Support study to the evaluation of Regulation (EU) No 996/2010 on the investigation and prevention of accidents and incidents in civil aviation : final report.
Date: 2018-08-29
Institutions: Directorate-General for Mobility and Transport
Subjects: accident prevention, air transport, civil aviation, report, transport accident, transport policy, transport regulations, transport safety

Support study to the 
evaluation of Regulation (EU) 
No 996/2010 on the 
Investigation and Prevention 
of Accidents and Incidents in 
Civil Aviation 
Final Report 

Study contract no MOVE/E4/SER/2016-440/SI2.743158 

2017

Written by  
Robert Piers 
Job Smeltink  
Alfred Roelen  
Rachel Beerman  
Niels van Wanrooij  
Pablo Mendes De Leon 

 
 
  
 
     
 
 
 
 
 
EUROPEAN COMMISSION 

Support study to the 
evaluation of Regulation (EU) 
No 996/2010 on the 
Investigation and Prevention 
of Accidents and Incidents in 
Civil Aviation 
Final Report 

EUROPEAN COMMISSION 

Directorate-General for Mobility and Transport 

Directorate E — Aviation 

Unit E.3 — Single European Sky 

Contact: Jean-Jacques Woeldgen 

E-mail: Jean-Jacques.WOELDGEN@ec.europa.eu 

European Commission 

B-1049 Brussels 

EUR [number] EN 

 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2018 

© European Union, 2018 

Reproduction is authorised provided the source is acknowledged  

EN PDF  ISBN: 978-92-79-92887-1 

doi: 10.2832/00869 

MI-03-18-230-EN-N 

Written by  
Robert Piers 
Job Smeltink  
Alfred Roelen  
Rachel Beerman  
Niels van Wanrooij  
Pablo Mendes De Leon 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TABLE OF CONTENTS 

EXECUTIVE SUMMARY 

SYNTHÈSE 

LIST OF ACRONYMS 

1  INTRODUCTION 

1.1  Background and objectives 
1.2  Structure of this report 
1.3 

Introduction of the study team 

2  METHODOLOGY 

2.1  Evaluation criteria and questions 
2.2  Three pillar approach 
2.3  Task description 
2.4  Stakeholder consultation 
2.5  Limitations of the evaluation 

3  AVIATION SAFETY TRENDS AND FIGURES 

4  DEVELOPMENTS RELATED TO REGULATION (EU) NO 996/2010 

5  ASSESSMENT OF THE EVALUATION QUESTIONS 

5.1  Relevance 
5.2  Effectiveness 
5.3  Efficiency 
5.4  Coherence 
5.5  EU added value 

6  CONCLUSIONS 

7  RECOMMENDATIONS 

ANNEX 1 OVERVIEW OF RELEVANT DOCUMENTS 

ANNEX 2 LIST OF PARTICIPANTS 

ANNEX 3 COUNTERFACTUAL SCENARIO 

ANNEX 4 ACCIDENT CASES 

ANNEX 5 DETAILED ANALYSIS 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

EXECUTIVE SUMMARY 

Introduction 

The objective of this evaluation is to provide the European Commission with an independent and 
evidence-based evaluation of Regulation (EU) No 996/2010 on the investigation and prevention 
of accidents and incidents in civil aviation. The evaluation assesses whether the main objectives 
of the regulation have been achieved since its entry into force in December of 2010.  

This evaluation stems from the Better Regulation1 initiative in which President Juncker has 
committed the current Commission to improving the quality of EU policy- and law-making, in 
order to ensure that legislation better serves the people it affects. This resulted in a stronger 
emphasis on ex-post evaluation in the policy cycle.  

Evaluation criteria and approach 

The following five evaluation criteria were used to assess whether or not the goals of Regulation 
(EU) No 996/2010 are met: relevance, effectiveness, efficiency, coherence and EU-added value. 
Based on these evaluation criteria, eight main evaluation questions and additional sub-questions 
were formulated.  

To answer these questions and sub-questions, an analysis has been performed based on input 
from three types of activities: (1) desk research, (2) field research (interviews, a targeted 
survey and a stakeholder workshop) and (3) an analysis of four selected accident cases.  

Conclusions 

The main conclusion is that the combination of co-regulation and voluntary cooperation 
measures required by the Regulation (EU) No 996/2010 led to better safety investigations, 
resulting in improved aviation safety. The European Network of Civil Aviation Safety 
Investigation Authorities (ENCASIA), in which the national Safety Investigation Authorities 
(SIAs) of most Member States are actively participating, is considered to be one of the most 
effective elements that were brought by the regulation. However, there is still room for further 
enhancement of safety investigations. This can be achieved by strengthening the role of 
ENCASIA and by improving the implementation of the regulation at Member State level. 

The main conclusion is substantiated by a conclusion for the evaluation criteria.  

Relevance 
The combination of co-regulation and voluntary cooperation measures required by the 
Regulation are generally still relevant and appropriate to the initial needs that were to be 
addressed: 
1.  lack of uniform investigation capability; 
2.  tensions between safety investigations and other proceedings; 
3.  unclear role of the Community (EASA) in safety investigations; 
4.  weakness in implementation of safety recommendations; and 
5.  insufficient assistance to the victims of air accidents and their families, including 

difficulties to quickly obtain complete passenger lists. 

New needs are related to drones and cyber-related attacks. 

Whether the investigation of accidents involving drones will become a task for SIAs is under 
consideration. Due to the potential amendment of the Basic Regulation regarding its Annex II 
and the point of view that EU regulations should remain aligned, it has been proposed via an 
ENCASIA Opinion2 to allow flexibility for the SIAs in the decision whether or not to investigate 
an accident involving drones in order to allocate the resources of the SIA most effectively.  

1 http://ec.europa.eu/commission/priorities/democratic-change/better-regulation_en.  
2 See ENCASIA website: https://ec.europa.eu/transport/modes/air/encasia/.  

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While it is not the responsibility of the SIAs to investigate aviation accidents caused by cyber 
related attacks, it is important that SIAs have sufficient expertise to determine as to whether a 
cyber-attack has occurred. However, currently this expertise is missing (see Recommendation 
2).  

Effectiveness 
Aviation safety is improved by providing high quality unbiased safety investigations which leads 
to useful safety recommendations that are implemented as soon as possible. A high quality 
unbiased investigation also contributes to valuable discussions on safety issues within the 
European aviation community, which result in safety improvement measures that are not a 
direct result of a specific safety recommendation.  

To ensure a high quality unbiased safety investigation capability throughout the EU, it is 
prerequisite that the SIAs are independent, have sufficient skilled air safety investigators 
available and are provided with an adequate budget to perform their tasks.  

Independence of the SIAs has been achieved in almost all Member States. During this 
evaluation, study questions were raised regarding the lack of independence of the SIA in four 
Member States. In only one of those cases, supporting evidence confirms a lack of 
independence. Although independence had already been established in most Member States 
prior to the entry into force of the Regulation, the added value of the regulation is that the 
principle of independence of accident investigations is no longer in dispute or under discussion. 
At international level, ICAO introduced similar provisions, which became applicable in November 
2016 through amendment 15 to ICAO Annex 13. 

The SIAs vary in size in terms of number of air safety investigators throughout the EU. Half of 
the SIAs have five or less investigators and five SIAs have only one air safety investigator. 
Since the entry into force of the regulation, the number of air safety investigators and the 
available budgets remained unchanged. For most SIAs, the amount of resources is considered 
to be sufficient for their normal activities, although for some small SIAs, it has been reported 
that the resources are insufficient.  

Results from this evaluation indicate that not all SIAs can organise a high quality safety 
investigations in case of a major accident. A major accident will have more impact and different 
dynamics than a “normal” accident in terms of media attention, judicial investigations, political 
pressure etc. ENCASIA is working on helping preparing SIAs with limited resources for major 
accidents by accommodating the collaboration between SIAs and by sharing experiences and 
lessons learned from major accidents. While this is an important initiative, it might however not 
be sufficient to fully reach the goals of the regulation (see Recommendation 3). 

ENCASIA has strengthened the coordination between the SIAs and has introduced common 
practices. This has been achieved through plenary discussions, results from the various working 
groups, forming of opinions, sharing of experiences and lessons learned, issuing guidelines, 
performing peer reviews and training of air safety investigators. It is important that work of 
ENCASIA can be continued or even intensified. Currently, ENCASIA activities are supported 
through a grant from the EU, which covers a significant share of the costs involved, the rest 
being contributions in kind from SIAs. The annual decision to allocate the requested grant is not 
a sustainable financial structure because it does not guarantee a long term financial basis. A 
solution needs to be found to ensure the required budget for ENCASIA activities in a longer term 
future (see Recommendation 1). 

The quality of the safety investigations has improved across Europe because of the regulation 
and the work of ENCASIA. The improved safety investigation reports and safety 
recommendations have a positive impact on safety. Better safety recommendations lead to a 
higher probability that they are actually being implemented. The average response time to 
safety recommendations is improving although average response times are still longer than the 
required 90 days.  

Advance arrangements are a pragmatic way to arrange the cooperation between SIAs and the 
judicial authorities so that a safety investigation is not impeded by administrative or judicial 
proceedings. The advance arrangements enable Member States to accommodate the different 
national law systems. In several Member States, the advance arrangements have never been 
practically applied because there has not been a major accident since the arrangement came 
into force. Where it has been practically applied, it is considered be an effective way of 
coordinating the various investigations, albeit that there have been examples where the judicial 

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authorities were insufficiently aware of the existence or content of the advance arrangement or 
arrangements were established at the last moment. It is therefore important that stakeholders, 
and in particular the judicial authorities, are familiar with the advance arrangements and that 
they are regularly reviewed (see Recommendation 4). 

The provisions on the protection of sensitive safety information and persons helped to improve 
the safety investigation. Nevertheless, there have also been some high profile accidents 
(Spanair, Germanwings) where parts of sensitive safety information became public. The 
provisions on the protection of sensitive safety information leave some room for interpretation, 
which is an unwanted situation that needs to be addressed (see Recommendation 5). 

Member States are actively participating in ENCASIA and have largely complied with the 
requirements of coordination of investigations (Article 12), preservation of evidence (Article 13) 
and protection of safety sensitive information (Article 14) through the establishment of advance 
arrangements.  

There are differences across Europe regarding the use of safety investigation reports in judicial 
investigations and the subpoenaing of air safety investigators. It is unclear however if this has 
any consequences on the quality of safety investigations. Therefore, it is worthwhile to 
investigate the different practises across the Member States and the implications thereof by 
conducting a comparative study (Recommendation 6). 

National emergency plans have not been fully implemented in all Member States. There is a 
need for guidance on the establishment and content of national emergency plans. There has 
been some progress in resolving the problems and challenges concerning the assistance to 
victims and their relatives. However, the MH17 accident made it clear that the problems of 
obtaining sufficient information to determine who was on board the aircraft still exist (see 
Recommendation 3). 

Efficiency 
Benefits of Regulation (EU) No 996/2010 consist of an improved safety environment due to 
better cooperation between the SIAs and better safety recommendations. Although these 
benefits are difficult to quantify, a rough calculation considering only fatal accidents shows that 
the benefit/cost ratio on annual basis of the regulation is greater than 1 if more than 0.55% of 
all prevented fatalities due to improved aviation safety can be attributed to the regulation. In 
that case, the benefits of Regulation (EU) No 996/2010 outweigh the costs.  

The stakeholders consulted in this evaluation are of the opinion that the resources and costs 
incurred due to the regulation have been proportional to the results achieved and that the 
benefits outweigh the costs. 

Coherence 
The regulation is coherent with the EU Aviation Safety Policy and no incoherence with other 
regulations was identified, except for a perceived lack of harmonisation between Regulation 
(EU) No 376/2014 and Regulation (EU) No 996/2010.  

Accidents and serious incidents, as defined within Regulation (EU) No 996/2010, are to be 
reported under Regulation (EU) No 376/2014 (Article 2(7)). It means a double reporting could 
be required in a situation where a person is subject to mandatory reporting obligations in 
accordance with Regulation (EU) No 376/2014. For reporters of an incident, it may not be 
obvious whom to report to as they might not be able to determine whether an incident is 
serious or not. 

The SIAs perceive a lack of harmonisation between Regulation (EU) No 376/2014 and 
Regulation (EU) No 996/2010. The SIAs have concerns that their obligation to investigate would 
be subject to a classification by another competent authority. Strictly speaking, this concern is 
not justified. Another issue for the SIAs is that serious incidents and/or accidents could be 
reported only to the competent authority under Regulation (EU) No 376/2014 and not to the 
SIAs.  

Hence, people should be aware of the different reporting channels. Member States are 
responsible for an appropriate set up of the national reporting systems to allow the authorities 
to be aware of the information and to cope with their respective duties. Effective coordination 
between the competent authority under Regulation (EU) No 376/2014 and the SIAs is deemed 

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Support study to the evaluation of Regulation (EU) No 996/2010 

necessary. It is important that the NAAs, SIAs and EASA establish an appropriate flow of 
information that leaves as little room as possible for interpretations and subjectivity. This is 
reflected in Recommendation 7. 

EU-added value 
Regulation (EU) No 996/2010 has positively contributed to the work that was already being 
done by Member States on accident investigations, either individually or within the context of 
their obligations under ICAO Annex 13 and/or the existing regulatory framework at EU level. 
ENCASIA, in which the SIAs of most Member States are participating actively, is considered to 
be one of the most effective elements that were brought by the regulation. The European added 
value results from a combination of factors, namely: enhanced legal certainty on the status of 
certain ICAO provisions as well as the role of the different actors in the event of an accident or 
serious incident, in particular the EC, EASA and judicial authorities, gains from coordinated 
knowledge sharing and pooling of resources, and greater effectiveness of the safety 
investigations, including safety recommendations. 

Recommendations 

From the conclusions of this evaluation study, the following recommendations are derived. 

Recommendation 1 (to the EC and Member States):  
ENCASIA is considered to be one of the most effective elements that were brought by the 
regulation. Currently, ENCASIA is supported through a grant from the EU, which covers a 
significant share of the costs involved. Without financial support, ENCASIA cannot exist in its 
current form. A grand is supposed to be a temporarily means of support. In order to continue 
the success of ENCASIA it is recommended to ensure a sustainable finance structure for 
ENCASIA to allow a long term planning. 

Recommendation 2 (to ENCASIA):  
While it is not necessarily the task of the SIA to investigate aircraft accidents resulting from 
cyber related attacks, it is important that SIAs have sufficient expertise to determine as to 
whether a cyber-attack is involved in an accident in order to inform the relevant enforcement 
authority and to gain safety-related lessons. SIAs are advised to obtain sufficient knowledge on 
this topic in order to handle the issue appropriately, such as through cooperation arrangements 
with other States or on a regional level, or through advance arrangements with the appropriate 
national cyber security entities. It is recommended that the issue of cyber-related matters is 
addressed within ENCASIA.  

Recommendation 3 (to the Member States and EC):  
Emergency plans at national level for a civil aviation accident have not been implemented by all 
Member States, and for those Member States that have implemented national emergency plans 
those plans are not always complete. It is recommended to the European Commission to publish 
guidance and minimum standards to support the Member States in improving the level of 
implementation of the National emergency plans. These civil aviation accident emergency plans 
at national level should include among others the arrangements for the national SIA to organise 
sufficient high quality safety investigation capabilities in case of a major civil aviation accident. 
Additionally, Member States should ensure that the nationality of all passengers is recorded by 
airlines so that there is sufficient information available to quickly determine who was on board 
the aircraft and sufficient assistance to victims and their relatives can be provided. 

Recommendation 4 (to the Member States):  
To make sure that advance arrangements remain effective, it is recommended to ensure that 
stakeholders are familiar with these advance arrangements and to regularly review the advance 
arrangements to make sure that they are still appropriate. 

Recommendation 5 (to ENCASIA and EC):  
Develop additional guidance on the level of protection of sensitive safety information within 
ENCASIA in coordination with EC, in particular on the different levels of protection required for 
various types and sources of information.  

Recommendation 6 (to the EC):  
There are different practices among Member States concerning the use of safety investigation 
reports in judicial investigations. It is unclear however if this has any consequences on the 

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quality of safety investigations. Therefore, it is recommended to conduct a comparative study to 
the different practices among Member States concerning the use of safety investigation reports 
in judicial investigations and its implications. 

Recommendation 7 (to the Member States and EASA):  
It is recommended that national aviation authorities, SIAs and EASA collaborate to establish an 
appropriate flow of information regarding the reporting of occurrences due to Regulation (EU) 
No 996/2010 and Regulation (EU) No 376/2014 that leaves as little room as possible for 
interpretations and subjectivity. 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

SYNTHÈSE 

Introduction 

La présente évaluation vise à fournir à la Commission européenne une analyse indépendante et 

justifiée du Règlement (UE) n° 996/2010 régissant les enquêtes et la prévention des accidents 

et  des  incidents  dans  l’aviation  civile.  L'évaluation  vise  à  établir  si  les  principaux  objectifs  du 

règlement ont été atteints depuis son entrée en vigueur en décembre 2010.  

Elle s’appuie sur le projet Améliorer la réglementation  par lequel le Président Juncker a engagé 

la Commission à améliorer la qualité de l’élaboration des politiques et de la législation de l’UE, 

afin de veiller à ce que la législation serve mieux les intérêts des personnes concernées. Cela a 

donné lieu à un intérêt plus marqué pour l’évaluation a posteriori du cycle politique.  

Critères d'évaluation et approche 

Les cinq critères d'évaluation suivants ont été utilisés afin d’établir si les objectifs du Règlement 

(UE) n° 996/2010 ont été atteints, à savoir la pertinence, l’efficacité, l’efficience, la cohérence et 

la  valeur  ajoutée  pour  l’Union.  Sur  la  base  de  ces  critères  d’évaluation,  huit  questions 

principales et plusieurs questions subsidiaires ont été formulées.  

Pour y répondre, une analyse a été réalisée en fonction des données résultant de trois activités 

:  1)  recherche  documentaire,  2)  recherche  sur  le  terrain  (entretiens,  sondage  ciblé  et  atelier 

pour les parties prenantes) et 3) analyse de quatre accidents.  

Conclusions 

Essentiellement,  l’association  des  mesures  de  co-régulation  et  de  collaboration  volontaire 

exigées  par  le  Règlement  (UE)  n°  996/2010  a  donné  lieu  à  de  meilleures  enquêtes,  ce  qui  a 

renforcé la sécurité dans le secteur de l’aviation. Le réseau européen des autorités responsables 

des enquêtes de sécurité dans l'aviation civile  (ENCASIA), dont les autorités responsables des 

enquêtes  de  sécurité  (SIA)  de  la  plupart  des  états  membres  font  activement  partie,  est 

considéré comme l’un des éléments les plus efficaces mis en place par le règlement. Toutefois, 

certains aspects relatifs aux enquêtes de sécurité peuvent encore être améliorés. Pour ce faire, 

il  conviendrait  de  renforcer  le  rôle  de  l’ENCASIA  et  l’application  du  règlement  au  niveau  des 

états membres. 

Cette conclusion générale s’appuie sur celle relative aux critères d'évaluation.  

Pertinence 

L’association  des  mesures  de  co-régulation  et  de  collaboration  volontaire  exigées  par  le 

Règlement  est  en  général  toujours  pertinente  et  applicable  aux  besoins  élémentaires  pris  en 

compte : 

1. 

2. 

3. 

4. 

5. 

absence de fonctions d’enquête uniforme ;  

Frictions entre les enquêtes de sécurité et les autres procédures ; 

Rôle imprécis de la Communauté (AESA) dans les enquêtes de sécurité ; 

Application insuffisante des recommandations de sécurité ; 

Assistance  insuffisante  aux  victimes  des  accidents  aériens  et  leur  famille,  dont  des 

difficultés à obtenir rapidement la liste complète des passagers. 

Nouvelles exigences associées aux drones et cyber-attaques. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

L’enquête pour les accidents impliquant des drones pourrait être attribuée aux SIA. En raison de 

l’amendement potentiel du règlement de base en ce qui concerne l’Annexe  II et le fait que les 

règlements  européens  doivent  rester  alignés,  l’ENCASIA  a  émis  un  avis    selon  lequel  les  SIA 

pourraient  être  autorisées  à  prendre  une  décision  en  matière  d’enquête  dans  le  cadre  d'un 

accident impliquant des drones en vue d'une affectation plus efficace des ressources des SIA.  

Bien  qu'il  ne  relève  pas  de  la  responsabilité  des  SIA  d’enquêter  sur  les  accidents  d’avion 

provoqués par des cyber-attaques, il est important que ces dernières disposent d’une expertise 

suffisante  pour  établir  la  présence  d’un  tel  piratage  informatique.  Mais  ces  compétences  leur 

font encore défaut (voir la recommandation n° 2).  

Efficacité 

La  sécurité  des  avions  est  renforcée  grâce  à  des  enquêtes  de  sécurité  objectives  de  qualité 

donnant  lieu  à  des  recommandations  utiles  déployées  dans  les  plus  brefs  délais.  Ce  type 

d’approche contribue également  aux échanges pertinents sur les questions de sécurité au sein 

de  la  communauté  aéronautique  européenne.  Cela  donne  lieu  par  ailleurs  à  des  améliorations 

qui ne résultent pas directement d’une recommandation spécifique en matière de sécurité.  

Pour garantir des enquêtes de sécurité objectives de qualité dans toute l’UE, il est essentiel que 

les  SIA  soient  indépendantes,  disposent  d’enquêteurs  dotés  des  compétences  nécessaires  en 

matière de sécurité aérienne et d'un budget adéquat pour accomplir leur mission.  

L’indépendance  des  SIA  est  garantie  dans  presque  tous  les  états  membres.  Pendant 

l'évaluation, des questions ont  été  posées sur  le manque d’indépendance  des SIA dans quatre 

états  membres.  Des  preuves  confirment  la  situation  dans  un  seul  cas  cependant.  Bien  que 

l’indépendance  soit  établie  dans  la  plupart  des  états  membres  avant  l’entrée  en  vigueur  du 

règlement,  ce  dernier  apporte  une  valeur  ajoutée  étant  donné  que  le  principe  d’indépendance 

des  enquêtes  sur  les  accidents  n’est  plus  un  sujet  de  litige  ou  de  discussion.  A  l'échelle 

internationale, ICAO a introduit des clauses similaires, qui sont entrées en vigueur en novembre 

2016 grâce à l’amendement n° 15 à l’Annexe 13 de l’ICAO. 

Les SIA varient quant au nombre d’enquêteurs chargés de la sécurité aérienne dans toute l’UE. 

La  moitié  d’entre  elles  comptent  cinq  enquêteurs  tout  au  plus  alors  que  cinq  d’entre  elles  ne 

disposent  que  d'un  seul.  Depuis  l’entrée  en  vigueur  du  règlement,  le  nombre  d’enquêteurs 

chargés  de  la  sécurité  aérienne  et  les  budgets  n’ont  pas  évolué.  Pour  la  plupart  des  SIA,  le 

nombre de ressources est réputé suffisant pour leurs activités normales, bien que pour les plus 

petites, ces ressources ont été déclarées insuffisantes.  

Les  conclusions  de  l’évaluation  indiquent  que  certaines  SIA  ne  peuvent  pas  mettre  en  oeuvre 

des  enquêtes  de  sécurité  qualitatives  en  cas  d’accident  important.  Ce  type  d’accident  aura  un 

impact  supérieur  et  une  dynamique  différente  par  rapport  un  accident  «  normal  »  en  termes 

d’intérêt que les médias y accordent, mais aussi d’enquête judiciaire, de pression politique, etc. 

ENCASIA  s’emploie  actuellement  à  la  préparation  des  SIA  dont  les  ressources  sont  limitées  à 

faire  face  aux  accidents  majeurs  grâce  à  une  collaboration  entre  les  SIA,  un  partage 

d’expérience et des enseignements tirés de ce type d’événements. Bien qu’il s’agisse d’un projet 

d’envergure,  cela  pourrait  ne  pas  suffire  à  atteindre  les  objectifs  du  règlement  (voir 

Recommandation 3). 

ENCASIA a renforcé la collaboration entre les SIA et introduit des pratiques communes. Pour ce 

faire,  ils  ont  exploité  les  discussions  plénières,  les  résultats  des  différents  groupes  de  travail, 

l’expression  d’avis,  le  partage  d’expériences  et  d’enseignements,  la  publication  de  lignes 

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directrices, des évaluations collégiales et la formation des enquêteurs pour la sécurité aérienne. 

Il  est  important  que  les  travaux  d’ENCASIA  puissent  continuer  et  gagner  en  intensité. 

Actuellement,  les  activités  d’ENCASIA  sont  financées  par  une  bourse  de  l’UE  qui  couvre  une 

grande  partie  des  coûts.  Le  solde  est  financé  par  l’apport  en  nature  des  SIA.  La  décision 

annuelle quant à l’attribution de la bourse n’est pas une structure financière valable étant donné 

qu’elle  ne  comporte  aucune  garantie  à  long  terme.  Une  solution  doit  être  obtenue  afin  que  le 

budget  nécessaire  aux  activités  d’ENCASIA  lui  soit  attribué  sur  une  plus  longue  durée  (voir 

Recommandation 1). 

La qualité des enquêtes de  sécurité  s’est  améliorée dans toute l’Europe grâce au règlement et 

aux  travaux  d’ENCASIA.  Les  meilleurs  rapports  d’enquête  et  recommandations  de  sécurité 

influencent  positivement  la  sécurité.  De  meilleurs  conseils  entraînent  aussi  une  plus  grande 

probabilité  d’application.  Les  délais  de  réponse  moyens  aux  recommandations  de  sécurité 

s’améliorent bien que ceux-ci demeurent supérieurs à 90 jours.  

Les  arrangements  préalables  constituent  une  approche  pragmatique  en  ce  qui  concerne 

l’organisation de la collaboration entre les SIA et les autorités judiciaires afin que l’enquête de 

sécurité  ne  soit  pas  mise  à  mal  par  des  procédures  administratives  ou  judiciaires.  Les 

arrangements  préalables  permettent  aux  états  membres  de  s’adapter  aux  différents  systèmes 

légaux nationaux. Dans plusieurs états membres, les arrangements préalables n’ont jamais été 

mis  en  pratique  car  aucun  accident  majeur  n’a  eu  lieu  depuis  l’entrée  en  vigueur  de 

l’arrangement. Là où il a été appliqué, il s’avère un moyen efficace de coordonner les différentes 

enquêtes  malgré  certaines  situations  où  les  autorités  judiciaires  n’ont  pas  eu  suffisamment 

conscience  de  leur  existence  ou  lorsque  son  contenu  a  été  défini  à  la  dernière  minute.  Il  est 

donc  essentiel  que  les  parties  prenantes,  et  plus  particulièrement  les  autorités  judiciaires,  se 

familiarisent  avec  les  arrangements  préalables  et  que  ces  derniers  soient  passés  en  revue 

régulièrement (voir Recommandation 4). 

Les  clauses  relatives  à  la  protection  des  données  de  sécurité  sensibles  et  des  personnes  ont 

contribué  à  l’amélioration  de  l’enquête  de  sécurité.  Néanmoins,  certains  accidents  très 

importants se  sont produits (Spanair, Germanwings), dont une partie des données de sécurité 

confidentielles  ont  été  rendues  publiques.  Les  démarches  visant  à  la  protection  des  données 

sensibles  laissent  place  à  une  certaine  interprétation.  Cette  situation  délicate  doit  donc  être 

résorbée (voir Recommandation 5). 

Les  états  membres  participent  activement  à  l’ENCASIA  et  ont  en  grande  partie  respecté  les 

normes de coordination en matière d’enquête (article 12), la protection des preuves (article 13) 

et la protection  des données sensibles (article 14) grâce  à la mise  en  place  des arrangements 

préalables.  

Il  existe  plusieurs  différences  en  Europe  au  regard  de  l’utilisation  des  rapports  d’enquête  de 

sécurité  dans  les  enquêtes  judiciaires  et  les  assignations  à  comparaître  des  enquêteurs 

spécialisés  dans  la  sécurité  aérienne.  L'on  ne  sait  toutefois  pas  si  cela  comporte  des 

conséquences  sur  la qualité  des enquêtes de sécurité. Il convient donc de passer  en revue les 

différentes  pratiques  adoptées  par  les  états  membres  et  leurs  implications  par  le  biais  d'une 

étude comparative (Recommandation 6). 

Les plans d’urgence  nationaux n'ont  pas été  mis en  oeuvre dans tous les états membres. Des 

conseils sont nécessaires en ce qui concerne leur contenu et leur instauration. Des progrès ont 

été  réalisés  en  ce  qui  concerne  la  résolution  des  problèmes  et  des  défis  relatifs  à  l’aide  aux 

victimes et à leur famille. Toutefois, l’accident du MH17 a mis en exergue les problèmes liés à 

15 

  
 
 
 
 
 
 
 
 
 
 
 
Support study to the evaluation of Regulation (EU) No 996/2010 

l’obtention des données suffisant  à établir qui était à bord de  l’appareil (voir Recommandation 

3). 

Efficience 

Les  atouts  du  Règlement  (UE)  n°  996/2010  consistent  en  une  amélioration  des  conditions  de 

sécurité grâce à une meilleure collaboration entre les SIA et de meilleures recommandations en 

matière  de  sécurité.  Bien  que  ces  atouts  soient  difficiles  à  chiffrer,  un  calcul  approximatif  des 

seuls accidents mortels montre que le rapport avantages/coûts sur une année est supérieur à 1 

si  plus  de  0,55  %  des  décès  évités  grâce  à  une  meilleure  sécurité  aérienne  peuvent  être 

attribués  au  règlement.  Le  cas  échéant,  les  avantages  du  Règlement  (UE)  n°  996/2010  en 

compensent les coûts.  

Les  intervenants  consultés  dans  le  cadre  de  cette  évaluation  sont  d’avis  que  les  ressources  et 

les  coûts  résultant  du  règlement  ont  été  proportionnels  aux  résultats  obtenus  et  que  les 

avantages dépassent ces coûts. 

Cohérence 

Le règlement respecte la politique européenne de sécurité aérienne et aucune incohérence avec 

les autres règlements n’a été détectée hormis un manque d’harmonie entre les règlements (UE) 

n° 376/2014 et (UE) n° 996/2010.  

Les  accidents  et  les  incidents  graves,  selon  la  définition  du  Règlement  (UE)  n°  996/2010, 

doivent être signalés en vertu du Règlement (UE) n° 376/2014 (Article 2(7)). Un double rapport 

peut  donc  s’avérer  nécessaire  lorsqu’un  individu  est  soumis  à  des  obligations  en  la  matière 

conformément au Règlement (UE) n° 376/2014. Pour les personnes qui signalent un incident, il 

est  parfois  difficile  de  savoir  à  qui  adresser  le  rapport  étant  donné  qu’il  n’est  pas  toujours 

évident d'en établir la gravité. 

Les  SIA  ressentent  un  manque  d’harmonie  entre  le  Règlement  (UE)  n°  376/2014  et  le 

Règlement  (UE)  n°  996/2010.  Les  SIA  s’interrogent  par  ailleurs  sur  le  fait  que  leur  obligation 

d’enquête  pourrait  faire  l’objet  d'un  classement  par  une  autre  autorité  compétente.  Cette 

inquiétude  n’est  pas  justifiée.  Selon  les  SIA,  les  incidents  graves  et/ou  les  accidents  ne 

pourraient être signalés qu’à l’autorité compétente en vertu du Règlement (UE) n° 376/2014, et 

non aux SIA.  

Dès lors, les intervenants  doivent connaître les différentes méthodes. Les états membres sont 

responsables  de  la  mise  en  place  de  systèmes  nationaux  opportuns  afin  que  les  autorités 

puissent  prendre  connaissance  des  informations  et  assumer  leurs  fonctions.  Une  coordination 

efficace  entre  l’autorité  compétente  en  vertu  du  Règlement  (UE)  n°  376/2014  et  les  SIA  est 

donc  nécessaire.  Il  est  important  que  les  NAA,  SIA  et  l’EASA  mettent  en  oeuvre  un  échange 

d’informations adéquat ne laissant que peu de place à l’interprétation et à la subjectivité. Tel est 

l'objet de la Recommandation 7. 

Valeur ajoutée pour l’UE 

Le Règlement (UE) n° 996/2010 a eu une influence positive sur les travaux déjà effectués par 

les états membres en ce qui concerne les enquêtes sur les accidents, tant à l’échelle individuelle 

ou dans le cadre de leurs obligations en vertu de l’Annexe 13 de l’ICAO et/ou du cadre juridique 

européen  existant.  L’ENCASIA,  dont  les  SIA  de  la  plupart  des  états  membres  font  activement 

partie, est considéré comme l’un des éléments les plus efficaces mis en place par le règlement. 

La valeur ajoutée pour l’Europe résulte donc d’une combinaison de plusieurs facteurs, à savoir : 

une  meilleure  structure  juridique quant  au  statut  de  certaines  dispositions  de l’ICAO  et  le  rôle 

des différents intervenants en cas d’accident ou d’incident grave, et plus particulièrement la CE, 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

l’EASA et les autorités judiciaires, les avantages associés à un échange de connaissances et de 

ressources, et une plus grande efficacité des enquêtes de sécurité et des recommandations en 

la matière. 

Recommandations 

Les recommandations ci-après résultent des conclusions de l’analyse. 

Recommandation 1 (pour la CE et les états membres) :  

L’ENCASIA  est  considéré  comme  l’un  des  éléments  les  plus  efficaces  mis  en  place  par  le 

règlement.  Actuellement,  les  activités  d’ENCASIA  sont  financées  par  une  bourse  de  l’UE  qui 

couvre une grande partie des coûts. Sans soutien financier, l’ENCASIA, sous sa forme actuelle, 

ne  peut  exister.  La  bourse  n’est  qu'une  solution  temporaire.  Pour  que  l’ENCASIA  continue  à 

engranger  des  résultats  positifs,  une  structure  financière  durable  est  recommandée  pour 

l’ENCASIA en vue d'une planification à long terme. 

Recommandation 2 (pour l’ENCASIA) :  

Bien  que  l’enquête  portant  sur  les  accidents  aériens  résultant  d’un  piratage  informatique 

n’incombe  pas  forcément  au  SIA,  il  est  important  que  les  SIA  disposent  d'une  expertise 

suffisante  pour  établir  si  une  cyber-attaque  est  à  l’origine  de  l’accident  afin  d’informer  les 

autorités  compétentes  et  en  tirer  les  enseignements  pertinents  en  matière  de  sécurité.  Il  est 

conseillé  aux  SIA  de  rassembler  les  connaissances  suffisantes  dans  ce  domaine  afin  de  régler 

efficacement le problème, notamment par le biais d’accords de collaboration avec d’autres états 

ou  à  l’échelle  régionale,  ou  par  le  biais  d’arrangements  préalables  avec  les  organismes 

nationaux  compétents  en  matière  de  sécurité  informatique.  Nous  recommandons  la  prise  en 

charge des questions liées à la sécurité informatique au sein de l’ENCASIA.  

Recommandation 3 (pour les états membres et la CE) :  

Des plans d’urgence nationaux en cas d’accident d'un avion civil n’ont pas été mis en oeuvre par 

tous  les  états  membres.  Pour  ceux  qui  l'ont  fait,  ces  programmes  ne  sont  pas  toujours 

complets.    Nous  recommandons  à  la  Commission  européenne  de  publier  des  conseils  et  de 

normes élémentaires afin d’aider les états membres à améliorer la mise en place de ces plans 

d'urgence. Ceux-ci doivent inclure les accords afin que les SIA nationaux puissent organiser des 

enquêtes  de  sécurité  de  qualité  en  cas  d’accident  majeur  impliquant  un  appareil  civil.  Par 

ailleurs,  les  états  membres  doivent  veiller  à  ce  que  la  nationalité  de  tous  les  passagers  soit 

recensée  par  les  compagnies  aériennes  afin  de  disposer  d'informations  suffisantes  quant  aux 

personnes à bord et fournir une aide aux victimes et aux familles. 

Recommandation 4 (pour les états membres) :  

Pour que les arrangements préalables soient efficaces, nous recommandons de veiller à ce que 

les intervenants en aient connaissance et les passent régulièrement en revue afin d’en vérifier la 

pertinence. 

Recommandation 5 (pour l’ENCASIA et la CE) :  

Il convient de fournir des conseils complémentaires en ce qui concerne le niveau de protection 

des  informations  de  sécurité  sensibles  au  sein  de  l’ENCASIA  en  collaboration  avec  la  CE,  et 

notamment au regard des différents niveaux de sécurité nécessaires pour les différents types et 

sources d'informations.  

Recommandation 6 (pour la CE) :  

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Support study to the evaluation of Regulation (EU) No 996/2010 

Les états membres adoptent des méthodes différentes quant à l’usage des rapports d’enquête 

de sécurité dans le cadre des procédures judiciaires. L'on ne sait toutefois pas si cela comporte 

des conséquences sur la qualité des enquêtes de sécurité. Nous recommandons dès lors la mise 

en place  d'une étude comparative  de ces  différentes pratiques parmi les états membres en ce 

qui  concerne  les  rapports  d’enquête  de  sécurité  dans  les  procédures  judiciaires  et  leurs 

implications. 

Recommandation 7 (pour les états membres et l’EASA) :  

Nous  recommandons  que  les  autorités  nationales  chargées  de  l’aviation,  les  SIA  et  l’EASA 

collaborent  en  vue  de  mettre  en  place  un  flux  d’informations  adéquat  en  ce  qui  concerne  le 

signalement des situations associées au Règlement (UE) n° 996/2010 et au Règlement (UE) n° 

376/2014 de sorte à ne laisser que peu de place à l’interprétation et à la subjectivité. 

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LIST OF ACRONYMS 

Abbreviation  Meaning 

ATM 

CAA 

Air Traffic Management 

Civil Aviation Authority 

CEASIA 

Council of European Aviation Safety Investigation Authorities 

CERT 

CCTV 

CJEU 

CVR 

Computer Emergency Response Team 

Closed Circuit Television 

Court of Justice of the European Union 

Cockpit Voice Recorder 

DG MOVE 

Directorate-General for Mobility and Transport 

EASA 

EC 

ECAC 

European Aviation Safety Agency 

European Commission 

European Civil Aviation Conference 

ECAC-ACC 

ECAC's expert group on aircraft accident and incident investigation 

ENCASIA 

European Network of Civil Aviation Safety Investigation Authorities 

ESASI 

European Society of Air Safety Investigators 

EU 

FDR 

FTE 

GPS 

ICAO 

IIC 

ISASI 

JRC 

MS 

NAA 

OPC 

PNR 

QAR 

RAIO 

SARPs 

SIA 

SRGC 

SRIS 

SRUR 

SWD 

TFEU 

VOSL 

WG 

European Union 

Flight Data Recorder 

Full Time Equivalent 

Global Positioning System 

International Civil Aviation Organization 

Investigator In Charge 

International Society of Air Safety Investigators 

Joint Research Centre 

Member State 

National Aviation Authority 

Open Public Consultation 

Passenger Name Record 

Quick Access Recorder 

Regional Accident Investigation Organization 

Standards And Recommended Practices 

Safety Investigation Authorities 

Safety Recommendation of Global Concern 

Safety Recommendations Information System 

Safety Recommendation of Union-Wide Relevance 

Staff Working Document 

Treaty on the Functioning of the European Union 

Value of Statistical Life 

Working Group 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

1 

INTRODUCTION 

1.1  Background and objectives 

In December 2016, the European Commission (DG MOVE) tasked a consortium constituted by 
Ecorys and NLR to evaluate Regulation (EU) No 996/2010 on the investigation and prevention of 
accidents and incidents in civil aviation. 

The objective of the evaluation is to provide the Commission with an independent and evidence-
based evaluation of Regulation (EU) No 996/2010 to assess whether the main objectives of the 
regulation has been achieved since its entry into force in December of 2010.  

Regulation (EU) No 996/2010 aims3 to improve aviation safety by ensuring a high level of 
efficiency, expediency, and quality of European civil aviation safety investigations, the sole 
objective of which is the prevention of future accidents and incidents without apportioning 
blame or liability, including through the establishment of ENCASIA. It also provides for rules 
concerning the timely availability of information relating to all persons and dangerous goods on 
board an aircraft involved in an accident. It also aims to improve the assistance to the victims of 
air accidents and their relatives. 

1.2  Structure of this report 

The remainder of this report is structured as follows. Chapter 2 provides the methodological 
aspects of the evaluation study including a description of the tasks performed. Chapter 3 
outlines a short overview of the developments relevant for Regulation (EU) No 996/2010. In 
Chapter 4, an answer is given to each evaluation question, based on the collected information. 
Chapter 5 contains the conclusions derived from the answers to the evaluation questions. From 
the conclusions, recommendations are provided in Chapter 6. 

In addition, a number of annexes are provided with additional background information on the 
relevant documentation used for the desk research (Annex 1), the people who participated in 
the interviews and focus group (Annex 2), the counterfactual scenario (Annex 3), the accident 
cases (Annex 4), and the detailed analysis to support the answer to the evaluation questions 
(Annex 5). 

1.3 

Introduction of the study team 

The study has been conducted by a consortium of Ecorys and NLR supported by prof. Pablo 
Mendes de Leon of Leiden University. 

The Netherlands Aerospace Centre NLR4 is an independent, non-profit organization that provides 
technological support to aerospace industries, to operators of civil and military 
aircraft/helicopters, of airports and of ATC systems, to authorities and to international 
organizations, all over the world since 1937. NLR considers its independency as one of its core 
competences. It is the central institute for aerospace research and consultancy in the 
Netherlands. NLR has more than 500 specialists with in-depth expertise in a range of areas 
within aviation, including air transport safety, aircraft systems, operator performance, flight 
procedures, air traffic management, airports, regulations and accident investigation. 

Ecorys5 is one of the oldest and largest economic research and consulting companies in Europe, 
with a remarkable history of 85 years. Ecorys has more than 500 specialists, spread over 18 
offices in 12 countries worldwide, providing private and public sector clients. The company’s 
specialists possess in-depth expertise in a range of areas focusing on policy, business, financial, 
economic, social, spatial and environmental issues. Its unique track record and its ability to 
deploy economic led, multi-disciplinary and -national skills enables Ecorys to respond to the 
most challenging problems at all stages of the “policy, strategy and implementation cycle. 

3 According to Article 1(1) of Regulation (EU) No 996/2010. 
4 Website: http://www.nlr.nl. 
5 Website: http://www.ecorys.com. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

Prof. Pablo Mendes de Leon6 is since 15 April 2008 Professor of Air and Space law and Head of 
Department/executive chair of the Department of Air and Space Law at Leiden University. He 
brings to the study team unique expertise on matters concerning international aviation 
legislation and the interaction of the Regulation (EU) No 996/2010 with other legal provisions. 

6 Website: http://www.universiteitleiden.nl/en/staffmembers/pablo-mendes-de-leon. 

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2  METHODOLOGY 

This chapter presents the methodological aspects of the evaluation study. Section 2.1 presents 
the scope of the evaluation by addressing the evaluation criteria and the associated evaluation 
questions. Section 2.2 presents the approach to the study to deliver the project objectives. 
Section 2.3 elaborates on the tasks performed during this study. Section 2.4 summarised the 
stakeholder consultation. Finally, Section 2.5 provides the limitations of the current analysis. 

2.1  Evaluation criteria and questions 

To assess whether or not the goals of Regulation (EU) No 996/2010 have been met, the Terms 
of Reference for this evaluation7 provides five evaluation criteria:  

 

 

 

 

 

The relevance of Regulation (EU) No 996/2010, i.e. the extent to which the measures 
required by the regulation are still relevant and appropriate to the initial needs; 
The effectiveness of Regulation (EU) No 996/2010, i.e. the extent to which the 
regulation contributed to the improvement of aviation safety in Europe; 
The efficiency of Regulation (EU) No 996/2010, i.e. the extent to which resources and 
costs incurred are proportional to the results achieved; the extent to which the 
distribution of the costs over the different stakeholders is proportionate; and the extent 
to which additional administrative tasks that have been generated by the regulation are 
proportional; 
The coherence of Regulation (EU) No 996/2010, i.e. the extent to which the regulation 
is consistent with, complementary to and non-contradictory to the EU Aviation Safety 
Policy and other regulations; 
The EU added value of Regulation (EU) No 996/2010, i.e. the value resulting from this 
regulation which is additional to the value that would have been otherwise created by 
Member State action alone within the context of Member State obligations under ICAO. 
And the added value of the regulation to the EU safety environment, in particular the as 
regards to the role of EASA and the aviation industry. 

For these evaluation criteria, the Terms of Reference for this evaluation provides eight main 
evaluation questions and additional sub-questions. The evaluation questions are repeated in 
Chapter 4. The approach of the evaluation study is designed to obtain sufficient information to 
answer these questions and sub-questions. 

2.2  Three pillar approach 

The very complex and sensitive nature of this evaluation whereby multiple stakeholders are 
involved with potentially diverging opinions, requires a well-elaborated and solid approach to 
building up the fact basis on which the analysis is based. The approach entails concrete and 
triangulated fact finding activities based on three pillars:  

1.  Desk research deals with the collection of reported facts; 
2.  Field research aims to collect the experience and viewpoint of a plethora of stakeholders 

accounting for differences in approach; and finally; 

3.  Case studies intend to collect empirical evidence on the occasion of the application of the 

regulation in specific instances. 

Stakeholder consultation is a key element of the evaluation. It is aimed at collecting relevant 
data, stakeholder views and opinions. This is primarily done via a survey, targeted interviews 
and an open public consultation. Stakeholders are also consulted to get feedback on the 
methodology and findings. In this respect, stakeholder consultation is a constant process 
throughout the evaluation. For consulting the stakeholders, the following instruments were 
used:  

  Exploratory interviews; 
  Survey; 

7 Request for services № MOVE/E.3/2016 – 440 in the context of the framework contract on impact 
assessment and Evaluation studies (ex-ante, intermediate and ex-post) in the field of Transport, 
MOVE/A.3/119-2013- LOT № 1 ”Air", Ref. Ares(2016)4078312 - 03/08/2016.  

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Support study to the evaluation of Regulation (EU) No 996/2010 

Targeted interviews; 
Focus group; 

 
 
  Stakeholder workshop; 
  Open Public Consultation (OPC). 

More details on these activities are provided in the task description in Section 2.3 below. A 
summary on the participation of the stakeholders is provided in Section 2.4. 

2.3  Task description 

As prescribed in the Terms of Reference, this evaluation study was broken down into eight 
tasks, which are described below. 

Task 1: Study structure 
The task was carried out in order to establish the foundation for implementing the evaluation 
study. Within this task, the following activities have been performed: 

  An evaluation framework was developed at the beginning of the evaluation study to 

 

facilitate the evaluation; 
Four exploratory interviews were held with key experts. The aim of these exploratory 
interviews was to refine the understanding of the issues relevant for the evaluation, to 
consolidate the knowledge of the details of the application of the regulation and to fine-
tuning the methodology. The list of experts that were interviewed is provided in  
Annex 2; 
The kick-off meeting with the European Commission took place on 16 January 2017; 

 
  A focus group was established in order to guide the study team during the evaluation. 

To goal of the focus group is to bring in initial specialist insights, test the methodology, 
assess the quality of data sources, assist in approaching the most relevant stakeholders 
and validate as well as assist in the interpretation of findings; overall generating 
valuable guidance for the study team. On 8 March 2017, the Commission sent an 
invitation to candidates of the focus group. The focus group consists of 11 experts. The 
list of focus group members is provided in Annex 2. The focus group meetings are part 
of Task 3c. 

Task 2: Desk research 
The desk research is used to collect factual information. The factual information can be publicly 
available information or restricted information disclosed to study team. The available 
information consists of the following sources: 

ICAO Standards And Recommended Practices (SARPs) and supporting documents; 

 
  EU regulations and supporting documents; 
  ENCASIA documentation; 
  Advance arrangements and supporting documentation; 
  Documentation on court cases; 
  Accident reports; 
  Additional sources including literature, studies and ESASI presentations. 

Annex 1 provides an overview of the data sources that were used for this study.  

Task 3a: Field research: survey 
To reach the maximum number of stakeholders and to collect large amounts of information, an 
online survey has been developed. To avoid stakeholder fatigue and boost participation, the 
questions were tailored per stakeholder group.  

On 10 March 2017, the targeted survey was launched via internet. In total 175 persons were 
invited by e-mail to complete the survey. Seven (4%) of the invitations bounced.  

After a deadline extension and an additional reminder to the ENCASIA member by the EC, the 
survey was open for 36 days (until 14 April 2017) and 62 persons responded. Of these 
respondents 45 (73%) reached the end of the survey. 

There were respondents from 26 Member States: Belgium, Bulgaria, Croatia, Cyprus, Czech 
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden 
and United Kingdom, see also Figure 2. 

For the purpose of our study, the stakeholders of Regulation (EU) No 996/2010 have been 
clustered into six categories: 

1.  European Community (European Parliament, Council, Commission, EASA, JRC etc.); 
2.  Safety Investigation Authorities; 
3.  Member States (Policy ministry and Civil Aviation Authorities); 
4.  Aviation Community; 
5.  Law and Criminal investigation; 
6.  Passenger and victims. 

A distribution of the respondents over the different categories is given in Figure 1 below.  

Figure 1: Distribution of the respondents to the targeted survey over the six 
stakeholder groups (N=62) 

Of the 62 respondents, 56 provided the name of their organisation and 6 did not. The list of 
organisations that completed the targeted survey is provided in Annex 2. 

Task 3b: Field research: targeted interviews 
In-depth interviews were used to collect more detailed inputs. This tool proved especially useful 
in receiving elaborate views on the functioning of the Regulation (EU) No 996/2010. 
Anonymising the responses ensured openness in the responses. Stakeholders that were 
considered for interviews were identified in consultation with the Commission and through the 
evaluation team’s professional networks. In total, 31 interviews were conducted. Annex 2 
provides a list of the conducted interviews.  

Task 3c: Field research: focus group 
After the establishment of the focus group, three focus group meeting were held via telephone 
conference (Skype) on 4 April 2017, 25 April 2017 and 17 May 2017. During all meetings, the 
participants were briefed about the progress of the study. In the second meeting, the 
intermediate report was discussed and the participants were invited to perform a review of the 
report. The main purpose of the third meeting was the preparation of the workshop and the 
participation of the focus group members therein.  

Task 3d: Field research: Stakeholder workshop 
On 1 June 2017, a stakeholder workshop was held. The purpose of the workshop was to present 
the preliminary findings, to obtain feedback from the participants on the results, and to obtain 
opinions from the participants on possible improvements of the Regulation (EU) No 996/2010. 

An important element of the workshop is the break-out sessions. For these break-out sessions, 
the participants have been assigned to one of the four groups. Each group discussed a number 
of topics. 

The workshop was organised by DG MOVE and hosted in Brussels. Invitations were sent to 
ENCASIA members, Representatives of Member States (Ministry of Transport and CAAs), Focus 
group members, persons that have been interviewed for the evaluation study. In total, there 

25 

  
 
 
 
 
 
 
 
 
Support study to the evaluation of Regulation (EU) No 996/2010 

were 41 participants. 

In the presentation of the preliminary results, the following seven topics were identified as the 
current open issues and therefore discussed during this workshop: 

1.  Quality of safety investigation; 
2.  Coherence with Regulation (EU) No 376/2014; 
3.  Implementation of safety recommendations; 
4.  EU added value; 
5.  Coordination with other investigations; 
6.  Use of sensitive information and reports; 
7.  Emergency plans and assistance to victims & families. 

For the break-out sessions, the participants were randomly assigned to one of the four groups. 
The groups were chaired by a member of the focus group and supported by a study team 
member of ECORYS/NLR. Each of the groups discussed a number of topics. For each topic, the 
groups were asked to answer the following three questions: 

1.  What are the problems that need to be resolved (if any)? 
2.  What are possible solutions? 
3.  How can the solution be achieved? 

After these break-out sessions, the chairman of each group reported the results of the group’s 
discussion to the plenary meeting. Following these presentations, a plenary discussion was held. 
The minutes of the workshop have been shared with all participants.  

Task 4: Open Public Consultation (OPC) 
In parallel to this study, the Commission launched an Open Public Consultation (OPC). The aim 
of the OPC is to have an additional source of information that will be used in this evaluation 
study. Because the OPC was only launched too late, it was decided not to integrate the results 
of the OPC in this report, but to report the results of the OPC in a separate document. 

Task 5: Case studies 
As part of the study, an analysis of four relevant accident cases is made in order to assess the 
application of the regulation. In order to select cases that are relevant criteria were determined.  

The four cases have been selected based on the following criteria: 

1.  Case is relevant if it provides supporting evidence for answering the evaluation 

questions that were defined to assess whether the main objectives of Regulation (EU) 
No 996/2010 have been achieved; 

2.  The case is in the scope of the regulation (see Article 3), i.e.: 

a.  In the timeframe the regulation was into force (December 2010 – June 2017); 
b.  It involved the safety investigations into accidents and serious incidents: 

iii. 

ii. 

i.  which have occurred in the territories of the Member States to which the 
Treaties apply, in accordance with the international obligations of the 
Member States; 
involving aircraft registered in a Member State or operated by an 
undertaking established in a Member State, which have occurred outside 
the territories of the Member States to which the Treaties apply, when such 
investigations are not conducted by another State; 
in which a Member State is entitled, according to international standards 
and recommended practices, to appoint an accredited representative to 
participate as a State of Registry, State of the Operator, State of Design, 
State of Manufacture or State providing information, facilities or experts at 
the request of the State conducting the investigation; 
in which a Member State having a special interest by virtue of fatalities or 
serious injuries to its citizens is permitted by the State conducting the 
investigation to appoint an expert. 

iv. 

c. 

It can also involve issues pertaining to the timely availability of information 
relating to all persons and dangerous goods on board an aircraft involved in an 
accident and assistance to the victims of air accidents and their relatives; 
d.  It does not involve safety investigations into accidents and serious incidents 

which involve aircraft engaged in military, customs, police or similar services, 

26 

 
 
 
 
 
 
 
 Support study to the evaluation of Regulation (EU) No 996/2010 

except when the Member State concerned so determines, in accordance with 
Article 5(4) and national legislation. 

3.  Cases should also relate to Member States compliance, in particular court cases where 

sensitive safety information was used to apportion liability; 
4.  Sufficient detail/information about the case must be available.  

