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 - Impact assessment {COM(2009) 611 final} {SEC(2009) 1478}
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) 1477 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 

IMPACT ASSESSMENT 

{COM(2009) 611 final} 
{SEC(2009) 1478} 

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TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

2. 

Procedural issues and consultation of interested parties .............................................. 4 

Context of the Impact Assessment............................................................................... 4 

Ex-Ante Evaluation...................................................................................................... 4 

Public consultations ..................................................................................................... 5 

Impact Assessment Board ............................................................................................ 6 

Background – Air Safety and Accident Investigation.................................................. 6 

2.1. 

Air Safety in the EU..................................................................................................... 6 

2.1.1.  Social and economic costs of air accidents .................................................................. 8 

2.2. 

The need for independent accident investigation and occurrence reporting................ 8 

2.2.1.  Organisation of accident investigation and the parties involved ................................. 9 

2.2.2.  Role of occurrence reporting in civil aviation............................................................ 10 

2.3. 

Current regulatory framework for accident investigation and occurrence reporting in 
the EU......................................................................................................................... 11 

2.3.1.  Civil aviation accident investigation.......................................................................... 11 

2.3.2.  Occurrence reporting in civil aviation........................................................................ 13 

3. 

3.2. 

3.3. 

Problem Definition - The need for change................................................................. 13 

Lack of a uniform investigating capacity in the EU .................................................. 14 

Tensions between safety investigations and other proceedings................................. 16 

3.3.1.1.  Cooperation between the authorities involved in accident investigation................... 18 

3.3.1.2.  Protection of sensitive safety information.................................................................. 19 

3.4. 

Unclear role of the Community in safety investigations............................................ 21 

3.5.  Weaknesses in implementation of safety recommendations...................................... 26 

3.6. 

Protection of the rights of air crash victims and their families .................................. 28 

3.7.  Who is affected, in what ways, and to what extent? .................................................. 30 

3.8. 

Does the EU have the right to act?............................................................................. 31 

3.8.1.  The added value of Community Action ..................................................................... 32 

3.8.2.  The proportionality of the Community action ........................................................... 32 

4. 

5. 

6. 

6.1. 

6.2. 

6.3. 

6.4. 

Objectives................................................................................................................... 33 

Policy options............................................................................................................. 36 

Analysis of impacts .................................................................................................... 51 

Introduction and rating of impacts ............................................................................. 51 

Safety impacts related to identified problem areas .................................................... 51 

Economic, social and environmental impacts............................................................ 52 

Impacts on fundamental rights ................................................................................... 53 

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6.5. 

6.6. 

7. 

8. 

Geographical scope of impacts including on international relations ......................... 53 

Risk analysis............................................................................................................... 54 

Cost-efficiency and administrative burden ................................................................ 55 

Comparing the options ............................................................................................... 58 

8.1.  Which method was applied and how impacts have been weighted? ......................... 58 

8.2. 

Results of the weighting between the policy options................................................. 59 

8.3.  Which of the policy options has the biggest added value? ........................................ 59 

9. 

Monitoring and evaluation ......................................................................................... 60 

9.1. 

Indicators and methods for the monitoring of the preferred policy option ................ 60 

Annexes...................................................................................................................... 64 

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1. 

1.1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

Context of the Impact Assessment 

Lead DG: Directorate-General for Energy and Transport 

Agenda  planning:  This  proposal  is  listed  in  the  Commission’s  Legislative  Work 
Programme under reference 2009/TREN/004. Preparation of this Impact Assessment 
(IA) report was assisted by an inter-service steering group created in April 2009 to 
which  all  the  interested  Directorates-General  of  the  Commission  were  invited  to 
participate.  The  European  Aviation  Safety  Agency  was  also  regularly  consulted  in 
the course of the drafting of this proposal. 

This  IA  analyses  different  policy  options  for  better  efficiency  in  civil  aviation 
accident investigation and prevention in the European Union (EU).1 It was prepared 
to assist the Commission in taking a policy decision as to the need and direction of 
the  revision  of  Council  Directive  94/56/EC  of  21  November  1994  establishing  the 
fundamental  principles  governing  the  investigation  of  civil  aviation  accidents  and 
incidents2  (Directive  94/56/EC)  and  Directive  2003/42/EC  of  the  European 
Parliament  and  of  the  Council  of  13  June  2003  on  occurrence  reporting  in  civil 
aviation3  (Directive  2003/42/EC),  as  envisaged  in  the  Commission  Legislative  and 
Work Programme for 2008.4 

This  IA  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),  which  is  attached  as  Annex  I,5  expert  studies  and  reports,  consultations 
with  Member States (MS) and interested stakeholders, as well as recommendations 
addressed  to  the  Commission  within  the  context  of  the  Commission's  "Action 
Programme for Reducing Administrative Burdens".6 A list of studies, documents and 
literature used for the purpose of this IA is attached as Annex II. 

Data gathered for the purpose of this IA is considered as constituting a good basis for 
assessing  different  policy  options  for  the  revision  of  Directive  94/56/EC  and 
Directive 2003/42/EC. 

1.2. 

Ex-Ante Evaluation 

The  preferred  policy  option  identified  in  this  IA  involves  mobilisation  of  certain 
Community resources. In this respect, this IA meets all the requirements as set out in 
Article 21(1) of the implementing rules to the Financial Regulation applicable to the 
general budget of the European Communities, and in accordance with the principle 

1 

2 
3 
4 
5 

6 

This IA deals with investigation of accidents in civil aviation only. Investigation of accidents of State 
aircraft is usually conducted by separate State services, outside the scope of the EU common transport 
policy. 
OJ L 319 of 12.12.1994, p.14. 
OJ L 167 of 4.7.2003, p.23. 
COM(2007)640 final 
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;  The  Group  of  experts  was  established  on  the  basis  of  the 
Commission Decision EC/425/2003, OJ L 144 12.06.2003, pp. 10-11 
The  programme  was  launched  in  January  2007  as  part  of  the  Better  Regulation  Strategy  of  the 
Commission. 

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of  the  sound  financial  management  serves  as  an  ex-ante  evaluation  within  the 
meaning of that Article.7 

1.3. 

Public consultations 

This IA was preceded by consultations with the interested stakeholders, authorities of 
the  MS  and  the  general  public.  The  general  principles  and  minimum  standards  for 
consultation of the interested parties by the Commission were respected.8 The public 
consultations were opened on the 5th of January 2007 on the "Your Voice in Europe" 
internet website and closed after 8 weeks, on 2nd March 2007.  

The  Commission  also  relied  on  the  results  of  an  external  impact  assessment  study 
finalised  in  July  2007  by  ECORYS  Nederland  BV  and  National  Aerospace 
Laboratory NLR.9 The study took into account the results of the public consultations 
on the internet as well as the input from: 

(1) 

(2) 

A  detailed  questionnaire  distributed  directly  by  the  external  consultant  to  a 
large number of interested stakeholders; 

A number of interviews conducted by the external consultant with a limited 
number of interested stakeholders constituting a representative sample; 

The results of the public consultations on the internet and conclusions of the external 
IA study were presented by the Commission on 31st January and 1st February 2008, 
during a meeting with the MS authorities and the interested stakeholders.  

The  input  received  in  the  course  of  the  public  consultations  and  the  results  of  the 
external  IA  study  were  taken  into  account  in  the  analysis  of  the  different  policy 
options presented in this IA. 

In  total  22  replies  were  submitted  in  response  to  the  public  consultations  on  the 
internet. In addition, 87 replies were submitted in response to the questionnaire sent 
out by the external consultant. The list of stakeholders and authorities consulted for 
the purpose of this IA, as well as the summary of responses received are attached as 
Annexs  III  and  IV.  The  results  of  the  consultations  are  also  available  on  the 
internet.10 The results of the pubic consultations can be summarised as follows: 

(1) 

(3) 

All  respondents  either  fully  or  partially  agreed  that  there  are  currently 
shortcomings in civil aviation accident investigation and occurrence reporting 
in Europe; 

A  limited  number  of  respondents  were  of  the  opinion  that  no  additional 
legislative action should be taken at the EU level for the time being; 

(4)  Majority  of  the  respondents  argued  that  it  is  too  early  to  consider  a 
comprehensive revision of Directive 2003/42/EC and the that focus should be 

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8 

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10 

Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules 
for  the  implementation  of  Council  Regulation  (EC,  Euratom)  No  1605/2002  on  the  Financial 
Regulation applicable to the general budget of the European Communities (OJ L 248 16.9.2002, p.1.)  
Communication  from  the  Commission  Towards  a  reinforced  culture  of  consultation  and  dialogue  - 
General  principles  and  minimum  standards  for  consultation  of  interested  parties  by  the  Commission, 
Brussels 11.12.2002, COM(2002)704 
Impact Assessment on the modification of Directives 94/56/EC and 2003/42/EC (Framework Contract 
for Ex-ante evaluations and Impact Assessments, TREN/A1/46-2005), Final Report, Rotterdam 20 July 
2007 (not available on the internet); 
http://ec.europa.eu/transport/air/consultations/2007_03_02_directive_1994_56_en.htm 

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on  improving  the  efficiency  of  the  regulatory  framework  for  civil  aviation 
accident investigation; 

(5)  Majority  of  all  groups  of  respondents,  with  the  exception  of  the  National 
Safety Investigation Authorities (NSIAs), favoured a policy option whereby a 
common  regulatory  framework  and  a  set  of  central  functions  for  accident 
investigation would be established at the EU level; 

(6) 

(7) 

NSIAs  favoured  a  revision  of  the  current  regulatory  framework  for  civil 
aviation  accident  investigation,  while  at  the  same  time  being  of  the  opinion 
that  improved  efficiency  could  be  achieved  through  better  coordination  and 
promotion of voluntary cooperation; 

Opinions  varied  considerably  as  to  the  added  value  of  a  single  European 
safety  investigation  authority.  Most  of  the  respondents  representing  MS 
authorities  indicated  that  this  policy  option  is  not  feasible  in  the  current 
situation, whereby some argued that it could be a good option for the future. 
On the other side, majority of the respondents representing the manufacturing 
industry favored this policy option; 

1.4. 

Impact Assessment Board 

The draft of this IA was submitted to the Impact Assessment Board (the Board) for 
its  opinion  on  24  June  2009.  The  Board  requested  resubmission  of  the  report  and 
made  a  number  of  recommendations  for  improvement.  A  revised  version  of  the  IA 
report was submitted to the Board on 20 July. The Board issued its second opinion 
on the 26 August 2009.  

This IA takes into account the recommendations of the Board expressed in both its 
opinions. In particular, following re-assessment of the costs and benefits involved in 
the  implementation  of  all  the  policy  options  originally  proposed,  as  well  as  the 
analysis  of  the  legal  status  and  functions  of  the  various  organisational  structures 
considered,  this  IA  advocates  the  establishment  of  a  “European  Network  of  Civil 
Aviation Safety Investigation Authorities”. This policy option relies on promotion of 
voluntary cooperation and does not envisage establishment of any new Community 
bodies. It allows meeting the envisaged policy objectives in a proportionate and cost-
efficient manner. 

2. 

BACKGROUND – AIR SAFETY AND ACCIDENT INVESTIGATION 

2.1. 

Air Safety in the EU 

Air transport in the EU can be considered as one of the safest forms of travel. Thanks 
to  the  concerted  efforts  of  the  regulators  and  the  industry,  the  average  rate  of  fatal 
accidents between 2001 and 2008 and involving transport category aircraft registered 
in the EU MS (plus Norway, Iceland, Liechtenstein and Switzerland11) decreased to 
3.6  per  10  million  flights.12  This  is  a  good  level  of  safety  in  global  terms  but  still 
inferior when compared to regions such as North America or East Asia. 

In  2008  there  were  about  1220  accidents  reported  to  the  European  Aviation  Safety 
Agency  (EASA)  and  involving  civil  aircraft  registered  in  the  EU/EEA/EFTA 
Member  States  –  vast  majority  of  them  accidents  of  small  general  aviation  aircraft 

11 
12 

Hereinafter referred to as EEA/EFTA MS (European Economic Area/European Free Trade Association) 
EASA, Annual Safety Review 2008, http://www.easa.eu.int/ws_prod/g/g_sir_review.php  

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below 2.250 kg MTOM.13 If only bigger aircraft of MTOM above 2.250 kg are taken 
into  account,  the  average  annual  number  of  accidents  involving  civil  aircraft 
registered in the EU/EEA/EFTA Member States in the period 1997 – 2008 could be 
estimated at 72. 

Figure I: Accidents of EU/EEA/EFTA registered aircraft of MTOM over 2.250 kg 

CAT 
Aeroplanes 

CAT 
Helicopters 

GA/AW 
 Aeroplanes 

GA/AW 
Helicopters 

Total 

1997–2006 (avg) 

32 (avg) 

8 (avg) 

22(avg) 

10 (avg) 

72 (avg) 

2007 

2008 

37 

35 

7 

8 

18 

24 

12 

8 

74 

75 

Source: European Aviation Safety Agency, Annual Safety Review 2008 

However,  in  the  context  of  the  increasing  complexity  of  the  European  aviation 
market and constant traffic growth, which is expected to double by 2030 compared to 
2007 figures,14 there are concerns that the number of accidents may increase.15 

infrastructure  or  deficient  regulatory  frameworks.  Reports  of 

Also, beyond the challenges that we are facing in the EU, Community operators are 
exposed  to  increased  safety  risks  when  operating  to  regions  with  underdeveloped 
aviation 
the 
International  Civil  Aviation  Organisation  (ICAO)  indicate  that  the  average 
worldwide level of implementation of international safety standards in civil aviation 
is  estimated  at  only  57%.16  The  EU  considers  that  at  least  12  non-EU  countries  do 
not have the capacity necessary to ensure proper safety oversight in accordance with 
their  obligations  under  the  Convention  on  International  Civil  Aviation17  (Chicago 
Convention).18 

Safety  therefore  can  never  be  taken  for  granted  and  constant  effort  is  needed  to 
maintain its high level in the constantly changing operational and economic context 
of  the  global  air  transport  industry.  In  this  respect  the  Singe  European  Sky  II  was 
launched by the Commission and the remit of EASA and of Community legislation 
was recently extended to safety aspects of aerodrome operations and provision of air 
navigation services and air traffic management (ANS/ATM)19. By 2012, the EU will 
also  adopt  a  comprehensive  set  of  implementing  rules  on  licensing  of  flight  crews 
and  safety  of  air  operations.20  The  EU  is  also  actively  engaged  in  strengthening 

13 

14 

15 

16 

17 
18 
19 

20 

Maximum  Take  Off  Mass  (the  heaviest  weight  at  which  the  aircraft  has  been  shown  to  meet  all  the 
airworthiness requirements applicable to it) 
Challenges of Growth 2008, Eurocontrol, Air Traffic Statistics and Forecasts 
http://www.eurocontrol.int/statfor/public/subsite_homepage/homepage.html 
Report  of  the  High  Level  Group  for  the  Future  European  Aviation  Regulatory  Framework,  Brussels, 
July 2007 (http://ec.europa.eu/transport/air/doc/hlg_2007_07_03_report.pdf) 
Commission's  analysis  of  the  ICAO  Universal  Safety  Oversight  Audit  Programme  (USOAP)  reports 
(10.08.2009); 
Convention on International Civil Aviation, signed in Chicago on 7 December 1944, ICAO Doc. 7300/8 
List of airlines subject to operating restrictions: http://ec.europa.eu/transport/air-ban/list_en.htm 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions - Single European sky II: towards 
more sustainable and better performing aviation, Brussels, 25.6.2008, COM(2008) 389 final 
Regulation  (EC)  216/2008  of  the  European  Parliament  and  of  the  Council  of  20  February  2008  on 
common  rules  in  the  field  of  civil  aviation and  establishing  a  European Aviation  Safety  Agency,  and 

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aviation safety oversight at an international level, notably through a regular dialogue 
with ICAO and technical cooperation projects with third countries. 

2.1.1. 

Social and economic costs of air accidents 

No matter what transport mode, accidents always reduce confidence in the safety of 
the transport system. They can lead to death or injury, cause environmental damage, 
and  likely  to  have  serious  commercial  and  financial  consequences.  They  can  also 
lead to civil or criminal litigations and affect professional careers. 

It is difficult to precisely quantify the cost of air accidents in the EU due to lack of 
comprehensive studies in this respect. A study conducted in 2006 by the Australian 
Department of Transport and Regional Services concluded that the estimated cost of 
each fatality occurred in civil aviation in 2004 in Australia was in the magnitude of 
$2.17 million (€1,56 million).21 Research undertaken in the past in the EU22 resulted 
in similar values of €1–2 million for the Value of Statistical Life (VOSL23). Thus, the 
order of magnitude for the VOSL lost in air accidents in Europe in the period 1997 – 
2008 (accidents of civil aircraft registered in the EU/EEA/EFTA MS with a MTOM 
above 2.250kg) can be estimated at €276 million per annum (Figure II). 

Figure  II:  Number  of  fatalities  involved  in  accidents  of  EU/EEA/EFTA  registered 
aircraft with MTOM above 2.250 kg. 

CAT 
Aeroplanes 

CAT 
Helicopters 

GA/AW 
 Aeroplanes 

GA/AW 
Helicopters 

Total 

1997–2006 (avg) 

106 (avg) 

12 (avg) 

17 (avg) 

6 (avg) 

141 (avg) 

2007 

2008 

26 

162 

7 

4 

8 

22 

11 

5 

52 

193 

Source: European Aviation Safety Agency, Annual Safety Review 2008 

2.2. 

The need for independent accident investigation and occurrence reporting 

Independent investigations of accidents are essential in the drive to improve transport 
safety.  Analysis  of  the  circumstances  of  accidents  leads  to  recommendations  being 
made to prevent these dramatic events from re-occurring. 

Accidents rarely result from a single failure but rather from a combination of events - 
for example, an error in maintenance that causes a failure in flight that a member of 
the flight crew then responds to incorrectly. In other words, accidents result from a 
chain  of  events  that  make  them  difficult  to  analyze  but  also  provide  multiple 

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23 

repealing  Council  Directive  91/670/EEC,  Regulation  (EC)  No  1592/2002  and  Directive  2004/36/EC 
(OJ L 79, 19.03.2008, p. 1.)  
Cost  of  Aviation  Accidents  and  Incidents,  Bureau  of  Transport  and  Regional  Economics  report  113, 
Commonwealth of Australia 2006. 
Impact Assessment Guidelines, European Commission 
The VOSL research method does not measure the value of life per se, which is priceless and cannot be 
monetised. Instead it puts a monetary value on the willingness of individuals to accept slightly higher or 
lower level of risk. 

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opportunities  to  prevent  them.  If  any  link  in  the  fatal  chain  is  removed  than  the 
accident can be avoided.24  

Thus, beyond accident investigation, the crucial element in prevention of accidents is 
open reporting and careful analysis of even the smallest incidents, failures and other 
occurrences  in  daily  operations  which  may  indicate  the  existence  of  serious  safety 
hazards, and which if not corrected may lead to subsequent accidents. 

2.2.1.  Organisation of accident investigation and the parties involved 

Due  to  international  character  of  civil  aviation,  involvement  of  many  States  in 
accident investigation is a common situation, and the success of the process depends 
on the ability of all the States concerned to cooperate efficiently. 
Unless the conduct of the investigation was delegated, the State of Occurrence25 will 
institute the investigation and its NSIA will appoint the investigator-in-charge (IIC), 
responsible for the overall supervision of the investigation. The IIC will rely on the 
teams of experts in various areas of expertise. Each team will collect data related to 
its  domain  under  the  supervision  of  the  IIC.  The  representatives  from  foreign 
countries  (in  particular  the  State  of  Design26,  Registry27,  Manufacture28  and 
Operator29)  will  also  participate  in  the  investigation  by  appointing their "accredited 
representatives" who may be accompanied by technical advisors, in particular from 
the  airline,  design  organisation,  manufacturer  or  a  foreign  aviation  authority  as 
appropriate  (Figure  III).30  Other  States  having  an  interest  in  the  investigation  may 
also participate on a case by case basis.31 

Although  organisation  of  accident  investigation  may  vary  in  detail  from  State  to 
State, the process is usually structured along the three main phases. In the first phase 
the  investigation  team  conducts  examinations  at  the  crash  site.  After  the  on-scene 
examination of the wreckage is completed further studies and examinations may be 
undertaken,  including  the  read-outs  of  the  flight  recorders  ("black  boxes"), 
reconstruction of a part of the wreckage, autopsies, simulations and the overview of 

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25 
26 

27 
28 

29 

30 

31 

One  of  the  best  known  concepts  of  accident  causation  in  complex  organisations  as  employed  in  civil 
aviation  (or  any  other  complex  system)  accident  investigation  was  developed  in  1997  by  Professor 
James  T.  Reason.  According  to  this  model,  accidents  require  the  coming  together  of  a  number  of 
enabling factors — each one necessary, but in itself not sufficient to breach system defences. Because 
complex  systems  such  as  aviation  are  extremely  well-defended,  single-point  failures  are  rarely 
consequential in aviation (Reason, J.T. Managing the risks of organizational accidents, Aldershot 1997; 
Safety Management Manual (SMM), ICAO Doc. 9859, Second Edition 2009 Montreal). 
The State in the territory of which an accident or incident occurs (Annex 13 to the Chicago Convention) 
The  State  having  jurisdiction  over  the  organisation  responsible  for  the  type  design  (Annex  13  to  the 
Chicago Convention) 
The State on whose registry the aircraft is entered (Annex 13 to the Chicago Convention) 
The  State  having  jurisdiction  over  the  organisation  responsible  for  the  final  assembly  of  the  aircraft 
(Annex 13 to the Chicago Convention) 
The State in which the operator's principal place of business is located or, if there is no such place of 
business, the operators permanent residence (Annex 13 to the Chicago Convention) 
According to Annex 13 to the Chicago Convention, "an accredited representative is a person designated 
by a State, on the basis of his or her qualifications, for the purpose of participating in an investigation 
conducted by another State". 
Annex 13 to the Chicago Convention stipulates that any State which on request provides information, 
facilities or experts to the State conducting the investigation shall be entitled to appoint an accredited 
representative to participate in the investigation. The Annex also envisages that any State which has a 
special interest in an accident by virtue of fatalities or serious injuries to its citizens shall, upon making 
a request to do so, be permitted by the State conducting the investigation to appoint an expert.  

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the overall context of the event. Once all the data is gathered, different scenarios are 
built and analysed to determine the probable cause of the accident. If needed, further 
studies and examinations are undertaken to collect supplementary data or verify the 
probability of alternative scenarios. 

Figure III: Principal actors in the accident investigation process 

Briefings and updates will be given by the ICC as the investigation unfolds. Interim 
reports  may  also  be  published  or  immediate  safety  recommendations  issued.  The 
investigation  is  concluded  with  the  publication  of  the  final  report,  determining  the 
probable  cause  of  the  accident  and  specifying  safety  recommendations  to  be  acted 
upon to prevent re-occurrence of similar events in the future. 

2.2.2.  Role of occurrence reporting in civil aviation 

While the role of accident investigation is improvement of safety through analysis of 
serious  events,  occurrence  reporting  aims  to  improve  safety  by  timely  detection  of 
operational  hazards  and  system  deficiencies,  which  if  not  properly  addressed  could 
escalate into much more serious catastrophes in the future. 

In practical terms, occurrence reporting are sophisticated systems which call aviation 
professionals to report, in a protected environment, errors, abnormal events and other 
irregular  circumstances,  and  which  allow  to  analyse  the  data  collected  in  order  to 
draw and disseminate safety lessons and identify safety risks. 

Occurrence reporting is an essential tool in promotion of organisational safety culture 
(“Just  Culture"),  understood  as  a  working  environment  where  "front  line  operators 
or others are not punished for actions, omissions or decisions taken by them that are 
commensurate with their experience and training, but where gross negligence, wilful 
violations and destructive acts are not tolerated".32 

32 

"Just Culture" (JC) Definition and Implementation of a JC Concept, Working Paper (AIG/08-WP/33), 
presented by France on behalf of the European Community and its Member States by the other Member 
States  of  the  European  Civil  Aviation  Conference  and  by  EYROCONTROL),  Accident  Investigation 
and Prevention (AIG) Divisional Meeting, International Civil Aviation Organisation, Montreal 13 – 18 
October 2008. 

