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How Europe’s new AI rulebook would (and wouldn’t) touch autonomous combat aircraft—and what the defence carve?outs really mean

admin.richard — Thu, 06 Nov 2025 18:28:20 +0000

By Richard Ryan, barrister and drone lawyer

How Europe’s new AI rulebook would (and wouldn’t) touch autonomous combat aircraft — and what the defence carve-outs really mean.

In Brief…

Purely military AI systems are out of scope of the EU AI Act. If an AI system is developed or used exclusively for military/defence or national-security purposes, the Act does not apply. (EUR-Lex)
Dual-use is different. If the same autonomy stack, sensors or models are marketed or used for civilian purposes in the EU (for example, civil UAS, border or law-enforcement tasks), the Act can apply — with stringent duties for “high-risk” systems. (EUR-Lex)
Real-world testing is regulated. Pre-market R&D is generally excluded, but real-world testing isn’t — it requires specific safeguards and registration. (EUR-Lex)
Foundation models (GPAI) have their own rules from 2 Aug 2025; the defence carve-out in the Act is written for AI systems, not explicitly for models. If a model is placed on the EU market generally, the provider’s GPAI obligations can still bite. (EUR-Lex)

Context: sUAS News reports that GA-ASI is showcasing its autonomous fighter portfolio (for example, YFQ-42A CCA, MQ-20 Avenger) at the International Fighter Conference in Rome, 4–6 Nov 2025. This post overlays that scenario with the EU AI Act’s rules.

1) First principles: When does the EU AI Act apply?

The Act has extraterritorial reach. It covers (i) providers and deployers in the EU, (ii) providers placing on the EU market or putting systems into service in the EU — even if they are not established here — and (iii) providers/deployers in third countries where the AI system’s output is used in the EU. (EUR-Lex)

However, Article 2(3) draws a bright line: the Act does not apply to AI systems used exclusively for military, defence or national security. It also does not apply where a system is not placed on the EU market but its output is used in the EU exclusively for those purposes. Recital 24 reiterates this and clarifies that non-defence use falls back under the Act. (EUR-Lex)

What this means in Rome:

A closed, defence-only showcase for European militaries: out of scope.
A civil-use pitch, civil flight trials, or plans to sell autonomy modules to EU civilian buyers: in scope (see the high-risk section below). (EUR-Lex)

2) The key defence carve-outs (and their limits)

Carve-out #1 — Defence/military:

“This Regulation shall not apply to AI systems … used exclusively for military, defence or national security purposes.” (Article 2(3))

Two important nuances:

Exclusivity matters. The moment an autonomy stack or sensor suite is also marketed or used for civilian or law-enforcement tasks, the defence exclusion no longer shields those non-defence uses. (EUR-Lex)
Models vs systems. The text explicitly excludes AI systems for defence; it does not create an explicit defence exclusion for general-purpose AI models. If a GPAI model is placed on the EU market, Chapter V obligations for model providers can still apply — even if one downstream customer is a defence user. (More on GPAI below.) (EUR-Lex)

Carve-out #2 — Pre-market R&D:
R&D before placing on the market is generally outside scope, but real-world testing is not. Testing in real-world conditions triggers a dedicated regime (for example, registration, time limits, informed consent or special conditions for law enforcement, incident reporting). (EUR-Lex)

Carve-out #3 — Emergency derogations (non-defence):
For exceptional public-security reasons (or imminent threats to life/health), market surveillance authorities can authorise temporary use of a high-risk AI system before full conformity assessment — subject to strict conditions. Law-enforcement or civil-protection bodies can also use in urgent cases, then seek authorisation without undue delay. This is not a defence-specific carve-out, but it explains emergency deployments outside the military context. (EUR-Lex)

3) If the defence exclusion doesn’t apply, would autonomous fighters tech be “high-risk”?

Very likely yes — for civil variants or dual-use spin-outs:

Annex I (product-safety route). AI that is a safety component of products covered by sectoral EU safety laws is high-risk where those products need third-party conformity assessment. That list explicitly includes EU civil aviation law (Reg. 2018/1139) — covering unmanned aircraft and their remotely controllable equipment. In a civil-UAS configuration, an autonomy stack acting as a safety component would be regulated as high-risk. (EUR-Lex)
Annex III (stand-alone uses). Separate “high-risk” buckets also capture, for example, remote biometric identification and other sensitive functions (if and where permitted by Union/national law), critical infrastructure safety components, and more. If a fighter-born sensing suite were repurposed for civil border surveillance or public-space identification, you quickly hit these Annex III categories. (EUR-Lex)

What “high-risk” demands in practice
Providers must implement a risk-management system, data governance, technical documentation, logging, transparency/instructions, human oversight, and accuracy/robustness/cybersecurity — then pass conformity assessment, issue an EU Declaration of Conformity, and affix CE marking. Deployers also carry duties (for example, monitoring, data relevance, user notification in some cases). (EUR-Lex)

4) Sensors on show: what about face recognition and other “red lines”?

