Proposal for a COUNCIL DIRECTIVE ESTABLISHING THE FUNDAMENTAL PRINCIPLES GOVERNING THE INVESTIGATION OF CIVIL AVIATION ACCIDENTS AND INCIDENTS
Date: 1993-09-01
Institutions: European Commission
Subjects: civil aviation, report, roadworthiness tests, supervisory body, transport accident, transport safety

COMMISSION OF THE EUROPEAN COMMUNITIES 

C0MC93)  406 

f i n al 

Brussels»  1  Sspteiaber  1993 

Proposal 

f or  a 

fflWNH1  HIRECTIVE 

ESTABLISHING  THE  FUNDAMENTAL  PRINCIPLES  GOVERNING  THE 
INVESTIGATION  OF  CIVIL  AVIATION  ACCIDENTS  AND  INCIDENTS 

(presented by the Commission) 

-  1 -

EXPLANATORY  MEMORANDUM 

I.  Introduction 

In November  1987  the Commission  organised  an  Air  Safety  Symposium 
aiming  at  providing  the  forum  for  an  exchange  of  information  and 
Ideas  on  aviation  safety  and  identifying  priority  areas  for  such 
action as may be appropriate at Community  level. 

One  of  the  three  broad  themes  discussed  during  this  symposium  was 
the  investigation  of  aircraft  accidents.  The  conclusions  drawn 
from  the discussions*1*  showed  clearly  that  although  the  situation 
was  generally  satisfactory  in  Europe,  Community  actions  in  the 
fields of accident  investigations was needed  in a number of areas. 

In order  to obtain  more  detailed  information,  the  services  of  the 
Commission  launched  two  specific  studies  which  were  completed  in 
1989: 

"Cooperation  and  shared  utilisation  of  available  resources  in 
aircraft  accident  investigation"  by  Geoffrey  Wilkinson,  former 
Chief  Inspector  of  Accidents  of  the  United  Kingdom  Accident 
Investigation Branch; and 

"Problems  raised  by  the  double  enquiry  into air 
Lucien Rapp, Professor  at  the Faculty of Law. 

accidents"  by 

The  results  and  conclusions  of  these  studies  were  carefully 
assessed  by  experts  from  governments  and  Industry  in  a  number  of 
meetings organised by  the services of  the Commission  in 1990. 

(1) Proceedings  of  the  Air  Safety  Symposium,  Office  for 

Off icial 

Pub I I cat ions of  the European Communities, Luxembourg, 1988 

-  2 -

In  1991,  the  Commission,  taking  into  account  the  comments  of  the 
experts  and  the  discussions  taking  place  in  the  international 
organisations,  in particular  ICAO and ECAC,  issued a "Communication 
to  the  Council  on  Community  initiatives  concerning  civil  aviation 
incidents and accidents. 
This  communication  included  a  working  programme  which  foresees, 
amongst  others,  legislative  measures  in  the  field  of  accident 
invest igat ion. 

Consequently  the  proposed  measure  is  intended  to  lay  down  strong 
and  common  foundations  for  the  investigations  carried  out  by  the 
Member  States at national  level. 

In 1992, a number  of meetings with  experts  took  place enabling  the 
services  of  the  Commission  to draft  the  present  proposal  based  on 
identified  needs derived  from shortcomings  in the system. 

II. Shortcomings  In the present  system 

The  present  system  of  aircraft  accident  investigation  is governed 
by  the  international  standards  and  recommended  practices  contained 
in  the  current  edition  of  Annex  13  to  the  Convention  on 
International  Civil  Aviation published by  ICAO. 

While  the process  described  above was  taking  place  in the  services 
of  the  Commission,  a  parallel  evolution  of  thoughts  was  initiated 
in the aviation circles and  in particular  in ICAO. 

For  this  reason,  ICAO  organised  in  February  1992  a  very  large 
Accident  Investigation Divisional  Meeting  (AIG 92) attended  by more 
than  200  delegates  from  more  than  70  countries  and  organisations. 
A  large number of proposals  to modify  and update Annex  13 and other 
relevant  ICAO  documents  were  adopted  in order  to  try  to  overcome 
the shortcomings  identified  by all  those experts. 

The present  proposal  takes  into account  the work  carried out  at AIG 
92  and  is  therefore  in  line  with  latest  and  foreseen  ICAO 
requirements,  turning  into  Community  legislation  a  number  of 
measures  to correct  shortcomings. 

