Explanatory Memorandum to COM(2012)776 - Amending certain regulations and directives with regards to occurrence reporting in civil aviation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)776 - Amending certain regulations and directives with regards to occurrence reporting in civil aviation. |
|---|---|
| source | COM(2012)776  |
| date | 18-12-2012 |
In the European Union the average annual rate of fatal accidents in scheduled passenger operations has remained more or less stable for the past years. The air traffic growth forecast for the next decades expects the number of aviation flights to almost double by 2030. Therefore, with a stable fatal accident rate, this will likely lead to an increase in the number of accidents as a by-product of steadily increasing traffic volumes.
The current aviation safety system is primarily a reactive system relying on technological advances, sound legislation underpinned by effective regulatory oversight, and detailed accident investigations leading to recommendations for safety improvements. However, whilst the ability to learn lessons from an accident is crucial, purely reactive systems have now shown their limit in continuing to bring forward improvements. In this context, the International Civil Aviation Organisation (ICAO) has encouraged the transition towards a more proactive and evidence-based safety approach. The effectiveness of such a proactive system greatly depends on the ability to systematically analyse all available safety information, including information on civil aviation occurrences. Indeed, data is vital to identify safety hazards, for without sound information any attempt to identify the hazards would be guess work.
At European Union level, the transition towards a more proactive and evidence-based aviation safety management system has already started with the adoption of Directive 2003/42/EC which requires each Member State to set up a mandatory occurrence reporting system. Under this legislation Member States are requested to collect, store, protect and disseminate between themselves information on certain civil aviation incidents and aviation professionals are obliged to report occurrences in their daily operational work. This legislation was completed in 2007 by two implementing regulations. The first one established a European Central Repository (ECR) regrouping all civil aviation occurrences collected by Member States, and the second one laid down rules regarding the dissemination of the information contained in the ECR. Around 600,000 occurrences are currently stored in the ECR and this figure is growing daily.
Directive 2003/42/EC has established the basis for a proactive and evidence-based aviation safety management system in the European Union by imposing the reporting of occurrences. However the European Union and its Member States are currently not sufficiently able to use experience feedback for preventing accidents and the current legislation is insufficient to prevent that the number of accidents and related fatalities would increase as a consequence of the expected traffic growth.
A number of reasons in relation to the current European legislation can explain this situation.
Firstly it appears that, whilst data is vital to identify safety hazards, there is not sufficient awareness of all safety occurrences. This situation is partly due to the discrepancy in the scope of reportable occurrences between the Member States. It also comes from the fact that individuals are afraid to report (the 'Just Culture' issue). Indeed to reach the goal of full reporting, individuals must have full confidence in the system because they are notably asked to report mistakes they may have made or contributed to. However, individuals are not equally protected among the Member States and they fear being punished by their hierarchy or being prosecuted. In addition, the lack of EU obligation to establish voluntary reporting scheme to complete the mandatory schemes and the insufficient clarity in occurrence reporting obligations and in the flow of information are also contributing to the insufficient collection of occurrences.
Secondly, occurrence data integration is not harmonised and is unstructured causing a low quality of information and an incompleteness of data. This situation affects the consistency and the usefulness of information and limits its use for safety purposes.
Thirdly there are legal and organisational obstacles for ensuring adequate access to information contained in the European Central Repository. Indeed European legislation obliges the de-identification of certain information. Although the purpose of such provisions is to protect sensitive safety information, its practical consequence is that important safety related facts, such as the actual description of the occurrence, are not available to the authorities.
Finally, the current legislation does not include provisions indicating how Member States should use the data collected. However, since the adoption of the Directive, principles related to the analysis and follow up of the information collected through occurrence reporting systems have been agreed at international level but not yet transposed into European legislation. Therefore this has led to quite diverse and divergent approaches among Member States.
The main objective of the initiative is to contribute to the reduction of the number of aircraft accidents and related fatalities, through the improvement of existing systems, both at national and European level, using civil aviation occurrences for correcting safety deficiencies and prevent them from reoccurring.
The specific objectives are the following:
Ensure that all occurrences which endanger or would endanger aviation safety are collected and are providing a complete and clear picture of safety risks in the European Union and its Member States;
Ensure that data issued from reported occurrences and stored in the national databases and in the ECR are complete and of high quality;
Ensure that all safety information stored in the ECR is accessed adequately by appropriate authorities and that they are used strictly for safety enhancement purposes;
Ensure that reported occurrences are effectively analysed, that safety hazards are identified and addressed where relevant and that the safety effectiveness of actions taken is monitored.
