CELEX: 51993PC0406
Language: en
Date: 1993-09-01
Title: Proposal for a COUNCIL DIRECTIVE ESTABLISHING THE FUNDAMENTAL PRINCIPLES GOVERNING THE INVESTIGATION OF CIVIL AVIATION ACCIDENTS AND INCIDENTS

COMMISSION OF THE EUROPEAN COMMUNITIES
                                             C0MC93) 406 f i n a l
                                             Brussels» 1   Sspteiaber 1993
                            Proposal f o r a
                         fflWNH1  HIRECTIVE
    ESTABLISHING THE FUNDAMENTAL PRINCIPLES GOVERNING THE
    INVESTIGATION OF CIVIL AVIATION ACCIDENTS AND INCIDENTS
                   (presented by the Commission)
 ---pagebreak---                                    - 1 -
                           EXPLANATORY MEMORANDUM
I.  Introduction
    In November 1987 the Commission organised an Air Safety Symposium
    aiming at providing the forum for an exchange of information and
    Ideas on aviation safety and identifying priority areas for such
    action as may be appropriate at Community level.
    One of the three broad themes discussed during this symposium was
    the investigation of aircraft accidents. The conclusions drawn
    from the discussions*1* showed clearly that although the situation
    was generally satisfactory in Europe, Community actions in the
    fields of accident investigations was needed in a number of areas.
    In order to obtain more detailed information, the services of the
    Commission launched two specific studies which were completed in
    1989:
         "Cooperation and shared utilisation of available resources in
         aircraft accident investigation" by Geoffrey Wilkinson, former
         Chief Inspector of Accidents of the United Kingdom Accident
         Investigation Branch; and
         "Problems raised by the double enquiry into air accidents" by
         Lucien Rapp, Professor at the Faculty of Law.
    The results and conclusions of these studies were carefully
    assessed by experts from governments and Industry in a number of
    meetings organised by the services of the Commission in 1990.
(1) Proceedings of the Air Safety Symposium, Office for Off icial
    Pub I I cat ions of the European Communities, Luxembourg, 1988
 ---pagebreak---                                     - 2 -
       In 1991, the Commission, taking into account the comments of the
      experts and the discussions taking place in the international
      organisations, in particular ICAO and ECAC, issued a "Communication
      to the Council on Community initiatives concerning civil aviation
      incidents and accidents.
      This communication included a working programme which foresees,
      amongst others, legislative measures in the field of accident
      invest igat ion.
     Consequently the proposed measure is intended to lay down strong
     and common foundations for the investigations carried out by the
     Member States at national level.
      In 1992, a number of meetings with experts took place enabling the
     services of the Commission to draft the present proposal based on
      identified needs derived from shortcomings in the system.
II. Shortcomings In the present system
    The present system of aircraft accident investigation is governed
    by the international standards and recommended practices contained
     in the current edition of Annex 13 to the Convention on
     International Civil Aviation published by ICAO.
    While the process described above was taking place in the services
   of the Commission, a parallel evolution of thoughts was initiated
    in the aviation circles and in particular in ICAO.
   For this reason, ICAO organised in February 1992 a very large
   Accident Investigation Divisional Meeting (AIG 92) attended by more
   than 200 delegates from more than 70 countries and organisations.
   A large number of proposals to modify and update Annex 13 and other
   relevant ICAO documents were adopted in order to try to overcome
   the shortcomings identified by all those experts.
   The present proposal takes into account the work carried out at AIG
   92 and is therefore in line with latest and foreseen ICAO
   requirements, turning into Community       legislation a number of
   measures to correct shortcomings.
   First of all, the objective of the investigation must be clearly
   expressed: namely prevention of future accidents and incidents.
   Experience has shown when investigating several recent accidents in
   Europe that difficulties can arise from national legislations which
   do not provide for a clear separation between the technical
    investigation only    interested in accident prevention and the
   Judicial inquiry seeking for faults or liability. The existence of
   this double inquiry creates a very complex problem that could
   hamper the investigation of the accident and is aggravated by the
   fact that Judicial traditions vary from State to State.
