Contributor: Katja Brecke
1. Are UAS considered as “aircraft” in your country?
Yes, UAS are considered aircraft under German law. It is somewhat surprising that “pilotless aircraft” had already been considered aircraft under the Chicago Convention asearly as 1944.
Due to the broad range of UAS and their missions, as well as their fast technological progress, regulation in Germany has remained an ongoing legislative challenge. With a first legislative change in 2012, the German Aviation Act (Luftverkehrsgesetz/LuftVG) was amended and the legal definition of aircraft was broadened to explicitly include UAS.
German law differentiates within the definition of ‘aircraft’, among others, between model aircraft (“Flugmodelle”) and UAS (“unbemannte Luftfahrtsysteme”). According to the legal definition, UAS are not operated for the purpose of sports or recreational activity. If the UAS are merely used for hobby or recreational purposes, they qualify as ‘model aircraft.’ UAS as aircraft are subject to German aviation regulations, particularly the German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO).
2. Which bodies regulate the remotely-piloted and/or unmanned aircraft operations in your country, under what basic laws?
According to article 2 I lit. a), b), III lit. a), Art. 3 no. 28, 30 of Regulation (EU) No 2018/1139 (EASA Basic Regulation), the European Union is competent to regulate unmanned aircraft with an operating mass of no more than 150 kg. Hence, aircraft up to 150 kg are being regulated by national laws.
Under article 73 (1) (6) of the German Basic Law (Grundgesetz/ GG), the Federation has exclusive legislative competence in the field of air transport. The concept of air transport is understood comprehensively to include all activities and institutions related to aviation. The German Aviation Act (Luftverkehrsgesetz/LuftVG) is based upon this allocation of competency. The German Aviation Act lays down the legal framework for the use of UAS at national level. It is accompanied by various regulations,in particular the Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) and the Air Traffic Licensing Regulations (Luftverkehrs-Zulassungs-Ordnung/ LuftVZO), which were adopted on the basis of sec 32 German Aviation Act (Luftverkehrsgesetz/ LuftVG).
Air transport administration shall be conducted under federal administration, article 87d (1) sentence 1 German Basic Law (Grundgesetz/ GG). Responsibilities for air transport administration may be delegated to the Federal States (“Länder”) acting on federal commission by federal law. The Federation has made use of this option in section 31 (2) German Aviation Act (Luftverkehrsgesetz/LuftVG). The tasks listed there are carried out by the federal states on behalf of the federalgovernment.
With regard to the legal framework, the European Commission has established generally binding rules on the use of UAS, in particular by repealing the old Basic Regulation (Regulation (EC) No 216/2008) through the new Regulation (EU) 2018/1139. In this context, the European Aviation Safety Agency (EASA) has developed a regulatory framework. In addition, standards and recommendations related to UAS are being developed internationally by the International Civil Aviation Organization (ICAO).
3. Is there a distinction between “State UAS” and “Private UAS”?
Yes, there is a clear distinction between State UAS and Private UAS with a completely different set of rules. The Chicago Convention already established a clear distinction between “civil” and “state” aircraft, article 3(a).
Similarly, according to article 2(3) Regulation (EC) No 2018/1139, the Basic Regulation shall not apply to products, parts, appliances, personnel and organizations referred to in (1) (a) and (b) while carrying out military, customs, police, search and rescue, firefighting, coastguard or similar activities or services. The Member States therefore remain responsible to regulate the aforementioned services on a national basis.
German law does not provide separate “military air law” provisions. Section 30 (1) German Aviation Act (Luftverkehrsgesetz/LuftVG) rather allows for military and the police to deviate from the German civil air law regime with some minor exceptions.
Moreover, section 21a (2) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) expressly states for publicly used UAS, i.e. UAS operated by or under the supervision of authorities when performing their duties and organizations executing security tasks in relation to emergencies and disasters, that no permission and no proof is required. Furthermore, the restrictions for the use of UAS under section 21b German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) do not apply.
4. Is there any distinction between public, leisure and commercial UAS? What regulations are provided for UAS operations in each group?
