National Laws and Implementing Regulation 2019/947/EU

Recently new rules and procedures for the operation of unmanned aircraft were approved by the Commission Implementing Regulation 2019/947/EU of 24 May 2019 (hereinafter “Drone Regulation”).

The original legal basis for the Drone Regulation is Regulation 2018/1139/EU of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency (1) (also known as “Basic Regulation”). Specifically, article 57 of the Basic Regulation authorizes the European Commission to adopt implementing acts regarding rules and procedures for the operation of unmanned aircrafts.

Implementing acts are adopted in accordance with article 291 TFUE (2) and, by nature, are severely limited in scope. Implementing acts can do no more than ensure the uniform implementation of the legally binding acts from which they get their legal basis. Unlike delegated acts, implementing acts cannot amend or supplement even non-essential elements of the original act. Therefore, implementing acts are well suited to regulate highly technical matters where there is a need for very specific rules to ensure harmonized implementation and application through the EU (3). This is the reason underlying Article 57 of the Basic Regulation.

The relationship between implementing regulations and national legal acts also mirrors the one between a legislative Regulation and a national legal act. Implementing regulations are directly applicable and need no transposition into national law. In case of conflict, according to the principle of primacy or supremacy of European Union law, when a European instrument conflicts with a national act, the national act must be interpreted in conformity with the European Law or, if that is not possible, set aside.

Moreover, the Drone Regulation is an instrument adopted in an area of shared competence between the European Union and the Member States. In areas of shared competence, when the European Union steps in, it automatically removes the rights previously enjoyed by the Member State to legislate in the matter. Of course, there are exceptions to these rules (4).

Thus, if there are national rules regulating the rules and procedures for the operation of unmanned aircraft that conflict with the Drone Regulation, they should cease to be applicable from 1 July 2020 onwards.

However, practitioners, companies and enthusiasts should tread carefully. The same country can have more than one law regulating the matter, and some laws may cease to apply while others do not (for example, because they are adopted based on State competences on the military and defense (5)). The same could happen even within the same law, some provision are incompatible with EU law while others are not.

In an ideal scenario Member States would repeal national provisions that are incompatible with the Regulation before it enters into force. However, it is highly unlikely to happen in all Member States. A country-by-country analysis is therefore needed. National regulators on aviation, which are bound to uphold EU law and set aside national legislation that is incompatible with it, would be prime candidates to perform an assessment and clarify the relevant stakeholders on what rules are applicable.



(1) - The Basic Regulation also amended Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealed Regulations (EC) No 216/2008 and (EC) No 552/2004 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.
(2) - Treaty on the Functioning of the European Union, as amended from time to time.
(3) - See, Paul Craig and Gráinne de Búrca, “EU Law: Text, Cases and Materials”, 6th Ed. (Oxford: Oxford University Press, 2015): 114-120.
(4) - For instance, areas of research, technological development and space there is a shared competence between the European Union and Member States, but actions from the European Union do not remove the regulatory power of Member States. Another exception occurs when the European legislative act itself contains provisions that allow Member States to build and develop (generally) more protective regimes. None of the exceptions applies to our case.
(5) - Still, there are limits to the restrictions that can be imposed on the single market by defense related laws. See, as an example the Judgement of the European Court of Justice in Commission v. Spain, case C-414/97.