 ---pagebreak---                                   - 3 -
    The potential conflict of interest could be avoided by defining
    very clearly the status of the technical          investigation and
    recognising a number of basic rights of the investigators to enable
    them to achieve their mission while respecting the legal procedures
    in force. The investigators and their work has also to be
    protected from misuse which could be counter productive by
    deterring the parties in an accident from cooperating by fear of
    subsequent legal action. Only factual information arising from the
    technical investigation should be available for use by the Judicial
    authorities, analysis or conclusions should remain limited to
    accident prevention use.
    The findings of the investigation are usually published in some
    form of report. The dissemination of the report including the
    safety recommendations derived from the investigation is of utmost
     importance in the interest of accident prevention. As an example,
     last year an accident happened in the USA with the same aircraft
    and in similar conditions as a Canadian accident three years
    earlier. The Canadian investigation report had not been officially
    sent to the US authorities.
    Although safety recommendations are sent to the relevant parties,
    very often there is no follow-up procedure to check if any action
    has been taken to correct the deficiencies. Such a procedure
    should be sufficiently flexible to allow the interested parties to
    either apply strictly the recommendations, apply other corrective
    action deemed more appropriate or reject the recommendations
    providing a reasonable Justification is given.
     In the Community, accident investigations are carried out by
    national bodies, the organisation of which differs greatly both
    with regard to the extent of their resources (human and material)
    and to independence vis-à-vis the national aviation authorities.
    The low probability of a major accident occurring in a small state
    does not Justify a large organisation but, should such accident
    happen, the possibility should exist to obtain at short notice the
    needed resources. Expertise could be brought from other Community
    accident investigation bodies according to the 1980 Directive on
    future cooperation and mutual assistance between the Member States
     in the field of air accident investigation*1) but this cooperation
    could be improved if all those bodies were working according to a
    number of common basic principles.
     In order to avoid possible conflict of interests, the investigating
    body should be independent of any party which could directly or
     indirectly have a responsibility in the cause of an accident.
(1) OJ no. 375, 31.12.1980
 ---pagebreak---                                   - 4 -
    Finally, an important modification proposed is to extend to serious
    incidents the investigation process applied to accidents. The
    investigation of accidents is a reactive activity and therefore not
    the best means of prevention. In addition, there is fortunately a
    very limited number of accidents. For this reason, investigation
    of serious incidents to the standards employed for accidents will
    provide a greater source of accident prevention data than is
    available through the investigation of accidents alone.
III. Application of the subsidiarity principle
    Due to the international nature of aviation and, in particular in
    the community where the liberalisation measures of air transport
    and the realisation of the single market will lead to more
    multinational operations, accident investigations will very often
    involve several Member States.
    The small number of aviation accidents does not Justify large
    investigation units and cooperation between units is therefore
    needed.
    New   international   standards   and   recommended practices   are
    definitely needed and the Community has the legal instruments to
    ensure a quick and efficient implementation of those standards in
    all the Member States.
    The present proposal could be considered as a framework directive,
    a number of articles setting goals leaving to the Member States
    freedom as to the way to reach these goals. However, due to the
    technical nature of this subject, it has been necessary sometimes
    to look into some matters in more detail.
    The burden for the majority of the Member States will be limited
    due to the fact that they already apply standards at least
    equivalent to those contained in Annex 13. However, some Member
    States and in particular the smaller ones, will have to change
    their legislation and invest in independent investigation units.
    The consultations carried out by the services of the Commission
    during the last five years have shown that usually in these Member
    States the technical authorities have recognised the need to
    proceed with those required changes and would welcome such a
    Community initiative as a support to give air safety the priority
    ranking it deserves.
    In addition, the Commission does not claim for any additional
    competence   in this field, but       by establishing   fundamental
    principles, it will encourage a better mutual cooperation between
    responsible bodies. As a consequence, the adoption of the present
    proposal could also permit to repeal the 1980 Directive on future
    cooperation and mutual assistance between Member States in the
    field of air accident investigation.
 ---pagebreak---                                  - 5 -
IVt Conclusions
    The present proposal is the outcome of a long process, started in
    1987 during which a wide consultation was organised at each stage.