The selection of cases has been based on an initial proposal by the study team, input provided 
to us by the Commission, and cases proposed by ENCASIA (Action from ENCASIA meeting on 9 
February 2017). In total four cases are selected and approved by ENCASIA and the focus group: 

1.  Boeing 767 at Warsaw airport (Poland) on 1 November 2011; 
2.  Pilatus PC-6 at Gelbressée (Belgium) on 19 October 2013; 
3.  Airbus A320 at Prads-Haute-Bléone (France) on 24 March 2015; 
4.  UK Court Cases related to air accidents that raised questions on the interpretation of the 

regulation. 

The analysis of accident cases is provided in Annex 4.  

Task 6: Analysis 
The analysis entails a comprehensive comparison and triangulation of data as obtained through 
the various collection methods. Following the results from the desk research, the field research 
(interviews, survey and workshop) and the accident cases, an answer to each evaluation 
questions was formulated.  

Task 7: Conclusions and recommendations 
Following the answers to the evaluation questions (Task 6), conclusions were derived for each of 
the five evaluation criteria: relevant, effectiveness, efficiency, coherence, EU added value and 
Member State compliance. Based on the conclusions recommendations were formulated to 
resolve issues that still exist.  

Task 8: Development of dissemination strategy 
In this task, a dissemination strategy is developed to stimulate the use and uptake of the 
evaluation results. To this end, a synthesis note is made, summarising the conclusions and 
recommendations of the evaluation. This synthesis note will be distributed to a large audience, 
making use of contacts established during the stakeholder consultation process and the wider 
audience, to be reached in collaboration with the Commission. 

2.4  Stakeholder consultation 

For consulting the stakeholders, the following instruments were used:  

  Exploratory interviews; 
  Survey; 
 
 
  Stakeholder workshop; 
  Open Public Consultation (OPC). 

Targeted interviews; 
Focus group; 

Table 1 below provides an overview of the number of stakeholders that were consulted per 
group and consultation method. A number of stakeholders used to opportunity to provide input 
through multiple channels. This resulted in a total number of 144 responses by stakeholders. It 
is remarked that some representatives were consulted via more than one method. Annex 2 
provides details on the stakeholders that have been interviewed (exploratory interviews and 
targeted interviews). A characterisation of the respondents to the survey is provided in Section 
2.3.3. 

Table 1: Overview of responses per stakeholder group and method 

Stakeholder group 

Exploratory 

interviews 

Survey 

Targeted 

Focus 

interviews 

Group 

Workshop 

1. European Community 

2 

3 

4 

2 

6 

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Support study to the evaluation of Regulation (EU) No 996/2010 

2. SIAs 

3. Member States 

4. Aviation community 

5. Law & Criminal inv. 

6. Passengers and victims 

Total 

1 

1 

4 

25 

10 

21 

1 

2 

62 

10 

4 

4 

6 

1 

5 

2 

2 

31 

11 

19 

2 

7 

2 

36 

There are many regional differences in Europe including differences in size of SIAs, the law 
system and culture. These differences could lead to different perspectives on the regulation and 
its implementation. Deliberate efforts were taken to ensure that all ends of the spectrum were 
taken into account. There is a high level of participation from the various Member States. Figure 
2 below, show the level of stakeholder participation per Member State for the various methods 
(I=interview, S=survey, W=workshop and F=focus group). For the survey and the workshop all 
Member States were invited to participate. For the interviews, it was difficult to obtain a 
response from certain countries. Only Austria has not participated through the survey, 
interviews, workshop and focus group. There are five Member States that participated only 
through one method.  

Figure 2: Illustration of the participation from the 28 Member States. For each 
Member State, a letter code has been used to indicate their participation. I = 
interview, S=Survey, W=workshop and F = focus group 

2.5  Limitations of the evaluation 

The data collection process (including desk research and field research) has been driven to meet 
the information needs to answer the evaluation questions. Despite this aim, the two limitations 
were encountered during the evaluation: 

  Unbalanced stakeholder representation 

There was limited interest amongst several stakeholder groups to participate in the 
evaluation study (interviews and survey). Identified underlying reason is the limited 

28 

ISWISWSSISISWISISWFISWFISWFISWFSWISWFSWISWFSFSWISWFISWSSSWWISWSWSSWSI 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Support study to the evaluation of Regulation (EU) No 996/2010 

perceived relevance of the regulation to them. Efforts were taken to mitigate this 
problem. For the interviews, follow-up mails were sent and several calls were made to 
invite stakeholders for interviews. Follow-up mails to fill in the survey were sent and the 
deadline of the survey has been extended. As a result, from these efforts minimal 
desired input was obtained. 

  Regional differences regarding the implementation of the regulation 

There are many differences between Member States in Europe including differences in 
size of SIAs, the law system and culture. These differences could lead to different 
perspectives on the regulation and its implementation. Deliberate efforts were taken to 
ensure that all ends of the spectrum were taken into account by covering these 
differences in the desk research and by selecting a range of countries for the targeted 
interviews. There was limited response from several Member States following an 
invitation for an interview. Figure 2 shows the participation per Member State. Only 
Austria did not participate in the survey, interviews, workshop or focus group.  

Following efforts to involve stakeholders, the evaluation gathered sufficient inputs to answer the 
evaluation questions. Therefore, it is concluded that the provided input was found to be 
sufficiently robust and comprehensive. 

29 

  
 
 
 
 
 
 
 Support study to the evaluation of Regulation (EU) No 996/2010 

3  AVIATION SAFETY TRENDS AND FIGURES 

Aviation safety is improving over the years as indicated by a steady reduction of the number of 
accidents. Information about aviation accidents and fatalities in Europe is presented in the EASA 
Annual Safety Review which has been published since 20058. Figures 3 and 4 show the number 
of accidents and fatalities from 2006 up to and including 2016 for commercial aeroplanes 
involving EASA MS operators and non-commercial aeroplanes having an EASA MS State of 
Registry (general aviation).  

These figures show that for commercial air transport as well as for general aviation the number 
of accidents has been decreasing with a steady rate since 2006. The number of on-board 
fatalities in commercial air transport does not show a particular trend; the yearly number of 
fatal accidents typically varies between 0 and 1, but if an accident occurs, the number of 
fatalities can be quite high. The number of on-board fatalities in general aviation shows a 
steadily decreasing trend. 

Figure 3: Evolution of CAT accidents and fatalities, period 2006-2016. Source: EASA 
Annual Safety Reviews 2006-2017 

8 See https://www.easa.europa.eu/document-library/general-publications?publication_type%5B%5D=144.  

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Support study to the evaluation of Regulation (EU) No 996/2010 

Figure 4: Evolution of GA accidents and fatalities, period 2006-2016 

Source: EASA Annual Safety Reviews 2006-2017.  

Table 2 shows the average annual number of aviation fatalities in Europe before and after the 
introduction of Regulation (EU) No 996/2010. This table shows that the average annual number 
of aviation fatalities in Europe has reduced since the introduction of the regulation. 

Table 2: Average annual number of aviation fatalities in Europe before and after the 

introduction of Regulation (EU) No 996/2010 

Average annual number of fatalities 

2005-2010 

2011-2016 

Commercial Air Transport 

General Aviation 

114 

119* 

46 

91 

* This is the average over 2006-2010. Numbers for 2005 were not published by EASA.  

Source: EASA. 

Although these results demonstrate continuous safety improvements, it is not possible to 
determine to what extent Regulation (EU) No 996/2010 has contributed to these improvements. 
However, it is reasonable to argue that high quality unbiased safety investigations (the aim of 
the regulation) lead to increased safety. A safety investigation leads to safety recommendations 
to prevent similar occurrences in the future. These safety recommendations could lead to 
modification of regulations or to modification of procedures for airlines, air navigation service 
providers etc. Since the results of the safety investigations are made publicly available by 
almost all States, the impact of a safety investigation is larger than just the follow-up of the 
safety recommendations by the organisations to who they are addressed. Many airlines, for 
example, have changed their operational procedures regarding leaving the cockpit by one of the 
pilots during the flight as a result of the safety investigation of the Germanwings accident, 
although changing these procedures was not a recommendation from the safety investigation. 

The European Commission, EU Member States, Eurocontrol, EASA and industry have numerous 
(coordinated) activities to further improve safety. Many of these activities are described in the 
various editions of the European Plan for Aviation Safety9. Some, but not all of these activities 
are initiated as a result of safety investigations of accidents and are therefore linked with 
Regulation (EU) No 996/2010.  

9 See https://www.easa.europa.eu/system/files/dfu/EPAS%202016-2020%20FINAL.PDF.  

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4  DEVELOPMENTS RELATED TO REGULATION (EU) NO 996/2010 

The thorough investigation of accidents and incidents that have occurred and the dissemination 
of the lessons learnt to prevent future accidents is a key element in achieving the high safety 
performance in aviation. The detailed provisions on the investigation were established by ICAO 
Annex 13 and have been reflected in EU law through the adoption of Directive No 94/56/EC in 
1994. 

Over time, it was felt that the current regulation was no longer adequate10. Directive No 
94/56/EC no longer met the requirements of the EU and of the Member States, because: 

 

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

  Aircraft were becoming increasingly complex and accident investigation required more 

 
 

 

expertise and resources; 
The EU common aviation market grew both in size and complexity in the last decade; 
This increase in the complexity of the single aviation market also called for increased 
responsibility of the Community in aviation safety and establishment of EASA; 
The EU and its Member States gained significant practical experiences since 1994, which 
should be used to strengthen the current system. 

The Commission carried out several activities to resolve some of these issues. This encouraged 
the establishment of the Council of European Aviation Safety Investigation Authorities (CEASIA) 
in 2006, a voluntary regrouping of Safety Investigation Authorities aiming to coordinate 
accident investigation among Member States and to act as a liaison with the institutions of the 
European Union11.  

In 2009, an impact assessment12 was conducted to analyse different policy options to assist the 
Commission in the revision of Directive No 94/56/EC and Directive No 2003/42/EC on 
occurrence reporting in civil aviation. This impact assessment was supplemented by a support 
study conducted by Ecorys and NLR, and identified five specific problems: 

lack of uniform investigation capability; 

1. 
2.  tensions between safety investigations and other proceedings; 
3.  unclear role of the Community (EASA) in safety investigations; 
4.  weakness in implementation of safety recommendations; and 
5. 

insufficient assistance to the victims of air accidents and their families, including difficulties 
to quickly obtain complete passenger lists. 

In line with the conclusions of the impact assessment, these problems were to be resolved 
through co-regulation13 and voluntary cooperation. Therefore, Regulation (EU) No 996/2010 
was adopted on 20 October 2010, revoking Directive No 94/56/EC. The regulation subsequently 
came into force in December 2010. The regulation emphasises the need to ensure a high level 
of efficiency, expediency, and quality of European civil aviation safety investigation capability 
throughout the Union, without apportioning blame or liability. 

10 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. 
11 Dempsey, P.S. (2010). Independence of Aviation Safety Investigation Authorities: Keeping the Foxes from 
the Henhouse. Journal of Air Law and Commerce, 75(1), pp 223-283. 
12 See Footnote 7. The Commission Staff Working Document is based on a support study by Ecorys and 
NLR: Ecorys. (2007) Impact Assessment on the modification of Directives 94/56/EC and 2003/42/EC. TREN-
IA – 016 – TR14923. Rotterdam, Netherlands. 
13 Co-regulation is defined as the mechanism whereby a Community legislative act entrusts the attainment 
of the objectives defined by the legislative authority to parties which are recognised in the field (such as 
economic operators, the social partners, non-governmental organisations, or associations). See 
http://www.eesc.europa.eu/?i=portal.en.self-and-co-regulation-definitions-concepts-examples. See the 
principles for better self- and co-regulation at https://ec.europa.eu/digital-single-
market/en/news/principles-better-self-and-co-regulation-and-establishment-community-practice. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

The regulation addressed the above mentioned problems through, among others, the 
establishment of independent national Civil Aviation Safety Investigation Authorities (SIAs) in 
every Member State. Prior to the adoption of Regulation (EU) No 996/2010 there were already 
some independent SIAs established. Additionally, the regulation provides support for voluntary 
cooperation with the establishment of a formal European Network of Civil Aviation Safety 
Investigation Authorities (ENCASIA Network), supported by an annual grant and based on the 
existing informal cooperation and resources of the Member States, for sharing of resources, 
coordinating of training and to facilitate closer cooperation and exchange of data. It also 
includes provisions on information on persons on board as well as the obligation for Member 
States to establish a civil aviation accident emergency plan at national level. 

ENCASIA was established on 19 January 201114. According to Article 7(3) of the regulation, 
ENCASIA is responsible for: 

a.  preparing suggestions to and advising Union institutions on all aspects of development and 

implementation of Union policies and rules relating to safety investigations and the 
prevention of accidents and incidents (opinions);  

b.  promoting the sharing of information useful for the improvement of aviation safety and 
actively promoting structured cooperation between SIAs, the Commission, EASA and 
national civil aviation authorities;  

c.  coordinating and organising, where appropriate, ‘peer reviews’, relevant training activities 

and skills development programmes for investigators;  

d.  promoting best safety investigation practices with a view to developing a common Union 

safety investigation methodology and drawing up an inventory of such practices;  
e.  strengthening the investigating capacities of the SIAs, in particular by developing and 

managing a framework for sharing resources;  

f.  providing, at the request of SIAs appropriate assistance, including, but not limited to, a list 

of investigators, equipment and capabilities available in other Member States for potential 
use by the authority conducting an investigation;  

g.  analyse the safety recommendations in the Safety Recommendations Information System 

(SRIS) database to identifying important safety recommendations of Union-wide relevance. 

The activities of ENCASIA are published in their annual work programme and the results are 
summarised in the annual reports. These documents are available on the ENCASIA website. 

Besides the ENCASIA network, there are several other networks or fora in Europe on 
investigation of accidents and incidents: the accident investigation group of ECAC (ECAC-ACC)15 
and European Society of Air Safety Investigators (ESASI)16. ENCASIA is the only network 
funded and supported by the European Commission and ruled by Regulation (EU) No 996/2010. 

ECAC-ACC represents 44 states, plus observer states, industry (including Airbus, Boeing, Rolls 
Royce) and entities like EASA and Eurocontrol. Hence, it involves also states that are not 
bounded by Regulation (EU) No 996/2010. The goal of ECAC-ACC is to share expertise, 
specifically for the benefit of states with limited resources, to promote cooperation between 
states, and to include involved parties like manufacturers, aviation organisations and entities in 
the process. ECAC-ACC focusses more on the practical issues of accident investigation.  

ESASI is the European chapter of the International Society of Air Safety Investigators (ISASI) 
with a particular focus on current European issues in the investigation and prevention of 
accidents and incidents. The main activities involve the organisation of an annual seminar and 
the issuing of newsletters to inform their members to keep you informed regarding the on-going 
developments related to safety investigations in Europe. 

ICAO promotes the formation of regional accident and incident investigation organization (RAIO) 
and has developed guidance on this17 as well as State letters calling on States to join efforts. 
ENCASIA can be at best qualified as a pre-RAIO18. An example of increased collaboration is the 
network of accident investigation authorities of Nordic countries (Sweden, Norway, Finland, 

14 See ENCASIA website: https://ec.europa.eu/transport/modes/air/encasia_en. 
15 See https://www.ecac-ceac.org/accident-investigation. 
16 See https://www.esasi.eu/. 
17 ICAO, Manual on Regional Accident and Incident Investigation Organization, Doc 9946 AN/481. First 
edition, 2011. 
18 Mikołaj Ratajczyk, Regional Aviation Safety Organisations, Enhancing Air Transport Safety through 
Regional Cooperation. Ph. D Thesis, Leiden University, 2014. 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

Denmark, Iceland, and Canada) which has been established to further enhance cooperation and 
to provide some support to deal with accidents and incidents. 

After the entry into force, a number of developments in other regulations have taken place that 
impacted Regulation (EU) No 996/2010 and its application. 

In April 2014, Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of 
occurrences in civil aviation was published revoking Directive 2003/42/EC and deleting article 
19 of Regulation (EU) No 996/2010. Due to the requirements of Regulation (EU) No 376/2014, 
cross references exist between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010 
such as occurrence reporting, definitions of 'accident', 'incident' and 'serious incident' (which 
remain those provided in the latter regulation) and disclosure of sensitive information. This 
means that double reporting could be required in a situation where a person subject to 
mandatory reporting obligations in accordance with Regulation (EU) No 376/2014 has to report 
an accident or a serious incident listed in the Commission Implementing Regulation (EU) 
2015/1018. In such cases, this person shall report the accident or serious incident in accordance 
with Regulation (EU) No 376/2014 and shall also "notify without delay the competent safety 
investigation authority of the State of Occurrence thereof" in accordance with Article 9 of 
Regulation (EU) No 996/2010.  

Currently, Regulation (EC) No 216/2008 (the 'Basic Regulation') is being revised. This might 
have some impact on Regulation (EU) No 996/2010. Article 5 mandates the investigation of 
every accident or serious incident involving aircraft other than specified in Annex II of the Basic 
Regulation. The latest revision would also mandate the investigation of accidents and serious 
incidents of drones. ENCASIA has formulated an opinion in 2015 to allow flexibility in the 
investigation of drones (and manned aircraft with a MTOW of less than 2250 kg). Currently, this 
proposal is being incorporated in the revision of the Basic Regulation. 

After the entry into force of Regulation (EU) No 996/2010, a number of amendments to ICAO 
Annex 13 has been made: amendment 13 (10th Edition), 14 and 15 (11th Edition). The 
amendments are such that ICAO Annex 13 and Regulation (EU) No 996/2010 become more 
aligned. The latest amendment includes a new definition for “accident investigation authority”, 
standards on establishment of an independent accident investigation authority, new provision 
on cooperation between investigation authorities and judicial authorities, follow-up of safety 
recommendations by the State, enhanced protection of investigation records in 5.12, and a new 
Appendix 2 on protection of investigation records. With this latest amendment “balance tests” 
which already existed in Article 5.12 of ICAO Annex 13 have been revised as follows: 

“5.12 The State conducting the investigation of an accident or incident shall not make the 
following records available for purposes other than accident or incident investigation, 
unless the competent authority designated by that State determines, in accordance with 
national laws and subject to Appendix 2 and 5.12.5, that their disclosure or use 
outweighs the likely adverse domestic and international impact such action may have on 
that or any future investigations...” 

This article is similar to Article 14(3) of Regulation (EU) No 996/2010. 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

5  ASSESSMENT OF THE EVALUATION QUESTIONS 

This chapter contains the results for each evaluation question, which are categorized under the 
five evaluation criteria. Some evaluation questions have been broken down into sub-questions. 
For readability purposes, the detailed analysis for each evaluation question is provided in Annex 
5. This annex contains for each evaluation question, the results from the desk research, the 
results from the field research, the results from the Case studies and the overall answer to the 
evaluation question. The answers for each evaluation question are presented in this chapter.  

The analysis uses a counterfactual scenario, which is presented in Annex 3. This scenario 
describes the study team’s assessment of what would be the situation if Regulation (EU) No 
996/2010 had not been issued and is used to determine the effects of the regulation after 
implementation. 

5.1  Relevance 

Evaluation question 1: 
To what extent are the measures required by the Regulation still relevant and 
appropriate to the initial needs?  

The Regulation (EU) No 996/2010 sought to address five specific problems and needs identified 
in the impact assessment19, through a combination of co-regulation and voluntary measures. 
The initial needs and corresponding mechanisms (i.e., the inputs and activities corresponding to 
the operational objectives of the regulation) to address them are as follows: 

1. Lack of high quality investigation capability at national level 
Compared to the situation in 1994, the investigating capacity of the Member States was 
significantly more disparate in the mid-2000s. Following the enlargements of the EU in 2004 
and 2007, the investigating capacity of Member States was primarily concentrated in a small 
number of States, particularly those with a large aviation manufacturing industry. Related to 
this, there was a growing need for diverse and specialised expertise and resources to 
investigate increasingly complex aircraft and aircraft systems.  

The investigating capacity of Member States, particularly the smaller ones, was to be reinforced 
through voluntary cooperation via the establishment of a formal European Network of Civil 
Aviation Safety Investigation Authorities (ENCASIA Network). This Network is further bolstered 
by an annual grant and based on existing informal cooperation and resources of the Member 
States, for sharing of resources, coordinating of training and to facilitate closer cooperation and 
exchange of data. 

2. Tensions between safety investigations and other proceedings 
Due to the many different legal systems in Europe, there were significant differences in the way 
investigators and judicial authorities cooperated with one another throughout an on-going 
investigation. In this context, there was a need to establish a basic legal framework through 
which authorities from different proceedings should cooperate. Moreover, there was a need for 
clarity in terms of both sides’ access to and sharing of factual information in order to properly 
discharge their duties, while also protecting the information. The Directive of 1994 did not 
address these issues, however ICAO Annex 13 was explicit on them. In this context, it was 
appropriate to transpose into EU legislation relevant ICAO standards concerning protection of 
safety information.  

The co-regulation measures foresaw the establishment of permanent, independent SIAs in 
every Member State capable of conducting a full safety investigation, either on its own or 
through agreements with other safety investigation authorities (Article 4). Independence is 
defined and addressed in Evaluation question 2.1.2. Regarding coordination of the accident 
investigation proceedings with other (namely judicial, civil aviation or search and rescue) 
proceedings at national level, the regulation introduced the requirement to establish advance 
arrangements (Article 12(3)). 

19http://ec.europa.eu/transport/sites/transport/files/modes/air/safety/doc/2009_regulatory_impact_assesm
ent.pdf. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

3. Lack of clarity in the role of the CAAs and EASA in safety investigations 
The EU institutional and legal framework underwent significant changes between 1994 and 
2010, particularly concerning the establishment of EASA in 2002. By 2010, safety standards 
were almost exclusively defined at the EU level, and EASA, on behalf of the Member States, 
became responsible for certification of aircraft in the Community. In this context, there was a 
need for a clear framework enabling EASA to support investigations and to take action in 
response to the outcome of investigations.  

Provisions were included to ensure that EASA, as an authority responsible for aircraft 
certification, and those CAAs, as frequent addressee of safety recommendations, would have 
access to information from accident investigations in order to take safety actions if needed 
(Article 8). The regulation clarifies that the advisors are entitled to some rights within the 
investigation, including visitation to the accident site and participation in follow-up investigation 
work. 

4. Weak implementation of safety recommendations 
The lack of any consistent approach across Member States with respect to gathering, processing 
and implementing safety recommendations resulting from accident investigations was 
considered to create an accountability deficit on the implementation side. In addition, there was 
a need to develop a consistent approach for following up safety recommendations of EU-wide 
relevance in light of the increasing number of recommendations that were being addressed to 
EASA as the Community regulator.  

To address this problem, the regulation introduced the requirement of mandatory replies to 
every safety recommendation (Article 18) and established a European database of safety 
recommendations (Article 18). 

5. Insufficient assistance to the victims of air accidents and their families 
Based on the experience of Spanish authorities in the aftermath of the accident in August 2008 
involving Spanish airline Spainair at the Madrid Barajas airport, the management of passenger 
manifests and the rapid disclosure of passenger manifests to victims’ families and the general 
public, became a need.  

The rights of victims and their relatives were to be better protected through the obligation for 
airlines to have a list of passengers quickly available following an accident (Article 20), and the 
obligation for Member States to have plans of emergency assistance at the national level 
(Article 21).  

Evidence from desk research, field research and case studies (as elaborated in Annex A5.1) 
show that the combination of co-regulation and voluntary cooperation measures required by the 
regulation are generally still relevant and appropriate to the initial needs that were to be 
addressed by the regulation. While there is some disagreement among stakeholders on the 
continued persistence of the different problems, and equally on the appropriateness of the 
measures to address these challenges, the following conclusions are drawn: 

By building on the previously existing cooperation between safety investigation authorities and 
the investigation resources at national level, ENCASIA has contributed to better identify the 
expertise and resources available in each Member State, as well as gaps and remedial actions to 
address them. Peer reviews, exchange of information and joint training activities play an 
important role with respect to promoting and harmonising best practices across Member States, 
and improving preparedness and response capacities of SIAs in the event of an accident or 
serious incident (see Evaluation questions 2.4.1 and 2.4.2 below). These tools are highly 
appropriate to achieve the legislative objective of ensuring that all 28 Member States’ SIAs are 
capable of conducting high quality, independent investigations.  

The inclusion of clear language in the regulation identifying the roles and responsibilities of the 
different actors involved in process of investigating accidents and incidents in civil aviation is 
highly appropriate and relevant to address the needs related to tensions between safety 
investigations and other proceedings, and to the lack of clarity in the roles of CAAs and EASA. 
Although tensions with judicial proceedings are still prevalent in some Member States, the 
requirement on advance arrangements has in many cases been useful for establishing a 
dialogue and structuring the relations between the various authorities. On the need to clarify 

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the roles of EASA and the national CAAs in the process of accident investigations, Article 8 
ensures that EASA, as an authority responsible for aircraft certification, and CAAs, as a frequent 
addressee of safety recommendations, have access to information from accident investigations 
in order to take safety actions if needed. This provision effectively addressed the identified 
problem and is still appropriate today.  

Likewise, the inclusion of clear language outlining procedures and timeframes for responding to 
safety recommendations has helped to address the issue of the weak implementation of safety 
recommendations.  

In reference to Articles 20 and 21, the Regulation states in its preamble that prior “experience 
has shown that reliable lists of persons on board an aircraft are sometimes difficult to obtain in 
a timely manner,” while also recognising the importance of establishing a deadline within which 
an airline can be required to produce such a list. Similarly, the Regulation notes the necessity of 
maintaining lists of dangerous goods on board to minimise risks to safety investigators at the 
site of the occurrence, and that the manner in which an accident and its consequences are dealt 
with vis-à-vis the public, the victims and their relatives is of crucial importance for maintaining 
the public’s confidence in the quality of the civil aviation safety system (Regulation para. 30 – 
32). In this respect, the obligations set out in Articles 20 and 21 directly target the identified 
needs, which are still relevant today.  

The majority of the SIAs, CAAs and aviation community representatives agree with the 
appropriateness of the regulation’s provisions concerning the provision of assistance to victims 
and their families to address this need. However, concerns were raised whether or not this 
regulation is the appropriate place for these provisions. As noted above, Articles 20 and 21 are 
addressed to the level of Member States, whereas the rest of Regulation (EU) No 996/2010 
concerns safety investigations. Therefore, the provisions concerning assistance to victims are 
misinterpreted by some SIAs as an obligation for the SIA to produce a list of passengers or 
develop assistance plans. This interpretation is not correct. Therefore, there is no necessity to 
relocate these provisions to a different regulation. 

As will be shown below, national regulations implementing provisions of the regulation may still 
differ, despite the harmonisation efforts of the EU. Also, the different legal systems may shed a 
different light on the interpretation of provisions, as to which see Evaluation question 2.1.4 
below. 

Evaluation question 1.1 
To what extent are the measures required by the Regulation appropriate to new 
threats to aviation, such as drones and cybersecurity? 

Regarding new or additional problems that could or should be addressed by the regulation, we 
take into account the Future Aviation Safety Team (FAST) list20 and stakeholder feedback from 
the interviews and survey. We identify 5 main emergent threats of relevance to Regulation (EU) 
No 996/2010. These are:  

  Drones; 
  Cyber threats; 
  Social Media; 
  Aircraft complexity and new investigation techniques. 

Overall, stakeholders contend that the regulation should not exclude any potential causal factor 
from the potential mandate of air safety investigators. On the other hand, it should not be 
necessary to adopt a new regulation and/or amend existing regulations to address each and 
every new or perceived threat and/or need. Such an approach would create excessive 
regulatory complexity. Many SIAs are relatively small in terms of personnel and other 
resources, and thus face constraints to comply with the regulation as currently formulated. In 
this respect, it would be beneficial for many smaller SIAs if ENCASIA would take a role in 

20 The Future Aviation Safety Team (FAST) is an international and independent group of aviation experts 
that has actively maintained a list of future changes to aviation and associated hazards since 2000. This list 
is publicly available on a website hosted by the Netherlands Aerospace Centre NLR (http://www.nlr-
atsi.nl/fast/aoc/). 

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Support study to the evaluation of Regulation (EU) No 996/2010 

considering how to address new and emerging threats, and support Member States with fewer 
air safety investigatory resources to implement and comply with new measures. Moreover, 
airline representatives argued that expanding the regulation to cover new fields of activity 
(drones / cyber security) should not fundamentally alter the primary focus of investigation 
bodies, which is the investigation of civil aviation accidents and serious incidents. 

Among the emerging challenges and potential threats identified above, the issue of drones and 
cyber security, respectively, require further reflection. There is a broad consensus among 
stakeholders surveyed and interviewed that the scopes of Regulation (EU) No 996/2010 and the 
Basic Regulation should remain aligned in view of potential amendments to Annex II of the 
latter regulation (see Chapter 3). In light of existing resource constraints at SIAs across the 
Union, an amendment to Regulation (EU) No 996/2010 requiring the investigation of accidents 
and serious incidents involving drones could be limited to those which are certified by EASA; 
when fatalities, serious injuries or commercial air transport operations are involved; or when an 
investigation is expected to lead to lessons for the improvement of future aviation safety.  

On the issue of cyber-attacks, the EU has limited competence to act on security threats. When 
an accident or serious incident is deemed to have been caused such an attack, the responsibility 
to investigate will fall outside the safety investigation. In this context, while the investigation 
into cyber-related attacks is not the competence of SIAs a priori, SIAs must have the capacity 
and expertise to make a determination as to whether a cyber-attack is involved. This 
requirement is implicitly covered by Article 4(6)(e), which obligates SIAs to have qualified 
personnel at their disposal. It is clear from the stakeholder consultations, however, that SIAs do 
not (yet) currently possess the requisite capacity and expertise to investigate cyber security-
related issues, directly, either by means of cooperation agreements of other States’ SIAs or by 
means of advance arrangements with the appropriate cyber security organisations or entities 
(CERTS). SIAs raise concerns over the feasibility of maintaining an ever-expanding set of 
expertise in-house. In this context, SIAs are advised to consider actions that will enable better 
pooling of resources on cyber-related matters, such as through cooperation arrangements with 
other States or on a regional level, or through advance arrangements with the appropriate 
national cyber security entities. 

Regarding the proliferation of social media, the evidence suggests that the risk is not 
necessarily to aviation safety, but rather to the ability of the investigators to carry out their duty 
without interference of outside media forces. In this context, the problem is one of proper 
framing, which can be supported through the establishment of guidelines and principles for 
dealing effectively and appropriately with the challenges of rising public exposure, and 
therefore, pressures. Currently, ENCASIA is developing guidance and a kind of coaching network 
on dealing with media pressure. This has not yet been fully implemented. 

Finally, our legal analysis does not find evidence to support the argument that increasing 
complexity merits a modification to the Regulation. The investigation bodies should be able to 
keep up with the technological developments, new complexities and actors in the aviation 
system without a specific modification to the regulation. Such issues can for example be 
addressed by developing common operational practices and procedures. But, the decision to use 
a particular investigation technique is a decision of the individual SIA.  

5.2  Effectiveness 

Evaluation question 2 
How far did the Regulation contribute to improve aviation safety in Europe? 

This evaluation question is answered by answering sub-question 2.1 through 2.7. The answer is 
provided in the conclusions (Chapter 5). 

Evaluation question 2.1 
To what extent has the Regulation contributed to better coordinate the various 
investigations (civil, judicial, safety) into the causes of the accident? 

This evaluation question will be answered by answering the sub-questions 2.1.1 through 2.1.5. 

40 

 
 
 
 
 
 
 
 Support study to the evaluation of Regulation (EU) No 996/2010 

Evaluation question 2.1.1 
To what extent the requirement that all Member States create an independent 
Safety Investigation Authority led to the expeditious holding of unbiased safety 
investigations? 

On the “expeditious holding”: According to Article 16(6), the SIA shall make public the final 
report in the shortest possible time and if possible within 12 months of the date of the accident 
or serious incident. This timeliness of reporting is a challenge for SIAs, as they cannot control 
the number and the complexity of accidents that must be investigated. An analysis of a sample 
of 104 accidents involving large aircraft (maximum take-off mass more than 5700 kg) in EU 
Member States between 1 January 2010 and 1 April 2016 shows that for approximately 40% of 
the sample the safety investigation report is realised within 12 months of the date of the 
accident. About 20% of the safety investigation reports required more than 2 years to complete. 
The average duration of an investigation of an accident involving a large aircraft is similar to 
that in the US.  

During the interviews and the survey, staff turnover and limited number of staff were 
mentioned as reasons why the duration of an investigation regularly exceeds the recommended 
12 months. As the investigation capacity of SIAs has altogether remained unchanged since the 
entry into force of the regulation (see Evaluation question 2.2), it is reasonable to conclude that 
Regulation (EU) No 996/2010 has not significantly influenced the length of the investigation 
process.  

On the “unbiased”: A safety investigation is unbiased if the investigation is objective in 
determining the causes of the occurrence being investigated and impartial, i.e. showing no 
prejudice for, or against, a certain person or organisation21 .The majority of the survey 
respondents are of the opinion that investigations are unbiased. Several interviewees mentioned 
that in some investigations there seems to be a strong influence from other parties, although 
specific examples were not mentioned. It was also recognised that any bias is very difficult to 
prove and therefore is unlikely to be mitigated by European Commission intervention. 
Independence of the SIA is a prerequisite for an unbiased investigation. The independence of 
SIAs is addressed in Evaluation question 2.1.2. It is concluded that Regulation (EU) No 
996/2010 has not significantly influenced the impartiality of the investigation process. 

Evaluation question 2.1.2 
To what extent is the independence of the Safety Investigation Authorities 
achieved? 

The independence of a Safety Investigation Authority (SIA) is used in several provisions of 
Regulation (EU) No 996/2010, especially in conjunction with the absence of external 
interference and conflict of interest22. The regulation, however, contains no definition23. Article 
4(3) requires that the SIA shall have “unrestricted authority over the conduct of the safety 
investigation”. According to Demsey24, the essence of independence is a strict objectiveness and 
total impartiality. Therefore the independence of a SIA is defined as (1) being free from external 
interference and conflict of interest; and (2) having unrestricted authority over the conduct of 
the safety investigation. The last element of the definition covers unrestricted control of the use 
of its available resources (budget). 

Being free from external interference and conflict of interest is, according to several 
interviewees, not only matter of functional (formal) independence which can be provided by 
legislation, but also a matter of mind set, culture and experience of the air safety investigators 
to withstand (political) pressure. 

21 Oxford dictionaries, https://en.oxforddictionaries.com/definition/unbiased. 
22 Commission Staff Working Document on the implementation of the Regulation on Safety Investigation, a 
targeted consultation of stakeholders, including MS and their SIAs, industry associations and accident 
victims and their relatives associations, Part 1 and 2, SWD (2016) 151, April 2016. 
23 See also Note on Independence – Regulation 996/2010 by M. Osiecki, DG MOVE. 
24 Dempsey, P.S. (2010). Independence of Aviation Safety Investigation Authorities: Keeping the Foxes from 
the Henhouse. Journal of Air Law and Commerce, 75(1), pp 223-283. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

The available budget for a SIA is a delicate issue. Independence does not imply unlimited 
budget. On one hand it is clear that a SIA needs sufficient budget to carry out its tasks, while on 
the hand if a government needs to mind his expenses this could consequently also affect the 
budget for a SIA.  

Independence of the SIAs has been achieved in almost all Member States. During this 
evaluation, study questions were raised regarding the lack of independence of the SIA in four 
Member States, including Poland. Independence of the SIAs is not achieved in Poland. Due to an 
amendment of the Polish Aviation Law, the Minister of Infrastructure and Construction can 
influence the composition of the SCAAI. Therefore, the SCAAI cannot be considered as 
independent. For the other Member States no evidence was provided that the independence of 
the SIA was indeed affected.  

Regulation (EU) No 996/2010 has helped in accomplishing the independence to some extent. 
While a survey conducted by the Commission in the first half of 201625 concluded that the 
majority of SIAs indicated that the regulation had no practical effect on their independence, as 
this had already been established under Directive No 94/56/EC, in the interviews and survey it 
is indicated that the regulation has helped. One interviewee stated that an important effect of 
the regulation is that the principle of independence of accident investigations is no longer an 
item of discussion. At international level, ICAO introduced similar provisions, which became 
applicable in November 2016 through amendment 15 to ICAO Annex 13. 

Evaluation question 2.1.3 
Have the provisions on the protection of sensitive safety information and persons 
helped to improve the safety investigation? 

The majority of the survey respondents are of the opinion that the provisions on the protection 
of sensitive safety information and persons helped to improve the safety investigation. They 
have helped to ensure that testimony provided during the safety investigation is not used 
against witnesses and that parties such as manufacturers fully contribute to the investigation.  

Nevertheless, there have also been some high profile cases (Spanair26, Germanwings27) where 
parts of sensitive safety information became public. There is also room for interpretation. There 
is no common understanding of how to ensure confidentiality of safety sensitive information. 
The necessary information flows between the many organisations involved in an accident 
investigation can be a concern with regard to possible unintentional leaking of information and 
managing those information flows requires a lot of effort. Accordingly, one fourth of survey 
respondents are of the opinion that the protection of sensitive safety information is not 
sufficiently guaranteed. It was particularly mentioned that some guidance material of the level 
of protection provided for ‘cockpit image recordings’ (Article 14(1)(g)) and other types of 
recordings such as the content of Quick Access Recorders (QARs), recordings from closed circuit 
television (CCTV), Global Positioning System (GPS), etc. is needed. 

Evaluation question 2.1.4 
In how far did the decisions from the National courts influence the safety 
investigation? 

Courts in certain EU States (for instance France28 and Spain)29 may organise their own 
investigations in order to assist victims when they request compensation from the airline or 
other parties, which were involved with the accident.  

25 SWD(2016) 151. 
26 See CIAIAC (2009). Spanair accident report. Although the accident occurred before the regulation entered 
into force, i.e. under Directive No 94/56/EC and ICAO Annex 13. These regulations already contained 
provisions on the protection of the CVRs. 
27 See accident case 3 in annex 4.  
28 Pursuant to Art. 145 of the Code of Civil Procedure; see: Cour administrative d’appel (CAA) 
(Administrative court of appeal of) de MARSEILLE, 8ème chambre, decision du 24 mars 2015, n° 
13MA00581. 
29 See Franscesco Rossi Dal Pozzo. (2015) EU legal framework for safeguarding air passenger rights, 
Springer; And Judgment of the Provincial Court of Barcelona of 7 May 2012, ECLI:ES:APB:2012:6351, and 
Judgment of the Supreme Court of 13 Jan. 2015, ECLI:ES:TS:2015:181, cited by Dr Hanna Schebesta, Risk 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

While court decisions may not directly affect the safety investigation, because the safety 
investigation is independent of such parallel judicial proceedings, there may be pressure from 
the public and the media on the SIA to share technical information with the persons involved 
performing parallel proceedings. The decision in Rogers v Hoyle case30 may illustrate this 
tendency. The court in the UK decided that the published AAIB report should be admitted as 
evidence and it could “see no reasonable basis” for the suggestion that aviation people might be 
deterred from making statements before the AAIB in the future as they might be blamed for 
them, thus foregoing the safety argument. It is however not yet clear whether there is a 
‘tendency’ as courts may take different positions in other proceedings. This issue is also 
addressed in Evaluation question 2.7. 

Evaluation question 2.1.5 
Did Advance Arrangements help to solve these problems? 

The establishment of ‘advance arrangements’ stipulates that Member States should ensure 
cooperation between its accident investigation authority and judicial authorities so that an 
investigation is not impeded by administrative or judicial proceedings.  

In some Member States, such as the Netherlands and Sweden, coordination between the 
accident investigation authority and judicial authorities was already prescribed in national law 
before Regulation (EU) No 996/2010 was implemented.  

In a number of Member States, the advance arrangement has never been practically applied 
because there has not been a major accident since the arrangement came into force. Where 
applied in practise, the advance arrangements are considered be an effective way of 
coordinating the various investigations, according to the consulted stakeholders and shown in 
the Germanwings accident case. However, there have been examples where the judicial 
authorities were insufficiently aware of the existence or content of the advance arrangement 
and examples where advance arrangements were established after the accident occurred. It is 
therefore important that all stakeholders are aware of the advance arrangements and that the 
advance arrangements are reviewed regularly to ensure that they are still appropriate. 

Evaluation question 2.1.631: 
What is the level of compliance of Member States with respect to coordination of 
investigations, preservation of evidence and protection of sensitive safety 
information? 

Member States have largely complied with the requirements of coordination of investigations 
through the establishment of advance arrangements (see Evaluation question 2.1.5), the 
preservation of evidence and the protection of sensitive safety information (see Evaluation 
question 2.1.3).  

Evaluation question 2.2 
To what extent do the outcomes or observed effects in terms of high level of 
investigation capability in each Member State and the improvement of aviation 
safety correspond to the objectives? 

Regulation Through Liability Allocation: Transnational Product Liability and the Role of Certification, 42(2) 
Air & Space Law (2017) in section 3.6 where the author states that the überlingen cases show however that 
Spanish courts’ investigations “went beyond the Accident Investigation Report’s analysis of the technology.”  
Whereas the French decision adopted by the Administrative Court of Appeal of Marseille cited in the previous 
footnote refers to a confirmation by the court’s investigation (‘expertise judiciaire’) of the SIA’s investigation 
(BEA in France). 
30 See accident case 4 in Annex 4. 
31 In the Terms of Reference this questions was labelled as “Other”. The study team found it more 
appropriate to put it under “Effectiveness”. 

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The overall capacity of SIAs remained practically unchanged. Between 2012 and 2016, the 
number of available air safety investigators decreased 3.36% from 238 FTE in 2012 to 230 FTE 
in 2016.  

The SIAs vary greatly in size according to an analysis of available air safety investigators (in 
FTE) in 2012 and 2016. Table 3 below gives a summary of the different sizes of the SIAs for 
2016. Half of the SIAs have 5 or less FTE air safety investigators available. Five (18%) SIAs 
have only 1 FTE.  

Table 3: Distribution of sizes of SIAs according the number of air safety investigators 

(in FTE) estimates of 2016 

Size of the SIAs 

Small (5 or less FTE) 

Medium (6 to 10 FTE) 

Large (more than 10 FTE) 

Total 

Number of SIAs 

14 (50%) 

9 (32%) 

5 (18%) 

28 

The budget for the SIAs also remained unchanged. Of the 22 SIA, respondents to the survey 
76% answered that the change in budget between 2010 and 2017 was between -5% and +5%. 
Four SIA’s (19%) reported a decrease of more than 5%. One SIA (5%) reported an increase of 
more than 5%. From the survey and the interviews, it is concluded that for the majority of the 
SIAs the amount of resources are sufficient (but could of course always be more). For some the 
small SIAs (especially SIAs with only one air safety investigator) it has been reported that the 
resources are insufficient for their normal activities.  

One SIA respondent added that “if we consider the incidents and accidents that happened in 
that period, [the budget] is sufficient. If we are talking about the potential to investigate if 
something large happened, then the answer would be disagree”. This observation is in line with 
the results from the interviews. In several interviews, it has been questioned if small SIAs can 
deliver sufficient high quality investigation capability in case of a major accident. A major 
accident will have much more impact and different dynamics than a “normal” accident, in terms 
of media attention, judicial investigations, political pressure etc. The interviewees agree that the 
small Member States in terms of aviation activities cannot size a SIA based on a major event, 
but only based on typical events that occur. In order to accommodate a major accident, the SIA 
should collaborate with other SIAs. The collaborations could be established via agreements.  

One third of the respondents to the survey indicated that there have been safety investigations 
that were of insufficient quality. Concerns were mentioned regarding lack of specific domain 
knowledge, lack of transparent methodology, lack of resources, lack of training, lack of 
experience and insufficient quality in analysing. However, no specific investigations were 
mentioned by the respondents of the survey or the interviewees.  

According to the interviewees, the quality of the safety investigations across Europe has 
improved. It is believed that the regulation and the activities of ENCASIA have helped to 
improve the quality. This is mainly due to training of investigators, sharing of best practises, 
collaboration between SIAs and obtaining a better understanding what the main difficulties are 
during a major accident. The improved quality of the safety investigations has also an impact on 
the derived safety recommendations. Better safety recommendations resulted in a higher 
likelihood that the safety recommendations are implemented.  

Evaluation question 2.3 
Has the Regulation led to any unexpected effects? 
The large majority of the respondents to the targeted survey stated that there were no 
unexpected effects or they don’t know. During the interviews no unexpected effects were 
reported. 

Unexpected negative effect reported in the targeted survey involves the incorrect interpretation 
or understanding of the text. For example in one Member State national rules to comply with 
Article 21 (on assistance to victims of air accidents) resulted in delayed response capability of 
air safety investigators as assistance to victims required resources from the SIA.  

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An unexpected positive effect reported by another respondent in the targeted survey is that the 
regulation has brought the debate on just culture into mainstream.  

Evaluation question 2.4 
To what extent the ENCASIA Network contributed to the strengthening of the 
coordination role of Safety Investigation Authorities? 

ENCASIA is considered by the interviewees and the respondents of the survey to be one of the 
most effective elements that were brought by the regulation. The Network has strengthened 
coordination between the SIAs as it provides a platform for SIAs to cooperate and exchange 
information and experiences according to the majority of the interviewees and respondents of 
the survey. ENCASIA had a large influence by introducing a common doctrine, establishing 
communication and the introduction of SRIS. In one of the interviews, it was indicated that 
sometimes the work in the working groups goes slowly because the core activities of the SIAs 
have priority, but the working groups are doing an excellent job for standardisation and 
harmonisation.  

ENCASIA concerns all Member States bounded by Regulation (EU) No 996/2010. Therefore, it is 
considered by the interviewees as “stronger” than the ECAC-ACC platform and provides the 
possibility to formulate a shared opinion concerning specific EU issues. 

Evaluation question 2.4.1 
To what extent have the ENCASIA Network Peer Reviews contributed to improve 
safety investigations? 

As of April 2017, 16 Member States have been peer reviewed. The results of first series of peer 
reviews were kept internal to build trust. Member States were concerned that serious 
repercussions could follow if the peer review identified shortcomings. ENCASIA expects that in 
the next round some results will be shared with the Commission and even be published. The 
participating Member States appreciate the concept of peer reviews because it is not enforced 
as a formal audit. According to the participating Member States, the peer reviews have helped 
to bring them at the same level by identifying shortcomings in the implementation of the 
regulation and sharing best practices. These improvements will lead to better safety 
investigations. 

Evaluation question 2.4.2 
To what extent have the ENCASIA Network joint trainings contributed to improve 
safety investigations? 

As of April 2017, 58 air safety investigators have been trained in the context of the ENCASIA 
network. ENCASIA joint trainings harmonize and promote best practices in accident 
investigation across Member States. The trainings have contributed to reinforce formal and 
informal cooperation and exchange of information between SIAs. This will therefore lead to 
better safety investigations. 

Evaluation question 2.5: 
To what extent has the EU Safety Recommendation database led to the 
identification of issues of Union wide relevance?  
Based on an analysis of the SRIS database, in the period 2012 – 2016 on average 161 Safety 
Recommendations per year of Union wide relevance (SRUR) and/or Global concern (SRGC) were 
identified. It should be noted that a safety recommendation can be both SRUR and SRGC. 

The fields for SRUR and SRGC were only introduced to SRIS in 2016. Therefore, any safety 
recommendation that predates 2016 may not necessarily have the SRUR/SRGC flagged when it 
should. Only a few Member States are retrospectively looking at this. Therefore, the statistics 
should be treated with care.  

In the accident, cases that were analysed (see Annex 4) a number of SRURs and SRGCs have 
been identified. A large majority of the respondents to the targeted survey agreed that safety 
recommendations from other EU SIAs are relevant for their work. This indicates that certain 

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safety recommendations indeed have a Union-wide relevance. 

Within ENCASIA, Working Group 6 (WG6) is dedicated to Safety Recommendations. As one of 
their tasks, they have been working on harmonising the way Safety Recommendations are 
formulated and handled across the Member States. Another task involves the improvement of 
the analysis of the content of the database with a view to identifying important Safety 
Recommendations of union-wide relevance as required by Article 7(3)(g) of Regulation (EU) No 
996/2010. Guidance was developed on the formulation of Safety Recommendations and the 
identification of Safety Recommendations of Union-wide relevance (SRUR). 

According to the interviews, SRIS and the work of ENCASIA WG6 has helped to improve the 
identification of Safety Recommendations of Union-wide Relevance.  

Evaluation question 2.5.1: 
Have the deadlines for issuing the safety report and following up the safety 
recommendations and follow-up been met?  

The timeliness of safety investigation reports has been analysed in Evaluation question 2.1.1. 
There it is concluded that the timeliness of reporting is a challenge for SIAs, as they cannot 
control the number and the complexity of accidents that must be investigated. An analysis of a 
sample of 104 accidents involving large aircraft (maximum take-off mass more than 5700 kg) in 
EU Member States between 1 January 2010 and 1 April 2016 shows that for approximately 40% 
of the sample the safety investigation report is released within 12 months of the date of the 
accident. 

An analysis of the SRIS database over the period 2010 – 2016 shows that average response 
time is longer than 90 days, but the trend shows an overall improvement towards the 90 days. 
However, for almost 50% of the safety recommendations, no response has been provided.  

The analysis of the SRIS database shows also that 49% of all safety recommendations are open. 
This could be an indication that there is a delay in following up safety recommendations. 
However, the “open” and “closed” status usage on SRIS should be handled with care as there is 
not a standard for this, nor is there a requirement in the regulation to “close” a 
recommendation.  

During the interviews, the issues were raised regarding when to close a safety recommendation 
and when is the response considered “adequate”. There are some differences in the assessment 
of the responses. Some SIAs close a safety recommendation only if all the actions have been 
completed. Others close a safety recommendation if there is no (further) response from the 
addressee to be expected. This happens for instance when the action plan is agreed, but some 
actions can still be open because they could take years to complete. Also the term “response is 
adequate” is a confusing term for the public. Currently, these items are being discussed within 
ENCASIA WG6. 

Within ENCASIA WG6, guidance has been developed on the formulation of safety 
recommendations. These guidelines in combination with an improved quality of the safety 
investigation lead to better safety recommendations. In the interviews and the workshop it has 
been argued that better safety, recommendations result in a higher likelihood that the safety 
recommendations are implemented. 

A majority of the respondents of the survey agreed that the regulation proved to be of added 
value regarding the formulation of safety recommendations and a majority also agreed that the 
regulation helped in the follow-up of the safety recommendations. In an interview, it was 
concluded that also the 90 days response time has improved over the years. 

The overall conclusion is that the regulation and the activities of ENCASIA have helped in 
following up the safety recommendations.  

Evaluation question 2.6: 
What improvements have been made with regard to establishing civil aviation 
accident emergency plans at national level? 

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On 31 January 2014, the European Commission held a workshop on the establishment of civil 
aviation accident emergency plans at national level. The workshop concluded that a number of 
Member States have difficulties establishing an emergency plan at national level. The difficulties 
experienced by the Member States are mainly due to the following factors (in isolation or 
combination): 

 

  National emergency plans are strongly linked to the administrative structure of Member 
States. For Member States structured around regions, the coordination of a unique plan 
or of consistent plans at regional level is very challenging; 
The establishment of the plans requires the involvement of many different actors 
belonging to various institutions, with sometimes different perspective and objectives; 
Factors such as geographical location and language barrier can become challenges when 
the authorities should deal with victims and their relatives with various nationalities and 
backgrounds, in particular in the case of a large commercial air transport accident.  

 

It was concluded that there is a need to develop guidance for the establishment and content of 
national emergency plans, but so far such guidance material has not been established. Results 
for the survey indicate that 27% of the respondents (9) are of the opinion that national civil 
accident emergency response plans have not been sufficiently developed and implemented.  

The speed of communication that is established when the emergency plans are executed is 
much slower than that of social media. Speculation emerges quickly on social media. Victims 
and their relatives may therefore have the perception that emergency plans do not work. These 
evolving communication landscapes are something to consider in the future. 

There has been a lot of progress in resolving the problems and challenges concerning assistance 
to victims and their relatives, and Regulation (EU) No 996/2010 kick-started this progress. Due 
to Regulation (EU) No 996/2010 there is a greater focus in the beginning of any investigation on 
adequately informing victims and their families. The appointment of a national contact person 
responsible for communication with victims’ families is a clear benefit from the regulation. How 
the national contact persons engage in the process and how victims are supported varies 
somewhat from Member State to Member State. 

Evaluation question 2.6.1: 
Are there any difficulties in the process of establishing the list of passengers and 
then comparing it to the list of victims? 

On the question if the national emergency plans sufficiently describe the requirements on 
obtaining passenger lists and comparing it to the list of victims, half of the survey respondents 
could not answer the question. Of the respondents that could answer it 11 (46%) agreed and 4 
(17%) disagreed. However, a majority could not answer the question if this has led to any 
problems or stated that there have been no major investigations in which obtaining the list of 
passengers was an issue.  

The accident of Malaysian Airlines Flight MH17 made it clear that the passenger list that was 
available immediately after the crash of flight MH17 was not sufficient to establish who was on 
board the aircraft32. To this end, Malaysia Airlines first had to retrieve additional information 
about the passengers, such as their nationality and date of birth, from the underlying 
registration systems. Since the related information had not been entered for all passengers, this 
took some time to obtain. In their report, the Dutch Safety Board also describes that the 
bottlenecks in the collection and verification of passenger information were not new and were 
described previously in relation to a crash of a Turkish Airlines aircraft near Amsterdam in 
2009.33 According to the Dutch Safety Board, this situation could be improved if the airlines 
were to record the nationalities of all passengers in the system that provide passenger 
information in the event of an aircraft accident. 

Evaluation question 2.7: 
What are the National practices and legal constraints for handling confidential 

32 Dutch Safety Board (2015). MH17 Passenger Information.  
33 Dutch Safety Board. (2010). Emergency assistance after Turkish Airlines incident, Haarlemmermeer, 25 
February 2009. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

safety information (e.g. CVR, witness statements, medical data)?  

In some Member States the public prosecutor has custody of sensitive safety information (and 
the SIA can have access), while in other Member States the SIA has custody of sensitive safety 
information over the data and the public prosecutor can have access. According to the 
interviewees, this did not lead to any problems. The majority of survey respondents are of the 
opinion that confidential safety information is sufficiently protected in their country see Table 4 
below. 

There are differences across Europe regarding the use of safety investigation reports in judicial 
investigations. The difference between the different Member States and the implications thereof 
are understood insufficiently. 

Table 4: Percentage of respondents to the survey agreeing that the information is 

sufficiently protected differentiated per type of information 

Type of information 

Percentage of respondents agreeing that data is 

Names of persons involved 

Medical information 

Witness statements 

CVR data 

FDR data  

5.3  Efficiency 

sufficiently protected 

91% (40 of 44) 

89% (39 of 44) 

84% (37 of 44) 

83% (35 of 42) 

79% (34 of 43) 

Evaluation question 3: 
Have resources and costs incurred been proportional to the results achieved? 

