Contributor: Joao Marques de Almeida
1. Are UAS considered as “aircraft” in your country?
A new regulation from the Portuguese Civil Aviation Authority (ANAC) on the operation of UAS was recently enacted in Portugal (ANAC’s Regulation nr. 1093/2016 of 14th December 2016 which came into force on 14th January 2017). Under the rules set forth in the said regulation, all UAS, including UAS toys (i.e. UAS without a combustion engine, with less than 0.250 kg and only intended to be used for recreational purposes by children with less than 14 years of age), are qualified as aircraft.
2. Which bodies regulate the remotely-piloted and/or unmanned aircraft operations in your country, under what basic laws?
UAS operations in Portugal are supervised by ANAC under Regulation nr. 1093/2016 of 14th December 2016.
The use of drones for videos or photography is subject to the prior authorization of the National Aeronautical Authority/Portuguese Air Force and may also be subject to prior authorization from the Portuguese Data Protection Commission.
3. Is there a distinction between “State UAS” and “Private UAS”?
Yes, there is. State UAS are used for military, customs, or police services and they are subject to special regulation. Only Private UAS are subject to the rules of ANAC’s Regulation nr. 1093/2016.
4. Is there any distinction between public, leisure and commercial UAS? What regulations are provided for UAS operations in each group?
No. There is only a distinction between “State UAS” and “Private UAS”.
5. Is there a distinction, in terms of regulation, between completely autonomous UAS and remotely-piloted UAS?
In the definition of UAS included in section 2(f) of ANAC’s Regulation nr. 1093/2016 of 14th December 2016, it is clearly stated that UAS can be completely autonomous or remotely-piloted. However, the rules set forth in the said regulation are expressly aimed at remotely-piloted UAS and are being opened to discussion as to if they should also be extended to completely autonomous UAS (as we believe they should).
Regulation of Unmanned Aircraft Systems (“UAS”) Operations - Safety
6. How are UAS operations regulated in terms of safety?
UAS toys can only fly by day, up to an altitude of 100 ft., and have to maintain a horizontal clearance of at least 30m in relation to any person below. They can also only operate in Visual Line of Sight (VLOS) flights.
Regular UAS can fly by day, up to an altitude of 400ft., and in VLOS. However, regular UAS can only operate (i) by night, (ii) at an altitude higher than 400ft., or (iii) Beyond Visual Line-of-Sight (BVLOS) with the prior authorization from ANAC. Under certain circumstances (e.g. in remote locations and with First-Person-View camera) regular UAS with less than 1.0kg can also be operated in BVLOS at an altitude below 16ft. without prior authorization of ANAC.
Operating UAS with more than 25kg is always subject to the prior authorization of ANAC.
If a UAS operator spots a regular aircraft nearby he/she must immediately land the UAS. All UAS must also be operated with signaling lights turned on at all times (even during the day).
ANAC’s regulation also establishes no-flying zones for UAS (e.g. in the vicinity of airports, military zones, over crowds of more than 12 people).
7. Is the applicable regulation considering the rule of 1 UAS = 1 pilot?
The rule of 1 UAS = 1 pilot is expressly applicable in all VLOS flights. Since nothing is said in respect to BVLOS flights, by exclusion it would appear that the said rule is not applicable.
Regulation of Unmanned Aircraft Systems ("UAS") Operations - Licensing
8. What procedures are there to obtain licenses or the rights to operate UAS?
As mentioned before, depending on the nature of the UAS and the type of flight, a prior authorization from ANAC may be required where a number of information pertaining to the type of flight and flight plan, details of the UAS, and the identification of the pilot is required. As a general rule, such authorization must be requested from ANAC with at least 12 working-days in advance and preferably by email.
The use of drones for videos or photography is subject to the prior authorization from the National Aeronautical Authority/Air Force (the request must be made through a specific form filed in person at the National Aeronautical Authority’s office) and may also be subject to prior authorization from the Portuguese Data Protection Commission.
9. Are there any kind of taxes or fees regarding the licensing procedure?
10. Is a Certificate of Airworthiness mandatory to operate a UAS?
There is no mandatory requirement for a Certificate of Airworthiness. However, before any flight the pilot of the UAS must first make sure that the UAS and all related equipment is in proper working order.
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?
It is not regulated.
Regulation of Unmanned Aircraft Systems ("UAS") - Operations - Others
14. Is there a specific Data & Privacy Protection regulation applicable to UAS operations?
No. General data & Privacy Protection rules are applicable.
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?
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?
UAS with a maximum operating mass of more than 250 grams must be registered with the ANAC (Portuguese CAA).
Any vendor of such UAS must communicate the sale to ANAC. Subsequent sales must also be registered.
Although a law was already passed by the Portuguese parliament (Decree-Law nº. 58/2018 of 23 July), registration will actually only become mandatory as soon as the registry platform is made available by the Portuguese authorities.
20. Who is entitled to be mentioned in the UAS register?
The UAS operator.
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?
The limitations mentioned in 6 above are applicable. Flying beyond 400ft. is always subject to the prior authorization from ANAC.
24. Are UAS obliged to take off from and/or land in specific facilities?
25. Which kind of airspaces are UAS permitted to operate with?
The limitations mentioned in 6 above are applicable.
26. Which airspaces are restricted for UAS?
The same ones established for model aircrafts.
27. Which zones are UAS operations banned?
ANAC’s regulation establishes no-flying zones for UAS (e.g. in the vicinity of airports, military zones, buildings of official entities, over crowds of more than 12 people). UAS also cannot operate on Prohibited Areas, Restricted Areas, Danger, Reserved, or Temporarily Reserved Areas.
Airport operators with an annual volume of passenger traffic of more than 1 million passengers per year must install systems for the detection and disabling of drones. Such systems must be approved by ANAC.
28. Who provides air traffic control services for UAS in your country?
Liability and Accidents
29. Are there any 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?
UAS operators are strictly liable for any damage caused to third parties, except if the accident was exclusively caused by the party who sustained the damage.
31. Is there a mandatory accident and incident reporting system and, if so, how does it operate?
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?
UAS with a maximum operating mass of more than 900 grams must have a civil liability insurance policy.
The mandatory conditions for the said insurance policy have not yet been determined by the Portuguese authorities. Thus, UAS operators are not required to take such insurance policy.
34. What is insured? The operator, the business or the aircraft?
In principle, the policy should provide coverage for damage caused by the UAV to third parties. Hence, both the operator and the actual pilot of the UAS should be protected under the said coverage for damage caused to third parties.
In any case, the mandatory conditions for the liability insurance policy have not yet been determined by the Portuguese authorities.
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?
There are no specific rules for UAS. General state aid rules are applicable.
36. What are the main principles of the stated aid rules applicable to the UAS sector?
37. Are there exemptions from the state aid rules or situations in which they do not apply?
38. Must clearance from the competition authorities be obtained before state aid may be granted?
General state aid rules are applicable.
A new law was enacted on 28th July 2018 (Decree-Law nº. 58/2018 of 23 July) which establishes the mandatory registration of UAS and their operators and also mandatory insurance for damage to third parties. However, the said registration and insurance shall only be actually mandatory after the Portuguese authorities (i) create the registry platform and (ii) regulate the applicable terms and conditions for the insurance policy.
For the moment, the requirements for registration and insurance are not yet in full force and effect.