    It should help the Member       States to bring their accident
    investigation methods and legislations up-to-date and encourage
    them to cooperate.
    Such an improvement should lead to a better understanding of
    accidents and    incidents and therefore contribute to a more
    efficient safety policy and prevention of accidents.
 ---pagebreak---                                  - 6
                    COMMENTS ON INDIVIDUAL ARTICLES
Article \
This article defines the general objective of the Directive which is
the improvement of air safety.
Article Z
This article defines the scope of the Directive. It covers not only
the investigations of accidents but also incidents. This is in
accordance with recent ICAO proposals.
In paragraph 1, the scope is limited to the Community while in
paragraph 2, the scope can be extended outside of the Community when an
incident occurs to a Community aircraft and no investigation is carried
out by the State where the incident occurred. This is due to the fact
that very often, it is the State of registry of the aircraft which is
better placed to carry out an investigation of an incident.
Article 3
This article defines      the terms used     in the Directive. These
definitions are those used by ICAO except h) which is a definition used
in other Community legislation on air transport^1).
Article 4
This article sets out the principle of the mandatory investigation of
every accident and also every serious incident. This last provision is
new but complies with ICAO guidelines. This article also do not
prevent the investigation body to investigate any other incident if it
could   be beneficial    to air   safety. In addition,      it  is the
responsibility of the investigation body to determine the type of
investigation and the efforts to invest into it according to the
knowledge that could be expected from an accident prevention point of
view.
(1) Council Regulation (EEC) no. 2407/92 of 23 July 1992 on licensing
    of air carriers; OJ no. L240 of 24.8.92.
 ---pagebreak---                                  - 7-
Article 5
The purpose of this article is to draw a clear dividing line between
the technical investigation and the Judicial enquiry. It establishes
the status of the technical investigation in order to reach the
objective of this Directive.
Paragraph 1 sets the general principle while paragraph 2 lists a number
of minimum rights necessary for the investigators to carry out their
mission.
Art|ç|e $
This article deals with the body responsible      for carrying out  the
technical investigation of aviation accidents.
Paragraph 1 gives the general principles: permanence and independence
 in order to avoid possible conflict of interest or any direct or
 indirect involvement in the causes of any investigated accident or
 incident.
Paragraph 2 enables small Member States which consider that even a
 limited permanent structure dealing only with investigations would not
be justified, to use also this structure as a safety data collection
and analysis unit running for example incident reporting system,
occurrences data bases etc.
Paragraph 3 deals with the minimum means necessary for such a structure
 to be operat ional.
Paragraph 4 contains some of the       provisions of Council Directive
80/1266/EEC therefore enabling it      to be repealed in the present
proposal.
Article 7
This article obliges the investigation body to publish a report to
ensure the widest possible dissemination of safety related information
 in the event of an accident.
 Paragraph 2 sets a goal of 12 months for the completion of the report.
 Setting a firm deadline could be counter productive by preventing long
 and sophisticated research which could be needed to reach important
 conclusions but setting a goal is necessary to avoid complacency.
 Paragraph 3 introduces a provision to enable interested parties to
 comment and give them an opportunity to request a revision of the
 report.
 ---pagebreak---                                  - 8 -
Article 8
This article deals with the report in the case of an incident. Due to
the special nature of incidents, their greater frequency and the fact
that they usually are not published, it could be counter productive to
use the same procedure as in the case of accidents. It is therefore
important to protect the parties involved and to limit the circulation
of the report to professionals, dealing with accidents prevention or
aviat ion safety.
Article 9
This article addresses the important issue of safety recommendations.
Paragraph 1 ensures that the dissemination of safety recommendations is
achieved by addressing them to all parties concerned and sending a copy
to the Commission. By receiving the safety recommendations from ail
the Member States it will be able to distribute them to all the
investigation bodies and aeronautical authorities of the Community.
This could also lay the groundwork for a future central data base of
safety recommendations.
Paragraph 2 creates an obligation to follow-up at national level the
measures    taken   by   the  addressees   when   receiving   a    safety
recommendation: compliance or justified rejection or alternative
action. It also ensures that the corrective measures will not affect
Community law such as, for example, the free movement of aircraft.