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"Just  Culture"  in  general  and  occurrence  reporting  in  particular  take  a  system  wide 
approach to accident prevention and recognise that moving beyond blame is essential 
in enhancing safety in a proactive way – notions which have been confirmed through 
decades of safety and human factors research.33 

2.3. 

Current  regulatory  framework  for  accident  investigation  and  occurrence 
reporting in the EU 

2.3.1.  Civil aviation accident investigation 

Civil  aviation,  although  in  existence  for  a  relatively  short  period  of  time,  when 
compared  to  other  modes  of  transport,  has  well  established  traditions  in  accident 
investigation  and  occurrence  reporting.  The  obligation  to  investigate  accidents  in 
civil  aviation  is  enshrined  in  the  Chicago  Convention,  to  which  all  MS  are  Parties. 
Detailed  standards  and  recommended  practices  in  this  respect,  also  for  occurrence 
reporting,  are  defined  in  Annex  13  to  the  Convention34  and  the  related  guidance 
material.35 

Recognising  the  importance  of  accident  investigation,  the  EU  already  in  1980 
adopted a Directive 80/1266/EEC on cooperation and mutual assistance between the 
Member States in the field of air accident investigation36 (which was the first piece 
of  air  safety  legislation  adopted  in  the  Community).  The  1980  Directive  was 
subsequently  replaced  by  Directive  94/56/EC.  In  addition  Directive  2003/42/EC  on 
occurrence reporting in civil aviation was adopted in 2003. 

By transposing into the Community legislation a number of fundamental principles 
contained  in  Annex  13,  Directive  94/56/EC  significantly  contributed  to  the 
harmonisation of civil aviation accident investigation in the EU. 

Under  Directive  94/56/EC  MS  are  obliged  to  ensure  that  every  accident  or  serious 
incident37 in civil aviation is subject to an investigation by an independent body and 
that  the  only  purpose  of  the  investigation  is  to  prevent  future  accidents  and  not  to 
apportion blame or liability. Investigators have been given additional rights enabling 
them  to  carry  out  their  tasks  in  a  more  efficient  manner  and  the  basic  principles 
concerning publication of reports and dissemination of safety recommendations were 
established. Summary comparison of Annex 13 and Directive 94/56/EC can be found 
in Table I below. 

Table I: Summary comparison of Annex 13 and Directive 94/56/EC 

Issue addressed 

Annex 13 

Directive 94/56/EC 

Scope  

the  State 
Responsibilities  of 
leading  the  investigation  and  of 
the 
participating 
States 

in 

Focused  on  situations  where  a  MS  is 
leading the investigation (either as a State 
of  Occurrence,  or  a  State  of  Registry  or 

33 

34 
35 
36 

37 

For  an  overview  of  the  "Just  Culture"  concept  see  for  example:  S.  Dekker,  Just  Culture:  Balancing 
Safety and Accountability, Ashgate 2008. 
Aircraft Accident and Incident Investigation", 9th edition, July 2001 
In particular "ICAO Manual of Aircraft Accident and Incident Investigation" (Doc 9756) 
Council  Directive  80/1266/EEC  of  16  December  1980  on  future  cooperation  and  mutual  assistance 
between the Member States in the filed of air accident investigation (OJ L 375, 31.12.1980, p.32) 
For  editorial  reasons,  this  IA  report  refers  to  investigation  of  accidents  only  (unless  justified  by  a 
specific context). However, the considerations presented are valid also for the investigation of serious 
incidents and any other incidents if safety lessons are expected to be drawn form the investigation, as 
defined in Directive 94/56/EC. 

EN 

11 

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investigation  through  accredited 
representatives. 

Operator). 

Objective 
investigations 

of 

safety 

Status of the NSIA 

Status of the investigation 

Cooperation  between 
NSIAs 

the 

Final report 

Sole  objective  -  prevention  of 
future  accidents  and  incidents 
and  not  to  apportion  blame  or 
establish liability. 

or 

Judicial 
administrative 
proceedings  to  be  separate  from 
the safety investigation. 

NSIA  to  have  independence  in 
the conduct of the investigation. 

NSIA 
to  have  unrestricted 
authority over the conduct of the 
have 
investigation. 
unhampered 
the 
wreckage and relevant material.  

IIC 
access 

to 

to 

need 

State of Occurrence to recognise 
coordination 
for 
the 
between  the  IIC  and  judicial 
authorities. 

Right  of  the  State  participating 
in  the  investigation  to  request 
protection  of  evidence  pending 
arrival 
accredited 
its 
representative. 

of 

evidence 

State  of  Occurrence  to  protect 
the 
and  maintain 
custody  of  the  aircraft  and  its 
content  for  the  purpose  of  the 
investigation. 

State  may  delegate  the  conduct 
of  the  investigation  (or  part  of 
it),  to  another  State  by  mutual 
consent. 

States  to  cooperate  and  provide 
mutual 
the 
assistance 
investigation. 

in 

Draft  report  and  other  pertinent 
documentation  to  be  protected 
from  unauthorised 
by  States 
disclosure. 

Every  state  participating  in  the 
investigation  has  the  right  to 
comment  on  the  report  and  to 
have  its  comments  appended  if 
not taken into account. 

Report  to  be  issued  as  soon  as 
possible  and  preferably  within 
12 months.  

Sole  objective  –  prevention  of  future 
to 
incidents  and  not 
accidents  and 
apportion blame or establish liability. 

MS  to  ensure  the  investigation  to  be 
and 
carried  out  by 
independent  NSIA.  NSIA 
be 
adequately resourced and staffed. 

a  permanent 
to 

Details  to  be  defined  by  MS  in  their 
national  legislation.  Minimum  rights  of 
investigators  defined  in  the  Directive 
(free access to the accident site, wreckage 
and  recorders,  right  to  examine  witness 
etc).  

Investigators 
judicial authorities where appropriate. 

to  cooperate  with 

the 

NSIA allowed requesting assistance from 
other NSIAs. Assistance to be provided as 
far  as  possible  free  of  charge.  MS  may 
delegate 
an 
the 
investigation to other MS. 

carrying  out  of 

Every  investigation  subject  to  a  report 
appropriate  to  the  type  of  the  event. 
the  shortest 
issued 
Report 
possible  time  and  if  possible  within  12 
months. 

to  be 

in 

EN 

12 

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Safety Recommendations 

Protection 
information 

of 

safety 

Safety  recommendations  to  be 
the 
issued  at  any  stage  of 
investigation.  ICAO  should  be 
informed if ICAO documents are 
involved. 

States  shall  inform  the  issuing 
NSIA  of  the  preventive  action 
taken (or why no action is taken) 

Sensitive  safety  information  to 
be  protected  from  un-authorised 
disclosure  or  use  for  non-safety 
related purposes. 

Where  appropriate,  report  should  contain 
take 
safety  recommendations.  MS 
safety 
into 
consideration,  and  where  appropriate  act 
upon them. 

recommendations 

to 
duly 

Safety 
create presumption of blame or liability. 

recommendations 

should  not 

Not  addressed  specifically  within  the 
Community context. 

Qualifications 
investigators 

of 

Addressed 
material to Annex 13. 

through  guidance 

Not  addressed  specifically  within  the 
Community context. 

Standardisation of NSIAs 

Addressed  at  the  general  level 
ICAO  USOAP 
through 
programme. 

the 

Not  addressed  specifically  within  the 
Community context. 

2.3.2.  Occurrence reporting in civil aviation 

Directive  2003/42/EC,  by  supporting  the  creation  of  safety  occurrence  reporting 
systems,  significantly  contributed  to  the  promotion  of  "Just  Culture"  in  European 
civil aviation. Aviation professionals are now obliged to report occurrences in their 
daily  work  and  provisions  have  been  made  to  ensure  that  the  information  reported 
can  be  exchanged  and  disseminated,  so  that  safety  lessons  can  be  learned.  The 
Directive  obliges  MS  to  ensure  confidentiality  of  the  information,  in  particular  in 
relation  to  the  identity  of  the  reporter.  The  Directive  also  supports  and  encourages 
the MS to promote the establishment of voluntary occurrence reporting systems. 

Directive  2003/42/EC  was  supplemented  with  implementing  rules  establishing  a 
central  repository  of  information  on  civil  aviation  occurrences  exchanged  in 
accordance  with  the  Directive38  and  dissemination  of  the  information  stored  in  the 
occurrence  databases39.  In  2008,  over  41  thousands  occurrences  were  stored  in  the 
central repository. 

3. 

PROBLEM DEFINITION - THE NEED FOR CHANGE 

The  Community  system  for  civil  aviation  accident  investigation  and  occurrence 
reporting as currently established, functions below optimum efficiency. The current 
regulatory  framework  dealing  with  this  subject,  i.e.  Directive  94/56/EC,  which  is 
now already 15 years old, no longer meets the requirements of the Community and 
the Member States. In particular: 

38 

39 

Commission Regulation (EC) 1321/2007 of 12 November 2007 laying down implementing rules for the 
integration  into  a  central  repository  of  information  in  civil  aviation  occurrences  exchanged  in 
accordance with Directive 2003/42/EC of the European and of the Council (OJ L 249, 13.11.2007, p.3). 
Commission Regulation (EC) 1330/2007 of 24 September 2007 laying down implementing rules for the 
dissemination  to  interested  parties  of  information  on  civil  aviation  occurrences  referred  to  in  Article 
7(2) of Directive 2003/42/EC of the European Parliament and of the Council (OJ L 295, 14.11.2007, p. 
7.) 

EN 

13 

   EN 

                                                 
(1) 

(2) 

(3) 

(4) 

There is much more divergence in the investigating capacity of the Member 
States  comparing  to  the  situation  in  1994.  Especially  after  the  recent 
enlargements  of  the  EU  in  2004  and  2007,  the  investigating  capacity  is 
concentrated in a few Member States only; 

Aircraft  and  their  systems  are  becoming  increasingly  complex,  which  also 
means  that  investigation  of  aviation  accidents  requires  substantially  more 
diversified expertise and resources than a decade ago; 

The  EU  common  aviation  market  grew  substantially  both  in  size  (now 
covering 27 Member States) and complexity in the last decade (emergence of 
multi-based  operators,  increasing  reliance  on  outsourcing  of  maintenance, 
multinational  design  and  manufacturing),  which  creates  new  challenges  in 
safety oversight; 

The  increase  in  the  size  and  complexity  of  the  internal  aviation  market  also 
called for increased responsibility of the Community for aviation safety. The 
EU institutional and legal framework changed significantly since the adoption 
of  Directive  94/56/EC.  Safety  standards  are  now  almost  exclusively  defined 
at the EU level and the European Aviation Safety Agency, which on behalf of 
the  Member  States  is  responsible  for  certification  of  aircraft  in  the 
Community, was established in 2002; 

(5) 

The  EU  and  its  Member  States  gained  significant  practical  experiences  in 
application of Directive 94/56/EC. These lessons should be used to strengthen 
the efficiency of the current regulatory system; 

The specific problem areas resulting from the above considerations, and which will 
be further analysed in this IA report, include: 

(1) 

(2) 

(3) 

Lack of a uniform investigating capacity in the EU; 

Tensions between safety investigations and other proceedings; 

Unclear role of the Community in safety investigations; 

(4)  Weaknesses in implementation of safety recommendations; 

(5) 

Lack  of  common  standards  concerning  management  of  passenger  manifests 
and support to the victims of air accidents and their families; 

3.1. 

To what extent are these problems related to the implementation of the current 
regulatory framework? 

The  problems  analysed  in  this  IA  only  to  a  certain  extent  derive  from  the 
inefficiencies  in  the  implementation  of  the  current  regulatory  framework.  As 
indicated above, the problem drivers are more of an institutional and structural nature 
and  relate  to  the  fact  that  major  changes  in  the  organisation  of  the  single  aviation 
market  took  place  since  the  adoption  of  Directive  94/56/EC.  The  severity  of  the 
problems identified also vary across the EU, as for example some MS may be more 
affected  by  lacks  in  their  investigating  capacity,  while  others  by  tensions  between 
safety investigations and other proceedings. 

3.2. 

Lack of a uniform investigating capacity in the EU 

Although  the  EU  as  a  whole  has  enough  investigating  capacity  to  deal  with  any 
major  accident  in  the  Community  or  beyond,  the  resources  available  are  not  used 
efficiently.  Especially  the  smaller  MS  lack  appropriate  means  to  deal  with 

EN 

14 

   EN 

investigation  of  complex  accidents.  The  experience  and  qualifications  of 
investigators and of the NSIAs is also not uniform across the EU. 

Inefficiencies  in  the  use  of  resources  contribute  to  the  difficulty  of  the  NSIAs  in 
meeting  the  recommended  deadlines  for  closing  investigations  and  publication  of 
final reports. Diverging level in experience and training of investigators also prevents 
the EU from having a more uniform level of expertise in accident investigation and 
impacts  on  the  overall  quality  of  safety  investigations  in  some  MS.  The  sharing  of 
resources  between  the  NSIAs,  despite  some  recent  improvements  in  this  respect,  is 
still  mainly  organised  on  an  ad  hoc  basis,  which  may  not  be  sufficient  when  a 
number  of  accidents  occur  in  the  same  period  of  time  and  necessitate  extended 
simultaneous engagement of a few NSIAs. 

From the EU perspective the issue of capacity of NSIA and quality of investigations 
is important not only to ensure high standards at the level of individual MS but also 
consistency in the way investigations are conducted across the EU. This is due to the 
fact  that,  with  the  adoption  of  the  common  safety  standards  and  establishment  of 
EASA,  any  deficiencies  in  Community  regulations,  certification  procedures  or 
oversight practices may have EU-wide consequences. 

3.2.1.  Problem drivers and evidence 

At the time of the adoption of Directive 94/56/EC, the investigating capacity of the 
EU as a whole used to be much more uniform than it is now. Currently however and 
especially after the recent enlargements of the EU, the situation is much more diverse 
and the investigating capacity is essentially concentrated in a few MS only. 

The number of investigators in MS varies substantially (from 1 to over 60 depending 
on  the  MS40).  Also,  only  a  very  limited  number  of  MS  dispose  of  facilities  and 
equipment for complex technical investigations such as the readouts of "black boxes" 
or  conduct  of  complex  simulations.41  Especially  for  smaller  MS  it  is  difficult  to 
mobilise  the  necessary  expertise  for  more  complex  investigations  and  to  be  on  par 
with  large  manufacturers  or  operators  which  can  often  muster  more  substantial 
resources than the local NSIA. 

In practice, only MS with big manufacturing industry can justify budgets necessary 
to  maintain  a  properly  staffed  and  equipped  NSIA.  For  others,  it  is  increasingly 
difficult  to  justify  any  increase  in  the  budget,  especially  taking  into  account  a 
relatively  limited  number  of  accidents  in  Europe.  A  survey  conducted  by  the 
Commission  in  2006  showed  that  a  large  number  of  MS  experience  difficulties  in 
meeting  the  recommended  deadlines  of  twelve  months  for  closing  a  safety 
investigation.42 

Although  there have been some important  improvements  in  the recent  years  in this 
respect, the sharing of resources between the NSIAs is still organised mainly on an 
ad hoc basis. This, combined with a varying exposure of MS to accidents, prevents 
the EU from building up uniform experience in accident investigation.  

40 
41 
42 

Council of European Aviation Safety Investigation Authorities (CIRCA based information bank) 
idem 
Replies  to  the  questionnaire  on  the  application  of  Council  Directive  94/56/EC  of  21  November  1994 
establishing  the  fundamental  principles  governing  the  investigation  of  civil  aviation  accidents  and 
incidents (presented by the Commission at the meeting of the group of experts on civil aviation accident 
investigation, Brussels, 8 February 2006) 

EN 

15 

   EN 

                                                 
At  the  same  time,  the  ongoing  technological  progress  means  that  aircraft  and  their 
systems are becoming increasingly complex, which makes accident investigation an 
activity requiring much more diversified and specialised skills and equipment than a 
decade ago. 
It has to be also recognised that, with the exception of the ICAO guidance material43, 
there  are  currently  no  uniform  standards  in  the  EU  concerning  training  and 
qualification of the investigators. This problem was highlighted in the final report of 
the  "Group  of  Experts",  which  indicated  that  "in  particular  smaller  Member  States 
identify  a  need  for  European  Union  based  training  for  investigators,  both  on  the 
coordination of training and in relation to training standards".44  

Likewise, the methodology for technical investigations, although based on common 
principles  of  Annex  13,  is  not  fully  harmonised  in  the  EU.  Neither  Directive 
94/56/EC  nor  Annex  13  are  directly  applicable  and  need  to  be  transposed  into  the 
national  legal  orders  of  the  MS,  who  are  also  entitled  not  to  implement  certain 
standards  of  Annex  13  (not  covered  by  Directive  94/56/EC)  and  to  notify  the 
differences  to  ICAO  accordingly.  Last  but  not  least,  with  the  exception  of  ICAO 
USOAP  audits,  there  is  currently  no  standardisation  program  allowing  for 
verification  of  consistency  in  implementation  of  Directive  94/56/EC  and  Annex  13 
by the MS. 

The issue of under-optimal use of resources is partially addressed through voluntary 
cooperation between NSIAs envisaged in the Directive 94/56/EC,45 and was recently 
strengthened  with  the  establishment  of  the  Council  of  European  Aviation  Safety 
Investigation Authorities46 and other dedicated initiatives.47 

3.3. 

Tensions between safety investigations and other proceedings 

The  sole  objective  of  accident  investigation  and  occurrence  reporting  should  be 
prevention of accidents and incidents. Their purpose should not be to attribute blame 
or  liability  and  the  process  should  be  independent  from  any  other  proceedings 
(criminal, administrative, civil) whose objectives could conflict with this purpose. 

At the same time, safety investigations or occurrence reporting should not interfere 
with  the  proper  administration  of  justice  either  and  nothing  should  prevent  the 
judicial  or  other  authorities  from  carrying  out  their  own  investigations,  under  their 
own  procedural  rules  and  to  collect  evidence  that  could  serve  as  a  basis  for 
establishing  the  eventual  liability  of  the  persons  involved  the  event.  Through  these 
parallel but independent procedures the common objective of protecting human life 
and delivering justice may be served jointly. 

More specifically, independent safety investigations are necessary in particular to: 

43 
44 

45 
46 

47 

Training Guidelines for Aircraft Accident Investigators, ICAO Circular 298, June 2003 
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;  The  Group  of  experts  was  established  on  the  basis  of  the 
Commission Decision EC/425/2003, OJ L 144, 12.06.2003, p. 10-11. 
Article 6.4 and 6.5 of the Directive  
The Council constitutes a body coordinating, on a voluntary basis, the activities of the NSIAs of the EU 
Member States. It is composed of heads of EU NSIAs and chaired by the representative of the Member 
States currently holding Presidency of the EU. 
Such as establishment of the "Code of Conduct for civil aviation accident investigation" and the "check-
list  on  assistance",  both  developed  within  the  framework  of  the  Group  of  Experts  on  accident 
investigation of the European Civil Aviation Conference (ECAC/ACC Group). 

EN 

16 

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–  Promote transparency and avoid potential conflict of interests which could affect 
the findings resulting from the safety investigation (this would be for example the 
case if a safety investigation authority would be at the same time responsible for 
rulemaking or certification); 

–  Identify  not  only  a  direct cause of  an accident, which will be usually a focus of 
proceedings  that  aim  to  attribute  blame  or  liability,  but  most  importantly  the 
underlying and latent causes which might have contributed to the accident. Safety 
lessons  can  only  be  learned  and  corrective  measures  put  in  place,  if  all  the 
underlying causes are identified; 

–  Help families of the victims or the victims themselves to come to terms with the 

suffering by answering the question "what really happened?" 

Although  the  fundamental  principle  of  independent  safety  investigations  is  widely 
accepted  and  recognised  by  both  international48  and  Community49  law,  certain 
aspects  of  this  principle  are  far  from  being  implemented  in  the  EU  in  a  uniform 
manner.  There  are  tensions  between  the  NSIAs  and  judicial  authorities  across  the 
Community  and  the  independent  status  of  accident  investigation  and  especially 
protection of sensitive safety information collected in the course of the investigation 
cannot  be  guaranteed  in  all  MS.  Although  some  of  the  MS  managed  to  develop 
legislation  or  certain  arrangements  to  deal  with  this  issue50,  due  to  international 
character  of  safety  investigation,  their  NSIA  may  be  nevertheless  affected  by  such 
tensions  when  participating  in  investigation  in  other  MS  through  their  accredited 
representatives. 

3.3.1.  Problem drivers and evidence 

The drivers concerning this particular issue are complex and concern both legal and 
cultural aspects. This IA focuses on the drivers related to the transposition of Annex 
13  into  Community  law,  and  the  way  provisions  of  Annex  13  and  Directive 
94/56/EC  are  applied  in  practice  by  the  MS  authorities.  Coordination  between  the 
authorities involved in accident investigation, gathering and sharing of evidence and 
protection of sensitive safety information collected in the course of an investigation 
or through occurrence reporting systems, need to be mentioned in particular in this 
context. 

Whenever  a  serious  accident  occurs,  at  least  two  separate  investigations  will 
normally have to be carried out, one to determine the direct and underlying causes of 
the  accident,  the  other  to  determine  whether  there  is  sufficient  evidence  to  justify 
criminal  proceedings  against  any  of  the  parties  involved51.  Although  objectives  of 
these  proceedings  will  be  different  and  they  will  be  carried  out  by  separate 

48 
49 
50 

51 

Standard 3.1 and 5.4 of Annex 13 
Article 1, 4(3) and 6(1) of Directive 94/56/EC  
In the UK for example a memorandum of understanding between the Crown Prosecution Service (CPS) 
and the Air Accidents Investigation Branch (AAIB), the Marine Accident Investigation Branch (MAIB) 
and the Rail Accident Investigation Branch (RAIB), sets out the principles for liaison between the CPS 
and  the  AIBs.  The  aim  is  to  ensure  effective  investigation  and  decision  making  processes  while 
maintaining  the  independence  of  all  parties  and  reinforcing  the  role  of  the  AIBs  as  the  guardians  of 
public 
incidents 
(http://www.aaib.gov.uk/cms_resources/MOU%20AIB-CPS.pdf) 
Increasingly  in  recent  years,  this  may  be  paralleled  by  investigations  to  support  civil  proceedings  to 
apportion liability. 

investigating 

accidents 

transport 

safety 

when 

and 

EN 

17 

   EN 

                                                 
authorities, it is in practice very difficult to ensure a full separation between them and 
these two proceedings will have to interact with each other to a certain extent. 

The experience of the Community shows that these interactions may be a source of 
tensions that can negatively affect the efficiency of safety investigations. 

3.3.1.1.  Cooperation between the authorities involved in accident investigation 

Various authorities involved in accident investigation, although conducting separate 
inquires  and  pursuing  different  objectives  will  always  need,  while  retaining 
independence  within  their  respective  areas  of  responsibility,  cooperate  to  a  certain 
extent in order to efficiently discharge their obligations. In particular, all authorities 
will need to gather evidence, including factual information and statements from the 
parties  involved  in  the  accident.  They  will  also  need  to  store  and  analyse  the 
evidence gathered to draw the necessary conclusions. 

Although  Directive  94/56/EC  defines  the  broad  principles  of  the  status  of  a  safety 
investigation,52 including the rights of the investigators to access to the crash site and 
the  relevant  evidence,  the  practical  experiences  in  the  application  of  Directive 
94/56/EC show that the uniform implementation of these principles in the EU is far 
from being satisfactory and may affect safety. Judicial authorities often argue that the 
obligation to sanction illegal activities supersedes any safety considerations, and that 
any  evidence  may  and  should  be  used  for  the  purposes  of  examining  liability,  in 
accordance  with  the  principle  of  the  open  assessment  of  evidence.  In  practice  this 
means  that  access  of  the  NSIA  investigators  to  the  crash  site  may  be  hampered  or 
crucial safety evidence seized and not made available or its availability delayed. 

