Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 231st session of the Council of the International Civil Aviation Organization (ICAO) as regards the envisaged amendment to Annex 13 - Aircraft Accident and Incident Investigation
Date: 2024-02-19
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air safety, air traffic, civil aviation, data collection, exchange of information, international convention, international standard, revision of an agreement, transport accident

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   EUROPEAN COMMISSION  Brussels, 19.2.2024  COM(2024) 78 final 2024/0042 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 231st session of the Council of the International Civil Aviation Organization (ICAO) as regards the envisaged amendment to Annex 13 - Aircraft Accident and Incident Investigation  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns: 
(i)  the  position  to  be  taken  on  the  Union’s  behalf  in  the  231st  session  of  the  Council  of  the 
International Civil Aviation Organization (ICAO) for the envisaged Amendment 19 to Annex 
13 – Aicraft Accident and Incident Investigation 

(ii) the position to be taken on the Union’s behalf after the ICAO announces the  adoption of 
the  Amendment  19  to  Annex  13  –  Aicraft  Accident  and  Incident  Investigation  of  the 
Convention on International Civil Aviation in respective State Letters, inviting its contracting 
States to notify any differences or compliance with the adopted measures. 

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 Organization 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 2022-2025, there 
are six 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  (SARPs), 
designated as Annexes to the Chicago Convention. 

Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment of an 
Annex  shall  become  effective  within  three  months  after  its  submission  to  the  ICAO 
contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO  Council  may 
prescribe,  unless  in  the  meantime  a  majority  of  contracting  ICAO  States  register  their 
disapproval. 

Following  the  adoption  of  such  measures,  ICAO  States  are  required  to  comply  with  those 
measures or to notify either their disapproval or any differences with these measures before 
they enter into force and become legally binding. 

Pursuant to Article 38 of the Chicago Convention, any State which finds it impracticable to 
comply in all respects with any such international standard or procedure, or to bring its own 
regulations  or  practices  into  full  accord  with  respect  to  any  such  international  standard  or 
procedures  or  which  deems  it  necessary  to  adopt  regulations  or  practices  differing  in  any 
particular  respect  from  those  established  by  an  international  standard,  shall  give  immediate 
notification to the ICAO of the differences between its own practice and that established by 
the international standard.  

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The envisaged act of ICAO and their relationship with the existing Union rules 

2.3. 
During its 231st or any consequent session, the ICAO Council is expected to consider and 

adopt: 

– 

– 

Amendment 19 to Annex 13 – Aicraft Accident and Incident Investigation as referred 
to in the State Letter AN 6/1.2-22/85 is arising from deliberations at sixth meeting of 
the  Accident  Investigation  Panel  (AIGP/6).  It  relates  to  investigations  involving 
unmanned  aircraft,  release  of  investigative  information,  the  use  of  Global 
Aeronautical Distress and Safety System (GADSS), the reduction of the consultation 
period for the final report, as well as obligation to publish in the electronic format. 

The above Amendment has a potential to influence the EU law as explained more in 
details below.  

The envisaged Amendment covers the following areas as follows: 

– 

– 

– 

– 

– 

in relation to the investigations involving unmanned aircraft: to distinguish between 
manned  aircraft  and  remotely  piloted  aircraft  (RPA),  Annex  13  will  clarify  which 
types  of  RPA  occurrences  are  mandated  to  be  investigated.  In  addition,  the 
amendment proposes to clarify in Annex 13 the main elements of RPAs occurrences 
to which the investigator-in-charge should have access during investigations.  

in relation to the guidance for investigative authorities: the Amendment proposes to 
consider  the  release  of  information  early  in  the  investigations  of  accidents  and 
incidents  that draw heightened public  attention, as appropriate,  and then  later more 
formally with a written preliminary report.  

with  regard to the availability to  the investigation of recordings that originate from 
the fixed recorders fitted to the aircraft: the Amendment mandates such recordings to 
be made available without delay and ensures that those are not divulged without the 
consent of the State conducting the investigation. 

with  regard  to  the  consultation  period  for  draft  final  reports:  the  Amendment 
proposes to reduce the current consultation period to thirty days with a possibility to 
be extended to sixty days. 

Finally,  the  Amendment  proposes  to  raise  awareness  about  the  e-Library  of  final 
reports  and  introduces  a  preference  that  final  reports  are  submitted  to  ICAO  in  an 
electronic format.  

