The split of competences between the European Union (“EU”) and its Member States has been a point of friction in the setting out of the future European rules on unmanned aircraft system (“UAS”). In December 2015, the European Commission advocated in its Aviation Strategy for the need for a common regulatory framework across the EU to ensure a single European UAS market. The European Aviation Safety Agency (“EASA”), headquartered in Cologne (Germany), would play a crucial role in defining the common European standards.

On 10 November 2016, the European Parliament’s Committee for Transport and Tourism (“TRAN”) adopted the European Parliament’s position for the upcoming negotiations to revise the rules on aviation safety in the EU. Notably, TRAN’s proposal extends the mandate of EASA as supervisory body to all UAS weighing more than 250 grams. Currently, UAS of less than 150kg fall under the Member States competence. The TRAN proposal also grants EASA new responsibilities in UAS certification and the issue of guidelines.

This considerable shift in competence from national regulators to EASA can become an important source of disagreement in the legislative process. According to Article 100 (2) TFEU, the European Parliament and the Council may lay down appropriate provisions for air transport. However, under the principle of subsidiarity, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States (Article 5 (3) TEU)). The Italian Senate has raised concerns regarding the appropriateness of the Commission’s proposal in this regard. Italy argues that while the aviation sector generally has European dimension, the proposal has shortcomings as it does not lay down any rules concerning licenses of UAS operators. Absent such rules, the Commission’s proposal “does not appear to provide tangible added value” to Member States’ actions.

These concerns are mirrored by the fact that some of the EU Member States are in parallel developing their own regulatory frameworks for the use of UAS and could see the lowering of the weight threshold as an unjustified abdication of national competences.

The European Parliament will now start negotiations with the Council, which is composed by representatives of the EU Member States and would ultimately need to agree on the final text. The dispute about the competence for regulating UAS operations in Europe on EU or Member States level are likely to continue.