The answer to this question is based on the answers to Evaluation questions 3.1, 3.2 and 4 and 
an analysis of monetary benefits due to an increased safety.  

The benefits of the regulation are the result of a decrease in the risk of aviation accidents due to 
improved safety recommendations. Assuming a Value of a Statistical Life (VOSL) of € 2.1 
million, the monetary benefit of fatalities prevented in Europe since 2010 due to improved 
aviation safety amounts to €143 million per year for commercial air transport, €59 million per 
year for general aviation and €202 million for commercial air transport and general aviation 
combined.  

The costs for Regulation (EU) No 996/2010 were estimated at € 6.3 – 7.7 million for the period 
2011-2017 as summarised in table 5, i.e. an average of € 1.1 million per year. This means that 
the benefit/cost ratio on annual basis of the Regulation is greater than 1 if more than 0.55% of 
all prevented fatalities due to improved aviation safety can be attributed to the regulation.  

The consulted SIAs during this evaluation study indicate that the benefits indeed outweigh the 
costs, and expect that this will remain the case in the future. 

Table 5: Summary of costs per stakeholder category for the period 2011-2017 

Stakeholder category 

European Commission 

Member States 

Costs (€) 

1.9 million 

1.4 million 

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Stakeholder category 

Costs (€) 

SIAs 

Airlines 

Total 

3.2 million – 4.7 million 

Negligible34 

6.3 – 7.7 million 

Evaluation question 3.1: 
Are the means provided by the Commission sufficient to support MS cooperation? 

The Commission has provided support aimed at supporting member state cooperation in the 
field of aviation accident investigation, mostly focusing on the ENCASIA Network. This support 
has taken various forms, such as grants, secretarial support, translations as well as provision of 
trainings, assistance during ENCASIA meetings, and the development and maintenance of a 
dedicated ENCASIA website and SRIS database. In total, quantifiable Commission support for 
Member State cooperation amounted to € 1.9 million in the period 2010 – 2017.  

A majority of SIAs, the main beneficiaries of this support, indicate this is sufficient to support 
ENCASIA’s various activities and to facilitate Member State cooperation; there were 2 SIAs 
(9%) hat indicated the Commission support was insufficient for the preparation of the annual 
report. At the same time, when focusing solely on the Commission’s grants specifically, no 
conclusion can be drawn on their sufficiency: a large segment indicates the grants were 
sufficient, whereas there is also a large segment arguing the opposite (although it is noted 
those who disagreed indicated they ‘somewhat’ disagreed, while none strongly disagreed that 
grants were sufficient). 

It should be kept in mind that cooperation between Member States has indeed increased 
significantly and that substantial benefits have been derived from it. 

Evaluation question 3.2: 
Could other means of support deliver better support? 

As indicated in the answer to the previous Evaluation question 3.1, current support is deemed to 
be sufficient by a majority of the stakeholders. Most suggestions for improvement in 
Commission support relate not to alternative means of support, but amount to an extension of 
the current means of support. For example reimbursing travel to ENCASIA meetings for more 
than one SIA representative, and reimbursing accommodation costs and daily allowances.  

At the same time, some suggestions have been made for alternative means of support. Further 
integration and formalisation of the ENCASIA Network could be considered as a way to 
economise resources, where an ENCASIA board composed of SIA members could lay out the 
ENCASIA strategy and act as a support organisation for various national (or potentially regional) 
SIAs. Such board could be a formal organisation structure with statutes, structural budget and 
staff (which may be seconded from SIAs). In the same vein, a permanent ENCASIA Network 
office in Brussels could be created as a way to further institute and formalise the ENCASIA 
Network.  

Although these suggestions would merit further consideration, it should be noted that this study 
has not found an express wish either in favour or against these ideas. 

On the basis of the evidence collected, it is considered that alternative means of support would 
not deliver better support, but that alternative means of support could be considered to 
complement them. Alternatives could in any case be considered keeping in mind that long-term 
sustainability of depending on large Commission grants for support is questionable. 

Evaluation question 4: 
Have the attributable costs to different stakeholders been proportionate? 

34 Airlines representatives have indicated in a separate interview that the main ‘cost category’ for them – 
providing information to victims and families – was already an obligation under the ICAO guidelines and 
thus does not represent an additional cost as such.  

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To answer this question of proportionality, the total costs and benefits need to be taken into 
account. Total costs for all stakeholder categories have been estimated at a range of € 6.3 – 7.7 
million in total for the period 2011-2017, including the costs for additional administrative tasks 
(see Evaluation question 5 below). The benefits of the regulation are the result of a decrease in 
the likelihood of aviation accidents due to improved safety recommendations. It is known that a 
single aviation accident with a commercial airliner can easily amount to a few hundred million 
euros in case of many fatalities.35 Overall the conclusion is that the benefits of Regulation (EU) 
No 996/2010 have outweighed the costs. 

From the analysis, it becomes clear that the benefits of improved safety largely accrue to 
passengers, airlines and society as a whole, while the costs are borne by the European 
Commission and Member States. These are stakeholders who together represent European 
societies and whose mission it is to provide goods for the public interest.  

Therefore, it can be concluded that the costs have indeed been distributed proportionally to the 
benefits incurred across stakeholders. 

Evaluation question 5: 
Which additional administrative tasks have been generated by the Regulation? 

Based on a review of the regulation and on inputs from the survey and interviews, the 
additional administrative tasks have been identified: 

Preparing advance arrangements; 

 
  Developing procedures of recording responses to safety recommendations and 

implementing these; 

  Developing plans to provide assistance to victims and families; 
  Recording safety recommendations and responses in SRIS database; 
 
 
 

Preparing ENCASIA meetings, organising travel; 
Peer reviews; 
Plans and programmes for training, which have to be accepted by the national civil 
aviation authorities. 

The tasks “Developing procedures of recording responses to safety recommendations and 
implementing these” (second item) and “Recording safety recommendations and responses in 
SRIS database” (forth item) are considered administrative burden as per the definition in the 
Better Regulation Guidelines36: 

These tasks have mostly incurred additional work for SIAs. The total costs incurred by SIAs 
amounts to €3.3-4.7 million for the 2011-2017 period.  

5.4  Coherence 

Evaluation question 6: 
To what extent is the intervention coherent with the EU Aviation Safety Policy and 
regulations? Are there any gaps, overlaps or inconsistencies? 

A comparison of the study team of Regulation (EU) No 996/2010 with Aviation Safety Policy and 
the relevant EU regulations as listed in Annex A did not identify any incoherence. Additionally, a 
large majority of the respondents to the survey agreed that Regulation (EU) No 996/2010 is 
coherent with the Aviation Safety Policy and EU regulations. Only Regulation (EU) No 376/2014 
led to a lack of harmonisation. This question will be further answered by answering the sub-
questions 6.1 through 6.5. 

35 See Ecorys, NLR et al, Aviation Safety Improvement using Cost Benefit Analysis (ASICBA) reseach study, 
FP6 project No 12242, and for an estimation of the costs of aviation accidents in the US 
http://www.sciencedirect.com/science/article/pii/S0965856412001577.  
36 Administrative costs are defined as the costs incurred by enterprises, the voluntary sector, public 
authorities and citizens in meeting legal obligations to provide information. The administrative burdens stem 
from the part of the process, which is done solely because of a legal obligation. 

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Evaluation question 6.1: 
To what extent is the intervention coherent with EU Aviation Safety Policy, and in 
particular to Regulation 216/2008? 

The evaluation did not identify incoherence with the EU Aviation Safety policy. 

In principle, Regulation (EU) No 996/2010 is coherent with Regulation (EC) No 216/2008 (the 
Basic Regulation), although the latest revisions have raised a concern. Article 5 of Regulation 
(EU) No 996/2010 mandates the investigation of every accident or serious incident involving 
aircraft other than specified in Annex II of the Basic Regulation. The latest revision would also 
mandate the investigation of accidents and serious incidents of drones. ENCASIA has formulated 
an opinion in 2015 to allow flexibility in the investigation of drones (and manned aircraft with a 
MTOW of less than 2250kg). Although this is not incoherence per se, it is questioned whether 
the implication is in line with the intentions behind Regulation (EU) No 996/2010. Currently, the 
alternative text formulated in the ENCASIA opinion has been incorporated in the revision of the 
Basic Regulation. The revision of the Basic Regulation has not been completed. 

Evaluation question 6.2: 
To what extent is the intervention coherent with other EU instruments?  

No incoherence with other regulations was identified, except for a perceived lack of 
harmonisation between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010. 

Accidents and serious incidents, as defined within Regulation (EU) No 996/2010, are to be 
reported under Regulation (EU) No 376/2014 (Article 2(7)). It means a double reporting could 
be required in a situation where a person is subject to mandatory reporting obligations in 
accordance with Regulation (EU) No 376/2014. The SIAs perceive a lack of harmonisation 
between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010. 

There are several aspects here: 

 

 

For the reporter – Regulation (EU) No 376/2014 contains the occurrences (including 
accidents and serious incidents) that shall be reported through the mandatory reporting 
systems37 to the competent authority established by Regulation (EU) No 376/2014. In 
the majority of the cases, the SIA is not that competent authority. In addition, if the 
reporter considers that the occurrence is a serious incident or an accident, the reporter 
must report to the SIA as well under Regulation (EU) No 996/2010 article 9. Moreover, 
for reporters of an incident, it may not be obvious whom to report to as they might not 
be able to determine whether an incident is serious or not; 
For the SIAs – The SIAs have concerns that if occurrences are classified as representing 
a significant risk to aviation safety by the competent authority under Regulation (EU) No 
376/2014, this would mean that there are considered as 'serious incidents', hence the 
SIA’s obligation to investigate would be subject to a classification by another competent 
authority. Strictly speaking, this concern is not justified, as the safety risk classification 
of occurrence reports in Regulation (EU) No 376/2014 does not define what is a serious 
incident or accident. Another issue for the SIAs is that serious incidents and/or accidents 
could be reported only to the competent authority under Regulation (EU) No 376/2014 
and not to the SIAs.  

Hence, people should be aware of the different reporting channels. Member States are 
responsible for an appropriate set up of the national reporting systems to allow the authorities 
to be aware of the information and to cope with their respective duties. Effective coordination 
between the competent authority under Regulation (EU) No 376/2014 and the SIAs is deemed 
necessary.  

Evaluation question 6.3: 
In how far was the Regulation coherent with other rules on protecting data and 
human rights?  

37 Not all occurrences are to be reported and not everybody is subject to the mandatory occurrence 
reporting system. This information can be found in Regulation (EU) No 376/2014. 

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The first question that must be addressed in this context is whether the provisions of the 
regulation must comply with human rights and data protection as the subject of the regulation 
is a very specific one, allowing for divergences from the general rules, because of reasons of 
protecting public order and aviation safety. The regulation focuses on aviation safety, but leaves 
it to the laws of Member States to set a balance between the two objectives, as to which see in 
particular Article 14(3) of the regulation on the disclosure of safety sensitive information.  

For instance, Sweden knows a Freedom of Information legislation, which comes under 
constitutional provisions of that country. Thus, judicial authorities may obtain evidence from 
investigation and data laid down in the SIA reports. In practice, the final report of the SIA can 
be used for the prosecution of crimes. Sweden is a country in which the issue of matching the 
‘safety culture’ with the protection of human rights and data is illustrated in the most articulated 
fashion.  

In 2016, the EU has adopted the General Data Protection Regulation, and the Passenger Name 
Record (PNR) directive, integrating the privacy legislation in these instruments. The objective of 
this new set of rules is to give citizens back control over their personal data, and to simplify the 
regulatory environment for business. This point is, among others, the subject of Opinion (1/15) 
of the CJEU requested by the European Parliament concerning the compatibility of the 
preservation of with EU treaties and the EU Charter of Fundamental Rights, especially Articles 7 
and 8 on the right to privacy and data protection. The decision of the European Court is 
expected to be given on 26 July 201738. 

Up to now, there have been no incoherencies found with other rules on protecting data and 
human rights. 

Evaluation question 6.4: 
In how far do the provisions of the "solidarity clause" (Art.222 TFEU) address the 
authorities cooperation, in particular with regard to civil protection? 

The solidarity clause only marginally affects the provisions on cooperation between SIAs of 
different Member States. Article 222 TFEU concerns the duties of the EU rather than those of 
the Member States. It would seem that Member States do not even have to undertake their 
‘best efforts’ to provide mutual assistance when a disaster arises.  

The next question is whether an aviation accident can be qualified as a disaster as meant in 
Article 222 TFEU. This could be the case in specified but not all instances. 

Furthermore, Council Decision 2014/415/EU on the arrangements for implementation by the 
Union of the solidarity clause employs a relatively restrictive language when it comes to the 
duties of the Member States in respect of demonstrating solidarity. Thus, the solidarity clause 
as interpreted and elaborated in the Council Decision 2014/415/EU has basically a 
complementary nature – supplementing the existing special provisions, such as those of Article 
6 of Regulation (EU) No 996/2010. 

This is not to say that the solidarity clause has no added value at all, that is, added to the 
commitments which EU States have undertaken in Article 6 of Regulation (EU) No 996/2010. 
Hence, it could be relied on because of its “inspirational value” as it makes clear that the 
challenges can only be overcome by showing solidarity. This conclusion is also supported by the 
obligation of mutual assistance drawn up in Article 4(3) of the Treaty on the European Union, 
underpinning intra-EU solidarity. 

Evaluation question 6.5: 
To what extent is the intervention coherent with other EU instruments with regard 
to safety and security possible overlaps? 

38 http://curia.europa.eu/juris/document/document.jsf?docid=193216&doclang=EN. 

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Interviewees have been asked if they are aware of any EU instruments with regard to safety 
and security possible overlaps with which Regulation (EU) No 996/2010 is not coherent. No 
indications were received on any incoherencies with other EU instruments with regard to safety 
and security possible overlaps. 

5.5  EU added value 

Evaluation question 7: 
What does the Regulation add to the work on accident investigation being done by 
the Member States either individually and within the context of Member States’ 
obligations under ICAO? 

Regulation (EU) No 996/2010 has positively added to the work that was being done by Member 
States on accident investigations, either individually or within the context of their obligations 
under ICAO Annex 13 and/or the existing regulatory framework at EU level (i.e. Directive 
94/56/EC). The European added value of Regulation (EU) No 996/2010 is generated in three 
main ways: (1) through the introduction of additional or new requirements in the regulation, (2) 
through the provision of additional clarification on requirements or roles in the existing 
Community legislation, and (3) by giving legal force to certain Standards and Recommended 
Practices of ICAO (SARPs). On the latter point, while States must implement the ICAO SARPs in 
their national laws in order to give them legal force, ICAO does not have enforcement powers. 
The EU regulation fulfils a very useful role in this respect, as certain SARPs are now embedded 
in the regulation, and have thus received legal force in the EU Member States as Regulation 
(EU) No 996/2010 is directly applicable in the Member States and can be enforced by the 
European Commission in case of non-compliance. In this respect, the EU regulation is designed 
to achieve harmonisation of the SARPS on the EU level.  

The European added value results from a combination of factors, namely: enhanced legal 
certainty on the status of certain ICAO provisions as well as the role of the different actors in 
the event of an accident or serious incident, in particular the EU Commission, EASA and judicial 
authorities; gains from coordinated knowledge sharing and pooling of resources; and greater 
effectiveness of the safety investigation actors, procedures and outputs (i.e. safety 
recommendations). The positive effects of the various mechanisms are generally larger for 
Member States that did not have such well-established cooperation procedures, investigation 
processes and/or which did not have a sufficiently independent accident investigation bureau in 
place prior to Regulation (EU) No 996/2010.  

The main benefits of European value, which would not have materialised under a counterfactual 
scenario, are summarised below for each of the five problem areas:  

Investigation capabilities 
ENCASIA reinforces the coordination role of SIAs in a European context by building on the 
previously existing cooperation between such authorities, and their available resources, through 
peer reviews, training activities and knowledge sharing. No such networks with a European 
focus existed in the counterfactual scenario. These activities, which are supported by the 
European Commission, will generate long term added value in the form of higher investigation 
capacities throughout the Union.  

Tensions with other proceedings 
The provision obligating States to establish advance arrangements implements 
Recommendation 5.4.4 of Annex 13 of ICAO, which recommends that States should ensure 
cooperation between its accident investigation authority and judicial authorities so that an 
investigation is not impeded by administrative or judicial proceedings. The EU has therefore 
enhanced the legal status of the respective ICAO provision with the implementation of Article 
12(3) in the regulation. The same applies to the implementation of Standard 5.12 of ICAO 
Annex 13 in Regulation (EU) No 996/2010 concerning the protection of sensitive safety 
information. The safeguard is not absolute, however, and questions remain as to the scope and 
application of Article 14 in practice (see Evaluation question 2.1.5).  

Unclear role of the Community in safety investigations 
EASA certify and approve products and organisations and provide oversight for certain fields in 
aviation. Therefore, they foresaw a role for themselves within safety investigations. Article 8 of 

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the regulation provides clarity as to the role of EASA as well as CAAs in safety investigations. 
The ICAO regime is addressed to States without legal articulation as to the contributions from 
international organisations such as the EU and its bodies. Therefore, the provision establishes 
and clarifies the role of the Community in safety investigations and it works in practise 
according to the consulted stakeholders. 

Weak implementation of safety recommendations 
The regulation enacts more stringent requirements on the follow-up of safety recommendations, 
while also ensuring that the requirements are consistent with the latest edition of ICAO Annex 
13 at the time the regulation was adopted. The provision offers greater clarity and 
accountability regarding the safety recommendation process than existed previously. In addition 
to the added clarity, the added value of Article 18 stems from the fact that ICAO has no 
enforcement powers, therefore the provision(s) gives legal force to the ICAO norms.  

The regulation also established the SRIS database (Article 18(5)), which is the instrument for 
identify safety recommendations with Union-wide relevance. Despite divergent levels of 
implementation and access restrictions, the Union dimension of the instrument creates 
European added value compared to what is achieved in the counterfactual scenario.  

Victims assistance 
The assistance provided to victims of accidents and their relatives after such accidents is not 
dealt with under the ICAO regime and it was not previously addressed at the Community level. 
The inclusion of specific provisions in the current regulation created new areas of potential 
benefit to be realised by relevant stakeholders compared to what would have been achieved in 
the counterfactual scenario. 

Another important added value of the regulation is more future-oriented: the functional 
separation of accident investigations is no longer in dispute or under discussion. That is, it is 
openly agreed that different government bodies have different investigation objectives and 
issues to investigate. In the long-term, the regulation makes clear the position and role of 
safety investigations vis-à-vis other proceedings, and thus making the very question a non-
issue.  

Evaluation question 8: 
What is the relevance of this Regulation for the EU safety environment, in 
particular as regards to the role of EASA and the aviation industry? 

The regulation appropriately clarified the role of EASA in accident investigations, enabling EASA 
to participate in the safety investigations and to advise the investigator-in-charge and/or the 
accredited representatives. This is widely considered a positive development compared to the 
previous situation. Aviation community representatives (manufacturing, airlines) have 
suggested that EASA’s involvement could be further strengthened to make the investigation 
process, including the resulting safety recommendations, more efficient and effective 
(respectively).  

Regarding CAAs, a majority of States consider that the regulation did not lead to any change in 
the role of CAAs, which was already well defined in the national regulatory frameworks. 
Consequently, the regulation generally had no impact on the nature of cooperation between 
CAAs and SIAs. The same finding applies to aviation community representatives, whose role 
was already considered to be clearly defined in national legislations.  

Stakeholder feedback, combined with evidence from the case studies, shows that the 
involvement of the State of Design and Manufacture (as required by Article 10), along with their 
technical advisor(s), throughout the entire investigation process has a strong positive impact on 
the quality of the investigation and its outcomes. Specifically, the expertise of these actors leads 
to more complete descriptions and understanding of aircraft system behaviour, and 
consequently, contribute to more accurate and effective recommendations. It can be concluded 
that the involvement of EASA, as well as industry representatives acting as technical advisors 
(albeit, the latter already well-established in many States prior to the regulation) positively 
impacts the EU safety environment.  

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6 

CONCLUSIONS 

The main conclusion is that the various stakeholders consulted during the evaluation are of the 
opinion that the combination of co-regulation and voluntary cooperation measures required by 
the Regulation (EU) No 996/2010 led to better safety investigations, resulting in improved 
aviation safety. ENCASIA, in which the SIAs of most Member States are actively participating, is 
considered to be one of the most effective elements that were brought by the regulation. The 
general consensus is that the regulation has led to a substantial improvement. However, there 
is still room for further enhancement of safety investigations by strengthening the role of 
ENCASIA and by improving the implementation of the regulation at Member State level. 

The main conclusion is substantiated by a conclusion for each of the five evaluation criteria.  

Relevance 
The combination of co-regulation and voluntary cooperation measures required by the 
regulation at the time are generally still relevant and appropriate to the initial needs. These 
were to be addressed by the regulation, namely to resolve the following five problems: 

lack of uniform investigation capability; 

1. 
2.  tensions between safety investigations and other proceedings; 
3.  unclear role of the Community (EASA) in safety investigations; 
4.  weakness in implementation of safety recommendations; and 
5.  insufficient assistance to the victims of air accidents and their families, including difficulties 

to quickly obtain complete passenger lists. 

New needs are related to drones and cyber-related attacks. 

Whether the investigation of accidents involving drones will become a task for SIAs is under 
consideration. Due to the potential amendment of the Basic Regulation and the point of view 
that Regulation (EU) No 996/2010 should remain aligned with the Basic Regulation, it has been 
proposed via an ENCASIA opinion to allow flexibility for the SIAs in the decision whether or not 
to investigate an accident involving drones in order to allocate the resources of the SIA most 
effectively.  

While it is not in the competence of the SIA to investigate aviation accidents involving cyber 
related attacks, it is important that SIAs have sufficient expertise to determine as to whether a 
cyber-attack has occurred. However, currently this expertise is missing (see Recommendation 
2).  

Effectiveness 
Aviation safety is improved by providing high quality unbiased safety investigations which leads 
to useful safety recommendations that are implemented as soon as possible. A high quality 
unbiased investigation also leads to valuable discussions on safety issues within the European 
aviation community and lead to relevant changes that are not a direct result of a specific safety 
recommendation. 

To ensure a high quality unbiased safety investigation capability throughout the EU, it is 
prerequisite that the SIAs are independent, have sufficient skilled air safety investigators 
available and are provided with an adequate budget to perform their tasks.  

Independence of the SIAs has been achieved in almost all Member States. During this 
evaluation, study questions were raised regarding the lack of independence of the SIA in four 
Member States. In only one of those cases, supporting evidence shows that there is a lack of 
independence.  

Although independence had already been established in most Member States prior to the entry 
into force of the regulation, the added value of the regulation is that the principle of 
independence of accident investigations is no longer in dispute or under discussion. At 
international level, ICAO introduced similar provisions, which became applicable in November 
2016 through amendment 15 to ICAO Annex 13. 

The SIAs vary in size in terms of number of air safety investigators throughout the EU. Half of 

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the SIAs have five or less investigators and five SIAs have only one investigator. Since the entry 
into force of the regulation, the number of investigators and the available budgets remained 
unchanged. For most SIAs, the amount of resources is considered to be sufficient for their 
normal activities, although for some small SIAs, it has been reported that the resources are 
insufficient.  

Results from this evaluation indicate that not all SIAs can organise sufficient high quality safety 
investigations in case of a major accident. Especially since a major accident will have more 
impact and different dynamics than a “normal” accident in terms of media attention, judicial 
investigations, political pressure etc. ENCASIA has helped preparing smaller SIAs for major 
accidents by accommodating the collaboration between SIAs and by sharing experiences and 
lessons learned from major accidents that happened. While, it is believed that this in an 
important initiative, it might however not be sufficient to fully reach the goals of the regulation 
(see Recommendation 3). 

ENCASIA has a large influence by strengthening the coordination between the SIAs and by 
introducing common practices. This has been achieved through plenary discussions, results from 
the various working groups, forming of opinions, sharing of experiences and lessons learned, 
issuing guidelines, performing peer reviews and training of air safety investigators. It is 
important that work of ENCASIA can be continued or even intensified. Currently, ENCASIA 
activities are supported through a grant from the EU, which covers a significant share of the 
costs involved, the rest being contributions in kind from SIAs. The annual decision to allocate 
the requested grant is not a sustainable financial structure because it does not guarantee a long 
term financial basis and a solution needs to be found to ensure the required budget for ENCASIA 
activities in a longer term future (see Recommendation 1). 

The quality of the safety investigations has improved across Europe through the regulation and 
the work of ENCASIA. The improved safety investigation reports and safety recommendations 
have a positive impact on safety. Better safety recommendations lead to a higher probability 
that they are actually being implemented. The average response time to safety 
recommendations is improving although average response times are still longer than the 
required 90 days.  

Advance arrangements are a pragmatic way to arrange the cooperation between SIAs and the 
judicial authorities so that a safety investigation is not impeded by administrative or judicial 
proceedings. The advance arrangements enable Member States to accommodate the different 
national law systems. In several Member States, the advance arrangements have never been 
practically applied because there has not been a major accident since the arrangement came 
into force. Where it has been practically applied, it is considered be an effective way of 
coordinating the various investigations, albeit that there have been examples where the judicial 
authorities were insufficiently aware of the existence or content of the advance arrangement or 
arrangements were established at the last moment. It is therefore important that stakeholders, 
and in particular the judicial authorities, are familiar with the advance arrangements and that 
they are regularly reviewed (see Recommendation 4). 

The provisions on the protection of sensitive safety information and persons helped to improve 
the safety investigation. Nevertheless, there have also been some high profile accidents 
(Spanair, Germanwings) where parts of sensitive safety information became public. The 
provisions on the protection of sensitive safety information leave some room for interpretation, 
which is an unwanted situation that needs to be addressed (see Recommendation 5). 

Member States are actively participating in ENCASIA and have largely complied with the 
requirements of coordination of investigations (Article 12), preservation of evidence (Article 13) 
and protection of safety sensitive information (Article 14) through the establishment of advance 
arrangements.  

There are differences across Europe regarding the use of safety investigation reports in judicial 
investigations and the subpoenaing of air safety investigators. It is unclear however if this has 
any consequences on the quality of safety investigations. Therefore, it is worthwhile to 
investigate the different practises across the Member States and the implications thereof by 
conducting a comparative study (Recommendation 6). 

National emergency plans have not been fully implemented in all Member States. There is a 
need to have guidance for the establishment and content of national emergency plans. There 
has been some progress in resolving the problems and challenges concerning the assistance to 

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victims and their relatives and Regulation (EU) No 996/2010 kick-started this process. However, 
the MH17 accident made it clear that the problems of obtaining sufficient information to 
determine who was on board the aircraft still exist (see Recommendation 3). 

Efficiency 
Benefits of Regulation (EU) No 996/2010 consist of an improved safety environment due to 
better cooperation between the SIAs and better safety recommendations. Although these 
benefits are difficult to quantify, a rough calculation considering only fatal accidents shows that 
the benefit/cost ratio on annual basis of the regulation is greater than 1 if more than 0.55% of 
all prevented fatalities due to improved aviation safety can be attributed to the regulation. In 
that case the benefits of Regulation (EU) No 996/2010 outweigh the costs.  

The stakeholders consulted in this evaluation that are of the opinion that the resources and 
costs incurred due to the regulation have been proportional to the results achieved and that the 
benefits outweigh the costs. 

Coherence 
The regulation is coherent with the EU Aviation Safety Policy and no incoherence with other 
regulations was identified, except for a perceived lack of harmonisation between Regulation 
(EU) No 376/2014 and Regulation (EU) No 996/2010. Accidents and serious incidents, as 
defined within Regulation (EU) No 996/2010, are to be reported under Regulation (EU) No 
376/2014 (Article 2(7)). It means a double reporting could be required in a situation where a 
person is subject to mandatory reporting obligations in accordance with Regulation (EU) No 
376/2014. The SIAs perceive a lack of harmonisation between Regulation (EU) No 376/2014 
and Regulation (EU) No 996/2010. 

There are several aspects here: 

 

 

For the reporter – Regulation (EU) No 376/2014 contains the occurrences (including 
accidents and serious incidents) that shall be reported through the mandatory reporting 
systems39 to the competent authority established by Regulation (EU) No 376/2014. In 
the majority of the cases, the SIA is not that competent authority. In addition, if the 
reporter considers that the occurrence is a serious incident or an accident, the reporter 
must report to the SIA as well under Regulation (EU) No 996/2010 article 9. Moreover, 
for reporters of an incident, it may not be obvious whom to report to as they might not 
be able to determine whether an incident is serious or not; 
For the SIAs – The SIAs have concerns that if occurrences are classified as representing 
a significant risk to aviation safety by the competent authority under Regulation (EU) No 
376/2014, this would mean that there are considered as 'serious incidents', hence the 
SIA’s obligation to investigate would be subject to a classification by another competent 
authority. Strictly speaking, this concern is not justified, as the safety risk classification 
of occurrence reports in Regulation (EU) No 376/2014 does not define what is a serious 
incident or accident. Another issue for the SIAs is that serious incidents and/or accidents 
could be reported only to the competent authority under Regulation (EU) No 
376/2014 and not to the SIAs.  

Hence, people should be aware of the different reporting channels. Member States are 
responsible for an appropriate set up of the national reporting systems to allow the authorities 
to be aware of the information and to cope with their respective duties. Effective coordination 
between the competent authority under Regulation (EU) No 376/2014 and the SIAs is deemed 
necessary. It is important that the NAAs, SIAs and EASA establish an appropriate flow of 
information that leaves as little room as possible for interpretations and subjectivity. This is 
reflected in Recommendation 7. 

EU-added value 
Regulation (EU) No 996/2010 has positively contributed to the work that was already being 
done by Member States on accident investigations, either individually or within the context of 
their obligations under ICAO Annex 13 and/or the existing regulatory framework at EU level. 
ENCASIA, in which the SIAs of most Member States are participating actively, is considered to 
be one of the most effective elements that were brought by the regulation. The European added 

39 Not all occurrences are to be reported and not everybody is subject to the mandatory occurrence 
reporting system. This information can be found in Regulation (EU) No 376/2014. 

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value results from a combination of factors, namely: enhanced legal certainty on the status of 
certain ICAO provisions as well as the role of the different actors in the event of an accident or 
serious incident, in particular the EC, EASA and judicial authorities, gains from coordinated 
knowledge sharing and pooling of resources, and greater effectiveness of the safety 
investigations, including safety recommendations. 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

7  RECOMMENDATIONS 

From the conclusions of this evaluation study, the following recommendations are derived. 

Recommendation 1 (to the EC and Member States):  
ENCASIA is considered to be one of the most effective elements that were brought by the 
regulation. Currently, ENCASIA is supported through a grant from the EU, which covers a 
significant share of the costs involved. Without financial support, ENCASIA cannot exist in its 
current form. A grand is supposed to be a temporarily means of support. In order to continue 
the success of ENCASIA it is recommended to ensure a sustainable finance structure for 
ENCASIA to allow a long term planning. 

Recommendation 2 (to ENCASIA):  
While it is not necessarily the task of the SIA to investigate aircraft accidents resulting from 
cyber related attacks, it is important that SIAs have sufficient expertise to determine as to 
whether a cyber-attack is involved in order to inform the relevant enforcement authority and to 
gain safety-related lessons. SIAs are advised to obtain sufficient knowledge on this topic in 
order to handle the issue appropriately, such as through cooperation arrangements with other 
States or on a regional level, or through advance arrangements with the appropriate national 
cyber security entities. It is recommended that the issue of cyber-related matters is addressed 
within ENCASIA.  

Recommendation 3 (to the Member States and EC):  
Emergency plans at national level for a civil aviation accident have not been implemented by all 
Member States, and for those Member States that have implemented national emergency plans 
those plans are not always complete. It is recommended to the European Commission to publish 
guidance and minimum standards to support the Member States in improving the level of 
implementation of the National emergency plans. These civil aviation accident emergency plans 
at national level should include among others the arrangements for the national SIA to organise 
sufficient high quality safety investigation capabilities in case of a major civil aviation accident. 
Additionally, Member States should ensure that nationality of all passengers is recorded by 
airlines so that there is sufficient information available to quickly determine who was on board 
the aircraft so that sufficient assistance to victims and their relatives can be provided. 

Recommendation 4 (to the Member States):  
To make sure that advance arrangements remain effective, it is recommended to ensure that 
stakeholders are familiar with these advance arrangements and to regularly review the advance 
arrangements to make sure that they are still appropriate. 

Recommendation 5 (to ENCASIA and EC):  
Develop additional guidance on the level of protection of sensitive safety information within 
ENCASIA in coordination with EC, in particular on the different levels of protection required for 
various types and sources of information.  

Recommendation 6 (to the EC):  
There are different practices among Member States concerning the use of safety investigation 
reports in judicial investigations. It is unclear however if this has any consequences on the 
quality of safety investigations. Therefore, it is recommended to conduct a comparative study to 
the different practices among Member States concerning the use of safety investigation reports 
in judicial investigations and its implications. 

Recommendation 7 (to the Member States and EASA):  
It is recommended that national aviation authorities, SIAs and EASA collaborate to establish an 
appropriate flow of information regarding the reporting of occurrences due to Regulation (EU) 
No 996/2010 and Regulation (EU) No 376/2014 that leaves as little room as possible for 
interpretations and subjectivity. 

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ANNEX 1 OVERVIEW OF RELEVANT DOCUMENTS 

ICAO documents: 
1.  ICAO Chicago convention. http://www.icao.int/publications/pages/doc7300.aspx; 
2.  ICAO Annex 13 Aircraft Accident and Incident Investigation; 
3.  ICAO’s Universal Safety Oversight Audit Programme (USOAP). 

http://www.icao.int/safety/pages/usoap-results.aspx. 

EU documents: 
1.  Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 
2010 on the investigation and prevention of accidents and incidents in civil aviation and 
repealing Directive 94/56/EC; 

2.  Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles 

governing the investigation of civil aviation accidents and incidents; 

3.  Communication from the Commission on "An Aviation Strategy for Europe", 

COM/2015/0598, December 2015; 

4.  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; 

5.  Commission Staff Working Document on the implementation of the Regulation on Safety 

Investigation, a targeted consultation of stakeholders, including MS and their SIAs, industry 
associations and accident victims and their relatives associations, Part 1 and 2, SWD (2016) 
151, April 2016; 

6.  Commission Decision 2012/780/EU on access rights to the European Central Repository of 

Safety Recommendations and their responses (and its successors); 

7.  Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of occurrences in civil 

aviation; 

8.  Regulation (EC) No 216/2008 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/E. OJ L 79, 19/03/2008, p. 1 (and its 
successors); 

9.  Decision of the European Parliament and of the Council on a Union Civil Protection 
Mechanism – 1313/2013/EU in relation to civil aviation accident emergency plans; 

10. Commission Implementing Decision No 2014/762/EU laying down rules for the 

implementation of Decision No 1313/2013 of the European Parliament and of the Council on 
a Union Civil Protection Mechanism; 

11. Council Regulation (EC) No 2027/97 as amended by Regulation (EC) No 889/2002 on air 

carrier liability in the event of accidents; 

12. 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 for the support of air 
accident victims and their relatives; 

13. Regulation (EU) 2016/679 on the protection of natural persons with regard to the 

processing of personal data and on the free movement of such data; 
14. Charter of Fundamental Rights of the European Union (2012/C 326/02); 
15. Council Decision 2014/415/EU on the arrangements for implementation by the Union of the 

solidarity clause; 

16. The Treaty on the Functioning of the European Union (consolidated version). Official Journal 

of the European Union C 202, 7 June 2016; 

17. The Treaty of the European Union (consolidated version). Official Journal of the European 

Union C 202, 7 June 2016. 

ENCASIA Network:  
1.  European Network of Civil Aviation Safety Investigation Authorities (ENCASIA), Annual 

Reports 2011, 2012, 2013, 2014 and 2015, 
http://ec.europa.eu/transport/modes/air/encasia/activities/index_en.htm; 

2.  European Network of Civil Aviation Safety Investigation Authorities (ENCASIA), Annual Work 

Programmes 2011, 2012, 2013, 2014, 2015, 2016, 
http://ec.europa.eu/transport/modes/air/encasia/activities/index_en.htm; 

3.  ENCASIA Peer Review Reports. 

Advance Arrangements with judicial authorities 

1.  HR; EE; GR; BE;FR; IE; LV; MT; PT; ES; IT; PL; RO; BG; CZ; DK; BE; LU; UK; NL. 

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Safety recommendations: 
1.  EU SRIS database ECCAIRS Web Portal, managed by the Joint Research Centre (JRC) of the 

European Commission: http://eccairsportal.jrc.ec.europa.eu/index.php?id=114; 

2.  Future Aviation Safety Team (FAST) list of ‘Areas of change’ and associated future hazards. 

http://www.nlr-atsi.nl/fast/aoc/. 

National Safety Investigation Authorities: 
1.  National procedures and arrangements on safety investigations and the Safety Investigation 

Authorities; 

2.  National advance arrangements between Safety Investigation Authorities and other 

authorities such as judicial, civil aviation and search and rescue. 

Documents related to the accident cases 
1.  Preliminary Report (rev. 1). SCAAI-1400/2011-EPWA-SP-LPC (rev.1). 30/11/2011. In Polish 

and English; 

2.  Interim Statement of the State Commission on Aircraft Accident Investigation on 

investigation into air accident No 1400/2011. Dated 31/10/2012 in Polish and English; 
3.  Second Interim Statement of the State Commission on Aircraft Accident Investigation on 
investigation into air accident No 1400/2011. Dated 31/10/2013 in Polish and English; 
4.  Budzowska & Fiutowski and Partners website News. “The US Court Litigation Involving 

Captain Wrona’s Landing Has Finished!” URL: http://en.bfp.biz/compensations//us-court-
litigation-involving-captain-wrona-landing-has-finished (19 April 2015); 

5.  BEA, Final report, Accident on 24 March 2015 at Prads-Haute-Bléone (Alpes-de-Haute-

Provence, France) to the Airbus A320-211 registered D-AIPX operated by Germanwings, 
Published March 2016. https://www.bea.aero/uploads/tx_elydbrapports/BEA2015-0125.en-
LR.pdf; 

6.  BEA, 2016; EASA, Task Force on Measures Following the Accident of Germanwings Flight 

9525 – Final Report, 17 July 2015; 

7.  Nicola Clark and Dan Bilefsky, “Germanwings Pilot Was Locked Out of the Cockpit Before 

Crash in France,” The New York Times, 25 March 2015; 

8.  Senha Shenkar, “Germanings Crash: Pilots, Upset over hasty conclusions and media leaks, 
to file lawsuit,” IBTimes, 27 March 2015, http://www.ibtimes.com/germanwings-crash-
pilots-upset-over-hasty-conclusions-media-leaks-file-lawsuit-1861486; 

9.  Francois Duclos, “Crash de Germanwings : plainte du SNPL contre le BEA”, AirJournal, 5 
January 2016, http://www.air-journal.fr/2016-01-05-crash-de-germanwings-plainte-du-
snpl-contre-le-bea-5156076.html; 

10. French Republic Ministry of Justice, Directorate for Criminal Matters and Pardons, 

“Presentation of the agreement on aviation safety investigations between the Investigation 
and Analysis Bureau (BEA) for civil aviation safety and the Directorate for Criminal Matters 
and Pardons,” Ref. No: 2014/0098/E13, Paris, 13 June 2016;  

11. Kate Connolly, “Father of Germanwings pilot accused of killing 150 questions inquiry 

verdict,” The Guardian, 24 March 2017; 

12. AAIB (2012). AAIB Bulletin: 6/2012 G-AOIL EW/C2011/05/02; 
13. Hoyle v Rogers & Anor. EWCA Civ 257, Court of Appeal, Lady Justice Arden, Lord Justice 

Treacy, Lord Justice Christopher Clarke, 13 March 2014, 
http://www.bailii.org/ew/cases/EWCA/Civ/2014/257.html; 

14. AAIB (2017) Report on the accident to Hawker Hunter T7, G-BXFI near Shoreham Airport on 

22 August 2015. Aircraft Accident Report 1/2017, March 2017; 

15. The Queen –v–Her Majesty’s Senior Coroner for Norfolk [2016] EWHC 2279 (Admin); 
16. Chief Constable of Sussex Police v Secretary of State for Transport & BAPA [2016] EWHC 

2280; 

17. AAIB (2014). Report on the accident to Agusta A109E, G-CRST Near Vauxhall Bridge, 

Central London on 16 January 2013. Air Accident Report: 3/2014; 

18. AAIB (2015) AAIB Bulletin: 10/2015 G-LBAL EW/C2014/03/02. 

Accident reports (other) 
1.  Dutch Safety Board, MH17 crash, Crash of Malaysia Airlines flight MH17, Hrabove, Ukraine, 

17 July 2014, published October 2015. http://onderzoeksraad.nl/uploads/phase-
docs/1006/debcd724fe7breport-mh17-crash.pdf; 

2.  Dutch Safety Board (2015) Passenger Information. The Hague, Netherlands; 
3.  Dutch Safety Board (2010). Emergency assistance after Turkish Airlines incident, 

Haarlemmermeer, 25 February 2009; 

4.  CIAIAC. Accident involving a McDonnell Douglas DC-9-82 (MD-82) aircraft, registration EC-

HFP, operated by Spanair, at Madrid-Barajas Airport on 20 August 2008, Report A-

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032/2008. Published August 2011, http://www.fomento.es/NR/rdonlyres/EC47A855-B098-
409E-B4C8- 9A6DD0D0969F/107087/2008_032_A_ENG.pdf. 

The emergency plans at national level and assistance plans for victims 
1.  The workshop organised by the Commission in January 2014 on Civil Protection and 

Emergency identified a need for guidance of many Member States to develop coherent plans 
at national level. 

Additional sources 
1.  Request for services № MOVE/E.3/2016 – 440 in the context of the framework contract on 
impact assessment and Evaluation studies (ex-ante, intermediate and ex-post) in the field 
of Transport, MOVE/A.3/119-2013- LOT № 1 ”Air", Ref. Ares(2016)4078312 - 03/08/2016; 

2.  Ecorys. (2007) Impact Assessment on the modification of Directives 94/56/EC and 

2003/42/EC. TREN-IA – 016 – TR14923. Rotterdam, Netherlands; 

3.  Franscesco Rossi Dal Pozzo. (2014) EU legal framework for safeguarding air passenger 

rights, Springer; 

4.  Chloe A. S. Challinor (2017) Accident Investigators Are the Guardians of Public Safety: The 
Importance of Safeguarding the Independence of Air Accident Investigations as Illustrated 
by Recent Accidents. Air & Space Law 42, no. 1 (2017): 43–70; 

5.  Sorana Pop Paun, Mihai Radu (2016) The use of aviation accident investigation reports as 

evidence in court, The 10th International Conference “Challenges of the Knowledge Society” 
20th -21st May 2016, Bucharest; 

6.  Whyte. J. (2012). Victim assistance – ‘Managing Expectations’. Presentation at ESASI 2012, 

Amsterdam, the Netherlands; 

7.  Pooley, E. (2013). Harmonisation of safety recommendations. Presentation at ESASI 2013, 

Madrid, Spain; 

8.  Kramer, U. (2013). The European Network of Civil Aviation Safety Investigation Authorities. 

Presentation at ESASI 2013, Madrid, Spain; 

9.  Gashi, K. (2014) Challenges of small AIBs. Presentation at ESASI 2014, Milan, Italy; 
10. Tony Licu, Marc Baumgartner, Roderick van Dam (2013). Everything you always wanted to 

know about safety culture (but were afraid to ask). Hindsight 18: 14-17; 

11. Eurocontrol (2012) Just Culture Policy. European Organisation for the Safety of Air 

Navigation (Eurocontrol). Brussels, Belgium; 

12. McDermid, B. ENCASIA presentation at ESASI 2017, Ljubljana; 
13. Dempsey, P.S. (2010). Independence of Aviation Safety Investigation Authorities: Keeping 
the Foxes from the Henhouse. Journal of Air Law and Commerce, 75(1), pp 223-283; 

14. Osiecki, M. Note on Independence – Regulation 996/2010, DG MOVE, 2 May 2017; 
15. H. Schebesta (2017), Risk Regulation through Liability Allocation: Transnational Product 

Liability and the Role of Certification, 42(2) Air & Space Law (2017); 

16. European Economic and Social Committee (EESC). Open reporting in civil aviation; 

Assessment of the EESC’s prospective role in designing a ‘European Just Culture Charter’. 
EESC-2013-87-EN. 2013. http://www.eesc.europa.eu/resources/docs/qe-02-13-501-en-c--
2.pdf; 

17. RAND (2000). Safety in the skies, personnel and parties in NTSB aviation accident 

investigation: Master volume. Rand Corporation, Institute for Civil Justice. 

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ANNEX 2 LIST OF PARTICIPANTS 

Exploratory interviews 

Name 

Mikolaj Ratajczyk 

Frederic Combes 

Bernard Bourdon 

Keith Conradi 

Target interviews 

Name 

Organisation 

Organisation 

European Commission, DG MOVE 

Airbus 

EASA 

Formerly AAIB (SIA UK) 

Mr. A. 
Golubev
as 
Mr. S. 
Posluk 
Mr. U. 
Mauriņš 
Mr. R. 
Prunean 
Mr. M. 
Jones  
Mr. V. 
de 
Vroey 
Mr. K. 
Martin 
Mr. N. 
Chabber
t 
Mr. G. 
Buono 
Mr. S. 
Lewyllie 
Mr. W. 
Post 
Mr. S. 
Neuvone
n 
Mr. C. 
Orr 
Mr. P. 
Sleight 
Mr. M. 
Colavita  
Mr. O. 
Ferrante 
Mr. F. 
Zammit 
Mrs. R. 
Tanti-
Dougall 
Mr. J. 
Bäckstra
nd 
Mr. P. 
Swaffer 
Mr. R. 
van 
Dam 
Mr. G. 
Vogelaar 
Mrs. A. 
Schuite 

CAA Lithuania 

CAA Sweden 

CAA Latvia 

EBAA 

ASD 

GAMA 

IATA 

European Passengers' Federation 

European Commission, JRC 

SIA UK (AAIB) 

EASA 

SIA France (BEA) 

SIA Malta 

SIA Sweden 

President IFPA & Eurocontrol Just Culture Task Force (JCTF) 

SIA Netherlands (OVV) 

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Name 

Organisation 

Mr. E. 
Giemulla 
Mr. J. 
Burke 
Mr. L. 
Naujokai
tis 
Mrs C. 
Challinor 
Mr. A. 
Neves 
Mrs. I. 
Vasiliu 
Mr. C. 
Johnson 
Mr. G. 
Černjav
a  
Mr. S. 
Erdman
n 
Mr. P 
Lipiec 
Mr. L. 
Michel 

Mrs. I. 
van 
Nieuwke
rk 
Mr. R. 

Professor in Law 

European Commission, DG MOVE 

SIA Lithuania 

Lawfirm Stephenson Harwood in London 

SIA Portugal (former) 

European Commission, DG JUST 

Professor of Computer Science (cyber), University of Glasgow 

CAA Croatia 

A4E 

SIA Poland (former) 

ECA 
Mr. Michel collected responses from the following ECA member association: ACA, ANPAC, BeCA, 
SEPLA, SNPL, VC and VNV 
Eurojust 

ENCASIA chairman and SIA France (BEA) 

J
o
u
t
y 

Mr. J. 

Chair ECAC-ACC, vice-chair ENCASIA, AAIU (Ie) 

Mrs. H. 

W
h
y
t
e 
SIA Finland 
H
a
n
n
a
m
a
r
i

Focus group members 

Name 

John Burke 

Rob Carter 

Luc Blendeman 

Annemarie Schuite 

Jurgen Whyte 

Olivier Ferrante 

Oliver Hussi 

Organisation 

European Commission, DG MOVE 

AAIB (UK) 

AAIU (Belgium) 

DSB (the Netherlands) 

AAIU (Ireland) 

BEA (France) 

Lufthansa 

Maria Jesus Guerrero 

University of Seville 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

Job Brüggen 

Mario Colavita 

Chris Johnson 

LVNL 

EASA 

Professor of Computer Science (cyber), University of 

Glasgow 

Jean-Jacques Woeldgen (as client) 

European Commission, DG MOVE 

Targeted survey 

In total 62 respondents completed the targeted survey. Of these respondents, 56 provided the 
name of their organisation and 6 did not.  

The following organisations responded to the targeted survey: European Passengers' 
Federation, Transport Accident Incident Investigation Bureau (TAIIB), AAIASB, Hellenic Air 
Accident Investigation and Aviation Safety Board, Transport Accident and Incident Investigation 
Division of the Ministry of Justice of the Republic of Lithuania, IFATCA, Croatian Civil Aviation 
Agency, LVNL, Directorate General Civil Aviation Administration Bulgaria, Air Accident 
Investigation Unit (AAIU) (Ireland), air accidents and incidents investigation board (Cyprus), 
Civil Aviation Agency of the Republic of Slovenia, Comisión de Investigación de Accidentes e 
Incidentes de Aviación Civil (CIAIAC), Civil Aviation Safety Investigation and Analysis Center 
(Romania), SCAAI, Agenzia nazionale per la sicurezza del volo (ANSV), Air Crash Victims' 
Families' Federation International (ACVFFI), Bureau of Air Accident Investigation (Malta), 
German Federal Bureau of Aircraft Accident Investigation (BFU), AMIA, Estonian Safety 
Investigation Bureau, Air Accidents Investigation Branch (UK),Administration des enquêtes 
techniques (Luxembourg), AOPA UK, Civil Aviation Agency of the Republic of Latvia, JRC, Ente 
Nazionale per l'Aviazione Civile, Consejo General del Poder Judicial, Alitalia, Air-Glaciers SA, 
Cargolux, Cargolux Airlines, Directorate General for the Environment and International Affairs/ 
Civil Aviation Department (the Netherlands), Civil Aviation Administration of the Republic of 
Lithuania, Air Accident Investigation Unit (Belgium), Statens haverikommission (SHK) - Swedish 
Accident Investigation Authority, Rolls-Royce Deutschland Ltd&Co. KG, Air Accidents 
Investigation Institute (Czech Republic), Dutch Safety Board, Rolls-Royce plc, Short Brothers 
PLC, Accident Investigation Board of Denmark, Wamos Air, prosecutor office (Lithuania), Aer 
Lingus, Swedish Transport Agency (CAA), KLM, IATA - International Air Transport Association, 
Japan Airlines, Air, Maritime and Railway Traffic Accident Investigation Agency (Croatia), Air, 
Maritime and Railway Accident and Incident Investigation Unit Republic of Slovenia, ATR, EBAA, 
Safety Investigation Authority Finland, AirFrance, AeroSpace & Defense Industries Association of 
Europe (ASD). 

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ANNEX 3 COUNTERFACTUAL SCENARIO 

To analyse the effectiveness, efficiency, costs, benefits and added value of Regulation (EU) No 
996/2010, it is necessary to establish the counterfactual scenario: what would be the situation if 
the regulation had not been issued? 

It is reasonable to assume that ICAO Annex 13 would have evolved in the absence of Regulation 
(EU) No 996/2010, but the experience of Regulation (EU) No 996/2010 has been instrumental 
in some of the revisions that are incorporated in the eleventh edition of Annex 13. It is therefore 
assumed that in the absence of Regulation (EU) No 996/2010, the eleventh edition of Annex 13 
does not exist and that the tenth edition of ICAO Annex 13 is applicable.  

The regulation was established to replace Directive No 94/56/EC. In the counterfactual scenario, 
Directive No 94/56/EC would still be in place. The impact assessment conducted in 200940 to 
analyse the best options for replacing the Directive identified five specific problems that were 
not being addressed through Directive No 94/56/EC: 

1. 
lack of uniform investigation capability; 
2. 
tensions between safety investigations and other proceedings; 
3.  unclear role of the Community (EASA) in safety investigations; 
4.  weakness in implementation of safety recommendations; 
insufficient assistance to the victims of air accidents. 
5. 

For the counterfactual scenario, it is necessary to estimate if these problems would have 
persisted in the absence of Regulation (EU) No 996/2010. 

Lack of uniform investigation capability 
A key objective of the regulation was to strengthen the independence of the national SIAs in 
line with ICAO Annex 13. In the counterfactual scenario, the requirements of Directive No 
94/56/EC would still be in force and no additional emphasis is put on the need to establish an 
independent SIA in each Member State. 

In the counterfactual scenario ENCASIA does not exist. The available networks for SIAs to stay 
in contact with each other and to share best practices are the International Society of Air Safety 
Investigators (ISASI) and its European chapter (ESASI) and ECAC-ACC. International 
cooperation between SIAs does take place, for instance in providing CVR and FDR readout 
capabilities, but is less obvious.  

Tensions between safety investigations and other proceedings 
In the counterfactual scenario, there are only a few Member States that have arrangements for 
cooperation between safety and other investigations. Additionally, no special clarification has 
been provided on the protection of safety sensitive information. 

Unclear role of the community (EASA) in safety investigations 
In the counterfactual scenario, the role of EASA in safety investigations is not formally 
described. In practice, it is reasonable to assume that, in view of the increasing responsibilities 
of EASA, some sort of working model would have been achieved, even without this being 
formally described in a regulation. The lack of a formal description will, however, lead to 
confusion between EASA and other parties involved in the investigation in the counterfactual 
scenario on a case by case basis.  

Weakness in the implementation of safety recommendations 
In the counterfactual scenario, the SRIS database does not exist. There is no overview on a 
European level of whether deadlines for issuing the safety report and following up the safety 
recommendations and follow-up have been met. There is no instrument to identify if safety 
recommendations are relevant locally or at a Union-wide level. 

40 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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Insufficient assistance to the victims of air accidents 
In the counterfactual scenario, there are no provisions for assistance to victims of air accidents.  

Additionally, the following items are relevant: 

  Regulation (EU) No 996/2010 introduces the obligation to establish penalties for non-
compliance with the regulation’s provisions, an obligation that was absent in the 
repealed Directive No 94/56/EC. In the counterfactual scenario these penalties are 
absent; 

  Due to the economic turndown from 2010 onwards, budgetary pressure on governments 
and civil aviation authorities as well as SIAs has only increased. It is assumed that in 
the counterfactual scenario this budgetary pressure also exists. 

The described scenario is in line with the baseline of the impact assessment of 2009. 

