Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Council of the International Civil Aviation Organization, in respect of the Adoption of Amendment 17 to Annex 13
Date: 2019-02-04
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air safety, air traffic, civil aviation, international convention, international transport, revision of an agreement, transport accident

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 4.2.2019  COM(2019) 72 final 2019/0034 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Council of the International Civil Aviation Organization, in respect of the Adoption of Amendment 17 to Annex 13  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in the Council of the International Civil Aviation Organization (ICAO) in connection with the 
envisaged adoption of Amendment 17 to Annex 13 to the Chicago Convention by the ICAO 
Council in its 216th session.  

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on International Civil Aviation 

The Convention on International Civil Aviation (‘the Chicago Convention’) aims to regulate 
international  air  transport.  The  Chicago  Convention  entered  into  force  on  4  April  1947  and 
established the International Civil Aviation Organization.  

All EU Member States are Parties to the Chicago Convention.  

2.2. 

The International Civil Aviation Organization 

The International Civil Aviation Organisation is a specialized agency of the United Nations. 
The aims and objectives of the Organization are to develop the principles and techniques of 
international  air  navigation  and  to  foster  the  planning  and  development  of  international  air 
transport. 

The ICAO Council is a permanent body of ICAO with a membership of 36 contracting States 
elected by the ICAO Assembly for a period of three years. For the period of 2016-2019, there 
are seven EU Member States represented in the ICAO Council.  

Mandatory  functions  of  the  ICAO  Council,  listed  in  Article  54  of  the  Chicago  Convention, 
include  the  adoption  of  international  standards  and  recommended  practices,  designated  as 
Annexes to the Chicago Convention.  

The envisaged act of the International Civil Aviation Organization 

2.3. 
During  its  216th  session,  the  Council  of  the  International  Civil  Aviation  Organization  is  to 
adopt Amendment 17 to Annex 13 to the Chicago Convention regarding reporting and timely 
investigation of accidents and incidents (‘the envisaged act’). 

The  purpose  of  the  envisaged  act  is  to  amend  Annex  13  to  Chicago  Convention  –  Aircraft 
Accident and Incident Investigation based on the recommendations from the third meeting of 
the Accident Investigation Panel (AIGP/3) and based on a recommendation from the Second 
High-Level Safety Conference (HLSC2015). The amendment introduces changes in the areas 
of  timely  investigation  of  accidents  and  serious  incidents,  and  release  of  the  final  report; 
definition  for  “Accredited  representative”;  alignment  of  provisions  on  notification,  and 
dissemination of Final Reports; facilitation of the entry of investigators; rights and entitlement 
of  an  expert;  consultation  of  draft  safety  recommendations;  list  of  examples  of  serious 
incidents; and delegation of investigation.  

The proposed amendment to Annex 13 is envisaged to become effective as of July 2019 and 
be applicable as of 5 November 2020.  

EN 

1 

  EN 

 
3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1.  Main changes and their relationship with the existing Union rules 

The main change introduced by the proposal for Amendment 17 to Annex 13 (‘the proposal’) 
is  related to  'timely investigation of  accidents and serious incidents,  and  release of the final 
report'.  It  is  based  on  a  recommendation  from  the  Second  High-Level  Safety  Conference 
(HLSC2015).  There  have  been  accidents  when  the  State  of  Occurrence  did  not  conduct  or 
agree  to  delegate  the  investigation,  while  the  State  of  the  Operator  or  the  State  of 
Manufacture/Design deemed it necessary to investigate the occurrence. It is noted that there 
are  SARPs  entitling  the  State  of  Occurrence  to  delegate  an  investigation,  but  there  are  no 
SARPs or any other criteria entitling States to request the delegation of an investigation. The 
HLSC2015  considered  that  some  investigations  might  not  be  conducted  by  the  State  of 
Occurrence and recommended that  ICAO review relevant provisions in  Annex 13, with due 
consideration  when  the  State  of  Occurrence  does  not  conduct  an  investigation  called  for  in 
Annex 13 and does not intend to delegate the investigation to another State. It is recalled that 
the  State  of  Occurrence  has  investigation  obligations  called  for  in  Annex  13;  should  such 
obligations not be complied with, adversely affecting safety, the proposal would apply.  
The  proposed  “recommended  practices”1  concern  the  case  in  which  the  State  that,  under 
Annex 13, is in charge of the investigation (the State of Occurrence or of Registry, as the case 
may  be)  does  not  comply  with  its  duties.  Other  States,  as  identified,  may  then  “request”  a 
delegation.  In  case  there  is  no  action  by  the  State  in  charge  as  required  by  Annex  13,  the 
recommendations  stipulate  that  the  requesting  State  “should  institute  and  conduct  the 
investigation with such information as is  available”. Should the State of Occurrence decline 
the request to delegate the investigation, however, which is one of the possible outcomes, the 
requesting State would not conduct the investigation.  