First  of  all,  the  objective  of  the  investigation  must  be  clearly 
expressed:  namely  prevention  of  future  accidents  and  incidents. 
Experience  has shown when  investigating several  recent  accidents  in 
Europe  that  difficulties can arise  from national  legislations which 
do  not  provide  for  a  clear  separation  between  the  technical 
investigation  only  interested  in  accident  prevention  and  the 
Judicial  inquiry  seeking  for  faults or  liability.  The existence of 
this  double  inquiry  creates  a  very  complex  problem  that  could 
hamper  the  investigation of  the  accident  and  is aggravated  by  the 
fact  that  Judicial  traditions vary  from State to State. 

-  3 -

The  potential  conflict  of  interest  could  be  avoided  by  defining 
very  clearly  the  status  of  the  technical  investigation  and 
recognising  a number  of basic  rights of  the  investigators to enable 
them to achieve  their mission while respecting  the  legal  procedures 
in  force.  The  investigators  and  their  work  has  also  to  be 
protected  from  misuse  which  could  be  counter  productive  by 
deterring  the  parties  in  an  accident  from  cooperating  by  fear  of 
subsequent  legal  action.  Only  factual  information arising  from the 
technical  investigation should be available  for use by  the  Judicial 
authorities,  analysis  or  conclusions  should  remain  limited  to 
accident  prevention use. 

The  findings  of  the  investigation  are  usually  published  in  some 
form  of  report.  The  dissemination  of  the  report  including  the 
safety  recommendations derived  from  the  investigation  is of  utmost 
importance  in the  interest  of  accident  prevention.  As  an example, 
last  year  an  accident  happened  in  the  USA  with  the  same  aircraft 
and  in  similar  conditions  as  a  Canadian  accident  three  years 
earlier.  The Canadian  investigation report  had not been officially 
sent  to the US authorities. 

Although  safety  recommendations  are  sent  to  the  relevant  parties, 
very  often  there  is no  follow-up  procedure  to check  if  any  action 
has  been  taken  to  correct  the  deficiencies.  Such  a  procedure 
should  be  sufficiently  flexible  to allow  the  interested  parties  to 
either  apply  strictly  the  recommendations,  apply  other  corrective 
action  deemed  more  appropriate  or  reject  the  recommendations 
providing  a reasonable  Justification  is given. 

In  the  Community,  accident  investigations  are  carried  out  by 
national  bodies,  the  organisation  of  which  differs  greatly  both 
with  regard  to  the  extent  of  their  resources  (human  and  material) 
and  to  independence  vis-à-vis  the  national  aviation  authorities. 
The  low probability of  a major  accident  occurring  in a small  state 
does  not  Justify  a  large  organisation  but,  should  such  accident 
happen, the possibility  should  exist  to obtain  at  short  notice  the 
needed  resources.  Expertise  could  be  brought  from  other  Community 
accident  investigation  bodies  according  to  the  1980  Directive  on 
future  cooperation  and mutual  assistance  between  the Member  States 
in the  field of  air  accident  investigation*1) but  this  cooperation 
could  be  improved  if all  those  bodies  were  working  according  to a 
number of common basic principles. 

In order  to avoid possible conflict of  interests, the  investigating 
body  should  be  independent  of  any  party  which  could  directly  or 
indirectly  have a responsibility  in the cause of an accident. 

(1) OJ no. 375, 31.12.1980 

-  4 -

Finally, an  important modification proposed  is to extend  to serious 
incidents  the  investigation  process  applied  to  accidents.  The 
investigation of accidents  is a reactive activity  and therefore not 
the best  means of  prevention.  In addition, there  is fortunately  a 
very  limited  number  of  accidents.  For  this  reason,  investigation 
of  serious  incidents  to  the  standards  employed  for  accidents will 
provide  a  greater  source  of  accident  prevention  data  than  is 
available through  the  investigation of accidents alone. 

III. Application of  the subsidiarity  principle 

Due  to  the  international  nature  of  aviation  and,  in particular  in 
the  community  where  the  liberalisation  measures  of  air  transport 
and  the  realisation  of  the  single  market  will  lead  to  more 
multinational  operations,  accident  investigations  will  very  often 
involve several Member States. 

The  small  number  of  aviation  accidents  does  not  Justify  large 
investigation  units  and  cooperation  between  units  is  therefore 
needed. 