The investigation into the crash of Air France Concorde F-BTSC at Gonesse on 25th 
July 2000 can be given as an example here. The investigation was led by the NSIA of 
France  and  the  UK  NSIA  also  participated  as  a  joint  State  of  Manufacture.  In 
addition to the technical investigation led by the NSIA, an immediate judicial inquiry 
was  launched,  and  the  French  transport  minister  also  convened  his  own  panel  of 
experts to advise him personally. Thus in total three inquiry teams were competing 
for  access  to  physical  evidence,  resulting  in delays and restrictions  in  the  access to 
the crash site and material evidence by the safety experts.53 As another illustration of 
a potential impact of the lack of proper coordination between the authorities involved 
in the investigation, the case of the collision at the Milano-Linate Airport in October 
2001 can be given (see Case I below). 

The safety consequences of the delay in investigations or of lack of access by NSIAs 
to important evidence may be serious: not complete findings, delays in publication of 
the final report, inadequate safety recommendations. 

Lack  of  coordination  and  tensions  between  the  authorities  participating  in  the 
investigation is recognised by the experts. The "Group of Experts" in particular in its 
final  report  recommends  addressing  "difficulties  and  tensions  between  the  safety 
investigation and judicial investigations". 

On the other side, it has to be recognised that the interests of judicial authorities can 
be  also  negatively  affected  by  the  lack  of  appropriate  coordination  and  by  giving 
priority  in  all  the  cases  to  the  technical  investigation.  For  example  factual 

52 
53 

Article 5 "Status of the Investigation" of Directive 94/56/EC 
Accident on 25 July 2000 at La Patte d’Oie in Gonesse to the Concorde registered F-BTSC operated by 
Air France, Report by Bureau Enquetes-Accidents, f-sc000725a 

EN 

18 

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information  deriving  from  examinations  which  cannot  be  repeated,  such  as 
destructive testing of parts of equipment may be in contradiction with the statutory 
obligation  of  the  judicial  investigator  to  secure  and  present  to  the  court  the  best 
evidence  possible.  Other  examples  may  involve  evidence,  which  from  a  technical 
point  of  view  can  be  produced  only  by  a  NSIA,  such  as  analysis  of  factual 
information extracted from a flight data recorder (FDR). 

Currently,  Directive  95/56/EC  does  not  contain  any  provisions  similar  to  the  ones 
which can  be  found  in  Annex  13 (in particular standard 3.2 and 3.3), which oblige 
the State of Occurrence  to maintain appropriate custody of the evidence and of the 
accident site. 

Case I: Tensions between safety investigations and judicial procedures 
On the 8th of October 2001 a Boeing MD-87, registration marks SE-DMA operated by SAS, while on 
takeoff  run  on  runway  36R  of  Milano  Linate  Airport,  collided  with  a  Cessna  525-A,  registration 
marks  D-IEVX  which  taxied  into  the  active  runway.  After  the  collision  the  MD-87  hit  a  baggage 
handling  building.  All  occupants  of  the  two  aircraft  as  well  as  four  members  of  the  ground  staff 
personnel suffered fatal injuries.  

Both safety and judicial inquires were initiated. In the course of the safety investigation the NSIA in 
charge of the investigation could not receive testimonies from the ground (GND) and tower (TWR) 
controllers  as  well  as  TWR  supervisor,  as  they  made  themselves  unavailable  pending  the  judicial 
procedure. Transcripts of radio and telephone communications pertaining the incident were obtained 
from the Magistrate office (audio files on CD), while the original tape was not made available. The 
NSIA could not test the efficiency of the Cessna ARTEX equipment the transmission of which were 
not present on the tapes recorded. The equipment has been seized by the Magistrate for the purpose 
of the criminal inquiry and not made available.54 

3.3.1.2.  Protection of sensitive safety information 

Evidence gathered in the course of a safety investigation may be of various nature. 
Some information will be purely factual, and should be freely shared between all the 
authorities  involved  in  the  investigation  in  order  to  avoid  duplication  of  costs  and 
ensure  efficient  closure  of  all  relevant  investigations  -  be  it  technical,  judicial  or 
administrative. 

Some information however will be of much more sensitive nature and its protection 
from  unauthorised  disclosure  or  inappropriate  use  is  of  utmost  importance.  This 
applies  in  particular  to  evidence  such  as  witness  testimonies  or  other  statements, 
accounts and notes taken or received by the NISAs. Availability of such information 
is  crucial  in  the  disclosure  of  all  circumstances  of  the  event  and  of  its  causes. 
Inappropriate use of such evidence may compromise its future availability, as pilots 
or  other  aviation  professionals  may  be  reluctant  to  share  it  with  the  investigators 
without  having  certainty  that  it  will  not  be  later  used  to  blame  them.  This  is  a 
sensitive  issue,  linked  not  only  with  safety  considerations  but  also  with  the 
fundamental right of every citizen to a fair trail and prohibition of self-incrimination.  

Similar  philosophy  underpins  occurrence  reporting  systems  under  Directive 
2003/42/EC, which sole objective is to detect at the earliest possible stage existence 
of  safety  hazards  and  prevent  them  from  escalating  into  accidents.  The  underlying 
principle  here  is  that  public  safety  is  best  served  by  sharing  and  analysing  safety 

54 

Final  Report  of  the  Agenzia  Nazionale  per  la  Sicurezza  del  Volo  of  20  January  2004,  Accident 
involving  Aircraft:  Boeing  MD-87  registration  SE-DMA  and  Cessna  525-A,  registration  D-IEVX, 
Milano Linate Airport October 8, 2001. 

EN 

19 

   EN 

                                                 
information and using it for accident prevention purposes only and not for punishing 
or prosecuting those who, in good faith, wish to share their mistakes. 

The  consequences  of  such  inappropriate  use  of  sensitive  safety  information  in  the 
context  of  accident  investigation  were  illustrated  in  an  example  given  above  (see 
Case I above). The considerations presented are however valid also, and maybe most 
importantly,  in  respect  of  statements  made  by  aviation  professionals  in  the 
framework of occurrence reporting systems (see Case II below as an example). 

Case II: Managing safety and accountability – impact on occurrence reporting 

On  December  10th  1998  an  incident  occurred  at  Schiphol  (Amsterdam)  Airport  in  which  a  Delta 
Airlines Boeing 767 aborted its take-off roll when the pilots observed a towed Boeing 747 crossing 
the runway in front of them. The incident investigation report concluded that the incident happened, 
inter alia, as a result of a misinterpretation by the Assistant Controller of the actual position of the 
tow-combination when radio-contact was first established.  

In  December  2000,  almost  two  years  after  the  date  of  the  incident,  the  Dutch  aviation  prosecutor 
decided to formally charge the Coach/Supervisor, the Trainee and the Assistant Controller with "the 
provision  of  Air  Traffic  Control  in  a  dangerous  manner,  or  a  manner  that  could  be  dangerous,  to 
persons or properties”. The judge ruled that the assistant controller was not guilty, but that both the 
trainee  and  the  coach/supervisor  were.  More  than  a  year  later,  the  case  appeared  before  a  higher 
court. The court found all three suspects guilty of their crime, it did not, however, impose a sentence. 
The  judge  had  found  legal  room  for  what  seemed  to  be  a  compromise,  by  treating  the  case  as  an 
infringement of the law, as opposed to an offence.  

Over  the  years  that  the  legal  proceedings  went  on,  the  number  of  incident  reports  submitted  by 
controllers dropped by 50%.55 

What are the drivers of the issue? The divergence of judicial cultures and regulatory 
frameworks of the MS definitely plays a role in this respect. However, this IA report 
argues that the problem is amplified by the lack of common principles established in 
this respect in Community law.  

Contrary to the requirements of Annex 13 (Standard 5.12), Directive 94/56/EC does 
not contain any provisions concerning protection of evidence gathered in the course 
of the investigation, in particular of witness evidence and other statements, accounts 
and notes taken or received by the NISAs from use for non-safety related purposes. 
Annex 13 is also far from being implemented in a uniform manner in the EU in this 
respect. Most of the differences filled by the MS with ICAO in respect of Annex 13 
concern implementation of Standard 5.12 dealing with protection of sensitive safety 
information.56 FDR and CVR are to certain extent protected on the basis of specific 
provisions contained in the "EU-OPS regulation".57  

Similarly  to  the  previous  point,  there  seems  to  be  a  consensus  amongst  the  experts 
that  this  is  an  issue  requiring  a  closer  attention  of  the  Community.  The  "Group  of 
Experts"  in  its  final  report  recommends:  "to  introduce  legislative  protection  from 

55 

56 

57 

Case  analysis  on  the  basis  of:  “Just  Culture  Material  for  Interfacing  with  the  Judicial  System, 
Eurocontrol 2008” 
In accordance with Article 38 of the Chicago Convention, Member States can decide not to implement 
certain standards of Annex 13 and to notify differences to ICAO (the differences notified cannot be in 
contradiction with the provisions of the Directive 94/56/EC, as this would constitute a violation of the 
Community law) 
Council  Regulation  (EEC)  No  3922/91  of  16  December  1991  on  the  harmonization  of  technical 
requirements  and  administrative  procedures  in  the  field  of  civil  aviation  (as  amended),  OJ  L  373, 
31.12.1991, p. 4 (the “EU-OPS” regulation) 

EN 

20 

   EN 

                                                 
disclosure  for  confidential  documents  listed  in  Chapter  5.12  of  Annex  13  to  the 
Chicago Convention". 

the  obligation 

Similarly, 
to  report  occurrences  established  under  Directive 
2003/42/EC  is  not  sufficiently  balanced  by  the  protection  of  the  information 
contained  in  the  reports  from  use  in  non-safety  related  proceedings.58  In  particular 
Directive 2003/42/EC does not establish clear principles or guidance defining under 
which  conditions  such  information  could  be  disclosed  to  the  judicial  authorities.59 
This  may  discourage  aviation  professionals  from  open  reporting  of  occurrences 
(which  may  constitute  potentially  self-incriminating  information),  and  thus  reduce 
the  opportunities  for  the  EU  aviation  community  to  collectively  learn  from 
mistakes.60 

Last but not least, there has been an important precedent recently in the Community 
law  as  far  as  protection  of  sensitive  safety  information  gathered  through  accident 
investigation is concerned. The newly adopted Directive 2009/18/EC establishing the 
fundamental  principles  governing  the  investigation  of  accidents  in  the  maritime 
transport  sector61,  envisages  common  provisions  concerning  protection  of  sensitive 
safety  information, largely inspired by the language of Standard 5.12 of Annex 13. 
As  this  is  an  issue  of  a  horizontal  nature,  similar  principles  should  apply  to  safety 
investigations in all transport modes. 

3.4. 

Unclear role of the Community in safety investigations 

An issue of fundamental importance to be addressed in this IA concerns the role of 
the  Community  in  accident  investigation.  This  question  goes  beyond  problems 
related  to  the  uniform  implementation  of  Directive  94/56/EC  and  derives  from  the 
fact  that  major  institutional  and  regulatory  changes  took  place  in  the  Community 
since the adoption of Directive 94/56/EC. 

A  common  set  of  directly  applicable  safety  legislation  was  established  by  the  EU, 
covering  initial  and  continuous  airworthiness,  pilot  licensing,  flight  operations  (of 
both  Community  and  third  country  operators)62,  and  was  recently  extended  to  Air 
Traffic  Management/Air  Navigation  Services  and  safety  aspects  of  aerodrome 
operations.63 In addition 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, as specified in the Chicago Convention and its Annexes, was established in 

58 

59 

60 

61 

62 

63 

c.f. 15  ("The  level  of  incident  reporting, analysis  and  transparency  of  the  safety  system  varies  widely 
across  Europe.  As  a  result,  in  some  places,  it  is  difficult  to  assess  the  overallsafety  performance 
achieved and to propose actions toimprove safety. One impediment is that the judicial codes of some 
states discourage or inhibit open reporting of incidents"), p.31 
Directive 2003/42/EC in Article 8(5) only stipulates that its provisions shall apply without prejudice to 
the national rules related to access to information by judicial authorities. 
Legal  and  Cultural  Issues  in  relation  to  ATM  Safety  Occurrence  Reporting  in  Europe,  Report 
Commissioned  by  the  Performance  Review  Commission,  Eurocontrol,  September  2006;  Similarly 
“Report of the High Level Group for the future European Aviation Regulatory Framework (c.f. 15) 
Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the 
fundamental  principles  governing  the  investigation  of  accidents  in  the  maritime  transport  sector  and 
amending Directives 1999/35/EC and 2002/59/EC (OJ L 131, 28.5.2009, p.114). 
Regulation  (EC)  216/2008  of  the  European  Parliament  and  of  the  Council  of  20  February  2008  on 
common  rules  in  the  field  of  civil  aviation and  establishing  a  European Aviation  Safety  Agency,  and 
repealing  Council  Directive  91/670/EEC,  Regulation  (EC)  No  1592/2002  and  Directive  2004/36/EC 
(OJ L 79, 19.03.2008, p. 1) 
Not yet published 

EN 

21 

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2002. 64 The role and responsibilities of the Community in safeguarding civil aviation 
safety has thus increased significantly in the past decade. 

The  changes  in  question  affect  the  overall  division  of  responsibilities  between  the 
MS  and  the  Community  in  civil  aviation  safety.  Despite  the  efforts  of  the  Agency 
and NSIAs, the consequences of these changes were not so far fully reflected in the 
way accident investigation in the Community is organised. The relationship between 
EASA  and  NSIAs  is  not  defined,  neither  as  concerns  representation  of  EASA  in 
accident  investigation  nor  in  respect  of  exchange  of  important  safety  information 
between the Agency and NSIAs, necessary to reveal all circumstances of accidents or 
occurrences and to take appropriate safety actions. This creates unacceptable safety 
risks, in particular since the Agency is responsible for certifying aircraft registered in 
the  Community  –  an  issue  which  was  recently  confirmed  by  an  audit  of  the 
International Civil Aviation Organisation (ICAO). 

3.4.1.1.  Problem drivers and evidence 

The  preamble  to  Regulation  (EC)  No  216/2008  stipulates  that  "Results  of  air 
accident  investigations  should  be  acted  upon  as  a  matter  of  urgency,  in  particular 
when they relate to defective aircraft design and/or operational matters, in order to 
ensure  consumer  confidence  in  air  transport".65  The  Regulation  also  obliges  the 
Commission, when developing implementing rules for airworthiness and operations, 
to  ensure  that  they  allow  for  immediate  reaction  to  established  causes  of  accidents 
and serious incidents.66 

In  addition,  under  the  current  regulatory  framework  in  the  Community,  MS 
collectively  discharge  their  obligations  undertaken  under  the  Chicago  Convention 
when related to design of aeronautical products. It is EASA which on behalf of the 
MS,  carries  out  the  functions  and  tasks  of  the  State  of  Design,  Manufacture  and 
Registry  when  related  to  design  approval,  as  specified  in  the  Chicago  Convention 
and its Annexes.67 

A number of opinions were exchanged between the Commission, EASA and NSIAs 
in the past years related to the consequences of the adoption of Regulation (EC) No 
1592/2002  (now  (EC)  No  216/2008)  and  the  establishment  of  EASA,  on  the 
organisation of accident investigation in the Community. This discussion focused on 
the status of EASA in accident investigation and the scope of eventual participation 
rights which could be attributed to the Agency in this respect. 

One  of  the  aspects  debated  in  particular  concerns  the  right  to  appoint  "accredited 
representatives" for the “State of Design”, under Annex 13. As described in section 
2.2.1 above, a number of States participate in a safety investigation. States other than 
the  State  of  Occurrence,  with  a  specific  interest  related  to  the  circumstances  of  the 
accident, have the right (or under certain circumstances an obligation) to appoint an 
“accredited  representative”  to  participate  in  the  investigation.  States  appointing 
accredited  representatives  and  the  accredited  representatives  themselves68  enjoy 
specific rights in their respective areas of competence. These include in particular: 

64 
65 
66 
67 
68 

c.f. 62  
idem, whereas clause No 17 
idem, Articles 5(6) and 8(6) 
idem, Art.20(1) in conjunction with Art.17(e) 
A person designated by a State, on the basis of his or her qualifications, for the purpose of participating 
in an investigation conducted by another State (Chapter I, Definitions, Annex 13) 

EN 

22 

   EN 

                                                 
–  The right to request the State of Occurrence, that the aircraft, its contents, and any 
inspection  by  an  accredited 

other  evidence  remain  undisturbed  pending 
representative of the requesting State;69 

–  The right to participate in all aspects of the investigation, under the control of the 
investigator-in-change  (including  the  right  to  visit  the  scene  of  the  accident, 
examine  the  wreckage,  have  full  access  to  all  relevant  evidence  as  soon  as 
possible,  participate  in  read-outs  of  recorded  media,  participate  in  off-scene 
investigative activities, make submissions in respect of the various elements of the 
investigation);70 

–  The  right  of  the  State  concerned  to  appoint  one  or  more  advisers  to  assist  the 

accredited representative in the investigation;71 

–  The  right  to  comment  on  the  final  report  form  the  investigation  and  to  have  its 
comments,  which  were  not  taken  into  account  by  the  State  conducting  the 
investigation, attached to the report;72 

At the same time, accredited representatives and their advisers are also obliged: 

–  to  provide  the  State  conducting  the  investigation  with  all  relevant  information 

available to them;  

–  not  divulge  information  on  the  progress  and  the  findings  of  the  investigation 

without the express consent of the State conducting the investigation.73 

In the debate concerning the scope of participation rights which could be entrusted to 
EASA, two main groups of arguments were presented by the MS authorities: 

–  Arguments of legal nature: some of the MS argued that the Community legislator 
did not entrust EASA with any competences related to accident investigation, in 
particular the rights to appoint accredited representatives on behalf of the “State of 
Design” under Annex 13, as the competences of the Agency are limited to Annex 
8 (“Airworthiness of Aircraft”) and do not extend to Annex 13; 

–  Arguments  related  to  independence  of  safety  investigations:  some  of  the  MS 
argued that, even if possible within the current regulatory  framework, entrusting 
EASA  with  too  broad  participation  rights,  and  in  particular  the  right  to  appoint 
accredited  representatives  on  behalf  of  the  MS,  would  put  in  question  the 
independence of the investigation, as EASA could be investigating design aspects 
of the accident involving aircraft initially certified by the Agency; 

EASA,  as  an  authority  responsible  for  type  certification,  may  have  a  potential 
conflict of interest with the tasks entrusted to the NSIA, and therefore its role in the 
investigation should be limited to what is strictly necessary. 

At the same time however, both from the legal, but most importantly from the safety 
point  of  view,  the  current  lack  of  clarity  cannot  be  accepted.  From  the  legal 
perspective,  it  has  to  be  noted  that  Annex  13  defines  the  “State  of  Design”  as  the 
“State having jurisdiction over the organization responsible for the type design". In 

69 
70 
71 

72 
73 

Annex 13 (Standard 3.3) 
idem (Standard 5.25) 
In case of a State of Design it will normally be advisers, proposed by the organizations responsible for 
the type design of the aircraft, powerplant or a major component. 
Annex 13 (Standard 6.3) 
idem (Standard 5.26) 

EN 

23 

   EN 

                                                 
the current EU regulatory framework, it is the EASA which, on behalf of the MS, is 
responsible for approval and continuous oversight over organizations responsible for 
type design. There is thus an inherent link between the current scope of competences 
of the Agency and the concept of the “State of Design” under Annex 13. 

Most importantly however, and regardless of legal considerations, the current lack of 
clarity has an important safety dimension. It is the Agency who should dispose of all 
the pertinent data related to design approval and is legally responsible, on behalf of 
the MS, for ensuring that any safety recommendations concerning design aspects of 
an  aircraft  designed,  manufactured  or  registered  in  the  EU  and  involved  in  an 
accident,  are  properly  acted  upon.  In  particular  it  is  the  responsibility  of  EASA  to 
issue Airworthiness Directives.74  

Aircraft of European design, manufacture or registry operate in all parts of the world 
and  when  an  accident  happens  involving  such  aircraft,  EASA,  as  the  responsible 
design  authority,  has  an  important  safety  interest  in  being  represented  during  the 
investigation  and  acquiring  all  pertinent  factual  information  concerning  the  event 
without delay to take appropriate safety action if necessary. EASA may have also an 
interest in acquiring factual information if an airworthiness factor contributing to an 
accident  could  have  been  linked  with  the  competency  of  organisations  certified  by 
the Agency.75 

Similarly,  the  Agency  in  order  to  properly  discharge  its  safety  related  obligations, 
and in particular concerning continuing airworthiness of a type of aircraft under its 
regulatory  responsibility  must  have  unhampered  access  to  all  in-service  related 
information,  including  on  any  occurrences  reported  in  this  respect,  which  could 
indicate potential safety hazards.  

In  addition  to  acquiring  factual  information,  EASA,  having  a  wide  degree  of 
expertise and knowledge of the type certification basis, can and should contribute to 
the  investigation,  so  that  the  most  accurate  findings  can  be  made  and  follow-up 
actions  taken.  EASA  may  have  for  example  knowledge  about  the  history  of  the 
events related to a particular type of aircraft or engine. 
Figure IV: Annual accidents of EU/EEA/EFTA manufactured turbine aircraft76 

74 

75 

76 

Airworthiness  Directive  is  a  notification  to  owners  and  operators  of  certified  aircraft  that  a  known 
safety deficiency with a particular model of aircraft, engine, avionics or other system exists and must be 
corrected.  If  a  certified  aircraft  has  outstanding  airworthiness  directives  that  have  not  been  complied 
with,  the  aircraft  is  considered  not  airworthy.  Airworthiness  Directives  usually  result  from  reports  of 
operators or from the results of aircraft accident investigations. 
For  example  a  third  country maintenance  organisation  approved by  EASA  and performing  repairs  on 
the aircraft involved in an accident. 
Data covering turboprop aircraft with maximum certified number of passengers above 15, as well as all 
turbojet aircraft 

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Source: Airclaims 

Since 2006, EASA and NSIAs have been trying to clarify the role of the Agency in 
accident investigation by concluding working arrangements on a voluntary basis. Up 
to date this issue was not adequately resolved, main reasons for this being: 

–  some NSIAs argue that working arrangements do not constitute a valid legal basis 
for  the  transfer  of  participation  rights  that  States  enjoy  under  the  Chicago 
Convention; 

–  disagreement between the NSIAs and EASA as to the scope of participation rights 
to  be  eventually  granted  to  the  Agency,  without  compromising  independence  of 
safety investigations; 

The  current  situation  was  identified  as  not  acceptable  in  a  recent  audit  of  EASA 
conducted by ICAO  within  the framework of the Universal Safety Oversight Audit 
Programme (USOAP) audit.77 The report makes a finding on this particular issue and 
concludes  that:  "EASA  has  not  reached  a  formal  agreement  with  the  EU  Member 
States  regarding  the  modalities  and  status  of  participation  of  EASA  and 
incident 
representatives  of  Member  States  bodies 
investigations involving aircraft whose type certificate is delivered by EASA". 

in  accident  and  serious 

Thus for the time being the relationship between EASA and NSIAs is dealt on an ad 
hoc  basis  and  in  a  number  of  cases,  due  to  tensions  between  the  NSIA  and  the 
Agency, the flow of important safety information was hampered or delayed. Due to 
the  international  character  of  accident  investigation  this  issue  affects  not  only 
investigations conducted in the EU but also in third countries. 

It  is  therefore  of  utmost  importance  from  the  safety  point  of  view,  that  the  mutual 
rights and obligations of EASA and NSIAs are clarified. At the same time, as EASA 
is  involved  in  certification  of  aircraft  and  of  organisations  involved  in  their  design 
manufacture,  or  maintenance  its  role  in  accident  investigation  has  to  be  limited  to 
what is strictly necessary, in order to avoid any potential conflict of interest. 

Similarly, as the Agency plays a major role in the continuing airworthiness processes 
in  Europe,  it  has  a  legitimate  need  for  access  to  occurrence  data,  which  is 
indispensable  to  support  its  work.  Such  data  is  required  with  a  level  of  detail  that 

77 

Final Report on the Safety Oversight Audit of the European Aviation Safety Agency, 23–25 April 2008 
(confidential). The final report is available to all Contracting Parties to the Chicago Convention through 
the ICAO Universal Safety Oversight Audit Programme (USOAP) secure website. 

