ELOM:2023:023 | Intention or gross negligence of a drone operator | North Holland

Decision in Aviation Case | 21-09-2023

PPS Decision

in the case against the economic and physical drone operator, referred to below as the suspect.

Reason for the investigation

The investigation was launched following a number of reports from commercial drone operators.

Suspected offence

Violation of Article 4 Unmanned Aircraft Zoning Regulations  (flying in port area), Article 7 (1) Unmanned Aircraft Regulations (flying in CTR), Article 14(5) Regulation 2019/947 (if operator fails to comply with registration requirement) and Article 14(8) of Regulation 2019/947 (failure to affix operator number to drone).

Facts and circumstances

Based on the official report, in the opinion of the aviation prosecutor, it can be established that on [date in the year] 2023, the suspect flew a drone in both the Rotterdam port area and the Rotterdam CTR.

The suspect had registered as an operator, but that registration had expired. The operator number was not affixed to the drone.

The suspect stated to the police that the drone regulations were hard to understand and that he did not know exactly what the rules were.

Evidence considerations

The aviation prosecutor acknowledged that the regulations for conducting flights with drones are not straightforward. Nevertheless, the aviation prosecutor does not consider it credible that the suspect was not aware that he was not allowed to fly in the Rotterdam port area and/or the Rotterdam CTR. After all, these are not new rules [1] and the suspect is not a newcomer to drone operating, as shown by his previous registration as an operator. Additionally, the suspect had been confronted by persons who were conducting a legal drone flight at the same time (they were licensed to do so). Their operation was disrupted by the suspect's drone flight, which could have affected its safety. The suspect's statement did not give the impression that he realised he had inconvenienced the others.

The prohibition against flying a drone in the Rotterdam port area and CTR without a licence is so clear that it can be said that the suspect knowingly accepted the likelihood that he would be guilty of these offences (conditional intent). At the very least, in the opinion of the aviation prosecutor, this constituted gross negligence.

Decision

The aviation prosecutor finds that the offences cannot go unpunished.

In determining the level of the penalty, indications were found that the suspect was violating the regulations more frequently (the reporters are said to have heard this from other drone operators). There is also evidence of commercial motives. Since no further investigation was conducted into this, these indications were not held against the suspect. Nor was it taken into account that the suspect's operator registration had expired and that the suspect had not affixed the operator number to his drone. The aviation prosecutor assumed that the suspect had erred in this respect and assumed that the suspect would rectify it.

For flying in the Rotterdam port area and CTR, the sentencing guideline prescribes a fine of €250 as a starting point. However, the degree of culpability outlined above and the attitude towards the persons the suspect obstructed are aggravating circumstances.

On balance, the aviation prosecutor ruled that a penalty totalling €500 was appropriate. The settlement proposal of €500 was accepted by the suspect.

[1] Previously, this was also prohibited under the Model Flying Regulations.