Should we submit our request for an authorisation for operations in the framework of model aircraft clubs and associations under Article 16(2)(a) or (b)?

Whether you should request your authorisation on the basis of Article 16(2)(a) or (b) of Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft depends on your national situation.

If the requirements in Article 16(2)(b)(i) to (iv) (see below) are already in line with or easier than current practice in your country, then it really doesn’t make a difference what paragraph the application is based on. In that situation, (b) may provide helpful guidance to your authorities to help define the substance of the authorisation. If, however, the requirements in (b) go beyond current rules or practice, and these are responsibilities you are not prepared to take on, then it’s strongly recommended to make your application on the basis of (a).

The text of the two provisions

A key question is what is the difference between the text of the two provisions ((a) and (b)). The full text is set out in the box below:

2. The authorisation […] shall be issued in accordance with any of the following:

(a)    relevant national rules;

(b)    established procedures, organisational structure and management system of the model aircraft club or association, ensuring that:

i.                     remote pilots operating in the framework of model aircraft clubs or associations are informed of the conditions and limitations defined in the authorisation issued by the competent authority;

ii.                   remote pilots operating in the framework of model aircraft clubs or associations are assisted in achieving the minimum competency required to operate the UAS safely and in accordance with the conditions and limitations defined in the authorisation;

iii.                 the model aircraft club or association takes appropriate action when informed that a remote pilot operating in the framework of model aircraft clubs or associations does not comply with the conditions and limitations defined in the authorisation, and, if necessary, inform the competent authority;

iv.                 the model aircraft club or association provides, upon request from the competent authority, documentation required for oversight and monitoring purposes.

Paragraph (a) simply refers to “relevant national rules”. This can be interpreted to refer to the process for providing the authorisation, or to the substance of what goes into the authorisation. Note that “national rules” certainly does not refer to rules at the national level only. It refers to all types of rules, at all levels of government in your country, including local and regional. The term “rules” furthermore can also include the “established procedures, organisational structure and management system of the model aircraft club or association” referred to in (b).

Paragraph (a) is thus very similar to Paragraph (b) where it clearly refers to rules, in whichever context or at whichever level, currently in place. Where Paragraph (b) goes further is that it sets a number of substantive minimum requirements for the authorisation in its subsections (i) to (iv). These points MUST be addressed in any authorisation provided under Article 16(2)(b).

The requirements under (b)(i) to (iv)

These requirements were significantly eased during the drafting of the legislation, following input from model aircraft associations. While they are standard practice for some, they may go beyond current practice for some associations and clubs.

Point (i): “remote pilots operating in the framework of model aircraft clubs or associations are informed of the conditions and limitations defined in the authorisation issued by the competent authority”

This is fairly straightforward, and common practice in most associations. It implies an obligation of the association that obtains the authorisation to inform its members of the conditions and limitations of the authorisation. This can be done through the association’s website or any other means of communication. Importantly, this is an obligation of effort, not one of result. It requires that an effort is made to inform the members of the rules, but doesn’t require the association to guarantee that each member has actually read and knows the rules by heart.

Point (ii): “remote pilots operating in the framework of model aircraft clubs or associations are assisted in achieving the minimum competency required to operate the UAS safely and in accordance with the conditions and limitations defined in the authorisation”

This point is also straightforward, and common practice in most clubs and associations. It requires associations to “assist” their pilots in achieving the minimum competency to operate the aircraft safely and in accordance with the rules. This includes providing training and guidance where needed. It implies an obligation to make an adequate effort to assist pilots. Importantly, it does not require the association to guarantee that each pilot can fly safely, or block a pilot from flying if, for whatever reason, he doesn’t have the adequate skills. The latter is important to avoid any liabilities for the club or association.

Point (iii) “the model aircraft club or association takes appropriate action when informed that a remote pilot operating in the framework of model aircraft clubs or associations does not comply with the conditions and limitations defined in the authorisation, and, if necessary, inform the competent authority”

This requirement goes beyond current practice for a number of clubs and associations. It requires a club or association to “take action” when a pilot does not comply with the conditions of the authorisation, and, if necessary, inform the competent authority. If, for instance, there is a height limit in place for a specific area, and a pilot chooses to ignore this limit (even without any danger to others), the association or club needs to sanction this. Moreover, “if necessary”, the club or association needs to inform the authorities. There are two elements of this requirement that may be problematic for some clubs and associations. The first is that it moves the responsibility to respect the rules for aeromodelling from “just” the pilot also to the club or association. It makes the club or association co-responsible for ensuring that each of their members respects these rules, and that violations are sanctioned. Secondly, it puts the club or association in the situation where it needs to decide whether and when to inform the authorities (and thus denounce its member) or when this is not required (and risk being sanctioned by the authorities). In any case, this requirement risks substantially changing the role of the club or association and adds an important policing function to its tasks. Some clubs and associations may be uncomfortable with this task. Note that this task may also imply new legal liabilities and possibly require insurance to cover those liabilities (for instance: a club may be held liable for the damages of an accident if it did not undertake sufficient action to prevent this accident from happening).

Point (iv) “the model aircraft club or association provides, upon request from the competent authority, documentation required for oversight and monitoring purposes”

This requirement may also be new to some clubs and associations. It requires clubs and associations to start collecting and storing the relevant information and provide “documentation” upon request to the authorities. What this “documentation” entails will depend on the requirements set out in the authorisation. Certain is however that the clubs and associations will need to carefully review their data collection and storage to ensure that they can comply with these requirements. Storing and providing documentation for official purposes may also bring requirements on data management, access to information and protection of personal information, along with new legal liabilities.