The EU bans several AI practices outright (from 2 Feb 2025), including:

Untargeted scraping of facial images to build recognition databases.
Biometric categorisation inferring sensitive traits (for example, race, political opinions, religion).
Emotion recognition in workplaces or schools (with narrow safety/medical exceptions).
Predictive “risk assessments” of criminality based solely on personality traits/profiling.
Real-time remote biometric identification (RBI) in public spaces for law enforcement — unless strictly authorised and necessary for narrowly defined objectives (for example, locating a specific suspect in serious crimes, preventing a specific imminent threat, finding missing persons), with prior judicial/independent approval and registration. (EUR-Lex)

Implication for a trade-show demo: training a camera on attendees to test real-time RBI in a public venue would likely be unlawful unless those strict law-enforcement exceptions and procedural safeguards apply — which they typically will not at a commercial defence conference. (EUR-Lex)

5) Real-world testing in the EU (civil or dual-use variants)

If a provider runs real-world flight tests in the EU (outside the defence exclusion), the Act requires — among other things — registration, an EU-established entity or EU legal representative, limits on duration (normally up to six months, extendable once), rules on informed consent (with special handling for law-enforcement tests), qualified oversight, and the ability to reverse/ignore the system’s outputs. Serious incidents must be reported promptly. (EUR-Lex)

6) Foundation models (GPAI): obligations can still attach

From 2 Aug 2025, Chapter V sets baseline transparency and copyright-policy duties for providers of general-purpose AI models (with extra obligations if the model presents systemic risks). The defence exclusion in Article 2(3) is framed for AI systems, not models. So, if a foundation model is placed on the EU market, the model provider can have obligations even if a downstream customer is a defence prime. (Open-source specifics and systemic-risk thresholds also apply.) (EUR-Lex)

7) Timelines you need in Rome (as of 6 Nov 2025)

Entry into force: 1 Aug 2024 (20 days after OJ publication).
Prohibited practices + core chapters (I–II): apply from 2 Feb 2025.
GPAI rules (Chapter V), plus other chapters (III §4, VII, XII, and Article 78): apply from 2 Aug 2025.
General application: 2 Aug 2026 (high-risk regime starts to bite broadly).
Article 6(1) Annex III classification trigger & related obligations: 2 Aug 2027. (EUR-Lex)

8) Enforcement and penalties

Violating prohibited practices (Article 5) can draw fines up to €35m or 7% of worldwide annual turnover, whichever is higher.
Other operator obligations can reach €15m or 3%; supplying misleading information can reach €7.5m or 1% (SMEs benefit from caps). Separate fine scales apply to EU institutions. (EUR-Lex)

9) Practical playbook for IFC attendees

If you are a defence OEM showing autonomy stacks:

Map uses: Defence-only (excluded) vs any civil or law-enforcement pathways (potentially in scope). Document the exclusivity of defence deployments if you rely on the carve-out. (EUR-Lex)
GPAI suppliers: If you place a foundation model on the EU market, expect Chapter V duties regardless of defence customers. (EUR-Lex)
No RBI demos on the show floor. Those prohibitions already apply in 2025. (EUR-Lex)
Planning EU flight tests for civil variants? Prepare for real-world testing conditions (registration, oversight, incident reporting). (EUR-Lex)
For civil UAS commercialisation, treat your autonomy as high-risk (EASA product-safety route), budget time for conformity assessment and CE marking. (EUR-Lex)

If you are a European ministry or agency:

Distinguish military operations (out of scope) from law-enforcement or border uses (in scope; watch RBI limits and high-risk duties). Consider Article 46 emergency derogations only in exceptional and documented cases. (EUR-Lex)

If you are a civil UAS integrator:

Expect the full high-risk package (risk management, data governance, human oversight, cybersecurity, logs, conformity assessment, CE). Build compliance into your system architecture, ML pipelines, safety cases, and ops manuals from day one. (EUR-Lex)

