The German Air Traffic Act defines unmanned aerial systems (UAS) as unmanned aerial vehicles that are not used for hobby or recreational purposes. The operation of a UAS that weighs more than 5 kilograms requires authorization from the aviation authority of the German state in question. Authorization to fly will be granted if operation of the UAS does not present a risk to air safety or public safety or order, and if rules on data protection and privacy are not violated. Operating a UAS that weighs more than 25 kilograms or operating it outside of the visual line of sight of the operator is generally prohibited. The German Ministry of Transportation and Digital Infrastructure is currently working on changes to the existing drone regulation regime.
I. Definition of Unmanned Aerial Systems
The Air Traffic Act defines unmanned aerial systems (UAS), commonly called “drones,” as “unmanned aerial vehicles (UAV), including their control stations, which are not used for hobby or recreational purposes.” If these conditions are fulfilled, the UAS are qualified as aerial systems and the requirements of the Air Traffic Act and the Air Traffic Regulation apply to their operation.
If on the other hand the UAVs are merely used for hobby or recreational purposes, they are qualified as “model aircraft.” In general, the operation of model aircraft of up to 5 kilograms (approximately 11 pounds) of weight does not require authorization from the aviation authority. UAVs used for hobby or recreational purposes above that weight must adhere to the specific requirements for model aircraft codified in section 20 of the Air Traffic Regulation, as explained below.
The distinction between UAS and model aircraft only depends on the purpose for which the UAV is used. Recreational purposes indicate a model aircraft, whereas other, in particular commercial, purposes indicate a UAS.
II. Requirements for the Operation of UAS
A. General Requirements
In order to operate a UAS that weighs more than 5 kilograms, the owner must obtain authorization from the aviation authority of the German state in question. If the aviation authority concludes that the operation of the UAS does not present a risk to air safety or public safety or order, and if rules on data protection are not violated, authorization to fly (Aufstiegserlaubnis) will be granted. In order to achieve a harmonized system for the authorization of UAS, the Federation and the German states have agreed on a common set of rules, the Common Principles of the Federation and the States for Granting a Permission to Fly for Unmanned Aerial Systems According to Section 16, para. 1, no. 7 of the Air Traffic Regulation (Common Principles). The Common Principles are not legally binding, but are supposed to provide practical guidance to aviation authorities.
B. Different Types of Authorizations
There are two different types of authorizations for the operation of UAS: a general authorization and a specific, case-by-case authorization. The aviation authority in question has discretion to decide which type of authorization to grant and what documents need to be submitted with an application. Authorizations are generally issued with conditions and limitations that the operator is responsible for complying with. An application for either type of authorization will be denied if the intended operation violates data protection and privacy laws.
1. General Authorization
For UAS that do not weigh more than 5 kilograms and do not have a combustion engine, a general authorization to fly may be granted for a period of two years. A general authorization is only issued for a specific state, but may be recognized by other states.
A general authorization may not be issued if the UAS will be operated
- above people and public gatherings;
- above the scene of an accident, disaster zones, and other operation sites of police or other organizations with security-related duties;
- above correctional facilities, military complexes, industrial complexes, power plants, and power generating and distributing facilities, unless the operation has been explicitly permitted by these places; or
- in prohibited areas and in flight-restricted areas.
The application for a general authorization must contain
- the name, date and place of birth, and address of the applicant;
- for a business, the name of the company, as well as the name, address, date and place of birth of the registered agent and of all employees who will operate the UAS;
- the reason for the operation of the UAS; and
- proof of sufficient insurance for personal and property damage according to section 37, para. 1a and section 43 of the Air Traffic Act.
2. Specific Case-by-Case Authorization
For UAS that weigh between 5 and 25 kilograms (approximately 55 pounds), a specific authorization may be obtained from the aviation authority. The same operation prohibitions listed above for UAS subject to general authorization also apply to these UAS. In addition to the information that must be provided in the application for a general authorization, the applicant for a specific authorization must submit
- a map that indicates the launch area and operating space, and clearly marks the launch site (district, lot or city, street, and street number);
- a declaration of consent from the property owner or other beneficiaries of the launch site;
- definite statements about time frame (date and time) and in some cases number and duration of launches;
- technical details of the UAS;
- information on the knowledge and experience, or proof of training, of the operator;
- a data privacy statement;
- a letter of no objection from the competent regulatory or police agency; and
- for flights in nature conservation areas, an authorization or letter of no objection from the competent nature conservation authority.