The  Amendment  is  envisaged  to  become  applicable  from  28  November  2024,  except  for 
provisions that relate to investigations involving unmanned aircraft, which are envisaged for 
applicability on 26 November 2026.  

Most  of  the  proposed  amendments  are  in  line  with  the  provisions  of  Regulation  (EU) 
996/20101, however some adjustments might be necessary at the level of implementation of 
Regulation  (EU)  No  996/2010.  In  particular  the  working  procedures  of  the  EU  Safety 
Investigation Authorities (SIAs) migh need to  be  appropriately supplemented/amended. The 
current EU legislative framework, Regulation (EU) No 996/2010, in its Article 16(4) specifies 

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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, OJ L 295, 12.11.2010, p. 35–50 

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that  the  safety  investigation  authority  shall  follow  the  international  standards  and 
recommended practices, which assures compliance with Annex 13.  

The  above  assessment  has  been  prepared  on  the  basis  of  a  contribution  received  from  the 
European  Network  of  Civil  Aviation  Safety  Investigation  Authorities  (ENCASIA).  The 
Network is set up by Article 7(1) of Reg (EU) 996/2010 and it is composed of the heads of the 
Safety  Investigation  Authorities  in  each  of  the  Member  States  and/or,  in  the  case  of  a 
multimodal authority, the head of its aviation branch, or their representatives. ENCASIA has 
the  duty,  among  others,  to  prepare  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.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. 

Proposed Amendments and their relationship with the existing Union rules 

Amendment 19 to Annex 13  

The  proposed  Amendment  as  referred  to  in  the  State  Letter  AN  6/1.2-22/85  cover  the 
provisions of Regulation (EU) 996/2010 and are in line with Union law.  

The  subject  matter  of  the  envisioned  amendments  fall  under  exclusive  Union  competence 
pursuant to the last limb of Article 3(2) TFEU. 

The  proposed  Amendment  would  contribute  to  the  improvement  of  aviation  safety  by 
ensuring  a  high  level  of  efficiency,  expediency,  and  quality  of  civil  aviation  safety 
investigations, the sole objective of which is the prevention of future accidents and incidents 
without  apportioning  blame  or  liability.  The  Union  acknowledges  the  need  for  improved 
accident  and  incident  investigations  including  the  publication  of  its  reports  by  introducing 
some changes to Annex 13 – Aicraft Accident and Incident Investigation.  

The  objective  of  the  proposed  changes  is  twofold:  On  the  one  hand,  to  assist  the  safety 
investigation authorities of the Member States in their investigations by identifying the types 
of  RPA  incidents  to  be  investigated,  and  also  by  making  available  without  delay  data  from 
fixed  recorders  installed  on  aircraft,  subject  to 
the  investigating  State  permission. 
Furthermore,  the  Amendment  recognises  the  increased  expectations  of  the  public  and  the 
media, and therefore the need to provide information more promptly during investigations of 
accidents  and  incidents  that  attract  increased  public  attention,  as  well  as  to  disseminate  the 
Final Reports in electronic format. Finally, the use of new technologies should help to reduce 
the consultation period, which will speed up the publication of the final report and the safety 
recommendations (if any) it contains, with a consequent benefit for aviation safety. 

The  current  EU  legislative  framework,  Regulation  (EU)  No  996/2010,  in  its  Article  16(4) 
specifies  that  the  safety  investigation  authority  shall  follow  the  international  standards  and 
recommended  practices,  which  assures  compliance  with  Annex  13.  There  is  no  perceived 
need to  amend Regulation (EU)  No 996/2010  or to  adopt  a new legislative act.  The correct 
implementation of the proposed Amendment 19 to Annex 13 can be achieved by adapting the 
current working procedures of the safety investigation authorities.  

The representatives of EU Member States and the European Union Aviation  Safety  Agency 
(EASA)  as  members  and  observers  to  the  ENCASIA  WG  7  in  charge  of  coordinating  the 
views  of  the  SIAs  as  regards  as  ICAO  State  Letters  related  to  safety  investigations, 
contributed to the development of the proposal related to the amendment 19. 

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The proposed position to be taken on behalf of the Union is then to support this Amendment. 

