Consultation Meeting on the Possible Revision of Directives 94/56 and 2003/42

JPH 009/08 - 18/2/2008

CONSULTATION MEETING ON THE POSSIBLE REVISION OF DIRECTIVES 94/56 AND 2003/42

Brussels 31st January – 1st February 2008

SUMMARY NOTES

1. Welcome and purpose of the meeting

Mr Salvarani, head of the Air Safety Unit welcomed the participants and explained that this consultation meeting was part of the mandatory procedure to carry out an impact assessment before drafting any new legislative proposal.

The first step of this impact assessment was the ECORYS study. The Commission received already feedback from a number of stakeholders that they were "unhappy" with the structure/methodology of the report. The Commission requested therefore that during the meeting, discussion should concentrate only on the content and proposed policy options

2. Ecorys study :

a) short presentation

Mr Henrotte gave a short presentation of the study. The consultants have interviewed and send questionnaires to a large spectrum of stakeholders on the basis of four proposed options:

Option 1: Do nothing

Option 2: Promotion of voluntary co-ordination

Option 3: Establishment of central functions

Option 4: Setting up of a Central European Transport Safety Investigation Body.

These four options were only meant to generate discussion and comments and should not be considered as a "hidden agenda" for future Community action.

The results have shown that the most preferable policy option was a mix between option 2 and 3. If this is shared by the participants, we should discuss which central functions need to be established and who will perform them at European level.

Participants made following general remarks on the report:

It merges two directives which are dealing with different issues even if there are however some synergies. It does not offer distinction between accident investigation and occurrences reporting, those issues should be analysed and discussed separately. In most Member States, they are dealt with by different bodies (AIBs and CAAs respectively).

The Commission should focus on the accident investigation directive which is more than 12 years old and needs to be adapted to the general evolution of the air transport while it is too early to amend the occurrence directive, the main principles and procedures of which should not be changed until sufficient experience is gained. There is a need for a stable legislation in the meantime. This was already expressed in the comments of the EASA Advisory Board to the Commission.

Only one participant expressed its preference for a merge of the two directives while several others expressed their preference to maintain the present directives separated as a merge would in fact complicate the situation.

One thing that is missing in the field of occurrence reporting is a good knowledge of the current situation (what is the status of the implementation, how is the Directive implemented by the Member States, what is the number of reports in Member States). An equivalent to EASA standardisation visits could be needed. We should aim at increasing the number of reports by improving the protection of the source of information.

The numbers/figures of accident rate improvement as well as the safety benefits/impacts for proposed policies were based on unknown algorithm. These numbers are very doubtful and undermine the confidence in the report. The Commission was invited to be careful with such doubtful figures, it could be very dangerous if publicised and used to support political pressure.

One representative complained that the ATM workers/unions were not consulted for this study.

b) discussion on the preferred options

General consensus on the fact that option 1 is no option

Option 2: one of the obstacles is that AIBs and CAAs are getting funds from their governments only for the tasks which are defined in law, no money for voluntary cooperation

Option 3 would require to define what functions need to be centralised, then there is a problem of procedures (how) and entities responsible (who), it would be more efficient as some central functions will give better output. Cultural diversity should be taken into account. There is a need for an EU-level body that will coordinate investigations and related activities by national AIBs. As investigation is a very sensitive activity, the situation should be analysed in depth to see what new institutional mechanism could be used. There is a need for further consultation on how the future mechanism should work.

Option 4 can only be seen as an eventual long term solution.

There is a need for further meetings, preferably in working groups in particular if central functions need to be precisely defined. Mr Salvarani indicated that the Commission intends to adopt the draft proposal by the end of 2008.

3. Accident investigation:

a) report of the group of experts assisting the Commission

J-P Henrotte explained that the Commission decided in June 2003 to create a group of experts to advise it on a strategy for dealing with accidents in the transport sector. Six subgroups where created for aviation, maritime, rail, road, pipelines and general methodology.

In the field of aviation, the group recommended the Commission to revise directive 94/56 taking into account relations with justice, protection of confidentiality and selection of events to investigate, to consider whether the UK MoU between AIBs and State Prosecutor could be used as a model in the EU, to protect confidential documents in line with Chapter 5.12 of Annex 13, to improve transparency on the follow-up of safety recommendations and to respond to the identified need for a coordination structure for AIBs.

The participants were satisfied with the presentation and the conclusions of the group of experts.

b) Directive 94/56 : provisions to be kept, to be modified, to be removed

There is a lack of consistency between the two directives (definitions, reportable occurrences, status of serious incident, exchanges of information). These items should be addressed in a new text.

It was suggested to extend the scope of the directive to accidents occurring outside the EU. This will be necessary anyway to deal with the designation of the accredited representative.

Several participants raised the problem of the obligation to investigate all accidents and serious incidents. This is what is required by Annex 13. Should we deviate? Should the scope of the Directive be limited to the commercial operations and GA by changing the definition of the aircraft (ultralights, sport)?

If some accidents are not investigated, who will do it? Should US (NTSB-FAA) system be considered? Maybe the procedures for GA may be improved by introducing a lighter procedure, or delegation. But then how to ensure that investigation is well done?