Article 10
This article reinforces the protection of the technical investigation
by measures to avoid its use for purposes other than its exclusive
objective which is prevention of future accidents or incidents.
Paragraph 1 limits the use of the report for other purposes to the
factual part of it, therefore excluding the analysis and conclusions
part.
Paragraph    2  enables   the  investigating   body   to  draft    safety
recommendations    concerning  shortcomings    discovered   during    the
investigation but which could be unrelated to the causes of the
accident or incident without risk of these recommendations being used
for purposes other than prevention.
Paragraph 3 prevents the use of the report for disciplinary action.
Paragraph 4 reinforces the protection of the           investigators by
preventing them to be placed in a situation where there would be a
confIict of interest.
 ---pagebreak---                                 - 9-
Article 11
As the provisions of this proposal go further than those contained in
Council Directive 80/1266/EEC, there is no reason to maintain this
Directive anymore.
Article 12 8. 13
Procedural articles.
 ---pagebreak---                                      - 10 -
                      PROPOSAL FOR A COUNCIL DIRECTIVE
             ESTABLISHING THE FUNDAMENTAL PRINCIPLES GOVERNING
       THE INVESTIGATION OF CIVIL AVIATION ACCIDENTS AND INCIDENTS
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having    regard   to   the  Treaty   establishing    the   European   Economic
Community, and in particular Article 84§2 thereof,
Having regard to the proposal from the Commission*1>,
Having regard to the Opinion of the European Par Iiament*2),
Having regard to the Opinion of the Economic and Social Committee^) t
Whereas the opening of the internal market and the liberalisation of
air transport will     increase the air traffic operations, in particular
these involving crew, aircraft and undertakings from different Member
States;
Whereas a high general      level of safety   in the single market requires
harmonised    procedures to the extent     that   there will   be  less direct
links   between    individual   Member  States    and   individual  operators-,
whereas operations      in the Community    will   involve more multilateral
contacts between Member States and operators and therefore there will
be a need for general principles to enable Member States to apply the
same high level of accident prevention measures;
Whereas a high general       level of safety    in civil   aviation  in Europe
should   be maintained    and ail   efforts should be made      to reduce the
already limited number of accidents and serious incidents;
(1) O.J. N* C..
(2) O.J. N- C .
(3) O.J. NT C..
 ---pagebreak---                                            - 11 -
  Whereas   account    should   be   taken    of  the   Convention    on   International
  Civil Aviation, signed       in Chicago on 7 December         1944, which      provides
  for   implementation     of   the   measures      necessary   to    ensure    the   safe
  operation    of   aircraft;    whereas      account    should    also    be   taken    in
  particular    of   the  Annex    13   to   the   said   Convention     which   provides
  international standards and recommended practices for aircraft accident
  investigation;
i Whereas   the    expeditious    realisation      of   technical    investigations      of
  civil   aviation    accidents    and   incidents would      improve     air  safety    in
  helping to prevent the occurrence of such accidents and incidents;
  Whereas    international     standards       provide   for   the    investigation      of
  accidents to be carried out under the responsibility of the State where
  the accident occurs, if investigation of             incidents    is not carried out
  by the State where the        incident occurs, this        investigation should be
  carried out by the State of registry-,
  Whereas   investigation of serious         incidents should be carried out          in a
  similar way to investigation of accidents;
  Whereas air safety requires accident             investigations to be carried out
   in the shortest possible time, investigators should be able to proceed
  to their tasks with the greatest freedom allowed by the legal system;
  Whereas   investigation of civil aviation accidents and incidents should
  be carried out by an independent body to avoid any conflict of interest
  and   any possible     involvement     in the causes of       the occurrence       being
   investigated; whereas      this body      should   be suitably     equipped    and   its
  tasks could include other prevention activities;
  Whereas it is important for accident prevention to publish the findings
  of accident     investigations in the shortest time possible while giving
  opportunity to interested parties to comment on these findings;
 ---pagebreak---                                     - 12 -
Whereas the particular nature of incidents should be taken into account
when circulating the findings of incident investigation;
Whereas   the  safety  recommendations     resulting    from   an  accident  or
Incident investigation should be duty taken into account;
Whereas the technical    investigation should only be used for prevention
purposes» only factual     information collected during the investigation
should be allowed to be used to apportion blame or liability;
HAS ADOPTED THIS DIRECTIVE:
Article 1 - Objective
This   Directive  aims   at   improving   air   safety   by   facilitating  the
expeditious realization of      investigations, the exclusive objective of
which is prevention of future accidents or incidents.