The proposal concerns the adoption of a regulation on occurrence reporting in civil aviation. The new regulation is intended to replace and repeal the existing Directive 2003/42/EC, its implementing rules, Commission Regulation (EC) No 1321/2007 and Commission Regulation (EC) No 1330/2007, and to amend Regulation (EU) No 996/2010 i. Establish a general framework for occurrence reporting in the European Union is not dealt with directly by any other provisions.
This initiative is one of the actions necessary for the Single European Transport Area as described in the Commission's White Paper 2011 'Roadmap to a Single European Transport Area - Towards a competitive and resource efficient transport system'. It has also been highlighted as point for action in the Commission Communication on 'Setting up a Safety Management System for Europe'.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENT
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- 1.1. General background of the proposal
- 1.2. The reasons behind the proposal
- 1.3. Objectives of the proposal
- 1.4. Existing provisions in the area of the proposal
- 1.5. Consistency with policies and objectives of the European Union
- 2.1. Consultation of interested parties and use of expertise
- 2.2. Impact Assessment
- 3.1. Summary of the proposal
- 3.1.1. Better collection of occurrences
- 3.1.2. Clarification of the flow of information
- 3.1.3. Improved quality and completeness of data
- 3.1.4. Better exchange of information
- 3.1.5. Better protection against inappropriate use of safety information
- 3.1.6. Better protection of reporter to ensure the continued availability of information
- 3.1.7. Introduction of requirements on information analysis and adoption of follow up actions at national level
- 3.1.8. Stronger analysis at EU level
- 3.1.9. Improved transparency towards the general public
- 3.2. Legal basis
- 3.3. Subsidiarity principle
- 3.4. Proportionality principle
- 3.5. Choice of legal instrument
- 5. OPTIONAL ELEMENTS
- 5.1. Simplification
- 5.2. Repeal of existing legislation
- 5.3. European Economic Area
During the preparation phase extensive consultations took place in respect of the general principles and minimum standards for consultation of the interested parties by the Commission.
The Commission consulted all 27 Member States through a questionnaire sent out on 7 April 2011. The Commission received answers from all Member States but one. The Commission also conducted some on site visits to Member States.
The Commission consulted interested stakeholders and the general public through a public consultation which was opened from 24 June 2011 to 15 September 2011 on the 'Your Voice in Europe' internet website. In total, 61 replies were submitted in response.
In application of Commission Decision 98/500/EC i the Civil Aviation Social Dialogue Committee was invited to formalise a position on the review where necessary. In addition, the opinion of the European Network of Civil Aviation Safety Investigation Authorities (ENCASIA) was also sought in accordance with Article 7 i of Regulation (EU) No 996/2010.
All interested stakeholders and authorities were invited to a workshop organised by the Commission which focused on the 'Just culture' issue and which took place on 19 April 2012 i.
The Commission also asked the opinion of the European Data Protection Supervisor. Finally, a study on the establishment of a common risk classification of civil occurrences has been carried out.
All these contributions have been used by the Commission for the drafting of the Impact Assessment and of the proposal.
The Impact Assessment provides an overview of the different options considered. Three policy packages, in addition to the option of not introducing any change to the current situation, were considered to assess how Directive 2003/42/EC could be revised.
Policy package 1 aims at improving the current system in establishing the basic elements of a complete occurrence reporting system and its contribution to aviation safety improvement through amendment to the legislation only to the necessary minimum and adoption of recommendations and guidance wherever possible. It contains the less intense policy measures identified.
Policy package 2 consists of a more ambitious package of policy measures entailing a substantial revision of EU legislation on occurrence reporting. It seeks to improve the current system by establishing the necessary legislative requirements for ensuring an efficient occurrence reporting system at all levels and to contribute to the reduction of aircraft accidents through the establishment of processes for the analysis of data collected, the adoption of appropriate measures and the monitoring of the system efficiency in terms of safety improvements.
Policy package 3 aims at improving the current system by transferring Member States occurrence reporting competencies to the EU level and establish, as in policy package 2, requirements for occurrence analysis together with the adoption of necessary safety actions and improvement monitoring. Under this package, the responsibility to establish and manage occurrence reporting schemes is transferred to the European Aviation Safety Agency (EASA).
In view of the assessment of the different policy packages on the basis of the efficiency, effectiveness and consistency criteria, it is recommended that the policy package 2 should be implemented as its benefits would be considerably higher than the costs incurred. It is the only option which fully satisfies the identified objectives as demonstrated in the Impact Assessment. Therefore this policy package constitutes the basis for this proposal.
The proposal establishes the appropriate environment for ensuring that all occurrences which endanger or would endanger aviation safety are reported.