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ANNEX 4 ACCIDENT CASES 

Introduction 

As part of the study, an analysis of 4 relevant accident cases is made in order to assess the 
application of the regulation. In order to determine when an accident case is relevant, criteria 
have been established (see Section 2.3). The cases have been based on an initial proposal by 
the study team, input provided to us by the Commission, and cases proposed by ENCASIA 
(Action from ENCASIA meeting February 9th). In total 4 cases have been selected: 

1.  Boeing 767 at Warsaw airport (Poland) on 1 November 2011; 
2.  Pilatus PC-6 at Gelbressée (Belgium) on 19 October 2013; 
3.  Airbus A320 at Prads-Haute-Bléone (France) on 24 March 2015; 
4.  UK Court Cases. 

This annex contains the analysis of the four accident cases. 

Case 1: Boeing 767 at Warsaw airport (Poland) on 1 November 2011 

The information for this case study was collected during a telephone interview with Piotr Lipiec 
(investigation team member and later Investigator in Charge for this accident) and through e-
mail conversations with Andrzej Lewandowski (Chairman of the SCAAI - State Commission on 
Aircraft Accident Investigation). Additionally, the published reports and statements were used. 

Summary of the accident 
LOT Polish Airlines 16 was a scheduled flight from Newark Liberty Airport (EWR) to Warsaw 
Chopin Airport (WAW). On November 1, 2011 LO16, it made an emergency landing at WAW due 
to a landing gear that failed to extend. On board were 220 passengers and 11 crew – all 
survived. The investigation was held by Polish Air Accident Investigation Commission (SCAAI) 
who reported the event to be an accident. A preliminary report has been published but no final 
report has been published. After the preliminary safety investigation report was issued, multiple 
claims were submitted to court by passengers blaming LOT and Boeing for improper handling of 
aircraft.  

Prior to the flight, the airplane was inspected by a U.S. maintenance organization, acting under 
a contract with LOT Polish Airlines. As a result of this inspection, the airplane was released for 
flight. There were no failures, which would require application of the Minimum Equipment List 
(MEL). After take-off, during retracting of the landing gear and flaps, a leakage of the hydraulic 
fluid from the central hydraulic system (installation "C") occurred, resulting in a reduction of 
pressure in the central hydraulic system. The pressure drop was announced on the EICAS 
(Engines Indications and Crew Alerting System) and recorded by the flight data recorder. After 
completing the QRH procedure and consultation with the operator's operations centre, the flight 
crew decided to continue the flight to Warsaw. 

During approach for landing at Warsaw the flight, crew performed the QRH procedure for 
alternate gear extension, but the landing gear could not be extended. The crew checked 
correctness of the procedure and then reported to the air traffic control service (ATC) inability to 
extend the landing gear and asked the operations centre for help. 

The airplane was directed to a holding zone and the flight crew declared an emergency. Polish 
Air Force fighters were sent to the Boeing to visually check visually the position of landing gear. 
The air force pilots informed the LOT flight crew that the landing gears were still retracted. The 
flight crew unsuccessfully attempted to extend the landing gear by gravity. Because of the low 
fuel state, the flight crew decided to execute an emergency landing with landing gear retracted. 
After the airplane came to rest, the flight crew carried out an emergency evacuation of the 
passengers. 

After lifting the aircraft from the runway, a test of the landing gear extension with the alternate 
landing gear extension system was carried out. After connecting the ground power unit, setting 
C829 (A1) BAT BUS DISTR circuit breaker in the position “On” and activation of the alternate 
landing gear extension system, the landing gear was extended. The aircraft was towed to the 

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operator's technical base. 

In the interim statement (Ref. 2), released on 31/10/2012, it is concluded that the “most likely 
cause of the malfunction of the alternate landing gear extension system was the “OFF” position 
of the the C829 (A1) BAT BUS DISTR circuit breaker (on P6-panel) during the attempt of 
landing gear extension by using the alternate system”.  

Accident investigation process 
On 3 November 2011, the SCAAI forwarded the Event Notification to EASA, the EU, ICAO and 
the NTSB. In accordance with ICAO Annex 13, the NTSB designated its Accredited 
Representative and his technical advisors from the FAA and the Boeing Company. The SCAAI 
also cooperated with the BFU for the Cockpit Voice Recorder (CVR) read out. The cooperation 
with the BFU was reported as excellent. 

On 30 November 2011, a preliminary report was released in Polish and English (Ref. 1). On 
31/10/2012 an Interim statement was released (Ref. 2). On 31 October 2013 a second interim 
statement was released (Ref. 3). In this report it is stated that “The SCAAI Investigating Team 
is currently working on the draft Final Report”. After that statement, no additional reports were 
released.  

On June 13, 2017, Mr. Lewandowski stated that “now we will send Report to NTSB and in my 
opinion after 2-3 months report will be published.” This would imply that the final report would 
be available in August or September 2017. 

US court litigation 
A lawsuit was filed on the first anniversary of the accident, i.e. on 1 November 2012, against 
the manufacturer of the aircraft, Boeing Company, as well as the servicing company Mach II 
(Ref. 4). When the claim was filed, the group of the plaintiffs covered 95 passengers. 
Subsequently there joined other plaintiffs who were successively assed to the claim. The 
predominant element of the claims of all passengers involved non-pecuniary damages 
(emotional distress, negative experience, trauma). 

In April 2015, the dispute was ultimately settled between the parties. The settlement is subject 
to confidentiality, it is therefore not possible to provide any information about its terms and 
conditions. 

Investigation capability 
Since the occurrence of the accident, there have been several changes to the investigating 
team.  

According to the preliminary report (Ref.1) initially the team consisted of Waldemar Targalski 
(IIC), Stanislaw Zukowski, Piotr Lipiec and Tomasz Makowski (November 2011). 

Since May 1st, 2013 the investigation team consisted of Piotr Lipiec (IIC), Stanisław Żurkowski, 
Bogdan Fydrych, Edward Łojek and Tomasz Makowski. The former IIC, Waldemar Targalski, is 
reported as an “additional expert” according to the interim statement (Ref. 2). In the interim 
statement the following elaboration is given: 

“Due to the fact that Mr. Waldemar Targalski terminated his contract with SCAAI, the SCAAI 
Chairman appointed Mr. Piotr Lipiec, to take over the position of the Investigator-In-Charge for 
investigation of the air occurrence No 1400/11. The appointment came into force on 1 May 
2013. Mr Piotr Lipiec has been involved in the investigation into causes and circumstances of the 
accident since the beginning.“  

Furthermore, during the course of the investigation, Mr. Lipiec was hospitalised for a few 
months because of an illness, and that delayed the investigation process.  

In November 2016 (following a dispute) the contracts were terminated for 4 of the 5 air safety 
investigators. Mr. Lewandowski stated that “of the investigation team In Polish SCAAI only is 
still working Mr Tomasz Makowski. Team has changed after November 2016.“ 

Mr. Lipiec stated that when he left the SCAAI, in November 2016, the final safety investigation 
report was approximately 95% complete and preparations were made for the English 

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translation. 

Coordination between safety investigation and other proceedings 
A judicial investigation ran in parallel with the safety investigation. The safety investigation 
team met with the prosecutor. There were no difficulties in the cooperation between the safety 
investigation and the judicial investigation. The SIA has trained some of the prosecutors in 
accident investigation and this improves the cooperation. The air safety investigators and 
judicial investigators work almost as colleagues. The Polish SIA had access to information 
collected by the prosecutor. For instance, the prosecutor interviewed all passengers, and the 
SIA had access to those interviews. The judicial authorities did not have access to data collected 
by the SIA, for instance the CVR and the FDR. 

Role of EASA in the investigation 
The accident investigation team was not supported by EASA.  

Implementation of safety recommendations 
In the interim statement (Ref. 2) it is stated that “in June this year [2012] the State 
Commission on Aircraft Accident Investigation forwarded to the appropriate authorities the 
proposed preliminary safety recommendations related to the accident investigation: 

B-767 airplane manufacturer (Boeing Company): 

1.  Verify and modify the above mentioned checklists taking into account the conclusions of 

the Commission; 

2.  Modify the appropriate checklist by adding a subsection that in case of failure in the 

alternate landing gear extension the flight crew should check C4248 LANDING GEAR – ALT 
EXT MOTOR and C829 BAT BUS DISTR circuit breakers; 

3.  Develop a checklist specifying the flight crew actions in case of the total failure in the 

landing gear extension; 

4.  Introduce an appropriate Bulletin providing for a physical protection of the circuit breakers 
located in the areas of direct contact with shoes, cleaning equipment, hand luggage etc. 
(i.e. places in which the breakers may be damaged or accidentally set in wrong positions). 
This applies to all B-767 operators, which did not construct such a protection on the 
operated aircraft below production line No 863. 

LOT Polish Airlines in consultation with B-767 manufacturer: 

1.  Verify and modify the above mentioned checklists taking into account the conclusions of 

the Commission; 

2.  Modify the appropriate checklist by adding a subsection that in case of failure in the 

alternate landing gear extension the flight crew should check C4248 LANDING GEAR – ALT 
EXT MOTOR and C829 BAT BUS DISTR circuit breakers; 

3.  Develop a checklist specifying the flight crew actions in case of the total failure in the 

landing gear extension; 

4.  Introduce a physical protection of the circuit breakers located in the areas of direct contact 

with shoes, cleaning equipment, hand luggage etc. (i.e. places in which the breakers may 
be damaged or accidentally set in wrong positions). This applies to all B-767 used by the 
operator, which do not have such a protection. 

Management of Warsaw Chopin Airport: 

1.  Develop procedures for arrangement of fast and smooth movement of passengers 

evacuated from an aircraft to designated area of means of transportation.” 

In the second interim statement (issued on 31 October 2013), it is stated that the SCAAI “still 
deems valid all proposed safety recommendations forwarded in June 2012 to the appropriate 
authorities”.  

On the progress of the implementation of the Safety Recommendations, the second interim 
statement reports:  

“SCAAI was informed in writing that the safety recommendations proposed to the LOT Polish 
Airlines had been partially implemented. The safety recommendations proposed to the 

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Management of the Warsaw Chopin Airport were discussed during the meeting of the airport 
and SCAAI representatives. The safety recommendations proposed to FAA (USA) and BOEING 
have not been commented by the addressees until the day of release of the Second Interim 
Statement.” 

The Investigator in Charge (IIC) at that time stated that the response from the airport was 
considered sufficient; the response from the aircraft manufacturer was considered partially 
sufficient for one recommendation and not sufficient for the other recommendations. The 
response from the airline was considered not sufficient, but because the airline does not operate 
the type of aircraft involved anymore, it will most likely be dismissed.  

The recommendations above are registered in the SRIS database as four SRs as follows:  

  Recommendations 1, 2 and 3 to Boeing are registered as one SR to Boeing with SRIS 

number PL.SIA-2012-0002 (current status “open”); 

  Recommendation 4 to Boeing is registered as one SR to the FAA with SRIS number 

 

 

PL.SIA-2012-0001 (current status “open”); 
The four recommendations to LOT are registered as a SR to LOT with SRIS number 
PL.SIA-2012-0003 (current status “closed”);  
The recommendation to the Management of Warsaw Chopin Airport is registered as one 
SR to Aerodrome operator (Warsaw Chopin Airport) with SRIS number PL.SIA-2012-
0004 (current status “open”). 

All Recommendations are dated 8 June 2012.  

Assistance to victims and their families 
According to Mr. Lipiec, assistance to victims and relatives is not an issue because the final 
report has not been published for this case. During the investigation no inquiries for information 
has been made. Everybody is waiting for the final report to be released.  

References 
1.  Preliminary Report (rev. 1). SCAAI-1400/2011-EPWA-SP-LPC (rev.1). 30/11/2011. In Polish 

and English; 

2.  Interim Statement of the State Commission on Aircraft Accident Investigation on 

investigation into air accident No 1400/2011. Dated 31/10/2012 in Polish and English; 
3.  Second Interim Statement of the State Commission on Aircraft Accident Investigation on 
investigation into air accident No 1400/2011. Dated 31/10/2013 in Polish and English; 
4.  Budzowska & Fiutowski and Partners website News. “The US Court Litigation Involving 

Captain Wrona’s Landing Has Finished!” URL: http://en.bfp.biz/compensations//us-court-
litigation-involving-captain-wrona-landing-has-finished (19 April 2015). 

Case 2: Pilatus PC-6 at Gelbressée (Belgium) on 19 October 2013 

The information for this case study was collected during an interview at the AAIU in Brussels on 
3 May 2017. Interviewees were Luc Blendeman, Henri Metillon and Sam Laureys.  

Summary of the accident 
The aeroplane was used for the dropping of parachutists from the parachute club of Namur1. It 
was the 15th flight of the day. The aeroplane took off from the Namur/Suarlée (EBNM) airfield 
at around 13:25 with 10 parachutists on board. After 10 minutes of flight, when the aeroplane 
reached FL50, a witness noticed the aeroplane in a level flight, at a lower altitude than normal. 
He returned to his occupation. Shortly after he heard the sound he believed to be a propeller 
angle change and turned to look for the aeroplane. The witness indicated that he saw the 
aeroplane diving followed by a steep climb (major pitch up, above 45°), followed by the 
breaking of the wing. Subsequently, the aeroplane went into a spin. Another witness standing 
closer to the aircraft reported seeing the aeroplane flying in level flight with the wings going up 
and down several times and hearing, at the same time an engine and propeller sound variation 
before seeing the aeroplane disappearing from his view. The aeroplane crashed in a field in the 
territory of Gelbressée, killing all occupants. The aeroplane caught fire. A big part of the left 
wing and elements thereof were found at 2 km from the main wreckage. 

The cause of the accident is a structural failure of the left wing due to a significant negative g 
aerodynamic overload, leading to an uncontrollable aeroplane and subsequent crash. The most 

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probable cause of the wing failure is the result of a manoeuvre intended by the pilot, not 
properly conducted and ending with an involuntary negative g manoeuvre, exceeding the 
operating limitations of the aeroplane. 

The accident was the largest aircraft accident, in terms of the number of fatalities, in Belgium 
since 1971. As a result, the accident received much attention in the press. The crash site was 
visited by Prime Minister Elio di Rupo and king Philippe while the on-site investigation was still 
on-going.  

Investigation capability 
The safety investigation was conducted by the Air Accident Investigation Unit (Belgium). This is 
a functionally independent section of the Federal Public Service Mobility and Transport. The 
AAIB(Be) consists of 3 investigators and one support staff member. Additional investigation 
capability is routinely arranged if specialist knowledge or equipment is needed. A protocol is 
signed with Belgian Defence for providing support. 

After the onsite investigation, the wreckage was transported to the facility of the Belgian 
Defence Air Safety Directorate (ASD), at EBBE for further examination. Experts from the Belgian 
Defence Air Component and from the Belgian CAA also helped the AAIU(Be) investigators to 
carefully examine the wreckage. The Belgian Royal Military Academy was contracted to conduct 
a fractographical analysis of components of the crashed aircraft.  

A specialist from BEA (France) was asked, via ENCASIA, for assistance in fracture analysis of 
structural components. His experience was relevant as he had participated in the investigation 
of a Pilatus PC-6 accident in France involving a structural failure.  

Coordination between safety investigation and other proceedings 
Before this accident, there had not been any difficulties in the coordination between safety and 
judicial investigations. When Regulation (EU) No 996/2010 was introduced, the AAIU took some 
effort to come to an agreement with the judicial authorities on coordination of the 
investigations, without remarkable success. When the accident occurred, the AAIU as well as 
the judicial authorities (examining judge requested by the Senior Crown prosecutor of Namur) 
started an investigation. During the course of the investigation of this accident however, it 
became clear that the coordination between the two investigations required improvement. 
Approximately six months after the accident, a meeting with relatives of victims was organised 
to inform them on the status of the investigation. The meeting was hosted by the judicial 
authority of Namur. This meeting, as relayed by the press, gave the impression the AAIU 
investigation was used by the judicial authorities for their own purpose, and this perception was 
also shared to some extend for a while by the examining judge. One year after the accident the 
AAIU was planning to publish an interim report on the status of the investigation (as is required 
by Regulation (EU) No 996/2010 and ICAO Annex 13). A draft version was also sent to the 
judicial authorities who then expressed their reservations on the publication of the interim 
report as it contained factual information, which according to the judicial authorities could not 
be published as long as the judicial investigation was on-going. The AAIU adapted the interim 
report by limiting it to the strict minimum in accordance with Regulation (EU) No 996/2010, 
giving information on the investigation without providing any factual information. At the same 
time, AAIU continued to develop advance arrangements for the coordination of safety and 
judicial investigations. The text of other European arrangements (French, among others) was 
used as a model. This advance arrangement was instrumental in solving the issues on roles and 
responsibilities that surfaced during the investigation. Publication of the final safety 
investigation report published by the AAIU happened without friction with the judicial 
authorities.  

Role of EASA in the investigation 
The accident investigation team was supported by EASA. Difficulties regarding the role of EASA 
were not encountered.  

Implementation of safety recommendations 
The final safety investigation report contains 11 recommendations, including a recommendation 
to the Belgian Civil Aviation Authority that had already been issued on 2 January 2014 (i.e. less 
than 3 months after the accident) and to which the BCAA had reacted positively in a response 
letter dated 1 April 2014. Of the remaining 10 recommendations, four are addressed at EASA, 
three are addressed at Pilatus and three are addressed at the BCAA. Of one recommendation 
addressed at Pilatus it is indicated in the safety investigation report that it already had been 

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implemented and therefore the recommendation is considered closed. 

The AAIU archives responses by the addresses and also enters this information in the European 
Central Repository for Safety Recommendations in aviation (SRIS). The user interface of SRIS is 
not considered user friendly.  

Status of the recommendations: 

  2014-P-2 (BCAA): 
  BE-2015-0001 (EASA):  
  BE-2015-0002 (EASA):  
  BE-2015-0003 (EASA):  
  BE-2015-0004 (EASA):  
  BE-2015-0005 (Pilatus): 
  BE-2015-0006 (BCAA): 
  BE-2015-0007 (Pilatus): 
  BE-2015-0008 (BCAA): 
  BE-2015-0009 (BCAA): 
  BE-2015-00010 (Pilatus): 

closed 
open 
open 
open 
open 
closed 
closed 
closed 
closed 
closed 
closed 

The recommendations to EASA are identified as Safety recommendations of Union-wide 
relevance SRUR).  

Assistance to victims and their families 
Due to the relatively high number of fatalities, this accident received substantial media 
attention. Approximately six months after the accident a meeting with relatives of victims was 
organised to inform them on the status of the investigation. The AAIU perceived a need for such 
a meeting from articles that appeared in the media. When the final report was completed, AAIU 
sought to send a copy, prior to the official publication, to relatives of the victims. As the judicial 
authority was the only organisation maintaining a list of addresses of victim’s relatives, AAIU 
could not perform this task directly, causing some delays in the publication of the report; AAIU 
eventually sent copies to the judicial authorities who subsequently sent the reports to the 
relatives.  

Case 3: Airbus A320 at Prads-Haute-Bléone (France) on 24 March 2015 

The information for this case study was collected during two separate interviews with the 
Bureau d’Enquêtes et d’Analyses pour la sécurité de l’aviation civile (BEA) and Lufthansa, 
respectively. These interviews were complemented with desk research and follow-up calls as 
needed. Interviewees were Olivier Ferrante and Arnaud Desjardin (BEA), and Oliver Hussi 
(Lufthansa). 

Summary of the accident 
On 24 March 2015, the Airbus A320-211 registered D-AIPX operated by Germanwings was 
programmed to undertake scheduled flight 4U9525 between Barcelona El Prat airport (Spain) 
and Düsseldorf Airport (Germany). The aeroplane took-off from the Barcelona airport at 9 h 00 
with six crewmembers (2 flight crew and 4 cabin crew) and 144 passengers on board.  

  At 9 h 27 min 20, the aeroplane levelled off at a cruise altitude of 38,000 ft (FL380); 
  At 9 h 30 min 00, the Captain read back the air traffic controller’s clearance allowing 

him to fly direct to the IRMAR point. This was the last communication between the flight 
crew and ATC; 

  At 9 h 30 min 08, the Captain told the co-pilot that he was leaving the cockpit and 

asked him to take over radio communications, which the co-pilot acknowledged. Noises 
indicating the opening and closing of the cockpit door were recorded at 9 h 30 min 24; 

  At 9 h 30 min 53 the selected altitude on the FCU changed in one second from 38,000 ft 
to 100 ft, which is the minimum value that is possible to select on an Airbus 320, and 
the autopilot changed to OPEN DES mode and autothrust changed to THR IDLE. The 
aeroplane started to descend and both engines’ speed decreased. Shortly thereafter, the 
selected speed target was increased; 

  At 9 h 33 min 47 the controller asked the flight crew what cruise level they were cleared 
for, with no answer from the co-pilot. The aeroplane was then at an altitude of 30,000 ft 
in descent. There was no answer from the co-pilot. Over the next 7 minutes, there were 
more than 13 attempts to contact the flight crew, including from the controller, the 

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Marseille control centre, an air traffic controller from the French Air Defence system and 
the flight crew of another aeroplane, without any answer; noises similar to knocks, 
escalating to violent blows against the cockpit door were recorded during this time; 
  At 9 h 41 min 06, the CVR recording stopped at the moment of the collision with the 

terrain.41 

The accident was caused by the deliberate and planned action of the co-pilot to commit suicide 
while alone in the cockpit. The co-pilot was inflicted with a mental disorder with psychotic 
symptoms. The process of medical certification of pilots, in particular the process of self-
reporting in case of a decrease in medical fitness between two medical evaluations, did not 
successfully prevent the pilot from exercising the privilege of his license. 42  

Organisation of the investigation 
At around 10 h 15, the Marseille en-route control centre informed the BEA of the accident to an 
Airbus A320, registered D-AIPX that had occurred while overflying the French Alps. In 
accordance with the provisions of Regulation (EU) No 996/2010 of the European Parliament and 
Council of the 20 October 2010 on the investigation and prevention of accidents and incidents in 
civil aviation, a Safety Investigation was immediately initiated by the BEA, and the relevant 
Spanish and German investigation bodies were duly notified.  

The Safety Investigation was organised with three working groups in the following areas: 
aircraft, aeroplane systems and operations. The Accredited Representatives and the technical 
advisers were divided between the three groups. 

With the German and Spanish counterparts, the BEA identified the issues that needed to be 
investigated, namely: medical examination / certification process, and the security of the 
cockpit doors (areas for improvement to allow access). A preliminary report was published on 6 
May 2015 based on the information from the flight recorders and a preliminary review of the 
aeromedical certificates of the flight crew. The investigation went further to employ medical 
specialists (doctors) to try to understand what kind of medical condition the co-pilot had; 
procedures in place regarding selection of pilots; peer-support groups to provide assistance to 
pilots in case of personal, emotional or mental problems. The investigation was completed 
within a year, at which point the final report was released (13 March 2016). The work 
performed by the working groups was included in the Draft Final Report, which was sent for 
consultation in December 2015 to the participants in the investigation. Review and integration 
of the comments received led to the final drafting and publication of the Report on 13 March 
2016.  

Investigation capability 
On the day of the crash, a team of 7 investigators from the BEA travelled as close to the 
accident site as possible by car on the afternoon of 24 March. In coordination with the 
authorities in charge of the judicial investigation, and with helicopter transport provided by the 
Gendarmerie, the air safety investigators were able to access the site the following day. A team 
of 10 BEA investigators was involved in this accident investigation. 

The BEA associated a number of foreign counterparts with the Safety Investigation, which then 
appointed Accredited Representatives, requiring a substantial amount of coordination on-site. 
Foreign counterparts appointed the following Accredited Representatives to the investigation: 

 

 

 
 

the BFU (Germany), the aeroplane being registered in Germany and operated by a 
German airline, which served as technical advisor to the accredited representative (see 
below); 
the CIAIAC (Spain), enabling the IIC to obtain information relating to the aeroplane’s 
stop at Barcelona and data from the Spanish ATC service; 
the AAIB (UK), to obtain information on the aeromedical certification in the UK; 
the NTSB (USA), to obtain information on the aeromedical certification in the USA and 
aerospace medical expertise from AsMA. 

41 BEA, Final Report on the Safety Investigation of the accident on 24 March 2015 at Prads-Haute-Bléone 
(Alpes-de-Haute-Provence, France) to the Airbus A320-211 registered D-AIPX operated by Germanwings, 
published March 2016.  
42 BEA, 2016; EASA, Task Force on Measures Following the Accident of Germanwings Flight 9525 – Final 
Report, 17 July 2015.  

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Because Germanwings GmbH (GWI) is a 100% subsidiary of Lufthansa Group, the accident was 
treated as a Lufthansa accident. The Accident / Incident Investigation Team from Germanwings 
also had / has fewer investigators under its purview than its parent company, so it was 
immediately decided that the Accident / Incident Investigation Team of Lufthansa, together with 
Lufthansa Technik (also a 100% subsidiary of Lufthansa, providing maintenance, repair and 
overhaul (MRO) services for aircraft, engines and components), would be jointly involved in the 
safety investigation. The Lufthansa Accident / Incident Investigation Team served as advisors to 
the accredited representatives to the investigation from BFU.  

The BEA also associated: 

 
 

 

technical advisers from EASA, the DGAC, Snecma (on behalf of CFM) and Airbus; 
experts in medical certification from the Civil Aviation Authorities of Israel, Canada, 
Norway, and Spain as well as from EDF and SNCF; 
other medical experts, including psychiatrists. 

Australia, Israel and Japan appointed experts to follow the Safety Investigation, in accordance 
with standards and recommended practices in ICAO Annex 13, since some of the victims came 
from these countries. 

The BEA / the investigation team more broadly did not experience any shortcomings with 
respect to the amount of investigators available, nor the expertise / level of knowledge. Both 
Germany and France have sufficient resources available – both in terms of the number and 
capabilities of investigators. There was a good understanding and strong coordination between 
the investigators. For example, the BFU in Germany was able to coordinate interviews with 
Lufthansa Aeromedical Centre and gain access to the co-pilot’s medical files.  

Regarding other resources, as mentioned above, the site was located on difficult terrain, which 
meant that it was only accessible within the first 5 days by helicopter. The investigators 
therefore needed to be accompanied by high-mountain specialists of the gendarmerie, who 
provided the helicopters. There was no difficulty or limitation in this respect. 

Coordination between safety investigation and other proceedings 
The French investigatory landscape is constituted by two different types of investigation, which 
involve three different actors: (1) the safety investigation of the BEA; (2) judicial / criminal 
investigation led by prosecutors and assisted by the gendarmerie unit that deals with airline / 
aircraft accidents. The safety investigation and judicial investigation take place in parallel in 
France: They run separately and independently, though they share some factual information, 
e.g. on-site observations and flight recorder data. There were therefore three competing actors 
and it was not immediately clear which type of investigation was required / should take 
precedent, according to foreign counterparts involved in the investigation and there were 
sometimes three competing actors, notably regarding public communication on the progress of 
the investigation. This created some tensions at the beginning of the investigation. According to 
BEA representatives, the main source of tension was the fact that the prosecutor had not been 
exposed to a similar situation before, as it was a brand new office that had just been created in 
Marseille to deal with major collective accidents. As a result, the prosecutor’s office did not 
initially understand the right of the BEA to communicate.  

The CVR was found on the afternoon of 24 March 2015 and transferred under judicial seal the 
following day to the BEA for readout. After reading out the data from the recorders at the BEA, 
it appeared to the BEA that an act of unlawful interference was involved in the accident. In 
accordance with Article 12.2 of Regulation (EU) No 996/2010 and the advance arrangement 
between the French ministry of Justice and the BEA of 16 September 2014, the relevant 
elements gathered during the safety investigation were then communicated to the judicial 
authorities as soon as they became available. On day 2 (following the accident), the safety 
investigation was temporarily put on hold while it was being decided whether the accident would 
only be investigated as a criminal act, or whether a safety investigation would also be 
warranted. The FDR was recovered nine days later; it was sent to the BEA on 2 April under 
judicial seal. Following several discussions between the investigation team and the BEA 
management, it was decided that the safety investigation should proceed as the various parties 
anticipated that relevant safety lessons would be derived. From this point forward, the two 
investigations were conducted in parallel. The FDR was recovered nine days later; it was sent to 
the BEA on 2 April 2015 under judicial seal. 

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On 25 March 2017, a news article was published in The New York Times, which revealed that 
CVR data “indicated one pilot left the cockpit before the plane’s descent and was unable to get 
back”. The article went on to quote an unnamed senior French military official involved in the 
investigation, who revealed the sound of light knocking on the cockpit door, followed by 
pounding as the second pilot attempted to gain entry.43 A French pilots’ Union (Le Syndicat 
National des Pilotes de Ligne, SNPL), filed a lawsuit over the leaked information, taking issue 
with the fact that the information was revealed to the media before it was made known to 
prosecutors. The lawsuit was based on a violation of French law that dictates that information 
concerning ongoing judicial investigations must remain confidential. French law also does not 
require lawsuits to name a party; judicial investigators determine who it can be targeted at.44 
The complaint was dismissed on the grounds that it was not possible to identify the perpetrator 
of the breach of professional secrecy due to the fact that too many individuals had access to the 
CVR data. The SNPL also asserts that the BEA contacted the counterparts at BFU and the French 
Ministry of Transport before contacting the prosecutor or the families, which would go against 
Article 12 of the advance arrangement between the BEA and French prosecutors.45  

Despite early tensions between the various proceedings, there were no problems in terms of 
coordinating the work on the investigation site: the gendarmerie forces controlling the accident 
site to make sure no one damaged the evidence and the gendarmerie unit assisting the 
prosecutor were present. The gendarmerie managed the administrative and logistics aspects to 
make the site accessible to investigators. Although these issues are covered in the advance 
arrangement, the existence of the arrangement itself was not necessarily known by all actors at 
the time. The BEA and the French gendarmerie convened coordination meetings every morning 
and debriefing meetings each night. Then IIC would de-brief the management team.  

A positive outcome of the case is that the visibility of the case itself led the French Ministry of 
Justice (Directorate for Criminal Matters and Pardons) to develop a dispatch, which was 
presented to French prosecutors and courts, communicating the primacy of safety 
investigations. The objective of the dispatch was “to support the implementation of the 
[advance arrangement] agreement, having regard to the impact of the European regulation on 
the different phases of the investigation and the specific ways it affects the investigation 
process.”46 The dispatch was supplemented by practical tools for courts, including a glossary of 
terminology pertinent to Regulation (EU) No 996/2010. The note further explains the content of 
the advance arrangements to judicial authorities and how such authorities should work with the 
BEA in the event of an investigation. As a result, Article 12.3 has had a positive impact, and the 
situation is far clearer than it was before. Article 12.2 also had a positive benefit thanks to the 
inclusion of a dedicated paragraph outlining the requirements related to unlawful interference, 
allowing the safety investigation to continue. The question is whether the regulation in general, 
and the existence of advance arrangements in particular, help when it is unclear which type of 
investigation should be pursued. It was not clear who was in the lead for a few days. The 
benefits / effects of the advance arrangement were therefore not immediately visible or present 
in this particular case.  

After the publication of the BEA report, a separate investigation was opened by the father of the 
co-pilot, Günter Lubitz, and an aviation journalist. The BEA reached out to the father during the 
official investigation with the aim to cross-check the BEA’s data and findings with any potential 
information gathered in the course of their own investigation; however, Mr. Lubitz was unwilling 
to cooperate. The investigator hired by Mr. Lubitz has requested documents and information 
from the BEA, to which the BEA responds that all information pertinent to explaining what 
happened and preventing future accidents is included in the BEA’s Final Report.47 

43 Nicola Clark and Dan Bilefsky, “Germanwings Pilot Was Locked Out of the Cockpit Before Crash in France,” 
The New York Times, 25 March 2015.  
44 Senha Shenkar, “Germanings Crash: Pilots, Upset over hasty conclusions and media leaks, to file lawsuit,” 
IBTimes, 27 March 2015, http://www.ibtimes.com/germanwings-crash-pilots-upset-over-hasty-conclusions-
media-leaks-file-lawsuit-1861486.  
45 Francois Duclos, “Crash de Germanwings: plainte du SNPL contre le BEA”, AirJournal, 5 January 2016, 
http://www.air-journal.fr/2016-01-05-crash-de-germanwings-plainte-du-snpl-contre-le-bea-5156076.html.  
46 French Republic Ministry of Justice, Directorate for Criminal Matters and Pardons, “Presentation of the 
agreement on aviation safety investigations between the Investigation and Analysis Bureau (BEA) for civil 
aviation safety and the Directorate for Criminal Matters and Pardons,” Ref. No: 2014/0098/E13, Paris, 13 
June 2016.  
47 Kate Connolly, “Father of Germanwings pilot accused of killing 150 questions inquiry verdict,” The 
Guardian, 24 March 2017.  

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Role of the CAAs and EASA in safety investigations 
The BEA associated EASA as a technical advisor to the investigation. EASA sent an investigator 
to France by Day 2 and the role of EASA was clear throughout the investigation. EASA was not 
present at the crash site, but rather supported the BEA team by providing information on 
regulatory issues / questions. BEA representatives commended the fact that EASA quickly (at a 
very early stage) issued the requirement to always have 2 pilots in the cockpit. The BEA 
considers the EASA contribution as very effective (Article 8). From the airline point of view, it 
was expected that EASA would have been more involved considering the role of the flight deck 
entrance / flight door. 

The French DGAC did not visit the accident site, but it provided relevant data as needed. The 
BEA also conducted a benchmark of medical certification practices around the world, to which 
DGAC participated. 

A representative of Lufthansa noted that the process for involving airlines as advisors to the 
accredited representatives worked very well from the start of the investigation through to the 
final report. Lufthansa established good contacts and worked closely with the full investigation 
team, particularly with Airbus; Lufthansa was allowed to join the BEA investigators for the FDR 
reading. The extent to which this situation reflects a change or improvement compared to the 
pre-2010 situation, however, is difficult to judge given that Germany did not experience a real 
accident in the last 20 years involving a German air carrier with multiple fatalities (prior to the 
Germanwings case). Nevertheless, the current relationship between accredited representatives 
and advisors is really strong.  

Implementation of safety recommendations 
The final report contained 11 Safety Recommendations (SRs), addressed to the World Health 
Organisation (1), IATA (1), the European Commission (1), EASA (6), BMVI (2) and BÄK (2). The 
SRs relate to: 

  Medical evaluation of pilots with mental health issues: 

-  Recommendation FRAN-2016-011 (EASA). 

  Routine analysis of in-flight incapacitation: 

-  Recommendation FRAN-2016-012 (EASA); 
-  Recommendation FRAN-2016-013 (EASA). 
  Mitigation of the consequences of loss of licence: 
-  Recommendation FRAN-2016-014 (EASA); 
-  Recommendation FRAN-2016-015 (IATA). 
  Anti-depressant medication and flying status: 
-  Recommendation FRAN-2016-016 (EASA). 

  Balance between medical confidentiality and public safety: 

-  Recommendation FRAN-2016-017 (WHO); 
-  Recommendation FRAN-2016-018 (EC); 
-  Recommendation FRAN-2016-019 (BMVI, BÄK); 
-  Recommendation FRAN-2016-020 (BMVI, BÄK). 
Promotion of pilot support programmes: 
-  Recommendation FRAN-2016-021 (EASA). 

 

Two years later, the BEA’s assessment of their follow-up is as follows:  

  EASA has provided generally satisfactory responses. EASA launched a task force that 
was running independently. The conclusions of the BEA final report were rather in line 
with the conclusions of EASAs findings. Theirs went a bit further with regard to random 
drug testing. The BEA did not elaborate on this topic because no related contributing 
factor could be established in the Germanwings accident. However, the safety 
recommendations issued by BEA were accepted by EASA and are generally being 
implemented. EASA has a webpage dedicated to the follow-up of actions taken after the 
Germanwings accident, which outlines what they have done, steps, etc.; 48 

  One SR was issued to the EC regarding the balance between medical confidentiality and 
public safety: The BEA does not consider the answer from the EC to be satisfactory. The 
objective of the SR was to enable medical doctors to breach medical confidentiality 

48 https://www.easa.europa.eu/easa-and-you/aircrew-and-medical/follow-up-germanwings-flight-9525-
accident.  

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when there is a risk to public safety. The Commission’s response did not go as far as the 
SR intended, giving access only to files by aero-medical doctors; 

  Another SR was issued to IATA about the mitigation of consequences of loss of license. 
The BEA considers that the response is only partially adequate, believing that IATA 
could take a more proactive action to encourage the use of loss of license insurance to 
its member airlines; 
The BEA did not receive an answer from the World Health Organisation (WHO), which 
received a similar recommendation as the one to EC, but on a global level. 

 

The process of drafting the safety recommendations functioned well, though interviewees 
consulted for this case study generally indicate that it’s too soon to judge the impact and 
efficacy of the SR’s in this particular case. The SR’s have not yet been fully / completely 
implemented, therefore they have not yielded measurable effects. For example, one of the 
recommendations deals with how doctors treat the confidentiality clause, which is difficult to 
solve within German regulation. This is not a technical recommendation, but rather more 
politically motivated, which takes longer to implement. Safety recommendations that are 
technical in nature are easier to address and to assess. The safety recommendation that was 
directed to the association of airlines (of which Lufthansa is a member) was forwarded to the 
association’s members. Lufthansa already had such a programme in place as was proposed by 
the safety recommendation, however Lufthansa amended the programme following the safety 
recommendation.  

Article 18, which requires entities receiving a safety recommendation to give a reply to the 
issuing SIA (the BEA) and allows the BEA to, in turn, provide a formal response, is considered to 
represent a positive improvement as ICAO Annex 13 does not impose such a requirement.  

In the end, the findings were communicated: to the families of the victims in person (in Bonn 
and Barcelona) and in separate meetings with the families of the pilots and flight crews prior to 
a press conference to the broader public. Later, the BEA also presented the results to the 
Aerospace Medical Association (AsMA), which had been associated to the investigation. This was 
seen to be a good way to promote the lessons learnt of the investigation.  

Assistance to victims and their families 
A national Point Of Contact of the German government, in coordination with Lufthansa, was able 
to put together a list of victims and families. The formal contact in Germany was the BFU. The 
Ministry of Transportation and Digital Infrastructure (BMVI) is the office responsible for dealing 
with victims assistance in Germany. Lufthansa’s internal post-emergency organisation (PEO) 
was in charge of working with BMVI and supporting the victims’ families. The Lufthansa 
investigation team, together with the BMVI team, acted as the liaison between the investigator 
in charge (IIC) of BEA and Lufthansa’s PEO regarding timing for the disclosure of the 
information (Note: the IIC was responsible for deciding the information that could be disclosed). 
Meetings were held between BEA and the families, organised by the PEO before the press 
conference; the PEO organised the flight of victims’ families, translations, making sure special 
assistance teams were present at the press conference. The whole process is said to have 
worked well with the Lufthansa PEO, which received positive comments from the relatives’ 
victims as well.  

There were no major differences in the approach of Germany and Spain, which also has a 
government appointed point of contact as well as a permanent office that deals with victims 
assistance, called Oficina de Asistencia a las Víctimas de Accidentes Aéreos (OAV). The BEA 
experienced some difficulties to obtain access to the list of relatives from Lufthansa, though no 
difficulties were reported in relation to the Spanish counterparts. 

The requirements to interact with families and victims can be difficult in practice given the quick 
timeframe in which information unfolds. Unfortunately, victims’ families still receive most of the 
early information / news from the media, which is simply because the appropriate channels are 
not yet in place. This is mainly an issue in the immediate aftermath of the accident; by the time 
of the final report, these communication channels are well established. The BEA interviewees 
acknowledge the good intentions of the regulation on this matter. 

Case 4: UK Court cases 

Introduction 
This section analyses a number of accident cases. It involves accidents investigated by the Air 

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Accidents Investigation Branch (AAIB) that gave rise to judicial proceedings revealing the 
complex relationship between the safety investigation and other legal proceedings. It involves 
the following accidents: 

1.  An accident near Witchampton, Dorset (UK) on 15 May 2011 involving a vintage DH82A 

Tiger Moth propeller bi-plane; 

2.  An accident at the Royal Air Force Association air show at Shoreham, West Sussex (UK) on 

22 August 2015 involving a Hawker Hunter T7; 

3.  An accident near Gillingham Hall, Norfolk on 13 March 2014 involving an Agusta Westland 

helicopter; 

4.  An accident involving an Augusta A109E (operated by Rotormotion) near Vauxhall Bridge, 

Central London on 16 January 2013.  

The fourth case, namely the Augusta A109E accident on 16 January 2013 near Vauxhall Bridge 
in London was brought to our attention, but, apart from hearings before the Coroner’s Court of 
Southwark, the AAIB investigation was not followed by civil or criminal proceedings yielding 
results for the questions raised in this study. Therefore, this last case has been dismissed. 

For each of the three cases, a summary of the accident is given, followed by the legal 
proceedings and finally the Implications of the case for the application of Regulation (EU) No 
996/2010. At the end of the three cases an overall conclusion is given. 

UK Court Case 1: DH82A Tiger Moth near Witchampton, Dorset (UK) on 15 May 2011 
Summary of the accident 
On 15 May 2011, Mr. Rogers was a passenger in a vintage Tiger Moth propeller bi-plane 
manufactured in 1940 of which Mr. Hoyle was the pilot. In the course of the flight, the aircraft` 
crashed to the ground. Mr Rogers was killed. Mr Hoyle was seriously injured but survived. This 
aircraft was used in general aviation, and was not equipped with CVR and FDR. The relatively 
limited evidence was based on eyewitnesses.  

The AAIB examined the accident. On 14 June 2012, it published its official accident report. The 
report stated, among other things, that the aircraft “was seen by observers on the ground to 
pull into a loop and during the manoeuvre it entered into a spin from which it did not recover. 
The manoeuvre started at 1,500 feet agl (above ground level) and there was insufficient height 
for the pilot to recover from the subsequent spin.” 

Legal proceedings 
Mr Roger’s mother and sister started legal proceedings against Mr Hoyle on behalf of his estate 
and dependants claiming damages in a civil suit against Mr Hoyle and his insurer, Lloyds of 
London. They argued that the accident was caused by Mr Hoyle’s negligence.  

The case was brought to the English High Court were the claimants - the relatives of Mr Rogers 
-put forward that they wanted to access the AAIB report, because it included statements which 
were made in the context of the AAIB investigation which could help them, the claimants, to 
underpin their line of arguments in the civil procedure for claim for damages. The claimants 
stated that: 

  Mr Hoyle had no formal training in aircraft aerobatics; 
 
 

The aircraft was observed pulling into a loop; 
The loop manoeuvre started at around 1,500 feet above ground level in the same 
geographic location as a loop performed by Mr Hoyle with his first passenger in the 
previous flight that day; 

  during the loop manoeuvre the aircraft entered into an unintentional spin; 
  Mr Hoyle did not have sufficient knowledge or training in the correct spin recovery for a 

Tiger Moth; and 
there was insufficient height for Hoyle to recover from the spin.  

 

The Roger’s party’s insurers, namely, Lloyds of London, disagreed with the use of the AAIB 
report in the civil proceedings and found that it had to be excluded as evidence. The High Court 
sided with the Roger’s party, and decided that the published AAIB report should be admitted as 
evidence.  

The English High Court was attacked by the mentioned insurance company before the UK Court 
of Appeals. In the procedure, the insurer was supported by the UK Department of Transport, 

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and the International air Transport association (IATA). They asked the High Court not to accept 
the AAIB report as evidence in the civil proceedings. However, the claimants won on every point 
put forward by them, as a consequence of which the decision of the High Court was confirmed.  

The High Court very much analysed the case from the perspective of the UK Investigation of Air 
Accidents and Incidents Regulations of 1996, henceforth also referred to as: the UK Regulations 
of 1996 which implemented provisions of the Chicago Convention, in particular its Article 26, 
and Standards of ICAO Annex 13, as well as those of Directive 94/56/EC which is the 
predecessor of Relation (EU) No 996/2010. We shall discuss the relationship between the UK 
Regulations of 1996 and Regulation (EU) No 996/2010 in the sections below. 

The Court of Appeal held: 

"I agree with the judge … when he said that a non-lawyer would be astonished that the 
report of the AAIB was not something to which a court could even have regard".  

The Court also decided that: 

"Some measure of the value of AAIB reports is to be found in the fact that, according to 
the evidence of Mr Healy-Pratt, AAIB reports have been routinely referred to and used 
as evidence in English Litigation; their use considerably assists the efficient and speedy 
resolution of claims; and the majority of potential civil claims arising from civil aviation 
accidents settle on the basis of AAIB reports... In practice, many litigants who would 
wish to advance claims in respect of dead or injured passengers would find it either 
impossible or very difficult to assess the relevant information such as cockpit voice/flight 
data recordings, and to finance the gathering of the necessary evidence to mount a 
claim..." 

The English High Court adopted a somewhat pragmatic rather than principal approach towards 
the question of the admissibility of the AAIB report in the civil proceedings. The court found that 
it had a discretionary power to decide on its admissibility, and that it could “see no reasonable 
basis” for the suggestion that aviation people might be deterred from making statements before 
the AAIB in the future as they might be blamed for them, thus foregoing the safety argument.  

This was not the first UK case in which the AAIB report was used in other legal proceedings. 
However, in these other proceedings the parties agreed on its use, which was not the case here. 

The surviving pilot, Mr Hoyle, is now also involved with the on-going criminal investigation into 
the accident, which together with the Coroner’s Inquest and the High Court Case will continue. 

Implications of the case for the application of Regulation (EU) No 996/2010 
The UK Court of Appeal and High Court had to address Standard 5.12 of ICAO Annex 13 dealing 
with the non-disclosure of specified data and records kept in aircraft equipment which has no 
binding force per se as it is not a treaty rule. This standard is carefully implemented in Article 
14 of Regulation (EU) No 996/2010, which has binding force as a provision of primary EU law.  

Annex 13, and, with it, Regulation (EU) No 996/2010 proceeds from the generally applicable 
principle that listed records should not be disclosed in civil or criminal proceedings. General 
aviation accidents are not excluded from that principle which is the reason why these 
judgements have been criticised.  

The High Court stated the following on the relationship between the UK Investigation of Air 
Accidents and Incidents Regulations of 1996, henceforth also referred to as: the UK Regulations 
of 1996, and Regulation (EU) No 996/2010: 

“Regulation (EU) No 996/2010 on the Investigation and Prevention of Accidents and 
Incidents in Civil Aviation ("the EU Regulation") establishes a parallel regime with direct 
effect in Member States. The EU Regulation came into force on 2 December 2010. There 
is a substantial overlap between the EU Regulation and the Regulations. The Regulations 
have not, however, been repealed. It is sufficient to outline the statutory scheme for the 
investigation of air accidents established by the Regulations without also referring to the 
corresponding provisions of the EU Regulation.” 

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Hence, because the UK Regulations of 1996 and Regulation (EU) No 996/2010 largely overlap 
and the first mentioned regulations came into force before Regulation (EU) No 996/2010, the 
High Court proceeded from the UK Regulations of 1996, without mentioning the EU Regulation. 
The court in the next two cases adopted a somewhat more fine-tuned approach towards this 
relationship. 

The High Court did not genuinely analyse the principal question pertaining to the balance, which 
has to be struck between the safety interests involved with an aviation accident and the aim of 
conducting judicial proceedings in accordance with air transport rules and rules pertaining to 
such proceedings as required by ICAO Standards and provisions of Regulation (EU) No 
996/2010. 

UK Court Case 2: Hawker Hunter T7at the Royal Air Force Association air 
show at Shoreham, West Sussex (UK) on 22 August 2015 
Summary of the accident 
On 22 August 2015, a Hawker Hunter T7 G-BXFI aircraft, piloted by Andrew Hill, crashed while 
performing a manoeuvre at the Royal Air Force Association air show at Shoreham, West Sussex. 
The air show took place at Brighton City Airport also known as Shoreham Airport. The aircraft 
was approximately 60 years old. The aircraft struck the westbound carriageway of the highway 
A27. Eleven people were killed as a result. The pilot survived although he was injured.  

On 3 March 2017, the AAIB published the accident report. The report concluded that the aircraft 
was carrying out a manoeuvre involving both a pitching and rolling component, which 
commenced from a height lower than the pilot’s authorised minimum for aerobatics, at an 
airspeed below his stated minimum, and proceeded with less than maximum thrust. This 
resulted in the aircraft achieving a height at the top of the manoeuvre less than the minimum 
required to complete it safely, at a speed that was slower than normal. Although it was possible 
to abort the manoeuvre safely at this point, it appeared the pilot did not recognise that the 
aircraft was too low to complete the downward half of the manoeuvre. An analysis of human 
performance identified several credible explanations for this, including: not reading the 
altimeter due to workload, distraction or visual limitations such as contrast or glare; misreading 
the altimeter due to its presentation of height information; or incorrectly recalling the minimum 
height required at the apex.  

The legal proceedings 
In accordance with ICAO Annex 13 as implemented in the UK Investigation of Air Accidents and 
Incidents Regulations of 1996, henceforth also referred to as: the UK Regulations of 1996, made 
under section 75 of the UK Civil Aviation Act of 1982 the Police of Sussex applied for disclosure 
of specified items before the English and Wales Court, henceforth also referred to as: the Court. 
Seemingly, it was the first time that such an application was made before that Court.  

In arriving at its decision, the court adopted a principal legal approach, departing from the main 
provisions of the Chicago Convention and the Standards of ICAO Annex 13 as implemented in 
the 1996 UK Regulations of 1996. Special attention was paid to the protection given to the non-
disclosure of cockpit voice recordings (CVR) and transcripts from such recordings. The Court 
considered that these CVRs should not be disclosed for purposes other than accident or incident 
investigation unless the appropriate authority for the administration of justice determines that 
“disclosure outweighs the adverse domestic and international impact such action may have on 
that or any future investigations.” The relevant norms of ICAO, UK and EU regulations were 
extensively quoted in the judgment drawn up by the judgement of the High Court of England 
and Wales. 

Also, the Court referred to three other cases in which disclosure of CVRs was sought, namely, 
cases which were decided in Australia, New Zealand and Canada. The High Court of England and 
Wales opined however that none of these cases were helpful in the current proceedings because 
the facts of the domestic provisions were different from those, which were related to the 
present case. 

The Court identified three categories of materials requested for disclosure by the police, to wit: 

1.  The statements made by the pilot, Mr Hill; 
2.  The film footage of the flight which was made by cameras which had been installed on the 

aeroplane in question on a voluntary basis; 

3.  Materials,  which  have  been  produced  by  various  other  people  after  the  accident,  for 

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instance, experiments and tests conducted on various aspects of the accident. 

The materials of these three categories were assembled by the AAIB and kept in its report. 

The Court refused the request for disclosure of the first category, as compliance with the 
request made by the Police would contravene the international, European and domestic 
regulations referred to above. Factors pertaining to fairness and the protection of personal 
privacy also mitigate against disclosure. Finally, and pragmatically, nothing prevents the policy 
from interviewing the pilot. 

This is different for the second category because the legal provisions referred to above are not 
designed to protect those materials from disclosure. The Court stressed that there is no legal 
duty to produce these materials, which sets them apart from the CVRs. 

Thirdly, the experiments and tests mentioned under the third category were also refused to be 
transmitted to the police for reasons, which have been explained in the confidential annex to 
the judgment of the Court. 

Implications of the case for the application of Regulation (EU) No 996/2010 
To begin with, the Court analysed the relationship between the UK Regulations – on accident 
and incident investigation – of 1996 and Regulation (EU) No 996/2010. It argued that the 
provisions of this regulation have “generally become part of the domestic law of Member States 
even without the need for national implementing regulations.” However, the Court also stated 
that that does not mean that every provision of every EU Regulation is sufficiently precise to 
have direct effect.  

It is therefore not unusual for EU Regulations to be given effect in national law by specific 
implementing legislation. It continued by holding that: 

“it is also not unusual for a later EU measure to be given effect in domestic law by earlier 
legislation: this may well happen where a Member State takes the view that is own domestic 
law already complies with the requirements of EU law.” 

The UK which had implemented and specified some of the Standards of ICAO Annex 13 in 
domestic law whereas the UK Regulations of 1996 preceded the provisions of Regulation (EU) 
No 996/2010. 

From a methodological point of view, it would seem that that High Court of England and Wales 
adopted a more principal than a pragmatic line of reasoning than the court applied in the Rogers 
vs Hoyle case explained in the previous accident case (UK Court Case 1). The Court of England 
and Wales prudently weighed the legal arguments and conducted a careful balancing check, 
which this led to a result, which is in line with the Standards of ICAO Annex 13, domestic law 
and Regulation (EU) No 996/2010.  

UK Court Case 3: Agusta Westland helicopter near Gillingham Hall, Norfolk on 
13 March 2014 
Summary of the accident 
On 13 March 2014, an Agusta Westland helicopter departed from a private site with little 
cultural lighting at night and in fog. Although the commander had briefed a vertical departure, 
the helicopter pitched progressively nose-down until impacting the ground near Gillingham Hall, 
Norfolk. The four occupants were fatally injured. 

On 8 October 2015, a report into this accident was produced by the AAIB. According to the 
report evidence suggests that the flight crew may have been subject to somatogravic illusion 
caused by the helicopter’s flight path and the lack of external visual cues.  

The absence of procedures for two pilot operation, the pilots’ lack of formal training in such 
procedures, and the limited use of the automatic flight control system, may have contributed to 
the accident. 

Also, inquests into the deaths were heard before the Coroner and a jury between 12 and 15 
January 2016.  

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The legal proceedings 
In the period leading up to the inquests the Coroner ordered the AAIB and its Chief Inspector to 
disclosure to her of a cockpit voice and flight data recorder (“CVFDR”) and/or a full transcript of 
that voice recording. The first notice requiring disclosure was dated 24 December 2015. Further 
notices were issued on 11, 12 and 13 January 2016.  

The AAIB submitted that the Coroner did not have the power to make such orders and invited 
the Coroner to revoke them. The Coroner rejected those submissions in rulings dated 7 January 
2016, 11 January 2016 and 12 January 2016, and fined the Chief Inspector £100 for non-
compliance with these notices and the fines imposed on the Chief Inspector. 

The orders from the Coroner and the related fines for non-compliance with these orders are the 
subject of the legal proceedings before, again, the High Court of England and Wales between 
the claimant, that is, The Queen, on the application of the Secretary of State, and Her Majesty’s 
Senior Coroner for Norfolk as defendant, with the British Pilots Association as intervener. The 
Lord Chief Justice is the same person as the judge who decided the case explained in the 
previous section, and he did so on the same day, that is, on 28 September 2016. 