New  international  standards  and  recommended  practices  are 
definitely  needed  and  the  Community  has  the  legal  instruments  to 
ensure  a  quick  and  efficient  implementation of  those  standards  in 
all  the Member States. 

The  present  proposal  could  be considered  as a framework  directive, 
a  number  of  articles  setting  goals  leaving  to  the  Member  States 
freedom  as  to  the  way  to  reach  these  goals.  However,  due  to  the 
technical  nature  of  this  subject,  it has  been  necessary  sometimes 
to  look  into some matters  in more detail. 

The  burden  for  the  majority  of  the  Member  States  will  be  limited 
due  to  the  fact  that  they  already  apply  standards  at  least 
equivalent  to  those  contained  in  Annex  13.  However,  some  Member 
States  and  in  particular  the  smaller  ones,  will  have  to  change 
their  legislation  and  invest  in  independent  investigation  units. 
The  consultations  carried  out  by  the  services  of  the  Commission 
during  the  last  five  years  have  shown  that  usually  in these Member 
States  the  technical  authorities  have  recognised  the  need  to 
proceed  with  those  required  changes  and  would  welcome  such  a 
Community  initiative  as  a  support  to give  air  safety  the  priority 
ranking  it deserves. 

In  addition,  the  Commission  does  not  claim  for  any  additional 
competence  in  this  field,  but  by  establishing  fundamental 
principles,  it will  encourage  a  better  mutual  cooperation  between 
responsible  bodies.  As a consequence, the adoption of  the  present 
proposal  could  also  permit  to  repeal  the  1980 Directive  on  future 
cooperation  and  mutual  assistance  between  Member  States  in  the 
field of air  accident  investigation. 

- 5 -

IVt Conclusions 

The  present  proposal  is  the outcome  of  a  long  process,  started  in 
1987 during  which  a wide  consultation was organised  at  each  stage. 
It  should  help  the  Member  States  to  bring  their  accident 
investigation  methods  and  legislations  up-to-date  and  encourage 
them  to cooperate. 

Such  an  improvement  should  lead  to  a  better  understanding  of 
accidents  and  incidents  and  therefore  contribute  to  a  more 
efficient  safety policy and prevention of accidents. 

- 6 

COMMENTS ON  INDIVIDUAL ARTICLES 

Article  \ 

This  article  defines  the  general  objective  of  the  Directive  which  is 
the  improvement of air  safety. 

Article  Z 

This  article  defines  the  scope  of  the  Directive.  It  covers  not  only 
the  investigations  of  accidents  but  also  incidents.  This  is  in 
accordance with  recent  ICAO proposals. 

In  paragraph  1,  the  scope  is  limited  to  the  Community  while  in 
paragraph  2, the scope can be extended outside of  the Community when an 
incident occurs  to a Community  aircraft  and no  investigation  is carried 
out  by  the State where  the  incident  occurred.  This  is due  to the fact 
that  very  often,  it  is the State  of  registry  of  the  aircraft  which  is 
better  placed  to carry out an  investigation of an  incident. 

Article 3 

This  article  defines  the  terms  used  in  the  Directive.  These 
definitions are those used by  ICAO except  h) which  is a definition used 
in other Community  legislation on air  transport^1). 

Article 4 

This  article  sets out  the  principle  of  the mandatory  investigation of 
every accident  and also every  serious  incident.  This  last provision  is 
new  but  complies  with  ICAO  guidelines.  This  article  also  do  not 
prevent  the  investigation body  to  investigate  any other  incident  if it 
could  be  beneficial  to  air  safety.  In  addition,  it  is  the 
responsibility  of  the  investigation  body  to  determine  the  type  of 
investigation  and  the  efforts  to  invest  into  it  according  to  the 
knowledge  that  could  be  expected  from  an  accident  prevention  point  of 
view. 

(1) Council  Regulation  (EEC) no.  2407/92  of  23  July  1992 on  licensing 

of  air carriers; OJ no. L240 of  24.8.92. 

- 7 -

Article 5 

The  purpose  of  this  article  is to  draw  a  clear  dividing  line  between 
the  technical  investigation  and  the  Judicial  enquiry.  It  establishes 
the  status  of  the  technical  investigation  in  order  to  reach  the 
objective of  this Directive. 

Paragraph  1 sets the general  principle while paragraph  2  lists a number 
of  minimum  rights  necessary  for  the  investigators  to  carry  out  their 
mission. 