Article 2 - Scope
1.   This  Directive  shall   apply   to  investigations of     civil  aviation
     accidents and incidents occurring in the territory of the European
     Community taking into account the international obligations of the
     Member States.
2.   This  Directive  shall    also  apply   outside   the   territory  of  the
     European Community to investigations of serious incidents involving
     aircraft registered in a Member state or operated by an undertaking
     established  in a Member State, when such an investigation is not
     carried out by another State.
 ---pagebreak---                                    - 13 -
Article 3 - Definitions
For the purposes of this Directive
a)  'Accident' means an occurrence associated with the operation of an
    aircraft which takes place between the time any person boards the
    aircraft with the intention of flight until such time as all such
    persons have disembarked, in which:
    1)  a person is fatally or seriously injured as a result of:
             being in the aircraft, or
             direct  contact with any part of      the aircraft,  including
             parts which have become detached from the aircraft, or
             direct exposure to Jet blast,
        except   when   the   injuries  are  from   natural  causes,  self-
         inflicted or  inflicted by other persons, or when the injuries
        are to stowaways hiding outside the areas normally available to
        the passengers and crew; or
    2)  the aircraft sustains damage or structural failure which:
             adversely affects the structural     strength, performance or
             flight characteristics of the aircraft, and
             would normally require major repair or replacement of the
             affected component,
        except for engine failure or damage, when the damage is limited
        to   the engine,    its cowlings or   accessories; or   for  damage
         limited  to propellers, wing     tips,  antennas, tires, brakes,
        fairings, small dents or puncture holes in the aircraft skin;
        or
 ---pagebreak---                                    - 14 -
   3)  the aircraft is missing or is completely inaccessible;
b) 'Serious injury' means an injury which is sustained by a person in
   an accident and which:
   1)  requires hospitalisation for more       than 48 hours, commencing
       within seven days from the date the injury was received; or
   2)  results In a fracture of any bone (except simple fractures of
       fingers, toes, or nose); or
   3)   involves   lacerations which    cause severe  haemorrhage, nerve,
       muscle or tendon damage: or
   4)   involves injury to any internal organ; or
   5)   involves second or third degree burns, or any burns affecting
       more than 5 per cent of the body surface-, or
   6)   involves    verified   exposure    to  infectious  substances  or
        injur ious radiât ion;
c) 'Fatal injury' means an injury which is sustained by a person in an
   accident and which results in death within 30 days of the date of
   the accident -,
d) 'Causes' means action(s), omission(s), event(s), condition(s), or a
   combination thereof, which led to the accident or incident;
 ---pagebreak---                                     - 15 -
e)  'Investigation'   means   a   process   conducted   for   the   purpose  of
    accident and incident prevention which       includes the gathering and
    analysis of information, the drawing of conclusions, including the
    determination of    cause(s) and, when      appropriate,    the making of
    safety recommendations;
f)  'Invest Igator-ln-charge' means a person charged, on the basis of
    his qualifications, with the responsibility for the organisation,
    conduct and control of an investigation;
g)  'Flight   recorder' means    any   type of   recorder    installed   in the
    aircraft    for  the   purpose    of   complementing     accident/incident
    investigation;
h)  'Undertaking' means any natural person, any         legal person, whether
    profit-making or not, or any official body whether having its own
    legal personality or not;
 i) 'Incident' means an occurrence, other than an accident, associated
    with the operation of an aircraft which affects or could affect the
    safety of operation-,
J)  'Serious    incident'   means   an   incident    involving   circumstances
     indicating that an accident nearly occurred.