The combination of these circumstances led to the adoption of a line of reasoning which is the 
same as the one, which was applied, in the previous case (3). The Court proceeded from the 
Chicago Convention, and then examined ICAO Standards laid down in Annex 13, including their 
implementation in the UK Regulations on accident and incident investigation of 1996, as related 
to Regulation (EU) No 996/2010. 

The Claimant found that it was entitled to require documents on the cause of the accident, such 
as the CVFDR, in light of the UK Act of 2009 on the position of the Coroner. The Court did not 
follow that line of reasoning as it held that the law regulating that question, that is, the 
obligation or lack thereof to transmit these materials to the Coroner is laid down in specific 
regulations, namely, the Regulations on accident and incident investigation of 1996, and 
Regulation (EU) No 996/2010. Those specific regulations override the UK Act of 2009.  

That said, the Court acknowledged that under certain circumstances, that is, when disclosure is 
balanced against different public interests mentioned in, among others, Article 14(3) of EU 
Regulation 2010, such disclosure can be ordered by the High Court, and by the High Court only.  

Implications of the case for the application of Regulation (EU) No 996/2010 
The High Court of England and Wales analysed securely Regulation (EU) No 996/2010, and its 
relationship with the facts of the case and UK law, including the UK accidents and incident Act of 
1996, and general UK procedural law. It arrived at the conclusion that disclosure of confidential 
materials gathered by the AAIB may be sanctioned by an order of the High Court. 

The Court also argued that the EU regulation had to be recognised as a special law, which has 
precedence over general procedural law of the UK. Moreover, it was said that the special 
investigation conducted by the AAIB should not duplicate other investigations. In this case, the 
coroner should “treat the findings and conclusion of the report” of the AAIB “as the evidence as 
to the cause of the accident.”  

Finally, one of the judges advised the coroner to reconsider the Memorandum of Understanding 
(MoU) with the AAIB in the light of this judgment, also for guidance in the future when a new 
MoU may govern their relationship. This last remark pertains to advance arrangements.  

Overall conclusions 
Knowingly, case law plays a prominent role in judicial proceedings in the UK. A court in the UK 
looks to past precedential decisions of relevant courts, and synthesizes the principles of those 
past cases as applicable to the current facts. For example, in England, the High Court and the 
Court of Appeal are each bound by their own previous decisions, which is different from civil law 
jurisdictions. From that general point of view, the above decision shed a light on future cases. 

The first case (Rogers v Hoyle) concerned the question whether a final report drawn up by the 
AAIB may be used as evidence in – in this case – civil proceedings, given that the report was 
not made for that purpose as stated in Article 16 of Regulation (EU) No 996/2010. The test was 
therefore on admissibility and not on the disclosure of information. The regulation does not 

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prevent the final report from being used in other proceedings. 

That said, Regulation (EU) No 996/2010 was relevant in the second and the third case as they 
pertained to specific materials that are protected from disclosure under Article 14 of Regulation 
(EU) No 996/2010. Only the film footage of the flight which was made by cameras which had 
been installed on the aeroplane in question on a voluntary basis was disclosed because it was 
not regarded as sensitive safety information as protected under Article 14. 

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ANNEX 5 DETAILED ANALYSIS 

This annex contains the detailed analysis for the evaluation questions. For each evaluation 
question, first the question is stated. Next, the associated results of the desk research, of the 
field research (interviews, survey and workshop), and of the case studies are given. Finally, an 
answer to the evaluation question is given. This answer is exact the same text as provided in 
Chapter 4.  

A5.1 Evaluation question 1 

Evaluation question 1: 
To what extent are the measures required by the Regulation still relevant and 
appropriate to the initial needs?  

Results from Desk Research 
The regulation was aimed at resolving the problems listed in Chapter 3 through a combination 
of co-regulation and voluntary cooperation measures. In particular, the co-regulation measures 
foresaw the establishment of permanent, independent SIAs in every Member State capable of 
conducting a full safety investigation, either on its own or through agreements with other safety 
investigation authorities (Article 4). Independence is defined and addressed in Evaluation 
question 2.1.2. Regarding coordination of the accident investigation proceedings with other 
(namely judicial, civil aviation or search and rescue) proceedings at national level, the 
regulation introduced the requirement to establish advance arrangements (Article 12(3)). 

The investigating capacity of the Member States, particularly the smaller ones, was to be 
reinforced through voluntary cooperation with the establishment of a formal European Network 
of Civil Aviation Safety Investigation Authorities (ENCASIA Network), supported by an annual 
grant and based on existing informal cooperation and resources of the Member States, for 
sharing of resources, coordinating of training and to facilitate closer cooperation and exchange 
of data.  

Regarding the implementation of safety recommendations, the regulation introduced the 
requirement of mandatory replies to every safety recommendation (Article 18) and established 
a European database of safety recommendations (Article 18). The rights of victims and their 
relatives were to be better protected through the obligation for airlines to have a list of 
passengers quickly available following an accident (Article 20), and the obligation for Member 
States to have plans of emergency assistance at the national level (Article 21).  

Finally, on the need to clarify the roles of EASA and the national civil aviation authorities in the 
process of accident investigations, provisions were included to ensure that EASA, as an 
authority responsible for aircraft certification, and CAAs, as frequent addressee of safety 
recommendations, would have access to information from accident investigations in order to 
take safety actions if needed (Article 8). Provided that there is no conflict of interest, SIAs may 
invite EASA and/or CAAs to participate in the investigation as an advisor to the IIC. In these 
cases, the regulation clarifies that the advisors are entitled to some rights within the 
investigation, including visitation to the accident site and participation in follow-up investigation 
work.  

The full list of measures required by Regulation (EU) No 996/2010 is mapped against the initial 
needs that were to be addressed by the regulation in Table A.1. The results of this mapping 
exercise show that each of the 5 needs were addressed by a combination of multiple 
mechanisms introduced by the regulation, whereas the “obligation to investigate” and the 
“obligation to notify accidents and serious incidents” did not ostensibly address any of the 5 
needs. The inclusion of the latter two provisions nevertheless is important to ensure consistency 
with ICAO Annex 13.  

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Table A.1: Mapping of Regulation (EU) No 996/2010 measures to initial needs 

Mechanisms introduced by Regulation (EU) No 

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10 

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15 

16 

17 

18 

Obligation to investigate 

Cooperation between safety investigation authorities 

European Network of Civil Aviation Safety Investigation 

Authorities 

Participation of EASA and national CAAs in safety 

investigations 

Obligation to notify accidents and serious incidents 

X 

X 

X 

X 

X 

X 

Participation of the Member States in safety investigations 

X 

X 

X 

X 

X 

Status of the safety investigators 

Coordination of investigations 

Preservation of evidence 

Protection of sensitive safety information 

Communication of information 

Investigation report 

Safety recommendations 

Follow-up to safety recommendations and safety 

recommendations database 

Occurrence reporting 

Information on persons and dangerous goods on board 

Assistance to the victims of air accidents and their relatives 

X 

X 

X 

X 

X 

X 

X 

X 

Results from Field Research 
Relevance of initial needs 
Respondents to the targeted survey were requested to indicate their view as to whether the 
abovementioned problems are still present today (strongly agree that the problems are still 
present to strongly disagree that the problems are still present). Figure A.1 shows the 
distribution of views concerning the continued relevance of the 5 identified problems.  

Overall, the most frequently cited problem that is still considered to be relevant today is 
‘tensions between safety investigations and other proceedings’, indicated by 46% of 
respondents (i.e. responses ‘somewhat agree’ or ‘strongly agree’). This is followed by ‘lack of 
high quality investigation capability’ (43%) and ‘lack of clarity in the role of CAAs and EASA’ 
(42%). By way of contrast, respondents offer a relatively positive assessment of the situation 
concerning assistance to victims, with just over a third indicating that the problem is still 
relevant, while 40% disagree. It should be noted, however, that the results for ‘assistance to 
victims’ should be treated with caution as one-third of respondents did not provide an answer 
on this issue. Respondents are most neutral on the question of safety recommendations (30%). 

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Figure A.1: Continued relevance of 5 main problems today (N=49) 

Categorising respondents according to stakeholder group, 13 of 25 SIAs state that the problem 
of lack of clarity in the roles of EASA and CAAs is no longer relevant today due to the regulation. 
10 of the 25 SIA respondents state that the lack of investigation capabilities at national level 
and the tensions between safety investigations and other proceedings are still a problem today.  

Comments accompanying these responses were as follows: 

  Regarding investigation capacity, there are some Member States that do not have 

sufficient capacity – in terms of personnel (staff and expertise) and equipment – to 
conduct high quality investigations into major accidents or incidents. This is particularly 
observed among smaller Member States. However, in Member States that do have 
sufficient capacity, the standard of quality is considered to be high. One SIA 
representing a small State suggests that the staff criteria of SIAs should be defined 
more specifically in the regulation (Article 4, item 6(c)); 

  One SIA observed an increasing focus on apportioning blame and liability among the 

wider public. Because SIAs have access to some vital information sources (e.g. CVRs), 
and because SIAs conduct an investigation into most accidents, this respondent states 
that SIAs increasingly face pressures to apportion blame and liability despite existing 
provisions in the regulation intended to mitigate this risk. Depending on local conditions 
and the specificities of a particular accident, politicians, justice administrations and other 
actors want either to interfere or to use the results of an investigation for purposes 
outside the safety investigation itself; 

  On the issue of EASA and CAA participation, it is suggested that Article 8 should instead 

 

read “CAA and/or EASA” to nominate a contact person; 
Finally, despite improvements to the implementation of safety recommendations, 
several SIAs also note that responses are not always adequate. One SIA indicated that 
the monitoring of safety actions is inconsistent across Member States and is generally 
not aligned with ICAO Annex 13. Furthermore, the requirement applies only to European 
States.  

9 of 19 aviation community respondents indicate that investigation capacities of Member States’ 
SIAs remain insufficient. The primary concern among aviation community respondents, 
however, is the continued tensions between safety investigations and other proceedings (10 of 
19 respondents). On both issues, respondents represent a mix of ANSPs, manufacturers, 
airlines and air traffic controllers.  

Comments accompanying the responses provided by aviation community representatives are 
summarised as follows:  

Discrepancies remain between States’ SIAs, both in terms of investigation capacity and the 
degree of independence of safety investigations from other proceedings. According to one 
representative of airline organisations, the capabilities of individual investigation bodies are 
mostly shaped by the resources available to them and the extent of their aviation activities. 

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Nevertheless, the various cooperation activities between States, particularly in the framework of 
ENCASIA, appear to have had some mitigating effect. By contrast, one airline argues that even 
the most aeronautically advanced countries (e.g. France) have insufficient investigative 
capacity, acting in most cases merely as a 'paper pusher' of documents produced by 
manufacturing industry entities, which also have their own commercial interest. 

Despite Article 12, proper coordination between legal investigations and safety investigations 
has not been achieved in all Member States. On high profile cases, there is still a “competition” 
between the judicial and safety investigations. The existence of parallel investigations (judicial 
and safety) also is said to coerce and interfere with the aviation investigation bodies in some 
States. One airline suggests that regulation in this area should be further developed, for 
instance, requiring that judicial investigations be based on the outcome of the safety 
investigation (i.e. root cause findings and identification of responsibilities), rather than running 
in parallel. In addition, mixed messages sent through the media have the effect of undermining 
Just Culture and the protection and use of safety information for strictly safety purposes. This is 
particularly concerning given tendency towards criminalizing accidents.  

The roles of EASA and CAAs are generally considered to be clear to aviation community 
stakeholders, though there is some recognition that the clarity of CAAs’ role may vary 
depending on the State. The involvement of EASA is positive considering the European Aviation 
Safety Plan and the rulemaking programme, however some stakeholders suggest that EASA’s 
involvement remains relatively low in practice. 

Regarding safety recommendations, several aviation community stakeholders indicate that 
implementation remains too slow and that the recommendations (and the investigations 
themselves) tend to focus on micro problems rather than the more important systemic issues. 
As one representative of air traffic controllers noted, it is “still easier to allocate training than 
questioning the entire system and the economic dispositions.” Similarly, airlines and operators 
highlight the fact that many recommendations tend to propose regulatory measures and 
requirements related to new systems and tools on board the aircraft. The airline representative 
goes on to suggest that safety recommendations could better focus on safety promotion tasks, 
as opposed to making additional requirements.  

Finally, aviation community stakeholders indicate that some items related to assisting victims 
are not possible to implement in certain circumstances. For example, the requirement to provide 
a passenger manifesto and list of dangerous goods on board within 2 hours of the incident or 
accident occurrence is not always feasible, for instance in the middle of the night when an 
airport is closed, or in the case of manual ticket conciliation at the departure airport (mostly on 
flight outside the EU performed by EU operators). Stakeholders suggest that a more flexible 
provision should be considered based on the size of the airport and the available infrastructure.  

CAA respondents are generally evenly split between agreement, disagreement and neutral 
positions on the continued relevance of the measures. 

Appropriateness of measures to address the identified problems 
Respondents to the survey were requested to indicate whether the measures required by the 
regulation proved appropriate to address the five main problems. Figure A.2 and Figure A.3 
show the distribution of views concerning the appropriateness of the mechanisms to address 
these needs. Comments accompanying these responses are summarised below.  

Across all measures, the majority of stakeholders consider the regulation appropriate to cover 
the initial needs of the accident investigation community / system, with 63% of all respondents 
to the survey indicating that they at least somewhat agree that the regulation covers the 
identified problems. Just 23% of respondents disagree (‘somewhat disagree’ or ‘strongly 
disagree’).  

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Figure A.2: Appropriateness of measures to address the main problems (N=44) 

Regarding the appropriateness of the individual measures introduced by the regulation to 
address the respective problems, the majority of respondents offer a favourable view across all 
measures. Considering only those respondents who answered the question (excluding ‘don’t 
know’ answers), the most appropriate measures identified by respondents are the provisions 
pertaining to cooperation and coordination between SIAs (i.e. Article 6 on ‘Cooperation between 
SIAs’ and Article 7 on ‘ENCASIA’), both indicated favourably by more than 90% of respondents. 
At the other end of the appropriateness spectrum, slightly more than one-third raise concerns 
about the appropriateness of measures on the protection of sensitive safety information (34%) 
and the obligation to follow-up safety recommendations and the establishment of the SRIS 
(38%). Moreover, many SIAs reported to the Commission during its review in 2016 that they do 
not find the Articles 20 and 21 to be appropriate in the regulation. According to the SIAs, these 
provisions are addressed to the level of Member States, whereas the rest of Regulation (EU) No 
996/2010 concerns safety investigations. It could imply that SIAs should produce a list of 
passengers or develop assistance plans.  

Figure A.3: Appropriateness of measures to address the main problems (N=44) 

Article 11 and Article 12 
Beyond comments raising concerns that not all Member States are in conformity to Article 12, 
the following observations were made:  

  Although Article 12(1) states that the investigator-in-charge shall retain custody of flight 
recorders and any physical evidence, the text then goes on to state 'where the judicial 
authority is entitled to seize any evidence...', which one SIA says may create 
uncertainty. Article 12(2) also creates uncertainty when it states that the control of the 
site may have been transferred to the judicial authorities; 

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  One SIA argued that the obligation to inform authorities of a (suspected) unlawful 

interference and the obligation to hand over relevant investigation information should be 
left upon national laws; 

  Regarding Article 11, one SIA notes that in some Member States, the investigators can 

be called upon as a witness or expert in court proceedings.  

Article 14 
With regard to Article 14(3), one SIA argues that, in taking into account the principle of Just 
Culture, the decision on whether or not to disclose specified records should be taken by the SIA. 
Other SIAs also point out the need for clarification of Article 14, particularly in assessing 
whether or not information can be disclosed.  

Article 18 

  According to one SIA, article 18(4) lacks a strict definition as to who is responsible for 

the monitoring of the implementation of the Safety Recommendations implementation; 

  According to one SIA, Article 18(5) lacks a clarification on the obligation for safety 

authorities to record in the central repository all safety recommendations received from 
third countries (for example, whether it includes only safety recommendations 
addressed to the SIA or all safety recommendations).  

Article 20 and 21 
Regarding Article 20, one SIA noted that the registration of the nationality of passengers should 
be included in the guidance material. Regarding Article 21, several SIAs indicate that the roles 
and responsibilities of relevant actors requires further definition, as it is not clear in some 
Member States who should be responsible for coordinating the actions.  

Overall, however, many SIAs reported to the Commission during its review in 2016 that they do 
not find the Articles 20 and 21 to be appropriate in the regulation. According to the SIAs, these 
provisions are addressed at the level of Member States, whereas the rest of the regulation (EU) 
No 996/2010 concerns safety investigations. Moreover, a number of Member States face specific 
difficulties to implement the requirements due to their administrative structures. For instance, in 
countries where administration is structured around regions, the coordination of a single plan at 
national level is uniquely challenging.49 Despite these challenges and objections, the majority 
of Member States consulted in the frame of this study report that they have implemented or are 
in the process of developing a plan (see effectiveness chapter 3.2 for more on this issue).  

A final observation relates to the statement of one survey respondent representing a passenger 
and victims organisation, who indicated being aware of only two plans that have been 
implemented in the EU (from Italy and Spain), despite evidence that suggests more plans have 
indeed been implemented to date.  

Other comments 
Regarding Article 9, reporting obligations are not currently aligned with Regulation (EU) No 
376/2014, a view that was also raised in several interviews with CAAs and aviation community 
representatives. Regarding Article 14, one SIA has been questioned by the police authority, 
judges and insurance companies regarding of using a final report as evidence or give evidence 
to blame somebody. It is also argued that hangars shouldn't be mandatory. Issue can be 
handled other way (rent, from military etc.) (see Article 4). 

The obligation to investigate is considered by one SIA as creating excessive burden / workload, 
and thus suggests to amend the provision to read “authority to investigate”. For instance, in 
general aviation, many accidents occur (many more than in commercial aviation) as a repetition 
of previous scenarios. Therefore, the obligation to investigate those events is felt as a waste of 
energy. On the other hand, one airline representative argues that the obligation to investigate is 
not sufficiently adhered to and that more can be done to ensure investigations are performed. 
According to the respondent, a study conducted by members of the IATA ACTF revealed that a 
large number of accidents over the past 10 years were not properly investigated. Accident 
reports were available for only 300 of the approximately 1,000 accidents that occurred over the 

49 European Commission, SWD(2016) 151 final, Commission Staff Working Document on the 
implementation of Regulation (EU) No 996/2010 on the investigation and prevention of accidents and 
incidents in civil aviation, Brussels, 27 April 2016. 

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decade worldwide. Furthermore, a considerable number of those 300 reports showed 
opportunity for improvement. 

One ATCO representative organisation questions the appropriateness of the regulation from a 
systemic perspective, arguing that the investigations are addressing the wrong issues 
altogether: Almost all investigations are still occupied with finding details that might seem 
important but distract efforts for safety improvement towards more training, new procedures or 
more alertness instead of systemic changes. 

Results from Accident Cases 
In both the Pilatus and Germanwings cases, investigators did not experience any shortcomings 
with respect to the amount of investigators available, expertise needs, nor any other material 
resource requirements. The involved parties were sufficiently equipped with all necessary 
resources. In the LOT case, turnover among the investigation staff at the Polish SCAAI 
contributed to delays in finalising the investigation.  

The regulation’s provisions concerning coordination of the various investigations by means of 
advance arrangements proved relevant to address the underlying needs in both the Pilatus and 
Germanwings cases. At the outset of the Pilatus case, the judicial authorities and the safety 
investigative authorities had not come to an agreement on the coordination of investigations, 
though the issue had not caused problems in the past. By contrast, the advance arrangement 
had already been agreed and adopted in France at the time the accident occurred, though the 
French judicial authority in charge was unaware of its existence. Insufficient coordination and/or 
application of the advance arrangement at the outset of the investigation led to the emergence 
of tensions between the various proceedings. In the UK, an agreement was reached on the 
advance arrangement mid-way through the investigation. In both cases, the full application of 
the States’ respective advance arrangement assuaged prior tensions and enabled the 
investigations to proceed unimpeded.  

A different picture emerges in the UK court case DH82A Tiger Moth near Witchampton, Dorset 
on 15 May 2011. In this case, significant tensions emerged between the safety investigation and 
the civil proceedings on whether the AAIB report could be admitted as evidence in the latter 
proceedings. The High Court admitted the report as evidence.  

The regulation’s provision concerning the participation by EASA and CAAs in safety 
investigations appropriately addressed the initial needs in the Pilatus and Germanwings cases. 
This is evidenced by the absence of any challenges relating to their participation in the cases: 
both EASA and the respective CAA effectively supported the investigation team and no 
difficulties were encountered. EASA did not support the Lot case investigation team.  

In all case studies, the provisions concerning safety recommendations have been relevant for 
clarifying the procedures and ensuring that the involved parties issue a response within given 
timeframes. The extent to which the regulation has improved the implementation of safety 
recommendations is as yet unclear from the accident case studies.  

Finally, the regulation’s provisions concerning victims’ assistance have been appropriate to 
address the respective need insofar as procedures and contacts points were set up in the 
different cases. This is most evident in the Germanwings case, which saw the mobilisation of 
victims assistance and emergency contact points in Germany, Spain and within the BEA. The 
issue was not deemed pertinent in the Lot case. According to the Polish investigation team, no 
inquiries for information were made to the Polish SCAAI.  

Answer to the question 
The Regulation (EU) No 996/2010 sought to address five specific problems and needs identified 
in the impact assessment50, through a combination of co-regulation and voluntary measures. 
The initial needs and corresponding mechanisms (i.e., the inputs and activities corresponding to 
the operational objectives of the regulation) to address them are as follows: 

50http://ec.europa.eu/transport/sites/transport/files/modes/air/safety/doc/2009_regulatory_impact_assesm
ent.pdf. 

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1. Lack of high quality investigation capability at national level 
Compared to the situation in 1994, the investigating capacity of the Member States was 
significantly more disparate in the mid-2000s. Following the enlargements of the EU in 2004 
and 2007, the investigating capacity of Member States was primarily concentrated in a small 
number of States, particularly those with a large aviation manufacturing industry. Related to 
this, there was a growing need for diverse and specialised expertise and resources to 
investigate increasingly complex aircraft and aircraft systems.  

The investigating capacity of Member States, particularly the smaller ones, was to be reinforced 
through voluntary cooperation via the establishment of a formal European Network of Civil 
Aviation Safety Investigation Authorities (ENCASIA Network). This Network is further bolstered 
by an annual grant and based on existing informal cooperation and resources of the Member 
States, for sharing of resources, coordinating of training and to facilitate closer cooperation and 
exchange of data. 

2. Tensions between safety investigations and other proceedings 
Due to the many different legal systems in Europe, there were significant differences in the way 
investigators and judicial authorities cooperated with one another throughout an on-going 
investigation. In this context, there was a need to establish a basic legal framework through 
which authorities from different proceedings should cooperate. Moreover, there was a need for 
clarity in terms of both sides’ access to and sharing of factual information in order to properly 
discharge their duties, while also protecting the information. The Directive of 1994 did not 
address these issues, however ICAO Annex 13 was explicit on them. In this context, it was 
appropriate to transpose into EU legislation relevant ICAO standards concerning protection of 
safety information.  

The co-regulation measures foresaw the establishment of permanent, independent SIAs in 
every Member State capable of conducting a full safety investigation, either on its own or 
through agreements with other safety investigation authorities (Article 4). Independence is 
defined and addressed in Evaluation question 2.1.2. Regarding coordination of the accident 
investigation proceedings with other (namely judicial, civil aviation or search and rescue) 
proceedings at national level, the regulation introduced the requirement to establish advance 
arrangements (Article 12(3)). 

3. Lack of clarity in the role of the CAAs and EASA in safety investigations 
The EU institutional and legal framework underwent significant changes between 1994 and 
2010, particularly concerning the establishment of EASA in 2002. By 2010, safety standards 
were almost exclusively defined at the EU level, and EASA, on behalf of the Member States, 
became responsible for certification of aircraft in the Community. In this context, there was a 
need for a clear framework enabling EASA to support investigations and to take action in 
response to the outcome of investigations.  

Provisions were included to ensure that EASA, as an authority responsible for aircraft 
certification, and those CAAs, as frequent addressee of safety recommendations, would have 
access to information from accident investigations in order to take safety actions if needed 
(Article 8). The regulation clarifies that the advisors are entitled to some rights within the 
investigation, including visitation to the accident site and participation in follow-up investigation 
work. 

4. Weak implementation of safety recommendations 
The lack of any consistent approach across Member States with respect to gathering, processing 
and implementing safety recommendations resulting from accident investigations was 
considered to create an accountability deficit on the implementation side. In addition, there was 
a need to develop a consistent approach for following up safety recommendations of EU-wide 
relevance in light of the increasing number of recommendations that were being addressed to 
EASA as the Community regulator.  

To address this problem, the regulation introduced the requirement of mandatory replies to 
every safety recommendation (Article 18) and established a European database of safety 
recommendations (Article 18). 

5. Insufficient assistance to the victims of air accidents and their families.  
Based on the experience of Spanish authorities in the aftermath of the accident in August 2008 

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involving Spanish airline Spainair at the Madrid Barajas airport, the management of passenger 
manifests and the rapid disclosure of passenger manifests to victims’ families and the general 
public, became a need.  

The rights of victims and their relatives were to be better protected through the obligation for 
airlines to have a list of passengers quickly available following an accident (Article 20), and the 
obligation for Member States to have plans of emergency assistance at the national level 
(Article 21).  

Evidence from desk research, field research and case studies (as elaborated in Annex A5.1) 
show that the combination of co-regulation and voluntary cooperation measures required by the 
regulation are generally still relevant and appropriate to the initial needs that were to be 
addressed by the regulation. While there is some disagreement among stakeholders on the 
continued persistence of the different problems, and equally on the appropriateness of the 
measures to address these challenges, the following conclusions are drawn: 

By building on the previously existing cooperation between safety investigation authorities and 
the investigation resources at national level, ENCASIA has contributed to better identify the 
expertise and resources available in each Member State, as well as gaps and remedial actions to 
address them. Peer reviews, exchange of information and joint training activities play an 
important role with respect to promoting and harmonising best practices across Member States, 
and improving preparedness and response capacities of SIAs in the event of an accident or 
serious incident (see Evaluation questions 2.4.1 and 2.4.2 below). These tools are highly 
appropriate to achieve the legislative objective of ensuring that all 28 Member States’ SIAs are 
capable of conducting high quality, independent investigations.  

The inclusion of clear language in the regulation identifying the roles and responsibilities of the 
different actors involved in process of investigating accidents and incidents in civil aviation is 
highly appropriate and relevant to address the needs related to tensions between safety 
investigations and other proceedings, and to the lack of clarity in the roles of CAAs and EASA. 
Although tensions with judicial proceedings are still prevalent in some Member States, the 
requirement on advance arrangements has in many cases been useful for establishing a 
dialogue and structuring the relations between the various authorities. On the need to clarify 
the roles of EASA and the national CAAs in the process of accident investigations, Article 8 
ensures that EASA, as an authority responsible for aircraft certification, and CAAs, as a frequent 
addressee of safety recommendations, have access to information from accident investigations 
in order to take safety actions if needed. This provision effectively addressed the identified 
problem and is still appropriate today.  

Likewise, the inclusion of clear language outlining procedures and timeframes for responding to 
safety recommendations has helped to address the issue of the weak implementation of safety 
recommendations.  

In reference to Articles 20 and 21, the Regulation states in its preamble that prior “experience 
has shown that reliable lists of persons on board an aircraft are sometimes difficult to obtain in 
a timely manner,” while also recognising the importance of establishing a deadline within which 
an airline can be required to produce such a list. Similarly, the Regulation notes the necessity of 
maintaining lists of dangerous goods on board to minimise risks to safety investigators at the 
site of the occurrence, and that the manner in which an accident and its consequences are dealt 
with vis-à-vis the public, the victims and their relatives is of crucial importance for maintaining 
the public’s confidence in the quality of the civil aviation safety system (Regulation para. 30 – 
32). In this respect, the obligations set out in Articles 20 and 21 directly target the identified 
needs, which are still relevant today.  

The majority of the SIAs, CAAs and aviation community representatives agree with the 
appropriateness of the regulation’s provisions concerning the provision of assistance to victims 
and their families to address this need. However, concerns were raised whether or not this 
regulation is the appropriate place for these provisions. As noted above, Articles 20 and 21 are 
addressed to the level of Member States, whereas the rest of Regulation (EU) No 996/2010 
concerns safety investigations. Therefore, the provisions concerning assistance to victims are 
misinterpreted by some SIAs as an obligation for the SIA to produce a list of passengers or 
develop assistance plans. This interpretation is not correct. Therefore, there is no necessity to 
relocate these provisions to a different regulation. 

As will be shown below, national regulations implementing provisions of the regulation may still 

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differ, despite the harmonisation efforts of the EU. Also, the different legal systems may shed a 
different light on the interpretation of provisions, as to which see Evaluation question 2.1.4 
below. 

A5.2 Evaluation question 1.1 

Evaluation question 1.1 
To what extent are the measures required by the Regulation appropriate to new 
threats to aviation, such as drones and cybersecurity? 

Regarding new or additional problems that could or should be addressed by the regulation, we 
take into account the Future Aviation Safety Team (FAST) list51 and stakeholder feedback52, we 
identify 5 main emergent threats of relevance to Regulation (EU) No 996/2010. These are:  

  Drones; 
  Cyber threats; 
  Social Media; 
  Aircraft complexity; 
  New investigation techniques. 

Results from Desk Research 
Drones 
Regulation (EU) No 996/2010 currently does not extend the obligation to investigate accidents 
or serious incidents involving aircraft specified in Annex II of Regulation (EC) No 216/2008 on 
common rules in the field of civil aviation and establishing a European Aviation Safety Agency 
(hereinafter “Basic Regulation”). Annex II of the Basic Regulation contains “unmanned aircraft 
with an operating mass of no more than 150 kg”. As a result, light drones are not currently 
subject to mandatory investigations in the event that they are involved in an accident or serious 
incident. It is also important to note that light drone operators, including hobbyists, comprise a 
distinct user category from those concerned by aviation rules. The scopes of Regulation (EU) No 
996/2010 and Basic Regulation should remain aligned, particularly if the Basic Regulation is to 
be revised. In the opinion formulated by ENCASIA on this topic, a proposal is made that is 
currently being included in the revision of Basic Regulation. 

Cyber threats 
The application of the regulation to cyber security is complicated from a legal perspective. 
Whereas the safety investigation conducted under the regulation looks at causes, which result 
from the operation of the aircraft, and the behaviour of the crew in relation to that operation, 
cyber security concerns attacks from the outside. Hence, terms like ‘operator of the aircraft’, 
‘person involved’ and even ‘accident’ do not appear to be applicable to cases involving cyber-
attacks, which have so far caused no injuries or fatalities but only operational disruptions. To 
date, international conventions and declarations such as the Dubai Declaration on Cyber 
security in Civil Aviation of 6 April 2017 are instruments that deal with this matter, albeit 
marginally, while EU law or policy has not yet been engaged with it.  

Moreover, and in contrast to issues of public safety, the EU has limited competence to act on 
security threats. Therefore, if defined as a matter of security concern, the responsibility to 
investigate will fall outside the scope of the safety investigation. A key issue in this respect is 
that SIAs must have the capacity and expertise to investigate whether or not an accident or 
serious incident has been caused by a cyber-attack. This requirement is implicitly covered by 
Article 4.e, which obligates Member States’ SIAs to have at their disposal “qualified 
personnel…to enable the examination” into the causes of the accident or serious incident. This 
can be achieved either directly, by means of cooperation with another States’ SIA subject to 
mutual agreement, or by means of an advance arrangement with other national authorities or 
entities, such as national cyber security organisations (CERTS). In practice, however, SIAs do 
not have sufficient cyber-related expertise available (see below).  

51 The Future Aviation Safety Team (FAST) is an international and independent group of aviation experts 
that has actively maintained a list of future changes to aviation and associated hazards since 2000. This list 
is publicly available on a website hosted by the Netherlands Aerospace Centre NLR (http://www.nlr-
atsi.nl/fast/aoc/). 
52 Based on interview consultations and survey responses. 

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Social media 
Accidents or serious incidents involving passenger or cargo aircraft increasingly attract 
substantial media and public interest, particularly in the event of large numbers of fatalities and 
well-known airline operators. The proliferation of social media channels since 2010, in 
combination with the exponential growth in smartphone use, creates a unique challenge for air 
safety investigators today that did not exist in 2010. In particular, the pervasiveness and speed 
of social media means that news of an accident or major incident can be disseminated with 
rapid speed to a wide global audience via social media channels (Twitter, Facebook, etc.), 
including photos, commentary and streaming video in real time, even before the involved 
companies are made fully aware of what has happened53. Related to this is the pressure to 
provide information to the news media and journalists as soon as possible. On both counts, the 
risk is not necessarily to aviation safety, but rather to the ability of the investigators to carry out 
their duty without interference of outside media forces. In this context, the problem is one of 
proper framing, which can be supported through the establishment of guidelines and principles 
for dealing effectively and appropriately with the challenges of rising public exposure, and 
therefore, pressures. Currently, ENCASIA is developing guidance and a kind of coaching network 
on dealing with media pressure. This has not yet been fully implemented. 

New investigation techniques and aircraft complexity 
In general, as aircraft and engines become more complex there is a need to ensure that SIA 
inspectors and technical advisors are capable of working with industry effectively. However, as 
both SIAs and aviation community stakeholders noted in their responses to the survey (see 
below), the investigation bodies should be able to keep up with the technological developments, 
new complexities and actors in the aviation system without a specific modification to the 
regulation. Such issues can for example be addressed by developing common operational 
practices and procedures. But, the decision to use a particular investigation technique is a 
decision of the individual SIA.  

Results from Field Research 
Stakeholders surveyed and interviewed were requested to indicate whether there are new or 
additional problems and/or needs that could or should be addressed by the regulation. Figure 
A.4 shows the distribution of views among the survey respondents. Comments accompanying 
these replies, as well as observations from interviews are summarised below.  

Figure A.4: Appropriateness of measures to address new problems (N=50) 

The majority of stakeholders consulted (interviews and survey respondents) hold the view that 
the scopes of Regulation (EU) No 996/2010 and Basic Regulation should remain aligned. 72% of 
the respondents surveyed (36 of 50) agree that drones could or should be addressed by an 
amended Regulation (EU) No 996/2010, while a further 12% (6) were not confident to make a 
conclusion (‘don’t know’ answers). At the same time, given that SIAs’ resources are limited, any 
amendment should not result in overstretching the SIAs’ resources. For example, one SIA 
suggests that the obligation to investigate drone incidents should be limited to incidents or 

53 http://www.iata.org/publications/Documents/crisis-communications-guidelines.pdf.  

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accidents that result in fatalities or serious injury, or where the safety of the aviation system is 
compromised.  

Regarding cyber security, there is a general agreement among stakeholders interviewed that 
cyber-attacks pose a real threat to aviation safety and security, however there is no real 
consensus on the appropriateness of including cyber threats within the accident investigation 
framework. The main concern raised by stakeholders is that the SIAs are unlikely to have the 
required expertise available in-house to conduct investigations into accidents and serious 
incidents involving cyber-attacks. On this basis, it is possible to conclude that the regulation 
does not currently contain provisions that would ensure SIAs to maintain in-house the required 
expertise to investigate such a threat. Just over one-third of respondents to the survey agree 
that cyber threats are a relevant issue to be addressed under an amended regulation (36%), 
while the remaining two-thirds are evenly split between respondents indicating ‘not relevant to 
the regulation’ and ‘don’t know’.  

Survey respondents are somewhat more split on the question of investigation techniques and 
aircraft complexity, with 46% (23) in support of including provisions to address aircraft 
complexity, and 42% (21) are for new investigation techniques. Respondents represent a mix of 
the different groups on both sides. The central question is whether it is necessary to adopt a 
new regulation and/or amend existing regulations to address each new threat and/or need.  

Challenges associated with social media were not directly addressed in the survey; rather, this 
issue was raised throughout the interview consultations. The risk here is not necessarily to 
aviation safety, but rather to the ability of the investigators to carry out their duty without 
interference of outside media forces. In this context, the problem is one of proper framing, 
which can be supported through the establishment of guidelines and principles for dealing 
effectively and appropriately with the challenges of rising public exposure, and therefore, 
pressures. 

Other potential threats and/or needs identified by stakeholders include: 

Pilots distracted by texting or other electronic devices while flying an aircraft; 
Laser beam influence to aircraft; 

  Human factors (general); 
 
 
  Better use of final reports and lessons learned; 
  Systemic issues and interdependencies. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
Regarding new or additional problems that could or should be addressed by the regulation, we 
take into account the Future Aviation Safety Team (FAST) list54 and stakeholder feedback from 
the interviews and survey. We identify 5 main emergent threats of relevance to Regulation (EU) 
No 996/2010. These are:  

  Drones; 
  Cyber threats; 
  Social Media; 
  Aircraft complexity and new investigation techniques. 

Overall, stakeholders contend that the regulation should not exclude any potential causal factor 
from the potential mandate of air safety investigators. On the other hand, it should not be 
necessary to adopt a new regulation and/or amend existing regulations to address each and 
every new or perceived threat and/or need. Such an approach would create excessive 
regulatory complexity. Many SIAs are relatively small in terms of personnel and other 
resources, and thus face constraints to comply with the regulation as currently formulated. In 
this respect, it would be beneficial for many smaller SIAs if ENCASIA would take a role in 

54 The Future Aviation Safety Team (FAST) is an international and independent group of aviation experts 
that has actively maintained a list of future changes to aviation and associated hazards since 2000. This list 
is publicly available on a website hosted by the Netherlands Aerospace Centre NLR (http://www.nlr-
atsi.nl/fast/aoc/). 

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considering how to address new and emerging threats, and support Member States with fewer 
air safety investigatory resources to implement and comply with new measures. Moreover, 
airline representatives argued that expanding the regulation to cover new fields of activity 
(drones / cyber security) should not fundamentally alter the primary focus of investigation 
bodies, which is the investigation of civil aviation accidents and serious incidents. 

Among the emerging challenges and potential threats identified above, the issue of drones and 
cyber security, respectively, require further reflection. There is a broad consensus among 
stakeholders surveyed and interviewed that the scopes of Regulation (EU) No 996/2010 and the 
Basic Regulation should remain aligned in view of potential amendments to Annex II of the 
latter regulation (see Chapter 3). In light of existing resource constraints at SIAs across the 
Union, an amendment to Regulation (EU) No 996/2010 requiring the investigation of accidents 
and serious incidents involving drones could be limited to those which are certified by EASA; 
when fatalities, serious injuries or commercial air transport operations are involved; or when an 
investigation is expected to lead to lessons for the improvement of future aviation safety.  

On the issue of cyber-attacks, the EU has limited competence to act on security threats. When 
an accident or serious incident is deemed to have been caused such an attack, the responsibility 
to investigate will fall outside the safety investigation. In this context, while the investigation 
into cyber-related attacks is not the competence of SIAs a priori, SIAs must have the capacity 
and expertise to make a determination as to whether a cyber-attack is involved. This 
requirement is implicitly covered by Article 4(6)(e), which obligates SIAs to have qualified 
personnel at their disposal. It is clear from the stakeholder consultations, however, that SIAs do 
not (yet) currently possess the requisite capacity and expertise to investigate cyber security-
related issues, either directly, by means of cooperation agreements of other States’ SIAs or by 
means of advance arrangements with the appropriate cyber security organisations or entities 
(CERTS). SIAs raise concerns over the feasibility of maintaining an ever-expanding set of 
expertise in-house. In this context, SIAs are advised to consider actions that will enable better 
pooling of resources on cyber-related matters, such as through cooperation arrangements with 
other States or on a regional level, or through advance arrangements with the appropriate 
national cyber security entities. 

Regarding the proliferation of social media, the evidence suggests that the risk is not 
necessarily to aviation safety, but rather to the ability of the investigators to carry out their duty 
without interference of outside media forces. In this context, the problem is one of proper 
framing, which can be supported through the establishment of guidelines and principles for 
dealing effectively and appropriately with the challenges of rising public exposure, and 
therefore, pressures. Currently, ENCASIA is developing guidance and a kind of coaching network 
on dealing with media pressure. This has not yet been fully implemented. 

Finally, our legal analysis does not find evidence to support the argument that increasing 
complexity merits a modification to the Regulation. The investigation bodies should be able to 
keep up with the technological developments, new complexities and actors in the aviation 
system without a specific modification to the regulation. Such issues can for example be 
addressed by developing common operational practices and procedures. But, the decision to use 
a particular investigation technique is a decision of the individual SIA.  

A5.3 Evaluation question 2.1.1 

Evaluation question 2.1.1 
To what extent the requirement that all Member States create an independent 
Safety Investigation Authority led to the expeditious holding of unbiased safety 
investigations? 
Results from Desk Research 
According to Article 16.6 of Regulation (EU) No 996/2010, “The safety investigation authority 
shall make public the final report in the shortest possible time and if possible within 12 months 
of the date of the accident or serious incident”. To analyse the timeliness of safety 
investigations, a sample of aircraft accidents was selected from the NLR Air Safety Database by 
applying the following criteria: 

  Occurrence is classified as an accident in the database; 
  Accident date is between 1 January 2010 and 1 April 2016; 
 
  Aircraft involved has a maximum certificated take-off mass of more than 

Location of the accident is in one of the 28 EU Member States; 

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5701 kg. 

For each of the accidents in the sample, it was investigated, using publicly available sources, if a 
final safety investigation report has been released and at what date the safety investigation 
report was published. For some accidents in the sample, the safety investigation authority 
decided not to conduct an investigation55. These cases were removed from the sample. The 
resulting sample included 104 accidents. 

Figure A.5 shows the time (in months) between the occurrence data of the accident and the 
publication date of the final investigation report. The information is presented cumulatively as a 
percentage value. The figure shows that for approximately 40% of the accidents in the study 
sample, the safety investigation report is released within 12 months of the date of the accident, 
while approximately 80% of the safety investigation reports are released within 24 months of 
the date of the accident. About 20% of the accident investigation reports require more than 2 
years for completion. The average duration of the safety investigation is 16.8 months. This is 
similar to the average duration of approximately 18 months of investigations conducted in the 
US by the National Transportation Safety Board (NTSB) of accidents involving FAR Part 121 
(domestic, flag and supplemental) air carriers.56  

Figure A.5: Time (in months) between the occurrence data of the accident and the 
publication date of the final investigation report. The information is presented 
cumulatively as a percentage value 

Results from Field Research 
Interviews 
IATA statistics show that only 30% off all worldwide accidents of the past 10 years were 
investigated. The situation might be more favourable in Europe but a 100% score is not 
realised. The timeliness of reporting is a challenge for SIAs as they cannot control the number 
and the complexity of accidents that must be investigated. Due to staff turnover and shortage 
of staff, safety investigations in some Member States have taken longer to complete or have not 
been conducted at all. Many accidents (mostly General Aviation) that qualified for investigation 
were in fact not investigated. 

55 For instance because it was a relatively minor event such as a collision between a service truck and an 
aircraft parked at the gate resulting in marginal damage. 
56 See RAND (2000). Safety in the skies, personnel and parties in NTSB aviation accident investigation: 
Master volume. Rand Corporation, Institute for Civil Justice. 

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For Member States that lack expertise in certain areas and depend on external experts on those 
topics, there is a risk that the investigation becomes biased. This may not be an intentional 
influence but could be a result of the fact that the external experts are not sufficiently trained to 
‘stand back’ and provide an independent view. Several interviewees mentioned that in some 
investigations there seems to be a strong influence from other parties. However, it was 
recognised that it is very difficult to prove and therefore is unlikely to be mitigated by European 
Commission intervention. 

Survey 
In the survey, respondents were asked to which extent they agreed or disagreed with the claim 
that the safety investigations by the SIAs are unbiased. The distribution of the 46 respondents 
to this question is provided in Figure A.6 below. 

Figure A.6: Unbiased safety investigations by SIAs (N=46) 

48%

26%

12%

12% 2%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Results from Accident Cases 
The final safety investigation report for the LOT accident has, almost 6 years after the accident, 
not yet been published. The long duration of the investigation process was influenced by the 
termination of the contract of 4 of the 5 members of the investigation team of the Polish SIA, 
and hospitalisation of the IIC of several months.  

Answer to the question 
On the “expeditious holding”: According to Article 16(6), the SIA shall make public the final 
report in the shortest possible time and if possible within 12 months of the date of the accident 
or serious incident. This timeliness of reporting is a challenge for SIAs, as they cannot control 
the number and the complexity of accidents that must be investigated. An analysis of a sample 
of 104 accidents involving large aircraft (maximum take-off mass more than 5700 kg) in EU 
Member States between 1 January 2010 and 1 April 2016 shows that for approximately 40% of 
the sample the safety investigation report is realised within 12 months of the date of the 
accident. About 20% of the safety investigation reports required more than 2 years to complete. 
The average duration of an investigation of an accident involving a large aircraft is similar to 
that in the US.  

During the interviews and the survey, staff turnover and limited number of staff were 
mentioned as reasons why the duration of an investigation regularly exceeds the recommended 
12 months. As the investigation capacity of SIAs has altogether remained unchanged since the 
entry into force of the regulation (see Evaluation question 2.2), it is reasonable to conclude that 
Regulation (EU) No 996/2010 has not significantly influenced the length of the investigation 
process.  

On the “unbiased”: A safety investigation is unbiased if the investigation is objective in 
determining the causes of the occurrence being investigated and impartial, i.e. showing no 
prejudice for, or against, a certain person or organisation57 .The majority of the survey 
respondents are of the opinion that investigations are unbiased. Several interviewees mentioned 
that in some investigations there seems to be a strong influence from other parties, although 
specific examples were not mentioned. It was also recognised that any bias is very difficult to 
prove and therefore is unlikely to be mitigated by European Commission intervention. 
Independence of the SIA is a prerequisite for an unbiased investigation. The independence of 

57 Oxford dictionaries, https://en.oxforddictionaries.com/definition/unbiased. 

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SIAs is addressed in Evaluation question 2.1.2. It is concluded that Regulation (EU) No 
996/2010 has not significantly influenced the impartiality of the investigation process. 

A5.4 Evaluation question 2.1.2 

Evaluation question 2.1.2 
To  what  extent  is  the  independence  of  the  Safety  Investigation  Authorities 
achieved? 

Results from Desk Research 
The independence of a Safety Investigation Authority (SIA) is used in several provisions of 
Regulation (EU) No 996/2010, especially in conjunction with the absence of external 
interference and conflict of interest58. The regulation, however, contains no definition59. Article 
4(3) requires that the SIA shall have “unrestricted authority over the conduct of the safety 
investigation”. According to Demsey60, the essence of independence is a strict objectiveness and 
total impartiality.61 Therefore the independence of a SIA is defined as (1) being free from 
external interference and conflict of interest; and (2) having unrestricted authority over the 
conduct of the safety investigation. The last element of the definition covers unrestricted control 
of the use of its available resources. 

In response to a survey conducted by the Commission to examine the current functioning of 
Regulation (EU) No 996/2010 in the first half of 201662, the majority of SIAs indicated that the 
regulation had no practical effect on their independence, as this had already been established 
under Directive No 94/56/EC. However, some SIAs reported that the qualification of “authority” 
has had a demonstrable added value, having “contributed to change the perception of some 
organisations who consider the SIAs more independent than before the regulation.” 

In 2017, the Romanian SIA, CIAS, performed a survey on the subordination status of the 
European Safety Investigation Authorities. They collected 23 responses from SIAs in Europe 
(Belgium, Cyprus, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Hungary, 
Ireland, Latvia, Luxembourg, Malta, Norway, Poland, Republic of Lithuania, Romania, Slovakia, 
Slovenia, Spain, Sweden, Ukraine, and United Kingdom). Based on this survey CIAS concluded 
that “according to the responses received, more than 65% of the respondents are currently 
subordinated to a specific Ministry or Minister, but more than 78% of the respondents consider 
that the SIAs they represent should be ideally subordinated to the Parliament or have other 
subordination status, other than that of being subordinated to a specific Ministry or Minister”. 

At international level, ICAO introduced similar provisions on independence as Regulation (EU) 
No 996/2010, which became applicable in November 2016 through amendment 15 to ICAO 
Annex 1363. 

Following an amendment of the Polish Aviation Act of 3 July 2002(Art. 17 sec. 6 of Aeronautical 
Law64 as amended by the Act of 22 July 2016) which entered into force on September 13, 2016, 
the Minister of Infrastructure and Construction can amend the composition of the SCAAI, the 
Polish SIA. Following this amendment of the Polish Aviation Act, the Minister of Infrastructure 
and Construction replaced the head of the SCAAI65. Additionally, the amendment terminated the 
contract of the current SCAAI employees unless they agreed to the new terms. As a 
consequence, the contracts of 12 out of the 15 air accident investigators were terminated. Due 

58 SWD(2016) 151. 
59 See also Note on Independence – Regulation 996/2010 by M. Osiecki, DG MOVE. 
60 Dempsey, P.S. (2010). Independence of Aviation Safety Investigation Authorities: Keeping the Foxes from 
the Henhouse. Journal of Air Law and Commerce, 75(1), pp 223-283. 
61 See also Chloe A. S. Challinor (2017) Accident Investigators Are the Guardians of Public Safety: The 
Importance of Safeguarding the Independence of Air Accident Investigations as Illustrated by Recent 
Accidents. Air & Space Law 42, no. 1 (2017): 43–70. 
62 SWD(2016)151. 
63 See Chloe A. S. Challinor (2017) Accident Investigators Are the Guardians of Public Safety: The 
Importance of Safeguarding the Independence of Air Accident Investigations as Illustrated by Recent 
Accidents. Air & Space Law 42, no. 1 (2017): 43–70. 
64 Journal of Laws of 2016, item 605, with later amendments. 
65 https://wiadomosci.wp.pl/maciej-lasek-odwolany-z-funkcji-przewodniczacego-pkbwl-
6040019516318849a?ticaid=117c79 and http://www.rp.pl/Polityka/160929692-Maciej-Lasek-odwolany-z-
funkcji-przewodniczacego-Panstwowej-Komisji-Badania-Wypadkow-Lotniczych.html#ap-1 (both in Polish). 

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to this, amendment the Minister of Infrastructure and Construction can influence the SCAAI. 
Therefore, the SCAAI cannot be considered as independent.  

Results from Field Research 
Interviews 
From the interviews, it is concluded that the functional independence of the SIAs is achieved in 
most of the Member States and Regulation (EU) No 996/2010 has helped in accomplishing this. 
One interviewee stated that an important effect of the regulation is that the principle of 
independence of accident investigations is no longer an item of discussion. 

How the SIA is embedded varies in Europe. In some Member States the SIA is an independent 
governmental body, in some Member States the SIAs are subordinated to the Parliament while 
in other Member States the SIA is organisationally placed under the Ministry of Transportation 
but the SIA functions independently. In one interview, it is stated that the Ministry of Transport 
is only administratively responsible for the budget and the parliament decides on the budget. In 
one Member State, the SIA has been moved from the Ministry of Transportation to the Ministry 
of Justice following an infringement procedure from implementation of Directive 2004/49/EC on 
safety on the Community railways.  

According to a number of interviewees budget is a delicate issue. Independence does not imply 
unlimited budget. On one hand it is clear that a SIA needs sufficient budget, while on the hand 
if a government needs to mind his expenses this could consequently also affect the budget for a 
SIA. The important questions related to independence are: what is a reasonable budget for a 
SIA depending on the magnitude of the aviation activities? And is the SIA economic 
independent, i.e. can the SIA spend its budget the way they believe is best used? 

As raised in several interviews, independence is not only matter of functional (formal) 
independence, which can be provided by legislation, but also a matter of mindset, culture and 
experience of the investigators to withstand (political) pressure. In this respect, the influence 
from the judicial authorities was raised in some interviews as an issue that could influence the 
independence of an investigation. 

In some interviews, a few cases were brought forward where the independence of the SIA was 
potentially jeopardised. In total four cases were brought forward. Except for Poland, no 
evidence was provided that the independence of the investigations was indeed affected.  

Survey 
In the targeted survey, respondents were asked whether or not the functional independence of 
the SIAs is achieved in practise. From the 46 respondents, three did not provide an answer. 
From the other respondents, 77% (33) agreed, while 19% (8) disagreed.  

Figure A.7: Functional independence of the SIAs is achieved in practice (N=43) 

42%

35%

5%

14%

5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

The respondents of the SIAs and the Member State stakeholder groups replied almost identical 
to this question: 80% agreed while 13% disagreed. The respondents from the Aviation 
Community stakeholder group (N=14) had a different view: 70% agreed, while 30% disagreed.  

As an elaboration it is stated multiple times that, there are differences between Member States 
and that this is dependent upon financial budgets and organisational control (embedding in 

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Ministry).  

Workshop 
During the workshop, the following statements were made related to independence:  

  SIAs are subjected to pressures from various sources when they are carrying out the 

 

 

investigation, and the need to resist these pressures can be very difficult; 
Independence is critically linked to the quality of the investigation. The budget issue is 
key to the issue of functional independence. When it comes to budgets and financial 
resources made available to SIAs, it is mentioned that the situation in most SIAs has 
not changed significantly since the regulation came into force, which is identified as a 
real problem. This may be partly a function of the economic crisis. There are some 
smaller SIAs that simply don’t have the resources to perform the tasks that they should 
be performing. The question is whether there is a way to make Member States take the 
task of funding of SIAs seriously; 
There were questions regarding the conflict of interest with respect to the location of the 
SIA itself: for example, in Lithuania, the SIA is under the Ministry of Justice. It does not 
necessarily create non-compliance, so long as there is a formal legislation or strong 
internal rules that say that the head of the unit dealing with investigation cannot be 
interfered with regarding investigatory measures, SRs being drafted. The regulation 
speaks of functional independence. The EU does not get involved / has no opinion as to 
the role the Ministry of Justice plays in the investigation. You can be inside the Ministry 
of Justice if you have the rules in place to ensure the technical investigation is 
functionally independent. It is also mentioned that there is no such thing as complete 
independence, as this would essentially imply a private company / society (non-
governmental). 

Results from Accident Cases 
Not applicable. 

Answer to the question 
The independence of a Safety Investigation Authority (SIA) is used in several provisions of 
Regulation (EU) No 996/2010, especially in conjunction with the absence of external 
interference and conflict of interest66. The regulation, however, contains no definition67. Article 
4(3) requires that the SIA shall have “unrestricted authority over the conduct of the safety 
investigation”. According to Demsey68, the essence of independence is a strict objectiveness and 
total impartiality. Therefore the independence of a SIA is defined as (1) being free from external 
interference and conflict of interest; and (2) having unrestricted authority over the conduct of 
the safety investigation. The last element of the definition covers unrestricted control of the use 
of its available resources (budget). 