The  problem  that  has  prompted  this  change  should  normally  not  arise  as  between  Union 
Member  States.  Article  5  of  Regulation  (EU)  No  996/2010  establishes  obligations  to 
investigate  and  define  scope  and  extend  of  the  safety  investigations,  and  defines  which 
Member State is in charge according to the case. Should a Member State fail to comply with 
these  obligations,  this  would  constitute  an  infringement  of  the  Union  law,  and  the 
Commission  would  be  entitled  to  launch  infringement  proceedings.  However,  if  the 
amendment proposed were to be adopted, failure by a Member State to conform to its duties 
of investigation (i.e. under Regulation (EU) No 996/2010 and, by the same token, Annex 13 
of  the  Chicago  convention)  could  give  rise  to  action,  under  new  points  5.1.3  and  5.3.2  of 
Annex 13, according to the case.  

Another subject regarding timely investigations relates to the late release of Final Reports or 
when no Final Report was released. A review of 1 157 fatal accidents that occurred between 
1990 and 2016 involving aircraft with a MCTOM over 5 700 kg indicated that 59 per cent of 
the  Final  Reports  were  not  publically  available.  The  lack  of  these  Final  Reports  is  a  major 
concern as relevant safety information is not available to implement safety actions. In some 
cases, States that participated in such investigations were aware of safety issues but unable to 
disseminate  the  information  as  the  responsibility  was  with  the  State  conducting  the 
investigation to release information either in the Final Report or in an interim statement.  
In this connection, the proposed “recommended practice”2 would “entitle” States participating 
in  the  investigation  to  request  consent  to  release  a  statement  containing  safety  issues,  if  the 
State conducting the investigation would not publish the Final Report or an interim statement 

1 
2 

To figure as points 5.1.3 and 5.3.2 of Annex 13 to the Chicago Convention. 
To figure as point 6.6.1 of Annex 13 to the Convention. 

EN 

2 

  EN 

 
                                                 
within  a  reasonable  timeframe.  This  kind  of  mechanism  is  not  in  contained  in  Regulation 
(EU)  No  996/2010,  nor  would  it  be  necessary  (see  consideration  set  out  above  regarding 
delegation)  

It should be noted that the two above mentioned items, presented as “recommended practices” 
alter  the  legal  position  in  the  matter,  in  the  sense  that  they  affect  the  allocation  of  tasks  as 
between ICAO States, as emerging from the pre-existing standards.  

Further areas on which the Accident Investigation Panel (AIGP/3) has recommended, as part 
of the proposal for Amendment 17 to Annex 13, to introduce changes are the following: the 
definition  for  “Accredited  representative”;  alignment  of  provisions  on  notification,  and 
dissemination of Final Reports; facilitation of the entry of investigators; rights and entitlement 
of  an  expert;  consultation  of  draft  safety  recommendations;  list  of  examples  of  serious 
incidents; and delegation of investigation.  

As  regards  the  change  to  the  definition  of  'accredited  representative',  the  proposed  text  fits 
with  Article  2  paragraph  2  of  Regulation  (EU)  No  996/2010  defining 
'accredited 
representative’ and stating an accredited representative designated by a Member State shall be 
from  a  safety  investigation  authority.  In  the  Union,  all  Member  States  have  established  a 
permanent and independent Aviation Investigation Authority.  

On  the  alignment  of  provisions  on  notification,  and  dissemination  of  Final  Reports,  the 
proposed amendments aligns various provisions of Annex 13 to the remainder of the Annex. 
The impact of these changes on the Union rules would have to be assessed and, where needed, 
a difference could be notified.  

The  proposed  amendment  of  the  Note  2  of  article  5.24  on  '  facilitation  of  the  entry  of 
investigators'  aims  to  remind  the  Member  States  that  the  establishment  of  prior  agreements 
between  the  accident  investigation  authorities  and  customs  authorities  within  a  State  may 
expedite  the  entry  of  the  investigation  personnel  and  equipment.    Article  12  of  Regulation 
(EU) No 996/2010 contributes to the implementation of this objective by means of advanced 
arrangements  that  should  be  established  with  other  authorities  likely  to  be  involved  in  the 
activities related to the safety investigation, in order to allow the technical investigation to be 
conducted diligently and efficiently.  