    A list of examples of serious incidents can be found in the Annex
    to this Direct ive;
k)  'Safety recommendation' means a proposal of the investigation body
    of  the State conducting     the   investigation, based on      information
    derived    from  the   investigation,    made   with    the   intention  of
    preventing accidents or incidents.
 ---pagebreak---                                      - 16
Article 4 - Mandatory investigation
1.  Every   civil    aviation    accident  or   serious     incident    shall   be
    subjected    to   an   investigation,   the   scope    of   which   shall   be
    determined    by   the   investigation  body    taking    into   account   the
    objective of this directive.
2.  This does not prevent Member States to take measures to enable the
    investigation of other       incidents when the     investigation body may
    expect to draw air safety lessons from it.
Article S - Status of the investigation
1.  The   Member    States   shall   define,   in    the   framework    of   their
    respective     internal    legal   systems,    a    legal    status   of   the
    investigation     that  shall   enable  the    investigators-in-charge      to
    achieve their mission, in the most efficient way and within the
    shortest time.
2.  Without prejudice to the internal      legal procedures in force and in
    cooperation with other authorities of the Member States responsible
    for the Judicial enquiry, the provisions of paragraph 1 shall allow
    in part icular:
        unimpaired access to the site of the accident or             incident   as
        well as to the aircraft or its wreckage;
         immediate controlled removal of debris, bodies or components
        for examination or analysis purposes;
         immediate   access   to and use of     the contents of       the  flight
        recorders and any other recordings;
        immediate examination of, or taking of samples from, the bodies
        of victims or persons involved;
 ---pagebreak---                                      - 17 -
        examining witnesses;
         full access to any relevant information or records held by the
         owner,  the    operator,    the   maintenance    organisation      or  the
        manufacturer of the aircraft and by the authorities responsible
         for civil aviation or airport operation.
Article 6 - investigation body
1.  The Member States shall ensure that the conduct of              investigations
    is entrusted    to a permanent      civil   aeronautical    body.    This body
    shall   be functionally     independent    in particular    of    the national
    aeronautical       authorities       responsible      for       airworthiness,
    certification,     flight    operation,     maintenance,      licensing,    air
    traffic control or     airport operation.
2.  Notwithstanding paragraph 1, the activities entrusted to this body
    can   be  extended    to  the   gathering    and   analysis    of   air  safety
    related   data   in as far     as these activities do not           affect  its
     independence and entail no regulatory , normative or administrative
    responsibiIity.
3.  The body referred to in paragraph 1 above shall be given the means
    required to carry out       its responsibilities      independent from      the
    authorities    referred    to   above   and   should   be    able    to  obtain
    sufficient resources to do it.         Its personnel shall benefit from a
    statute    giving    the   necessary     protection     and    guarantees    of
     independence.    It  shall    comprise   at    least  a   suitably     trained
     investigator to exercise the function of investigator-in-charge in
    the event of a civil aviation accident or serious incident.
 ---pagebreak---                                       - 18 -
4.  If necessary, the body conducting an investigation may request the
    assistance of bodies from other Member States to supply:
    a)  installations, facilities and equipment for:
             the    technical     investigation  of   wreckage     and   aircraft
             equipment and other objects relevant to the investigation.
             the evaluation of information from flight recorders.
             and   the computer     storage and evaluation of air accident
             data.
    b)  accident investigation experts to undertake specific tasks but
        only   where     an   investigation   is  opened    following    a  major
        accident.
    When available, such assistance should be given, as far as possible
    free of charge.
Article 7 - Accident report
1.  Any investigation of a civil aviation accident shall be the subject
    of a report     in a form appropriate to the accident.           This report
    shall   point    out   the  exclusive   objective   of   the    investigation
    mentioned    in   article    1 of   this  Directive    and   contain,   where
    appropriate, safety recommendations.
2.  The   investigation body shall publish the report           in the shortest
    possible time while endeavouring not to exceed 12 months after the
    accident date.
3.  The draft report is submitted for comments to any party which the
    investigation body considers the investigation to be of particular
    importance    and   it shall    give a deadline    for   the submission of
    comments.