Art|ç|e $ 

This  article  deals  with  the  body  responsible  for  carrying  out  the 
technical  investigation of aviation accidents. 

Paragraph  1 gives  the general  principles:  permanence  and  independence 
in  order  to  avoid  possible  conflict  of  interest  or  any  direct  or 
indirect  involvement  in  the  causes  of  any  investigated  accident  or 
incident. 

Paragraph  2  enables  small  Member  States  which  consider  that  even  a 
limited  permanent  structure  dealing only  with  investigations would  not 
be  justified,  to use  also  this  structure  as  a  safety  data  collection 
and  analysis  unit  running  for  example  incident  reporting  system, 
occurrences data bases etc. 

Paragraph  3 deals with  the minimum means necessary  for such a structure 
to be operat ional. 

Paragraph  4  contains  some  of  the  provisions  of  Council  Directive 
80/1266/EEC  therefore  enabling  it  to  be  repealed  in  the  present 
proposal. 

Article 7 

This  article  obliges  the  investigation  body  to  publish  a  report  to 
ensure  the widest  possible  dissemination of  safety  related  information 
in the event of an accident. 

Paragraph  2 sets a goal  of  12 months  for  the completion of  the report. 
Setting  a firm deadline could  be counter  productive  by  preventing  long 
and  sophisticated  research  which  could  be  needed  to  reach  important 
conclusions but setting a goal  is necessary  to avoid  complacency. 

Paragraph  3  introduces  a  provision  to  enable  interested  parties  to 
comment  and  give  them  an  opportunity  to  request  a  revision  of  the 
report. 

- 8 -

Article 8 

This article  deals with  the  report  in the case of  an  incident.  Due to 
the  special  nature  of  incidents,  their  greater  frequency  and  the  fact 
that  they  usually  are  not  published,  it could  be counter  productive to 
use  the  same  procedure  as  in  the  case  of  accidents.  It  is  therefore 
important  to protect  the parties  involved  and  to  limit  the  circulation 
of  the  report  to  professionals,  dealing  with  accidents  prevention  or 
aviat ion safety. 

Article  9 

This article addresses  the  important  issue of safety  recommendations. 

Paragraph  1 ensures that  the dissemination of safety  recommendations is 
achieved  by addressing  them  to all  parties concerned  and sending  a copy 
to  the  Commission.  By  receiving  the  safety  recommendations  from  ail 
the  Member  States  it  will  be  able  to  distribute  them  to  all  the 
investigation  bodies  and  aeronautical  authorities  of  the  Community. 
This  could  also  lay  the  groundwork  for  a  future  central  data  base  of 
safety  recommendations. 

taken  by 

Paragraph  2  creates  an  obligation  to  follow-up  at  national  level  the 
measures 
a  safety 
the  addressees  when 
recommendation:  compliance  or  justified  rejection  or  alternative 
action.  It  also  ensures  that  the  corrective  measures  will  not  affect 
Community  law such as, for example, the free movement  of aircraft. 

receiving 

Article 10 

This  article  reinforces  the  protection  of  the  technical  investigation 
by  measures  to  avoid  its  use  for  purposes  other  than  its  exclusive 
objective which  is prevention of  future accidents or  incidents. 

Paragraph  1  limits  the  use  of  the  report  for  other  purposes  to  the 
factual  part  of  it,  therefore  excluding  the  analysis  and  conclusions 
part. 

Paragraph  2  enables  the  investigating  body  to  draft  safety 
the 
recommendations  concerning 
investigation  but  which  could  be  unrelated  to  the  causes  of  the 
accident  or  incident  without  risk  of  these  recommendations  being  used 
for purposes other  than prevention. 

shortcomings 

discovered 

during 

Paragraph  3 prevents the use of  the report  for disciplinary  action. 

Paragraph  4  reinforces  the  protection  of  the  investigators  by 
preventing  them  to  be  placed  in  a  situation  where  there  would  be  a 
confIict of  interest. 

- 9 -

Article 11 

As  the  provisions of  this proposal  go  further  than  those  contained  in 
Council  Directive  80/1266/EEC,  there  is  no  reason  to  maintain  this 
Directive anymore. 

Article 12 8. 13 

Procedural  articles. 