To avoid potential confusion related to the rights and entitlements of an expert with those of 
an accredited representative, it is proposed to delete the word “participation” from the heading 
of 5.27 because it is similar to those of 5.18 and 5.23 in which participating States are entitled 
to appoint accredited representatives to the investigation. The impact of these changes on the 
Union rules would have to be assessed and, where needed, a difference could be notified.  

The proposed Note to article 6.8 aims to inform the State conducting an investigation of the 
possibility  to  coordinate  draft  safety  recommendations  with  States  that  participated  in  the 
investigation.  This  text  fits  with  Article  17  of  Regulation  (EU)  No  996/2010  according  to 
which the Union Aviation Accident Authorities at any stage of the safety investigation shall, 
after  appropriate  consultation  with  relevant  parties,  send  any  safety  recommendation  that  it 
considers necessary.  

The proposed amendments to Attachment C 'List of examples of serious incidents' intends to 
assist  Aviation  Investigation Authorities in  their assessment on whether an occurrence is  an 
accident, serious incident or just an incident. The list is not exhaustive and it will evolve in the 
future to take into account new hazards such as unmanned aircraft or cybersecurity breaches. 
It  also  contains  a  short  guidance  for  AIAs  to  apply  a  risk-based  analysis  approach  when 
determining  if  an  incident  was  a  serious  incident  is  needed.  It  is  proposed  to  include  a 

EN 

3 

  EN 

 
simplified  version  of  the  Aviation  Risk  Management  Solutions  (ARMS)  event  risk 
classification (ERC) matrix in Attachment C.  

Annex  'List  of  examples  of  serious  incidents'  to  Regulation  (EU)  No  996/2010  contains 
typical examples of incidents that are likely to be serious incidents. The list is not exhaustive 
and only serves as  guidance with respect to the definition of ‘serious incident'. As such, the 
Union  welcomes  any  initiative  that  might  help  to  determine  in  a  harmonised  way  what  a 
serious  incident  is.  The  additions  suggested  are  not  matched  by  corresponding  items  in  the 
Annex  to  Regulation  (EU)  No  996/2010.  However,  they  appear  reasonable  and  in  the  same 
spirit  as  the  items  already  listed.  Should  one  or  more  of  these  items  nevertheless  create 
problems, differences can still be notified at later stage. 

The proposed change to Attachment F 'Investigation delegation agreements' refers to whole or 
partial  delegation  agreements  of  the  safety  investigation.  This  proposal  addresses  the 
importance of differentiating between the institution and the conduct of an investigation, and 
the  responsibilities  of  the  State  to  which  the  investigation  is  delegated.  It  introduces  the 
possibility  to  delegate  it  to  a  regional  accident  and  incident  investigation  organization 
(RAIO). 

There  are  several  articles  in  Regulation  (EU)  No  996/2010  dealing  with  this  area.  Article  6 
deals  with  cooperation  between  safety  investigation  authorities;  and  gives  a  safety 
investigation authority the possibility to delegate the task of conducting an investigation into 
an  accident  or  serious  incident  to  another  safety  investigation  authority  subject  to  mutual 
agreement.  Article  7  sets  up  the  European  Network  of  Civil  Aviation  Safety  Investigation 
Authorities (ENCASIA), which is supported by the European Commission, and has as one of 
its objectives providing, at the request of the safety investigation authorities for the purpose of 
the  application  of  Article  6,  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. For information, ENCASIA has been already listed 
as a RAIO in the ICAO register. Nonetheless, Regulation (EU) No 996/2010 does not allow 
the delegation from a safety investigation authority to a RAIO (ENCASIA). 

3.2. 

Position to be taken on Union’s behalf 

The  proposed  position  to  be  taken  on  behalf  of  the  Union  is  to  support  the  proposed 
amendment in its entirety.  

It  is  true  that,  next  to  the  cases  where  Union  legislation  is  already  in  line  with  changes 
proposed  by  Amendment  17,  there  are  some  points  where  such  alignment  is  missing  or  not 
certain.  

However, there are important arguments in favour of supporting the amendment as presented, 
it  being  understood  that  a  decision  as  to  whether  Regulation  (EU)  No  996/2010  should  be 
amended on certain details and/or whether differences should be notified in accordance with 
Article 38 of the Chicago convention can still be taken at a later stage.  