C. Prohibitions and Restrictions
There are several general restrictions that must be observed while operating a UAS. The UAS cannot weigh more than 25 kilograms and must be kept within the operator’s visual line of sight at all times. A UAS is not within visual line of sight if the operator cannot see the aircraft without vision-enhancing devices or if he/she is not able to have an unobstructed view of the aircraft.
An exception from the general prohibition may be granted by the aviation authority, if the intended use of the air space does not pose a danger to public safety and order and if the UAS will be operated in a restricted-flight area according to section 17 of the Air Traffic Regulation, or if the operation will be outside of the airfield traffic of a landing site. No restricted-flight area needs to be established if the UAS will be operated within the visual line of sight of the operator, for agricultural or forestry purposes, up to 50 meters above ground and water, and outside of the controlled airspace.
Additionally, the UAS must be flown below 100 meters above ground and it cannot be flown within 1.5 kilometers of an airport, unless a special permit is granted. Furthermore, a UAS may not fly over people or public gatherings.
III. Flight in Controlled Airspace
The certification of UAVs and model aircraft for flight in the controlled airspace of international and regional airports and military airfields requires clearance from the German Aviation Control (Deutsche Flugsicherung, DFS). The DFS has issued a general clearance for the sixteen international airports that it controls, if the following conditions are met:
- The distance from the airport boundary is 1.5 km or more.
- The flight is conducted within the operator’s direct visual line of sight.
- At all times during the flight, the operator or a second person who is in contact with the operator is able to observe the airspace, especially in regard to other traffic.
- Manned aircraft operations are granted the right-of-way at all times.
- Model aircraft and/or unmanned aircraft systems that have gone out of control must be immediately reported to the competent air traffic control unit.
- Maximum weight of model aircraft: 5 kg
- Maximum weight of UAS: 25 kg
- Maximum height for model aircraft: 30 m
- Maximum height for UAS: 50 m
IV. Data Protection and Privacy Rights
The private and commercial operation of UAS might implicate data protection and privacy laws. The Air Traffic Regulation as well as the Common Principles put particular emphasis on the observance of data privacy and data protection rules and do not permit authorization if the intended operation would violate those rules.
A. Federal Data Protection Act
If a UAS is used to process personal data, the requirements of the Federal Data Protection Act must be taken into account. “Personal data” is defined as “any information concerning the personal or material circumstances of an identified or identifiable individual.” The Federal Data Protection Act does not apply to the processing of personal data effected solely for personal or family activities.
If a UAV is equipped with a video camera, the requirements of section 6b of the Federal Data Protection Act (video surveillance of public places) must be taken into account. 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—for example, protection against theft or vandalism. If a UAS is merely used for recreational purposes and the surveillance is not of a lasting nature, the provision will not be applicable.
If the UAV camera is surveilling a nonpublic area, section 4, paragraph 1 of the Federal Data Protection Act applies. In such a case, any collection, processing, and use of personal data is only admissible if permitted by law or if the person has consented. Furthermore, the subjects of the surveillance have to be informed of the identity of the data collector, purposes of collection, processing, or use of their personal data, and of possible recipients.
B. Right to Control the Use of One’s Image
Videos and photos that were taken with a camera installed on a UAS might also violate the right to control the use of one’s image. Section 22, paragraph 1 of the Copyright Arts Domain Act provides that images can only be disseminated with the express consent of the person concerned. Exceptions are listed in section 23—for example, for images that portray an aspect of contemporary society—on condition that the publication does not interfere with a legitimate interest of the person concerned. Dissemination includes public and private dissemination—for example, making an image available to a limited audience on the Internet.
C. General Right of Personality
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, paragraph 1 in conjunction with article 1, paragraph 1 of the German Basic Law. Intrusions into someone’s private sphere of life—for example, by repeatedly flying over a neighbor’s property—might violate the General Right of Personality.
