Privileged flying, flying under supervision?

The new air law in Germany since June 2021 (adaptation of the Air Traffic Act – LuftVG – and the Air Traffic Regulations – LuftVO) continues to provide that the operation of unmanned aerial vehicles can be carried out under privileged conditions by or under the supervision of public authorities or organisations with security tasks in connection with emergencies and accidents as well as disasters (collectively referred to as “BOS”) in accordance with section 21k para. 2 LuftVO. This means that the operation of the unmanned aircraft in such cases is not restricted by regulations of the Air Traffic Act, by international law applicable in Germany or by legal acts of the European Union and the legal provisions issued for their implementation. Nor do the restrictions on the operation of aircraft in the “open” and “specific” categories in certain geographical areas then apply. Consequently, regulations for obtaining authorizations are also not applicable.

It should first be clarified that even under this privilege, operation of drones does not take place in a legal vacuum. This is already evident from the fact that the operation of unmanned aerial vehicles potentially interferes with the rights of third parties and is also relevant under regulatory law. Prominent examples of this are data protection, nature conservation, and property rights and rights of use. Furthermore, in general, given the inherently risky operation of aircraft, which also includes drones, the safety and integrity of all (potentially) affected parties on the ground and in the air must always be ensured. Failure to comply with these points can result in operator liability, regulatory fines and even criminal proceedings. It should therefore be noted that even the privileged operator must continue to be aware of and comply with extensive legal and, of course, technical requirements. In case of uncertainty, expert advice should be sought, if only because of the high-risk potential. The procurement of expert advice also contributes to the operator’s risk management, as consultants must vouch for the reliability of their statements.

According to section 21k para. 2 LuftVO, operators also benefit from the privilege if they fly under the supervision of BOS. However, as with all exceptions to the rules, the scope of privileges must be applied with great care and caution, i.e. restrictively. First, there is the question of what exactly is meant by supervision. Unfortunately, this important question has not yet been fully clarified. In any case, it cannot be sufficient to merely receive a contract from a BOS to operate an unmanned aircraft – because a contract itself is not synonymous with supervision. This raises the question what quality supervision must have. Here, a consideration of the purpose of the provision seems appropriate. The provision allows BOS to use unmanned aerial vehicles for their tasks without bureaucratic approval procedures. This is based on the assumption that authorities comply with the law, anyway. This also applies if they use third parties for operations. However, such an outsourcing of operations will only make economic and organisational sense if the personnel and time required for supervision is not as high as the effort that would be required for an own operation. Unfortunately, it has not yet been officially determined how comprehensive a supervision has to be. On the one hand, it would not make much sense to require the BOS to monitor every single flight in real time, as this would mean that the advantage of outsourcing operations would be lost – in practice, the privilege in this respect would run empty. Nevertheless, the BOS should be required to first ensures the competence of the operator even before a task is transferred. There is no standard for this either. But the BOS should be on the safe side if it obtains certificates and proof of the pilot’s knowledge and the technical suitability of the aircraft, as would otherwise also be required for non-privileged operations – similar requirements are, for example, established practice when air rescue services by helicopter are put out to tender. In order to safeguard the actual operation, it is also recommended that BOS request operations procedures and flight-logs on a regular basis for review and to ensure that the operations are carried out properly. The benchmarks for this should be defined in the respective service contract in advance. Random real-time monitoring of flights should also be compatible with the regulatory purpose and be a sensible method of supervision. Of course, this again involves effort and requires expertise that the BOS may not (yet) have itself. In this case, it should again resort to external consultants. Assistance can also be provided by existing guidelines and specialist authorities in the area of operation or by associations such as UAV DACH e.V. These aspects, which should be taken into account in the run-up to the actual commissioning, should also be made subject of technical tender specification as part of the tender documents if the operation has to be subject to a formal procurement process, which is likely the case for public authorities.

In addition to the question of the scope and quality of supervision, another important question is which third party operations under supervision may at all benefit from privilege. Here, too, an approach based on the meaning and purpose of the provision is indicated. In other words, the scope of the privileged operation by a third party under supervision cannot go further than the privilege of the supervising BOS if it carried out the operation itself. For public authorities, this follows from section 21k para. 1 no. 1 LuftVO. Accordingly, the operator under supervision also operates the unmanned aerial vehicle in a privileged manner only to the extent that this takes place for the fulfilment of the original tasks of the authority. The scope of duties of a public authority is regularly defined by law and cannot be extended simply through private contract. For organisations with security tasks in connection with emergencies, disasters and catastrophes, the restriction on privileged operation also regularly results from their definition of tasks. The supervised operator must adhere to this defined framework. Any other approach would be contrary to the justification of the privileged status. Any operation beyond this frame loses the privileged status and is subject to the full scope of aviation regulations.

Our team is ready to support you in sorting out the questions related to privileged operations and will help you procure and implement legally sound privileged operations.

Your contact: Dr. Oliver Heinrich