EN 

25 

   EN 

 
                                                 
in  respect 

to  modifications  applied  and  product 

permits action to be taken. For example, as aircraft of a given type may differ from 
improvements 
each  other 
incorporated, knowledge of the serial number of the aircraft is essential to assess the 
needs  for  corrective  action.  Moreover,  given  its  newly  acquired  competences  the 
Agency  needs  to  develop  safety  information  based  on  the  aircraft  operated  by 
operators  in  Europe  and  thus  it  is  essential  that  information  on  the  State  of  the 
operator is also made available to the Agency. The current restrictions envisaged in 
Directive  2003/42/EC  and  its  implementing  rules  do  not  permit  such  access  on  a 
continuous  basis.  At  the  same  time,  such  information,  due  to  its  sensitive  and 
confidential  nature,  should  be  used  by  the  Agency  only  for  purposes  related  to 
improvement of safety and protected from unauthorised disclosure. 

3.5.  Weaknesses in implementation of safety recommendations 

Despite significant efforts in this respect, there is still no consistent approach in the 
implementation  of  safety 
Community  concerning  gathering,  processing  and 
recommendations 
the 
establishment of a Community database of safety recommendations has not yet been 
finalised and the Community did not establish common requirements for transparent 
and efficient: 

from  accident 

In  particular, 

investigations. 

resulting 

–  recording of the responses to the safety recommendation issued; and 

–  monitoring 

the  progress  of 

the  action 

taken 

in  response 

to  a  safety 

recommendation; 

In  addition,  the  number  of  safety  recommendations  addressed  to  the  Community 
regulator  and  EASA  has  increased  substantially  in  the  past  years  and  this  trend  is 
expected  to  continue.  At  the  same  time,  safety  recommendations  of  EU-wide 
relevance  are  not  followed  up  in  a  consistent  manner  across  the  EU  due  to  lack  of 
coordination between authorities at the national and Community level. Independent 
and transparent monitoring of implementation of safety recommendations addressed 
to the national and Community regulators is also not adequate. 

3.5.1.  Problem drivers and evidence 

Safety  recommendations  resulting  from  accident  investigations  are  of  crucial 
importance.  By  linking  the  independent  process  of  looking  into  the  causes  of 
accidents  with  practical  measures  aimed  at  prevention  of  their  re-occurrence, 
recommendations have a direct impact on the improvement of aviation safety and are 
thus one of the most important points addressed in this IA. 

Implementation  of  safety  recommendations  is  not  mandatory  and  it  is  up  to  the 
addressee to assess its validity and the most cost efficient way of implementation. At 
the same time, it is important from the safety and public policy point of view that an 
that  every  safety 
efficient  and 
recommendation 
is  always  assessed,  replay  given  and  corrective  measures 
implemented if justified. 

transparent  process 

in  place  ensuring 

is 

According to Directive 94/56/EC, the reports and safety recommendations are made 
public  and  communicated  to  the  undertakings  or  national  aviation  authorities 
concerned and copies forwarded to the Commission. MS are also obliged to take the 
necessary  measures  to  ensure  that  the  safety  recommendations  made  by  the  NSIAs 

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26 

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are  duly  taken  into  consideration,  and  where  appropriate,  acted  upon  without 
prejudice to Community law.78  

In  practice,  the  process  of  follow-up  and  monitoring  of  implementation  of  safety 
recommendations  in  the  MS  vary  considerably.  Some  MS  have  a  well  established 
process  in  this  respect,  while  others  relay  rather  on  more  ad  hoc  practices.79  The 
"Group  of  Experts",  in  its  final  report  recommends  "to  introduce  a  legislative 
requirement  that  provides  transparency  in  relation  to  official  replies  to  and 
implementation of safety recommendations".  

There  is  also  currently  no  provision  in  the  Community  law  implementing  the 
standard of Annex 13 requiring issuance of safety recommendations at any stage of 
the investigation if a preventive action is necessary to promptly address an identified 
safety issue.80 

In line with the overall objective of accident investigation, safety recommendations 
and  reports  should  address  the  causes  of  accidents  and  not  create  a  presumption  of 
blame  or  liability81,  which  means  for  example  that  the  anonymity  of  the  persons 
involved  should  be  protected.  The  language  of  Directive  94/56/EC  is  not  entirely 
consistent  in  this  respect,  whereby  such  protection  is  explicitly  afforded  only  to 
persons involved in incidents but not accidents82. 

The  prompt  dissemination  of  safety  recommendations  is  also  affected  by  other 
considerations analyzed in this IA, and in particular the availability of investigation 
resources  and  potential  tensions  between  the  different  authorities  involved  in 
accident investigation. 

To  facilitate  exchange  of  safety  related  information  between  the  MS  and  the 
Community,  the  Commission  established  a  central  repository  of  civil  aviation 
occurrences83.  As  far  as  accident  investigation  is  concerned,  the  central  repository 
should  contain  basic  factual  information  on  accidents  and  incidents  while  the 
investigation  is  on-going,  and  –  when  the  investigation  is  completed  –  all  relevant 
information,  including  when  available  a  summary  in  English  of  the  final 
investigation  report.  However  the  level  of  reporting  is  still  far  from  being 
satisfactory, as some of the MS are concerned about the adequate level of protection 
of the data from unauthorised use or disclosure.  

A  prototype  add-on  to  the  central  repository  dedicated  to  safety  recommendations 
has been also developed by the Commission, but it is not yet fully operational. This 
is  an  important  step  towards  the  development  of  a  central  database  of  safety 
recommendations  at  the  EU  level,  which  should  be  completed  as  soon  as  possible. 
(This  was  also  recommended  by  the  "Group  of  Experts"  and  in  responses  to  the 
public consultations). 

78 
79 
80 
81 
82 
83 

Directive 94/56/EC, Article 9 "Safety recommendations" 
c.f. 42 
Annex 13, Paragraph 6.8 
Directive 94/56/EC, Article 10 
idem, Articles 7 and 8 
The repository is based on the software developed within the framework of ECCAIRS (European Co-
ordination centre for Accident and Incident Reporting Systems project managed by the Joint Research 
Centre of the European Commission) and uses ICAO ADREP (Accident/Incident Reporting) taxonomy. 
This repository is managed by the Joint Research Centre (JRC) of the Commission. 

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One of the important drivers behind the current inefficiencies in implementation of 
safety recommendations is lack of the recognition of a Community dimension in this 
respect.  This  is  critical  especially  in  a  situation  where  almost  all  areas  of  aviation 
safety  are  regulated  at  the  EU-level  and  where  in  significant  number  of  cases, 
individual MS may be unable to implement safety recommendations on their own in 
a uniform and consistent manner. 

For example safety recommendations which may be addressed by a NSIA only to the 
national aviation authority or a national airline, may be of relevance to other MS or 
all  Community  operators.  There  is  however  currently  no  mechanism  which  would 
allow for identification of such safety recommendations on a regular basis. 

It is also important to note that there is currently no independent mechanism allowing 
to monitor implementation of safety recommendations addressed to the Community 
regulator.  At  the  same  time  the  number  of  recommendations  addressed  to  the 
Commission  and  EASA  increased  substantially  in  the  past  years,  and  this  trend  is 
expected to continue given the ongoing extension of the Community competence in 
civil aviation safety. 

Case III: Increasing role of EASA as an addressee of safety recommendations 

The handling of the safety recommendations in an expeditious and responsible manner constitutes 
one  of  the  pivotal  responsibilities  for  EASA.  Since  the  establishment  of  the  Agency  in  2002  the 
number of safety recommendations addressed to it has been increasing in a steep manner and this 
trend is expected to continue. 

Safety Recommendations addressed to EASA

54

57

43

44

Safety
Recommendations
addressed to EASA

60

50

40

30

20

10

0

19

2004

2005

2006

2007

2008

3.6. 

Protection of the rights of air crash victims and their families 

Aircraft  accident  is  an  unexpected  and  catastrophic  event.  Distress  is  an  inevitable 
consequence  of  any  accident  in  which  people  are  killed  or  injured.  In  recent  years, 
concern for persons who suffered distress and loss as a result of an aircraft accident 
has  led  to  increased  efforts  by  the  international  community  to  establish  means  by 
which the anguish can be best mitigated84. This includes establishment of dedicated 
family assistance plans by States or of emergency procedures by the airlines. 

84 

For example Convention for the Unification of Certain Rules for International Carriage by Air done at 
Montreal  on  28  May  1999,  or  ICAO  "Guidance  on  assistance  to  aircraft  accident  victims  and  their 
families", Circular 285-AN/166 

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28 

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The  EU  has  already  developed  some  legislation  in  this  respect,  including  on  the 
liability  of  the  air  carriers85  and  insurance  of  this  liability.86  The  Community 
legislation envisages the obligation of the air carriers to provide advance payments to 
the eligible persons which may be required to meet their immediate economic needs 
on a basis proportional to the hardship suffered. 

There  are  a  number  of  additional  elements  related  to  this  issue,  including  in 
particular: 

–  The management of passenger manifests, which are an essential tool in facilitating 
search and rescue operations, identification of persons which might have been on 
board of the unfortunate flight, as well as notification of their families; 

–  The rights of the air accident victims and their families to receive assistance and 
access to factual information about the circumstances of the accident and progress 
of the investigation;  

3.6.1.  Problem drivers and evidence 

Passenger manifests 

With the exception of the security rules concerning reconciliation of passengers and 
registered  baggage,  there  are  no  Community  requirements  requiring  airlines  to 
establish passenger manifests for each and  every flight and this issue is left for the 
voluntary  action  of  the  airlines  and  regulation  at  the  national  level,  in  accordance 
with  the  requirements  the  Chicago  Convention.87  In  practice,  the  most  advanced 
protocols  in  this  respect  are  developed  by  the  Community  airlines  operating  to  the 
US, due to federal requirements of the US Aviation Disaster Family Assistance Act 
of 1996 and US Foreign Air Carrier Family Assistance Act of 1997.88 

Usually  airlines  compile  lists  of  passengers  using  data  from  the  gate,  to  avoid 
counting  passengers  not  presenting  themselves  for  boarding.  Such  lists  should 
include  also  infants  and  crews  not  active  on  a  given  flight.  In  addition  a  crew 
manifest will be also prepared. The data collected and processed by the airline, will 
usually  include,  name,  address  and  contact  details,  which  is  necessary  for  booking 
purposes. Interviews with some of the airlines indicate that, this data may sometimes 
not correspond to the actual situation (for example in case of a reservation made by a 
travel agent). 
In  the  wake  of  the  terrible  accident  of  20th  August  2008  involving  Spanish  airline 
Spainair at the Madrid – Barajas airport a debate has arisen concerning management 
of  passenger  manifests  and  in  particular  their  eventual  disclosure  to  the  general 
public and rapid availability89. Extensive experiences of the US authorities in similar 

85 

86 

87 

88 
89 

Council  Regulation  (EC)  No  2027/97  on  air  carrier  liability  in  the  event  of  accidents,  OJ 
L285,17.10.1997, p.1 
Regulation  (EC)  No  785/2004  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  on 
insurance requirements for air carriers and aircraft operators (OJ L 138, 30.4.2004, p. 1) 
According to article 29 of the Chicago Convention, every aircraft engaged in international navigation, 
shall carry a list of passenger names, including their places of embarkation and destination. Also the EC 
Regulation  No  3922/91  of  16  December  1991,  as  amended  (EU-OPS)  makes  a  reference  to  national 
laws and regulations as far as passenger lists are concerned. 
http://www.ntsb.gov/family/Family.htm 
Publication  of  lists  of  airline  passengers  in  the  event  of  an  accident,  Information  presented  by  the 
Spanish  delegation  at  the  occasion  of  the  TTE  Council  meeting  on  9  October  2008  (Council  of  the 
European Union, 13660/1/08, REV1) 

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cases  in  the  1990ies,  proved  that  it  may  be  difficult  for  airlines  to  ensure  rapid 
availability  of  manifests  covering  "all  souls  on  board"  if  proper  procedures  are  not 
implemented and regularly tested in advance.90 

Due to importance of this issue, consideration should be therefore given whether and 
if so to what extent, improvements could be made in order to make sure that delays 
in availability of reliable manifests, covering “all souls on board” does not negatively 
affect  search  and  rescue  operations,  identification  of  victims  of  air  accidents  and 
notification of their families.  

This issue affects also the protection of personal data contained  in the manifests in 
accordance  with  Directive  95/46/EC  of  24  October  1995  on  the  protection  of 
individuals with regard to the processing of personal data and on the free movement 
of  such  data91.  The  Directive  lays  down  the  legal  framework  for  the  processing  of 
personal  data  in  the  Community  so  as  to  ensure  the  fundamental  right  to  the 
protection of personal data92.  

The  information  contained  in  the  manifests,  while  essential  for  the  competent 
authorities  responsible  for  accident  investigation,  search  and  rescue  or  police,  has 
therefore  to  be  handled  and  processed  with  full  respect  of  data  protection  rules,  in 
order  to  avoid  unauthorised  disclosure  and  use,  especially  without  prior  consent  of 
the victims and families concerned.93 

Assistance to the victims of air accident and to their families 

While air crashes in commercial aviation are relatively rare, once they occur a large 
number of victims or fatalities may become involved, touching upon a wide range of 
families. 

Irrespective of the scale of an accident, the victims and their families should receive 
appropriate assistance. Because of variations in the size and circumstances of aircraft 
accidents, the extent of the resources required to provide family assistance will vary 
considerably.  Therefore,  planning  for  such  events  is  necessary  to  ensure  that  the 
assistance provided to the victims of a large aircraft accident and their families does 
not  overwhelm  the  available  resources.  In  such  instances  an  institutionalized  crisis 
management  programme  would  normally  provide  the  optimum  set  of  guidelines, 
allowing a well-co-ordinated operation benefiting all parties involved, whenever the 
need arises. 

3.7.  Who is affected, in what ways, and to what extent?  

A wide scope of entities at national and Community level are affected. 

NSIAs  are  affected  because  they  cannot  fully  benefit  from  the  combined 
investigating  capacity  of  the  EU.  This  affects  their  cost  base  and  the  overall 

90 

91 
92 

93 

In consequence the NTSB asked FAA to require air carriers to standardise the reporting of passenger 
manifests  (see  in  particular  recommendations  A-90-105  or  A-95-56).  In  1996  Congress  adopted 
Aviation Disaster Family Act addressing this issue in a comprehensive way. All airlines operating to the 
US  are  required  by  US  legislation  to  have  specific  programmes  in  place  addressing  assistance  for  air 
crash victims and their families. 
OJ L 281, 23.11.1995, p. 31 
Charter of Fundamental Rights of the European Union (Article 8) and European Convention of Human 
Rights (Article 8) 
This  IA  does  not  deal  with  the  issue  of  informing  the  families  about  death  or  injury  resulting  from 
accident.  In  most  jurisdictions  in  the  EU  this  is  the  responsibility  of  the  Police  or  other  competent 
governmental bodies. 

EN 

30 

   EN 

                                                 
efficiency and quality of safety investigations. The NSIAs and their staff cannot also 
fully benefit from experiences of their counterparts in other MS. Tensions and lack 
of coordination with other authorities may also inhibit their ability to gather evidence 
and  effectively  conduct  investigations.  Potential  of  their  safety  recommendations  is 
also  not  fully  used  and  they  cannot  fully  benefit  from  access  to  safety 
recommendations issued by other authorities. 

The  travelling  public  is  affected  because  lacks  in  resources,  tensions  between 
authorities  and  problems  in  the  flow  of  important  safety  information  may  delay 
investigations.  The  travelling  public  is  also  affected  because  it  cannot  fully  benefit 
from all potential improvements contained in safety recommendations. 

The Community and in particular EASA as well as the NSIAs are affected because 
their roles and responsibilities in accident investigation are not clearly defined which 
may  affect  the  flow  of  important  safety  information.  Aviation  regulators  are  also 
affected,  because  they  are  responsible  for  follow-up  and  implementation  of  safety 
recommendations. 

Third countries are also affected in case of accidents occurring outside of the EU and 
involving in particular aircraft of European design, manufacture and registry. 

Aviation industry (airlines, manufacturers and service providers) is affected, because 
implementation of safety recommendations has always a certain economic dimension 
and cost attached. 

Judicial authorities are affected because tensions, concerning for example access to 
information and evidence can affect their statutory obligations to administer justice. 

Aviation professionals are affected because they may be reluctant to share sensitive 
safety  information  with  the  investigators  or  file  an  occurrence  report,  if  such 
information could be subsequently used to blame them. 

3.8. 

Does the EU have the right to act? 

The overall Community competence to regulate civil aviation accident investigation 
and  occurrence  reporting  was  established  on  the  basis  of  Directive  94/56/EC  and 
Directive  2003/42/EC.  Some  aspects  related  to  this  issue  are  also  addressed  in  the 
Regulation  EC  No  3922/91  of  16  December  1991,  as  amended  (EU-OPS)94  and 
Regulation EC 216/2008.95 

Further intervention at the EU level would be only justified if two conditions of the 
subsidiary  test  are  met.  Firstly,  it  is  important  to  be  sure  that  objectives  of  the 
proposed  action  could  not  be  achieved  sufficiently  by  the  MS  (necessity  test). 
Secondly it is necessary to consider whether and how the objectives could be better 
achieved by action on the part of the Community (test of European value-added).  

In this respect, an action at the Community level is both necessary and justified from 
the  added  value  perspective.  Intervention  at  the  Community  level  would  in 
particular: 

–  Ensure  the  necessary  uniformity  of  action,  which  is  needed  in  the  area  of  civil 
aviation  safety  (in  particular  in  relation  to  uniform  implementation  of  safety 
recommendations or increase in the investigation capacity of the EU as a whole); 

94 
95 

c.f. 57 
c.f. 62 

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31 

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–  Allow to address the inefficiencies of institutional nature, including in particular 

clarification of the role of the Community in accident investigation; 

3.8.1.  The added value of Community Action 

The Community action would bring safety benefits by strengthening the preventive 
function of accident investigation and occurrence reporting. This would be achieved 
in particular by: 

–  Increasing  the  overall  investigation  capacity  of  the  EU  (better  sharing  of 

resources, building up uniform expertise of NSIA and investigators); 

–  Reducing  tensions  between  the  various  authorities  involved  in  the  investigation 

(better coordination between the authorities, protection of evidence); 

–  Updating the existing regulatory framework for accident investigation, following 
the adoption of EU safety legislation, transfer of certain certification tasks to the 
Community level and establishment of EASA (clarification the role of EASA and 
Commission in accident investigation, defining the rights and obligations of NSIA 
and the Agency); 

–  Strengthening  implementation  of  safety  recommendations  in  a  uniform  manner 
across  the  EU  (building  an  EU  database  of  safety  recommendations,  transparent 
process  for  replying  to  safety  recommendations,  process  for  identification  of 
safety recommendations of EU wide relevance); 

–  Strengthening the protection of the rights of victims of air accidents and of their 
families,  in  particular  by  setting  minimum  standards  at  the  EU  level  concerning 
assistance  to  be  provided  and  rapid  availability  of  reliable  passenger  manifests, 
covering "all souls on board"; 

3.8.2.  The proportionality of the Community action 

Any  Community  intervention  should  be  proportionate  and  addressing  only  the 
problems which cannot be adequately solved at the level of the individual MS. Also 
from  the  public  policy  point  of  view,  and  given  the  limitations  in  the  investigating 
capacity  of  NSIAs,  both  the  Community  as  well  as  national  resources  should  be 
focused  on  investigation  of  events  from  which  the  biggest  safety  benefits  can  be 
acquired. 

Currently,  Directive  94/56/EC  obliges  MS  to  investigate  all  accidents  and  serious 
incidents regardless of the nature of the operation or the size of the aircraft involved. 
At the same time many accidents involving especially light aircraft are repetitions of 
past  occurrences  and  the  benefits  and  lessons  acquired  through  the  investigations 
may not always justify the resources allocated. 

In this context it has to be recalled that in 2008 there were 1220 accidents reported to 
EASA  and  involving  civil  aircraft  registered  in  the  EU/EEA/EFTA  MS  -  vast 
majority  of  them  being  accidents  of  small  general  aviation  aircraft  below  2.250  kg 
MTOM. If only the bigger aircraft of MTOM above 2.250kg are taken into account, 
the  average  annual  number  of  accidents  involving  civil  aircraft  registered  in  the 
EU/EEA/EFTA MS in the period 1997 – 2008 could be estimated at 72.  

At the same time aircraft below 2.250 kg MTOM, with the exception of the "Annex 
II"  aircraft,  are  currently  within  the  scope  of  the  Community  competence,  and 
certified by EASA. Some of those aircraft include high-performance turbine powered 
aircraft such as the “Very Light Jets”. 

EN 

32 

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In  this  respect  should  an  action  at  the  EU  level  be  taken,  appropriate  thresholds 
would  need  to  be  established  in  order  to  take  into  account  the  safety  lessons  to  be 
learned in determining the extent of the investigation, the procedure to be followed 
by the NSIAs and the degree of involvement of the Community bodies. 

In any case from the safety perspective it is important that all accidents and serious 
incidents  should  be  notified  to  the  competent  authorities  at  the  national  and 
Community  level,  which  should  be  allowed  to  initiate  an  investigation  or  join  an 
ongoing  one,  if  they  consider  that  safety  lessons  could  be  learned.  From  the  EU 
perspective,  the  minimum  threshold  for  the  involvement  of  EASA  should  be 
accidents or serious incidents involving aircraft certified by the Agency. 

4. 

OBJECTIVES 

4.1.  What are the general policy objectives? 

4.1.1.  Enhancement of civil aviation safety 

The general objective of the different policy options analysed in this IA is to enhance 
civil  aviation  safety  in  line  with  the  strategic  goals  of  the  Community  transport 
policy,  as  set  out  in  the  Communication  from  the  Commission:  "Keep  Europe 
moving  -  Sustainable  mobility  for  our  continent  (Mid-term  review  of  the  European 
Commission’s 2001 Transport White Paper)"96, and the institutional changes which 
took place following the establishment of a European certification authority (EASA). 

This  objective  has  to  be  set  in  a  realistic  manner.  While  the  elimination  of  all 
accidents is certainly desirable, absolute safety cannot be achieved, especially in the 
dynamic  context  of  such  a  complex  activity  as  modern  aviation.  Also,  even  if  full 
regulatory  compliance  is  achieved,  it  will  be  far  from  guarantying  absolute  safety. 
No human activity can be guaranteed to be absolutely free from hazards despite the 
best efforts to prevent them. 

The  approach  that  this  IA  takes  to  safety  benefits  is  by  identifying  areas  creating 
risks  which  need  to  be  addressed  and  then  by  proposing  the  most  cost-efficient 
means  of  addressing  them.  This  IA  is  without  prejudice  to  any  projects  concerning 
the  development  of  Safety  Performance  Indicators  (SPI)  in  the  EU  and  does  not 
attempt  to  quantify  safety  benefits  with  precise  figures  (e.g.  "x"  %  reduction  of 
accidents  by  year  "y"),  as  this  would  necessitate  the  ability  to  predict  when  and 
where  the  next  accident  might  happen.  Given  that  accidents  in  civil  aviation  have 
become  rare  to  the  point  of  constituting  almost  random  events,  this  is  not  possible 
and would be speculative. 

4.1.2.  Promoting legal certainty 

Accident investigation requires legal certainty. When an accident happens time is of 
essence and the roles and tasks of all the  parties have  to  be  known  in  advance and 
clearly defined. This concerns in particular the role of the NSIAs and EASA, access 
to  important  safety  information,  as  well  as  coordination  between  all  the  authorities 
which may be involved in the investigation or search and rescue operations. 

One of the important objectives of the Community should be thus to strengthen the 
required legal certainty, in particular given the fact that the current regulatory regime 
necessitates involvement of entities at both national as well as Community level. 

96 

COM(2006) 314 final, Brussels, 22.06.2006 

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4.1.3.  Maintaining independence of safety investigations 

To reveal all circumstances of an accident, the NSIA must be strictly objective and 
totally impartial and should be established in a way to be able to withstand political 
or other interference or pressure.97 Its only objective should be the enhancement of 
safety and the safety investigation should be independent from any other proceedings 
which could conflict with this objective. 

The  NSIA  is  tasked  with  determining  the  causes  of  an  accident  and  making  safety 
recommendations,  while  the  responsibility  for  their  implementation  rests  with 
operators  and  civil  aviation  administration.  This  division  of  responsibility  is 
appropriate  since  civil  aviation  administration  has  overall  responsibility  for  the 
regulatory framework of aviation and its development. 