D. Copyright Law
Section 2 of the Copyright Act protects works of architecture. Utilizing a drone to take pictures of public buildings, bridges, sights, or statues is therefore only permissible if the image is made for private use.
Furthermore, taking pictures of the outside of buildings and other art that are permanently located in a public place is generally permitted under copyright law. This general permission does not extend to places that are not visible from the street—for example, an inside courtyard—and a drone can therefore not be used for such purposes.
V. Proposed Legislation
The German Ministry of Transportation and Digital Infrastructure (BMVI) is currently working on legislation that would make changes to the existing drone regulation regime. All UAS weighing more than 0.5 kilograms (approximately 1 pound) would have to be registered in order to be able to hold the operator/owner accountable if the UAS is used in an unsafe manner or for illegal purposes.
A. Private Use
The proposal would strictly prohibit UAS flights for private use that are
- more than 100 meters above ground;
- outside of the visual line of sight of the operator;
- above industrial complexes, correctional facilities, military complexes, power plants, power generation and distribution facilities, or federal highways and railroads; and
- at the operation site of police or other security agencies or organizations.
B. Commercial Use
The BMVI proposal would also explore possibilities for the use of UAS for agriculture and traffic control.
Furthermore, according to the proposal, state aviation authorities would be authorized to allow the operation of commercial UAS outside of the operator’s visual line of sight if safe operation can be demonstrated. Currently, operation outside of the line of sight of the operator is generally prohibited.
Additionally, the BMVI would require a pilot certificate for commercial UAS users. Aeronautic and aviation law knowledge would be tested. The certificate would be granted by the Federal Aviation Office.
Prepared by Jenny Gesley
Foreign Law Specialist
 Luftverkehrsgesetz [LuftVG] [Air Traffic Act], May 10, 2007, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 698, § 1, para. 1, sentence 3, as amended, http://www.gesetze-im-internet.de/bundesrecht/luftvg/ gesamt.pdf, archived at http://perma.cc/DN5N-ZKWT.
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 Air Traffic Act § 1, para. 2, sentence 1, no. 7.
 Air Traffic Regulation § 20, para. 1, no. 1a.
 Id. § 20, para. 1, no. 7.
 Air Traffic Act § 31, para. 2, no. 16, in conjunction with Air Traffic Regulation § 20.
 Air Traffic Regulation § 20, para. 4.
 Gemeinsame Grundsätze des Bundes und der Länder für die Erteilung der Erlaubnis zum Aufstieg von unbemannten Luftfahrtsystemen gemäß § 16 Absatz 1 Nummer 7 Luftverkehrs-Ordnung (LuftVO) [Common Principles of the Federation and the States for Granting Unmanned Aerial Systems Permission to Fly According to Section 16, Paragraph 1, Number 7 of the Air Traffic Regulation], published in 61 Nachrichten für Luftfahrer [NfL] [News for Aeronauts] I 281/13 (Dec. 26, 2013), https://www.uavdach.org/aktuell/NFL-1-281-13.pdf, archived at http://perma.cc/SK5X-FY5G.
 Id. at 1, no. 1.
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 Id. sentence 4.
 Id. sentence 2.
 Id. sentence 1; Common Principles, supra note 8, at 6, para. 2.3.
 Common Principles, supra note 8, at 1, paras. 2.1.1. & 2.1.4.
 With the exception of the states of Baden-Württemberg, Berlin, Bremen, Hamburg, and Rhineland-Palatinate. See Common Principles, supra note 8, at 3, para. 2.1.5.
 Id. at 1, para. 2.1.1.
 Id. at 2, para. 2.1.2.
 Id. at 4, para. 2.2.1.
 Air Traffic Act § 25; Air Traffic Regulation § 20, para. 5.
 Common Principles, supra note 8, at 4, para. 2.2.2.
 Id. at 5, para. 2.2.3.
 Air Traffic Regulation § 19, para. 3.
 Id. § 19, para. 3, sentence 2.
 Common Principles, supra note 8, at 1, para. 1.