Being free from external interference and conflict of interest is, according to several 
interviewees, not only matter of functional (formal) independence which can be provided by 
legislation, but also a matter of mind set, culture and experience of the investigators to 
withstand (political) pressure. 

The available budget for a SIA is a delicate issue. Independence does not imply unlimited 
budget. On one hand, it is clear that a SIA needs sufficient budget to carry out its tasks, while 
on the other hand if a government needs to mind his expenses this could consequently also 
affect the budget for a SIA.  

Independence of the SIAs has been achieved in almost all Member States. During this 
evaluation, study questions were raised regarding the lack of independence of the SIA in four 
Member States, including Poland. Independence of the SIAs is not achieved in Poland. Due to an 
amendment of the Polish Aviation Law, the Minister of Infrastructure and Construction can 
influence the composition of the SCAAI. Therefore, the SCAAI cannot be considered as 

66 Commission Staff Working Document on the implementation of the Regulation on Safety Investigation, a 
targeted consultation of stakeholders, including MS and their SIAs, industry associations and accident 
victims and their relatives associations, Part 1 and 2, SWD (2016) 151, April 2016. 
67 See also Note on Independence – Regulation 996/2010 by M. Osiecki, DG MOVE. 
68 Dempsey, P.S. (2010). Independence of Aviation Safety Investigation Authorities: Keeping the Foxes from 
the Henhouse. Journal of Air Law and Commerce, 75(1), pp 223-283. 

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independent. For the other Member States no evidence was provided that the independence of 
the SIA was indeed affected.  

Regulation (EU) No 996/2010 has helped in accomplishing the independence to some extent. 
While a survey conducted by the Commission in the first half of 201669 concluded that the 
majority of SIAs indicated that the regulation had no practical effect on their independence, as 
this had already been established under Directive No 94/56/EC, in the interviews and survey it 
is indicated that the regulation has helped. One interviewee stated that an important effect of 
the regulation is that the principle of independence of accident investigations is no longer an 
item of discussion. At international level, ICAO introduced similar provisions, which became 
applicable in November 2016 through amendment 15 to ICAO Annex 13. 

A5.5 Evaluation question 2.1.3 

Evaluation question 2.1.3 
Have the provisions on the protection of sensitive safety information and 
persons helped to improve the safety investigation? 

Results from Desk Research 
During the investigation of the Spanair JK5022 accident70, parts of sensitive safety information 
(including CVR recordings) became public71. Although the accident occurred before the 
regulation entered into force, i.e. under Directive No 94/56/EC and ICAO Annex 13. These 
regulations already contained provisions on the protection of the CVRs. 

Results from Field Research 
Interviews 
When the regulation was developed, the right balance had to be found for the protection of 
safety information because there are so many differences across EU Member States. 

Regulation regarding the protection of sensitive safety information and persons is not well 
understood outside the investigation community. There is also room for interpretation. There is 
no common understanding of how to ensure confidentiality of safety sensitive information. This 
sometimes results in difficulties between the air safety investigator and other parties. The 
provisions related to protecting sensitive safety information are generally respected, but this is 
not always the case. Sometimes safety sensitive information is made public before the safety 
investigation report is finished and occasionally the regulation has not prevented the misuse of 
safety information. 

The necessary information flows between the many organisations involved in an accident 
investigation can be a concern with regard to possible unintentional leaking of information. For 
instance, managing relations with families of victims while preventing disclosure of sensitive 
information requires a lot of effort.  

The regulation is very explicit and has stood up in a number of court cases, but it could be 
clearer, e.g. in defining ‘cockpit image recordings’ (Article 14(1)(g)) and other types of 
recordings such as the content of Quick Access Recorders (QARs), recordings from closed circuit 
television (CCTV), Global positioning System (GPS), etc. One SIA suggested that Article 14(3) 
should be amended such that decisions to disclose records are made in consultation with the 
SIA.  

The use of the final accident investigation report as evidence in civil courts is an issue since one 
of the parties challenged the other on the use of this evidence (the Rogers vs Hoyle case). The 
accident investigation report had been used as evidence in similar cases before without this 
being an issue. It is difficult to say whether Regulation (EU) No 996/2010 should address this 
point. There probably should be some flexibility for Member States. Accidents reports are 
publicly available. A hard rule that they are admissible is probably not a good idea, as this might 
influence the way in which the accident investigation is being performed. Investigators might be 

69 SWD(2016) 151. 
70 Spanair flight JK5022, a McDonnell-Douglas MD-82, crashed during take-off from Madrid's Barajas airport 
on 20 August 2008. 
71 Source: The Telegraph. 11 May 2010. Last moments of doomed Spanair flight caught on tape. 

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worried about defending the conclusions or being subpoenaed and forced in (cross-) 
examinations to provide information beyond what is contained in the safety investigation report, 
but it was also mentioned that the provisions on sensitive safety information have helped to 
ensure that testimony provided during the safety investigation is not used against witnesses.  

Survey 
In the targeted survey, respondents were asked whether or not the provisions on the protection 
of sensitive safety information and persons have positively affected the safety investigations. 
From the 46 respondents, six did not provide an answer. From the remaining 40 respondents, 
73% (29) agreed, while nobody (0) disagreed, see Figure A.8. 

Figure A.8: The provisions on the protection of sensitive safety information and 
persons have positively affected the safety investigations (N=40) 

28%

45%

28%

0%0%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Respondents were asked whether or not the protection of sensitive safety information and 
persons is sufficiently guaranteed. From the 46 respondents, five did not provide an answer. 
From the remaining 41 respondents, 53% (22) agreed, while 27% (11) disagreed, see Figure 
A.9. 

Figure A.9: the protection of sensitive safety information and persons is sufficiently 
guaranteed (N=41) 

24%

29%

20%

20%

7%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Workshop 
Under Article 14(1)(f) drafts of preliminary or final reports or interim statements shall not be 
made available or used for purposes other than safety investigation. During the workshop it was 
suggested that comments provided in response to the draft report should be protected as well.  

The current level of protection in Article 14 is considered ‘appropriate’ but some guidance 
material of the level of protection provided for ‘image recorders’ is welcome. There is also room 
for interpretation. There is no common understanding of how to ensure confidentiality of safety 
sensitive information. This sometimes results in difficulties between the air safety investigator 
and other parties. 

Results from Accident Cases 
Germanwings 
On 25 March 2017 (one day after the accident), a news article was published in The New York 

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Times, which revealed that CVR data “indicated one pilot left the cockpit before the plane’s 
descent and was unable to get back”. The article went on to quote an unnamed senior French 
military official involved in the investigation, who revealed the sound of light knocking on the 
cockpit door, followed by pounding as the second pilot attempted to gain entry. A French pilots’ 
Union (Le Syndicat National des Pilotes de Ligne, SNPL) filed a lawsuit over the leaked 
information, taking issue with the fact that the information was revealed to the media before it 
was made known to prosecutors. The lawsuit was based on a violation of French law that 
dictates that information concerning on-going investigations must remain confidential. French 
law also does not require lawsuits to name a party; investigators determine who it can be 
targeted at. The complaint was dismissed on the grounds that it was not possible to identify the 
perpetrator of the breach of professional secrecy due to the fact that too many individuals had 
access to the CVR data. 

Answer to the question 
The majority of the survey respondents are of the opinion that the provisions on the protection 
of sensitive safety information and persons helped to improve the safety investigation. They 
have helped to ensure that testimony provided during the safety investigation is not used 
against witnesses and that parties such as manufacturers fully contribute to the investigation.  

Nevertheless, there have also been some high profile cases (Spanair72, Germanwings73) where 
parts of sensitive safety information became public. There is also room for interpretation. There 
is no common understanding of how to ensure confidentiality of safety sensitive information. 
The necessary information flows between the many organisations involved in an accident 
investigation can be a concern with regard to possible unintentional leaking of information and 
managing those information flows requires a lot of effort. Accordingly, one fourth of survey 
respondents are of the opinion that the protection of sensitive safety information is not 
sufficiently guaranteed. It was particularly mentioned that some guidance material of the level 
of protection provided for ‘cockpit image recordings’ (Article 14(1)(g)) and other types of 
recordings such as the content of Quick Access Recorders (QARs), recordings from closed circuit 
television (CCTV), Global Positioning System (GPS), etc. is needed. 

A5.6 Evaluation question 2.1.4 

Evaluation question 2.1.4 
In how far did the decisions from the National courts influence the safety 
investigation? 

Results from Desk Research 
Courts in certain EU States (for instance France74 and Spain)75 may organise their own 
investigations in order to assist victims when they request compensation from the airline or 
other parties, which were involved with the accident.  

While these court decisions may not directly affect the safety investigation, because the safety 
investigation is independent of such parallel judicial proceedings, there may be pressure from 
the public and the media on the SIA to share information with the persons involved performing 
parallel proceedings. The information that is disclosed could impact future safety investigations. 

72 See CIAIAC (2009). Spanair accident report. Although the accident occurred before the regulation entered 
into force, i.e. under Directive No 94/56/EC and ICAO Annex 13. These regulations already contained 
provisions on the protection of the CVRs. 
73 See Accident case 3 in Annex 4.  
74 Pursuant to Art. 145 of the Code of Civil Procedure; see: Cour administrative d’appel (CAA) 
(Administrative court of appeal of) de MARSEILLE, 8ème chambre, decision du 24 mars 2015, n° 
13MA00581. 
75 See Franscesco Rossi Dal Pozzo. (2015) EU legal framework for safeguarding air passenger rights, 
Springer; And Judgment of the Provincial Court of Barcelona of 7 May 2012, ECLI:ES:APB:2012:6351, and 
Judgment of the Supreme Court of 13 Jan. 2015, ECLI:ES:TS:2015:181, cited by Dr Hanna Schebesta, Risk 
Regulation Through Liability Allocation: Transnational Product Liability and the Role of Certification, 42(2) 
Air & Space Law (2017) in section 3.6 where the author states that the überlingen cases show however that 
Spanish courts’ investigations “went beyond the Accident Investigation Report’s analysis of the technology.”  
Whereas the French decision adopted by the Administrative Court of Appeal of Marseille cited in the previous 
footnote refers to a confirmation by the court’s investigation (‘expertise judiciaire’) of the SIA’s investigation 
(BEA in France). 

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Results from Field Research 
In the survey, the respondents were asked if national courts or administrative bodies or 
institutions in your country have made decisions on the protection of sensitive safety 
information and persons, 13 out of the 46 (28%) respondents replied yes.  

Figure A.10: National courts or administrative bodies or institutions in your country 
have made decisions on the protection of sensitive safety information and persons 
(N=46) 

28%

39%

33%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes

No

I don't know

Of the 13 respondents that replied with yes, 8 provided an elaboration. In two cases, it involved 
a data protection authority. In 5 responses, it was stated that the decision was in favour of the 
SIA in line with Regulation (EU) No 996/2010. One respondent replied that the law gives power 
to criminal courts over the aeronautical investigation. This provides inconsistencies between the 
criminal law and Regulation (EU) No 996/2010 according to this respondent. 

Results from Accident Cases 
From the UK, court cases it is concluded that case law plays a prominent role in judicial 
proceedings in the UK. A court in the UK looks to past precedential decisions of relevant courts, 
and synthesizes the principles of those past cases as applicable to the current facts. For 
example, in England, the High Court and the Court of Appeal are each bound by their own 
previous decisions, which is different from civil law jurisdictions. From that general point of 
view, the above decision shed a light on future cases. 

The case of Rogers v Hoyle concerned the question whether a final report drawn up by the AAIB 
may be used as evidence in – in this case – civil proceedings, given that the report was not 
made for that purpose as stated in Article 16 of Regulation (EU) No 996/2010. The test was 
therefore on admissibility and not on the disclosure of information. The regulation does not 
prevent the final report from being used in other proceedings. The UK court sees no reasonable 
basis for the suggestion that aviation people might be deterred from making statements before 
the AAIB in the future as they might be blamed for them, thus foregoing the safety argument.  

Regulation (EU) No 996/2010 was relevant in two other UK court cases (Shoreham accident and 
the helicopter accident in Norfolk) as they pertained to specific materials that are protected 
from disclosure under Article 14 of EU Regulation (EU) No 996/2010. Only the film footage of 
the Shoreham accident which was made by cameras which had been installed on the aeroplane 
in question on a voluntary basis was disclosed because it was not regarded as sensitive safety 
information as protected under Article 14.  

Answer to the question 
Courts in certain EU States (for instance France76 and Spain)77 may organise their own 
investigations in order to assist victims when they request compensation from the airline or 
other parties, which were involved with the accident.  

76 Pursuant to Art. 145 of the Code of Civil Procedure; see: Cour administrative d’appel (CAA) 
(Administrative court of appeal of) de MARSEILLE, 8ème chambre, decision du 24 mars 2015, n° 
13MA00581. 

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While court decisions may not directly affect the safety investigation, because the safety 
investigation is independent of such parallel judicial proceedings, there may be pressure from 
the public and the media on the SIA to share technical information with the persons involved 
performing parallel proceedings. The decision in Rogers v Hoyle case78 may illustrate this 
tendency. The court in the UK decided that the published AAIB report should be admitted as 
evidence and it could “see no reasonable basis” for the suggestion that aviation people might be 
deterred from making statements before the AAIB in the future as they might be blamed for 
them, thus foregoing the safety argument. It is however not yet clear whether there is a 
‘tendency’ as courts may take different positions in other proceedings. This issue is also 
addressed in Evaluation question 2.7. 

A5.7 Evaluation question 2.1.5 

Evaluation question 2.1.5 
Did Advance Arrangements help to solve these problems? 

Results from Desk Research 
The establishment of ‘advance arrangements’79 is required by Article 12(3) of the regulation. It 
implements Recommendation 5.4.4 of ICAO Annex 1380, which stipulates that States should 
ensure cooperation between its accident investigation authority and judicial authorities so that 
an investigation is not impeded by administrative or judicial proceedings. Cooperation may be 
achieved through arrangements, or other means. Paragraph 3.4.3 of the Manual on Protection 
of Safety Information of ICAO specifies that such advance arrangements with regards to 
disclosure or use may also be agreed among States before the information is exchanged. 

19 Member States have issued advance arrangements between the judicial authorities and the 
SIA (Croatia, Estonia, Greece, Belgium, France, Ireland, Latvia, Malta, Portugal, Spain, Italy, 
Poland, Romania, Bulgaria, Czech Republic, Denmark, Luxembourg, UK and the Netherlands). 
An analysis of the written documents makes clear that there are countries which: 

 

 

 
 

 

 

closely follow the provisions of the regulation, for instance, Italy, to a certain extent 
Poland, and, in particular, Portugal; 
appear to give priority to the public prosecutor rather than to the SIA when it comes to 
the preservation of sensitive information, that is, Belgium, subject to specified 
conditions, Latvia, Luxembourg and Spain; 
appear to give priority to the SIA in this respect (Greece); 
aim to follow a balanced approach between the two without ranking the parties in terms 
of the preservation of sensitive information, as exemplified by Austria, France and 
Malta; 
leave it to courts whether or not such information can be disclosed and/or has to be 
transmitted by the SIA to the public prosecutor, as to which see Denmark and the UK; 
issued rather concise arrangements or arrangements which contain unspecified 
provision as to the coordination of various investigations, namely, Bulgaria, Croatia, 
Estonia, Hungary and Romania; 

  have not made available the arrangements either because they: 
-  may have implemented them in national regulations; and/or 
-  have nothing on the subject; or  

77 See Franscesco Rossi Dal Pozzo. (2015) EU legal framework for safeguarding air passenger rights, 
Springer; And Judgment of the Provincial Court of Barcelona of 7 May 2012, ECLI:ES:APB:2012:6351, and 
Judgment of the Supreme Court of 13 Jan. 2015, ECLI:ES:TS:2015:181, cited by Dr Hanna Schebesta, Risk 
Regulation Through Liability Allocation: Transnational Product Liability and the Role of Certification, 42(2) 
Air & Space Law (2017) in section 3.6 where the author states that the überlingen cases show however that 
Spanish courts’ investigations “went beyond the Accident Investigation Report’s analysis of the technology.”  
Whereas the French decision adopted by the Administrative Court of Appeal of Marseille cited in the previous 
footnote refers to a confirmation by the court’s investigation (‘expertise judiciaire’) of the SIA’s investigation 
(BEA in France). 
78 See Accident case 4 in Annex 4. 
7979 Regulation (EU) No 996/2010 does not define ‘advance arrangements’. The list of definitions of ICAO 
Annex 13 does not include ‘advance arrangements’.  
80 “A State should ensure cooperation between its accident investigation authority and judicial authorities so 
that an investigation is not impeded by administrative or judicial investigations or proceedings”. 

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- 

the arrangements are in local language only81. 

Several countries have arrangements between the SIA and the Ministry of Defence / the Air 
Force (including Croatia, Belgium, Portugal, Denmark, Ireland, the Netherlands and Italy); 
others between the SIA and Rescue Centres (including Cyprus, Croatia, Estonia, Malta, Hungary 
and Spain), or between the SIA and the police (including Cyprus, Hungary and Latvia, and/or 
the Ministry of Transport and the Ministry of the Interior/ for the Environment (including Austria, 
the Czech Republic and France). Yet another category of agreements concern arrangements82 
established between the CAA and the SIA, namely, in Cyprus, Denmark, Greece, Spain, France, 
Greece, Italy, Latvia, Luxembourg, Malta, Poland, Romania and Spain. 

Results from Field Research 
Interviews 
The added value of the advance arrangements differ per Member Sate. Positive effects are 
observed in Member States that have specific prosecutors dealing with aviation incidents and 
accidents who have been trained in air transport law. However, there are also Member States 
where the judicial system often intervenes. 

The tensions between the SIAs and the judicial authorities have become less because of 
Regulation (EU) No 996/2010, mainly because of the clear description of roles and the advance 
arrangements that have been made.  

Article 12.3 has been very important. It resulted in the authorities thinking about how they are 
going to collaborate. This has been a huge step forward. Without advance arrangements, the 
different investigating authorities would act separately.  

The advance arrangements are not harmonised across Member States. This is due to the fact 
that criminal law is not within the EU mandate and because of the difference in judicial systems 
across Member States.  

Some harmonisation of advance arrangements is taking place via ENCASIA, where SIAs are 
sharing their experiences with and documents on these arrangements.  

Survey 
In the targeted survey, respondents were asked if the advance arrangements help to ensure the 
independence of the safety investigation. From the 46 respondents, eight did not provide an 
answer. From the remaining 38 respondents, 74% (28) agreed, while 16% (6) disagreed, see 
Figure A.11. 

Figure A.11: Advance arrangements help to ensure independence of the safety 
investigation (N=38) 

29%

45%

11%

11%

5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

81 No arrangements were supplied on Finland, Germany, Lithuania, Slovakia and Sweden. Arrangements in 
the Czech Republic are available in Czech language only. 
82 Neither ‘agreement’ nor ‘arrangement’ is a term with legal significance, although ‘agreement’ is normally 
used to mean a legally binding, and enforceable contract whereas arrangement is a more vague term. For 
instance, as a matter of English law, there is a binding contract if there is a promise by one party to do 
something in return for ‘consideration’ given by the promise (which may or may not be the payment of 
money). Such an arrangement will be a binding contract whether it is called agreement or arrangement. 

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Respondents were also asked if the regulation improved cooperation with other authorities 
involved with the prevention and investigation of accidents and incidents in civil aviation. From 
the 46 respondents, eight did not provide an answer. From the remaining 38 respondents, 66% 
(25) agreed, while 10% (4) disagreed, see Figure A.12. 

Figure A.12: The regulation improved cooperation with other authorities involved with 
the prevention and investigation of accidents and incidents in civil aviation (N=38) 

13%

53%

24%

5% 5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Workshop 
In most Member States, the advance arrangement has never been practically applied because 
there has not been a major accident since the arrangement came into force. Where it has been 
practically applied, it is considered be an effective way of coordinating the various 
investigations, albeit that there have been examples where the judicial authorities were 
insufficiently aware of the existence or content of the advance arrangement. It was 
recommended to encourage that the advance arrangements are reviewed and signed regularly, 
at least every time a position changes and after a major accident.  

Results from Accident Cases 
Germanwings Airbus A320 on 24 March 2015 
At the beginning of the investigation, there were some tensions between the safety 
investigation and the judicial investigation. This was cause by the fact that the prosecutor had 
not been exposed to a similar situation before and was not fully aware of the rights of the SIA. 
Despite these early tensions, there were no problems in terms of coordinating the work on the 
accident site. Although such coordination was covered in the advance arrangement, the 
existence of the arrangement was not known to all parties involved. As a result, the French 
Ministry of Justice (Directorate for Criminal Matters and Pardons) developed a dispatch, which 
was presented to French prosecutors and courts, communicating the primacy of safety 
investigations. The objective of the dispatch was “to support the implementation of the 
[advance arrangement] agreement, having regard to the impact of the European regulation on 
the different phases of the investigation and the specific ways it affects the investigation 
process.” The dispatch was supplemented by practical tools for courts, including a glossary of 
terminology pertinent to Regulation (EU) No 996/2010. The note further explains the content of 
the advance arrangements to judicial authorities and how such authorities should work with the 
BEA in the event of an investigation. 

Pilatus PC-6 on 19 October 2013 
When Regulation (EU) No 996/2010 was introduced, the AAIU took some effort to come to an 
agreement with the judicial authorities on coordination of the investigations, without remarkable 
success. When the accident occurred, the AAIU as well as the judicial authorities started an 
investigation. During the course of the investigation of this accident however, it became clear 
that the coordination between the two investigations required improvement. The AAIU 
continued to develop advance arrangements for the coordination of safety and judicial 
investigations. The text of other European arrangements (French, among others) was used as a 
model. This advance arrangement was instrumental in solving the issues on roles and 
responsibilities that surfaced during the investigation. 

Answer to the question 
The establishment of ‘advance arrangements’ stipulates that Member States should ensure 
cooperation between its accident investigation authority and judicial authorities so that an 

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investigation is not impeded by administrative or judicial proceedings.  

In some Member States, such as the Netherlands and Sweden, coordination between the 
accident investigation authority and judicial authorities was already prescribed in national law 
before Regulation (EU) No 996/2010 was implemented.  

In a number of Member States, the advance arrangement has never been practically applied 
because there has not been a major accident since the arrangement came into force. Where 
applied in practise, the advance arrangements are considered be an effective way of 
coordinating the various investigations, according to consulted stakeholders and shown in the 
Germanwings accident case. However, there have been examples where the judicial authorities 
were insufficiently aware of the existence or content of the advance arrangement and examples 
where advance arrangements were established after the accident occurred. It is therefore 
important that all stakeholders are aware of the advance arrangements and that the advance 
arrangements are reviewed regularly to ensure that they are still appropriate. 

A5.8 Evaluation question 2.1.6 

Evaluation question 2.1.6: 
What is the level of compliance of Member States with respect to coordination of 
investigations, preservation of evidence and protection of sensitive safety 
information? 

In the Terms of Reference this questions was labelled under “Other” with no specific question 
number. The study team found it appropriate to add this question under “Effectiveness”. 

Answer to the question 
Member States have largely complied with the requirements of coordination of investigations 
through the establishment of advance arrangements (see Evaluation question 2.1.5), the 
preservation of evidence and the protection of sensitive safety information (see Evaluation 
question 2.1.3).  

A5.9 Evaluation question 2.2 

Evaluation question 2.2 
To what extent do the outcomes or observed effects in terms of high level of 
investigation capability in each Member State and the improvement of aviation 
safety correspond to the objectives? 

Results from Desk Research 
One of the specific objectives of the regulation is to ensure a high level of investigation 
capability in the EU. This means that there are sufficient numbers of properly qualified air safety 
investigators available to the SIA in every Member State. 

Number of air safety investigators 
An analysis of the number of available air safety investigators for each SIA in FTE has been 
made. Table A.3 contains estimates of FTEs for 2012 and 2016. The estimates of 2012 are 
based on a questionnaire sent by ENCASIA to the 27 Member States. The results are reported in 
the ENCASIA Annual report 201283. Figure A.13 shows the graph from the ENCASIA Annual 
Report 2012. In this annual report it is emphasised that the graph must be associated with 
caveats related to the various scopes of each safety investigation authority, including 
multimodal or not, if the SIA is also responsible for military investigations or not, and that some 
SIAs have part time investigators. 

83 ENCASIA Annual report of 2012. 

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The estimates of 2016 are based on results of the peer reviews in the period 2014-2016, the 
conducted interviews and direct contact via e-mail. The second column lists if the SIA is 
multimodal or not based on the information of the ENCASIA website84.  

Figure A.13: Graph with a breakdown of air safety investigators (full-time equivalent) 
throughout Europe 

Source: ENCASIA Annual report 2012. 

From the data it is observed that there is a great variety in size of the SIAs between the 
Member States. Table A.2 below gives a summary of the different sizes of the SIAs. The 
numbers are based on the estimates of the number of air safety investigators (in FTE) in 2016. 

Table A.2: Distribution of sizes of SIAs according the number of air safety investigators (in FTE) 

estimates of 2016 

Size of the SIAs 

Small (5 or less FTE) 

Medium (6 to 10 FTE) 

Large (more than 10 FTE) 

Total 

Number of SIAs 

14 (50%) 

9 (32%) 

5 (18%) 

28 

It is observed that 50% of the SIAs have 5 or less FTE air safety investigators available. Five 
(18%) SIAs have only 1 FTE. The five SIAs with more than 10 FTE (18%) are AAIB (UK), 
CIAIAC (Spain), BFU (Germany), BEA (France) and the SCAAI (Poland).  

The number of resources has been analysed in the Commission Staff Working Document from 
2016 on Regulation (EU) No 996/2010. In this report, it is concluded that:  

“Regarding resources, it appears that the national investigation capacity of SIAs has globally 
remained unchanged since the entry into force of the regulation. A few Member States have 
experienced increased capacity, whereas some others, due to external reasons, such as the 
economic crisis and cuts in government spending, have rather experienced decreased 
investigation capacity. On this point and in general terms, the effect of the regulation, in terms 
of increased capacity, was offset by the consequences of the economic crisis.” 

“On the other hand regarding staff, Article 4.6(c) and its reference to “at least on available 
investigator” have been criticised by a number of SIAs, as it could be interpreted that a SIA only 
requires one investigator. However, it should be highlighted that this provision refers to at least 
one investigator being “available”, which could be understood as requiring at least one on-duty 

84 Website visited in June 2017. 

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investigator being able to perform the function of investigator-in-charge, which would mean at 
least two individuals in reality” 

The above conclusion that capacity of SIAs has globally remained unchanged is confirmed by 
comparing the total number of estimated FTE of 2016 with the figures for 2012. For 2016, the 
number of air safety investigators is estimated to be 230 FTE, while for 2012 the number of air 
safety investigators is estimated to be 238 FTE. This means a reduction of 3.36%. For this 
comparison the SIA of Croatia has been excluded because it was not included in the 2012 
estimate. 

Table A.3: Estimates of the number of air safety investigators (in FTE) for 2012 en 

2016. The estimates of 2012 are based on the ENCASIA Annual report 2012. The 

estimates of 2016 are based on results from the Peer reviews in the period 2014-

2016, from the interviews and from direct contact via e-mail. The second column lists 

if the SIA is multimodal or not based on the information of the ENCASIA website 

Member State 

Multimodal 

FTE in 2012 

FTE in 2016 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech 

Germany 

Denmark 

Estonia 

Finland 

France 

Greece 

Croatia (*) 

Hungary 

Ireland 

Italy 

Lithuania 

Luxembourg 

Latvia 

Malta 

Netherlands 

Poland 

Portugal (**) 

Romania 

Sweden 

Slovenia 

Slovakia 

Spain 

No 

No 

No 

No 

No 

No 

Yes 

Yes 

Yes 

No 

No 

Yes 

Yes 

No 

No 

Yes 

Yes 

Yes 

No 

Yes 

No 

Yes 

No 

Yes 

No 

Yes 

No 

8 

3 

6 

3 

10 

20 

7 

1 

2 

51 

5 

- 

11 

5 

10 

1 

2 

3 

1 

9 

15 

1 

5 

4 

2 

3 

15 

8 

3 

5 

3 

10 

18 

6 

1 

2 

46 

7 

3 

10 

7 

7 

1 

1 

2 

1 

8 

15 

3 

6 

5 

1 

4 

15 

United Kingdom 
(*) Member State since 2013 (**) Portugal is currently multimodal according their website. The ENCASIA 
website still reports that it is single modal.  

No 

35 

35 

Multimodal 
It has been suggested that there is a trend that within a Member State SIAs are merging with 
other modalities. The second column of Table A.3 lists if the SIA is multimodal or not based on 

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the information of the ENCASIA website85 86. From the table above it is concluded that 12 out of 
the 28 SIAs are multimodal (43%). In the ENCASIA report of 2012, it is reported that 12 out of 
the 27 44% of the SIAs are multimodal. There are some doubts about the correctness of the 
2012 numbers, because in 2017 the Portuguese SIA became multimodal.  

High level of expertise 
In the Commission Staff Working Document from 2016 on Regulation (EU) No 996/2010 the 
following is stated: 

The relative scarcity of major air accidents have made them more challenging to investigate, 
not only from a technical point of view but even more so in terms of communication. Safety 
investigations require a high level of expertise in various domains. Despite the progress 
achieved in many areas since the entry into force of the regulation, it remains uncertain 
whether a major accident would be treated with the same level of efficiency and effectiveness 
wherever it occurs in the Union. It cannot be excluded that certain Member States which until 
today have not faced a major accident on their territory may not be sufficiently prepared to face 
the challenges raised by such a disaster. Therefore, the Commission intends to continue 
supporting preparatory activities and peer review exercises. It also intends to further assess the 
effectiveness/efficiency of the current system of strengthening national accident investigation 
capability through cooperation to ensure a consistent response to accidents. 

Results from Field Research 

Interviews 
From the interviews, it is concluded that there is a large variety in sizes and quality of SIAs 
across Europe. For most SIAs the number of resources, in terms of budget and manpower are 
sufficient but could always be more. For some the small SIAs (especially the SIAs with only one 
air safety investigator) it has been reported that the resources are insufficient for their normal 
activities.  

It has been questioned in several interviews if small SIAs can deliver sufficient high quality 
investigation capability in case of a major accident. A major accident will have much more 
impact and different dynamics than a “normal” accident, in terms of media attention, judicial 
investigations, political pressure etc. The interviewees agree that the small Member States in 
terms of aviation activities cannot size a SIA based on a major event, but only based on eh 
typical events that occur. In order to accommodate a major accident, the SIA should collaborate 
with other SIAs. The collaborations could be established via agreements. According to the 
interviewees, there is currently a lot of assistance provided especially in the initial stages of the 
investigation. An example of increased collaboration is the network of accident investigation 
authorities of Nordic countries (Sweden, Norway, Finland, Denmark, Iceland, Canada) which has 
been established to further enhance cooperation and to provide some support to deal with 
accidents and incidents. 

Lack of resources could, according to the interviewees, result in a less extensive accident 
investigation or impact the delivery times of the report.  

According to the interviewees, the quality of the safety investigations across Europe has 
improved. It is believed that the regulation and the activities of ENCASIA has helped especially 
regarding training of investigators, sharing of best practises, collaboration between SIAs and 
obtaining a better understanding what the main difficulties are during a major accidents. The 
improved quality of the safety investigations has also an impact on the derived safety 
recommendation. Better Safety Recommendations resulted in a higher likelihood that the safety 
recommendations are implemented.  

During the interviews some interviewees reported that there cases where the outcome of the 
investigation was less than satisfactory. However, no explicit cases were reported.  

85 Website visited in June 2017. 
86 Recently it was announced that Malta is probably going to be multimodal. But in the current analysis, 
Malta has been treated as single modal. 

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During the interviews, it was argued that multimodal agencies are justifiable because of the 
shared infrastructure and resources. This is cost effective, but also brings the danger of loss of 
specialised skills.  

Targeted survey 
In the survey, respondents were asked to which extent the yearly budget of the SIA has 
changed from 2010 onwards. 21 out of the 45 respondents answered, “I don’t know”. When 
limited to the 24 SIA respondents, only 2 stated that they did not know. From the remaining 22 
SIA respondents 16 (76%) answered that the change in budget was between -5% and +5%. 
Four SIA’s (19%) reported a decrease of more than 5%. One SIA (5%) reported an increase of 
more than 5%.  

Figure A.14: Change in budget reported by the SIAs in the survey.  
N=24 (2 of which replied “I don’t know”) 

19%

14%

33%

29%

5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Decrease > 5%

Decrease of 1-5%

Roughly the same

Increase of 1-5%

Increase >5%

On the question to what extent are the resources (in terms of experts, budget and equipment) 
sufficient) for the SIA in the reference period, of the 45 respondents, 9 did not know and of the 
others 19 (53%) agreed while 15 (42%) disagreed. When focussing only on the 24 SIA 
respondents that provided an answer 14 (59%) agreed and 8 (33%) disagreed. 2 respondents 
(8%) neither disagreed nor agreed. The results for the 24 SIA respondents are provided below 
in Figure A.15. One SIA respondent added that “if we consider the incidents and accidents that 
happened in that period, it is sufficient. If we are talking about the potential to investigate if 
something large happened, then the answer would be disagree”.  

Figure  A.15:  Distribution  of  the  24  SIA  respondents  on  the  question  if  the  resources 

have been sufficient in the reference period 

21%

38%

8%

29%

4%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

On the question if the air safety investigators were properly trained, 45 respondents provided 
an answer of which 8 provided no answer. Of the remaining 37 respondents 28 (76%) agreed 
that the investigators were properly trained and six respondents (16%) disagreed, see Figure 
A.16. Of the 24 SIA respondents, 20 (83%) agreed that the investigators were properly trained, 
while 3 (13%) disagreed.  

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Figure  A.16:  Distribution  of  the  37  respondents  that  provided  an  answer  on  the 
question if the air safety investigators were properly trained 

38%

38%

8%

8%

8%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Next, the respondents were questioned if they believe there have been investigations in the 
reference period that were of insufficient quality. Of the 45 respondents, 16 (36%) replied “yes’. 
The responses varied per stakeholder group. Six of the 24 SIA respondents (25%) replied “yes” 
while 10 out of the 21 other respondents (48%) replied “yes”, see Figure A.17. 

In the elaboration, no specific investigations were referred to. The following reasons for 
investigations with insufficient quality were provided: lack of specific domain knowledge, lack of 
transparent methodology, lack of resources, lack of training, written by very inexperienced 
investigators with insufficient supervision, and insufficient quality in analysing. 

Figure A.17: Distribution of the 45 respondents that provided an answer on the 

question if there has been any investigation in the reference period of insufficient 
quality 

35,6%

51,1%

13,3%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes

No

Don't know

One respondent added that a global level study conducted by members of the IATA ACTF 
(Aircraft Classification Task Force) revealed that a large number of accidents over the past 10 
years were not properly investigated. Accident reports were available for only 300 of the 
approximately 1,000 accidents that occurred over the decade. Furthermore, a considerable 
number of those 300 reports showed opportunity for improvement. Again, some parts of the 
world are better at this than others. As aviation is a global industry, the EU should support and 
influence the other Regions in improving the investigation capabilities since any accident not 
investigated is a lost opportunity. For the EU – the lack of accidents should not bring a reduction 
of the overall number of investigations – but a more targeted focus on significant incidents. 

Workshop 
One group agreed that the quality of the investigators can be improved not so much through 
amending the regulation but through more detailed guidance, e.g. investigator in charge needs 
to have a pilot license, certain degrees, x years of experience.  

During the workshop, it is reported that staffing is an issue for a certain SIAs. Most 
investigators of that SIA are seconded from the air force and they rotate every 3 years, 
meaning that although the staff is very experienced (pilots, engineers) they are not trained on 

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investigation of accidents. The regulation does not help in this area.  

Results from Accident Cases 
Not applicable. 

Answer to the question 
The overall capacity of SIAs remained practically unchanged. Between 2012 and 2016, the 
number of available investigators decreased 3.36% from 238 FTE in 2012 to 230 FTE in 2016.  

The SIAs vary greatly in size according to an analysis of available air safety investigators (in 
FTE) in 2012 and 2016. Table A.4 below gives a summary of the different sizes of the SIAs for 
2016. Half of the SIAs have 5 or less FTE air safety investigators available. Five (18%) SIAs 
have only 1 FTE.  

Table A.4: Distribution of sizes of SIAs according the number of air safety investigators (in FTE) 

estimates of 2016 

Size of the SIAs 

Small (5 or less FTE) 

Medium (6 to 10 FTE) 

Large (more than 10 FTE) 

Total 

Number of SIAs 

14 (50%) 

9 (32%) 

5 (18%) 

28 

The budget for the SIAs also remained unchanged. Of the 22 SIA, respondents to the survey 
76% answered that the change in budget between 2010 and 2017 was between -5% and +5%. 
Four SIA’s (19%) reported a decrease of more than 5%. One SIA (5%) reported an increase of 
more than 5%. From the survey and the interviews, it is concluded that for the majority of the 
SIAs the amount of resources are sufficient (but could of course always be more). For some the 
small SIAs (especially SIAs with only one air safety investigator) it has been reported that the 
resources are insufficient for their normal activities.  

One SIA respondent added that “if we consider the incidents and accidents that happened in 
that period, [the budget] is sufficient. If we are talking about the potential to investigate if 
something large happened, then the answer would be disagree”. This observation is in line with 
the results from the interviews. In several interviews, it has been questioned if small SIAs can 
deliver sufficient high quality investigation capability in case of a major accident. A major 
accident will have much more impact and different dynamics than a “normal” accident, in terms 
of media attention, judicial investigations, political pressure etc. The interviewees agree that the 
small Member States in terms of aviation activities cannot size a SIA based on a major event, 
but only based on typical events that occur. In order to accommodate a major accident, the SIA 
should collaborate with other SIAs. The collaborations could be established via agreements.  

One third of the respondents to the survey indicated that there have been safety investigations 
that were of insufficient quality. Concerns were mentioned regarding lack of specific domain 
knowledge, lack of transparent methodology, lack of resources, lack of training, lack of 
experience and insufficient quality in analysing. However, no specific investigations were 
mentioned by the respondents of the survey or the interviewees.  

According to the interviewees, the quality of the safety investigations across Europe has 
improved. It is believed that the regulation and the activities of ENCASIA have helped to 
improve the quality. This is mainly due to training of investigators, sharing of best practises, 
collaboration between SIAs and obtaining a better understanding what the main difficulties are 
during a major accident. The improved quality of the safety investigations has also an impact on 
the derived safety recommendations. Better safety recommendations resulted in a higher 
likelihood that the safety recommendations are implemented.  

A5.10 Evaluation question 2.3 

Evaluation question 2.3 
Has the Regulation led to any unexpected effects? 

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Results from Desk Research 
Not applicable. 

Results from Field Research 
Interviews 
During the interviews, no unexpected effects were reported. 

Targeted Survey 
In the targeted survey, respondents were asked if there have been any unexpected effects of 
Regulation (EU) No 996/2010 (positive or negative). Out of the 47 respondents, 9 respondents 
(19%) answered ‘Yes’.  

Figure A.18: Unexpected effects of Regulation (EU) No 996/2010 (positive or 
negative)? (N=47) 

Unexpected effects

19,1%

57,4%

23,4%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes

No

Don't know

In the following questions, the respondents were asked to elaborate on their response. The 
following unexpected effects were reported: 

  Brought the debate about just culture into main stream; 
 

In order to comply with regulation, the Government developed rules that have 
politicized the operational needs to assist the victims, delaying the response capabilities. 
This rule has also been heavily influenced by victims associations what with a good 
intention to assure the welfare of the victims and relatives have forgotten crucial 
aspects as their safety and security.  

Workshop 
Not applicable. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
The large majority of the respondents to the targeted survey stated that there were no 
unexpected effects or they don’t know. During the interviews no unexpected effects were 
reported. 

Unexpected negative effect reported in the targeted survey involves the incorrect interpretation 
or understanding of the text. For example in one Member State national rules to comply with 
Article 21 (on assistance to victims of air accidents) resulted in delayed response capability of 
air safety investigators as assistance to victims required resources from the SIA.  

An unexpected positive effect reported by another respondent in the targeted survey is that the 
regulation has brought the debate on just culture into mainstream.  

A5.11 Evaluation question 2.4 

Evaluation question 2.4 
To what extent the ENCASIA Network contributed to the strengthening of the 
coordination role of Safety Investigation Authorities? 

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Results from Desk Research 
This question is also addressed in Evaluation question 1 and 7. 

Results from Field Research 
Interviews 
ENCASIA is considered by the interviewees to be one of the most effective elements that were 
brought by the regulation. The Network has strengthened coordination between the SIAs as it 
provides a platform for SIAs to cooperate and exchange information and experiences according 
to the majority of the interviewees. 

ENCASIA had a large influence by introducing a common doctrine, establishing communication 
and the introduction of SRIS. In one of the interviews, it was indicated that sometimes the work 
in the working groups goes slowly because the core activities of the SIAs have priority, but the 
working groups are doing an excellent job for standardisation and harmonisation. 

ENCASIA concerns all Member States bounded by Regulation (EU) No 996/2010. Therefore, it is 
considered by the interviewees as “stronger” than the ECAC-ACC platform and provides the 
possibility to formulate a shared opinion concerning specific EU issues. 

Survey 
Also according to the respondents of the survey, ENCASIA is considered to be one of the most 
effective elements that were brought by the regulation. The Network has strengthened 
coordination between the SIAs as it provides a platform for SIAs to cooperate and exchange 
information and experiences according to 24 out of 31 respondents (77%) of the survey. 

Workshop 
The success of ENCASIA (crucial for small states, good leverage for large states) has been well 
recognised and should be retained by financial support from the EC according to participants to 
the workshop. Is has been stated that the mutual assistance is a good concept, but limited by 
finance. It was suggested that ENCASIA should focus more on the facilitation and arranging of 
mutual assistance.  

Results from Accident Cases 
Not applicable. 

Answer to the question 
ENCASIA is considered by the interviewees and the respondents of the survey to be one of the 
most effective elements that were brought by the regulation. The Network has strengthened 
coordination between the SIAs as it provides a platform for SIAs to cooperate and exchange 
information and experiences according to the majority of the interviewees and respondents of 
the survey. ENCASIA had a large influence by introducing a common doctrine, establishing 
communication and the introduction of SRIS. In one of the interviews, it was indicated that 
sometimes the work in the working groups goes slowly because the core activities of the SIAs 
have priority, but the working groups are doing an excellent job for standardisation and 
harmonisation.  

ENCASIA concerns all Member States bounded by Regulation (EU) No 996/2010. Therefore, it is 
considered by the interviewees as “stronger” than the ECAC-ACC platform and provides the 
possibility to formulate a shared opinion concerning specific EU issues. 

A5.12 Evaluation question 2.4.1 

Evaluation question 2.4.1 
To what extent have the ENCASIA Network Peer Reviews contributed to improve 
safety investigations? 

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Results from Desk Research 
As of April 2017, 16 Member States have been peer reviewed87. The peer review results were 
not available to the study team. 

Results from Field Research 
Interviews 
ENCASIA’s peer review activity is regarded as very good. It clearly helped to bring the 
participating States to the same level. The participating States appreciate the concept of peer 
reviews because it is not enforced as a formal audit. However, one interviewee mentioned that 
an official audit from the Commission could have more effect.  

Survey 
In the survey, the SIAs were asked if they have been subject to an ENCASIA peer review. Of 
the 24 SIA respondents, 10 (42%) answered yes and 14 (58%) answered no. According to the 
respondents, the peer reviews identified shortcoming in the implementation of Regulation (EU) 
No 996/2010 for several Member States. Peer reviews were used to share best practices. 

Figure A.19: SIAs subjected to an ENCASIA peer review (N=24) 

42%

58%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes No

Workshop 
The results of first series of peer reviews were kept internal and consequently the peer reviews 
were regarded as a ‘black box’ for the European Commission. Keeping results internal was 
needed to build trust. Member States were concerned that serious repercussions could follow if 
the peer review identified shortcomings. ENCASIA expects that in the next round some results 
will be shared with the EC and even published.  

Results from Accident Cases 
Not applicable. 

Answer to the question 
As of April 2017, 16 Member States have been peer reviewed. The results of first series of peer 
reviews were kept internal to build trust. Member States were concerned that serious 
repercussions could follow if the peer review identified shortcomings. ENCASIA expects that in 
the next round some results will be shared with the Commission and even be published. The 
participating Member States appreciate the concept of peer reviews because it is not enforced 
as a formal audit. According to the participating Member States, the peer reviews have helped 
to bring them at the same level by identifying shortcomings in the implementation of the 
regulation and sharing best practices. These improvements will lead to better safety 
investigations. 

A5.13 Evaluation question 2.4.2 

Evaluation question 2.4.2 
To what extent have the ENCASIA Network joint trainings contributed to improve 
safety investigations? 

87 Presentation at the European Society of Air Safety Investigators (ESASI) Seminar 2017 – Ljubljana, 
Slovenia - 19 and 20 April 2017. 

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Results from Desk Research 
As of April 2017, 58 air safety investigators have been trained in the context of the ENCASIA 
network.88  

Results from Field Research 
Interviews 
The limited budget of ENCASIA should be used as much as possible on bilateral training.  

Survey 
ENCASIA joint trainings harmonize and promote best practices across Member States. The 
trainings have contributed to reinforce formal and informal cooperation and exchange of 
information.  

Results from Accident Cases 
Not applicable. 

Answer to the question 
As of April 2017, 58 air safety investigators have been trained in the context of the ENCASIA 
network. ENCASIA joint trainings harmonize and promote best practices in accident 
investigation across Member States. The trainings have contributed to reinforce formal and 
informal cooperation and exchange of information between SIAs. This will therefore lead to 
better safety investigations. 

A5.14 Evaluation question 2.5 

Evaluation question 2.5: 
To what extent has, the EU Safety Recommendation database led to the 
identification of issues of Union wide relevance?  

Results from Desk Research 
To determine the identification of issues of Union wide relevance, the SRIS database has been 
analysed. The database contains in total 2432 Safety Recommendations (date March 16, 2017). 
Of these entries, 587 were classified as of Union wide relevance. 614 were classified as of Global 
concern and 251 entries were classified as of Union wide and Global concern. The Figure A.20 
below gives a distribution of the Safety Recommendations over the years. In the period, 2012-
2016 on average 161 Safety Recommendations per year of Union wide relevance and/or Global 
concern were identified. 

88 Presentation at the European Society of Air Safety Investigators (ESASI) Seminar 2017 – Ljubljana, 
Slovenia - 19 and 20 April 2017. 

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Figure A.20: Histogram of the number of Safety Recommendations added per year in 
the SRIS database 

700

600

500

400

300

200

100

0

EU&Global

Global relevance

EU relevance

Normal

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Within ENCASIA, Working Group 6 (WG6) is dedicated to Safety Recommendations. As one of 
its tasks, WG6 has been working on harmonising the way Safety Recommendations are 
formulated and handled across the Member States. Another task involves the improvement of 
the analysis of the content of the database with a view to identifying important Safety 
Recommendations of union-wide relevance as required by Article 7.3(g) of Regulation (EU) No 
996/2010. Guidance was developed on the formulation of Safety Recommendations and the 
identification of Safety Recommendations of union-wide relevance. 

The fields for SRUR and SRGC (SR of Union wide relevance and Global concern respectively) 
were only introduced to SRIS in 2016. Therefore, according to the chair of ENCASIA WG6, any 
safety recommendation that predates 2016 may not necessarily have the SRUR/SRGC flagged 
when it should. Only a few States are retrospectively looking at this. Overall, you therefore need 
to be careful when interrogating SRIS for some of the statistics. 

Results from Field Research 
Results from interviews 
According to the interviewees, the implementation of SRIS is now taking effect. ENCASIA had a 
large influence by introducing a common doctrine, establishing communication and the 
introduction of SRIS. The regulation formalised the follow-up of safety recommendations and 
also caused a shift in focus for safety recommendations from quantity to quality in selection and 
justification. SRIS is useful in managing SRs. 

SRIS helps EASA, because many contributors have identified systemic issues that need to be 
solved (Safety Recommendations of Union Relevance). This information is used by EASA as 
input to the European Aviation Safety Plan. EASA has a joint agreement with ENCASIA which 
gives EASA access to SRIS. EASA has a local version of SRIS, which help them to track SRs 
assigned to them. 

Results from survey 
In the targeted survey, respondents were asked if the safety recommendations coming from 
SIAs from other EU Member States have proven to be useful for their work in the field of 
aviation safety. From the 44 respondents, 37 provided an answer. A large majority of the 
respondents 26 (73%) agreed, while 3 (9%) disagreed. 

Figure A.21: Safety recommendations coming from SIAs of other Member States are 
useful for my work (N=37) 

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31%

42%

17%

6% 3%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Results from Accident Cases 
In the LOT accident case, none of the four safety recommendations as registered in SRIS was 
classified as SRUR or SRGC.  

In the Pilatus case, the AAIU identified 4 of the 11 safety recommendations as of Union-wide 
Relevance. These recommendations were addressed to EASA. 

In the Germanwings case, 11 safety recommendations were identified of which 9 were of Union-
wide Relevance and of Global Concern (SRUR and SRGC). 

Answer to the question 
Based on an analysis of the SRIS database, in the period 2012 – 2016 on average 161 Safety 
Recommendations per year of Union wide relevance (SRUR) and/or Global concern (SRGC) were 
identified. It should be noted that a safety recommendation can be both SRUR and SRGC. 

The fields for SRUR and SRGC were only introduced to SRIS in 2016. Therefore, any safety 
recommendation that predates 2016 may not necessarily have the SRUR/SRGC flagged when it 
should. Only a few Member States are retrospectively looking at this. Therefore, the statistics 
should be treated with care.  

Within ENCASIA, Working Group 6 (WG6) is dedicated to Safety Recommendations. As one of 
their tasks, they have been working on harmonising the way Safety Recommendations are 
formulated and handled across the Member States. Another task involves the improvement of 
the analysis of the content of the database with a view to identifying important Safety 
Recommendations of union-wide relevance as required by Article 7(3)(g) of Regulation (EU) No 
996/2010. Guidance was developed on the formulation of Safety Recommendations and the 
identification of Safety Recommendations of Union-wide relevance (SRUR). 

According to the interviews, SRIS and the work of ENCASIA WG6 has helped to improve the 
identification of Safety Recommendations of Union-wide Relevance.  

A5.15 Evaluation question 2.5.1 

Evaluation question 2.5.1: 
Have the deadlines for issuing the safety report and following up the safety 
recommendations and follow-up been met?  

Results from Desk Research 
Deadlines for issuing the safety report 
The timeliness of safety investigation reports has been analysed in Evaluation question 2.1.1. It 
is concluded that the timeliness of reporting is a challenge for SIAs, as they cannot control the 
number and the complexity of accidents that must be investigated. An analysis of a sample of 
104 accidents involving large aircraft (maximum take-off mass more than 5700 kg) in EU 
Member States between 1 January 2010 and 1 April 2016 shows that for approximately 40% of 
the sample the safety investigation report is released within 12 months of the date of the 
accident. About 20% of the safety investigation reports requires more than 2 years to complete. 
The average duration of an investigation of an accident involving a large aircraft is similar to 
that in the US. 

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Deadlines for following up the safety recommendations and follow-up 
Article 18 states that following a safety recommendation, the addressee of a safety 
recommendation shall reply to the SIA within 90 days on the actions (to be) taken and of the 
time necessary for their completion and where no action is taken, the reasons therefore. Within 
60 days of the receipt of the reply, the SIA shall inform the addressee whether or not it 
considers the reply adequate and give justification when it disagrees with the decision to take 
no action. 

An analysis of the SRIS database (date March 16, 2017) showed that 49% of all Safety 
Recommendations are open. For the Safety Recommendations of Union wide relevance or Global 
relevance, this percentage is 53%. This could suggest that there is a delay in following up 
Safety Recommendations. The chair of ENCASIS WG6 on Safety Recommendations cautions the 
“open” and “closed” status usage on SRIS as a whole since there is not a standard for this, nor 
is there a requirement in the regulation to “close” a recommendation.  

The issue regarding the deadlines of the follow-up of the Safety Recommendations has been 
discussed within WG6. It was concluded that it is not easy to obtain statistics on the follow-up 
of safety recommendation as each SIA records the status of recommendations differently. 
However, WG6 has collected some data from the SRIS database. The result should be treated 
with care because the data and timings may not be accurate. Additionally, it is not clear 
whether the response date in SRIS refers to the initial response or a possible supplemental 
response. For instance, there may have been an initial response in the 90 days and then a 
further response at a later date, which has over written the date response received. Figure A.22 
shows the average response time (in days) for the years 2010 to 2016. The trend shows an 
overall improvement toward the 90 days. However, there are still many recommendations 
(about 50%) awaiting response (see Figure A.23). This might be either no response received, or 
the SIA has not recorded the response on SRIS. Also, there are recommendations addressed to 
organizations outside the EU that are not bound by the EU regulation, although they are 
supposed to comply with ICAO Annex 13.  

Figure A.22: Average time of the addressee to respond (in days) to the safety 
recommendation for the years 2010 to 2016 

Average time to respond (days)

600

500

400

300

200

100

0
2009

2010

2011

2012

2013

2014

2015

2016

2017

Figure A.23: Fraction of safety recommendations in the SRIS database without a 
response for the years 2010 to 2016 

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No response rate (%)

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

2009

2010

2011

2012

2013

2014

2015

2016

2017

On the 60 days response time, ENCASIA WG6 has insufficient data to determine to what extent 
this deadline is being met.  

In the Commission Working Document on the implementation of Regulation (EU) No 996/2010 
on the investigation and prevention of accidents and incidents in civil aviation (SWD(2016)151) 
it is concluded that the regulation enacted more stringent constraints than before on the follow-
up of safety recommendations, but endeavoured to remain consistent with ICAO Annex 13 
which has also introduced revised provisions addressing safety recommendations to include a 90 
day time frame for actions to be taken. 

Furthermore, it is concluded that EASA, being a frequent addressee of safety recommendations, 
has found that the time constraints for the follow-up of safety recommendations were quite 
unpractical. This is especially the case for the 90 day provision set up in Article 18 that could 
lead to overly optimistic expectations regarding the outcomes of safety recommendations. Most 
Member States have not encountered such difficulties, but some concur to consider that the 
time constraints are challenging. 

Results from Field Research 
Results from interviews 
According to the interviewees, formal responses to a safety recommendation are mostly too late 
(later than the deadline). However, it is felt that the 90 days response time has improved. The 
database is useful in managing safety recommendations. SRIS shows when safety 
recommendations are due and allows SIAs to verify if and when conditions are met using 
appropriate definable queries. 