 ---pagebreak---                                  - 19 -
Article 8 - Incident report
1.  Any investigation about an incident involving civil aviation shall
    be the subject of a report in a   form appropriate to the type   and
    to   the  gravity  of   the  incident,  and   shall  contain   where
    appropriate relevant safety recommendations.    This report shall ,
    as far as possible, protect the anonymity of the parties involved
    in the incident.
2.  This  report shall  be the subject of as wide a circulation       as
    possible   to the parties likely   to benefit from the findings of
    the aforementioned report.
Article 9 - Safety recommendations
1.  The reports and the safety recommendations referred to in Article
    7.1 and 8.1 shall be addressed to persons, undertakings or national
    aeronautical authorities concerned and copied to the Commission.
2.  The Member States shall take the necessary measures     in order to
    ensure that the safety recommendations from the investigation body
    are duly taken into consideration and acted upon where appropriate
    without  prejudice  to the Community   law and   in particular  that
    concerning the functioning of the internal market.
 ---pagebreak---                                    - 20 -
Article 10 - Liability
1.  The   analysis   and  conclusions   drawn  from  the  investigation or
    arising from it shall not be used to apportion blame or within the
    context of proceedings to determine liability.
2.  A safety recommendation does not by itself create a presumption of
    blame or liability for an accident or incident.
3.  Investigation reports shall not be used for disciplinary action.
4.  The Member States shall, in the context of Articles 5 and 6, take
    the necessary measures to protect investigators from involvement in
     I itigation proceedings    intended to apportion blame or     liability
    arising from an accident or incident.
Article 11
The Council Directive 80/1266/EEC of 16 December 1980 is repealed.
Article n
1.  The Member States shall bring into force the laws, regulations and
    administrative provisions necessary to comply with this Directive
    not   later than 1 January 1996.      They shall forthwith   inform the
    Commission thereof.
2.  When the Member States adopt these provisions their texts shall
    refer to this Directive or shall be accompanied by such a reference
    when officially published.      The Member   States shall  decide what
    method    to use to make this reference.
Article 13.
This Directive is addressed to the Member States.
 ---pagebreak---                                     - 21 -
                                    Annex
List of examples of serious Incidents
The incidents listed are typical examples of serious incidents.               The
list is not exhaustive and only serves as guidance to the definition of
"Serious Incident".
    A   near  collision    requiring   an avoidance     manoeuvre  or   when   an
    avoiding manoeuver would have been appropriate to avoid a collision
    or an unsafe situation.
    Controlled flight into terrain (CFIT) only marginally avoided.
    An aborted take-off on a closed or engaged runway, or a take-off
    from such runway with marginal separation from obstacle(s).
    A landing or attempted landing on a closed or engaged runway.
    Gross failure to achieve predicted performance during take-off or
     initial climb.
    All    fires   and  smoke   in  the   passenger    compartment,    in  cargo
    compartments     or   engine   fires,     even   though   such   fires    are
    extinguished by the use of extinguishing agents.
    Any events which required the emergency use of oxygen by the flight
    crew.
    Aircraft structural failure or engine disintegration which is not
    classified as an accident.
    Multiple     malfunctions   of   one   or   more   aircraft   systems    that
     seriously affects the operation of the aircraft.
 ---pagebreak---                               - 22 -
Any case of flight crew incapacitation in flight.
Any fuel state which would require the declaration of an emergency
by the pi lot.
Take-off or    landing incidents.  Incidents such as undershooting,
overrunning or running off the side of runways.
System failures, weather phenomena, operation outside the approved
flight  envelope    or other  occurrences  which  could have  caused
difficulties controlling the aircraft.
Failure of more than one system     in a redundancy system which is
mandatory for flight guidance and navigation.
 ---pagebreak---                                              -R3-
                                                                     ISSN 0254-1475
                                                              COM (93) 406 final
                                                      DOCUMENTS
EN                                                                              07
                                 Catalogue number : CB-CO-93-444-EN-C
                                                             ISBN 92-77-58958-2
Office for Official Publications of the European Communities
L-2985 Luxembourg