Although German law distinguishes formally between UAS for commercial purposes and model aircraft for leisure purposes, many provisions introduced by the latest legislative amendment of April 17, 2017 apply even-handedly to both categories. Primarily the German law differentiates based upon the weight (please refer to question number 8 for further details):
- for UAS and model aircraft weighing from 0.25 kilograms (kg) up to 2kg, owners must identify their name and address with a permanent and fireproof label indicating the name and address;
- for UAS and model aircraft weighing more than 2kg, owners will need certification to demonstrate that the operator has specialized knowledge of the operation. This may be demonstrated with a pilot’s license or a similar certificate from an agency recognized by the Federal Aviation Office; and
- for UAS and model aircraft weighing more than 5kg, a special permit by the competent aviation authority is mandatory in addition to the above-mentioned requirements.
- A difference is however made if a flight is operated in higher altitudes. In 100 m and above UAS are only allowed to fly if a special exemption permit has been obtained. For model aircraft, a proof of special knowledge is sufficient.For model aircraft operated on a model airfield these new rules do not apply with one exception, the identification label must indicate the owner clearly.
As stated under question number 3, UAS operated by or under the supervision of authorities when performing their duties and organizations executing security tasks in relation to emergencies and disasters, that no permission and no proof is required. Furthermore, the restrictions for the use of UAS under section 21b German Air Traffic Regulation (Luftverkehrs-Ordnung/ LuftVO) do not apply.
5. Is there a distinction, in terms of regulation, between completely autonomous UAS and remotely-piloted UAS?
Regulation of Unmanned Aircraft Systems (“UAS”) Operations - Safety
6. How are UAS operations regulated in terms of safety?
In addition to the rules listed under question number 4, the general rule applies that UAS and model aircraft must always yield the right of way to manned aircraft. There are furthermore quite a few restrictions and prohibitions to fly in certain sensitive areas (please refer to question number 26) and flights at night need a special permit. Moreover, UAS above 100 m and UAS weighing more than 25 kilograms are generally prohibited. An exceptional authorization can be granted, however; it lies within the authority’s discretion and will be granted only after conducting a thorough risk assessment. UAS or model aircraft weighing below 5 kg can generally not be used beyond the pilot’s visual line of sight.
With the implementation of these new rules the German legislator tried to establish a more risk-based approach as intended by the proposal published by EASA.
7. Is the applicable regulation considering the rule of 1 UAS = 1 pilot?
Generally, the new German provisions imply that one UAS is being flown by one pilot. However, in case of a UAS weighing more than 0.25 kg the pilot should be supported by a second person in order to fulfill the requirements of visual line of sight.
Regulation of Unmanned Aircraft Systems ("UAS") Operations - Licensing
8. What procedures are there to obtain licenses or the rights to operate UAS?
According to section 19 (3) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) all UAS and model aircraft with a Minimum Take Off Mass (MTOM) of 0.25 kg must be marked with a permanent and fireproof label indicating the name and the address of the owner.
Operators of UAS with an MTOM of 2.0 kg will additionally need to prove particular skills regarding the operation of UAS and the respective legal provisions. The certification can be a pilot license or a certificate from an aviation sports club in case of model aircraft or by taking an examination from an agency recognized by the Federal Aviation Office.
In addition, the competent authority can request further documents, like the landowner’s consent for the ascent, in order to issue the certificate.
Such certificates may be issued to persons of a minimum age of 16 years and are valid for five years.
Furthermore, according to section 21a (1) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) certain UAS require an authorization to fly granted by the relevant state authority. The operator can apply for a general authorization, which usually is valid for 2 years. Further, on an application for a specific case-by-case authorization is possible.
Such authorization is required for the following types of UAS:
- UAS and model aircraft with an MTOM of 5 kg;
- Rocket powered UAS and model aircraft whose propellant mass exceeds 0.2 kg;
- All kinds of UAS and model aircraft that are flown at night;
- All kinds of UAS and model aircraft that are flown within 1.5 km from an airport, and;
- UAS with a combustion engine if they are flown within 5 km from a residential area.