The first reason for supporting the amendment is that it represents an international consensus 
achieved  by  experts  coming  from  a  wide  spectrum  of  ICAO  Member  States,  including  a 
number  of  experts  from  the  European  Union  Member  States.  The  common  objective  of  the 
amendment’s  various  elements  consists  in  improving  the  international  system  of  aircraft 
accident  and  incident  investigation.  A  position  whereby  the  proposed  amendment  is  not 
supported  by  the  Union  Member  States  would  risk  undermining  the  international  efforts  to 
this  effect.  Secondly,  it  is  essential  that  the  Amendment  17  is  supported  in  its  entirety  as  it 
introduces  a  number  of  changes  that  are  inter-linked.  Decision  to  support  just  parts  of  the 
Amendment 17 would result in disturbing the internal logic of the proposed amendment and 

EN 

4 

  EN 

 
would  risk  further  misalignments  of  the  rules  contained  in  Annex  13.  Finally,  it  should  be 
noted  that  while  the  European  legal  framework  in  the  area  of  aviation  safety  investigations 
might  be  considered  both  comprehensive  and  effective,  this  is  not  the  case  in  a  number  of 
other ICAO Member States.  

As already mentioned, the above is without prejudice to the assessment, to be conducted at a 
later stage, as to whether the Union should amend its own rules and/or decide that differences 
be notified. In either case, the Commission would take the necessary initiatives. In particular, 
should it see the need for a difference to be notified, it would make a corresponding proposal 
for a decision under Article 218(9) TFEU. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement3. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’4. 

4.1.2.  Application to the present case 

The International Civil Aviation Organization is a body set up by an agreement, namely the 
Convention on International Civil Aviation.  

The act which the International Civil Aviation Organization is called upon to adopt constitutes 
an act having legal effects. The envisaged act has legal effects because it changes a number of 
standards, which are capable of creating a binding legal obligation under international law.  

the  Amendment 

introduces  a  number  of  changes  designated  as 
Furthermore, 
“recommendations”.  Despite  their  denomination,  these  “recommendations”  are  of  a  nature 
that alters the legal situation existing under the pre-existing standards.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 

3 

4 

EN 

Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

5 

  EN 

 
                                                 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a  single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to a common transport policy.  

Therefore, the substantive legal basis of the proposed decision is Article 100(2) TFEU.  

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

EN 

6 

  EN 

 
2019/0034 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Council of the 
International Civil Aviation Organization, in respect of the Adoption of Amendment 17 
to Annex 13 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2) in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  Convention  on  International  Civil  Aviation  (‘the  Chicago  Convention’)  which 
regulates international air transport, entered into force on 4 April 1947. It established 
the International Civil Aviation Organization (ICAO).  

The Member States are Contracting States of the Chicago Convention and members of 
the ICAO, while the Union has observer status in certain ICAO bodies.  

Pursuant  to  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  may  adopt 
International Standards and Recommended Practices.  
The ICAO Council during its 216th session, starting on 14 February 2019, is to adopt 
Amendment  17  to  Annex  13  to  the  Chicago  Convention  on  reporting  and  timely 
investigation of accidents and incidents. 

It is appropriate to establish the position to be taken on the Union's behalf in the ICAO 
Council as the proposed amendment has legal effect and is in whole or in part capable 
of  decisively  influencing  the  content  of  Union  law,  namely  Regulation  (EU)  No 
996/2010 of the Parliament and the Council5. 

The purpose of the amendment is  to introduce the following changes: in the areas of 
timely  investigation  of  accidents  and  serious  incidents,  and  the  release  of  the  final 
report;  the  definition  for  ‘Accredited  representative’;  the  alignment  of  provisions  on 
notification,  and  the  dissemination  of  Final  Reports;  facilitation  of  the  entry  of 
investigators;  rights  and  entitlement  of  an  expert;  consultation  of  draft  safety 
recommendations;  the  list  of  examples  of  serious  incidents;  and  delegation  of 
investigation 

(7) 

The Union is a strong supporter of these efforts by ICAO to improve aviation safety 
by ensuring a high level of efficiency, expediency, and quality of civil aviation safety 
investigations.  

5 

Regulation  (EU)  No  996/2010  of  the  Parliament  and  the  Council  of  20  October  2010  on  the 
investigation  and  prevention  of  accidents  and  incidents  in  civil  aviation  and  repealing  Directive 
94/56/EC (OJ L 295, 12.11.2010, p. 35) 

EN 

7 

  EN 

 
                                                 
(8) 

The  Union's  position  is  to  be  expressed  by  the  Member  States  of  the  Union  that  are 
members of the ICAO Council, 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  216th  session  of  the  Council    of  the 
International  Civil  Aviation  Organization  (‘ICAO’)  shall  be  to  support  the  proposed 
Amendment  17  to  Annex  13  to  the  Convention  on  International  Civil  Aviation  (‘Chicago 
Convention’) without prejudice to the right to notify differences in accordance with Article 38 
of the Chicago Convention.  

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the ICAO Council. 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

EN 

8 

  EN