It  is  important  that  the  principle  of  independence  of  safety  investigations  is  fully 
respected  and  strengthened  by  all  the  policy  options  analysed  in  this  IA.  The 
principle  of  the  separation  of  accident  investigation  from  regulatory  and  oversight 
activities  should  apply  both  at  the  MS  as  well  as  at  the  Community  level.  This  is 
important especially in the context of the extension of the  EU  competences to new 
areas of aviation safety in accordance with the "total system approach". This would 
apply for example to participation rights given to EASA, as an authority responsible 
for type certification of aircraft. 

4.2.  What are the specific objectives? 

The objectives of the proposed EU action should tackle the problem areas identified 
in the Chapter 2 above and address directly their root causes. These objectives should 
be specific, measurable, accepted, realistic and time-dependent.  

The  Specific  and  operational  objectives,  as  well  as  relationship  between  these 
objectives and the identified problem areas are outlined in Table II below. 

4.3. 

Consistency with horizontal policies of the European Union 

The  objectives  of  this  proposal  are  consistent  with  the  overall  policies  of  the  EU. 
Firstly,  by  improving  safety  of  air  transport  in  the  EU,  they  contribute  to  the 
attainment  of  the  wider  objectives  of  the  Lisbon  Agenda  and  EU  consumer 
protection policy. In addition, by reducing tensions between accident investigations 
and  judicial  proceedings,  and  in  particular  by  ensuring  appropriate  protection  of 
sensitive  safety  information,  the  objectives  of  this  proposal  strengthens  the  respect 
for the fundamental rights of the EU citizens. 

97 

Doc 9756 “Manual of Aircraft Accident and Incident Investigation” - Part I Organization and Planning  

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N
E

√

√

√

√

√

Ensure availability 
of reliable pax 
manifests after 
accident  

Organise efficient 
support for the 
families and victims  

Ensure a mechanism 
identifying 
recommendations of 
EU wide relevance 

Ensure that every 
recommendation is 
assessed and a reply 
given in a timely and 
transparent process 

Establish community 
database of safety 
recommendations 

Ensure that 
independence of 
safety investigation 
is not compromised 

Define the mutual 
rights and 
obligations of EASA 
and NSIAs 

Better protect sensitive 
safety information 

Better coordinate 
activities of the 
authorities involved 

Regularly monitor the 
investigating capacity 
of NSIAs 

Harmonise training and 
qualification 
requirements for 
investigators 

Better coordinate the 
resources of NSIAs 

√

√

√

√

√

√

√

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E

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5. 

POLICY OPTIONS 

This  section  outlines  the  policy  options  which  have  been  considered  by  the 
Commission  to  address  the  problem  areas  described  in  Chapter  2  and  to  meet  the 
policy objectives identified in Chapter 3. 

5.1. 

Possible policy options 

(1) 

Policy Option No 1 "Baseline Scenario - Do Nothing" 

This  policy  option  is  a  reference  or  a  “baseline”  scenario  and  means  that  no 
additional action at the EU level would be taken in addition to the already ongoing 
initiatives.  

Not taking any new action at the EU level does not necessarily mean that there is no 
change  at  all,  as  the  MS  would  continue  to  develop  cooperation  within  the  current 
regulatory framework. However, based on the evidence available, recommendations 
of the "Group of Experts", as well as the results of the public consultations, this IA 
argues that taking no action would not be acceptable form the public safety point of 
view. 

Review of recent or ongoing initiatives 

The  cooperation  between  the  EU  NSIAs  has  been  recently  strengthened  with  the 
establishment  of  the  Council  of  European  Safety  Investigation  Authorities  (the 
Council), which is composed of the Heads of the NSIAs of the EU MS. The Council 
coordinates  and  harmonises  the  activity  of  NSIAs  without  hampering  their 
independence.  

In addition a “Code of Conduct on Co-operation” was endorsed at the beginning of 
2006  by  the  ECAC  MS.  This  agreement,  consistent  with  the  relevant  provisions  of 
Annex  13  and  Directive  94/56/EC,  provides  for  a  convenient  framework  for  co-
operation  outside  the  context  of  a  specific  investigation.  The  ECAC  Group  of 
Experts  on  accident  investigation  has  also  developed  "A  checklist  on  assistance" 
which constitutes a useful tool to assist states in self-assessment of their needs related 
to investigations and identification of possible practical or legal obstacles. 

As far as global cooperation in the area of accident investigation is concerned, it is 
worth  mentioning  the  conclusions  of  the  last  ICAO  Accident  Investigation  and 
Prevention  (AIG)  Divisional  Meeting  (Montreal  13  –  18  October  2008),  which 
resulted in numerous recommendations to improve the global regulatory framework 
for civil aviation accident investigation and prevention. The EU actively participated 
in that meeting tabling 7 Working Papers coordinated also with the non-EU ECAC 
MS.  One  of  the  most  important  actions  undertaken  by  ICAO  as  a  follow-up  to  the 
AIG meeting is the currently ongoing comprehensive revision of Annex 13.98  

As  far  as  the  activities  in  the  EU  are  concerned,  the  ongoing  work  on  the 
development of implementing rules to the Regulation (EC) No 216/2008 as well as 
the  extension  of  the  Community  and  EASA  competence  to  safety  aspects  of 
aerodromes  as  well  as  ATM/ANS  have  to  be  mentioned.  Extension  of  the 
Community competence in this respect is expected in particular to increase the role 
of EASA and the Community regulator as an addressee of safety recommendations. 

98 

ICAO State Letter, AN 6/1.2-09/36 

EN 

36 

   EN 

 
                                                 
Impact of recent or ongoing initiatives on the identified problem areas 

Lack of uniform investigation capacity in the EU 

Given  the  establishment  of  "the  Council",  and  development  of  tools  such  as  "the 
checklist  on  assistance"  and  "the  Code  of  Conduct",  the  overall  investigating 
capacity of the NSIAs is expected to increase. These initiatives contribute to better 
coordination  of  resources,  training  activities  and  harmonisation  of  qualifications  of 
investigators. 

Given however the previous experiences with the Joint Aviation Authorities, which 
led to establishment of EASA, it is not expected that full harmonisation of accident 
investigation  standards  and  methodology  can  be  achieved  through  voluntary 
cooperation  only.  More  structured  cooperation  may  be  also  needed  in  case  of 
situations  whereby  a  number  of  accidents  occur  in  the  same  period  of  time  and 
necessitate extended simultaneous engagement of a few NSIAs. 

Tensions between safety investigations and other proceedings 

It is difficult to assess to what extent the coordination between the various authorities 
involved  in  the  investigation  can  be  improved.  Experiences  of  at  least  some  MS 
suggest  that  voluntary  cooperation  between  NSIAs  and  judicial  authorities  can 
improve the situation.99 This can be for example achieved by concluding in advance 
appropriate arrangements between the NSIAs and other services (judicial, search and 
rescue etc). This practice is recommended in the ICAO guidance material.100 
In  the  current  revision  of  Annex  13  initiated  by  ICAO101  the  issue  of  better 
coordination of proceedings is also going to be addressed, in particular in providing 
additional  guidelines  to  the  States  on  how  coordination  between  the  accident 
investigation  authorities  and  the  judicial  authorities  regarding  in  particular  the 
control of the wreckage could be achieved. 

However,  it  has  to  be  stressed  that  without  a  sound  mechanism  supporting  such 
cooperation,  its  full  potential  may  be  hard  to  achieve  on  the  EU  scale.  Voluntary 
cooperation  may  also  be  not  sufficient  to  ensure  protection  of  sensitive  safety 
information,  such  as  witness  testimonies  or  other  statements,  accounts  and  notes 
taken or received by the NISAs, where legal certainty is of paramount importance. 

Unclear role of Community in safety investigations 

It can be expected that the role of Community and of EASA in accident investigation 
will continue to be dealt with on an ad hoc basis. So far the NSIAs and the Agency 
did not manage to agree on common protocols in this respect. It has to be also noted 
that  from  the  very  beginning,  the  draft  of  the  working  arrangements  negotiated 
between  the  Agency  and  NSIAs  was  considered  to  be  only  of  a  transitional  nature 
and would cease to exist should the EU adopt binding regulations covering this issue. 

Lack of legal certainty in this respect may, as already experienced in the past, lead to 
situations where the flow of important safety information between NSIAs and EASA 
needed  to  take  corrective  safety  action  or  disclosure  of  all  the  circumstances  of  an 

99 
100 
101 

c.f. 50 
c.f. 35 
c.f. 98 

EN 

37 

   EN 

 
                                                 
accident,  is  hampered.  As  indicated  in  the  ICAO  USOAP  report  on  EASA,  this 
affects in particular aircraft certified by the Agency. 

Weaknesses in implementation of safety recommendations 

Certain  improvements  can  be  expected  from  the  ongoing  revision  of  Annex  13, 
where in particular a deadline of 90 days is proposed for informing an originator of 
the recommendation about the preventive action taken or under consideration, or the 
reasons why no action will be taken. "The Council" is also trying to better coordinate 
the exchange of safety recommendations. 

Overall  however,  inefficiencies  are  expected  to  continue  as  far  as  exchange  and 
follow  up  to  safety  recommendations  in  a  uniform  manner  in  the  EU  is  concerned. 
This issue is mainly related to the institutional and regulatory changes which in the 
past decade took place in the EU in the area of aviation safety.  

It  would  be  important  for  the  EU  to  have  a  central  database  of  safety 
recommendations and an efficient and transparent mechanism for assessing, replying 
and monitoring follow-up to safety recommendations. This mechanism should cover 
recommendations  addressed  to  the  industry  and  national  and  Community  bodies, 
especially  given  the  increasing  role  of  the  Community  as  an  addressee  of  safety 
recommendations. It would be also necessary to have a process which would identify 
recommendations  of  EU  wide  relevance.  This  could  be  achieved  for  example  by 
mandating  each  entity  in  the  EU  issuing  or  receiving  a  recommendation  to  have  a 
uniform process for: 

–  recording the responses to the safety recommendation issued, and 

–  monitoring  the  progress  of  the  action  taken  in  response  to  the  safety 

recommendation; 

All  recommendations  and  replies  thereto  should  be  also  recorded  in  the  central 
repository  in  order  to  facilitate  sharing  of  this  important  safety  information, 
transparent  monitoring  of  the  implementation  of  recommendations  and  analysis  of 
trends in safety deficiencies at the EU wide level. 

Protection of the rights of air crash victims and their families 

Community airlines and especially those operating to the US do have procedures for 
management  of  passenger  manifests.  The  problem  analysed  in  this  IA  concerns 
however  the  quality  of  those  procedures,  their  regular  testing  and  consistency  in 
application across the EU. Lack of harmonisation in this respect may affect the rights 
of families to prompt information about the fate of their loved ones or inhibit safety 
investigation or search and rescue operations. Equally, similar level of protection in 
terms  of  assistance  and  information  provided  to  the  victims  and  families  of  air 
accidents should be available across the EU. 

(2) 

Policy Option No 2 "Promotion of voluntary cooperation" 

Under  this  policy  option  the  Community  would  actively  promote  voluntary 
cooperation  between  the  NSIAs.  This  policy  option  would  not  involve  any  new 
legislative action and rely on the already existing regulatory framework.  

1. 

How this policy option would be implemented? 

This  policy  option  is  based  on  the  resources  already  existing  in  the  MS  and  the 
experiences  of  the  existing  informal  cooperation  of  the  NSIA  (“the  Council  of 
European Aviation Safety Investigation Authorities”). Under this policy scenario, the 

EN 

38 

   EN 

 
Commission would engage in an active dialogue with this grouping of NSIAs on all 
issues  concerning  development  and  implementation  of  EU  civil  aviation  accident 
investigation and prevention policy. This relationship could be formalised through a 
decision, similar to the Commission Decision of 29 July 2002 establishing European 
Regulators  Group  for  Electronic  Communications  Networks  and  Services102 
(however,  a  decision  of  the  EU  Council  rather  than  of  the  Commission  would  be 
necessary to maintain the independent status of the NSIAs). This would respond to 
the  recommendation  formulated  by  the  “Group  of  Experts”  which  called  for  a 
"formal  recognition  of  the  coordinating  role  of  Aviation  Safety  Investigating 
Authorities in a European context". Such a decision would define the mandate of the 
grouping. 

Regular  meetings  between the  NSIAs, Commission  and  EASA  would  contribute  to 
greater  uniformity,  better  implementation  and  enforcement  of  the  Community  civil 
aviation accident investigation legislation. It would also strengthen the investigating 
capacity  of  the  EU  and  the  preventive  function  of  accident  investigation  by 
promoting  a  more  coordinated  cooperation  between  the  NSIAs,  Commission  and 
EASA, while fully retaining the independent status of NSIAs. 

The  structure  of  the  coordination  grouping  of  NSIAs  would  remain  unchanged.  It 
would  be  composed  of  the  respective  heads  of  the  NSIAs  of  all  the  MS.  It  would 
appoint its Chair and its Vice-Chair(s) from among its members, subject to its rules 
of  procedure.  It  could  establish  technical  groups  to  deal  with  specific  issues  such 
flight recorders, human factors or safety recommendations. 

The  grouping  of  NSIAs  would  retain  an  independent  status.  Its  members  would 
neither seek nor accept instructions from any public or private groupings or entities. 
The  Commission  and  EASA  would  however  participate  in  its  meetings  for  those 
subject matters which do not raise issues of conflict of interest. 

Specific  support  of  the  Commission  to  the  grouping  could  be  provided  through  an 
annual  grant  assigned  on  the  basis  of  the  Council  Regulation  (EC,  Euratom)  No 
1605/2002 of 25 June 2002 (the Financial Regulation)103. To minimise administrative 
burden  and  avoid  the  creation  of  a  fully  fledged  administration,  this  annual  grant 
would be allocated to the chairman of the grouping who would be responsible for the 
use of the grant and the formal contractual counterpart of the Commission.  

The  specific  responsibilities  of  the  grouping  of  NSIAs  supported  under  this  policy 
option would be to: 

–  Issue  opinions  and  advising  Community  institutions  on  all  aspects  related  to  the 
development of the EU civil aviation accident investigation and prevention policy; 

–  Actively promote a more structured cooperation between the NSIAs and between 

the NSIAs, Commission and EASA; 

–  Coordinate training activities of the NSIAs; 

–  Promote  best  investigation  practices  and  develop  a  common  EU  accident 

investigation methodology; 

–  Organise "peer reviews" allowing to standardise the NSIAs on a voluntary basis; 

102 
103 

OJ L 200, 30.07.2002, p.38. 
OJ L 248, 16.9.2002, p.1. 

EN 

39 

   EN 

 
                                                 
–  Promote  dialogue  between  the  NSIAs  and  law  enforcement  authorities  to  better 

coordinate involvement of various entities in accident investigation; 

–  Promote a European database of safety recommendations, exchange of safety data 
between the EU safety authorities and identify important recommendations of EU 
wide relevance; 

–  Coordinate the development of voluntary occurrence reporting systems; 

The specific activity which could be supported under this policy option would be the 
development of a mechanism for sharing of investigation resources available in the 
MS. This would be similar to some of the functions of the "Community mechanism 
for  civil  protection"104  and  constitute  a  one-stop-shop  of  civil  aviation  accident 
investigation means available in the EU, through which the NSIAs would be able to 
make an appeal for assistance. 

2. 

Expected benefits 

Increasing the investigation capacity of the EU 

This policy option is expected to strengthen the overall investigating capacity of the 
EU  and  of  individual  NSIAs.  This  would  be  achieved  in  particular  through  the 
mechanism for sharing of the investigation resources available in the MS. The skills 
and expertise of investigators are also expected to increase through coordination of 
training activities and development of common training and qualification guidelines. 
However, given the past experiences with voluntary cooperation in aviation, it is not 
expected that full harmonisation can be achieved only through this policy option. 

Strengthening the dialogue on safety matters in the EU 

The  grouping  of  NSIAs,  to  be  supported  under  this  policy  option,  although  having 
advisory  and  opinion  making  powers  only,  would  at  the  same  time  represent  the 
single  voice  of  the  NSIAs  and  thus  constitute  a  strong  counterpart  to  both  national 
and EU institutions in a dialogue related to all issues related to the development of 
civil  aviation  safety  investigation  policy  and  regulation  in  the  Community.  This 
policy  option  is  expected  to  further  increase  the  transparency  and  quality  of  the 
dialogue on air safety matters in the EU. 

Better coordination between authorities involved in accident investigation 

This  policy  option  is  not  expected  to  strengthen  protection  of  evidence  and  of 
sensitive safety information, in line with Annex 13. It is also not sufficient to provide 
better  protection  for  occurrence  reports  from  being  used  in  non-safety  related 
proceedings. 

Better implementation of safety recommendations 

Some  safety  benefits  are  expected  due  to  more  structured  cooperation  between  the 
NSIAs,  Commission  and  EASA.  Better  implementation  of  safety  recommendations 
could be also achieved through closer exchange of information and promotion of a 
central  database  of  safety  recommendations.  This  policy  option  however  is  not 
sufficient  to  establish  a  common  process  in  the  EU  for  managing  safety 
recommendations (lack of legal accountability). 

104 

2007/779/EC,Euratom:  Council  Decision  of  8  November  2007  establishing  a  Community  Civil 
Protection Mechanism 

EN 

40 

   EN 

 
                                                 
Clarifying the role of the Community in safety investigations 

This policy option is not expected to adequately address the issue of lack of clarity 
concerning  the  mutual  rights  and  obligations  of  NSIAs  and  EASA  in  accident 
investigations. 

Protection of the rights of air crash victims and their families 

This  policy  option  is  not  expected  to  address  the  issue  of  passenger  lists  and  to  a 
limited extent the issue of assistance to the victims of air accidents and their families. 

Maintaining independent status of safety investigations 

The  independent  status  of  NSIAs  and  of  the  investigations  would  not  be  affected 
under his policy option. 

Results of the public consultations 

This policy option is expected to have support from the NSIAs, majority of which in 
the  public  consultations  expressed  the  view,  that  "improved  efficiency  could  be 
achieved by better coordination and promotion of voluntary cooperation". It does not 
necessitate  establishment  of  new  structures  or  significant  administrative  burden  for 
the  Community,  NSIAs  or  industry.  It  is  based  on  the  already  existing  cooperation 
and resources available in the MS. The only cost for the Community budget would 
be the annual grant. 

Simplification and better regulation 

This  policy  option  would  be  in  line  with  the  Commission's  strategy  of  "Better 
Regulation",  by  relying  on  promotion  of  voluntary  cooperation  rather  than 
regulation. 

(3) 

Policy  Option  No  3  "The  European  Network  of  Civil  Aviation  Safety 
Investigation Authorities" 

This  policy  option  relies  on  promotion  of  voluntary  cooperation  which  objectives 
would be enshrined in a legally binding framework. It would be implemented on the 
basis  of  a  directly  applicable  Regulation  adopted  under  Article  80(2)  of  the  EC 
Treaty and repealing Directive 94/56/EC. 

1. 

Promotion of voluntary cooperation… 

The  first  “building  block”  of  this  policy  option  is  similar  to  Policy  Option  No  2 
"Promotion of voluntary cooperation".  It would also build on the resources already 
available in the MS and experiences of the existing informal grouping of NSIAs (the 
Council of European Aviation Safety Investigation Authorities). This would be done 
by responding to the recommendation formulated by the "Group of Experts" which 
called  for  a  "formal  recognition  of  the  coordinating  role  of  Aviation  Safety 
Investigating Authorities in a European context".  

However,  under  this  policy  option  the  current  informal  cooperation  between  the 
NSIAs  would  be  transformed,  through  the  new  Community  Regulation,  into  a 
European  Network  of  Civil  Aviation  Safety  Investigation  Authorities  ("the 

EN 

41 

   EN 

 
Network").  The  new  Regulation  would  define  the  mandate  of  “the  Network”  as 
promotion of aviation safety through independent safety investigations.105 

"The  Network"  would  contribute  to  greater  uniformity,  better  implementation  and 
enforcement  of  the  Community  civil  aviation  accident  investigation  legislation.  It 
would  also  strengthen  the  investigating  capacity  of  the  EU  and  the  preventive 
function  of  accident  investigation  by  promoting  a  more  structured  cooperation 
between the NSIAs, the Commission and EASA, while retaining a fully independent 
status.  An  important  function  of  “the  Network”  would  be  also  to  facilitate  the 
exchange of safety related information between the NSIAs. 

"The Network" would be composed of the respective heads of the NSIAs of all the 
MS.  It  would  appoint  its  Chair  and  its  Vice-Chair(s)  from  among  its  members, 
subject to its rules of procedure. "The Network" would have the capacity to establish 
technical groups to deal with specific issues such flight recorders, human factors or 
safety recommendations. 

"The  Network"  would  have  an  important  function  of  enhancing  the  investigating 
capacity  of  the  EU  and  NSIAs.  To  this  end  "the  Network"  would  promote  the 
development of a mechanism for sharing of investigation resources available in the 
MS. This would be similar to some of the functions of the "Community mechanism 
for  civil  protection"106  and  constitute  a  one-stop-shop  of  civil  aviation  accident 
investigation  means  available  in  the  EU,  through  which  NSIAs  would  be  able  to 
make  an  appeal  for  assistance.  "The  Network"  would  also  coordinate  the  training 
activities and organise regular "peer reviews" of NSIAs, to gradually build up a more 
uniform investigation capacity of the EU. 

"The Network" would retain an independent status. Its members would neither seek 
nor accept any instruction from any government, from the Commission, or from any 
other  public  or  private  groupings.  The  Commission  and  EASA  would  however 
participate in the meetings of "The Network" for those subject matters which do not 
raise issues of conflict of interest.  

In order to avoid the creation of a new Community body, “the Network” would have 
no  legal  personality  under  the  Community  law  and  its  mandate,  which  would  be 
clearly  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,  within  the  meaning  of  Article  108  (1)b  of  the  Council  Regulation  (EC, 
Euratom) No 1605/2002 of 25 June 2002 (the Financial Regulation)107, which would 
allow  the  Community  to  support  its  activities  with  an  annual  grant.  To  minimise 
administrative  burden  and  avoid  the  creation  of  a  fully  fledged  administration,  this 
annual  grant  would  be  allocated  to  the  chairman  of  “the  Network”  who  would  be 
responsible  for  the  use  of  the  grant  and  the  formal  contractual  counterpart  of  the 
Commission. Grants to be awarded to “the Network” would be subject to an annual 

105 

106 

107 

and 

countries 

candidate 

Similar  to  the  European  Union  Network  for  the  Implementation  and  Enforcement  of  Environmental 
Law  (IMPEL)  which  is  an  international  association  of  the  environmental  authorities  of  the  MS, 
countries, 
acceding 
http://ec.europa.eu/environment/impel/index.htm  Also  the  Joint  Aviation  Authorities  (JAA),  the 
predecessor of EASA, had a status of a foundation based on Dutch law (Final Report of the Future of 
JAA working Group, http://www.jaa.nl/) 
2007/779/EC,Euratom:  Council  Decision  of  8  November  2007  establishing  a  Community  Civil 
Protection Mechanism (recast) (Text with EEA relevance) 
OJ L No 248/1 of 16.9.2002 

the  European  Union 

and  EEA 

of 

EN 

42 

   EN 

 
                                                 
work  programme  agreed  by  the  Commission.  The  work  programme  would  be  also 
made public. 

The  specific  responsibilities  of  "the  Network",  supported  under  this  policy  option 
would be to: 

–  Issue  opinions  and  advising  the  Community  institutions  on  all  aspects  related  to 
the  development  and  implementation  of  the  EU  civil  aviation  accident 
investigation and prevention policy; 

–  Actively promote a more structured cooperation between the NSIAs and between 

the NSIAs, Commission and EASA; 

–  Coordinate training activities of the NSIAs; 

–  Promote  best  investigation  practices  and  develop  a  common  EU  accident 

investigation methodology; 

–  Strengthen the investigation capacity of the NSIA by developing and managing a 

mechanism for sharing of investigating resources; 

–  Organising  "peer  reviews"  allowing  to  standardise  the  NSIAs  on  a  voluntary 

basis; 

–  Promote  dialogue  between  NSIAs  and  law  enforcement  and  judicial  authorities 
(for example with structures such as Eurojust) to better coordinate involvement of 
various entities in accident investigations; 

–  Promote a European database of safety recommendations, exchange of safety data 
between the EU safety authorities and identify important recommendations of EU 
wide relevance; 

–  Coordinate the development of voluntary occurrence reporting systems; 

The activity of “the Network” would be regularly monitored in accordance with the 
principles  established  in  the  new  Regulation.  In  particular  the  Network  would  be 
obliged  to  submit  an  annual  report  on  its  activities,  which  would  be  made  public. 
Such  monitoring  is  necessary  to  ensure  the  accountability  of  the  Network  and  to 
control the efficiency of its work. The respect for the principles of the Community 
financial discipline in the disbursement of the grants awarded to the Network would 
also need to be ensured in accordance with the EC financial regulations. 

