Elements of regulation on Remotely Piloted Aircraft Systems (RPAS – Drones) Florence 5 October 2015Pierpaolo GoriJudge, Court of Milan

MAIN EU SOURCES ON RPAS REGULATION

• Competence of ENAC on RPAS and role of EASA

- Regulation (EC) No.216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil

aviation and establishing a European Aviation Safety Agency (Basic Regulation)

• Privacy Issues

- Data Protection Directive 95/46/EC for relevant legal framework in data protection (Primary Privacy Regulation)

- Opinion No.01/2015 on Privacy and Data Protection Issues relating to the Utilisation of Drones (WP 231), adopted on 16 June 2015 by

Data Protection Working Party, independent advisory body set up under Article 29 of the Directive

• Electronic Communications Services

- Directive 2002/58/EC as amended by 2009/136/EC (Electronic Communications Services, related to RPAS)

• European Market Unification

- Commission Communication of 8 April 2014 “A new era for aviation – Opening the aviation market to civil use of RPAS in a safe and

sustainable manner” (COM(2014)0207) (Perspectives on future EU regulation on RPAS )

• Other relevant provisions

- Regulation 2004/785/EC of the European Parliament and of the Council of 21 April 2004 (Insurance duties and obligations)

DRONES AND FUNDAMENTAL RIGHTS

• Article 8 European Convention of Human Rights (ECHR):

Right to respect for private and family life:“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except (…)”

• Articles 7 and 8 European Charter of Fundamental Rights:

Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.”

Protection of personal data “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. (…)”.

Main National RPAS Regulation Sources• Article 743 §§ 2-3 of Italian Navigation Code (INC)

“2. Remotely piloted aerial vehicles are also considered aircraft, as defined by special laws, ENAC regulations and, for the military, by decrees of the Ministry of Defence. 3. The distinctions of the aircraft, according to their technical specifications and use shall be established by ENAC with its regulations and, in any case, by special legislation in this field.”.

Please note INC it’s special statutory source of law, and therefore it prevails on the Civile Code classic regulation.

• 17 July 2015 ENAC Regulation on the private use of remotely piloted aerial vehicles, entered into force on the 15th September 2015

Primary implementation both of Article 743 INC and Regulation No. 2008/216/EC, and of the European Parliament and of the Council

Liability of the operator manoeuvring professional/commercial drones

• According to Article 965 § 5 Italian Navigation Code (INC): the liability of an aircraft operator for surface damage caused by an aircraft is entirely governed by international rules.

• Rome Convention 1952, signed on 7 October, on Damage Caused by Foreign Aircraft to Third Parties on the Surface:

Article 3 Liability of the operator, § 1: “The (material) operator shall be liable for damage sustained by third parties upon condition only that the damage was caused by an aircraft in flight.”.Please note: it’s Strict liability (causal link required only), but for operators it’s still a better regime than the classic Civil Code liability, because of:

1) Compensation amount limited by Article 971 Italian Navigation Code (INC), which modifies the extent of the limits fixed in the Rome Convention, and lays it down in accordance with the minimum amount of insurance required as per Article 7 of CE Regulation No. 785/2004, according to the weight of the aircraft (drones included)

2) Short-term Prescription of 2 years for a liability action under Italian Navigation Code (INC) and Montreal Convention signed on 28 May 1999

Liability of the operator manoeuvring radio-controlled leisure models

Italian Navigation Code (INC) does not apply

Civil Code does apply, with substantial different provisions:1) no limits on the amount of compensation,2) several possible legal sources of civil liability (tort), both for

a) classic non-contractual liability (Article 2043 Civil Code), andb) For strict liability under Article 2051 (failure of custody damages), and under Article 2050 (liability for dangerous activity).

Please note: The latter two provisions do offer two different kinds of non-contractuale strict liability, the first one does not. However, - very often the collision occurs in violation of ENAC Regulation, and therefore a culpability of the operator may be easily detected (e.g. Drone crash manouvred by South Korean tourists on Milan’s Cathedral occurred on 22 June 2015 Aggravated Damage under 635 Criminal Code).- In any case, Longer-term Prescription of minimum 5 years for a non-contractual liability action under Article 2947 Civil Code, more if criminal proceedings already started (Cass. SS.UU. 18 November 2008, No.27337).