-  10 -

PROPOSAL  FOR A COUNCIL DIRECTIVE 

ESTABLISHING THE FUNDAMENTAL  PRINCIPLES GOVERNING 

THE  INVESTIGATION OF CIVIL AVIATION ACCIDENTS AND  INCIDENTS 

THE COUNCIL OF THE EUROPEAN  COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European  Economic 

Community, and  in particular  Article 84§2 thereof, 

Having regard  to the proposal  from  the Commission*1>, 

Having regard  to the Opinion of  the European Par Iiament*2), 

Having  regard  to the Opinion of  the Economic and Social  Committee^)  t 

Whereas  the  opening  of  the  internal  market  and  the  liberalisation  of 

air  transport  will  increase  the  air  traffic  operations,  in  particular 

these  involving  crew,  aircraft  and  undertakings  from  different  Member 

States; 

Whereas  a  high  general  level  of  safety  in  the  single  market  requires 

harmonised  procedures  to  the  extent  that  there  will  be  less  direct 

links  between  individual  Member  States  and  individual  operators-, 

whereas  operations  in  the  Community  will  involve  more  multilateral 

contacts  between  Member  States  and  operators  and  therefore  there will 

be  a need  for  general  principles  to enable  Member  States  to apply  the 

same high  level of accident  prevention measures; 

Whereas  a  high  general  level  of  safety  in  civil  aviation  in  Europe 

should  be  maintained  and  ail  efforts  should  be  made  to  reduce  the 

already  limited number of accidents and serious  incidents; 

(1) O.J. N* C.. 
(2) O.J. N-  C. 
(3) O.J. NT C.. 

-  11  -

Whereas  account  should  be  taken  of  the  Convention  on  International 

Civil  Aviation,  signed  in  Chicago  on  7  December  1944,  which  provides 

for  implementation  of  the  measures  necessary  to  ensure  the  safe 

operation  of  aircraft;  whereas  account  should  also  be  taken  in 

particular  of  the  Annex  13  to  the  said  Convention  which  provides 

international  standards  and  recommended  practices  for  aircraft  accident 

investigation; 

i 

Whereas  the  expeditious  realisation  of  technical  investigations  of 

civil  aviation  accidents  and  incidents  would  improve  air  safety  in 

helping  to  prevent  the occurrence  of  such  accidents  and  incidents; 

Whereas  international  standards  provide  for  the  investigation  of 

accidents  to  be  carried  out  under  the  responsibility  of  the  State  where 

the  accident  occurs,  if  investigation  of  incidents  is  not  carried  out 

by  the  State  where  the  incident  occurs,  this  investigation  should  be 

carried  out  by  the  State  of  registry-, 

Whereas  investigation  of  serious  incidents  should  be  carried  out  in  a 

similar  way  to  investigation  of  accidents; 

Whereas  air  safety  requires  accident  investigations  to  be  carried  out 

in  the  shortest  possible  time,  investigators  should  be  able  to  proceed 

to  their  tasks  with  the  greatest  freedom  allowed  by  the  legal  system; 

Whereas  investigation  of  civil  aviation  accidents  and  incidents  should 

be  carried  out  by  an  independent  body  to  avoid  any  conflict  of  interest 

and  any  possible  involvement  in  the  causes  of  the  occurrence  being 

investigated;  whereas  this  body  should  be  suitably  equipped  and  its 

tasks  could  include  other  prevention  activities; 

Whereas  it  is  important  for  accident  prevention  to  publish  the  findings 

of  accident  investigations  in  the  shortest  time  possible  while  giving 

opportunity  to  interested  parties  to  comment  on  these  findings; 

-  12 -

Whereas the particular  nature of  incidents should be taken  into account 

when circulating  the findings of  incident  investigation; 

Whereas  the  safety  recommendations  resulting  from  an  accident  or 

Incident  investigation should be duty  taken  into account; 

Whereas  the  technical  investigation  should  only  be used  for  prevention 

purposes»  only  factual  information  collected  during  the  investigation 

should be allowed  to be used  to apportion blame or  liability; 

HAS ADOPTED THIS DIRECTIVE: 

Article 1 - Objective 

This  Directive  aims  at  improving  air  safety  by  facilitating  the 

expeditious  realization  of  investigations,  the  exclusive  objective  of 

which  is prevention of  future accidents or  incidents. 

Article 2 - Scope 

1.  This  Directive  shall  apply  to  investigations  of  civil  aviation 

accidents  and  incidents occurring  in the  territory  of  the  European 

Community  taking  into account  the  international  obligations of  the 

Member  States. 