According to section 21a (3) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) such authorization will be granted if:
- The intended operation will not have any impact on aviation safety, public safety and order, in particular not violating provisions regarding data and natureprotection, and,
- Provide an adequate protection against aircraft noise.
9. Are there any kind of taxes or fees regarding the licensing procedure?
There are several providers who are recognized as an agency by the Federal Aviation Office. Costs for the licensing procedure vary depending on the provider and on the type of course (online or personal presence). Currently prices are between 200 and 500 Euro.
Authorizations to fly according to section 21a (1) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO) are issued by the competent local authority of the respective federal state. Therefore, the fees vary depending on the federal state the owner has his place of residence.
As an example, the following fees would occur in North Rhine-Westphalia:
- General authorization: EUR 300.0
- Recognition: EUR 00
- Specific case by case: EUR 100.00 or more
Once an authorization has been issued in one federal state, it can be recognized by the other states so that the owner does not have to apply for it in every single state. However, so far it is not certain how certain federal states will handle authorizations issued by another state.
10. Is a Certificate of Airworthiness mandatory to operate a UAS?
11. Is access to the market for the provision of UAS operation services regulated and, if so, how?
12. What requirements apply in the areas of financial strength and nationality of ownership regarding control of UAS?
13. Is drone transport permitted / regulated in your country?
In light of the fact that the new German regulation contains a general prohibition of flights beyond the visual line of sight, the provisions providing exceptional authorizations might be helpful for commercial users, for example when it comes to the transport of goods. So far there are no certain conditions mentioned which have to be met in order to receive such exceptional authorization, apart from the conditions set in section 21a (3) German Air Traffic Regulation (Luftverkehrs-Ordnung/LuftVO)
Due to the restrictions mentioned above, transport of goods in Germany is only tested in a number of pilot projects.
For example, DHL Parcel has successfully integrated the DHL Parcelcopter into its logistics chain. During this project private customers in a Bavarian community could test specially developed Packstations, named Parcelcopter Skyport. After inserting the parcel into the Skyport the shipment and delivery was automatically initiated.
Regulation of Unmanned Aircraft Systems ("UAS") - Operations - Others
14. Is there a specific Data & Privacy Protection regulation applicable to UAS operations?
In Germany there is no specific Data & Privacy Protection regulation applicable to UAS operations. However, the operation of UAS might have an impact on data protection and the Federal Data Protection Act does apply.
Data Protection and the Right to Control the Use of One’s image are special codifications of the General Right of Personality, which is derived from article 2 (1) in conjunction with article 1 of the German Constitution. Hence, flying over a neighbor’s property for example might be an intrusion into someone’s private sphere of life and violate the General Right of Personality.
“Personal Data” is defined as “any information concerning the personal or material circumstances of an identified or identifiable individual”. The act does not apply to the processing of personal data effected solely for personal or family activities.
For UAS equipped with a video camera, the requirements of section 6b of the Federal Data Protection Act apply. Video surveillance of public places may only be conducted to fulfill public tasks, to exercise the right to determine who shall be allowed or denied access to a property, or to pursue rightful interests for precisely defined purposes. According to section 4(1) of the act, special rules apply to the surveilling of a non-public area. In such case, any collection, processing, and use of personal data is only admissible if permitted by law or if the person has consented. In addition, the person has to be informed of the identity of the data collector, purposes of collection, processing, or use of the personal data and of possible recipients.
Taking videos by UAS might also violate the right to control the use of one’s image. According to section 22 (1) of the Copyright Arts Domain Act, images can only be disseminated with the express consent of the person concerned.
15. Is there a specific control-link interference regulation applicable to UAS operations?
16. Do specific rules regulate UAS manufacturers?
17. What requirements must a foreign UAS operator satisfy in order to operate to or from your country?
A foreign UAS operator also needs to have the mandatory third-party liability insurance that covers the risks mentioned in question number 33.