10) Quick decision pathway

Is the use exclusively defence or national security?
Yes: AI system is out of scope.
No: continue. (EUR-Lex)
Is it a civil product or law-enforcement/border use?
Civil product with safety function (for example, civil UAS): High-risk via Annex I ? conformity assessment + CE. (EUR-Lex)
Stand-alone sensitive use (for example, RBI, critical infrastructure): Annex III high-risk or Article 5 prohibition applies. (EUR-Lex)
Is there a GPAI model being placed on the EU market?
Yes: Chapter V duties for model providers from 2 Aug 2025, separate from the defence carve-out for systems. (EUR-Lex)
Is this pre-market testing?
Real-world testing rules apply (registration, oversight, incident reporting). (EUR-Lex)

Bottom line for “Autonomous Fighters in Rome”

A military-only display of GA-ASI’s autonomous fighters is outside the AI Act.
Any civil spin-off (cargo drones, civil surveillance, airport ops) or law-enforcement application in the EU will trigger the Act — often at the high-risk level — together with tight prohibitions around biometric uses in public spaces. Plan your compliance architecture accordingly. (EUR-Lex)

This article is informational and not legal advice. Citations are to the Official Journal text of the Artificial Intelligence Act (Regulation (EU) 2024/1689) for scope (Art. 2), prohibitions (Art. 5), high-risk regime (Ch. III), real-world testing (Arts. 57–61), GPAI (Ch. V incl. Art. 53), timelines (Art. 113), and penalties (Art. 99–101).

About the author — Richard Ryan

Richard Ryan is a UK barrister (Direct Access), mediator and Chartered Arbitrator (FCIArb), and a Bencher of Gray’s Inn. He practises across defence, aerospace, construction, engineering and commodities, with a leading specialism in drone and counter-drone law, unmanned aviation regulation, and AI-enabled safety and compliance. Richard advises government, primes and operators on EU/UK UAS frameworks, BVLOS, U-space/UTM and the EU AI Act. He leads Blakiston’s Chambers and contributes regularly to industry guidance and policy consultations.

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Will local authorities become airspace planners?

zeroabove — Mon, 10 Feb 2020 10:51:31 +0000

Local authorities need to have a clear understanding of the legislation on drones and an enforceable policy in place or they are putting themselves at risk, write Richard Ryan and Chris Gee.

Our recent research with over 350 local authorities confirmed that councils do not have appropriate policies in place for drones and where there is a policy in place, it is not consistent with CAA regulations. We did not find a single policy that was accurate, up to date or enforceable.

Drones are here to stay, and the number of drones and unmanned aircraft is forecast to grow rapidly for both recreational use and commercial operations. Local authorities have a significant role to play in promoting the safe use of drones and creating an environment that supports the economic growth of the sector. We also believe that local authorities could have a very interesting role managing the governance of lower level airspace.

Airspace

Airspace is a national asset that needs to be shared in the most effective and efficient way to meet the overall needs of the UK. The biggest challenge to the future of unmanned aviation is public perception. The battleground here will be about airspace governance – the policies and rules that need to be put in place such that the benefits of unmanned aviation are seen to outweigh the perceived risks and nuisance.

The CAA is the regulator for the UK airspace structure and is the only organisation that can authorise changes to the structure of airspace. This works well for traditional aviation and there is an airspace change process that enables airports and our national air traffic control provider to request changes to the airspace structure. This change process is well defined and involves public consultation with local communities. It works effectively for governing higher-level airspace and airspace around airports.

However, lower level airspace that will be occupied by delivery drones and urban air mobility services is a bit like the Wild West. As long as the remote pilot complies with the CAA regulations, then unmanned aircraft can fly wherever they like. There are further restrictions that relate to Temporary Danger Areas (TDA’s) whereby drones can fly Beyond Visual Line of Sight (BVLOS), but this is not a viable option for scaling to meet the future volume of traffic.

There is a bigger picture that needs to be addressed around the governance of lower level airspace. Who decides that it is acceptable for unmanned aircraft to fly over the local parish graveyard? Who determines that 60 flights an hour at night over my house is acceptable when the flight could equally fly over a parallel route? PwC’s “Building Trust in Drones” research revealed that only 31% of the UK public feel positive towards drone technology. The biggest concern was the improper use of drones and 70% of respondents wanted routes to be registered with the CAA.

The CAA will not have the capacity nor the local knowledge to deal with this micro-managed governance of lower level airspace. We believe there will need to be a framework in place for the CAA to delegate governance of lower level airspace to a local body that can engage with the public and address their concerns, which may be varied and many; especially if we take the USA as an example. Local authorities would be well positioned to play that role.