2. 

Backed by obligations enshrined in law… 

The main drawback of a policy option involving voluntary cooperation only is lack 
of  a  legal  obligation  to  act  within  the  framework  of  a  clearly  defined  mandate. 
Voluntary cooperation is also not expected to adequately resolve issues where legal 
certainty  is  needed,  such  as  protection  of  sensitive  safety  information,  defining  the 
mutual  rights  and  obligations  of  NSIAs  and  EASA  in  safety  investigations  or 
establishing uniform requirements in terms of processing of safety recommendations. 

To  avoid  such  drawbacks,  which  are  at  the  centre  of  the  improvement  needed  to 
address the problems identified in Section 3 of this IA, this policy option would back 
the voluntary cooperation by a number of obligations enshrined in law. 

The new Regulation would recognise the coordinating role of "the Network" in the 
European context and give it a clear mandate to act. In addition, it would update the 
current regulatory framework for civil aviation accident investigation and occurrence 

EN 

43 

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reporting  and  address  issues  which  are  not  expected  to  be  adequately  solved  by 
voluntary cooperation only. 

From  the legal point  of  view,  using a  Regulation,  rather than a Directive would be 
necessary  to  address  the  rights  and  obligations  of  EASA.  A  Regulation  would  also 
contribute  to  better  implementation,  as  the  same  law  would  apply  in  each  MS 
without the need for transposition measures, enable immediate application and focus 
the attention of the Community on enforcement.  

The key provisions of the Regulation envisaged under this policy option would: 

–  Update  and  modernise  the  main  provisions  of  the  former  Directive  94/56/EC, 

taking into account in particular the ongoing revision of Annex 13; 

–  Strengthen  the  efficiency  of  safety  investigations  by  implementing  into  the 
Community law the recommended standards of ICAO related to the protection of 
evidence and sensitive safety information, in accordance with Annex 13; 

–  Strengthen  the  protection  of  occurrence  reports  from  being  used  in  non-safety 

related proceedings; 

–  Establish common requirements in terms of organisation of NSIAs; 

–  Require  the  NSIAs  to  conclude  appropriate  arrangement  with  other  authorities 
(judicial,  search  and  rescue)  likely  to  be  involved  in  accident  investigation  to 
ensure better coordination between them; 

–  Clarify  the  mutual  rights  and  obligations  of  EASA  and  NSIAs  without 
compromising  independence  of  safety  investigations,  and  using  Annex  13  as  a 
reference (see below); 

–  Specify  the  criteria  on  the  basis  of  which  NSIAs  would  appoint  accredited 

representatives for the "State of Design"; 

–  Establish common requirements for Community airlines regarding passenger lists, 
and  minimum  standards  concerning  provision  of  assistance  to  the  victims  and 
families in the immediate aftermath of an air accident; 

–  Better  protect  anonymity  of  persons  involved  in  accident  (currently  under 
Directive  94/56/EC  such  protection  is  afforded  only  to  persons  involved  in 
incidents).108 

–  Establish  a  legal  requirement  for  every  entity  in  the  EU  issuing  a  safety 

recommendation or receiving it to have a process for: 

(a) 

recording the responses to the safety recommendation issued; 

(b)  monitoring  the  progress  of  the  action  taken  in  response  to  a  safety 

recommendation; 

3. 

Expected benefits 

Increasing the investigation capacity of the EU 

This policy option is expected to strengthen the overall investigating capacity of the 
EU  and  of  individual  NSIAs.  This  would  be  achieved  in  particular  through  the 
mechanism for sharing of the investigating resources available in the MS. The skills 

108 

Articles 7 and 8 of the Directive 94/56/EC 

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44 

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and expertise of investigators are also expected to increase through coordination of 
training  activities,  “peer  reviews”  and  the  development  of  common  training  and 
qualification  guidelines.  However,  given  the  past  experiences  with  voluntary 
cooperation  in  aviation,  it  is  not  expected  that  full  harmonisation  can  be  achieved 
through this policy option. 

Strengthening the dialogue on safety matters in the EU 

"The Network", although having advisory and opinion making powers only, would at 
the  same  time  represent  the  single  voice  of  the  NSIAs  and  thus  constitute  a  strong 
counterpart  to  both  national  and  EU  institutions  in  a  dialogue  related  to  the 
development  of  civil  aviation  safety  investigation  policy  and  regulation  in  the 
Community. This policy option is expected to further increase the transparency and 
quality of the dialogue on air safety matters in the EU. 

Better coordination between authorities involved in accident investigation 

Better  efficiency  of  safety  investigations  (as  well  as  other  proceedings)  would  be 
achieved  by  providing  a  more  structured  platform  for  coordination  between  the 
various authorities. 

In  addition  better  protection  of  sensitive  safety  information  would  be  achieved  by 
incorporating  into  the  Community  law  the  relevant  standards  and  recommended 
practices of ICAO in this respect. 

Better implementation of safety recommendations 

Significant safety benefits are expected due to more structured cooperation between 
the  NSIAs,  Commission  and  EASA  as  well  as  better  implementation  of  safety 
recommendations.  This  would  be  achieved  through  closer  exchange  of  information 
through  "the  Network",  establishment  of  a  central  database  of  safety 
recommendations  and  a  common  process  for  managing  safety  recommendations  in 
the EU. 

Protection of the rights of air crash victims and their families 

This  policy  option  would  allow  to  strengthen  the  rapid  availability  of  reliable 
passenger  lists  in  the  aftermath  of  an  accident  and  to  adequately  protect  data 
contained  in  the  lists  from  unauthorised  use  or  disclosure.  It  would  also  allow  to 
establish minimum requirements across the EU concerning provision of assistance to 
the victims and families in the immediate aftermath of an air accident. 

Clarifying the role of Community in safety investigations 

Safety benefits are expected from clarification of the rights and obligations of EASA 
and  NSIAs  in  accident  investigations.  This  would  cover  the  right  of  EASA,  as  a 
responsible design authority, to be represented during the investigation and to obtain 
without  delay  any  factual  information  which  may  be  needed  to  take  an  immediate 
safety action in an aftermath of an accident. EASA would be also granted the right to 
participate  in  the  exchange  and  analysis  of  information  stored  in  the  central 
repository of occurrences.  

Two  scenarios  will  have  to  be  distinguished:  (1)  events  where  a  MS  of  the  EU  is 
conducting  the  investigation;  (2)  events  where  a  third  country  is  conducting  the 
investigation: 

EASA should be also obliged to contribute to the investigation, so that more accurate 
findings and safety recommendations can be made. 

EN 

45 

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The new Regulation would also define the criteria on the basis of which the NSIAs 
would appoint accredited representatives for the "State of Design". 

Maintaining independent status of safety investigations 

The  independent  status  of  investigations  would  not  be  affected,  as  "the  Network" 
would retain a status of an association of NSIAs, and be independent from any other 
body which interests could conflict with the objectives of safety investigations. 

Results of the public consultations 

This policy option is expected to have support from the NSIAs, majority of which in 
the  public  consultations  expressed  the  view,  that  "improved  efficiency  could  be 
achieved by better coordination and promotion of voluntary cooperation". It does not 
necessitate  establishment  of  new  structures  or  significant  administrative  burden  for 
the  Community,  NSIAs  or  industry.  It  is  based  on  the  already  existing  cooperation 
and resources available in the MS. The only cost for the Community budget would 
be  the  annual  grant  assigned  to  support  "The  Network"  on  the  basis  of  an  agreed 
work programme.  

Simplification and better regulation 

This  policy  option  would  be  in  line  with  the  Commission's  strategy  of  "Better 
Regulation",  by  relying  on  co-regulation  and  promoting  better  implementation  of 
legislation in a proportionate manner. 

4. 

Implementation risks 

The main implementation risks which can be associated with this policy option relate 
to: (1) practical implementation of the established principles relating to coordination 
between  judicial  authorities  and  NSIA,  including  in  the  area  of  evidence  gathering 
and  protection  of  certain  safety  related  information,  which  is  expected  to  be  a 
sensitive issue; (2) accountability of addressees from third countries for assessment 
and reply to safety recommendations issued by the EU authorities. 

Concerning  the  issue  of  coordination  of  different  proceedings,  the  main  mitigating 
measure  will  be  provided  for  in  the  new  Regulation,  which  should  ensure  a  proper 
balance  between  the  interests  of  the  safety  authorities  on  the  one  side  and  judicial 
authorities on the other. It is however difficult to predict at this stage, to what extent 
exactly  the  implementation  risks  in  this  respect  can  be  mitigated.  The  role  of  “the 
Network” as a body promoting a more structured dialogue between NSIAs and law 
enforcement and judicial authorities will be important in this respect.  

The global standards concerning management of safety recommendations cannot be 
addressed  through  a  Community  Regulation  only.  In  addition  the  final  decision 
regarding  implementation  of  a  safety  recommendation  always  rests  with  its 
addressee. However, the currently ongoing discussion concerning the revision of the 
Annex 13109 within the framework of ICAO includes proposals on new standards in 
this  respect  and  if  adopted  will  significantly  contribute  to  the  establishment  of 
globally accepted standards for management of safety recommendations; 

Last but not least, due to the fact that this policy option may involve engagement of 
resources  from  the  Community  budget,  the  risk  of  fraud  will  also  have  to  be  taken 

109 

c.f. 98 

EN 

46 

   EN 

 
                                                 
into  account  and  managed  appropriately, 
monitoring of the activities of “the Network”. 

in  particular 

through  appropriate 

(4) 

Policy Option No 4 “European Civil Aviation Safety Board" 

The last policy option which could be envisaged to address all the issues identified in 
Chapter  III,  would  be  to  establish  a  European  Civil  Aviation  Safety  Board  ("the 
European Safety Board"), tasked with investigation of accidents on behalf of the MS. 

The  European  Safety  Board  could  be  established  for  all  modes  of  transport  or  for 
civil  aviation  only.  Given  however  that  multimodal  boards  exist  in  a  few  MS  only 
and  that  the  highest  level  of  harmonisation  of  accident  investigation  has  been 
achieved  in  civil  aviation,  this  policy  option  in  practice  would  be  focused  on  a 
dedicated civil aviation body. 

1. 

How this policy option would be implemented? 

The  European  Safety  Board  would  be  established  as  a  fully  fledged  Community 
agency  for  civil  aviation  accident  investigation,  similar  to  the  U.S.  National 
Transportation Safety Board (NTSB).110 It would actually conduct investigations of 
accidents occurring in the EU and participate, through accredited representatives, in 
investigations led by third countries. The European Safety Board would also manage 
a central EU database of safety recommendations and issue safety recommendations 
to all entities at the national or Community level. 

Under this policy option the NSIAs would be either replaced by the European Safety 
Board or a proportionate threshold would be established whereby the NSIAs would 
be  responsible  for  investigation  of  smaller  but  most  numerous  accidents  involving 
general  aviation  aircraft.  Under  this  latter  solution,  the  NSIAs  would  also  act  as 
national  offices  of  the  European  Safety  Board,  providing  a  link  with  the  local 
authorities  in  the  MS  and  ensuring  that  investigation  can  be  instigated  in  a  rapid 
manner  pending  arrival  of  the  team  from  the  central  body.  The  European  Safety 
Board  would  standardise  the  NSIA  and  ensure  uniform  level  of  quality  in  safety 
investigations and training of investigators across the EU. 

This policy option would necessitate a radical change in the current institutional and 
legal  framework  for  civil  aviation  accident  investigation  in  the  EU.  However,  EU 
wide, it would be expected to have the strongest safety benefits due to the fact that 
investigation of all major accidents would be performed by a single specialised body 
on the basis of common standards and by centrally trained investigators.  

The European Safety Board should carry out its tasks independently, impartially and 
transparently. It should be independent from any public or private organisation at the 
national or Community level whose interests could conflict with its tasks. 

This  policy  option  would  be  implemented  through  a  directly  applicable  Regulation 
adopted  on  the  basis  of  Article  80(2)  of  the  EC  Treaty  and  repealing  the  current 
Directive  94/56/EC.  Given  the  fact  that  it  would  pursue  tasks  assigned  to  it  by  the 
Communities and have its activities financed from the Community budget (an annual 
subsidy),  European  Safety  Board  would  constitute  a  Community  body  within  the 

110 

The  National  Transportation  Safety  Board  is  an  independent  US  federal  agency  charged  by  US 
Congress with investigating every civil aviation accident in the United States and significant accidents 
in  the  other  modes  of  transportation  --  railroad,  highway,  marine  and  pipeline  --  and  issuing  safety 
recommendations aimed at preventing future accidents. 

EN 

47 

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meaning of the Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on 
the  Financial  Regulation  applicable  to  the  general  budget  of  the  European 
Communities.  

In addition to the establishment of the European Safety Board, and definition of its 
mandate under this policy option, the new Regulation would: 

–  Update  and  modernise  the  main  provisions  of  the  former  Directive  94/56/EC, 

taking into account in particular the ongoing revision of Annex 13; 

–  Define the eventual role of the NSIAs vis a vis the European Safety Board (should 

the NSIAs retained); 

–  Establish  the  investigation  methodology  to  be  followed  by  the  European  Safety 

Board and NSIAs; 

–  Establish common requirements in terms of organisation of the NSIAs; 

–  Establish  requirements  in  terms  of  training  and  qualifications  of  the  EU 

investigators; 

–  Strengthen  the  efficiency  of  safety  investigations  by  implementing  into  the 
Community  law  the  recommended  standards  of  ICAO  related  to  protection  of 
evidence and sensitive safety information, in accordance with Annex 13; 

–  Strengthen  the  protection  of  occurrence  reports  from  being  used  in  non-safety 

related proceedings; 

–  Clarify  the  mutual  rights  and  obligations  of  the  European  Safety  Board,  EASA 

and NSIAs without compromising independence of safety investigations; 

–  Better  protect  anonymity  of  persons  involved  in  accident  (currently  under 
Directive  94/56/EC  such  protection  is  afforded  only  to  persons  involved  in 
incidents).111 

–  Establish common requirements for Community airlines regarding passenger lists, 
and  minimum  standards  concerning  provision  of  assistance  to  the  victims  and 
families in the immediate aftermath of an air accident; 

–  Establish  a  requirement  for  every  entity 

in 

the  EU 

issuing  a  safety 

recommendation or receiving it to have a process for: 

(a) 

(c) 

recording the responses to the safety recommendation issued; 

monitoring  the  progress  of  the  action  taken  in  response  to  a  safety 
recommendation 

The mandatory standards would be adopted by the Commission in the framework of 
a  comitology  procedure,  and  its  application  by  NSIAs  would  be  verified  through 
mandatory standardisation inspections. 

2. 

Implementation risks 

Implementation of this policy option is characterised  by specific risks,  which merit 
closer attention.  

First of all, it is difficult to assess if successful implementation of this option would 
not be hampered by the fact that the European Safety Board would have to operate as 

111 

Directive 94/56/EC, Articles 7 and 8 

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48 

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an  IIC  in  27  different  jurisdictions  of  the  EU  MS.  This  consideration  is  critical, 
having in mind a close link between judicial procedures and accident investigations 
and  the  inherent  need  for  the  ICC  to  work  in  close  cooperation  with  the  local  law 
enforcement  authorities.  The  specificities  of  the  local  situation  may  also  play  an 
important  role  in  implementation  of  this  policy  option,  having  in  mind  the  very 
operational nature of accident investigation.  

As indicated above, these risks could be mitigated to a certain extent by having the 
European Safety Board assisted by NSIAs which would act as its regional offices and 
provide  a  link  with  the  specificities  of  the  local  situation.  This  would  however 
increase  the  costs  of  this  particular  policy  option  and  in  consequence  reduce  the 
benefits of the expected economies of scale. 

3. 

Expected benefits 

Increasing the investigation capacity of the EU 

This  policy  option  is  expected  to  significantly  strengthen  the  overall  investigating 
capacity of the EU. All investigations would be conducted by a central, independent, 
specialised  body,  according  to  a  common  methodology  and  by  centrally  trained 
investigators. The European Safety Board could be also assisted by NSIAs acting as 
its  national  offices  and  providing  appropriate  link  with  the  local  situation  in  each 
MS. 

More transparency and independence in safety matters 

The  European  Safety  Board  would  represent  a  strong  counterpart  to  all  regulators 
and certifying authorities at the national and Community level. It would be very well 
placed  to  issue  safety  recommendations  and  to  monitor  their  implementation.  It 
would also have resources adequate to be at par with the largest manufacturers and 
airlines.  This  policy  option  would  thus  significantly  contribute  to  the  promotion  of 
transparency and independence in safety investigations. 

Better implementation of safety recommendations 

Significant  safety  benefits  are  expected  due  to  the  fact  that  the  European  Safety 
Board would be well placed to issue safety recommendations addressed to entities at 
the  national  and  Community  level  as  well  as  industry.  It  would  also  manage  the 
central  database  of  safety  recommendations,  identify  recommendations  of  EU  wide 
relevance  and  ensure  management  of  recommendations  in  a  standardised  manner 
across  the  Community.  All  entities  issuing  or  receiving  safety  recommendations 
would be legally accountable for their assessment and appropriate follow up.  

Clarifying the role of Community in safety investigations 

Significant  safety  benefits  are  expected  through  definition  of  the  relationship 
between the European Safety Board (its local offices) and EASA. This would cover 
the  right  of  EASA  to  be  represented  during  the  investigation  and  to  obtain  without 
delay  any  factual  information  which  may  be  needed  to  take  an  immediate  safety 
action  in  an  aftermath  of  an  accident.  In  addition  EASA  would  be  obliged  to 
contribute  to  the  investigation,  so  that  more  accurate  findings  and  safety 
recommendations can be made. EASA would be also granted the right to participate 
in  the  exchange  and  analysis  of  information  stored  in  the  central  repository  of 
occurrences. 

EN 

49 

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Similarly to the previous policy option, two scenarios will have to be distinguished: 
(1)  events  where  the  European  Safety  Board  (or  its  local  office)  is  conducting  the 
investigation;  (2)  events  where  a  third  country  is  conducting  the  investigation  and 
where the European Safety Board participates through its accredited representatives. 

Better coordination between authorities involved in accident investigation 

Better  efficiency  of  safety  investigations  would  be  achieved  by  providing  a  more 
structured platform for coordination between the various authorities involved in the 
investigation.  In  addition  better  protection  of  sensitive  safety  information would be 
achieved  by  incorporating  into  the  Community  law  the  relevant  standards  and 
recommended practices of ICAO in this respect. This would cover also protection of 
occurrence reports from use in non-safety related proceedings. 

Protection of the rights of air crash victims and their families 

This  policy  option  would  allow  to  strengthen  the  rapid  availability  of  reliable 
passenger  lists  in  the  aftermath  of  an  accident  and  to  adequately  protect  data 
contained  in  the  lists  from  unauthorised  use  or  disclosure.  It  would  also  allow  to 
establish minimum requirements across the EU concerning provision of assistance to 
the victims and families in the immediate aftermath of an air accident. 

Maintaining independent status of safety investigations 

The  independent  status  of  investigations  would  not  be  affected,  as  the  European 
Safety  Board  would  not  be  involved  in  any  tasks  which  could  conflict  with  the 
objectives of safety investigations. The European Safety Board would be obliged to 
carry out its tasks independently, impartially and transparently. 

Results of public consultations 

Opinions expressed in public consultations varied considerably as to the added value 
of  establishing  a  single  European  safety  investigation  authority.  Most  of  the 
respondents  representing  MS  authorities  indicated  that  this  policy  option  is  not 
feasible in the current situation, whereby some argued that it could be a good option 
for  the  future.  On  the  other  side,  majority  of  the  respondents  representing 
manufacturing industry favored this policy option. 

4. 

Why  EASA  or  the  Commission  could  not  be  tasked  with  the  functions  of  the 
European Safety Board? 

One could envisage assigning the tasks of the European Safety Board to an already 
existing  institution  such  as  EASA  or  Commission.  In  particular  EASA,  as  a  body 
with  significant  experience  in  safety  matters,  could  be  tasked  with  these  functions. 
Although  this  solution  could  be  deemed  as  attractive  from  practical  and  cost-
efficiency point of view, it would also have serious deficiencies. 

It  is  necessary  that  the  EU  fully  respects  the  principle  of  independent  safety 
investigations and contributes to its strengthening. In this context it has to be noted 
that  EASA,  as  an  entity  involved  in  aircraft  certification,  could  be  in  a  potential 
conflict  of  interest  with  the  objectives  of  safety  investigation.  Similar  conflicts  of 
interest would exist if the Agency would be issuing safety recommendations to itself. 

One could envisage trying to address the conflict of interest issue by putting in place 
appropriate mitigating measures such as establishment of an independent unit in the 
Agency,  similar  the  EASA  Board  of  Appeal,  which  is  responsible  for  deciding  on 
appeals  against  the  decisions  of  the  Executive  Director  of  EASA.  However,  this 

EN 

50 

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solution  is  not  considered  as  credible  and  also  not  expected  to  get  the  necessary 
support from the MS authorities and industry. 

Similarly  one  could  envisage  giving  to  the  Commission  the  tasks  of  the  European 
Safety Board. Similarly however, this solution could raise questions as to the respect 
for  independence  of  safety  investigations,  especially  in  situations  where  the 
circumstances  of  an  accident  would  be  indicating  weaknesses  in  Community 
standards.  In  addition  the  Commission  does  not  have  the  adequate  capacity  and 
expertise  to  efficiently  discharge  such  functions  (which  are  of  a  very  operational 
nature) without the support of an Agency. 

6. 

6.1. 

ANALYSIS OF IMPACTS 

Introduction and rating of impacts 

All  presented  policy  options  have  strong  and  weak  points,  including  in  particular 
trade-offs between safety and cost-efficiency. It is thus necessary to assess not only 
their  economic,  social  and  environmental  impacts  but  most  importantly  safety 
impacts, which are an overriding factor within the context of this IA. 

The  costs  of  implementation  and  administrative  burden  involved  has  to  be  also 
carefully  considered,  as  some  of  the  policy  options  envisage  establishment  of  new 
structures and would impact on the Community and MS budgets. 

Rating of Impacts 

Weighting of impacts 

Positive impacts or savings (intensity): 
√ to √√√ 

Negative  impacts  or  costs  (intensity):  
- √ to - √√√ 

Safety  impacts  and  implementation  risks  are  given  the 
highest 
of 
implementation and all other impacts (see point 8.1 below 
for detail weighting of impacts); 

relative  weight, 

followed 

costs 

by 

6.2. 

Safety impacts related to identified problem areas 

This section presents safety impacts of each policy option 

Policy Option 2 "Promotion of voluntary cooperation" 

Justification 

Rating 

–  Investigation  capacity  of  NSIA  is  expected  to  be  strengthened  (more  structured  cooperation  of 
NSIA,  establishment  of  a  mechanism  for  sharing  of  resources,  coordination  of  training  activities, 
development of best investigation practices and guidance material); 

–  Some  improvements  in  implementation  of  safety  recommendations  can  be  expected  (closer 
exchange  of  information,  common  platform  for  identifying  recommendations  of  EU  wide 
relevance, promotion of the EU safety recommendations database); 

–  Not adequate to strengthen protection of evidence and sensitive safety information; 

–  Not  adequate  to  ensure  protection  of  occurrence  reports  from  use  in  non-safety  related 

√ 

proceedings; 

–  Not expected to define the mutual rights and obligations of EASA and NSIAs; 

–  Not  adequate  to  ensure  a  common  process  for  managing  safety  recommendations  in  the  EU 

(including accountability of the addressee for follow up); 

–  Not  adequate  to  address  the  issue  of  passenger  manifests,  and  only  to  a  certain  extent  of  the 

assistance provided to the victims and families; 

EN 

51 

   EN 

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

Justification 

Rating 

Additional benefits expected (compared to Policy Option 2): 

–  More certainty in obtaining all relevant safety information which is necessary for the success 

of a safety investigation (better protection of sources of information); 

–  More safety data on occurrences to analyse (better protection of occurrence reports from use in 

non-safety related proceedings); 

–  Better  flow  of  factual  safety  information  (defining  mutual  rights  and  obligations  of  NSIA  and 

EASA); 

–  More uniform investigation process (Common requirements in terms of organisation of NSIAs); 

–  Better  implementation  of  safety  recommendations  (establishing  common  requirements  for 

processing of safety recommendations in the EU); 

–  Less  tensions  between  the  authorities  involved  in  accident  investigation  (better  coordination 

through advance arrangements); 

–  Better protection of the rights of the victims and families in the aftermath of an air accident 

√√ 

Policy Option 4 "European Civil Aviation Safety Board" 

Justification 

Rating 

Additional safety benefits expected (compared to Policy Option No 3): 

–  Fully  harmonised  investigation  process  (single  body  conducting  all  major  investigations, 
common  investigation  methodology,  centrally  trained  investigators,  standardisation  of  NSIAs 
through mandatory inspections); 

√√√ 

–  Better  and  more  transparent  implementation  of  safety  recommendations  (independent 
mechanism for issuing safety recommendations and monitoring of their implementation, centrally 
managed database of safety recommendations). 