There are some differences in the assessment of the adequacy of responses. Some SIAs close a 
safety recommendation only if all the actions have been completed while others close a safety 
recommendation if there is no further response from the addressee to be expected. For 
instance, when an action plan is agreed, but some actions can still be open because they could 
take years to complete. The term “response is adequate” is a confusing term for the public. A 
related question is: should the SIA monitor the implementation of the responses or is this an 
action of the regulator (CAA) as part of their oversight activities. There is a role of the SIA, 
namely to scrutinise the response: making sure that their safety recommendation is well 
understood. The regulator could track the plan. These issues are being discussed within 
ENCASIA WG6. 

According to some interviewees, the quality of the safety recommendation helps to improve the 
follow-up. The quality of the safety investigations across Europe has improved. The improved 
quality of the safety investigations has also an impact on the derived safety recommendation. 
Better safety recommendations resulted in a higher likelihood that the safety recommendations 
are implemented. This aspect is also raised in Evaluation question 2.2. 

ENCASIA had a large influence by introducing a common doctrine, establishing communication 

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and the introduction of SRIS database. The regulation formalised the follow-up of safety 
recommendations and also caused a shift in focus for safety recommendations from quantity to 
quality in selection and justification.  

Results from survey 
According to the respondents of the survey 71% (31 of 44) agreed that the regulation proved, 
to be of added value regarding the formulation of safety recommendations and 66% (29 out of 
44) agreed that the regulation helped in the follow-up of the safety recommendations.  

Results from workshop 
According to EASA, the quality and time delivery of the safety investigation reports. It is 
questioned whether the soft deadline helps to achieve things earlier.  

To put more pressure on addressees of safety recommendations, it could help to indicate when 
a reply is expected and to publish response to safety recommendations when they are received 
on the SIA website. This is also discussed in ENCASIA meetings.  

Safety recommendations are sometimes not formulated in such way that they make practical 
sense to the recipient. A possible solution is to involve the recipient in the formulation of safety 
recommendations. This is already covered in Article 17, although ‘authorities concerned’ may be 
misinterpreted as not including manufacturers or airlines. 

The difficulty of closing long term recommendations was identified as a problem by one of the 
workshop groups. The group suggested addressing this issue in ENCASIA WG6. 

Industry position is that many safety recommendations, which directly target manufacturers, 
have been formulated without consulting with / liaising with the addressee. This should be done 
to make sure the safety recommendation addresses the right problem, and to ensure that the 
addressee is not taken by surprise (benefit in this respect is that they can begin preparing a 
response, 90-day timeframe). This is not always done. This view is confirmed by UK and 
Swedish SIAs. The Swedish SIA further highlighted that they have observed a vast 
improvement - in both the quality of the SR and the adequacy of the response – as a result of 
involving the addressee in the SR drafting process. 

Results from Accident Cases 
LOT case 6 years after the accident no final report has been issued. One of the causes is the 
change in staffing and availability of the air safety investigators. Within a year after the accident 
safety recommendations were issued, which we not all followed-up. The safety 
recommendations to Boeing and FAA no response has been received so far. 

In the Pilatus case, the four safety recommendations to EASA (SRUR) are still open. The other 
seven recommendations have been closed. 

In the Germanwings case, EASA has provided generally satisfactory responses. One safety 
recommendation was issued to the EC. The BEA does not consider the answer from the EC to be 
satisfactory. Another safety recommendation was issued to IATA. The BEA considers that the 
response is only partially adequate. The BEA did not receive an answer from the World Health 
Organisation (WHO), which received a similar recommendation as the one to EC, but on a global 
level. 

Answer to the question 
The timeliness of safety investigation reports has been analysed in Evaluation question 2.1.1. 
There it is concluded that the timeliness of reporting is a challenge for SIAs, as they cannot 
control the number and the complexity of accidents that must be investigated. An analysis of a 
sample of 104 accidents involving large aircraft (maximum take-off mass more than 5700 kg) in 
EU Member States between 1 January 2010 and 1 April 2016 shows that for approximately 40% 
of the sample the safety investigation report is released within 12 months of the date of the 
accident. 

An analysis of the SRIS database over the period 2010 – 2016 shows that average response 
time is longer than 90 days, but the trend shows an overall improvement towards the 90 days. 

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However, for almost 50% of the safety recommendations, no response has been provided.  

The analysis of the SRIS database shows also that 49% of all safety recommendations are open. 
This could be an indication that there is a delay in following up safety recommendations. 
However, the “open” and “closed” status usage on SRIS should be handled with care as there is 
not a standard for this, nor is there a requirement in the regulation to “close” a 
recommendation.  

During the interviews, the issues were raised regarding when to close a safety recommendation 
and when is the response considered “adequate”. There are some differences in the assessment 
of the responses. Some SIAs close a safety recommendation only if all the actions have been 
completed. Others close a safety recommendation if there is no (further) response from the 
addressee to be expected. This happens for instance when the action plan is agreed, but some 
actions can still be open because they could take years to complete. Also the term “response is 
adequate” is a confusing term for the public. Currently, these items are being discussed within 
ENCASIA WG6. 

Within ENCASIA WG6, guidance has been developed on the formulation of safety 
recommendations. These guidelines in combination with an improved quality of the safety 
investigation lead to better safety recommendations. In the interviews and the workshop it has 
been argued that better safety, recommendations result in a higher likelihood that the safety 
recommendations are implemented. 

A majority of the respondents of the survey agreed that the regulation proved to be of added 
value regarding the formulation of safety recommendations and a majority also agreed that the 
regulation helped in the follow-up of the safety recommendations. In an interview, it was 
concluded that also the 90 days response time has improved over the years. 

The overall conclusion is that the regulation and the activities of ENCASIA have helped in 
following up the safety recommendations.  

A5.16 Evaluation question 2.6 

Evaluation question 2.6: 
What improvements have been made with regard to establishing civil aviation accident 
emergency plans at national level? 

Results from Desk Research 
According to an analysis by Francesco Rossi Dal Pozzo89, only Spain and Italy had by 2014 
systematically complied with the obligations of Article 21. 

On 31 January 2014, the European Commission held a workshop in Brussels that focused on the 
establishment of civil aviation accident emergency plans at national level. The workshop 
concluded that a number of Member States have difficulties establishing an emergency plan at 
national level. The difficulties experienced by the Member States are mainly due to the following 
factors (in isolation or combination): 

 

  National emergency plans are strongly linked to the administrative structure of Member 
States. For Member States structured around regions, the coordination of a unique plan 
or of consistent plans at regional level is very challenging; 
The establishment of the plans requires the involvement of many different actors 
belonging to various institutions, with sometimes different perspective and objectives; 
Factors such as geographical location and language barrier can become challenges when 
the authorities should deal with victims and their relatives with various nationalities and 
backgrounds, in particular in the case of a large commercial air transport accident.  

 

It was concluded that there is a need to develop guidance for the establishment and content of 
national emergency plans90.  

89 Dal Pozzo, F.R. (2014). EU legal framework for safeguarding air passenger rights, Springer. 

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As part of the safety investigation of the crash of flight MH17 on 17 July 2014, the Dutch Safety 
Board published a separate report on passenger information.91 This report contains the following 
conclusion: 

“The relatives of the Dutch victims of the crash of flight MH17 had to wait for an unduly long 
time before they were given clarity regarding the presence of their loved ones on the aeroplane, 
because: 

 
 
 

[...] 
The Dutch crisis organisation was insufficiently prepared for such a situation; and 
There was a lack of control and coordination in the execution. 

According to the report, “Neither the national nor the regional crisis management plans included 
a detailed scenario for an aircraft accident abroad with a large number of Dutch victims. There 
was no indication of a coordination plan with a clear allocation of roles and responsibilities. Nor 
was there any coordinating institute in place, as was previously recommended by the 
International Civil Aviation Organization”.  

ENCASIA Working Group 7 is specifically dedicated to assistance to victims and their families. 
This sub-group is composed of France, Germany, Netherlands, the United-Kingdom and the 
European Commission. In 2017, the working group published a leaflet “A practical guide on 
safety investigations for Air Accident Victims and their Relatives” via the ENCASIA web site92. 
This leaflet is aimed at air victims and their relatives to facilitate their understanding of the role 
and the different phases of a safety investigation. This leaflet describes the main milestones of 
the investigation of accidents to commercial air transport aircraft that occur within Europe.  

Results from Field Research 
Interview 
Some Member States have not yet developed and implemented a national civil accident 
emergency plan. This is not due to any problem in the formulation of the regulation, but rather 
an internal governmental matter; specifically, which government body is to be responsible. 

Article 21 (civil accident emergency plan at national level) defines a function to be fulfilled by a 
Member State. This is not a function that is likely to be fulfilled by a SIA, and therefore some 
interviewees believe that Article 21 is misplaced in Regulation (EU) No 996/2010 and should be 
placed elsewhere. However, it was also said that while it might seem odd to place assistance to 
victims in Regulation (EU) No 996/2010, but it has to be put somewhere and there is a link with 
accident investigation. Others suggested that national emergency plans should be covered in 
the Basic Regulation. 

There has been a lot of progress in resolving the problems and challenges concerning assistance 
to victims and their relatives, and Regulation (EU) No 996/2010 kick-started this progress. Due 
to Regulation (EU) No 996/2010 there is a greater focus in the beginning of any investigation on 
adequately informing victims and their families. The appointment of a national contact person 
responsible for communication with victims’ families is a clear benefit from the regulation. How 
the national contact persons engage in the process and how victims are supported varies 
somewhat from Member State to Member State. SIAs find it challenging to provide information 
to victims and their relatives. One of the problems is that definitions of a victim and a relative 
are not provided in the regulation. Managing relations with victims and their facilities requires a 
significant effort to satisfy their need for information while preventing disclosure of safety 
sensitive information. Requirements from Article 20 (Information on persons and dangerous 
goods on board) have been fulfilled by the airlines. Improvements are attributable to Regulation 
(EU) No 996/2010, although operators that fly to the US already had a system for this in place. 

The speed of communication that is established when the emergency plans are executed is 
much slower than that of social media. Speculation emerges quickly on social media. Victims 
and their relatives may therefore have the perception that emergency plans do not work. These 
evolving communication landscapes are something to consider in the future.  

90 European Commission. (2014) Civil aviation accident emergency plan at national level; summary of 
discussions and workshop conclusions. 
91 Dutch Safety Board. (2015). MH17 Passenger Information. 
92 https://ec.europa.eu/transport/sites/transport/files/leaflet-air-accident-victims-safety-investigations-
guide_en.pdf. 

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Survey 
In the targeted survey, respondents were asked whether or not the national civil accident 
emergency plans have been sufficiently developed and implemented. From the 46 respondents, 
13 did not provide an answer. From the 33 respondents that provided an answer, 45% (15) 
agreed, while 27% (9) disagreed, see Figure A.24.  

Figure A.24: National civil accident emergency plans have been sufficiently developed 
and implemented (N=33) 

15%

30%

27%

12%

15%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Respondents were asked whether or not sufficient assistance to victims and their relatives is 
provided in their country. From the 43 respondents, 18 (42%) did not provide an answer. From 
the 25 respondents that provided an answer, 65% (16) agreed, while 16% (4) disagreed, see 
Figure A.25.  

Figure A.25: Sufficient assistance to victims and their relatives is provided in my 
country (N=25) 

16%

48%

20%

4%

12%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Workshop 
During the workshop it was concluded that the SIAs have a role in sharing information the 
victims and their relatives. The leaflet ‘A practical guide on safety investigations for air accident 
victims and their relatives’, developed by ENCASIA, illustrates that the SIA is one of several 
organisations involved in communication with victims and their families. A balance needs to be 
found between providing victims and their families with sufficient information and ensuring the 
protection of safety sensitive information.  

Results from Accident Cases 
Germanwings Airbus A320, 24 March 2015. 
A national point of contact of the German government, in coordination with Lufthansa, was able 
to put together a list of victims and families. The formal contact in Germany was the BFU. The 
Ministry of Transportation and Digital Infrastructure (BMVI) is the office responsible for dealing 
with victim assistance. Lufthansa’s internal post-emergency organisation (PEO) was in charge of 
working with BMVI and supporting the victims’ families. The Lufthansa investigation team, 
together with the BMVI team, acted as the liaison between the investigator in charge (IIC) of 
BEA and Lufthansa’s PEO regarding the information that could be disclosed (Note: the IIC was 
responsible for deciding the information that could be disclosed). Meetings were held between 
BEA and PEO before the press conference; the PEO organised the flight of victims’ families, 

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translations, making sure special assistance teams were present at the press conference. The 
whole process is said to have worked well with the Lufthansa PEO, which received positive 
comments from the relatives’ victims as well. 

Answer to the question 
On 31 January 2014, the European Commission held a workshop on the establishment of civil 
aviation accident emergency plans at national level. The workshop concluded that a number of 
Member States have difficulties establishing an emergency plan at national level. The difficulties 
experienced by the Member States are mainly due to the following factors (in isolation or 
combination): 

 

  National emergency plans are strongly linked to the administrative structure of Member 
States. For Member States structured around regions, the coordination of a unique plan 
or of consistent plans at regional level is very challenging; 
The establishment of the plans requires the involvement of many different actors 
belonging to various institutions, with sometimes different perspective and objectives; 
Factors such as geographical location and language barrier can become challenges when 
the authorities should deal with victims and their relatives with various nationalities and 
backgrounds, in particular in the case of a large commercial air transport accident.  

 

It was concluded that there is a need to develop guidance for the establishment and content of 
national emergency plans, but so far such guidance material has not been established. Results 
for the survey indicate that 27% of the respondents (9) are of the opinion that national civil 
accident emergency response plans have not been sufficiently developed and implemented.  

The speed of communication that is established when the emergency plans are executed is 
much slower than that of social media. Speculation emerges quickly on social media. Victims 
and their relatives may therefore have the perception that emergency plans do not work. These 
evolving communication landscapes are something to consider in the future. 

There has been a lot of progress in resolving the problems and challenges concerning assistance 
to victims and their relatives, and Regulation (EU) No 996/2010 kick-started this progress. Due 
to Regulation (EU) No 996/2010, there is a greater focus in the beginning of any investigation 
on adequately informing victims and their families. The appointment of a national contact 
person responsible for communication with victims’ families is a clear benefit from the 
regulation. How the national contact persons engage in the process and how victims are 
supported varies somewhat from Member State to Member State. 

A5.17 Evaluation question 2.6.1 

Evaluation question 2.6.1: 
Are there any difficulties in the process of establishing the list of passengers and 
then comparing it to the list of victims? 

Results from Desk Research 
In 2015, the Dutch Safety Board wrote a separate report on the passenger information involving 
the accident of flight MH1793. In this report the following conclusion is drawn: “The investigation 
has shown that the passenger information that was available after the crash of flight MH17 was 
not sufficient to conform to the relatives that their loved ones were on the flight. Malaysia 
Airlines has done what could be expected of an airline based on the aviation regulations. The 
airline issued a list of passengers’ names, which afterwards turned out to be almost entirely 
correct, and handed this list to the Dutch authorities as soon as possible. Additional information 
about the passengers, such as their nationality and dates of birth, had to be extracted from 
secondary registration systems; as a result, it took some time before the data were available. 
For 75% of the passengers, this was possible on the evening of the crash; for the rest of the 
passengers, up to two days were required to collect additional information. Not being able to 
establish who was on board the flight at the push of the button is not an exceptional situation. 
This is a known and generally accepted fact in the aviation sector.” (p12-13) 

93 Dutch Safety Board. (2015). MH17 Passenger Information.  

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The Dutch Safety Board recommends that the nationalities of the passengers should be 
available on the passenger list: “It is the Board’s opinion, in future the nationalities of the 
passengers should be available on the passenger list that is drawn up by the airline. “(p.14) “In 
the opinion of the Board, a passenger list that includes the nationality of all passengers and a 
smoothly functioning crisis organisation, would provide sufficient guidance after an aircraft 
accident to retrieve information about the victims and their families more quickly.” (p.14) 

In their report, the Dutch Safety Board also describes that the bottlenecks in the collection and 
verification of passenger information were not new and were described previously in relation to 
a crash of a Turkish Airlines aircraft near Amsterdam in 2009.94 

In the Staff Working Document on the implementation of Regulation (EU) No 996/201095 the 
same issue is addressed: 

Article 20 requires airlines to make available immediately after an accident happens, a list of all 
the flight passengers and dangerous goods on board. During their national emergency 
exercises, the Finnish authorities discovered that Article 20 does not require the list of 
passengers to include information on the nationality of the passengers for flights within the 
Union. This lack of information could contribute to making the identification of victims difficult in 
a crisis situation. It was therefore suggested that the Commission should present further 
guidance. These pieces of information are already partly covered by the draft rules related to 
Passenger Name Records (PNR) proposed by the Commission.96 

Results from Field Research 
Interviews 
It has been highlighted in the interviews that the regulation emphasised the need to provide 
better passenger information. However, this has not been fully implemented. One interviewee 
stated that the national emergency plan is not very detailed regarding obtaining a list of 
passengers.  

Survey 
On the question if the national emergency plans sufficiently describe the requirements on 
obtaining passenger lists and comparing it to the list of victims, 22 out of the 46 respondents 
(48%) could not answer the question.  

11 of the 24 respondents (46%) of the survey agreed and 4 (17%) respondents (strongly) 
disagreed. One respondent elaborated that this issue is not in the national emergency plan.  

Figure A.26: The national emergency plans sufficiently describe the requirements on 
obtaining passenger lists and comparing it to the list of victims (N=24) 

13%

33%

38%

0%

17%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Next, SIA and Member State participants to the survey were asked if there have been safety 
investigations in which establishing the list of passengers and comparing it to the list of victims 
led to “unusual” difficulties in the process. Of the 30 respondents, 17 (57%) replied that they 
could not answer the question. Most of these respondents added that there were no accidents in 

94 Dutch Safety Board. (2010). Emergency assistance after Turkish Airlines incident, Haarlemmermeer, 25 
February 2009.  
95 SWD(2016)151. 
96 COM(2011)32. 

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the period in which this was an issue. 13 respondents provided an answer of which 10 (77%) 
agreed and 2 (15%) (strongly) disagreed, see Figure A.27. One of the two respondents that 
disagreed referred to the MH17 report on passenger information.  

Figure A.27: The national emergency plans sufficiently describe the requirements on 
obtaining passenger lists and comparing it to the list of victims (N=24) 

77%

8% 0%0%

15%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Workshop 
During the plenary discussion of the workshop, it was stated that it is important that SIAs know 
the nationality of the victims – this should be included in the passenger lists (Article 21), to 
facilitate the mobilization of the relevant Member States’ representatives, etc. This point was 
addressed in the Staff Working Document SWD(2016)151 on the implementation of Regulation 
(EU) No 996/2010. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
On the question if the national emergency plans sufficiently describe the requirements on 
obtaining passenger lists and comparing it to the list of victims, half of the survey respondents 
could not answer the question. Of the respondents that could answer it 11 (46%) agreed and 4 
(17%) disagreed. However, a majority could not answer the question if this has led to any 
problems or stated that there have been no major investigations in which obtaining the list of 
passengers was an issue.  

The accident of Malaysian Airlines Flight MH17 made it clear that the passenger list that was 
available immediately after the crash of flight MH17 was not sufficient to establish who was on 
board the aircraft97. To this end, Malaysia Airlines first had to retrieve additional information 
about the passengers, such as their nationality and date of birth, from the underlying 
registration systems. Since the related information had not been entered for all passengers, this 
took some time to obtain. In their report, the Dutch Safety Board also describes that the 
bottlenecks in the collection and verification of passenger information were not new and were 
described previously in relation to a crash of a Turkish Airlines aircraft near Amsterdam in 
2009.98 According to the Dutch Safety Board, this situation could be improved if the airlines 
were to record the nationalities of all passengers in the system that provide passenger 
information in the event of an aircraft accident. 

A5.18 Evaluation question 2.7 

Evaluation question 2.7: 
What are the National practices and legal constraints for handling confidential safety 
information (e.g. CVR, witness statements, medical data)?  

Results from Desk Research 
The answer to this question is also addressed in Evaluation question 2.1.3. 

97 Dutch Safety Board (2015). MH17 Passenger Information.  
98 Dutch Safety Board. (2010). Emergency assistance after Turkish Airlines incident, Haarlemmermeer, 25 
February 2009. 

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Analysis of the advance arrangements makes it clear that there are countries which: 

 

 
 

 

appear to give priority to the public prosecutor rather than to the SIA when it comes to 
the preservation of sensitive information, that is, Belgium, subject to specified 
conditions, Latvia, Luxembourg and Spain; 
appear to give priority to the SIA in this respect (Greece); 
aim to follow a balanced approach between the two without ranking the parties in terms 
of the preservation of sensitive information, as exemplified by Austria, France and 
Malta; 
leave it to courts whether or not such information can be disclosed and/or has to be 
transmitted by the SIA to the public prosecutor, as to which see Denmark and the UK. 

Results from Field Research 
Interviews 
In some interviews, it is stated that Regulation (EU) No 996/2010 lacks detail on items to 
protect in the context of Article 14. Therefore, guidance is needed.  

Survey 

Figure A.28: Does your national constitution require public records including the 
records of the safety investigation bureau to be publicly available? (N=46) 

24%

39%

37%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes

No

I don't know

Figure A.29: Have national courts or administrative bodies or institutions in your 

country made decisions on the protection of sensitive safety information and persons? 

(N=46) 

39%

28%

33%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Yes

No

I don't know

Figure A.30 below depicts the distribution of respondents whether or not they believed that the 
evidence from safety investigations is sufficiently protected in their country for the different 
types of evidence. From the 48 respondents, 4 could not answer the question for names of 
persons involved; 4 could not answer the question for medical information; 6 could not answer 
the question for CVR data; 5 could not answer the question for FDR data; and 4 could not 
answer the question for witness statements. 

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Figure A.30: The evidence that is sufficiently protected in their country (N=48) 

Witness statements

55%

30%

7%

7%

2%

FDR data

42%

37%

16%

5%

0%

CVR data

48%

36%

7%

5%

5%

Medical information

Names of persons involved

64%

59%

25%

7%

5%

0%

32%

2%

2%

5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90% 100%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Workshop 
There are differences across Europe regarding the use of safety investigation reports in judicial 
investigations. It was suggested that the EC could make budget available to conduct a 
comparative study on the practices in different Member States concerning the use of safety 
investigation reports in judicial investigations. 

Results from Accident Cases 
UK practices and legal constraints for handling confidential safety information are described in 
detail in the UK court cases in Annex 4.  

Answer to the question 
In some Member States the public prosecutor has custody of sensitive safety information (and 
the SIA can have access), while in other Member States the SIA has custody of sensitive safety 
information over the data and the public prosecutor can have access. According to the 
interviewees, this did not lead to any problems. The majority of survey respondents are of the 
opinion that confidential safety information is sufficiently protected in their country see Table 
A.5 below. 

Table  A.5:  Percentage  of  respondents  to  the  survey  agreeing  that  the  information  is 

sufficiently protected differentiated per type of information 

Type of information 

Percentage of respondents agreeing that data is 

Names of persons involved 

Medical information 

Witness statements 

CVR data 

FDR data  

sufficiently protected 

91% (40 of 44) 

89% (39 of 44) 

84% (37 of 44) 

83% (35 of 42) 

79% (34 of 43) 

There are differences across Europe regarding the use of safety investigation reports in judicial 
investigations. The difference between the different Member States and the implications thereof 
are understood insufficiently. 

A5.19 Evaluation question 3 

Evaluation question 3: 
Have resources and costs incurred been proportional to the results achieved? 

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This question is answered through Evaluation questions 3.1, 3.2 and 4. To appreciate whether 
resources and costs have been proportional, these need to be assessed against the baseline 
(the counterfactual scenario) which is presented in Annex 3. 

Results from Desk Research 
Benefits of Regulation (EU) No 996/2010 
The primary aim of Regulation (EU) No 996/2010 is ‘to improve aviation safety by ensuring a 
high level of efficiency, expediency, and quality of European civil aviation safety investigations’ 
(italics added).  

In Chapter 3, the overall aviation safety improvement in Europe is presented. In this chapter, 
the annual number of (fatal) aviation accidents and fatalities in Europe before and after the 
introduction of the regulation are presented. Table 2 shows the average annual number of 
aviation fatalities in Europe before and after the introduction of Regulation (EU) No 996/2010. 
This table shows that the average annual number of aviation fatalities in Europe has reduced 
since the introduction of the regulation. Although a safety improvement is demonstrated and a 
link between safety improvement and high quality safety investigations (the aim of Regulation 
(EU) No 996/2010) exists, it is not possible to determine which fraction of the improvement can 
be attributed to Regulation (EU) No 996/2010.  

The monetary benefit of improved aviation safety can be expressed as the value (costs) of 
accidents that have been prevented. The costs of aircraft accidents are a combination of various 
factors such as cost of repair/replacement of the aircraft, loss of use of the aircraft, site 
contamination and clearance, cost of accident investigation, etc., and the costs associated with 
fatalities and injuries. Estimating costs associated with fatalities can be difficult and 
controversial. A person’s life is beyond price. It is, therefore, usually accepted that money 
cannot compensate for the loss of life itself. However, a price may be put on the material impact 
on others of a person’s death e.g. compensation (indemnity) for loss of support etc., and, 
separately, on society’s assumed desire to reduce the risk of a statistical fatality. Costs 
associated with fatalities are usually expressed as a Value of a Statistical Life (VOSL) where this 
‘value’ generally includes an element of indemnity together with society’s ‘willingness to pay’ to 
avoid a statistical fatality. In a study in 2014 for DG MOVE99, this value was estimated to be € 
1.8 million according to 2010 prices. Corrected to 2016 princes, this value becomes € 2.1 
million. For the purpose of this rough analysis, only benefits associated with the prevention of 
fatalities will be considered. Other factors of accident cost are on average considered to be 
relatively small compared to fatality costs, especially in general aviation100.  

An estimate of the monetary benefit of Regulation (EU) No 996/2010 can be obtained by 
comparing the annual number of (fatal) aviation accidents and fatalities in Europe before and 
after the introduction of the regulation as presented in table 2 and multiply them by the costs of 
an accident.  

Based on the data in table 2 and using a VOSL of €2.1 million, the monetary benefit of fatalities 
prevented in Europe since 2010 due to improved aviation safety amounts to €143 million per 
year for commercial air transport, €59 million per year for general aviation and €202 million for 
commercial air transport and general aviation combined.  

The costs for Regulation (EU) No 996/2010 were estimated at € 6.3 – 7.7 million for the period 
2011-2017 (see Table A.6), i.e. an average of € 1.1 million per year. This means that the 
benefit/cost ratio on annual basis of the Regulation is greater than 1 if more than 0.55% of all 
prevented fatalities due to improved aviation safety can be attributed to the regulation.  

Answer to the question 
The answer to this question is based on the answers to Evaluation questions 3.1, 3.2 and 4 and 
an analysis of monetary benefit due to an increased safety.  

99 See Table 10 in 
https://ec.europa.eu/transport/sites/transport/files/themes/sustainable/studies/doc/2014-handbook-
external-costs-transport.pdf. 
100 See for example Ecorys, NLR et al, Aviation Safety Improvement using Cost Benefit Analysis (ASICBA). 
Research study, FP6 project No 12242, and for an estimation of the costs of aviation accidents in the US 
http://www.sciencedirect.com/science/article/pii/S0965856412001577. 

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The benefits of the regulation are the result of a decrease in the risk of aviation accidents due to 
improved safety recommendations. Assuming a Value of a Statistical Life (VOSL) of € 2.1 
million, the monetary benefit of fatalities prevented in Europe since 2010 due to improved 
aviation safety amounts to €143 million per year for commercial air transport, €59 million per 
year for general aviation and €202 million for commercial air transport and general aviation 
combined.  

The costs for Regulation (EU) No 996/2010 were estimated at € 6.3 – 7.7 million for the period 
2011-2017 as summarised in Table A.6, i.e. an average of € 1.1 million per year. This means 
that the benefit/cost ratio on annual basis of the Regulation is greater than 1 if more than 
0.55% of all prevented fatalities due to improved aviation safety can be attributed to the 
regulation.  

The consulted SIAs during this evaluation study indicate that the benefits indeed outweigh the 
costs, and expect that this will remain the case in the future. 

Table A.6: Summary of costs per stakeholder category for the period 2011-2017 

Stakeholder category 

European Commission 

Member States 

SIAs 

Airlines 

Total 

A5.20 Evaluation question 3.1 

Costs (€) 

1.9 million 

1.4 million 

3.2 million – 4.7 million 

Negligible101 

6.3 – 7.7 million 

Evaluation question 3.1: 
Are the means provided by the Commission sufficient to support MS cooperation? 

To answer this question, the means provided by the Commission are estimated. Costs that are 
incurred by other stakeholders are discussed under Evaluation question 4.  

Results from Desk Research 
Table A.7 below gives an overview of Commission assistance to ENCASIA that can be 
quantified:102 direct grants, technical support, reimbursement of travel costs for ENCASIA 
meetings (plenary meetings and working groups), as well as Commission attendance to 
ENCASIA meetings, including provision of working group leaders. The total costs for these 
activities add up to € 743,483 for the period 2011 - 2017.  

Table A.7: Overview of financial support to ENCASIA Network, 2011-2017 

Grant 

Period 

Goal 

ENCASIA-1 

2013 

Training 

(12 months) 

Amount 

Total  

(€) 

2011-2017 

99,540 

99,540 

ENCASIA-2 

2014-2015 

Peer Review Programme  

99,933 

99,933 

(18 months) 

Safety Training  

ENCASIA-3 

2015-2016 

Peer Review Programme  

79,948 

79,948 

(18 months) 

Safety Training  

ENCASIA-4 & -5 

2017-2018 

Peer Review Programme  

159 942 

159,942 

Safety Training  

Technical 

Period 

Type 

Partner 

Amount 

Total  

101 Airlines representatives have indicated in a separate interview that the main ‘cost category’ for them – 
providing information to victims and families – was already an obligation under the ICAO guidelines and 
thus does not represent an additional cost as such. 
102 Data gathered through teleconference with DG MOVE and received ENCASIA Network grant application 
overviews. 

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Development 

2014-2015 

Framework contract 

TIPIK/All 

20,000 

20,000 

costs of ENCASIA 

creation of Drupal site 

Starks 

website  

Hosting and 

2016-ongoing 

Internal contract  

DG DIGIT 

5,000 

10,000 

(€) 

2011-2017 

maintenance 

costs 

Development of 

SRIS database 

Internal contract 

JRC 

annual 

No 

information 

from JRC103 

ENCASIA 

No meetings 

No Participants 

Costs (€) 

Annual 

Total  

meetings* 

(annual) 

(€) 

2011-2017 

Plenary meetings 

Working groups 

2 

2 

(7) 

25 per plenary meeting 

490 p.p. 

24,500 

171,500 

8 per working group 

490 p.p. 

7,800 

54,600 

Head of working 

2 

2011: 4 working groups 

980 per 

6,860 

48,020 

group 

2012: 5 working groups 

working 

2013-2016: 6 working 

group 

groups 

2017: 7 working groups 

Source: ENCASIA Annual Reports, Commission grant requests and data. 
* Concerns Commission remuneration of travel costs to meetings and remuneration for the head of the 
working group. 

Total** 

€ 743,483 

** Total includes costs for 2 years of hosting and maintenance support (2016-2017), for 7 years of 
ENCASIA meetings (from 2011 to and including 2017), and 80 Working Groups meetings (2 meetings per 
year). 

Details of Commission grants 

  ENCASIA-1: Grant for € 99,540 for two training courses. Ran for 12 months, 2013, 

covered 100% of the costs: 
-  15-17 May 2013 at AAIB, Farnborough, UK. Objective: provide investigators with a 
harmonized and ENCASIA-developed risk assessment framework. Covered the 
management of site hazards and personnel safety required during investigation 
activities and the recovery of flight data for investigators. 22 attendees from 22 MS; 

-  21-23 October 2013 at BEA, Le Bourget, France. Focus on harmonisation of 

response for a major safety investigation and dealing with technical issues such as 
coordination for examination of aircraft parts or systems, as well as different types 
of computation that can be performed using available recording data. 28 attendees 
representing 25 MS. 8 SIAs and EASA participated as lecturers. 

  ENCASIA-2: Grant for € 99,933 for training on ATM and airports (50%) and peer review 
programme (50%). Ran for 18 months, 2014-mid 2015, covered 100% of the costs: 
-  15-17 September 2014 at AAIB, Farnborough, UK; 
-  1-3 December 2014 at BFU, Braunschweig, Germany. 

  ENCASIA-3: Grant for € 79,948 for expansion of Peer Review Programme and training 

for European air safety investigators (one per MS). Ran for 18 months, mid 2015-2016, 
covered 95% of the costs; 

  ENCASIA-4 and ENCASIA-5: Request for € 159,942 for Safety Training and Peer Review 
Programme. The programme runs for 18 months, 2017-mid 2018, covers 95% of the 
costs. 

Additionally, the Commission supported in non-financial terms, as detailed in the table below.  

103 No information has been provided by the JRC on the costs involved for this cost item. 

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Table  A.8:  Non-financial  support  (costs  in  terms  of  time  spent  by  Commission),  per 

year 

Type 

Activities 

FTE (estimate)  Costs (€)104 

Secretarial support 

Planning and organisation 

2 

Participation in plenary 

Various, including debriefing on relevant 

0.25 

100,000105 

23,750 

meetings  

EU legal developments, making notes 

Participation in working 

Various, including debriefing on relevant 

0.5 

47,500 

groups 

EU legal developments, providing 

expertise (dependent on participant), 

making notes 

Operational management 

Uploading documents / leaflets 

of ENCASIA public 

Support to victims and relatives 

Included in 

secretarial 

website 

Translation of documents in 23 EU 

support 

languages  

Placing updates regarding changes at 

SIAs 

Monitoring of SIAs 

Updating status and composition of SIAs 

0.25 

23,750 

ENCASIA trainings 

Provision of trainer/instructor as needed 

Included in 

if necessary 

participation in 

working groups 

Translations 

Translation of leaflets and national 

Included in 

agreements SIAs and other organisations 

secretarial 

Total 

Total 

support 

3 FTE 

195,000 

2011-2017 

1,170,000 

Source: Ecorys estimates based on inputs European Commission regarding FTEs. 

The total of 3 full-time equivalents in non-financial support can be quantified at € 95,000 per 
policy-officer FTE and around € 50,000 per FTE for secretarial support,106 which amounts to € 
195,000 annually, or (6 * 195,000) = € 1,170,000 over the 2011-2017 period. 

This means that total support provided by the Commission, financial or otherwise, adds up to an 
amount of € 1.9 million over the 2011-2017 period: 

Table A.9: Total support provided by the  Commission, financial or otherwise  over the 

2011-2017 period 

Support 

Financial support 

Non-financial support 

Total 

Budget 

€ 743,483 

€ 1,170,000 

€ 1,913,483 

Results from Field Research 
Overall, Commission support for the ENCASIAs activities was found to be sufficient by a 
majority of survey respondents as well as the interviewees who registered a response. This 
relates to the following ENCASIA tasks: 

104 Based on Ecorys, 2015, Study on the resources deployed in the area of European aviation safety before 
and after the creation of EASA. See https://ec.europa.eu/transport/sites/transport/files/2015-04-23-study-
on-resources-deployed-in-eur-aviation-safety-before-and-after-creation-easa.pdf. 
105 Secretarial support costs have been estimated at 50% of the policy officer costs. 
106 Based on Ecorys, 2015, Study on the resources deployed in the area of European aviation safety before 
and after the creation of EASA. 

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Support study to the evaluation of Regulation (EU) No 996/2010 

1.  Organisation of peer reviews; 
2.  Promotion of information sharing; 
3.  Advising EU institutions; 
4.  Promoting best safety investigation practices; 
5.  Developing Union-wide safety recommendations (This activity is done by SIAs, not 

ENCASIA); 

6.  Managing a resource sharing framework; 
7.  Organising training and skill development activities. 

Also, the Commission’s grant is deemed sufficient to prepare for the ENCASIA meetings as well 
as preparing the ENCASIA Annual Reports.  

At the same time there is no clear agreement among stakeholders on whether the Commission 
annual grant is sufficient to support the breadth of ENCASIA activities, and a number of possible 
improvements are mentioned.  

These issues are elaborated on below. 

Resources for ENCASIA work programme 
Respondents were asked whether they found sufficient resources are available for the ENCASIA 
work programme (see Figure A.31 below). Out of 23 respondents, 48% (11) agreed somewhat, 
while 30% (7) neither disagreed nor agreed and 13% (3) recorded ‘no answer’. 9% (2) 
indicated they somewhat disagreed. No respondents agreed strongly and no respondents 
disagreed strongly. 

Figure A.31: There are sufficient resources available for the ENCASIA work 
programme (N=23) 

0%

48%

30%

9% 0% 13%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree Somewhat agree Neutral Somewhat disagree Strongly disagree No answer

In the elaboration of their answers, two survey respondents indicated that the ENCASIA work 
programmes are adjusted to fit the available resources. Another respondent indicated that the 
Network is largely driven by large and medium-sized SIAs, and that the representatives from 
smaller SIAs, who sometimes do not speak English very well, are generally less active. One 
respondent indicated the budget should be increased for more training. 

SIA respondents were also asked whether ENCASIA is sufficiently resourced to perform a 
number of specifically identified tasks, which are elaborated on below and depicted in Figure 
A.32. Table A.10 show the percentage of respondents that agreed, disagreed or provided no 
answer. The number of respondents is also provided between brackets. The overall conclusion is 
that a majority of SIA respondents agreed that ENCASIA is sufficiently resourced to perform its 
tasks. 

Figure A.32: ENCASIA is sufficiently resourced to perform the following tasks (N=23) 

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 Support study to the evaluation of Regulation (EU) No 996/2010 

Develop Union-wide safety recommendations

22%

43%

4%

4%

4%

22%

Managing a resource sharing framework

17%

35%

26%

4%

4%

13%

Promote best safety investigation practices

26%

43%

13%

9%

0%

9%

Organise training and skill development activities

22%

35%

17%

13%

4%

9%

Organise peer reviews

52%

26%

9%

4%

0%

9%

 Promote information sharing

39%

48%

Advise EU institutions

35%

35%

0%

4%

0%

9%

17%

4%

4%

4%

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

No answer

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

In the elaboration to these questions, one SIA indicated it has proposed the establishment of an 
office with permanent staff based in Brussels with at least one air safety investigator to assist 
the ENCASIA Chairman and the day to day communication with the SIAs. It was further 
highlighted that even if the ENCASIA Network is sufficiently resourced, SIAs themselves still 
need to deploy sufficient resources and these are not necessarily available in each case, 
especially for smaller SIAs. 

Table A.10: Percentage of respondents that agrees, disagrees and provided no answer 

to the question if ENCASIA is sufficiently resourced to perform the following tasks 

(N=23). The number of respondents is provided between brackets 

ENCASIA Task 

Advise EU institutions 

Promote information sharing 

Organise peer reviews 

Agree 

Disagree 

No answer 

70% (16) 

87% (20) 

78% (18) 

9% (2) 

4% (1) 

4% (1) 

Organise training and skill development activities 

57% (13) 

17% (4) 

Promote best safety investigation practices 

Managing a resource sharing framework 

Develop Union-wide safety recommendations 

70% (16) 

52% (12) 

65% (15) 

9% (2) 

9% (2) 

9% (2) 

17% (4) 

9% (2) 

9% (2) 

9% (2) 

9% (2) 

13% (3) 

22% (5) 

Resources for ENCASIA activities 
SIAs were also asked whether they considered the Commission support to ENCASIA to perform 
its activities is sufficient. This was split over two activities, as elaborated below. Overall, 
Commission support was considered sufficient by a large majority of respondents. 

Preparation and organisation of meetings 
Overall, respondents indicated that sufficient Commission support was available for the 
preparation and organisation of meetings. As shown in Figure A.33 of a total of 23 respondents, 
82% (19) indicated they either somewhat (10) agreed or strongly (9) agreed. Nobody disagreed 
with the statement that Commission support was sufficient, and some 18% (4) respondents 
indicated they neither disagreed nor agreed (2) or provided no answer (2). 

Figure A.33: Commission support sufficient for preparation and organisation of 
ENCASIA meetings (N=23) 

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Support study to the evaluation of Regulation (EU) No 996/2010 

39%

43%

9% 0%0% 9%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree Somewhat agree Neutral Somewhat disagree Strongly disagree No answer

The preparation of the ENCASIA annual report 
Overall, respondents indicated that sufficient Commission support was available for the 
preparation of the ENCASIA annual report. As shown in Figure A.34, of a total of 23 
respondents, 74% (17) indicated they either somewhat (10) agreed or strongly (7) agreed. 9% 
(2) of respondents strongly disagreed with the statement that Commission support was 
sufficient for the annual report preparation, while some 17% (4) respondents indicated they 
neither disagreed nor agreed (1) or provided no answer (3).  

Figure A.34: Commission support sufficient for preparation of the ENCASIA annual 
report (N=23) 

30%

43%

4%0% 9%

13%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree Somewhat agree Neutral Somewhat disagree Strongly disagree No answer

Annual Grant provided by the Commission 
SIAs were asked whether the annual grant provided by the European Commission is adequate 
to support ENCASIA activities. As shown in Figure A.35, no clear picture emerges either way, as 
respondents seem divided on the issue. No respondent strongly disagreed and 17% (4) 
somewhat disagreed. About 35% (7) agreed either somewhat (6) or strongly (2) that the 
annual grant was adequate, while 48% (11) either neither disagreed nor agreed (5) or provided 
no answer (6). 

Figure  A.35:  Commission  annual  grant  sufficient  for  support  ENCASIA  activities 

(N=23) 

9%

26%

22%

17%

0%

26%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Strongly agree Somewhat agree Neutral Somewhat disagree Strongly disagree No answer

In their elaboration, one respondent indicated that the annual grant provides for ‘only’ one 
investigator training from each SIA per year. Another respondent added that the grant could be 

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increased to provide more training, and a third added that the timeline is a bit short for 
organising training sessions. 

A fourth respondent indicated that if the European Commission would provide ENCASIA with a 
larger grant, this might be used to help the smaller SIAs. 

SIAs, the aviation community and Member States (CAAs, Ministries) were asked to indicate the 
main reasons for SIAs not to participate in ENCASIA meetings – and what could motivate them 
to participate more in ENCASIA’s activities. 16 responses were recorded. 

Reasons for non-participation can be grouped into the following items: 

Lack of financial resources (budget restraints); 
Lack of human resources; 

 
 
  National political constraints / political reorganizations of SIAs / lack of understanding of 

the importance of participation at national level; 

  Occurrence of a major accident in the days before a meeting. 

The following motivators to increase participation in ENCASIA’s activities were mentioned: 

 
 

Providing grants to SIAs; 
‘It has to matter whether you participate or not’ (this might be interpreted as a call for 
introducing incentives - sanctions or rewards – but is rather unclear). 

Participants in the stakeholder workshop107 indicated that the current way of financing ENCASIA 
with grants is not suitable for sustained support. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
The Commission has provided support aimed at supporting member state cooperation in the 
field of aviation accident investigation, mostly focusing on the ENCASIA Network. This support 
has taken various forms, such as grants, secretarial support, translations as well as provision of 
trainings, assistance during ENCASIA meetings, and the development and maintenance of a 
dedicated ENCASIA website and SRIS database. In total, quantifiable Commission support for 
Member State cooperation amounted to € 1.9 million in the period 2010 – 2017.  

A majority of SIAs, the main beneficiaries of this support, indicate this is sufficient to support 
ENCASIA’s various activities and to facilitate Member State cooperation; there were 2 SIAs 
(9%) hat indicated the Commission support was insufficient for the preparation of the annual 
report. At the same time, when focusing solely on the Commission’s grants specifically, no 
conclusion can be drawn on their sufficiency: a large segment indicates the grants were 
sufficient, whereas there is also a large segment arguing the opposite (although it is noted 
those who disagreed indicated they ‘somewhat’ disagreed, while none strongly disagreed that 
grants were sufficient). 

It should be kept in mind that cooperation between Member States has indeed increased 
significantly and that substantial benefits have been derived from it. 

A5.21 Evaluation question 3.2 

Evaluation question 3.2: 
Could other means of support deliver better support? 

This question is related to the previous question (Evaluation question 3.1) on sufficiency of 
Commission support. 

107 Held on 1st of June 2017, with participation from SIAs, EASA, representatives from airlines and 
manufacturers, as well as policy officers from the Commission. 

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Results from Desk Research 
On the basis of arrangements in place for other areas, possible alternatives to support given to 
ENCASIA by the Commission could be to:108  

1.  Publicly tender the support activities (e.g. like this has been done for NSA Coordination 

Platform (NCP) Working Group Support Function); 

2.  Setting up a (permanent) Secretariat. 

Although not directly related to the question whether alternative means could deliver better 
support, it is noted that with an eye on the future, the long-term sustainability of the current 
form may be questioned, specifically the provision of Commission grants for the ENCASIA 
Network. Indeed, it is recognised that more co-financing and less (sole) dependency on EU 
funds are a priority.109 This means that the ‘financial model’ of Commission support may need to 
be rethought. 

Results from Field Research 
In the survey, SIAs, the aviation community and Member States (CAAs, Ministries) were asked 
what other ways the Commission could support cooperation. 3 out of the 11 responses indicated 
that no change in the support from the Commission in necessary.  

Some respondents suggested increasing the existing types of support (i.e. larger grants), 
whereas others pointed to alternative means of support.  

Below, the proposed alternative types of support to be given by the Commission are recorded in 
the survey: 

 

 

 

Paying for accommodation as well as daily allowances for ENCASIA meetings 
attendance, and facilitating the meetings of the ENCASIA Network; 
Facilitating further integration of ENCASIA by creating a board, with SIA board members 
who could lay out the strategy and combine the effort and resources from all the SIAs. 
Existing SIAs could be turned into regional offices handling minor investigations, and the 
integrated ENCASIA and regional SIA offices could function as a support organisation 
when a major investigation occurs. ENCASIA could define roles and types of 
investigators (regional, IICs for major investigations, and experts) and train everybody 
according to the same standards; 
Funding the establishment of an ENCASIA office with permanent staff based in Brussels 
with at least one air safety investigator to assist the ENCASIA Chairman and the day to 
day communication with the SIAs. 

Another option was mentioned in the survey that goes beyond supporting Member State (SIA) 
cooperation: the creation of a contingency fund, upon which small SIAs could draw in case of 
major emergencies. This would be accompanied by an agreement on how this can be paid back. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
As indicated in the answer to the previous Evaluation question 3.1, current support is deemed to 
be sufficient by a majority of the stakeholders. Most suggestions for improvement in 
Commission support relate not to alternative means of support, but amount to an extension of 
the current means of support. For example reimbursing travel to ENCASIA meetings for more 
than one SIA representative, and reimbursing accommodation costs and daily allowances.  

At the same time, some suggestions have been made for alternative means of support. Further 
integration and formalisation of the ENCASIA Network could be considered as a way to 
economise resources, where an ENCASIA board composed of SIA members could lay out the 
ENCASIA strategy and act as a support organisation for various national (or potentially regional) 

108 Alternative options to those discovered through field research were established in internal team 
brainstorm. 
109 For some general background see e.g. REGULATION (EU) No 1303/2013, which lays down a number of 
provisions for co-financing under various funds: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32013R1303&from=EN.  

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SIAs. Such board could be a formal organisation structure with statutes, structural budget and 
staff (which may be seconded from SIAs). In the same vein, a permanent ENCASIA Network 
office in Brussels could be created as a way to further institute and formalise the ENCASIA 
Network.  

Although these suggestions would merit further consideration, it should be noted that this study 
has not found an express wish either in favour or against these ideas. 

On the basis of the evidence collected, it is considered that alternative means of support would 
not deliver better support, but that alternative means of support could be considered to 
complement them. Alternatives could in any case be considered keeping in mind that long-term 
sustainability of depending on large Commission grants for support is questionable. 

A5.22 Evaluation question 4 

Evaluation question 4: 
Have the attributable costs to different stakeholders been proportionate? 

Results from Desk Research 
To address this question, the costs and the benefits of the regulation need to be taken into 
account and assessed against the counterfactual scenario in which there would not have been 
Regulation (EU) No 996/2010 (see Annex 4). 

Costs for the European Commission have been elaborated under Evaluation question 3.1. To 
reiterate, total costs for the Commission amounted to € 1.9 million. These are considered to be 
all additional costs compared to the counterfactual. 

Costs for other stakeholders have been elaborated based on field research.  

Results from Field Research 
Below, the benefits and costs are described and where possible quantified. This is followed by 
an assessment of the costs versus the benefits. 

Benefits 
A qualitative description of the benefits is provided in the answers to the questions on 
effectiveness (Section 4.3). However, in terms of quantified results of the regulation not much 
data are available. Nevertheless, the underlying logic of the regulation is to increase aviation 
safety in the European Union by increasing the quality of investigations, which should lead to 
better safety recommendations that, when implemented, improve the level of safety. Due to the 
regulation, in theory there should be benefits in the form of better safety investigations, as a 
result of: 

  More efficient coordination of safety investigations between national SIAs in case of 

large international accidents; 

  More exchange of knowledge between national SIAs through ENCASIA Network 

 

meetings and joint trainings; 
Less time spent on coordination with judicial authorities, through establishment of 
advance arrangements. 

The following additional benefits were identified in the interviews and from the survey: 

  Better protection of sensitive safety information; 
  Clearer division of responsibilities / role with CAAs; 
  Clearer division of responsibilities / role with judicial authorities (though suboptimal); 
  Clearer division of responsibilities / role of EASA; 
  Better assistance to victims and families; 
  Better cooperation between European SIAs; 
  Better quality of safety investigations due to joint trainings; 
  Achieving and maintaining independence of safety investigations by highlighting 

functional independence of SIAs. 

On the basis of the benefits identified by the stakeholders involved, it is reasonable to assume 
that aviation safety has increased and that the risks for an aviation accident have been 

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decreased.  

Costs 
The costs from the Commission in support of ENCASIA are provided in the answer of Evaluation 
question 3.1. Additional costs to those borne by the Commission relate to costs for individual 
SIAs and Member States (see also Evaluation question 5 on additional administrative tasks): 

  Set-up of independent SIA (where relevant); 
  Establishing advance arrangements (where relevant); 
 

Time spent for preparing and attending ENCASIA meetings (including working groups 
and trainings); 

  Costs related to attending ENCASIA meetings (daily allowances, accommodation); 
  Recording as well as implementing safety recommendations; 
  Developing emergency plans; 
  Developing plans related to assisting victims and families. 

When asked how many resources are involved in complying with the regulation, in the survey 
stakeholders indicated a range from 0 up to 4 additional FTEs. One respondent mentioned 10 
additional FTEs, the most extreme case. 

As a result of an in-depth session on cost categories performed with a SIA, these costs can be 
estimated and quantified in further detail. The costs can be split into one-off costs for Member 
States (adapting national legislation to be in line with the regulation, including establishment of 
emergency plans) and structural costs for SIAs recurring yearly.110  

One-off costs have been divided in two groups: costs to those Member States who had to 
implement few changes to national legislation, because the regulation did not introduce 
significant new elements; and costs to those Member States who had to implement substantial 
changes in their national law. 

The tables below show the overview per type of costs and quantified in euros. The workload is 
provided in FTE. To translate FTE in annual costs, the annual salary of an NSA employee has 
been used (in the case of SIAs as a proxy), at € 55 000.111 

In this overview, a distinction has been made between states who needed to implement few 
changes to legislation and those that had to implement many changes. For the purposes of 
estimation and to compensate for a lack of sufficient concrete inputs, a simplified distribution of 
80%-20% has been made between states with few and many changes. This is justified by the 
fact that no transposition of a Directive into national legislation is required, so that substantial 
national law changes were in the majority of cases not required. 

Table A.11: Overview one-off costs: transposition Regulation (including emergency 

plan), borne by Member States 

Activity / cost item 

Workload in FTE  

Workload in FTE 

Few changes (~80% or 22 states) 

Many changes (~20% or 6 states) 

Providing inputs to 

5 days p.p., 8 persons  

lawmakers 

40 days total  

~0.2 FTE per MS 

Coordinating and drafting 

40 days p.p., 2 persons 

national law 

Subtotal 

80 days total 

~0.4 FTE per MS 

13.2 FTE 

Total 

~0.4 FTE per MS 

~0.8 FTE per MS 

7.2 FTE 

20.4 FTE  

110 Airlines representatives have indicated in a separate interview that the main ‘cost category’ for them – 
providing information to victims and families – was already an obligation under the ICAO guidelines and 
thus does not represent an additional cost as such. 
111 Based on Ecorys, 2015, Study on the resources deployed in the area of European aviation safety before 
and after the creation of EASA. See https://ec.europa.eu/transport/sites/transport/files/2015-04-23-study-
on-resources-deployed-in-eur-aviation-safety-before-and-after-creation-easa.pdf.  

