Commission staff working document accompanying the proposal for a Regulation of the European Parliament and of the Council on investigation and prevention of accidents and incidents in civil aviation - Summary impact assessment {COM(2009) 611 final} {SEC(2009) 1477}
Date: 2009-10-29
Institutions: European Commission
Subjects: accident prevention, air safety, civil aviation, cooperation policy, data collection, exchange of information, impact study, supervisory body, transport accident, transport safety

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.10.2009 
SEC(2009) 1478 final 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the  

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on investigation and prevention of accidents and incidents in civil aviation 

SUMMARY IMPACT ASSESSMENT 

{COM(2009) 611 final} 
{SEC(2009) 1477} 

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1. 

BACKGROUND 

This  Impact  Assessment  (IA)  analyses  different  policy  options  to  assist  the 
Commission  in  the  revision  of  Council  Directive  94/56/EC  of  21  November  19941 
and Directive 2003/42/EC2. 

It  results  from  the  recommendations  of  the  "Group  of  Experts  to  advise  the 
Commission  on  a  strategy  to  deal  with  accidents in  the  transport  sector" (Group of 
Experts)3,  studies  and  reports,  consultations  with  Member  States  (MS)  and 
stakeholders, as well as recommendations on the "Action Programme for Reducing 
Administrative Burdens"4.  

2. 

2.1. 

PROBLEM DEFINITION 

Current regulatory framework 

Civil aviation has well established traditions in accident investigation and occurrence 
reporting.  The  obligation  to  investigate  accidents  is  enshrined  in  the  Chicago 
Convention of 1944. 

Recognising  the  importance  of  accident  investigation,  the  EU  adopted  Directive 
94/56/EC while Directive 2003/42/EC on occurrence reporting was adopted in 2003. 

They significantly contributed to harmonisation accident prevention. 

2.2. 

Need for change 

The current Community system functions below optimum. Directive 94/56/EC, now 
15 years old, no longer meets the requirements of the EU and of the MS: 

(1) 

(2) 

(3) 

(4) 

(5) 

There  is  more  divergence  in  the  investigating  capacity  of  the  MS  than  in 
1994, notably due to the EU enlargements of 2004 and 2007; 

Aircraft  are  becoming  increasingly  complex  and  accident  investigation 
requires more expertise and resources; 

The EU common aviation market grew both in size and complexity in the last 
decade; 

This increase in the complexity of the single aviation market also called for 
increased 
in  aviation  safety  and 
establishment of EASA;  

responsibility  of 

the  Community 

The EU and its MS gained significant practical experiences since 1994, which 
should be used to strengthen the current system; 

2.3. 

Specific problems 

Lack of a uniform investigating capacity  

1 
2 
3 

4 

OJ L 319, 12.12.1994, p.14. 
OJ L 167, 4.7.2003, p.23. 
Final report of the Group of experts to advise the Commission on a strategy to deal with accidents in the 
transport  sector,  Brussels  3.7.2006;  it  was  established  on  the  basis  of  the  Commission  Decision 
EC/425/2003, OJ L 144, 12.06.2003, p. 10-11. 
The  programme  was  launched  in  January  2007  as  part  of  the  Better  Regulation  Strategy  of  the 
Commission. 

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Although  the  EU  as  a  whole  has  enough  investigating  capacity,  the  resources 
available  are  not  used  efficiently.  Smaller  MS  lack  appropriate  resources  and  the 
experience  and  qualifications  of 
the  National  Safety 
Investigation Authorities (NSIAs) is also not uniform. 

investigators  and  of 

Tensions between safety investigations and other proceedings 

Although  the  principle  of  independent  safety  investigations  is  accepted  and 
recognised in principle, there are tensions between the NSIAs and judicial authorities 
and  the  independent  status  of  the  investigation  and  the  protection  of  collected 
sensitive information cannot be always guaranteed. 

Unclear role of the Community in safety investigations 

An  issue  of  fundamental  importance  is  the  role  of  the  Community  in  accident 
investigation. EASA, which carries out on behalf of the MS the functions and tasks 
of  the  State  of  Design,  Manufacture  and  Registry  when  related  to  design  approval 
was established in 2002. This increased significantly the role and responsibilities of 
the Community in aviation safety. 