6.3. 

Economic, social and environmental impacts 

The considerations presented below are common to all the options 

Assessment criteria 

Rating 

Justification of the rating  

Economic impacts112 

Social Impacts113 

√  

to  
√√√ 

√  

to  
√√√ 

Some  positive  economic  impacts  can  be  expected,  mainly  under  Policy 
Option No 3 and 4 which should further strengthen the perception of EU air 
carriers and aircraft of European design as safe and reliable. The quantitative 
dimension of these impacts is however difficult to assess, mainly due to lack 
of a reliable methodology. 

Some positive impacts are expected especially under policy option No 3 and 4 
due to strengthening of the rights of EU citizens to safe air transport. Positive 
impacts are also expected as far as protection of the rights of air crash victims 
and 
the  working 
environment  of  aviation  professionals  are  also  expected  through  stronger 

their  families  are  concerned.  Positive 

impacts  on 

112 

113 

Economic  impacts  in  the  context  of  this  IA  are  understood  as  reflecting  factors  important  from  the 
competitiveness point of view (in this case competitiveness of the European air transport industry).  
Social impacts address issues related to quality of jobs including health and safety at work as well as 
fairness. Impacts on fundamental rights of the EU citizens and consumer protection are also covered by 
this section 

EN 

52 

   EN 

 
                                                 
protection of occurrence reports. The quantitative dimension of these impacts 
is however difficult to assess, mainly due to lack of reliable methodology. 

Environmental 
Impacts114 

0 

No  substantial  environmental  impacts  are  expected  as  a  result  of  the 
implementation of the policy options considered. 

6.4. 

Impacts on fundamental rights 

All  Commission  proposals  have  to  be  compatible  with  the  EU  Charter  of 
Fundamental Rights115, and it is thus necessary to assess the potential impacts of the 
proposed policy options on the fundamental rights as laid down in the Charter. 

Aviation safety is directly linked to the most important basic human right, the right to 
life.  Aviation  takes  place  in  a  hostile  environment,  in  which  a  passenger  has  no 
control and is enclosed in a vulnerable cocoon, outside of which human life cannot 
be  supported.  Under  these  circumstances,  it  is  of  paramount  importance  to  offer 
protection against threats to life.116 In this context the link between the safety impacts 
(see above) of each option and the right to life has to be stressed in particular. 

The considerations presented below are common to all the options 

Rating 

Justification of the rating  

√ to √√√ 

The proposed policy options are expected to have overall positive impacts on the right 
of  EU  citizens  to  safe  communication  by  air.  The  intensity  of  these  impacts  will  be 
related to the intensity of the safety impacts discussed above.  

Common  rules  on  the  management  of  passenger  manifest  and  minimum  standards 
concerning  assistance  to  the  victims  of  air  accidents  and  their  families  is  expected  to 
positively contribute to the protection fundamental rights of EU citizens. 

Better  protection  of  the  sensitive  safety  information,  including  in  particular  of 
occurrence  reports,  from  use  in  non-safety  related  procedures  to  attribute  blame  or 
liability  is  expected  to  positively  impact  on  working  conditions,  as  aviation 
professionals should be more willing to report safety incidents without the fear of being 
prosecuted. 

Protection of sensitive safety information from being used to attribute blame or liability 
and  closer  cooperation  between  the  safety  and  judicial  authorities  is  also  expected  to 
positively  impact  on  the  rights  of  the  persons  involved  by  reducing  the  risk  of  self-
incrimination and speeding up evidence gathering. 

6.5. 

Geographical scope of impacts including on international relations 

Due to the fact that investigation of accidents in civil aviation may involve both EU 
and  non-EU  countries,  it  is  necessary  to  assess  the  scope  and  intensity  of 
international impacts of the policy options considered. 

Policy Option 2 "Promotion of voluntary cooperation" 

Justification of the rating  

114 

115 
116 

Environmental impacts estimate to what extent the proposed measures will lead to additional emissions 
(or reduction of emissions) of carbon dioxide or other greenhouse gas emissions 
http://ec.europa.eu/justice_home/unit/charte/index_en.html 
ICAO Working Paper, DGCA/97-IP/5, “Safety Oversight, An International Responsibility”, 20 October 
1997 

EN 

53 

   EN 

 
 
 
                                                 
This policy option is expected to have no impacts on international relations. 

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

Assessment criteria 

Justification of the rating  

International impacts 

This policy option is expected to have small impacts on international relations. 

MS would continue to appoint accredited representatives (on the basis of the common 
criteria). EASA would be allowed to be represented in accident investigation in the EU 
and  to  join  a  MS  appointed  accredited  representatives  in  case  of  accidents  occurring 
outside of the EU where the interests of the Agency are involved. 

Policy Option 4 "European Civil Aviation Safety Board" 

Assessment criteria 

Justification of the rating  

International impacts 

This policy option is expected to have significant impacts on international relations. 

The European Safety Board would not only conduct investigations in the EU but also 
participate,  through  accredited  representatives,  in  accident  investigation  led  by  third 
countries  and  liaise  with  the  foreign  accident  investigation  authorities.  In  addition, 
similar  to  policy  option  No  3,  EASA  would be  allowed  to  be  represented  in  accident 
investigations  both  in  the  EU  and  overseas  where  the  interests  of  the  Agency  are 
involved.  This  policy  option  would  necessitate  notification  of  ICAO  by  all  the  MS 
about the delegation of responsibilities in accident investigation to the European Safety 
Board. 

6.6. 

Risk analysis 

The  analysis  which  follows 
implementation of each policy option. 

identifies  and  examines  risks  associated  with 

Policy Option 2 "Promotion of voluntary cooperation" 

Assessment criteria 

Rating 

Justification of the rating  

Implementation  risks 
and 
to 
obstacles 
compliance 

0 

Due  to  voluntary  nature  of  this  policy  option,  there  are  no  substantial 
additional risks associated with its implementation. 

Policy Option 3 "European Network of Civil Aviation Safety Investigation Authorities" 
Policy Option 4 "European Civil Aviation Safety Board" 

Assessment criteria 

Rating 

Justification of the rating  

Implementation  risks 
and 
to 
obstacles 
compliance 

- √  

Practical implementation of the established principles relating to cooperation 
between  judicial  authorities  and  NSIA,  including  in  the  area  of  evidence 
gathering and protection of certain safety related information is expected to 
be a sensitive issue. 

- √ 

Accountability  of  addresses  from  third  countries  for  assessing  and  replying 
to safety recommendations issued by the EU NSIAs cannot be guaranteed. 

- √ 

(Only  Option  No  4)  Certain  risks  exist  related  to  acceptance  by  third 
countries  of  accredited  representatives  appointed  by  the  European  Safety 

EN 

54 

   EN 

 
 
 
 
 
Board (experiences with EASA show that these risks can be managed). 

- √√ 

(Only Option No 4) High risks are associated with this policy option, which 
involves significant reform of the European system for civil aviation accident 
investigation. The European Safety Board would have to efficiently operate 
as  an  IIC  in  27  jurisdictions  of  the  MS.  These  risks  are  expected  to  be 
particularly high in the initial phase of the operation of the European Safety 
Board. 

7. 

COST-EFFICIENCY AND ADMINISTRATIVE BURDEN 

Safety risks can be reduced and managed but not eliminated completely. Also drastic 
risk  reduction  cannot  be  often  achieved  without  incurring  prohibitive  costs.  On  the 
other side significant safety benefits can be sometimes achieved with relatively low 
costs (for example by ensuring that all the necessary safety data and information is 
shared amongst the interested parties). Cost benefit analysis is thus necessary for all 
the policy options. 

The  below  analysis  addresses  costs  associated  with  implementation  of  the  policy 
options by commercial operators, national authorities and the Community. It does not 
cover  costs  associated  with  the  implementation  of  safety  recommendations  -  this 
analysis  has  to  be  conducted  on  a  case  by  case  basis  by  the  addressee  of  the 
recommendation and is beyond the scope of this IA. 

Policy Option No 2 “Promotion of voluntary cooperation” 

This policy option relies on the already existing cooperation between the NSIAs. It 
does not envisage establishment of new structures at the Community level and builds 
on  the  resources  available  in  the  MS.  The  implementation  risks  and  administrative 
burden  of  this  policy  option  is  thus  expected  to  be  negligible.  As  far  as  costs  of 
implementation  are  concerned,  the  only  additional  cost  would  be  an  annual  grant 
from the Community budget to support the coordination functions of the NSIAs. 

The costs incurred by the MS would not rise substantially. Already now the NSIAs 
cooperate  regularly  within  the  framework  of  the  Council  of  European  Safety 
Investigation  Authorities.  On  the  other  side,  support  of  the  Community  for 
development  of  a  mechanism  for  sharing  of  resources  between  NSIAs  or 
coordination of training is expected to bring savings and economies of scale and thus 
reduce the overall costs of functioning of NSIAs. 

The  size  of  the  annual  grant,  which  would  cover  mainly  items  related  to 
administrative management, is estimated at between 500.000 and 600.000 EURO in 
the  initial  year  of  operations.  This  is  comparable  to  the  costs  incurred  by  the 
Commission  to  finance  the  administrative  management  of  the  Community  civil 
protection mechanism.117 According to the principle of co-financing applicable to the 
grants  from  the  Community  budget,  the  total  annual  contribution  for  all  the  MS 
would similarly reach at the maximum between 500.000 and 600.000 EURO. 

117 

Commission Decision of 18.12.2008 on the annual work programme for the actions to be financed in 
2009 pursuant to Council Decision No.2007/162/EC, Euratom establishing a Civil Protection Financial 
Instrument (C(2008)8411) 

EN 

55 

   EN 

 
                                                 
This policy option is not expected to involve any additional costs or administrative 
burden for the industry. 

Policy Option No 3 “Establishment of the European Network of Civil Aviation Safety 
Investigation Authorities” 

Similarly to the previous policy option, the establishment of “the Network”, although 
in this case enshrined in law, would not necessitate establishment of new structures 
or  significant  administrative  burden  for  the  Community,  NSIAs  or  industry.  It  is 
based  on  the  already  existing  cooperation  and  resources  available  in  the  MS.  The 
main cost for the Community budget would be the annual grant assigned to support 
"The Network". 

The  size  of  the  annual  grant,  which  would  cover  mainly  items  related  to 
administrative management, is estimated at between 500.000 and 600.000 EURO in 
the  initial  year  of  operations.  This  is  comparable  to  the  costs  incurred  by  the 
Commission  to  finance  the  administrative  management  of  the  Community  civil 
protection mechanism.118 According to the principle of co-financing applicable to the 
grants  from  the  Community  budget,  the  total  annual  contribution  for  all  the  MS 
would similarly reach at the maximum between 500.000 and 600.000 EURO. 

Savings  are  expected  for  the  NSIAs  as  a  consequence  of  the  establishment  of  a 
central  mechanism  for  sharing  resources,  coordination  of  training  activities  and 
closer  cooperation  and  exchange  of  data  between  the  NSIAs.  This  policy  option 
would  also  benefit  the  MS  by  providing  more  legal  certainty  and  predictability  in 
relation to issues such as support in accident investigation, access to information and 
responsibilities of the various parties involved in the investigation. 

Compared to the previous policy option, additional administrative burden for at least 
some  of  the  MS  could  be  expected  due  to  establishment  of  a  common  process  for 
managing safety recommendations as well as ensuring that the authorities involved in 
accident  investigation  cooperate  appropriately  within  the  framework  of  advance 
arrangements.  

Some additional costs for the MS can be expected due to more frequent meetings of 
"the Network" and its technical groups, as well as from new requirements concerning 
monitoring of processes for the management of passenger manifests by the airlines. 
Some additional costs for the MS can be also expected due to the need to fulfil the 
common requirements concerning minimum standards for the provision of assistance 
to victims of air accidents and their families. 

No  substantial  administrative  burden  or  implementation  costs  are  expected  for  the 
operators  and  the  industry.  Harmonisation  of  standards  for  passenger  manifests 
should be considered as codifying already existing practices rather than imposition of 
a completely new requirement. 

Compared  to  policy  option  No  2,  this  policy  option  would  provide  for  additional 
safety  benefits  through  more  structured  cooperation  between  the  NSIAs,  better 
protection  of  evidence  and  sensitive  safety  information,  defining  the  rights  and 
obligations of EASA and NSIAs in accident investigation and establishing a common 
process  for  managing  safety  recommendations.  Standards  for  management  of 
passenger lists would be also harmonised, thus reducing the risk of an investigation 

118 

idem 

EN 

56 

   EN 

 
                                                 
or search and rescue operation being hampered by the lack of a reliable list covering 
"all  souls  on  board".  Similarly  minimum  requirements  concerning  assistance  to  the 
victims and families would provide additional social benefits for the EU citizens. 

Policy Option No 4 “European Civil Aviation Safety Board” 

This policy scenario, from the EU wide perspective, would be expected to offer the 
most  significant  safety  benefits.  Investigation  of  all  major  accidents  would  be 
performed  by  a  single,  independent,  specialised  body  on  the  basis  of  common 
methodology and by centrally trained investigators. At the same time this is also the 
most costly policy option and the one affected by the highest implementation risks. It 
would  necessitate  a  substantial  overhaul  of  the  current  regulatory  framework  and 
establishment of a new Community body in the form of an Agency. 

To  calculate  an  estimate  cost  of  implementation  for  this  policy  option,  two  main 
components  have  to  be  distinguished:  (1)  the  costs  of  establishing  and  maintaining 
the  central  investigating  body,  and  (2)  the  savings  made  at  the  level  of  Member 
States, deriving from substitution or significant downscaling of NSIAs. 

Using  the  example  of  the  US  NTSB,  it  can  be  assumed  that  about  200  full  time 
equivalent posts would be necessary in order to secure proper staffing of the central 
body.119  Given  the  fact  that  the  European  Safety  Body  would  be  a  Community 
agency,  the  "average  costs"  for  the  estimates  on  human  resources  in  the  context  of 
EU legislative proposals have to be used in this context.120 This would give a figure 
of  about  €25  million  for  staff  costs.  In  addition,  the  most  substantial  costs  to  be 
covered  under  this  policy  option  would  include  operational  expenses:  leading  of 
investigations  and  participation  in  investigations  as  an  accredited  representative, 
investigation equipment, examinations, research and publications. In this respect, the 
total  costs  associated  with  the  establishment  of  the  European  Safety  Body  can  be 
estimated at around €40 million. 

Given the fact that the total annual costs of the combined 27 NSIAs in the EU can be 
estimated at €78 million121, the annual savings expected from substituting the NSIAs 
with the central body would be in the order of €30 million. These savings would be 
however smaller, should the NSIAs continue to work in parallel as national offices of 
the  European  Safety  Body.  In  this  latter  case,  the  NSIAs  would  also  have  to  bear 
costs to comply with the common standards for training of investigators and conduct 
of  technical  investigations  in  their  areas  of  competence.  In  this  policy  scenario  the 
annual  workload  of  the  European  Safety  Body  could  be  estimated  at  70 
investigations  of  aircraft  with  MTOM  of  at  least  2.250kg,  plus  participation  in 
investigation overseas as an accredited representative. 

The  administrative  burden  associated  with  this  policy  option  would  be  also 
substantially higher than for previous policy options. The European Safety Body, as 
a  Community  body  would  be  obliged  to  fulfil  all  the  requirements  of  the  EU  law 
related to financial issues, staffing policy, internal audit, procurement policy etc. 

119 

120 

121 

The  Net  costs  of  the  aviation  related  activates  of  NTSB  in  2008  were  $42  million  (National 
Transportation  Safety  Board,  Fiscal  Year  2008  and  2007  Performance  and  Accountability  Report, 
http://www.ntsb.gov/publictn/2008/SPC0802.pdf, accessed on 11 May 2009) 
European Commission guidelines on Preparation of the Legislative Financial Statement, 
http://www.cc.cec/budg/pre/legalbasis/pre-040-020_preparation_en.html 
External impact assessment study, ECORYS Nederland BV and National Aerospace Laboratory NLR 

EN 

57 

   EN 

 
                                                 
No substantial implementation costs are associated with this policy option from the 
industry perspective. Harmonisation of standards for passenger manifests should be 
considered as codifying already existing practices rather than imposing a completely 
new  requirement.  At  the  same  time  the  industry  would  benefit  from  a  fully 
standardised investigation process. 

Some  additional  costs  for  the  MS  can  be  expected  due  to  the  need  to  fulfil  the 
common requirements concerning minimum standards for the provision of assistance 
to victims of air accidents and their families. 

8. 

COMPARING THE OPTIONS 

8.1.  Which method was applied and how impacts have been weighted? 

The above analysis presented various impacts of each of the policy options, including 
risks  and  obstacles  to  compliance.  It  is  now  necessary  to  compare  the  presented 
policy options in order to indicate which of them would bring the most added-value 
from  the  Community  perspective  taking  into  account  the  criteria  of  effectives, 
efficiency and proportionality. 

In order to properly take into account the various dimensions of the analysis, a multi-
criteria approach will be applied. This method is best suited to measuring trade-offs 
within  and  between  the  various  policy  options,  especially  between  safety  and  cost-
efficiency. 

Multi-criteria  analysis  requires  weighting  in  advance  the  importance  of  the  various 
criteria, which inherently includes an element of subjectivity. For the purpose of this 
analysis the enhancement of safety in civil aviation, as an overriding objective in the 
context of this IA, is given the highest priority. At the same time the analysis takes 
into  account  that  drastic  risk  reduction  cannot  be  achieved  without  incurring 
prohibitive costs. 

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 

As indicated in point 4.1.1, this IA does not attempt to monetise direct safety benefits 
resulting from implementation of the various policy options, as this would require the 
ability  to  meaningfully  predict  the  level  of  reduction  in  the  number  of  accident  or 
incidents  in  civil  aviation.  Safety  benefits  should  be  rather  looked  at  from  the 
perspective  of  risk  management,  whereby  the  risks  are  quantified  and  reduced  by 
appropriate mitigating measures if considered as not acceptable. 

"Voluntary cooperation" 

"the Network" 

"EU Safety Board" 

Safety benefits 

Implementation risks 

Economic, 
environmental impacts 

social 

and 

√ (4) 

0 

√ (1) 

58 

EN 

√√ (8) 

√√√ (12) 

- √√ (-4) 

- √√√√ (-8) 

√√ (2) 

√√√ (3) 

   EN 

 
 
Impact  on 
rights 

fundamental 

√ (1) 

√√ (2) 

√√√ (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) 

8.2. 

Results of the weighting between the policy options 

Policy option of promotion of voluntary cooperation offers moderate safety benefits 
at a reasonably low cost for the Community budget as well as some savings for the 
MS. The administrative burden of implementation of this policy option is negligible. 
It also does not impose additional costs on the industry. 

Establishment  of  the  "European  Network  of  Civil  Aviation  Safety  Investigation 
Authorities"  offers  additional  safety  benefits  as  compared  to  the  promotion  of 
voluntary  cooperation  only.  However  it  is  also  characterised  by  additional 
implementation  risks  (see  above).  The  costs  of  implementation  for  the  Community 
budget  are  comparable  to  the  "Promotion  of  Voluntary  Cooperation".  The 
administrative burden for the MS may be however slightly higher in particular due to 
the  new  requirements  concerning  management  of  safety  recommendations  and 
coordination  of  different  authorities  involved  in  the  investigation.  Some  additional 
costs for the MS are also expected due to the need to participate in the co-financing 
of  the  grant  for  “the  Network”,  as  well  as  fulfilling  new  requirements  concerning 
monitoring of processes for the management of passenger manifests by the airlines, 
and  implementation  of  minimum  requirements  on  assistance  for  the  victims  and 
families. On the other side savings are expected for the MS due to better coordination 
of  investigation  resources  of  NSIAs  and  more  efficient  cooperation  between  the 
various authorities involved in the investigation. 

The  last  policy  option  (The  European  Safety  Board),  offers  the  highest  safety 
benefits  as  compared  to  the  other  two  policy  options.  However,  it  is  also 
characterised  by  the  highest  implementation  risks  and  cost  for  the  Community 
budget. Although the administrative burden involved in this policy option is expected 
to be the highest, it is also envisaged that it could bring the biggest savings for the 
MS. 

8.3.  Which of the policy options has the biggest added value? 

The Policy Option No 3, "Establishment of the European Network of Civil Aviation 
Safety  Investigation  Authorities"  has  the  biggest  added  value  form  the  Community 
perspective.  It  is  the  most  proportional  policy  option  which,  while  fully  respecting 
the  principle  of  independence  of  safety  investigations,  would  allow,  without 
establishing any new structures at the Community level, to significantly enhance the 

EN 

59 

   EN 

 
9. 

9.1. 

overall  efficiency  of  the  current  regulatory  framework  for  civil  aviation  accident 
investigation in the EU. 

This policy option is sufficient to adequately address all the problem areas identified 
in  this  IA,  without  going  beyond  what  is  strictly  necessary.  It  can  be  implemented 
with relatively low cost for the Community budget and in addition is also expected to 
reduce the overall costs of the MS, while having little impact in terms of additional 
administrative burden. 

By  lending  supporting  to  the  already  existing  voluntary  cooperation  between  the 
NSIAs, this policy option is also expected to have support from the stakeholders and 
MS,  which  should  facilitate  its  implementation.  The  additional  regulatory  elements 
of this policy option, which would be enshrined in the new Regulation implementing 
this  policy  option,  were  also  supported  in  the  public  consultations  and  in  the 
recommendations of the "Group of Experts". 

There  are  limited  implementation  risks  related  to  this  policy  option,  notably  when 
compared  to  policy  option  No  4,  and  which  are  not  expected  to  jeopardise  the 
envisaged  policy  objectives.  This  policy  option,  by  relying  on  co-regulation  and 
support  for  voluntary  cooperation,  is  also  in  line  with  the  "Better  Regulation" 
objectives  of  the  Community.  Using  Regulation  instead  of  a  Directive  is  also 
expected  to  contribute  to  better  implementation  and  eliminate  the  need  for 
transposition measures. 

MONITORING AND EVALUATION 

Indicators  and  methods  for  the  monitoring  of  the  preferred  policy  option 
(“Establishment  of  a  European  Network  of  Civil  Aviation  Safety  Investigation 
Authorities”) 

Indicators and methods allowing to measure progress made towards the achievement 
of the desired policy objectives will need to be established. These would include: 

Increase the investigating capacity of the EU: 

–  The level of support provided by the central mechanism for sharing of resources;  

–  The overall annual costs incurred by the NSIAs; 

–  The  percentage  of  investigations  completed  in  the  recommended  12  months 

period; 

–  The results of the “peer reviews” coordinated by "the Network"; 

–  Training activities coordinated by the "the Network"; 

Reduce tensions between the authorities involved in accident investigations: 

–  Number  of  investigations,  delayed  or  hampered  due  to  lack  of  coordination 

between the authorities; 

–  Trend in occurrence reports filed by aviation professionals in the EU; 

Clarify the role of Community in safety investigations: 

–  Number of cases where cooperation between EASA and NSIAs was not adequate; 

Better implement safety recommendations: 

EN 

60 

   EN 

 
–  Number  of  safety  recommendations  registered  in  the  central  database  of 

recommendations; 

–  Number of "closed" safety recommendations registered in the central database of 

recommendations; 

Reduce risks from inadequate passenger manifests 

–  National  authorities  of  the  MS  to  check  compliance  of  the  scheme  with  the 
common  requirements  in  the  certification  process  of  the  airline  and  via  regular 
inspections; 

–  Number of passenger manifests non-reconciled properly; 

The administrative burden associated with reporting obligations is not expected to be 
high. MS already now provide to the Commission most of the relevant information, 
including  occurrence  reports  and  final  reports  from  the  investigations.  Some  new 
administrative  burdens  can  be  expected  for  the  MS  authorities  due  to  the  need  to 
verify  compliance  of  the  operators  with  the  minimum  standards  envisaged  for  the 
management  of  passenger  manifests  and  implementation  of  minimum  requirements 
on assistance for the victims and families. 