In the Directive there is a provision of article 4.2 which allows MS to introduce lighter procedures for benign accidents when no lesson can be drawn.

This also raises the need to introduce an obligation of notification of the events.

It was suggested on the other hand to extend the scope to unmanned aircraft.

Article 5 should also require operators to give information to the investigators.

Article 8 requires that the incident reports shall protect anonymity of the persons. Similar provision is missing in the article 7 (accident reports).

Article 9 needs to be improved with a mechanism including a data base and detailed follow-up of safety recommendations

Some items to study:

Extension of the legal protection of source of informations to aircraft accident investigators;

Problems with using the reports as a proof during a trial;

Courts/prosecutors asking investigators to testify;

Protection of the data collected during the investigation;

Inclusion of provisions similar to Article 8 (protection of information) of Directive 2003/42

Exchange of information between the AIBs and NAAs/EASA.

Some participants consider that in some countries it is impossible to solve the problem of relationship with judicial authorities at national level and asked if it would be possible to have a regulation instead of a directive. The Commission explained that this may be difficult due to the wide divergences between the organisation of accident investigation and of justice in various Member States and it would be difficult to have a text with "one size fits all".

c) Annex 13: provisions from Annex 13 to be included in a future legislation

It was decided to organise a small working group to look at the provisions of Annex 13 which should be transposed in a revised directive.

d) ICAO AIG 2008 meeting, influence on new legislation and on the timetable

The Commission confirmed that papers for the AIG 2008 meeting will be prepared following similar procedures than for the last ICAO Assembly. Papers will be drafted by volunteering representatives of Member States in cooperation and with the support of the Commission. These papers will then be approved by all Member States at the Council aviation group. They will then be proposed to ECAC for support by other ECAC States and then submitted to ICAO as common papers from the EU and ECAC States.

This will ensure that any modification to Annex 13 proposed by Europe will be consistent with the work of updating the directive on accident investigation.

However, modifications of Annex 13 proposed by third countries will also have to be taken into account, if deemed necessary. This reinforces the importance of a good preparation and coordination at EU level to try to address the difficult compatibility of the ICAO and revision of directive schedules.

4. Safety recommendations: work in progress (in ECCAIRS and EASA) and evaluation of the need for new legislation

Directive 94/56 required Member States to take the necessary measures to ensure that safety recommendations were duly taken into consideration and acted upon. During the evaluation of the Directive, it was obvious for the Commission that this was an area in which the application of the directive leaved much to be desired.

It has already been decided to set up a recommendations data base as an add-on to ECCAIRS.

EASA is receiving a growing number of safety recommendations from AIBs, classifying them (agree, not agree, partially agree, out of competence) and monitoring their enforcement.

There was a common agreement to have a common central data base of safety recommendations attached to ECCAIRS. The management of it could be given to EASA. When an AIB is issuing a recommendation, it is very important to ensure that it will be provided with the answer from the addressee, to provide the final conclusion. Lack of reply might be used in future against the addressee. Second step, ensuring the implementation, begins after conclusion made by AIB. For this second step, EASA can play a role as the enforcement/monitoring body (except when it is the addressee).

It is extremely important to judge the quality of the answer. But sometimes there are some problems with the quality of safety recommendation. They should be written in a way that can be answered and should be realistic. However, economical cost of implementation is not to be taken into account by AIBs, it should be a part of the dialogue between AIB and the other players (addressees, CAAs, operators, etc).

What can be done to improve the quality of safety recommendations?

- improve the dialogue between AIB and other players (answers, conclusions)

- standard form / protocol

- public access to safety recommendations (see US system)

If the Commission asks EASA to play a management role, it has to provide also the budget for this task.

Classic ICAO rule that every State has all regulatory function within the aviation safety does not work with the Community Law and EASA competence. The Commission suggests the Agency will provide a reflection paper on the way to deal with safety recommendations in the EU (in consultation with other players if deemed necessary). It should describe the questions and proposed solution as a basis for further discussion before drafting the relevant provisions for the new legislation.

5. Council of European Aviation Safety Investigation Authorities: blueprint for an EU structure?

There is a need for a structure to coordinate the national AIB activities in the European framework. This structure should be recognized under Community law as a partner for dialogue or an entity that can perform some tasks on European level.

The existing European Council of Aviation Safety Investigation Authorities (EASIA) is working on a voluntary basis. It was created after the recommendation of the experts (see point 3.a) as an informal organisation that can speak on behalf of AIBs but without any legal basis. EASIA would like to be recognized as a partner by DG TREN and can be involved in some tasks (now into reviewing both directives, WG on Annex 13, WG on safety recommendations, etc)

In EASA view, EASIA as a formal body can only held supportive/advisory tasks, it cannot be involved in legislative, rulemaking, policy making tasks.

As far as option 3 is concerned, some of the central functions can be run by a structure which could be inspired by the activities of EASIA but would need a legal basis and an institutionally acceptable form. Its tasks should be well defined.

Suggestions for tasks include: investigators training and certification, assessment of compliance of national AIBs with EU legislation, setting up of a voluntary reporting system, etc.