These  changes  affect  the  division  of  responsibilities  between  the  MS  and  the 
Community,  but  their  consequences  were  not  reflected  so  far  in  the  way 
investigations are organised. As confirmed by a recent audit of the International Civil 
Aviation Organisation of EASA, this creates unacceptable safety risks, in particular 
since the Agency is responsible for certifying aircraft. 

Weaknesses in implementation of safety recommendations 

There is still no consistent approach in the EU to the processing and implementation 
of  safety  recommendations  resulting  from  investigations.  There  is  no  common 
requirement  for  recording  the  responses  and  monitoring  the  progress  of  the  action 
taken in response to a safety recommendation. 

Assistance to the families of the victims of air accidents and their families 

While air crashes in commercial aviation are relatively rare, once they occur a large 
umber  of  victims  may  be  involved.  The  victims  and  their  families  should  receive 
appropriate  assistance.  Therefore,  planning  is  necessary  to  ensure  that  the  needed 
assistance does not overwhelm the available resources. 

In addition if proper procedures are not implemented and regularly tested, it may be 
difficult  to  ensure  rapid  availability  of  lists  of  "all  souls  on  board",  essential  in 
facilitating search and rescue, identification and notification of the families. 

3. 

ANALYSIS OF SUBSIDIARITY 

The  Community  competence  to  regulate  accident  investigation  and  occurrence 
reporting  was  established  by  Directives  94/56/EC  and  2003/42/EC.  Further 
intervention  would  be  justified  only  if  the  proposed  action  could  not  be  achieved 
sufficiently by the MS.  

Community action is both necessary and justified to: 

–  Ensure the necessary uniformity of action needed in aviation safety; 

–  Allow  to  address  the  institutional  inefficiencies,  i.e.  clarification  of  the  role  of 

EASA and the Commission in accident investigation; 

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3.1. 

The added value of the Community Action 

Community action would bring additional benefits by: 

–  Increasing the investigation capacity of the EU; 

–  Reducing tensions between the authorities involved in the investigation; 

–  Updating the regulatory framework for investigation; 

–  Strengthening uniform implementation of safety recommendations; 

–  Strengthening the protection of the rights of victims and their families; 

3.2. 

The proportionality of the Community action 

Any  Community  intervention  should  be  proportionate  and  addressing  only  the 
problems which cannot be adequately solved by the MS.  

Given  the  limitations  in  the  investigating  capacity  of  NSIAs,  both  Community  and 
national  resources  should  focus  on  investigation  of  events  from  which  the  biggest 
safety benefits can be obtained. 

4. 

OBJECTIVES OF THE INITIATIVE 

The objective of the presented policy options is the enhancement of aviation safety, 
in  line  with  the  strategic  goals  set  out  in  the  Mid-term  review  of  the  EC’s  2001 
Transport White Paper. 

Accident  investigation  also  requires  legal  certainty.  When  an  accident  happens  the 
roles and rights and obligation of all the parties have to be known in advance. One of 
the important objectives of the Community should be thus to strengthen the required 
legal certainty. 

To reveal all circumstances of an accident, the NSIA must be objective, impartial and 
able to withstand political or other interference or pressure. Its only objective should 
be the enhancement of safety, and the investigation should be independent from any 
other proceedings which could conflict with this objective. Thus, it is important that 
the  principle  of  independence of  investigations  is  fully  respected  by  all  the  options 
analysed in this IA. 

5. 

POLICY OPTIONS 

The Impact Assessment analyses four possible options: 

Option 1 "Baseline Scenario - Do Nothing" 

This option is a reference scenario, whereby no new actions would be taken beyond 
the  already  ongoing  initiatives.  .  Based  on  the  evidence  available,  such  a  scenario 
would  not  allow  to  meet  any  of  the  policy  objectives  and  would  not  be  acceptable 
from the public safety point of view. 

Option 2 "Promotion of voluntary cooperation" 

Under this option the Community would promote voluntary cooperation between the 
NSIAs. This would not involve new legislative action. 

It is based on the resources of the MS and the experiences of the informal grouping 
of the NSIA (“the Council of European Aviation Safety Investigation Authorities”). 
The Commission would engage in a dialogue with this grouping. Specific support of 

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the Commission could be provided through an annual grant to manage a number of 
central  functions,  e.g.  a  mechanism  for  sharing  of  resources  or  coordination  of 
training. 