 Air Traffic Regulation § 20, para. 1., no. 1d.
 Common Principles, supra note 8, at 1, para. 2.1.1.; id. at 4, para. 2.2.1.
 Id. § 21, para. 1.
 Berlin Schönefeld, Berlin Tegel, Bremen, Düsseldorf, Dresden, Erfurt, Frankfurt Main, Hamburg, Hannover, Cologne Bonn, Leipzig Halle, Munich, Münster Osnabrück, Nürnberg, Saarbrücken, and Stuttgart.
 Allgemeinverfügung zur Erteilung von Flugverkehrskontrollfreigaben zur Durchführung von Flügen mit Flugmodellen und unbemannten Luftfahrtsystemen in Kontrollzonen von Flugplätzen nach § 27d Abs. 1 LuftVG an den internationalen Verkehrsflughäfen mit DFS-Flugplatzkontrolle [General Clearance for Flights of Model Aircraft and Unmanned Aerial Systems in Controlled Airspace of Airports According to § 27d, Para. 1 of the Air Traffic Act at International Airports Controlled by DFS], published in NfL I 681/16 (Feb. 23, 2016), http://www.dfs.de/dfs_ homepage/de/Services/Luftsport%20&%20Freizeit/Flugmodelle%20|%20%22Drohnen%22/1-681-16.pdf, archived athttp://perma.cc/4AMW-GL7U.
 Bundesdatenschutzgesetz [BDSG] [Federal Data Protection Act], Jan. 14, 2003, BGBl. I at 66, as amended, http://www.gesetze-im-internet.de/bundesrecht/bdsg_1990/gesamt.pdf, archived at http://perma.cc/T2Q4-2643, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_bdsg/federal_data_ protection_act.pdf, archived at http://perma.cc/Z2NZ-UH36.
 Id. § 3, para. 1.
 Id. § 1, para. 2, no. 3.
 Id. § 6b, para. 1; Philip Scholz, § 6b, Beobachtung öffentlich zugänglicher Räume mit optisch-elektronischen Einrichtungen [§ 6b, Monitoring Publicly Accessible Areas with Optic-Electronic Devices], in Bundesdatenschutzgesetz [Federal Data Protection Act] 715, 743, para. 79 (Sprios Simitis ed., 2014).
 Scholz, supra note 33, at 738, para. 64; Peter Gola & Rudolf Schomerus, BDSG, Bundesdatenschutzgesetz Kommentar [BDSG, Federal Data Protection Act Commentary] 248, para. 12 (12th ed. 2015).
 Federal Data Protection Act § 4, para. 3.
 Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie [KUG] [Copyright Arts Domain Act], Jan. 9, 1907, Reichs-Gesetzblatt [RGBl.] [Reichs Law Gazette] I at 7, as amended, http://www.gesetze-im-internet.de/bundesrecht/kunsturhg/gesamt.pdf, archived at http://perma.cc/QJY8-5V3X.
 Gunda Dreyer, § 22 KUG, Recht am eigenen Bild [§ 22, Right to Control the Use of One’s Own Image], in Urheberrecht [Copyright Law] 1597, 1618 et seq., para. 12 (Gunda Dreyer et al. eds., 3d ed. 2013).
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 Urheberrechtsgesetz [Copyright Act], Sept. 9, 1965, BGBl. I at 1273, § 2, para. 1, no. 4, as amended, http://www. gesetze-im-internet.de/bundesrecht/urhg/gesamt.pdf, archived at http://perma.cc/J2MJ-D6UZ, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_urhg/act_on_copyright_and_related_rights__ copyright_act_.pdf, archived at http://perma.cc/WH66-N38U.
 Copyright Act § 53, para. 1.
 Id. § 59.
 Dobrindt plant neue Regelungen für Drohnen-Flüge [Dobrindt Is Proposing New Rules for Drone Flights], Federal Ministry of Transportation and Digital Infrastructure (Dec. 29, 2015), http://www.bmvi.de/ SharedDocs/DE/Artikel/K/151108-drohnen.html?nn=35602, archived at http://perma.cc/63YY-9WLS.
Last Updated: 07/22/2016