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Activity / cost item 

Workload in FTE  

Workload in FTE 

Total costs (€) 

1,122,000 

Table A.12: Overview of structural cost categories, borne by SIAs 

Activity / cost item 

Workload in FTE (annual basis) 

Quantified costs (€) 

Updating and using SRIS 

0.1-0.2 FTE per SIA,  

154,000 – 308,000 

2.8-5.6 FTE for 28 SIAs 

Chairing ENCASIA working 

0.5 FTE per group, 

165,000 

group 

3 FTE for ENCASIA total 

ENCASIA plenary  

Plenary:  

27,500 

2 meetings per year, 2 days, 28 SIAs 

112 mandays 

~0.5 FTE for ENCASIA total 

ENCASIA working group 

Working groups (~6 groups):  

88,000 – 176,000 

participation 

2 meetings per year, 1-2 days, 28 SIAs 

56 – 112 days per working group 

336 – 672 mandays 

~1.6 – 3.2 FTE ENCASIA total 

Conducting peer review 

3 mandays per review p.p. = 

8,250 

6-9 mandays per review (2-3 persons); 

24-36 mandays total (4 peer reviews) 

~0.15 FTE for ENCASIA total 

Receiving peer review 

20 mandays of preparation + 

33,000 

9 mandays for participation = 

29 mandays total per review; 

116 mandays total 4 peer reviews) 

~0.6 FTE for ENCASIA total 

Total per year 

Total 2011-2017  

475,750 – 717,750 

2,854,500 – 4,306,500 

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Table A.13: Overview of ENCASIA attendance costs: hotel and daily subsistence allowance 

Miscellaneous112 

Rates 

Persons 

Meetings 

& 

Costs (€) 

ENCASIA meetings: 

Hotel rate for Brussels, Belgium 

25 people at plenary, 

40,880 

accommodation Brussels 

€ 140 per night 

2 days, 2 a year 

= 100 hotel nights 

8 people per working 

group, 6 working 

groups, 2 days, 2 a 

year 

= 192 hotel nights 

Total = 292 nights 

ENCASIA meetings:  

DSA for Brussels, Belgium, € 92 

1 DSA per hotel 

26,864 

Daily subsistence 

allowance (DSA) 

night 

Total = 292 DSAs 

Total per year 

Total 2011 – 2017 

67,744 

406,464 

Table A.14: Overview of costs for SIAs, 2011-2017 

Cost category 

Structural costs 

Costs (€) 

2,854,500 – 4,306,500 

ENCASIA attendance costs 

406,464 

Total 

3,260,964 – 4,712,964 

Table A.15: Overview of costs per stakeholder category 

Stakeholder category 

European Commission 

Member States 

SIAs 

Airlines 

Total (€) 

Costs (€) 

1,913,483 

1,386,000 

3,260,964 – 4,712,964 

Negligible113 

6,296,447 – 7,748,447 

€ 6.3 – 7.7 million 

Costs versus benefits 
A majority of 65% (30 of the 46 respondents) of the survey indicated that the benefits outweigh 
the costs. 11% (5) indicated that costs outweigh the benefits and 24% indicated they did not 
know. The results recorded per stakeholder group are shown in Figure A.36. 

112 See for an overview of DSA and hotel costs http://ec.europa.eu/dgs/education_culture/calls/222013/eac-
22-2013-annex5c_en.doc.  
113 Airlines representatives have indicated in a separate interview that the main ‘cost category’ for them – 
providing information to victims and families – was already an obligation under the ICAO guidelines and 
thus does not represent an additional cost as such. 

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Figure A.36: Benefits of the regulation currently outweigh the costs (N=46) 

Passengers and victims

0%

50%

50%

Aviation Community

43%

29%

29%

EU Member State (Policy Ministry, CAA)

29%

0%

71%

Safety Investigation Authorities

96%

4%
0%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100%

Yes

No

Don't know

Stakeholders expected this judgement to remain the same in five years’ time, as can be seen 
from Figure A.37 below.  

Figure A.37: Benefits of the regulation will outweigh the costs in five years’ time 

(N=46) 

Passengers and victims

0%

50%

50%

Aviation Community

43%

29%

29%

EU Member State (Policy Ministry, CAA)

29%

0%

71%

Safety Investigation Authorities

87%

0%

13%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100%

Yes

No

Don't know

It is noted that the costs of the regulation have been relatively larger for smaller SIAs than for 
larger SIAs, who had been performing many of the tasks before the introduction of the 
regulation. (See also answer to Evaluation question 5 below). 

Total costs for all stakeholder categories have been estimated at a range of € 6.3 – 7.7 million 
in total for the period 2011-2017. It is reasonable to assume that aviation safety has improved 
as a result of the regulation, hence the likelihood of aviation accidents is assumed to be 
decreased, and it is known from earlier research by Ecorys and NLR that the costs of a single 
aviation accident with a commercial airliner can easily amount to a few hundred million euros in 
case of many fatalities,114 while it is known from US research that general aviation accidents can 
cost more than $ 1 billion on a yearly basis.115  

114 Ecorys, NLR et al, Aviation Safety Improvement using Cost Benefit Analysis (ASICBA) research study, 
FP6 project No 12242. 
115 See for an estimation of the costs of aviation accidents in the US 
http://www.sciencedirect.com/science/article/pii/S0965856412001577.  

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Results from Accident Cases 
Not applicable. 

Answer to the question 
To answer this question of proportionality, the total costs and benefits need to be taken into 
account. Total costs for all stakeholder categories have been estimated at a range of € 6.3 – 7.7 
million in total for the period 2011-2017, including the costs for additional administrative tasks 
(see Evaluation question 5 below). The benefits of the regulation are the result of a decrease in 
the likelihood of aviation accidents due to improved safety recommendations. It is known that a 
single aviation accident with a commercial airliner can easily amount to a few hundred million 
euros in case of many fatalities.116 Overall the conclusion is that the benefits of Regulation (EU) 
No 996/2010 have outweighed the costs. 

From the analysis it becomes clear that the benefits of improved safety largely accrue to 
passengers, airlines and society as a whole, while the costs are borne by the European 
Commission and Member States. These are stakeholders who together represent European 
societies and whose mission it is to provide goods for the public interest.  

Therefore, it can be concluded that the costs have indeed been distributed proportionally to the 
benefits incurred across stakeholders. 

A5.23 Evaluation question 5 

Evaluation question 5: 
Which additional administrative tasks have been generated by the Regulation? 

Results from Desk Research 
An analysis of the regulation shows it mandates different types of administrative tasks as 
indicated in Table A.16. 

Table A.16: The regulation imposed additional administrative tasks 

Item 

For whom 

Preparing advance arrangements 

SIAs, judicial authorities 

Developing procedures of recording responses to safety 

SIAs 

recommendations and implementing these 

Developing plans for assistance to victims and families 

SIAs, airlines, (appointing) national 

coordinator victim assistance 

Recording safety recommendations and responses in 

SIAs 

ECCAIRS/SRIS 

Preparing ENCASIA meetings, organising travel 

SIAs, European Commission 

Peer reviews 

SIAs 

Plans and programmes for training, which have to be 

SIAs, CAA 

accepted by the Civil Aviation authority 

Results from Field Research 
Survey respondents were asked whether the regulation had introduced additional administrative 
tasks to their organisation. Table A.17 shows, percentage-wise, the division per stakeholder 
group with the absolute numbers in parentheses.  

Table A.17: The regulation imposed additional administrative tasks (N=44) 

Strongly 

Somewhat 

Neither 

Somewha

Strongly 

No 

disagree 

disagree 

disagree 

t agree 

agree 

answer 

nor agree 

116 See Ecorys, NLR et al, Aviation Safety Improvement using Cost Benefit Analysis (ASICBA) research 
study, FP6 project No 12242, and for an estimation of the costs of aviation accidents in the US 
http://www.sciencedirect.com/science/article/pii/S0965856412001577.  

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Strongly 

Somewhat 

Neither 

Somewha

Strongly 

No 

disagree 

disagree 

disagree 

t agree 

agree 

answer 

nor agree 

SIAs 

4% (1) 

4% (1) 

22% (5) 

52% (12) 

17% (4) 

0% (0) 

EU Member State 

29% (2) 

0% (0) 

14% (1) 

43% (3) 

0% (0) 

14% (1) 

(Policy Ministry, CAA 

etc.) 

Aviation Community 

14% (2) 

36% (5) 

7% (1) 

36% (5) 

7% (1) 

0% (0) 

From this, the following observations can be made: 

  A majority of 69% (16) of SIA respondents stated additional administrative tasks have 

been imposed, with 8% disagreeing; 

  Member States respondents are divided about the effect on their organisation, as 29% 
(2) stated that no additional administrative tasks have been imposed, while 43% (3) 
stated they somewhat agree additional tasks have been imposed; 

  Half (7) of Aviation Community respondents stated no additional administrative tasks 

have been imposed on their organisation, while 43% (6) state additional tasks have 
been imposed. 

Therefore, it seems the SIAs as a stakeholder group were most affected by additional 
administrative tasks. 

In addition, the majority of SIAs indicated in the survey and the interviews that they are 
(strongly) affected, although a few larger SIAs also indicated that they were already 
implementing all of the tasks as a regular activity, due to either their adherence to the ICAO 
Annex 13 guidelines and/or because they implement best practices.  

One respondent also noted that there are only slight impacts to his/her organisation and 
another noted that the regulation did not impose anything they would not or should not be 
doing anyway as best practice dictates. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
Based on a review of the regulation and on inputs from the survey and interviews, the 
additional administrative tasks have been identified: 

Preparing advance arrangements; 

 
  Developing procedures of recording responses to safety recommendations and 

implementing these; 

  Developing plans to provide assistance to victims and families; 
  Recording safety recommendations and responses in SRIS database; 
 
 
 

Preparing ENCASIA meetings, organising travel; 
Peer reviews; 
Plans and programmes for training, which have to be accepted by the national civil 
aviation authorities. 

The tasks “Developing procedures of recording responses to safety recommendations and 
implementing these” (second item) and “Recording safety recommendations and responses in 
SRIS database” (forth item) are considered administrative burden as per the definition in the 
Better Regulation Guidelines117: 

These tasks have mostly incurred additional work for SIAs. The total costs incurred by SIAs 
amounts to €3.3-4.7 million for the 2011-2017 period.  

117 Administrative costs are defined as the costs incurred by enterprises, the voluntary sector, public 
authorities and citizens in meeting legal obligations to provide information. The administrative burdens stem 
from the part of the process, which is done solely because of a legal obligation. 

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A5.24 Evaluation question 6 

Evaluation question 6: 
To what extent is the intervention coherent with the EU Aviation safety policy and 
Regulations? Are there any gaps, overlaps or inconsistencies? 

Answer to the question 
A comparison of the study team of Regulation (EU) No 996/2010 with Aviation Safety Policy and 
the relevant EU regulations as listed in Annex A did not identify any incoherence. Additionally, a 
large majority of the respondents to the survey agreed that Regulation (EU) No 996/2010 is 
coherent with the Aviation Safety Policy and EU regulations. Only Regulation (EU) No 376/2014 
led to a lack of harmonisation. This question will be further answered by answering the sub-
questions 6.1 through 6.5. 

A5.25 Evaluation question 6.1 

Evaluation question 6.1: 
To what extent is the intervention coherent with EU Aviation Safety policy, and in 
particular to Regulation 216/2008? 

Results from Desk Research 
A comparison between the EU Aviation Safety policy and Regulation (EU) No 996/2010 reveal 
no incoherencies. 

In principle, Regulation (EU) No 996/2010 is coherent with Regulation (EC) No 216/2008 (the 
Basic Regulation), although the latest revisions have raised a concern. Article 5 of Regulation 
(EU) No 996/2010 mandates the investigation of every accident or serious incident involving 
aircraft other than specified in Annex II of the Basic Regulation. The latest revision would also 
mandate the investigation of accidents and serious incidents of drones. ENCASIA has formulated 
an opinion in 2015 to allow flexibility in the investigation of drones (and manned aircraft with a 
MTOW of less than 2250kg). Although this is not incoherence per se, but it is questioned the 
implication is in line with the intentions behind Regulation (EU) No 996/2010. Currently, the 
alternative text formulated in the ENCASIA opinion has been incorporated in the revision of 
Basic Regulation. The revision of the Basic Regulation has not been completed. 

Results from Field Research 
Interviews 
In the interviews no incoherence of Regulation (EU) No 996/2010 with the EU Aviation Safety 
policy or the Basic Regulation were brought forward. 

Survey 
In the survey, respondents were asked if Regulation (EU) No 996/2010 is coherent with the 
Aviation Safety policy and other regulations including the Basic Regulation. Of the 44 
respondents, 5 could not provide an answer. Of the remaining 33 respondents, 30 (77%) 
agreed, while 4 (10%) (somewhat) disagreed, as depicted in Figure A.38. 

Figure A.38: Coherence between Regulation (EU) No 996/2010 and the Aviation 
Safety Policy and other regulations including the Basic Regulation (N=33) 

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Results from Accident Cases 
Not applicable. 

Answer to the question 
The evaluation did not identify incoherence with the EU Aviation Safety policy. 

In principle, Regulation (EU) No 996/2010 is coherent with Regulation (EC) No 216/2008 (the 
Basic Regulation), although the latest revisions have raised a concern. Article 5 of Regulation 
(EU) No 996/2010 mandates the investigation of every accident or serious incident involving 
aircraft other than specified in Annex II of the Basic Regulation. The latest revision would also 
mandate the investigation of accidents and serious incidents of drones. ENCASIA has formulated 
an opinion in 2015 to allow flexibility in the investigation of drones (and manned aircraft with a 
MTOW of less than 2250kg). Although this is not incoherence per se, it is questioned whether 
the implication is in line with the intentions behind Regulation (EU) No 996/2010. Currently, the 
alternative text formulated in the ENCASIA opinion has been incorporated in the revision of the 
Basic Regulation. The revision of the Basic Regulation has not been completed. 

A5.26 Evaluation question 6.2 

Evaluation question 6.2: 
To what extent is the intervention coherent with other EU instruments?  

Results from Desk Research  
Besides the regulations mentioned in the other questions on coherence, the following regulatory 
texts have an interaction with Regulation (EU) No 996/2010: 

  Commission Decision 2012/780/EU on access rights to the European Central Repository 

of Safety Recommendations and their responses (and its successors); 

  Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of occurrences in 

civil aviation; 

  Decision of the European Parliament and of the Council on a Union Civil Protection 
Mechanism – 1313/2013/EU in relation to civil aviation accident emergency plans; 

  Commission Implementing Decision No 2014/762/EU laying down rules for the 

implementation of Decision No 1313/2013 of the European Parliament and of the 
Council on a Union Civil Protection Mechanism; 

  Council Regulation (EC) No 2027/97 as amended by Regulation (EC) No 889/2002 on air 

carrier liability in the event of accidents; 

  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 for the support of 
air accident victims and their relatives; 

  Regulation (EU) No 2016/679 on the protection of natural persons with regard to the 

processing of personal data and on the free movement of such data. 

A comparison with these regulations and Regulation (EU) No 996/2010 did not identify any 
incoherence. 

Results from Field Research 
Interviews 
There is a duplication and/or lack of harmonisation in terms of reporting requirements in 
Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010 according to some 
interviewees. There are different channels through which to report an incident depending on 
whether it is categorised as an incident or a serious incident. There is a fine line between an 
incident and a serious incident, and there is no definitive list of serious incidents. It is therefore 
difficult for the reporting organisation to determine whether an incident is serious or not. In 
some cases, it may not be considered serious at the initial assessment, but data may later 
reveal the incident to be serious.  

The SIAs do not want that all incidents are reported to them as that would create too much 
additional work and because they want to remain an ‘outsider ’to the aviation system. 
Occurrence reporting according to Regulation (EU) No 376/2014 is seen as part of the internal 
information feedback loop of the aviation system. In 99 out of 100 cases, it is clear for the 

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reporter if an incident is serious or not and hence who to report to, but the 1 % is problematic.  

The incoherence between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010 is 
small and can be resolved by a uniform risk classification scheme.  

One interviewee questioned whether the coherence between Regulation (EU) No 996/2010 and 
the rest of the European safety environment that also mandates SMS is fully optimal. 

Survey 
In the survey, respondents were asked if Regulation (EU) No 996/2010 is coherent with the 
Aviation Safety Policy and other regulations including the Basic Regulation. Of the 44 
respondents, 5 could not provide an answer. Of the remaining 33 respondents, 30 (77%) 
agreed, while 4 (10%) (somewhat) disagreed, as depicted in Figure A.38 above.  

Workshop 
According to Regulation (EU) No 376/2014, reporting must be done within 72 hours, but for 
accident investigation, a time delay of 72 hours is too long. In practice, this is not an issue for 
accidents (these are reported promptly) but it can be a problem for serious incidents. This was a 
problem already before Regulation (EU) No 996/2010. 

For reporters of an incident, it may not be obvious whom to report to, as they might not be able 
to determine whether an incident is serious or not. There may be different views on whether an 
occurrence is an incident or a serious incident. There is also an administrative burden of two 
reporting systems. 

Safety related cyber security might also be a problem, as there is also a requirement to report 
cyber security events (Article 19 of Regulation (EU) No 910/2014). 

Possible solution: Education and better coordination between NAA, EASA and SIA, including 
coordination of the flow of information; using a single point of contact for occurrences should be 
encouraged. 

A possible solution is that the NAA only classifies up to “potentially serious incident”, avoid the 
use of the pre-defined “serious incident” and let the SIA decide if it is a serious incident. For 
further clarification, a database could be set up that captures the justification of classification as 
serious incidents. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
No incoherence with other regulations was identified, except for a perceived lack of 
harmonisation between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010. 

Accidents and serious incidents, as defined within Regulation (EU) No 996/2010, are to be 
reported under Regulation (EU) No 376/2014 (Article 2(7)). It means a double reporting could 
be required in a situation where a person is subject to mandatory reporting obligations in 
accordance with Regulation (EU) No 376/2014. The SIAs perceive a lack of harmonisation 
between Regulation (EU) No 376/2014 and Regulation (EU) No 996/2010. 

There are several aspects here: 

 

For the reporter – Regulation (EU) No 376/2014 contains the occurrences (including 
accidents and serious incidents) that shall be reported through the mandatory reporting 
systems118 to the competent authority established by Regulation (EU) No 376/2014. In 
the majority of the cases, the SIA is not that competent authority. In addition, if the 
reporter considers that the occurrence is a serious incident or an accident, the reporter 
must report to the SIA as well under Regulation (EU) No 996/2010 article 9. Moreover, 
for reporters of an incident, it may not be obvious whom to report to as they might not 
be able to determine whether an incident is serious or not; 

118 Not all occurrences are to be reported and not everybody is subject to the mandatory occurrence 
reporting system. This information can be found in Regulation (EU) No 376/2014. 

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 

For the SIAs – The SIAs have concerns that if occurrences are classified as representing 
a significant risk to aviation safety by the competent authority under Regulation (EU) No 
376/2014, this would mean that there are considered as 'serious incidents', hence the 
SIA’s obligation to investigate would be subject to a classification by another competent 
authority. Strictly speaking, this concern is not justified, as the safety risk classification 
of occurrence reports in Regulation (EU) No 376/2014 does not define what is a serious 
incident or accident. Another issue for the SIAs is that serious incidents and/or accidents 
could be reported only to the competent authority under Regulation (EU) No 376/2014 
and not to the SIAs.  

Hence, people should be aware of the different reporting channels. Member States are 
responsible for an appropriate set up of the national reporting systems to allow the authorities 
to be aware of the information and to cope with their respective duties. Effective coordination 
between the competent authority under Regulation (EU) No 376/2014 and the SIAs is deemed 
necessary.  

A5.27 Evaluation question 6.3 

Evaluation question 6.3: 
In how far was the Regulation coherent with other rules on protecting data and 
human rights?  

Answer to the question 
The first question that must be addressed in this context is whether the provisions of the 
regulation must comply with human rights and data protection as the subject of the regulation 
is a very specific one, allowing for divergences from the general rules, because of reasons of 
protecting public order and aviation safety. The regulation focuses on aviation safety, but leaves 
it to the laws of Member States to set a balance between the two objectives, as to which see in 
particular Article 14(3) of the regulation on the disclosure of safety sensitive information.  

For instance, Sweden knows a Freedom of Information legislation, which comes under 
constitutional provisions of that country. Thus, judicial authorities may obtain evidence from 
investigation and data laid down in the SIA reports. In practice, the final report of the SIA can 
be used for the prosecution of crimes. Sweden is a country in which the issue of matching the 
‘safety culture’ with the protection of human rights and data is illustrated in the most articulated 
fashion.  

In 2016, the EU has adopted the General Data Protection Regulation, and the Passenger Name 
Record (PNR) directive, integrating the privacy legislation in these instruments. The objective of 
this new set of rules is to give citizens back control over their personal data, and to simplify the 
regulatory environment for business. This point is, among others, the subject of Opinion (1/15) 
of the CJEU requested by the European Parliament concerning the compatibility of the 
preservation of with EU treaties and the EU Charter of Fundamental Rights, especially Articles 7 
and 8 on the right to privacy and data protection. The decision of the European Court is 
expected to be given on 26 July 2017119. 

Up to now, there have been no incoherencies found with other rules on protecting data and 
human rights. 

A5.28 Evaluation question 6.4 

Evaluation question 6.4: 
In how far do the provisions of the "solidarity clause" (Art.222 TFEU) address the 
authorities cooperation, in particular with regard to civil protection? 

Results from Desk Research 
1. Approach 
This section aims at analysing whether the solidarity clause laid down in Article 222 of the 
Treaty on the Functioning of the EU (TFEU) can help to stimulate or perhaps even force, in case 

119 http://curia.europa.eu/juris/document/document.jsf?docid=193216&doclang=EN. 

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there is a legal obligation for the SIAs of EU Members States flowing form this provision, to 
provide assistance in case of accident and incident investigation. This question will be addressed 
under: 

 

the terms of Article 222 TFEU, as implemented in Council Decision 2014/415/EU of 24 
June 2014 on the arrangements for the implementation by the Union of the solidarity 
clause; 

  general principles of EU law; 
 
 
 
  Comments made by authors. 

international law, including international air law; 
the provisions of Regulation (EU) No 996/2010; 
case law, if available; 

This section concludes that the solidarity clause has a limited value for strengthening the duty of 
SIAs to cooperate in the context of accident investigation. The special provisions of Regulation 
(EU) No 996/2010, combined with the rather generally formulated rules of the solidarity clause 
as explained in Council Decision 2014/415/EU, appear to justify this conclusion. 

2. Legal analysis 

2.1 The terms of Article 222 TFEU 
Article 222 TFEU deals with three situations, to wit: 

a)  Terrorist attacks; 
b)  Natural disasters such as storms, floods, earthquakes and volcanic eruptions; 
c)  Man-made disasters. 

If at all, accidents in aviation are mostly qualified as ‘man-made disasters’, Council Decision 
2014/415/EU which is discussed in the next section defines the term ‘disaster.’ 

The formulation of this provision is rather vague which has created a number of practical 
questions, which have in part been resolved by the Council Decision 2014/415/EU as to which 
see, for instance, the definition of the term ‘disaster’ and the scope of the obligations of the EU 
and the Member States. For the present purposes, Article 222 does not lay down a ‘best effort’ 
obligation on the Member States to cooperate or to take measures when a disaster occurs. The 
‘softness’ of this provision when it comes to deal with inter-Member States relations is 
articulated by the addition of Declaration No 37 which reads as follows: 

“Without prejudice to the measures adopted by the Union to comply with its solidarity obligation 
towards a member State which is the object of a terrorist attack or the victim of a man-made 
disaster, none of the provisions of Article 222 is intended to affect the right of another Member 
State to choose the most appropriate means to comply with its own solidarity obligations 
towards that Member State.” (italics added) 

Hence it would seem that EU States may choose to act, and when they act, it is up to them to 
choose how to act: by the provision of financial or human resources, or yet otherwise. However, 
some level or sort of solidarity must be shown; if not, Article 222 TFEU would not make sense.  

However, the first ‘stakeholder’ in terms of solidarity appears to be the Union itself as it is 
supposed to express its solidarity in a more extensive way than the Union. That said, the EU 
and the Member States must ‘act jointly in spirit of solidarity.’120 

Another question pertains to enforcement. Can a Member State be obligated to provide 
assistance to another State, that is, can the EU Commission force a Member State to take 
measures for the other Member State? We believe that in practice, also based on the above 
analysis, this would not be an easy task. Article 222 TFEU does not specify obligations, which 
may serve as a defence for them. 

120 See, Peter Hilpold, Filling a Buzzword with Life: The implementation of the Solidarity Clause in Article 222 
TFEU, 42(3) Legal issues of Economic Integration 209-232 (2015) at 218. 

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2.2 Implementation in Council Decision 2014/415/EU 
Again, Council Decision 2014/415/EU appears to focus on action by the Union. It is based on the 
assumption that resources are available on the EU level to take action in the context of the 
principle of solidarity. Here too, the solidarity clause has been interpreted in a somewhat 
restricted fashion. This is evidenced by the ‘Explanatory Memorandum’ attached to the Joined 
Proposal of 2012, which states the following: 

“Implementation arrangements for the Solidarity Clause do not replace any existing instruments 
or policies and the specific procedures for their activation. They provide an umbrella framework 
for situations of extraordinary threat or damage that overwhelm the response capacities of the 
affected Member State(s).” 

A commentator concluded that Council Decision 2014/415/EU “tried to limit as far as possible 
the financial implications of the solidarity clause.” Thus, next to the rather vaguely formulated 
obligations of Article 222 TFEU, Council Decision 2014/415/EU “takes a clear – and rather 
pronouncedly restrictive – stance.” 121 

Importantly, Council Decision 2014/415/EU also defines the term ‘disaster’, which is a 
prerequisite for the application of the solidarity clause. A disaster is: 

“any situation which has or may have a severe impact on people, the environment or 
property, including cultural heritage.” 122 

The Reference can also be made to Regulation (EU) No 2012/2002 introducing a Solidarity Fund 
for cases of principally natural disasters such as floods and earthquakes but it does not exclude 
man-made disasters as explained above. However, its focus lies on ‘major’ disasters which term 
is described as: 

“any disaster resulting, in at least one of the States concerned, in damage estimated 
either at EUR 3 billion in prices, or more than 0.6 % of its GNI.” 

Also, the major disaster must yield: 

“serious repercussions on living conditions, the natural environment or the economy in 
one or more regions or one of more countries occurs on the territory of that State.”  

It would seem doubtful that an aviation accident complies with these criteria.  

For the present purposes, a most relevant provision concerns the entitlement of a Member State 
to “invoke the solidarity clause” if “it considers that the crisis clearly overwhelms the response 
capabilities valuable to it.”123 A crisis is “a disaster or terrorist attack of such a wide-ranging 
impact or political significance that it requires policy coordination and response at Union political 
level.”124 In case of aviation, this rather heave condition may be fulfilled if a European variant of 
‘9/11’ occurs, but not in a ‘regular’ aviation accident. Response arrangements at Union level are 
central in this Council Decision of 2014; they are drawn up in Article 5.  

2.3 General principles of EU law 
Solidarity is of course a basic concept for cooperation in the EU. To begin with, the Preamble of 
the Treaty of Rome of 1957 mentioned it as a binding factor in Europe. However, the term is 
nowhere defined, and must be interpreted pursuant to the context in which it is used. 

According to Article 5(3) of the Treaty on the European Union (TEU), the promotion of solidarity 
is one of the principle objectives of the EU. This objective is elaborated in Article 21(1) of the 
TEU, which outlines the EU’s development and enlargement.  

121 See, Peter Hilpold, Filling a Buzzword with Life: The implementation of the Solidarity Clause in Article 222 
TFEU, 42(3) Legal issues of Economic Integration 209-232 (2015) at 223-224. 
122 See, Art. 3(a). 
123 See, Art. 4. 
124 See, Art. 3(c). 

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Solidarity must also be observed in relation to immigration policies, border control and the 
management of the financial crisis. In this respect, Advocate General Kokott explained in her 
opinion in a case before the Court of the EU that there are limits to this principle.125  

Next and this point may be related to the foregoing point, the limits of the application of the 
general principle of solidarity must, in our view, be seen in light of the adagium lex speciali 
derogate legi speciali: the special law prevails over the general law. This holds also true for air 
transport, which is covered by the special rules of Article 100 of the TFEU, whereas the 
transport services generally are regulated by the Title VI on Transport rather than by the 
general title on the provision of services (Title IV, Chapter 3). Thus, the next section will briefly 
look at Regulation (EU) No 996/2010, which includes the special rules on cooperation between 
Member States in relation to accident investigation. 

Those rules are known, and laid down in Article 6.126 This provision is also formulated in rather 
noncommittal terms because a Member State may request assistance from the SIA of another 
Member State or Member States. A SIA may delegate the investigation task to the SIA of 
another Member State, but there is no obligation to do so. 

The question is therefore whether these rules are reinforced by, the general provisions of the 
TFEU, in particular the solidarity clause, as to which see the conclusions below. 

3. Conclusions 
It would seem that the solidarity clause only marginally affects the provisions on cooperation 
between SIAs of different Member States. Article 222 TFEU concerns the duties of the EU rather 
than those of the Member States. It would seem that Member States do not even have to 
undertake their ‘best efforts’ to help each other when a disaster arises.  

The next question is whether an aviation accident can be qualified as a disaster as meant in 
Article 222 TFEU. This could be the case in specified but not all instances. 

Furthermore, Council Decision 2014/415/EU employs a relatively restrictive language when it 
comes to the duties of the Member States in respect of demonstrating solidarity. Thus, the 
solidarity clause as interpreted and elaborated in Council Decision 2014/415/EU has basically a 
complementary nature – supplementing the existing special provisions, such as those of Article 
6 of Regulation (EU) No 996/2010. 

This is not to say that the solidarity clause has no added value at all, that is, added to the 
commitments which EU States have undertaken in Article 6 of Regulation (EU) No 996/2010. 
Hence, it could be relied on because of its “inspirational value” as it makes clear that basic 
security challenges can only be overcome by showing solidarity. This conclusion is also 

125 Solidarity of the Member States: 

142. “Further, a broad interpretation of Article 125 TFEU would be incompatible with the concept of 

solidarity, as laid down at various points in the Treaties. For example the parties to the EU Treaty 
are, in accordance with the preamble to that Treaty, pursuing the desire ‘to deepen the solidarity 
between their peoples’. Under the third subparagraph of Article 3(3) TEU, the Union is to promote 
‘economic, social and territorial cohesion, and solidarity among Member States’. In the chapter on 
economic policy, Article 122(1) TFEU refers explicitly to solidarity between Member States; 

143. Admittedly, it cannot be inferred from the concept of solidarity that there exists a duty to provide 

financial assistance of the kind that is to be provided by the ESM. None the less, a broad teleological 
interpretation of Article 125 TFEU would also indeed prohibit the Member States, in a case of 
emergency, for example, to prevent the serious economic and social effects associated with a State 
bankruptcy, from voluntarily providing mutual assistance. Emergency assistance to any third State 
would be permitted, while emergency assistance within the Union would be banned. Such a 
prohibition, it appears to me, would call into question the very purpose and objective of a Union.” 

144. Basic fundamental principles of the Treaties therefore militate against a broad interpretation of 

Article 125 TFEU. 

126 Article 6 - Cooperation between safety investigation authorities: 

1. A safety investigation authority from one Member State may request the assistance of safety 

investigation authorities from other Member States. When, following a request, a safety investigation 
authority agrees to provide assistance, such assistance shall, as far as possible, be provided free of 
charge; 

2. A safety investigation authority may delegate the task of conducting an investigation into an accident 

or serious incident to another safety investigation authority subject to mutual agreement and shall 
facilitate the investigation process by that other authority. 

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supported by the obligation of ‘loyal cooperation’ drawn up in Article 4.3 TEU, underpinning 
intra-EU solidarity. 

Results from Field Research 
Not applicable. 

Results from Accident Cases 
Not applicable. 

Answer to the question 
The solidarity clause only marginally affects the provisions on cooperation between SIAs of 
different Member States. Article 222 TFEU concerns the duties of the EU rather than those of 
the Member States. It would seem that Member States do not even have to undertake their 
‘best efforts’ to provide mutual assistance when a disaster arises.  

The next question is whether an aviation accident can be qualified as a disaster as meant in 
Article 222 TFEU. This could be the case in specified but not all instances. 

Furthermore, Council Decision 2014/415/EU on the arrangements for implementation by the 
Union of the solidarity clause employs a relatively restrictive language when it comes to the 
duties of the Member States in respect of demonstrating solidarity. Thus, the solidarity clause 
as interpreted and elaborated in the Council Decision 2014/415/EU has basically a 
complementary nature – supplementing the existing special provisions, such as those of Article 
6 of Regulation (EU) No 996/2010. 

This is not to say that the solidarity clause has no added value at all, that is, added to the 
commitments which EU States have undertaken in Article 6 of Regulation (EU) No 996/2010. 
Hence, it could be relied on because of its “inspirational value” as it makes clear that the 
challenges can only be overcome by showing solidarity. This conclusion is also supported by the 
obligation of mutual assistance drawn up in Article 4(3) of the Treaty on the European Union, 
underpinning intra-EU solidarity. 

A5.29 Evaluation question 6.5 

Evaluation question 6.5: 
To what extent is the intervention coherent with other EU instruments with regard 
to safety and security possible overlaps? 

Answer to the question 
Interviewees have been asked if they are aware of any EU instruments with regard to safety 
and security possible overlaps with which Regulation (EU) No 996/2010 is not coherent. No 
indications were received on any incoherencies with other EU instruments with regard to safety 
and security possible overlaps. 

A5.30 Evaluation question 7 

Evaluation question 7: 
What does the Regulation add to the work on accident investigation being done by 
the Member States either individually and within the context of Member States’ 
obligations under ICAO? 

Regulation (EU) No 996/2010 added to the work on accident investigations being done by the 
Member States, either individually or within the context of the previously existing Regulatory 
framework (i.e. Directive 94/56/EC and ICAO Annex 13 obligations), in three main ways: (1) 
through the introduction of additional or new requirements in the regulation, (2) through the 
provision of additional clarification on requirements or roles in the existing Community 
legislation, and (3) by embedding ICAO SARPs in EU legislation. An assessment of these 
changes in comparison with the counterfactual scenario as outlined in Section 4.1 is 
summarised below for each of the five initial needs.  

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Results from Desk Research 
Lack of uniform investigation capability 
A key objective of the regulation was to strengthen the independence of the national SIAs in 
line with ICAO Annex 13. As discussed in Evaluation question 2.1.2, independence of the SIAs is 
achieved in the majority of Member States but the independence had already been established 
under the repealed Directive 94/56/EC. However, as indicated in the survey results the 
regulation has helped to strengthen the independence. A study by the commission127 indicates 
that the regulation has contributed to change the perception of some organisations who 
consider the SIAs more independent than before the regulation. 

In the counterfactual scenario, ESASI, ISASI and ECAC-ACC exist for information sharing, albeit 
on less frequent basis than ENCASIA, and with a wider scope (beyond EU). No such networks 
provided opportunities for training courses, peer review or other development programmes like 
in ENCASIA. Although the majority of SIAs have not experienced any change to their national 
investigation capacity since entry into force of the regulation128, it is largely due to external 
factors, most notably the economic crisis that began in 2008. Thus, the added value of the 
regulation in terms of harmonising and enhancing investigation resources at national level was 
offset by the effects of the economic crisis.129  

Tensions between safety investigations and other proceedings 
The requirement to establish advance arrangements between the national SIAs and other 
investigatory bodies, most notably the judicial authorities, strongly contributed to clarifying the 
respective roles in the investigatory process, thus mitigating potential tensions arising between 
the various proceedings. In the counterfactual scenario, while a small number of Member States 
had established such arrangements, these were not required at the Community level or by ICAO 
Annex 13. The advance arrangements are therefore an important step to ensure the 
organisation of the coexistence of the safety investigations and the judicial investigations.  

From a legal perspective, the added value of Article 12(3) is that it implements 
Recommendation 5.4.4 of Annex 13 of ICAO, which recommends that States should ensure 
cooperation between its accident investigation authority and judicial authorities so that an 
investigation is not impeded by administrative or judicial proceedings. In other words, the EU 
has enhanced the legal status of ICAO provisions by the implementation of Article 12(3) in the 
regulation. 

Article 14 has helped to clarify obligations concerning the protection of sensitive safety 
information from disclosure or use for purposes other than safety investigations. However, in 
several Member States, the regulation has had “no or limited legal effect in restricting the 
powers of judges defined in the national codes of criminal procedure.”130 Related to this is the 
use of final reports as evidence in judicial proceedings, which is not covered by the regulation.  

From a legal perspective, the protection offered is not absolute, but since the latest amendment 
15 of Annex 13, the safeguards for safety information are strongly enhanced. States shall not 
make records available for purposes other than accident and incident investigation, unless “the 
competent authority designated by that State determines, in accordance with national laws and 
subject to Appendix 2 and 5.12.5, that their disclosure or use outweighs the likely adverse 
domestic and international impact such action may have on that or any future investigation.” 131 
The implementation of respective ICAO Standard in Regulation (EU) No 996/2010 and its impact 
on the national laws of the EU States has been discussed under Evaluation question 2.1.5. 
Courts are starting their own investigations in order to create transparency in the causes of the 
accident and to assist the victims in finding the appropriate remedies. For instance, in the 
Überlingen cases courts “went beyond the Accident Investigation Report’s analysis of the 
technology.”132 It remains to be seen whether this is a tendency and, if so, which effects it will 
have. Therefore, the conclusion on this aspect is that the EU added value has not fully 
materialised as anticipated, as the protection is not uniformly applied across the States.  

127 SWD(2016) 151. 
128 Ibid, p. 3; NLR / Ecorys targeted survey results. 
129 Ibid, p. 3. 
130 SWD(2016) 151 final, Annex, p. 8. 
131 Standard 5.12 of Annex 13. 
132 See, Dr. Hanna Schebesta, Risk Regulation through Liability Allocation: Transnational Product Liability 
and the Role of Certification, 42(2) Air & Space Law (2017), section 3. 

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Unclear role of the Community (EASA) in safety investigations 
The role of EASA is analysed in the answer to Question 8 below. In that section, it is concluded 
that there has been EU added value by clarifying the role of EASA. 

Weakness in implementation of safety recommendations 
The regulation gives a specific and formal role to SIAs in issuing safety recommendations (SRs), 
when necessary. Regarding follow-up of safety recommendations, the regulation enacted more 
stringent requirements than before while also ensuring that the requirements remain consistent 
with the recent edition of Annex 13 (10th edition, November 2010), which had introduced a 90-
day timeframe for actions to be taken following the issuance of a safety recommendation. This 
provision contributes clarity as well as accountability to the safety recommendation procedure 
and monitoring processes that was already established in the counterfactual scenario by ICAO 
Annex 13. From a legal perspective, the regulation (EU) No 996/2010 enhances the legal status 
of the Annex 13 SARPs regarding implementation of safety standards.  

The regulation also laid the basis for the SRIS database, which has added value for monitoring 
safety issues of EU relevance. The SRIS database does not exist in the counterfactual scenario, 
nor is there an instrument for identifying whether safety recommendations are relevant to the 
EU level or local level. There is also no EU-level overview of the deadlines for issuing safety 
reports or logging safety recommendation responses. The full potential of this tool has yet to be 
realised, due to access limitations and inconsistent implementation across Member States.  

Insufficient assistance to the victims of air accidents 
The EU added value of the assistance provided to victims of accidents, and their relatives, after 
such accidents stems from the fact that the ICAO regime does not deal with this. This issue was 
not addressed in the Community context prior to Regulation (EU) No 996/2010, though they 
were addressed at a general level through ICAO policy documents, guidance material and 
recommended practices outlined in the Chicago Convention. In this sense, the inclusion of 
specific provisions in the current regulation created new areas of potential benefit to be realised 
by relevant stakeholders compared to what would have been achieved in the counterfactual 
scenario.  

Additional requirements 
The regulation introduces the obligation to establish penalties for non-compliance with the 
regulation’s provisions, an obligation that was absent in the repealed Directive 94/56/EC. 
Moreover, given that ICAO does not have enforcement tools at its disposal, the added value of 
such a provision for ensuring compliance with the regulation is clear from an accountability and 
enforcement standpoint. However, its application in practice depends on the extent to which 
such penalties are actively imposed and whether they are sufficient to influence non-compliant 
States’ behaviour.  

Results from Field Research 
A large majority of respondents to the survey consider that the regulation is of added value, 
with 78% indicating that the regulation improves Member States’ work in the area of accident 
investigation compared to what could have been achieved by Member States either individually 
or within the context of Member State obligations under ICAO. Just 8% of respondents do not 
view the regulation to add value to the work on accident investigations. This view is held by 
aviation community respondents representing air traffic controllers, manufacturing industry and 
ANSPs.  

The prevalent view is that the regulation provides much needed guidance and clarification vis-à-
vis cooperation and collaboration on safety investigations, a view espoused in particular by 
small Member States’ SIAs, and the establishment of ENCASIA has been an essential 
contribution to these ends. One CAA replied that the main shortcoming preventing the full 
realization of benefits is that implementation is not sufficiently monitored and there are not 
standardization activities through EU Member States in this domain. On the issue of 
cooperation, although the advance arrangements are not yet uniformly implemented across 
Member States, in a number of States, the internal status of SIAs is said to have been 
strengthened as a result of the arrangements according to the respondents of the survey. For 
example, in Member States where the judicial authority is entitled to seize evidence in relation 
to an accident, the regulation ensures that rights are granted to SIAs, particularly regarding 
their immediate and unlimited access to and use of such evidence. 

When asked to reflect on added value of individual provisions, the top three 

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provisions considered to add value (i.e. responses ‘somewhat agree’ and ‘strongly agree’ that 
the provision adds value) were: 

  Article 17: Safety recommendations (71%); 
  Article 7: ENCASIA (70%); 
  Article 9: Obligation to notify accidents and serious incidents (69%). 

The bottom three ranked provisions (i.e. responses ‘somewhat agree’ and ‘strongly agree’ that 
the provision adds value) were: 

  Article 8: Participation by EASA and national CAAs in safety investigations (38%); 
  Article 21: Assistance to victims of air accidents and their families (45%); 
  Article 20: Information on persons and dangerous goods on board (52%). 

By way of contrast, the most frequently cited provision by respondents as not having added 
value (i.e. responses ‘somewhat disagree’ and ‘strongly disagree’ that the provision adds value) 
is Article 5 on the obligation to investigate, which was cited by 19% of respondents as having 
added no value, followed by Article 11 on the status of air safety investigators (16% disagree).  

Results from Accident Cases 
The most important added value of the regulation that emerged from the examination of the 
cases pertains to the provisions on the coordination of investigations. In the Pilatus case, as 
discussed above, an advance arrangement was not set up at the time the accident occurred. 
The absence of this agreement created clear problems between the prosecutors and air safety 
investigators; while the investigation was on-going, an advance arrangement was developed 
and agreed, which was instrumental for solving the issues on roles and responsibilities that had 
plagued the investigation to that point. The final report was published without incident. 
Similarly, initial tensions between investigations in the Germanwings case were effectively 
addressed once the advance arrangement was fully applied and adhere to by the relevant 
authorities.  

Additionally, the involvement of EASA proved beneficial in the cases to which it was associated, 
while the SRIS has enabled to the recording of recommendations of Union-wide relevance 
(SRUR).  

Answer to the question 
Regulation (EU) No 996/2010 has positively added to the work that was being done by Member 
States on accident investigations, either individually or within the context of their obligations 
under ICAO Annex 13 and/or the existing regulatory framework at EU level (i.e. Directive 
94/56/EC). The European added value of Regulation (EU) No 996/2010 is generated in three 
main ways: (1) through the introduction of additional or new requirements in the regulation, (2) 
through the provision of additional clarification on requirements or roles in the existing 
Community legislation, and (3) by giving legal force to certain Standards and Recommended 
Practices of ICAO (SARPs). On the latter point, while States must implement the ICAO SARPs in 
their national laws in order to give them legal force, ICAO does not have enforcement powers. 
The EU regulation fulfils a very useful role in this respect, as certain SARPs are now embedded 
in the regulation, and have thus received legal force in the EU Member States as Regulation 
(EU) No 996/2010 is directly applicable in the Member States and can be enforced by the 
European Commission in case of non-compliance. In this respect, the EU regulation is designed 
to achieve harmonisation of the SARPS on the EU level.  

The European added value results from a combination of factors, namely: enhanced legal 
certainty on the status of certain ICAO provisions as well as the role of the different actors in 
the event of an accident or serious incident, in particular the EU Commission, EASA and judicial 
authorities; gains from coordinated knowledge sharing and pooling of resources; and greater 
effectiveness of the safety investigation actors, procedures and outputs (i.e. safety 
recommendations). The positive effects of the various mechanisms are generally larger for 
Member States that did not have such well-established cooperation procedures, investigation 
processes and/or which did not have a sufficiently independent accident investigation bureau in 
place prior to Regulation (EU) No 996/2010.  

The main benefits of European value, which would not have materialised under a counterfactual 
scenario, are summarised below for each of the five problem areas:  

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Investigation capabilities 
ENCASIA reinforces the coordination role of SIAs in a European context by building on the 
previously existing cooperation between such authorities, and their available resources, through 
peer reviews, training activities and knowledge sharing. No such networks with a European 
focus existed in the counterfactual scenario. These activities, which are supported by the 
European Commission, will generate long term added value in the form of higher investigation 
capacities throughout the Union.  

Tensions with other proceedings 
The provision obligating States to establish advance arrangements implements 
Recommendation 5.4.4 of Annex 13 of ICAO, which recommends that States should ensure 
cooperation between its accident investigation authority and judicial authorities so that an 
investigation is not impeded by administrative or judicial proceedings. The EU has therefore 
enhanced the legal status of the respective ICAO provision with the implementation of Article 
12(3) in the regulation. The same applies to the implementation of Standard 5.12 of ICAO 
Annex 13 in Regulation (EU) No 996/2010 concerning the protection of sensitive safety 
information. The safeguard is not absolute, however, and questions remain as to the scope and 
application of Article 14 in practice (see Evaluation question 2.1.5).  

Unclear role of the Community in safety investigations 
EASA certify and approve products and organisations and provide oversight for certain fields in 
aviation. Therefore, they foresaw a role for themselves within safety investigations. Article 8 of 
the regulation provides clarity as to the role of EASA as well as CAAs in safety investigations. 
The ICAO regime is addressed to States without legal articulation as to the contributions from 
international organisations such as the EU and its bodies. Therefore, the provision establishes 
and clarifies the role of the Community in safety investigations and it works in practise 
according to the consulted stakeholders. 

Weak implementation of safety recommendations 
The regulation enacts more stringent requirements on the follow-up of safety recommendations, 
while also ensuring that the requirements are consistent with the latest edition of ICAO Annex 
13 at the time the regulation was adopted. The provision offers greater clarity and 
accountability regarding the safety recommendation process than existed previously. In addition 
to the added clarity, the added value of Article 18 stems from the fact that ICAO has no 
enforcement powers, therefore the provision(s) gives legal force to the ICAO norms.  

The regulation also established the SRIS database (Article 18(5)), which is the instrument for 
identify safety recommendations with Union-wide relevance. Despite divergent level of 
implementation and access restrictions, the Union dimension of the instrument creates 
European added value compared to what is achieved in the counterfactual scenario.  

Victims assistance 
The assistance provided to victims of accidents and their relatives after such accidents is not 
dealt with under the ICAO regime and it was not previously addressed at the Community level. 
The inclusion of specific provisions in the current regulation created new areas of potential 
benefit to be realised by relevant stakeholders compared to what would have been achieved in 
the counterfactual scenario. 

Another important added value of the regulation is more future-oriented: the functional 
separation of accident investigations is no longer in dispute or under discussion. That is, it is 
openly agreed that different government bodies have different investigation objectives and 
issues to investigate. In the long-term, the regulation makes clear the position and role of 
safety investigations vis-à-vis other proceedings, and thus making the very question a non-
issue.  

A5.31 Evaluation question 8 

Evaluation question 8: 
What is the relevance of this Regulation for the EU safety environment, in particular 
as regards to the role of EASA and the aviation industry? 

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Results from Desk Research 
Overall, the most important change introduced by the regulation with direct relevance to non-
SIA safety investigation stakeholders is the clarification provided on the role and involvement of 
EASA in accident investigations, given that its predecessor (Directive 94/56/EC) was conceived 
prior to EASA’s existence and the ICAO system extends only to States. Regulation (EU) No 
996/2010 bridges the “state-centric” focus of ICAO to meet the European reality within which 
EASA operates. Article 8 enables EASA to participate in investigations and to advise the IIC 
and/or accredited representatives. Article 8 further specifies the role and rights of national CAAs 
to participate to investigations, a provision that was absent in the repealed Directive 94/56/EC. 

From a legal perspective, there is a clear added value to Article 8 due to the fact that the ICAO 
regime is addressed to States, without legal articulation of contributions from international 
organisations such as the EU and its bodies. The regulation therefore clarified the previously 
unarticulated role of the European Commission, and in particular, EASA. At the same time, the 
regulation has not led to any significant change in the role of other regulatory authorities, in 
particular national civil aviation authorities (CAAs), because it was generally established prior to 
the regulation. 

As with CAAs, the role of aviation industry stakeholders has been largely unchanged since the 
regulation entered into force compared to ICAO or the repealed Directive 94/56/EC. The only 
provision that directly mentions industry stakeholders is the requirement that airlines and 
airports establish accident emergency plans – a requirement that was already established in 
certain Member States –, which are to be audited by the Member States. There is no evidence 
that the provision is of European added value in terms of any impact to the EU safety 
environment.  

The one area, which has afforded greater clarity from the perspective of many CAAs, is the 
procedure for processing safety recommendations, which is specified in much greater detail (i.e. 
timeframe, requirement to respond, etc.) under Regulation (EU) No 996/2010 compared to its 
predecessor. While a number of Member States already had such procedures in place prior to 
the regulation, in line with ICAO Annex 13, the regulation brings clarity for the EU level and 
aligns EU legislation to ICAO Annex 13.  

Results from Field Research 
In terms of functioning, stakeholders interviewed across all groups agree that the regulation has 
added clarity to the role of EASA in accident investigations through Article 8, and few see any 
negative impacts to the EU safety environment. According to one SIA interviewee, the response 
by EASA to safety recommendations has improved in the years since the regulation came into 
force, and their internal processes are considered to be significantly improved. The actual level 
of EASA involvement, however, is said to remain relatively low, thus calling into question the 
effectiveness, and thus added value of the provision on this issue.  

A majority of both CAAs and SIAs consulted agree that the regulation did not contribute to any 
practical change in cooperation between SIAs and CAAs, because these roles were already 
largely defined in Member States’ national legislation.133 For example, in Latvia, the CAA has 
concluded an inter-institutional agreement with the national accident investigation bureau (AIB), 
which addresses all questions and areas of concern related to the interactions between the two 
bodies. The basis of the agreement cover the exchange of information on occurrence and 
information sharing in the event that the CAA identifies risks from the occurrences or simple 
incidents that should be investigated by the AIB. This agreement is perceived to function 
effectively by the stakeholders interviewed.134  

According to stakeholders interviewed, cooperation with industry stakeholders was already clear 
prior to Regulation (EU) No 996/2010.  

Respondents to the targeted survey were requested to indicate their views on the EU added 
value of the regulation in relation to improved cooperation with, and clarification of roles among 
different stakeholders involved in the prevention and investigation of accidents and incidents in 
civil aviation. Figure A.39 shows the distribution of views vis-à-vis cooperation between SIAs 
and other authorities, aviation industry and EASA. Comments accompanying these responses 
are summarised below. 

133 Based on interview consultations with CAAs and SIAs and the NLR / Ecorys targeted survey results. 
134 Based on interview consultations with Latvian CAA. 

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Overall, respondents most agree that the regulation has had a positive impact on the 
cooperation with other relevant authorities – namely national civil aviation authorities – which is 
assessed positively by more than two-thirds of respondents (68%) and negatively by only 6%. 
By way of contrast, while exactly half of respondents agree that the regulation has clarified the 
role of EASA, slightly more than a quarter of respondents indicate that the regulation has not 
clarified the role of EASA (28%). This finding stands in contrast to those arising from the 
interview consultations, which generally identified the clarification of EASA’s role in the 
investigations as a clear and important benefit of the regulation. 

Figure A.39: EU Added Value vis-à-vis cooperation among different stakeholders 
(N=42) 

The following observations and comments were made in responses to the survey:  

 

 

 

 

The regulation does provide for the improvement of cooperation insofar as other entities 
are aware of the regulation and/or are aware of cooperative efforts; 
The regulation provides structure and clarifies the relationship between the SIA, EASA 
and NAAs. For small SIAs, for instance, the regulation provides for cooperation without 
requiring the establishment of individual MoU / MoU; 
The regulation helps to form a common understanding between relevant actors, and 
generally provides a better understanding of the investigative process and the 
obligations of States to investigate; 
The regulation has provided SIAs the opportunity to liaise with other authorities involved 
in the prevention and investigation of accidents and incidents in civil aviation, and discus 
if something should be changed when following both the regulation and ICAO Annex 13. 

Some industry respondents also indicated that cooperation was fine before and at no point has 
the regulation been quoted or used to improve it. According to ATCO representatives, the 
availability of email is far more impactful to cooperation than any regulation. It was suggested 
that maintaining a database of safety contacts, or even requiring all relevant actors to have a 
central e-mail address (e.g. safety@...), would be far more effective than implementing a new 
regulation.  

Other positive impacts to the safety environment are identified as follows:  

 

Increased efficiency in investigatory processes due to clearer understandings of 
obligations and roles; 

  More rapid and competent identification of safety issues and hazards; 
 
 

Protection of information has improved; 
The cooperation with the aviation industry and other aviation authorities has improved 
in positive way. 

Results from Accident Cases 
The regulation articulates a clear role for EASA in the investigation of accidents and serious 

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incidents, which is evidenced by the fact that EASA has not faced any difficulties or challenges 
to its participation in the accident case studies. For example, the BEA associated EASA as a 
technical advisor to the investigation of the Germanwings accident, and the role of EASA was 
reportedly clear throughout the investigation process. The Pilatus PC-6 investigation team was 
also supported by EASA, with no reported difficulties. EASA did not support the Polish SCAAI 
investigation team in the investigation of the Boeing 767 accident at Warsaw airport, though 
this was not reported to be an issue.  

The regulation’s provisions concerning the involvement of aviation industry stakeholders as 
advisors to the accredited representatives enabled a strong, positive collaboration throughout 
the investigation of the Germanwings accident case.  

Answer to the question 
The regulation appropriately clarified the role of EASA in accident investigations, enabling EASA 
to participate in the safety investigations and to advise the investigator-in-charge and/or the 
accredited representatives. This is widely considered a positive development compared to the 
previous situation. Aviation community representatives (manufacturing, airlines) have 
suggested that EASA’s involvement could be further strengthened to make the investigation 
process, including the resulting safety recommendations, more efficient and effective 
(respectively).  

Regarding CAAs, a majority of States consider that the regulation did not lead to any change in 
the role of CAAs, which was already well defined in the national regulatory frameworks. 
Consequently, the regulation generally had no impact on the nature of cooperation between 
CAAs and SIAs. The same finding applies to aviation community representatives, whose role 
was already considered to be clearly defined in national legislations.  

Stakeholder feedback, combined with evidence from the case studies, shows that the 
involvement of the State of Design and Manufacture (as required by Article 10), along with their 
technical advisor(s), throughout the entire investigation process has a strong positive impact on 
the quality of the investigation and its outcomes. Specifically, the expertise of these actors leads 
to more complete descriptions and understanding of aircraft system behaviour, and 
consequently, contribute to more accurate and effective recommendations. It can be concluded 
that the involvement of EASA, as well as industry representatives acting as technical advisors 
(albeit, the latter already well-established in many States prior to the regulation) positively 
impacts the EU safety environment. 

170 

 
 
 
 
 
 
 
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doi: 10.2832/00869