18. Are fares or pricing of UAS operations regulated and, if so, how?
The Aircraft (“UAS”)
19. Must UAS be registered in any particular register?
There is no special registry for UAS in Germany – only labeling requirements apply. Please see question number 8 for further details.
20. Who is entitled to be mentioned in the UAS register?
21. Do requirements or limitations apply to the ownership of a UAS listed on your country’s register?
22. Do specific rules regulate the maintenance of UAS?
23. Which are the operational and distance limitations for an aerial work with a UAS? Is there any kind of certificate or permission to operate beyond those limitations?
As already mentioned, all kinds of UAS and model aircraft that are flown within 1.5 km from an airport and UAS with a combustion engine if they are flown within 1.5 km from a residential area need a special authorization to fly.
If the UAS shall be operated within 1.5 km from an airport an additional clearance from Air Traffic Control is required.
24. Are UAS obliged to take off from and/or land in specific facilities?
If the UAS shall be operated within 1.5 km from an airport an additional clearance from Air Traffic Control is required.
25. Which kind of airspaces are UAS permitted to operate with?
There are no special airspaces permitted for UAS. It is allowed to operate UAS wherever there is no prohibition. Please refer to question number 26 and 27 for restricted and prohibited areas.
26. Which airspaces are restricted for UAS?
UAS or model aircraft weighing less than 5 kg must be kept within the operator’s visual line of sight at all times. They are not within the visual line of sight if the operator cannot see them without vision-enhancing devices or if he is not able to have an unobstructed view of the aircraft.
The operation of UAS or model aircraft with visual output devices like video glasses is not considered to be outside the visual line of sight if the aircraft is flown below 30 meters and
- Weights less than 0.25 kg, or
- The UAS is flown in another person’s visual line of sight who can make the operator aware of potential dangers.
The operation of UAS in controlled airspaces is only allowed if the maximum flight level is 50 meters. In addition, the operator has to apply for permission by the respective air traffic control.
In general, the operation of UAS above 100 meters is prohibited except for ______________
27. Which zones are UAS operations banned?
UAS are not allowed to be operated:
- Within 100 meters of or above people and public gatherings, scene of accidents, disaster zones, operations of police or other similar organizations and military drill sites;
- Within 100 meters of or above correctional facilities, military complexes, industrial complexes, power plants, power generation and distribution facilities;
- Within 100 meters of or above the property of federal or state governments, diplomatic or consular missions, international organizations, law enforcementand security agencies;
- Within 100 meters of or above federal highways, federal waterways and railway systems;
- Above nature reserves;
- Above residential property if the UAS has an MTOM of25 kg or if it is able to receive, transmit, or record optical, acoustic, or radio signals;
- Within 100 meters of or above hospitals;
- To Transport explosives, pyrotechnic articles, radioactive materials, or hazardous materials.
28. Who provides air traffic control services for UAS in your country?
Deutsche Flugsicherung GmbH.
Liability and Accidents
29. Are there any special rules in respect of loss or damage to cargo?
Since there is actually no public transport of cargo in Germany, there are also no special rules in respect of loss or damage to cargo.
30. Are there any special rules about the liability of UAS operators for surface damage?
According to article 33 (1) German Aviation Act (Luftverkehrsgesetz/LuftVG), there is strict liability of the UAS owner in case of bodily injury or damage to the property caused by the UAS operation, including damages caused by any object falling from a UAS during flight. This means that the owner is liable regardless of fault. The owner’s liability applies even if it is not the user. It can discharge itself of liability only if the operator uses the UAS without the knowledge and will of the owner, and if it did not enable the operator to use the UAS.
The liability for aircraft with a Minimum Take Off Weight below 500kg is limited to a maximum of SDR 750,000 according to article 37 German Aviation Act (Luftverkehrsgesetz/LuftVG).
31. Is there a mandatory accident and incident reporting system and, if so, how does it operate?
The German Federal Bureau of Aircraft Accident Investigation, which is subordinate to the Federal Ministry of Transport, is responsible for the investigation of civil aircraft accidents and serious incidents within Germany.