Hence,  the  position  to  be  taken  on  the  Union’s  behalf,  provided  the  ICAO  Council  adopts 
without any substantial change the proposed amendment 19 to Annex 13 – Aicraft Accident 
and  Incident  Investigation,  should  be  to  not  notify  any  disapproval  but  to  comply  with  the 
adopted  measures  in  reply  to  the  respective  ICAO  State  Letter.  Where  Union  legislation 
would deviate from the newly adopted ICAO Standards after an envisaged date of application 
of  those  Standards,  the  Union  position  on  the  differences  with  those  particular  Standards 
should  be  notified  to  ICAO  by  Member  States,  on  the  basis  of  preparatory  document 
submitted  in  due  time  by  the  Commission  to the Council  for  discussion  and  approval,  and 
setting out the detailed differences for the time necessary to complete the implementation.  

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 agreement2. 

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’3. As explained above 
the proposed Amendment falls within Union law (i.e. Regulation (EU) No 996/2010) 

4.1.2.  Application to the present case 

The ICAO Council is a body set up by an agreement, namely the Convention on International 
Civil Aviation (‘Chicago Convention’). 

In  accordance  with  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  adopts 
international  Standards  and  Recommended  Practices,  designated  as  Annexes  to  the  Chicago 
Convention.  These  are  acts  having  legal  effects.  Indeed,  once  adopted  and  effective, 
Standards  and  Recommended  Practices  adopted  by  ICAO  are  binding  on  all  ICAO 
Contracting States pursuant to Article 90(a) of the Chicago Convention. , which provides that: 
“The adoption by the Council of the Annexes described in Article 54, subparagraph I), shall 
require the vote of  two-thirds of  the  Council at  a meeting called for  that purpose and shall 
then  be  submitted  by  the  Council  to  each  contracting  State.  Any  such  Annex  or  any 
amendment of an Annex shall become effective within three months after its submission to the 
contracting States or at the end of such longer period of time as the Council may prescribe, 
unless in the meantime a majority of the contracting States register their disapproval with the 
Council”.  As  explained  above,  the  envisioned  Amendment  to  Annex  13  is  capable  of 
decisively influencing the content of Union legislation. Namely, the Amendment would bring 

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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, 

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need to adapt the current working procedures of the safety investigation authorities regulated 
by Regulation (EU) No 996/2010. .  

The envisaged acts do not supplement or amend the institutional framework of the agreement. 

Therefore,  the  procedural  legal  basis  for  the  proposed  Decision  position  in  respect  of  such 
notifications 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 
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 adopted act relate to the 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 Council Decision is Article 100(2) TFEU, in conjunction with 
Article 218(9) TFEU. 

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2024/0042 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the 231st session of the 
Council of the International Civil Aviation Organization (ICAO) as regards the 
envisaged amendment to Annex 13 - Aircraft Accident and Incident Investigation 

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 to the Chicago Convention and members of 
the ICAO, while the Union has observer status in certain ICAO bodies. There are six 
Member States represented in the ICAO Council. 

Pursuant  to  Article  54  of  the  Chicago  Convention,  the  ICAO  Council  may  adopt 
international Standards and Recommended Practices (‘SARPs’), and designate them as 
Annexes to the Chicago Convention. 
The  ICAO  Council,  at  its  231st  session,  is  to  adopt  amendment  19  to  Annex  13  – 
Aicraft Accident and Incident Investigation to the Chicago Convention.  

The main purpose of the amendment 19 to Annex 13 - Aicraft Accident and Incident 
Investigation to the Chicago Conventionto is to to improve aviation safety by ensuring 
a  high  level  of  efficiency,  expediency,  and  quality  of  civil  aviation  safety 
investigations.  

The  proposed  changes  aim  to  reach  these  objectives  by  assisting  the  safety 
investigation  authorities  of  the  Member  States  in  their  investigations  on  Remotely 
Piloted  Aircraft  (RPAS),  and  making  available  without  delay  information  and  data 
from recorders installed on aircraft.  The amendment also recognises the expectations 
of  the  public  and  the  media  to  be  informed,  and  therefore  includes  provisions  to 
provide timely factual information  during  safety  investigations. Furthermore, the use 
of  modern  technologies  may  facilitate  shortening  the  consultation  period  thus 
expediting  the  publication  of  the  final  report.  Finally,  sending  the  final  reports  in 
electronic format will help to upload them into the ICAO central database.  

(7)  

The European Network of Civil Aviation Safety Investigation Authorities (ENCASIA) 
set  up  by  Article  7  of  Regulation  (EU)  No  996/20101,  which  one  of  its  duties  is  to 

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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, OJ L 295, 12.11.2010, p. 35–50 

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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, has contributed to the development of the proposal related to 
the amendment 19. 