Option 3 "European Network of Civil Aviation Safety Investigation Authorities" 

This option, similarly to the previous one, would be based on promotion of voluntary 
cooperation and resources available in the MS. However, in this case the mandate of 
the grouping of the NSIAs, transformed into a European Network of Civil Aviation 
Safety  Investigation  Authorities  ("the  Network"),  would  be  embedded  in  a  legally 
binding framework.  

"The Network" would contribute to greater uniformity and better implementation of 
the  Community  accident  investigation  legislation.  It  would  retain  an  independent 
status  and  its  mandate,  strictly  described  in  the  Regulation,  would  be  limited  to 
advisory and coordination tasks.  

"The  Network",  would  constitute  a  body  pursuing  an  aim  of  general  European 
interest,  allowing  the  Community  to  support  its  activities  with  an  annual  grant 
awarded subject to an annual work programme agreed with the Commission. 

This  option  would  allow  addressing  the  drawbacks  of  a  solution  based  solely  on 
voluntary  cooperation,  and  notably  the  lack  of  legal  certainty.  This  would  better 
protect  sensitive  safety  information,  define  the  mutual  rights  and  obligations  of 
NSIAs  and  EASA  and  establish  uniform  requirements  for  the  processing  of  safety 
recommendations. 

Option 4 “European Civil Aviation Safety Board" 

The  last  option  to  address  the  issues  identified  in  2  above  would  be  to  establish  a 
European Civil Aviation Safety Board ("the ESB"). 

The  ESB  would  be  established  as  a  Community  agency  for  accident  investigation, 
similar to the U.S. National Transportation Safety Board. It would actually conduct 
investigations in the EU and participate in investigations in third countries. 

Under  this  option  the  NSIAs  would  be  either  replaced  by  the  ESB  or  the  NSIAs 
would  be  responsible  only  for  investigation  of  smaller  accidents  of  private  aircraft, 
and acting as national offices of the ESB, thus providing a link with local authorities. 

6. 

ASSESSMENT OF IMPACTS 

Option 2 "Promotion of voluntary cooperation" 

This  option  relies  on  the  existing  cooperation  between  the  NSIAs.  It  does  not 
establish  new  Community  structures  and  builds  on  the  available  resources.  The 
implementation risks and administrative burden of this option is thus expected to be 
negligible.  The  mechanism  for  sharing  of  resources,  or  coordination  of  training  on 
specific  issues  is  expected  to  bring  savings  and  economies  of  scale  and  reduce  the 
overall  costs  of  NSIAs  without  involving  additional  costs  or  administrative  burden 
for the industry. 

Option 3"European Network of Civil Aviation Safety Investigation Authorities" 

Similarly to the previous option, the establishment of “the Network”, although in this 
case  enshrined  in  law,  would  not  necessitate  establishment  of  new  structures  or 
significant additional administrative burden for the Community, NSIAs or industry. 

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It would be based on the existing informal cooperation and resources of the MS. The 
main  cost  for  the  Community  budget  would  be  the  annual  grant  to  support  "the 
Network". 

Although  some  additional  costs  and  administrative  burdens  are  expected  as 
compared to  the previous option, its implementation option should result in overall 
net  savings  for  the  MS  thanks  to  the  establishment  of  a  central  mechanism  for 
sharing of resources, coordination of training and closer cooperation and exchange of 
data. This option would also provide more legal certainty in issues such as support of 
MS in accident investigation, access to information and responsibilities of the parties 
involved in the investigation.  

Compared  with  the  previous  option,  the  establishment  of  “the  Network”  would 
provide for additional benefits, by enshrining a number of important principles in a 
legally binding framework and giving a clear mandate to “the Network”. 

Option 4“European Civil Aviation Safety Board" 

This  scenario  would  involve  the  most  significant  overhaul  of  the  existing  system. 
Investigation  of  all  major  accidents  would  be  performed  by  a  single,  independent, 
specialised  body.  However,  it  is  also  characterised  by  the  highest  implementation 
risks and cost for the Community budget. It would necessitate a substantial overhaul 
of the regulatory framework and establishment of a new Community Agency. 

The  administrative  burden  associated  with  this  option  would  be  also  substantially 
higher than for the previous options (obligation to fulfil all the  requirements of the 
EU law related to financial issues, staffing policy, internal audit, procurement policy 
etc). This option would however offer the biggest savings for the MS. 