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Annex I 

Recommendations of the Group of Experts to advise the Commission on a 
strategy to deal with accidents in the transport sector (aviation)122 

Since  1991  Aviation  Safety  Investigation  Authorities  have  established  coordination 
and meet regularly within an ECAC context. Additionally the aviation sector has had 
ten years experience of working with the provisions of Council Directive 94/56/EC, 
“Establishing the fundamental principles governing the investigation of civil aviation 
accidents and incidents”. 

The  Aviation  Working  Group’s  primary  task  was  a  review  of  Member  State’s 
experience of working within the framework of the Directive. In December 2004 the 
Aviation Working group sent a comprehensive questionnaire to Member States and 
detailed responses were received from 23 of the 25 States. 

In early 2006 the Commission has launched a procedure for internally assessing the 
options  for  revision  of  Directives  94/56  and  2003/42.  The  Experts  group’s  The 
Experts group’s recommendations contribute to that exercise. 

Present Situation 

Information gathered from Member States confirmed that a number of issues arise in 
relation to safety investigation of aviation accidents and incidents such as: 

–  Difficulties  and 
investigations; 

tensions  between 

the  safety 

investigation  and 

judicial 

–  Issues  in  relation  to  the  publication  of  Safety  reports  relating  to  accident  and 

incident; 

–  Lack  of  a  follow-up  system  for  safety  recommendations  in  most  Member  States 
and  the  fact  that  current  reporting  requirements  are  overly  onerous  and  often  a 
cause for delays of safety investigation of more important air transport accidents 
or incidents; 

–  In  particular  smaller  Member  States  identify  a  need  for  European  Union  based 
training  for  investigators,  both  on  the  coordination  of  training  and  in  relation  to 
training standards; 

As a result of this current situation the Commission is advised: 

–  to  revise  the  Directive  94/56/EC  taking  into  account  the  items  Member  States 
raised  in  relation  to  the  Expert  Groups  request  for  information  (see  above),  for 
example, relations with judicial proceedings, the protection of confidential aspects 
of investigations and the possibility to select the events that are to be investigated, 

–  to  consider  whether  the  Memorandum  of  Understanding  between  the  accident 
investigation bodies and the State Prosecutor in the UK could be used as a model 
for a European wide initiative to resolve the current difficulties between the safety 
and judicial investigations, 

–  to  introduce  legislative  protection  from  disclosure  for  confidential  documents 

listed in Chapter 5.12 of Annex 13 to the Chicago Convention, 

122 

Experts  participating  in  the  work  of  the  Aviation  Working  group  were:  Mr  Ken  Smart  (UK)  as 
chairman  and Mr  Paul  Louis  Arslanian  (France).  Ad  hoc  experts  invited  to  this  group  were  Mr Yves 
Benoist, Mr Kevin Humphreys, Mr Akrivos Tsolakis and Mr Lou Van Munster 

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–  to  introduce  a  legislative  requirement  that  provides  transparency  in  relation  to 
implementation  of  safety  recommendations.  The 
official  replies 
Commission  is  asked  to  initiate  the  establishment  of  a  European  database  for 
safety recommendations for aviation; 

to  and 

–  to  formally  recognise  the  coordination  role  of  Aviation  Safety  Investigation 

Authorities in a European context; 

Discussion  of  aviation  experts  identified  a  need  for  a  more  developed  coordination 
structure  for  Safety  Investigation  Authorities  involved  in  aviation  accidents  at 
European level, in the light of existing coordination fora as well as the establishment 
of the European Aviation Safety Agency. 

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Bibliography 

Annex II 

1. 

EU POLICY AND REFERENCE DOCUMENTS 

2008 Annual Safety Review, European Aviation Safety Agency, Cologne 

2008 Annual Safety Recommendations Review, European Aviation Safety Agency, 
Cologne 

Impact  Assessment  on  the  modification  of  Directives  94/56/EC  and  2003/42/EC 
(Framework  Contract 
Impact  Assessments, 
for  Ex-ante  evaluations  and 
TREN/A1/46-2005), Final Report, Rotterdam 20 July 2007 

Commission  Decision  of  11  June  2003  setting  up  a  group  of  experts  to  advise  the 
Commission  on  a  strategy  for  dealing  with  accidents  in  the  transport  sector 
(2003/425/EC) 

Final report of the "Group of Experts to advise the Commission on a strategy to deal 
with accidents in the transport sector" 

Mid-term  review  of  the  European  Commission’s  2001  Transport  White  Paper" 
(COM (2006) 314 final, Brussels, 22.06.2006) 

Communication from the Commission to the European Parliament, the Council, the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  - 
Single  European  sky  II:  towards  more  sustainable  and  better  performing  aviation, 
Brussels, 25.6.2008, COM(2008) 389 final 

Report  of  the  High  Level  Group  for  the  Future  European  Aviation  Regulatory 
2007 
Framework, 
http://ec.europa.eu/transport/air/doc/hlg_2007_07_03_report.pdf 

Brussels, 

July 

"Just Culture" (JC) Definition and Implementation of a JC Concept, Working Paper 
(AIG/08-WP/33), presented by France on behalf of the European Community and its 
Member  States  by  the  other  Member  States  of  the  European  Civil  Aviation 
Conference and by EYROCONTROL), Accident Investigation and Prevention (AIG) 
Divisional  Meeting,  International  Civil  Aviation  Organisation,  Montreal  13  –  18 
October 2008; 

EU charter of Fundamental Rights 

2. 

EU REGULATIONS AND DIRECTIVES 

Council  Directive  80/1266/EEC  of  16  December  1980  on  future  cooperation  and 
mutual  assistance  between  the  Member  States  in  the  filed  of  air  accident 
investigation (OJ L 375 of 31.12.1980, p.32) 

Council  Directive  94/56/EC  of  21  November  1994  establishing  the  fundamental 
principles governing the investigation of civil aviation accidents and incidents (OJ L 
319 of 12.12.1994, p.14) 

Directive  2003/42/EC  of  the  European  Parliament  and  of  the  Council  of  13  June 
2003 on occurrence reporting in civil aviation (OJ L 167 of 4.7.2003, p.23) 

Regulation  (EC)  216/2008  of  the  European  Parliament  and  of  the  Council  of  20 
February  2008  on  common  rules  in  the  field  of  civil  aviation  and  establishing  a 

EN 

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European  Aviation  Safety  Agency,  and  repealing  Council  Directive  91/670/EEC, 
Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ L 79, 19/03/2008, p. 
1)  

Commission  Regulation  (EC)  No 1321/2007  of  12  November  2007  laying  down 
implementing  rules  for  the  integration  into  a  central  repository  of  information  on 
civil aviation occurrences exchanged in accordance with Directive 2003/42/EC of the 
European Parliament and of the Council (OJ L 294, 13/11/2007 p.3) 

Commission  Regulation  (EC)  No  1330/2007  of  24  September  2007  laying  down 
implementing rules for the dissemination to interested parties of information on civil 
aviation  occurrences  referred  to  in  Article  7(2)  of  Directive  2003/42/EC  of  the 
European Parliament and of the Council (OJ L 295, 14.11.2007 p.7) 

Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonization 
of technical requirements and administrative procedures in the field of civil aviation, 
as amended, (OJ L 373, 31.12.1991, p. 4) 

Commission  Regulation  (EC)  No  474/2006  of  22  March  2006  establishing  the 
Community  list  of  air  carriers  which  are  subject  to  an  operating  ban  within  the 
Community  referred  to  in  Chapter  II  of  Regulation  (EC)  No  2111/2005  of  the 
European Parliament and of the Council (OJ L 084, 23/03/2006 p.14) 

Commission Decision of 29 July 2002 establishing the European Regulators Group 
for Electronic Communications Networks and Services (2002/627/EC) 

Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, 
(OJ L285,17.10.1997, p.1) 

Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 
April  2004  on  insurance  requirements  for  air  carriers  and  aircraft  operators  (OJ  L 
138, 30.4.2004, p. 1) 

3. 

INTERNATIONAL CONVENTIONS AND RELATED DOCUMENTATION 

Convention on International Civil Aviation, signed in Chicago on 7 December 1944, 
ICAO Doc. 7300/8 

Annex XIII to the Convention on International Civil Aviation, Aircraft Accident and 
Incident Investigation", 9th edition, July 2001 

ICAO Manual of Aircraft Accident and Incident Investigation (ICAO Doc 9756) 

Training Guidelines for Aircraft Accident Investigators (ICAO Cir 298) 

ICAO  Safety  Management  Manual  (SMM),  Second  Edition  —  2009,  ICAO  Doc 
9859 

Final Report on the Safety Oversight Audit of the European Aviation Safety Agency, 
23  –  25  April  2008  (confidential).  The  final  report  is  available  to  all  Contracting 
Parties  to  the  Chicago  Convention  through  the  ICAO  Universal  Safety  Oversight 
Audit Programme (USOAP) secure website 

Guidance  on  Assistance  to  Aircraft  Accident  Victims  and  their  Families  (ICAO 
Cir.285-AN/166) 

Progress report on the implementation of the ICAO Universal Safety Oversight Audit 
Programme (USOAP) under the comprehensive systems approach, 36th session of the 

EN 

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General 
http://www.icao.int/Assembly36/ 

Assembly 

of 

ICAO, 

A36-WP/64, 

02.08.07, 

ICAO  Working  Paper,  DGCA/97-IP/5,  “Safety  Oversight,  An  International 
Responsibility”, 20 October 1997 

4. 

OTHER GOVERNMENTAL DOCUMENTS, STUDIES AND REFERENCE MATERIAL 

U.S. National Transportation Safety Board Fiscal Year 2008 and 2007, Performance 
and Accountability  Report, http://www.ntsb.gov/publictn/gen_pub.htm (accessed  on 
11 May 2009) 

Cost  of  Aviation  Accidents  and  Incidents,  Bureau  of  Transport  and  Regional 
Economics report 113, Commonwealth of Australia 2006 

Terms  of  Reference  of  the  Council  of  European  Aviation  Safety  Investigation 
Authorities  

Challenges  of  Growth  2008,  Eurocontrol,  Air  Traffic  Statistics  and  Forecasts 
http://www.eurocontrol.int/statfor/public/subsite_homepage/homepage.html 

Memorandum  of  Understanding  agreed  between  the  Crown  Prosecution  Service 
(CPS)  and  the  Air  Accidents  Investigation  Branch  (AAIB),  the  Marine  Accident 
Investigation  Branch  (MAIB)  and  the  Rail  Accident  Investigation  Branch  (RAIB) 
(United Kingdom) http://www.aaib.gov.uk/cms_resources/MOU%20AIB-CPS.pdf  

Federal  Family  Assistance  Plan  for  Aviation  Disasters,  Prepared  by  National 
Transportation Safety Board Office of Transportation Disaster Assistance (December 
2008) http://www.ntsb.gov/family/Family.htm  

Legal  and  Cultural  Issues  in  relation  to  ATM  Safety  Occurrence  Reporting  in 
Europe,  Report  Commissioned  by 
the  Performance  Review  Commission, 
Eurocontrol, September 2006 

Publication  of  lists  of  airline  passengers  in  the  event  of  an  accident,  Information 
presented by the Spanish delegation at the occasion of the TTE Council meeting on 9 
October 2008 (Council of the European Union, 13660/1/08, REV1) 

5. 

PROCEEDINGS OF THE INTERNATIONAL CONFERENCES 

Proceedings  of  the  ICAO  Accident  Investigation  and  Prevention  (AIG)  Divisional 
Meeting 2008 (AIG/08), http://www.icao.int/aigdiv08/  

6. 

COURT CASES 

ECJ Judgment of 13.06.1958, in case 9/58, Meroni, ECR, 1958, p.11; 

ECJ Judgment of 14.05.1981, in case 98/80, Romano, ECR 1981, p.1241 

7. 

MONOGRAPHS 

Reason, J.T., Managing the risks of organizational accidents, Aldershot 1997 

Dekker, S., Just Culture: Balancing Safety and Accountability, Ashgate 2008 

Hollngel, E., Barriers and Accident Prevention, Ashgate 2004 

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8. 

ARTICLES, SPEECHES AND NON-GOVERNMENTAL REFERENCE DOCUMENTS 

Independent Accident Investigation: Every Citizen's Right, Society's Duty, Speech of 
Pieter van Vollenhoven, 23rd January 2001, European Transport Safety Council 

Transport Accident and Incident Investigation in the European Union, Brussels 2001 
European Transport Safety Council 

AON, airline insurance market outlook 2009 

9. 

ACCIDENT INVESTIGATION REPORTS 

Aircraft  accident  report,  Helios  Airways  Flight  HCY522,  Boeing  737-31S  at 
Grammatiko,  Hellas  on  14  August  2005  (11/2006,  Hellenic  Ministry  of  Transport 
and Communications, Air Accident Investigation & Aviation Safety Board) 

Preliminary report of the Dutch Safety Board, Crash of the Turkish Airlines, Boeing 
737-800, TC-JGE, April 28, 2009 (http://www.onderzoeksraad.nl/en/, accessed on 10 
May 2009). 

Final Report of the Agenzia Nazionale per la Sicurezza del Volo of 20 January 2004, 
Accident involving Aircraft: Boeing MD-87 registration SE-DMA and Cessna 525-
A, registration D-IEVX, Milano Linate Airport October 8, 2001. 

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List of the consulted parties and summary of the consultations 

1. 

Consultations on the Internet website 

(a)  Ministries  or  Aviation  Authorities  (Ministry  of  Transport  Germany,  Civil 
Aviation  Authority  from  Germany  (LBA-GE)  and  Civil  Aviation  Authority 
from Iceland (CAA-IS)); 

Annex III 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

2 Accident Investigating Bodies (AIBs) (Iceland and Poland); 

6  Airline  Operators  (Air  Berlin,  KLM,  Spanair,  Swiss,  Transavia  and  Virgin 
Atlantic); 

1 labour Union (Filt-Cgil); 

1 stakeholder association (European Helicopter Association); 

1 University (Massey from New Zeeland); 

1 aerodrome operator (Zurich Airport); 

1 European not-for-profit organisation (Peopil); 

6 private citizens 

2. 

Replies to questionnaire distributed by external consultant 

Respondent group 

Civil Aviation Authorities 

Accident Investigation Bodies 

ATM/ANS Providers 

Aircraft, engine and system manufacturers 

Trade unions and associations representing employees 

Other 

3. 

Parties interviewed by the external consultant 

Number of replies 

19 

19 

20 

9 

11 

9 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

Direction Générale de l’Aviation Civile (DGAC, France); 

Bureau  d’Enquêtes  et  d’Analyses  pour  la  sécurité  de  l’aviation  civile  (BEA, 
France); 

Civil Aviation Authority (CAA, United Kingdom); 

Air Accidents Investigation Branch (AAIB, United Kingdom); 

Hellenic Civil Aviation Authority (HCAA, Greece); 

Hellenic Air Accident Investigation & Aviation Safety Board (Greece); 

European Aviation Safety Agency (EASA); 

Eurocontrol; 

European Civil Aviation Conference (ECAC); 

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(j) 

(k) 

(l) 

Airbus Industries; 

Swedish Civil Aviation Authority (CAA, Sweden) 

Swedish Accident Investigation Board (Sweden) 

(m) 

Estonian Ministry of Economic Affairs and Communications (AIB Estonia) 

(n) 

(o) 

(p) 

(q) 

(r) 

(s) 

(t) 

Estonian Civil Aviation Authority (CAA, Estonia) 

Joint Research Centre (JRC, Italy) 

National Transport Safety Board, USA 

Civil Air Navigation Services Organisation (CANSO) 

International Air Transport Association (IATA) 

European Cockpit Association (ECA) 

International Transport Safety Association (ITSA) 

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Summary of the public consultations 

Summary results of public consultations on the Internet 

1. 

The Commission asked the respondents about their opinion on the need to revise the 
Directives 94/56/EC and 2003/42/EC: 

Annex IV 

(1) 

(2) 

(3) 

(4) 

68% of respondents (i.e. 15) agreed with such a need; 

18% (i.e. 4) were against; 

9% (i.e. 2) stated to have no opinion; 

The remaining has not replied to this question 

2. 

Commission presented four policy option for the consideration of respondents 

(1) 

(2) 

(3) 

(4) 

Option No 1 "Do Nothing" 

Option No 2 "Promotion of voluntary co-ordination" 

Option No 3 "Establishment of central functions" 

Option No 4 "Establishment of a central European safety investigation body" 

Policy  option  3  and  4  were  most  supported.  However  the  latter  was  also  the  most 
controversial; 

Most  of  the  suggested  central  functions  were  at  least  partially  supported  by  the 
overwhelming majority of respondents. 

The  need  to  look  at  the  “total  aviation  system”  (i.e.  simplified  and  consistent  rules 
across all domains) was stressed. 

Some  stakeholders  asked  more  chances  for  passengers  to  report,  and  the  widest 
possible dissemination of safety information, among industry. 

Summary results of consultations conducted by the external consultant 

The  respondents  of  the  questionnaires  were  asked  if  they  saw  any  problems  in  the 
current situation. Almost all of them are of the opinion that there are problems that 
need to be addressed. These problems can be divided into three categories: 

–  Occurrence reporting 

–  Incident and accident investigations 

–  Information gathering and dissemination 

Occurrence reporting 

The respondents indicated that there are problems in relation to occurrence reporting. 
They  remarked  that  the  development  of  the  “Just  Culture”  is  essential  to  create  an 
environment in which everybody feels secure enough to file a report, without fearing 
criminalization. However, this should not result in a “Carte Blanche” for all involved 
parties. The creation/further development of a “Just Culture” throughout Europe can 
not be accomplished through the revision of the Directive 2003/42/EC alone, though 
it  could  facilitate  this  development.  Some  of  the  changes  proposed  by  the 
respondents relate to the terminology of the Directive which should be clearer (gross 
negligence  in  article  8  for  example).  A  clear  definition  of  “Just  Culture”  was  also 
advocated by some of the respondents. 

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Incident and accident investigations 

A  number  of  respondents  mentioned  that  incidents  that  are  reported  are  sometimes 
not investigated, due to a lack of resources. However, it is questioned by some of the 
respondents if it is effective to investigate all incidents. 

Some  respondents  argued  that  in  certain  countries  there  are  problems  with  the 
mobilization  of  investigators  with  sufficient  detailed  technical  expertise.  This  does 
not apply to all European Member States. Some argued that this was caused by the 
variation in exposure to aircraft accidents and budgets. All of the respondents, apart 
from  the  AIBs,  indicated  that  there  is  no  central  European  mechanism  that  could 
arrange for the sharing of available investigators. The AIBs stated that initiatives are 
already developed by the AIBs themselves. 

Another  problem  signalled  by  the  respondents  is  the  lack  of  common  requirements 
for  the  training  and  qualifications  of  accident  investigators.  Again  the  AIBs 
mentioned that they themselves are already taking actions in this field. 

As  is  the  case  with  occurrence  reporting,  the  development  of  the  relation  with 
judicial  authorities  is  said  to  be  essential  for  incident  and  accident  investigation. 
Many of the respondents indicated that the involvement of judicial authorities often 
hampers  the  course  of  the  investigations.  These  investigations  should  have  as  sole 
goal  to  learn  and  increase  safety  levels,  without  giving  a  “Carte  Blanche”. 
Cooperation  with  the  judicial  authorities  is  essential  in  order  to  spread  the  “Just 
Culture” throughout Europe. 

It  was  also  argued  that  there  are  discrepancies  in  the  terminology  used  in  the 
Directives, ESARR2 and ICAO. These mainly relate to the definition of occurrences 
and incidents, which could create confusion and an overlap in responsibilities. 

Information gathering and dissemination 

Many  respondents  indicated  that  there  are  problems  in  relation  to  obtaining  and 
distributing information on a European level. One of the problems mentioned is that 
available  recommendations  are  often  not  shared.  Also  it  is  seen  as  a  problem  that 
there  is  no  mechanism  that  regulates  the  accountability  for  addressees  to  reply  to 
safety  recommendations. The  lack  of a central repository of accident investigations 
reports (e.g. abstracts of the reports, conclusions and recommendations) is seen as a 
problem by most of them. Most of the respondents agreed or partially agreed that the 
multitude  of  languages  in  which  accident  and  incident  reports  are  written  forms  a 
problem. ECCAIRS is seen as a possible solution for much of the problems in this 
field, but it has to be further developed.  

Some of the respondents did agree that the safety recommendations do not take into 
account  the  associated  consequences  of  these  recommendations  (such  as  cost 
effectiveness)  and  that  this  is  a  problem.  However,  many  respondents  argued  that 
main  goal  of  these  recommendations  should  be  safety  and  the  addressees  of  the 
recommendations should work out how they can implement the recommendations as 
efficient as possible. 

Options 

The  results  of  the  questionnaire  clearly  showed  that  a  revision  of  the  Directives  is 
desired  by  the  respondents.  They  were  asked  on  the  possible  effects  and  their 
preferred ranking of the following options: 

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Option 1: “Do Nothing” 

Option 2: Promotion voluntary coordination mechanisms among AIBs 

Option 3: Modification of Directives: establish a set of central functions 

Option 4: Establish a central European body on accident investigations 

When asked on the possible effects, the respondents’ answers show that Option 3 is 
expected  to  contribute  the  most  in  terms  of  positive  safety  effects.  Option  2  is 
expected  to  have  relatively  neutral  effects.  Option  4  is  expected  to  come  at  higher 
costs  than  Option  3,  without  showing  any  extra  significant  positive  safety  effects 
compared to Option 3. Option 3 was favoured the most by the respondents, though 
some  indicated  that  this  should  be  the  first  step  in  the  direction  of  Option  4.  The 
majority of the AIBs that responded preferred Option 2. 

Central European functions 

The  majority  of  the  respondent  groups  agree  that  most  of  the  proposed  functions 
should  be  addressed  centrally  in  Europe.  These  functions  include  a  Central 
European: 

–  Filing system of occurrence reports, in the context of a 'just culture' 

–  Common training and competence scheme for investigators 

–  European  safety  data  repositories  for  investigation  reports  and  recommendations 

serving AIBs, EASA, NAAs, Eurocontrol 

–  Summaries  of  investigation  reports  and  recommendations  can  best  be  written  in 
English (the majority of the unions/associations respondents partially agreed) 

–  Coordination  mechanism  that  arranges  for  the  sharing  of  investigators,  meaning 
that  member  states  could  make  use  of  the  expertise  of  AIBs  in  other  member 
states  through  a  central  coordination  mechanism  (40%  of  the  AIB  respondents 
disagreed) 

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–  Mechanism  that  ensures  that  all  safety  recommendations,  issued  by  national 
investigating authorities, are disseminated to all interest parties within Europe 

–  Mechanism that regulates the accountability for the addressees to reply to safety 

recommendations (the respondent group Other, mostly agreed partially) 

–  Mechanism 

that  monitors 

the  status  of 

the 

implementation  of  safety 

recommendations (AIBs mostly agreed partially) 

However  with  respect  to  “Investigation  reports  can  best  be  written  in  an  ICAO 
language  (the  concerned  AIB  can  choose  one  of  the  three  ICAO  languages)”  the 
respondents did not fully agree. This, because it is thought to be very important that 
reports  are  also  written  in  the  local  language  and  local  languages  should  not  be 
discriminated  against.  A  European  translation  agency  was  proposed  to  tackle  this 
problem by making the reports available in a local language and in English. 

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