32. What system and procedures are in place for the investigation of UAS accidents?
33. Are UAS operators obliged to have insurance for their operations? If so, which are their main features?
As far as UAS are recognized aircraft according to the German Aviation Act (Luftverkehrsgesetz/LuftVG), the provision concerning third-party liability and mandatory insurance coverage apply also to UAS owners. As general liability insurance does not usually cover this specific risk, UAS owners need specific liability insurance.
According to article 37 German Aviation Act (Luftverkehrsgesetz/ LuftVG), even UAS with less than a 500kg maximum take-off mass need third-party liability insurance that covers at least 750,000 special drawing rights. Further, according to article 113 of the Insurance Act, insurance must be provided by an insurance company that is authorized to provide insurance coverage in Germany. Proof of insurance must be provided and maintained during the operations.
34. What is insured? The operator, the business or the aircraft?
As already pointed out, the mandatory insurance only covers third-party liability insurance. The insurance industry has discovered that the new world of UAS offers an enormous market which requires many insurance solutions beyond third-party liability.
As UAS equipment is expensive, loss or damage (e.g., airframe or payload) is also an insurable risk. The insurance industry even provides risk insurances that cover any event of destruction, damage, or loss of insured items through identified and unidentified risks, unless expressly excluded.
Further risks to which UAS operators or manufacturers are exposed are numerous (e.g. violation of personal rights and data protection laws). As a result, UAS operations are a growing area for insurance solutions and will keep the industry busy in the future.
Financial Support and State Aid
35. Are there sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agencies or companies (state aid) in the UAS sector? If not, do general state aid rules apply?
We are not aware of any sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agencies or companies in the UAS sector.
General State aid rules apply, in particular articles 107 and 108 of the Treaty on the Functioning of the European Union (“TFEU”) and the Regulations and Guidelines in thisfield by the European Commission and Section 44 of the Federal Budget Code (Bundeshaushaltsordnung, “BHO”) and the mostly identical State Budget Codes (Landeshaushaltsordnungen, “LHO”).
36. What are the main principles of the stated aid rules applicable to the UAS sector?
The main principles of EU State aid law are incorporated in articles 107 and 108 TFEU. Under article 107 TFEU, any aid granted by an EU Member State or through public resources of an EU Member State in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible. There are numerous exemptions to this rule, such as State aid granted for Research and Development. Such exemptions must either be notified one by one to the EU Commission or fall under a general notified aid scheme. If a Member State fails to notify and aid measure, the Member State granting the aid has to recover the aid amount.
In the field of Research and Development (which may currently be considered the most relevant for UAS), the EU Commission has acknowledged a general need to grant aid under certain conditions, which are incorporated in particular in the EU Commission’s General Block Exemption Regulation (Regulation 651/2014) and in the Commission’s R&D Framework.
Section 44 of the BHO and the guidelines issued for its implementation (and the mostly identical rules at State level) govern how financial support can be granted at the federal level in general. Applicable core principles are that (i) formally, the appropriate use of the received funds has to be demonstrated by the recipients and (ii) substantially, financial support needs to be economically reasonable for a specific purpose of public interest. Financial support for R&D efforts is often granted under notified R&D support programs, e.g. the “Zentrales Innovations program Mittelstand” (“Central Innovational Program for SMEs”) of the Federal Ministry for Economic Affairs and Energy.
37. Are there exemptions from the state aid rules or situations in which they do not apply?
The EU’s State aid rules apply to all measures that fulfill the conditions mentioned under question number 34 above. However, the EU Commission has acknowledged a de minimis threshold for projects that do not exceed certain support thresholds. The total amount of de minimis aid granted per Member State to a single undertaking shall not exceed EUR 200 000 over any period of three fiscal years. Support measures that do not exceed this threshold do not have to be notified.
38. Must clearance from the competition authorities be obtained before state aid may be granted?
Yes. The principle of prior notification derives immediately from article 108 TFEU, see above at question number 36.