Legislation

Drone legislation is complex with regular changes such as the mandatory drone registration scheme introduced at the end of 2019 (whereby only 60,000 registered users were recorded Dec 2019) and there will be widespread changes with the introduction of complex European Union Aviation Safety Agency (EASA) regulations in June 2020. A local authority may find it substantially more cost effective to subscribe to a policy service rather than develop and maintain one in-house. Local authorities have a significant role to play in promoting the safe use of drones, creating an environment that supports the economic growth of the sector and also facilitating the police in enforcement activities.

The safety regulations are mainly contained in Articles 94 and 95 of the Air Navigation Order (ANO) are fundamental and are referenced in CAP 393. These are safety regulations and do not encompass matters relating to privacy and security. The ANO articles set limits on where unmanned aircraft may fly and whether they can be used for commercial purposes (commercial operations) and do not necessarily include hobbyists or model flying clubs. The key ANO articles of relevance are:

There is inherent confusion within the various regulations such as Schedule 2 of the ANO defines a Small Unmanned Aircraft as follows:

“any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight;”

Although not specified in the ANO, the CAA adopts the following definitions:

‘unmanned aircraft’ means any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board;

‘aircraft’ means any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth’s surface;

Policy considerations

Whilst there are significant benefits from the use of drones, given the breadth of airspace, air traffic volume and lower flying altitudes across large geographies of a local authority, the potential risks need to be understood and mitigated.

The future of unmanned aviation is evolving rapidly and local authorities should ensure that they have a lead officer responsible for implementing and maintaining appropriate policy. The policy should initially be focused on drones and include:

National context – up to date with the latest legislation and regulation as changes are announced;
Local context – relevant local airspace restrictions and permissions required to fly in these areas;
Council owned land – restrictions and opportunities for recreational flying from council owned property and land;
Commercial use of drones – facilitating the growth and economic benefits of commercial drone operations;
Exceptions – management of exceptions such as emergency services and flying clubs;
Suspicious drone activity – Reporting suspicious activity or drone usage that presents a threat to the public;
Council strategy – how the local authority intends to realise benefits from drone technology.

We advise a modern local policy that sets out a ?‘total airspace approach’ and includes proportionate local measures outside expanded flight restriction zones to ensure resident and wider public safety. A council must understand that there will be a need for special exemptions and/or permissions which, it may grant in exceptional circumstances. Where these will apply, they will primarily relate to public safety activities and accredited organisations.

Potential risks for local authorities

Our research highlights there is a general lack of understanding of the regulations and this is reflected in the lack of accurate and up to date policy across the local government sector. There are a number of very active social media groups within the drone community that share inconsistencies and misinformation provided by local authorities and organisations such as the National Trust and English Heritage. We believe it is only a matter of time before there is a test case challenging a local authority. Such a challenge would present the following risks to the local authority:

1. Significant legal costs in defending a challenge by judicial review. Legal consequences of a breach of the ultra vires rule are significant and there is much case law on this. A person who is aggrieved by a local authority’s decision may apply to the court for judicial review of the decision under Part 54 of the Civil Procedural Rules. The court may grant a successful applicant one of the following remedies against a local authority:

(a) An order quashing an ultra vires decision;

(b) An order (a prohibiting order, mandatory order or injunction) stopping an ultra vires action that is about to take place;

(d) An order making the legal position clear (a declaration).

2. Risk of other remedies available in ordinary private law High Court proceedings, namely injunctions, declarations and damages;

3. Significant and substantial negative PR.

Conclusion

It is abundantly clear that local authorities have a great opportunity to take advantage of an evolving legal position and also be much better informed. Councils can provide a much safer environment for people that enjoy open spaces and for people that enjoy flying drones. The legislative burden is increasing at an alarming rate, which means that local authorities must be able to resource accordingly. This can be expensive and time consuming. By using a conjoined policy document that is up to date and consistent with changing regulations, local authorities will substantially mitigate the risks of legal challenge.

Richard Ryan is a barrister and Chris Gee is MD Agilio and Trustee for Safer Drones.

Richard and Chris are offering all local authorities a free review of their existing drone policy or an initial free consultation to answer questions relating to the development of a new policy. Please contact chris.gee@agilio.co.uk or richard.ryan@blakistons.co.uk.

Richard is a practicing barrister and also a commercial UAV pilot (PfCO). Richard worked for the CAA UAS Unit and was responsible for all complex drone permissions in the UK from land up to space and inspected and audited drone pilots and National Qualified Entities, the first person in the UK to do so. Richard provides cogent advice on drone law to many different stakeholders in the UK and abroad.

Chris is a commercial UAV pilot (PfCO), programme manager and management consultant with 25 years’ experience helping organisations innovate through new technology including drones. He has worked extensively in local government and also has manned aviation experience having previously held a pilot’s licence.

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