strict. The direct line of sight shall ensure that the operator may at any time intervene and control the flight. No technical aids are allowed to extend the natural eye sight: If the operator uses binoculars or video glasses in order to extend natural sight, a special permission of FOCA is required. Such special permission for the operation of the drone beyond visual line of sight (BLoS) may only be granted if other users of airspace and third parties on the ground are not endangered. Granting of such authorisation is very restrictive and applicants must meet strict requirements (see section 4 below).

Video glasses may be used by a drone operator, if a second operator supervises the flight within visual line of sight and the second operator might, at any time, access the control system and take control of the flight. The supervising operator must stay at the same location on the ground as the piloting operator. Under these requirements, no special permit from FOCA is required for the use of video glasses.

Autonomous flights (in particular GPS flights) are only permitted if the drone remains within eyesight of the operator and the operator might at any time access the control system and take control of the flight.

Restrictions on drones

Operation of drones weighting up to 30 kg is prohibited:

  • within a distance of five kilometres from the runways of any civil or military airport;
  • in control zones of airports (CTR) at an altitude of more than 150 m above the ground (i.e. within control zones drones may only be flown up to a maximum altitude of 150 m, but in any case outside the five kilometres distance from runways). Most parts of the city of Zurich, for example, are within the CTR of Zurich Airport;
  • Within a radius of 100 m from a “group of people”. According to FOCA, a “group of people” is a gathering of more than 24 people. FOCA may grant special permission for exemptions. Public aviation events are generally exempted from this restriction.
  • General airspace closures (e.g. during political or economical events like the World Economic Forum) are also applicable to drones.
  • The first three restrictions outlined above do not apply to drones or model aircrafts with an operation mass of less than 0.5 kg.

Special permits for flights BLoS and above gatherings of people

As already mentioned, in principle, drones may not be operated above or within a radius of 100 m from gatherings of people or BLoS (e.g. GPS flights). However, FOCA may grant special authorizations for the operation of drones BLoS and above gatherings of people. One of the requirements is that the operator retains the possibility to trigger an emergency system in case of an unforeseen event. Completely autonomous flights are not permitted nationally or internationally. To ensure safe operation of such drones, FOCA will perform extensive safety assessments. Besides the application form for the special permit, the applicants have to submit an extensive “total hazard and risk assessment” based on an adapted version of the “Guidance for an Authorisation for Low Level Operations of RPAS (GALLO)”. Due to complexity of this process, special permits for private purposes (e.g. for leisure activities) are de facto excluded. Due to smaller risks, a simplified procedure applies for drones on a rope which is attached to the ground for operation above gatherings of people.

The cost for such a special permit varies between CHF 50 to CHF 700, depending on the complexity of the application. In any case, the applicant has to provide FOCA with a third party liability insurance policy with guaranteed cover of at least one million francs. FOCA may grant permits not only for a single occasion, but also for a longer period, as long as the operation concerned is always of a similar nature and involves the same risks.

Swiss Post, for example, has been granted a special permit by FOCA to test their parcel drones with autonomous flights (i.e. without manual control or monitoring) of drones BLoS up to approximately 10 km. According to FOCA, until February 2016 only five permits for flights BLoS have been issued. For flights above gatherings of people, 33 special permits have been issued – however these permits were issued for drones on a rope in a simplified procedure. FOCA is currently facing an extremely high demand for special permits. Therefore, it may take up to three months to get one. Applicants are requested to apply for a special permit as soon as possible.

Additional Cantonal and Communal regulations

Cantons may issue regulations for drones with an operation mass of less than 30 kg on the reduction of environmental pollution and on the risk to persons and property on the ground. The canton of Zurich has not made use of this authorization. In February 2015 the city of Zurich has repealed the previous ban of drones in constructed area (whereas more or less the entire city area was deemed to be constructed). Therefore, since 1 April 2015 operation of drones in the city of Zurich follows the regulation outlined above on national level. The only exception to this is the operation of drones with combustion engine. Use of such drones is only permitted in a very limited area of the city and only at very limited times.

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