(8) 

(9) 

It is appropriate to establish the position to be taken on the Union's behalf within the 
ICAO  Council  as  the  Amendment  19  to  Annex  13  –  Aicraft  Accident  and  Incident 
Investigation  to  the  Chicago  Convention  will  be  binding  under  international  law  in 
accordance with Article 90(a) of the Chicago Convention and is capable of decisively 
influence EU law, in particular Regulation (EU) 996/2010.  
The Union's position during the 231st session of the ICAO Council or any consequent 
session  with  regard  to  the  adoption  of  the  envisaged  Amendment  19  to  Annex  13  - 
Aicraft  Accident  and  Incident  Investigation  to  the  Chicago  Convention  should  be  to 
support and comply with these amendments in their entirety.  

(10)  Pursuant  to  Article  38  of  the  Chicago  Convention,  any  State  which  finds  it 
impracticable  to  comply  in  all  respects  with  any  such  international  standard  or 
procedure, or to bring its own regulations or practices into full accord with any such 
international standard or procedures or which deems it necessary to adopt regulations 
or  practices  differing  in  any  particular  respect  from  those  established  by  an 
international  standard,  should  give  immediate  notification  to  the  ICAO  of  the 
differences between its own practice and that established by the international standard. 

(11)  Pursuant to Article 90 of the Chicago Convention, any such Annex or any amendment 
of  an  Annex  shall  become  effective  within  three  months  after  its  submission  to  the 
ICAO  contracting  States,  or  at  the  end  of  such  longer  period  of  time  as  the  ICAO 
Council may prescribe, unless in the meantime a majority of contracting ICAO States 
register their disapproval. 

(12)  The  Union’s  position  after  the  adoption  of  Amendment  19  to  Annex  13  -  Aicraft 
Accident and Incident Investigation to the Chicago Convention by the ICAO Council, 
to be announced by the ICAO Secretary General via an ICAO State Letter procedure, 
should be to not register any disapproval and to comply with the amendments. Where 
Union  legislation  would  deviate  from  the  newly  adopted  SARPs  after  an  envisaged 
date of application of those SARPs, a difference with those particular SARPs should 
be  notified  to  ICAO.  The  Union  position  with  respect  of  such  difference  should  be 
based  on  a  written  document  submitted  by  the  Commission  to  the  Council  for 
discussion and approval.  

(13)  This  position  should  be  expressed  by  all  the  Member  States  of  the  Union,  acting 

jointly in the interest of the Union 

HAS ADOPTED THIS DECISION: 

Article 1 

(1) 

(2) 

The  position  to  be  taken  on  the  Union's  behalf  in  the  231st  session  of  the  ICAO 
Council,  or  in  one  of  the  consequent  sessions,  shall  be  to  support  the  proposed 
amendment to Annex 13 – Aicraft Accident and Incident Investigation to the Chicago 
Convention in their entirety. 

The position to be taken on the Union’s behalf, provided the ICAO Council adopts 
without  any  substantial  change  the  proposed  amendment  to  Annex  13  –  Aicraft 

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Accident  and  Incident  Investigation  to  the  Chicago  Convention  referred  to  in 
paragraph 1, shall be to  not  register any disapproval  and to  notify compliance  with 
the  adopted  measure  in  reply  to  the  respective  ICAO  State  Letter.  Where  Union 
legislation would deviate from the newly adopted SARPs after the envisaged date of 
application  of  those  SARPs,  a  difference  with  those  particular  SARPs  shall  be 
notified to ICAO, in accordance with Article 38 of the Chicago Convention. 

In the event that Union legislation differs from the standards contained in the Annex 
13  to  the  Chicago  Convention,  the  Commission  shall,  in  due  time  and  at  least  two 
months  before  any  deadline  set  by the ICAO  for the notification of differences, 
submit  to the Council,  for  discussion  and  approval,  a  preparatory  document  setting 
out the Union  position  on  the  detailed  differences  to  be  notified  to the ICAO 
on the Union’s behalf by the Member States.  

Article 2 

The position referred to in Article 1(1) shall be expressed by the Member States of the Union 
that are members of the ICAO Council, acting jointly in the interest of the Union. 

The  position  referred  to  in  Article  1(2)  shall  be  expressed  by  all  the  Member  States  of  the 
Union, acting jointly in the interest of the Union. 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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