2.  This  Directive  shall  also  apply  outside  the  territory  of  the 

European Community  to  investigations of serious  incidents  involving 

aircraft  registered  in a Member  state or operated  by an undertaking 

established  in a  Member  State,  when  such  an  investigation  is not 

carried out by another State. 

-  13 -

Article 3 - Definitions 

For  the purposes of  this Directive 

a)  'Accident' means  an occurrence  associated  with  the operation of  an 

aircraft  which  takes  place  between  the  time  any  person  boards  the 

aircraft  with  the  intention  of  flight  until  such  time  as  all  such 

persons have disembarked,  in which: 

1)  a person  is fatally or seriously  injured as a result of: 

being  in the aircraft, or 

direct  contact  with  any  part  of  the  aircraft,  including 

parts which  have become detached  from  the aircraft, or 

direct  exposure  to Jet blast, 

except  when  the  injuries  are  from  natural  causes,  self-

inflicted  or  inflicted  by  other  persons, or  when  the  injuries 

are to stowaways hiding outside  the areas normally available to 

the passengers and crew; or 

2)  the aircraft  sustains damage or  structural  failure which: 

adversely  affects  the  structural  strength,  performance  or 

flight  characteristics of  the aircraft, and 

would  normally  require  major  repair  or  replacement  of  the 

affected component, 

except  for engine  failure or damage, when  the damage  is limited 

to  the  engine,  its  cowlings  or  accessories;  or  for  damage 

limited  to  propellers,  wing  tips,  antennas,  tires,  brakes, 

fairings,  small  dents or  puncture  holes  in  the  aircraft  skin; 

or 

-  14 -

3)  the aircraft  is missing or  is completely  inaccessible; 

b)  'Serious  injury' means an  injury which  is sustained  by  a person  in 

an accident  and which: 

1)  requires  hospitalisation  for  more  than  48  hours,  commencing 

within seven days from the date the  injury was received; or 

2)  results  In a  fracture  of  any  bone  (except  simple  fractures of 

fingers, toes, or  nose); or 

3)  involves  lacerations  which  cause  severe  haemorrhage,  nerve, 

muscle or  tendon damage: or 

4)  involves  injury  to any  internal organ; or 

5)  involves  second  or  third  degree  burns, or  any  burns  affecting 

more  than 5 per  cent of  the body  surface-, or 

6)  involves  verified  exposure  to  infectious  substances  or 

injur ious radiât ion; 

c)  'Fatal  injury' means an  injury which  is sustained  by a person  in an 

accident  and  which  results  in death  within  30 days of  the  date of 

the accident -, 

d)  'Causes' means action(s), omission(s), event(s), condition(s), or a 

combination  thereof, which  led to the accident or  incident; 

-  15 -

e)  'Investigation'  means  a  process  conducted  for  the  purpose  of 

accident  and  incident  prevention  which  includes  the  gathering  and 

analysis of  information,  the drawing  of  conclusions,  including  the 

determination  of  cause(s)  and,  when  appropriate,  the  making  of 

safety  recommendations; 

f)  'Invest Igator-ln-charge'  means  a  person  charged,  on  the  basis  of 

his  qualifications,  with  the  responsibility  for  the  organisation, 

conduct  and control  of an  investigation; 

g)  'Flight  recorder'  means  any  type  of  recorder  installed  in  the 

aircraft  for  the  purpose  of  complementing  accident/incident 

investigation; 

h)  'Undertaking'  means  any  natural  person,  any  legal  person, whether 

profit-making  or  not, or  any  official  body  whether  having  its own 

legal  personality or not; 

i)  'Incident' means  an occurrence, other  than  an  accident, associated 

with  the operation of  an aircraft  which  affects or  could affect  the 

safety of operation-, 

J)  'Serious  incident'  means  an  incident  involving  circumstances 

indicating  that an accident  nearly occurred. 

A  list of  examples  of  serious  incidents  can  be  found  in the Annex 

to this Direct ive; 

k)  'Safety  recommendation' means  a proposal  of  the  investigation body 

of  the  State  conducting  the  investigation,  based  on  information 

derived  from  the  investigation,  made  with  the  intention  of 

preventing  accidents or  incidents. 

- 16 

Article 4 - Mandatory  investigation 

1.  Every  civil  aviation  accident  or  serious  incident  shall  be 

subjected  to  an  investigation,  the  scope  of  which  shall  be 

determined  by  the  investigation  body  taking  into  account  the 

objective of  this directive. 

