New ways for German Air law?
The new German Unmanned Aviation Law marks a step in the right direction but is far from fostering innovation by establishing legal security and unburdening from administrative expenditures. The competent authorities of the federal states will have to reach an agreement on a common granting practice in order to create economy-friendly framework conditions. Otherwise, the promise of a “Single European Sky” remains unfulfilled even if it is narrowed down to a “Single German Sky”.
Timo Stellpflug, lawyer at Taylor Wessing, will enlighten several questions concerning the new German Air Regulation.
BUVUS-Team: Mr. Stellpflug, the German administration just released a new Air Transport Regulation concerning UAS/ Drones. What are the main differences regarding the new version of the regulation?
Timo Stellpflug: There are some quite significant adjustments. First of all, the new regulation establishes a labelling obligation for unmanned aircraft systems weighing more than 250 grams in order to improve the chance of tracing back an unmanned aircraft system and identifying its user and holder. Unmanned aviation therefore is going to become more transparent which is to be welcomed from a misuse prevention perspective. Furthermore, users of unmanned aircraft systems with an initial weight of more than 2 kilograms have to prove certain knowledge that is needed to operate the system safely. This obligation can usually be fulfilled by a corresponding certificate issued by an approved aerial sports club.
More importantly for the commercial utilisation, the operation of unmanned aircraft systems weighing more than 5 kilograms will require a permit in the future. This actually represents a considerable improvement in practical use cases compared to the current regulation in which the obligation to gain permission applies to all unmanned aircraft systems. The same can be said of the authorities’ power to permit out-of-sight-flights which in my view marks an overdue step in terms of unfolding the unmanned aircraft market’s full economic potential.
Nonetheless, the bureaucratic expenditures and need for coordination with the competent authorities will, as expected, remain high and most likely hamper the uptake of innovation. Moreover, from the aspects of equality, unification and legal security it is a point of criticism that the new law does not seize the opportunity to specifiy the requirements for an out-of-sight-flight permit. This opens up large and questionable discretionary powers.
At present it should be borne in mind that we are talking about a decision template. Thus the proposed regulation may be adjusted by the legislative bodies until a final version of the law is passed, although major changes seem to be unlikely by this stage. However, it is also to be considered that the entire business and the releated use cases are developing fastly and, thus, adjustments in the near furture to the legal framework for the use and operation of unmanned aircarft systems will be required based on an evaluation of the just amended new Air Transport Regulation concerning UAS/ Drones
BUVUS-Team: Is there a checklist you would recommend a service provider with UAS/ Drones to protect their business?
Timo Stellpflug: Obviously, within an emerging and innovation-driven market, trade secrets and technological advantages are at threat. The corresponding risks can be reduced by arranging individually adjusted Non-Disclosure-Agreements, raising the internal risk-awareness and establishing the necessary protective measures both on data protection and data security level. Moreover, concluding contractual arrangements with leading employees can be an important step in order to restrain competition and protect trade secrets. In the end, the measure’s suitability and effectiveness depend on the individual corporate structure and business model as well as the circle of persons having access to sensitive information.
BUVUS-Team: What would you recommend professional UAS/ Drone users to do before signing a contract with an industrial costumer?
Timo Stellpflug: One of the most important initial steps is the professional exchange with competent authorities right from the project’s outset. Both, drone users and industrial customers should name contact persons, demarcate their responsibilities and comply with permission requirements.
Within this coordination process, a detailed plan should be compiled, dealing with, inter alia, the following questions: Which goods are to be transported? Which services shall be provided by way of UAS operation? Which distances need to be covered? Which routes need to be served? On this basis, a legal concept of how to implement the project in accordance with statutory law and how to approach the competent authority should be developed. Duration, content and scope of the cooperation should be fixed. Moreover, addressing questions of liability and compensation at the earliest possible stage is always strongly advisable.
BUVUS-Team: What is the biggest legal challenge for companies entering the drone business?
Timo Stellpflug: This depends on the company’s concrete business model: manufacturers should place a strong focus on product liability questions whereas logistic providers willing to make use of unmanned aircraft systems for freight transport services need to pay special attention to the changes recently made to Air Traffic Regulation. Generally speaking, the main obstacles to overcome are formed by potential requirements for out-of-sight-flights as well as the adjustments in terms of flight bans, e.g. above residential estates. Compliance with statutory permission requirements that might apply plays a crucial part, too. Overall, the new legal framework still does not ensure a common permit granting practice by the authorities. This is very dissatisfying for company founders and start-ups, but can be dealt with on the basis of close cooperation with the competent authorities and accurate observance of the legal development.
BUVUS-Team: What do you expect from the CeBIT Unmanned Systems & Solutions?
Timo Stellpflug: From my point of view, the CeBit Unmanned Systems & Solutions program of events accurately reflects the rapidly increased interest both in the use of Unmanned Aircraft Systems as well as in the accompanying legal and technical challenges faced by the industry. I am particularly looking forward to witness live performances and gain insights into world novelties that document the innovative capacity of the Unmanned Systems & Solutions Sector. Thankfully, the BUVUS network night will provide for the opportunity to discuss this field’s immense potential with experts from around the world but also will contribute to the importantly needed attention with regard to poaching ensured by the AirShepherd initiative and to support the goal of the Lindbergh Foundation to balance technology and environment.
Thank you for this interview and the answers.
Timo Stellpflug is a member of the Projects and Technology Industry Area in our Hamburg office. The focus of his advice is commercial and contractual law and advising on international large scale technology projects concerning industrial plant construction and information technology. His practice covers the entire process from the drafting and negotiation of the relevant contracts through the implementation and completion of the project including the warranty period.
He represents clients in the context of disputes both in and out of court. Timo was also seconded to the headquarters of a US American S&P 500-rated company which allowed him to extend his sector and industry expertise. In addition, he has profound knowledge and experience in advising public clients in the course of large-volume procurement projects. Whilst studying law - with a focus on information technology law and intellectual property - he supervised projects in India, the Czech Republic and Denmark for a leading automobile supplier.
Timo Stellpflug speaks regularly on legal aspects of unmanned aircraft systems, most recently at the UASympEx 2016, Hamburg, hosted by the BUVUS (Federal Association for Unmanned Systems) in cooperation with Taylor Wessing.