It is difficult to assess if implementation of this option would not be hampered by the 
fact that the ESB would have to operate in 27 different jurisdictions, having in mind 
the close link between judicial procedures and accident investigations and the need 
for  the  investigators  to  work  in  close  cooperation  with  the  local  law  enforcement 
authorities. 

These risks could be mitigated by having the ESB assisted by NSIAs which would 
act as its regional offices. This would however increase the costs of this option. 

7. 

COMPARISON OF OPTIONS 

7.1. 

Overview 

Option  2  offers  moderate  safety  benefits  at  a  reasonable  cost  for  the  Community 
budget,  while  offering  savings  for  the  MS.  The  administrative  burden  of 
implementation of this option is negligible. It also does not impose additional costs 
on the industry. 

Option  3  offers  additional  safety  benefits  as  compared  to  promotion  of  voluntary 
cooperation. However it is also characterised by additional implementation risks. The 
costs of implementation for the Community budget are comparable to "Promotion of 
Voluntary Cooperation". The administrative burden and the costs for the MS may be 
however higher than for the previous scenario. 

The  last  option  offers  the  highest  safety  benefits  as  compared  to  the  other  two 
options.  However,  it  is  characterised  by  the  risks  and  costs  for  the  Community 

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budget. Although the administrative burden involved in this option is expected to be 
the highest, it is also envisaged that it would bring the biggest savings for the MS. 

Criteria 

Weighting 

Criteria 

Weighting 

Safety impacts 

√ = 4 points 

Economic, social and environmental impacts 

√ = 1 point 

Implementation 
Risks 

-√ = - 2 points 

Impact on fundamental rights 

√ = 1 point 

"Voluntary cooperation" 

"the Network" 

"ESB" 

Safety benefits 

Implementation risks 

Economic, 
environmental impacts 

social 

and 

Impact  on 
rights 

fundamental 

√ (4) 

0 

√ (1) 

√ (1) 

√√ (8) 

√√√ (12) 

- √√ (-4) 

- √√√√ (-8) 

√√ (2) 

√√ (2) 

√√√ (3) 

√√√ (3) 

Annual 
Community 

costs 

for 

the 

600.000€ (small) 

600.000€ (small) 

Annual costs for the MS 

Expenditures up to 
600.000€ for all the MS 
(co-financing of the grant) 

√ (net savings) 

Expenditures up 
to 600.000€ for 
all the MS (co-
financing of the 
grant) 

√ (net savings) 

around 40 million € 
(high) 

√√ to √√√ (net savings) 

Costs for the industry 

0 

0 

0 

Administrative burden 

0 (negligible) 

√ (small) 

√√ (moderate) 

7.2. 

Option with the biggest added value 

Option  3,  "Establishment  of  the  European  Network  of  Civil  Aviation  Safety 
Investigation  Authorities" has the biggest added value for the Community.  It is  the 
most  proportional  option,  fully  respecting  the  principle  of  independence  of  safety 
investigations  and  allowing,  without  establishing  new  Community  structures,  to 
enhance the efficiency of accident investigation in the EU. 

This  option  addresses  the  problem  areas  identified,  without  going  beyond  what  is 
strictly necessary. It can be implemented with relatively low cost for the Community, 
and  is  expected  to  reduce  the  costs  of  the  MS  while  resulting  in  little  additional 
administrative burden. 

By  lending  supporting  to  the  existing  voluntary  cooperation  between  NSIAs,  it  is 
also  expected  to  have  support  from  the  stakeholders  and  MS.  The  regulatory 
elements  of  this  option,  enshrined  in  the  Regulation,  were  also  supported  in  the 
public consultations and by the "Group of Experts". 

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There  are  limited  implementation  risks,  notably  when  compared  to  option  4,  not 
expected to jeopardise the envisaged policy objectives. 

This  option,  by  relying  on  co-regulation  and  support  for  voluntary  cooperation,  is 
also in line with the EU objectives of "Better Regulation". . 

8. 

MONITORING AND EVALUATION 

Indicators and methods allowing to measure progress towards the achievement of the 
desired  objectives  under  the  preferred  option  will  need  to  be  established  including 
indicators such as the level of support provided by the central mechanism for sharing 
of  resources  or  the  number  of  safety  recommendations  registered/closed  in  the 
central database. 

The administrative burden associated with these reporting obligations is not expected 
to be high. MS already provide to the Commission most of the information, including 
occurrence reports and final reports from the investigations. 

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