2.  This does not  prevent  Member  States  to take measures  to enable  the 

investigation  of  other  incidents  when  the  investigation  body  may 

expect  to draw air safety  lessons from  it. 

Article S - Status of  the  investigation 

1.  The  Member  States  shall  define,  in  the  framework  of  their 

respective  internal 

legal  systems,  a  legal  status  of  the 

investigation  that  shall  enable  the  investigators-in-charge  to 

achieve  their  mission,  in  the  most  efficient  way  and  within  the 

shortest time. 

2.  Without  prejudice  to  the  internal  legal  procedures  in force  and  in 

cooperation with other  authorities of  the Member  States  responsible 

for  the Judicial  enquiry, the provisions of paragraph  1 shall  allow 

in part icular: 

unimpaired  access  to  the  site  of  the  accident  or  incident  as 

well  as to the aircraft or  its wreckage; 

immediate  controlled  removal  of  debris,  bodies  or  components 

for examination or analysis purposes; 

immediate  access  to  and  use  of  the  contents  of  the  flight 

recorders and any other  recordings; 

immediate examination of, or  taking of samples  from, the bodies 

of victims or persons  involved; 

-  17 -

examining witnesses; 

full  access  to any  relevant  information or  records held  by  the 

owner,  the  operator,  the  maintenance  organisation  or  the 

manufacturer  of  the aircraft  and by  the authorities  responsible 

for civil  aviation or  airport operation. 

Article 6 -  investigation body 

1.  The Member  States shall  ensure  that  the conduct  of  investigations 

is  entrusted  to  a  permanent  civil  aeronautical  body.  This  body 

shall  be  functionally  independent  in  particular  of  the  national 

aeronautical 

authorities 

responsible 

for 

airworthiness, 

certification,  flight  operation,  maintenance,  licensing,  air 

traffic control  or  airport operation. 

2.  Notwithstanding  paragraph  1, the activities  entrusted  to  this body 

can  be  extended  to  the  gathering  and  analysis  of  air  safety 

related  data  in  as  far  as  these  activities  do  not  affect  its 

independence and entail  no regulatory  , normative or administrative 

responsibiIity. 

3.  The body  referred  to  in paragraph  1 above shall  be given  the means 

required  to  carry  out  its  responsibilities  independent  from  the 

authorities  referred  to  above  and  should  be  able  to  obtain 

sufficient  resources  to do  it.  Its personnel  shall  benefit  from a 

statute  giving  the  necessary  protection  and  guarantees  of 

independence.  It  shall  comprise  at  least  a  suitably  trained 

investigator  to exercise  the  function of  investigator-in-charge  in 

the event of a civil  aviation accident or serious  incident. 

-  18 -

4.  If necessary,  the body  conducting  an  investigation may  request  the 

assistance of bodies from other Member  States to supply: 

a)  installations, facilities and equipment  for: 

the  technical  investigation  of  wreckage  and  aircraft 

equipment  and other objects relevant  to the  investigation. 

the evaluation of  information  from flight recorders. 

and  the  computer  storage  and  evaluation  of  air  accident 

data. 

b)  accident  investigation experts  to undertake  specific  tasks but 

only  where  an  investigation  is  opened  following  a  major 

accident. 

When available, such assistance  should be given, as far as possible 

free of charge. 

Article 7 - Accident  report 

1.  Any  investigation of a civil  aviation accident  shall  be the subject 

of  a  report  in  a  form  appropriate  to  the  accident.  This  report 

shall  point  out  the  exclusive  objective  of  the  investigation 

mentioned  in  article  1  of  this  Directive  and  contain,  where 

appropriate, safety  recommendations. 

2.  The  investigation  body  shall  publish  the  report  in  the  shortest 

possible  time while endeavouring  not  to exceed  12 months  after  the 

accident date. 

3.  The  draft  report  is submitted  for  comments  to  any  party  which  the 

investigation  body  considers  the  investigation  to be of  particular 

importance  and  it  shall  give  a  deadline  for  the  submission  of 

comments. 

-  19 -

Article 8 -  Incident  report 

1.  Any  investigation  about  an  incident  involving  civil  aviation  shall 

be  the  subject  of  a  report  in a  form  appropriate  to  the  type  and 

to  the  gravity  of  the  incident,  and  shall  contain  where 

appropriate  relevant  safety  recommendations.  This  report  shall  , 

as  far  as  possible,  protect  the  anonymity  of  the  parties  involved 

in the  incident. 

2.  This  report  shall  be  the  subject  of  as  wide  a  circulation  as 

possible  to  the  parties  likely  to  benefit  from  the  findings  of 

the aforementioned  report. 

Article 9 - Safety  recommendations 

1.  The  reports  and  the  safety  recommendations  referred  to  in  Article 

7.1  and 8.1  shall  be addressed  to persons, undertakings  or  national 

aeronautical  authorities concerned  and  copied  to the Commission. 

2.  The  Member  States  shall  take  the  necessary  measures  in  order  to 

ensure  that  the  safety  recommendations  from  the  investigation  body 

are  duly  taken  into consideration  and  acted  upon  where  appropriate 

without  prejudice  to  the  Community  law  and  in  particular  that 

concerning  the  functioning  of  the  internal  market. 

-  20 -

Article  10 -  Liability 

1.  The  analysis  and  conclusions  drawn  from  the  investigation  or 

arising  from  it shall  not  be used  to apportion  blame  or  within  the 

context  of  proceedings  to determine  liability. 

2.  A  safety  recommendation  does  not  by  itself  create  a  presumption of 

blame or  liability  for  an accident  or  incident. 

3.  Investigation  reports shall  not  be used  for  disciplinary  action. 

4.  The  Member  States  shall,  in  the  context  of  Articles  5  and  6,  take 

the necessary  measures  to protect  investigators  from  involvement  in 

I itigation  proceedings  intended  to  apportion  blame  or  liability 

arising  from an accident or  incident. 

Article  11 

The Council  Directive  80/1266/EEC of  16 December  1980  is repealed. 

Article  n 

1.  The  Member  States  shall  bring  into  force  the  laws,  regulations  and 

administrative  provisions  necessary  to  comply  with  this  Directive 

not  later  than  1  January  1996.  They  shall  forthwith  inform  the 

Commission  thereof. 

2.  When  the  Member  States  adopt  these  provisions  their  texts  shall 

refer  to this Directive or  shall  be accompanied  by  such  a  reference 

when  officially  published.  The  Member  States  shall  decide  what 

method  to use  to make  this  reference. 

Article 13. 

This Directive  is addressed  to the Member  States. 

-  21 -

Annex 

List of examples of  serious  Incidents 

The  incidents  listed  are  typical  examples  of  serious  incidents.  The 

list  is not exhaustive and only  serves as guidance  to the definition of 

"Serious  Incident". 

A  near  collision  requiring  an  avoidance  manoeuvre  or  when  an 

avoiding manoeuver  would  have been appropriate to avoid  a collision 

or  an unsafe situation. 

Controlled  flight  into terrain  (CFIT) only marginally  avoided. 

An  aborted  take-off  on  a  closed  or  engaged  runway, or  a  take-off 

from such  runway with marginal  separation  from obstacle(s). 

A  landing or  attempted  landing on a closed or engaged  runway. 

Gross  failure  to  achieve  predicted  performance  during  take-off  or 

initial  climb. 

All  fires  and  smoke  in  the  passenger  compartment,  in  cargo 

compartments  or  engine  fires,  even  though  such  fires  are 

extinguished  by  the use of extinguishing agents. 

Any events which  required  the emergency use of oxygen by  the flight 

crew. 

Aircraft  structural  failure  or  engine  disintegration  which  is not 

classified as an accident. 

Multiple  malfunctions  of  one  or  more  aircraft  systems  that 

seriously  affects the operation of  the aircraft. 

-  22 -

Any  case of  flight  crew  incapacitation  in  flight. 

Any  fuel  state  which  would  require  the  declaration  of  an  emergency 

by  the pi lot. 

Take-off  or  landing  incidents.  Incidents  such  as  undershooting, 

overrunning  or  running  off  the  side of  runways. 

System  failures,  weather  phenomena,  operation  outside  the  approved 

flight  envelope  or  other  occurrences  which  could  have  caused 

difficulties  controlling  the  aircraft. 

Failure  of  more  than  one  system  in  a  redundancy  system  which  is 

mandatory  for  flight  guidance  and  navigation. 

- R 3-

ISSN 0254-1475 

COM (93) 406 final 

DOCUMENTS 

EN 

07 

Catalogue number : CB-CO-93-444-EN-C 

ISBN 92-77-58958-2 

Office for Official Publications of the European Communities 
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