Firstly, the proposal maintain the obligation to establish mandatory occurrence reporting systems (MORS) and lists the persons obliged to report as well as the occurrences to be reported under the MORS. Next to the mandatory system, the proposal imposes the establishment of voluntary systems whose aim is to collect occurrences which have not been captured by the MORS.
The proposal also contains provisions ensuring the appropriate environment for encouraging aviation professionals to report safety related information by protecting them from punishment except in cases of gross negligence.
The current Directive imposes on individuals to report occurrences directly to Member States Authorities while, in reality, Member States Authorities receive most occurrence reports from organisations which collect them from individuals as part of their safety management process. The proposal takes this evolution into account and introduces requirements for organisations. Organisations and Member States are obliged to establish occurrence reporting systems which will enable the identification of safety hazards. The occurrences collected by organisations shall be transmitted to Member States competent authorities or to the European Aviation Safety Agency (EASA) when relevant. All occurrences collected by Member States, organisations and EASA are aggregated into the European Central Repository.
The proposal includes a number of provisions aiming at improving the quality and the completeness of occurrence reports and therefore enabling a better identification of key risk areas and of the need for action to be identified.
Occurrence reports will have to contain minimum information with the definition of mandatory data fields such as the date of the occurrence, the occurrence category or the narrative of the occurrence. The proposal also includes the obligation to classify occurrences in terms of risk according to a European common risk classification scheme. In addition quality data checking processes should be implemented notably to ensure the consistency between an occurrence report and the initial information collected from the reporter. Finally the Commission will support Member States in reaching higher data quality and completeness standards by supporting the development of guidance material and the use of workshops. This should aim at ensuring a consistent and uniform integration of data into databases.
The proposal addresses the need for better exchange of information by strengthening the existing rules.
In that perspective, the access by Member States and EASA to the European Central Repository, which contains all occurrences collected by Member States as well as by EASA, is extended to all data and information contained in the database. These new provisions notably allow Member States to have access to safety data about occurrences which took place in their airspace but were reported and assessed by another Member State Authority.
In addition, when, in the assessment of data collected through occurrence reporting systems, an authority identifies safety matters considered to be of interest for another authority, it shall forward the information in a timely manner.
Finally, in order to facilitate the exchange of data and information, the text requests that all occurrence reports should be compatible with the ECCAIRS software (this software is used by all Member States and for the European Central Repository) and with the ADREP taxonomy (the ICAO taxonomy also used in the ECCAIRS software).
The necessary corollary to a wider access to safety data and information contained in the European Central Repository is to ensure that they are used for appropriate purposes.
In that sense, the proposal strengthens the rules on ensuring that, beside the obligation to guarantee the confidentiality of the data collected, it can only be made available and used for the purpose of maintaining or improving aviation safety.
The text also attempts to diminish the negative effect that the use of this data by judicial authorities may have on aviation safety by the obligation to adopt advance arrangements establishing provisions which should find the right balanced between the two public interests at stake (justice and aviation safety).
The proposal strengthens the rules related to the protection of occurrence reporter to ensure that people are confident in the system and that appropriate safety information is reported.
In that perspective, the text reaffirms the obligation to disidentify occurrence reports and limits the access to fully identified data only to certain persons. In addition, Member States are asked to refrain from instituting proceedings except in cases of gross negligence.
The rule under which employees shall not be subject of prejudice from their employer, except in cases of gross negligence, on the basis of the information reported according to the rules provided by this regulation is reinforced. Organisations are also asked to adopt a policy describing how the employees' protection is guaranteed.
Finally, national bodies are established, allowing employees to report infringements to the rules which guarantee their protection and penalties should be adopted where appropriate.
3.1.7. Introduction of requirements on information analysis and adoption of follow up actions at national level
The proposal advances the transition towards a more proactive and evidence based safety system in Europe as it imposes new requirements which are transposing the rules related to the analysis and follow up of occurrences collected, which have been agreed at international level, into EU law.
Organisations and Member States are required to analyse the information collected through occurrence reporting systems in order to identify safety risks and to take actions in order to remedy to any safety deficiency identified. The effectiveness of these actions in terms of safety improvement shall be monitored and additional actions taken if necessary.
Article 19 of Regulation (EU) No 996/2010 has already established the principle that the information contained in the European Central Repository shall be analysed by EASA and the Member States. This principle is reinforced and the on-going collaboration formalised within a Network of Aviation Safety Analysts chaired by EASA.
Analysis at EU level will complement what is done at national level notably by the identification of possible safety problems and key risk areas at European level. The common EU risk classification scheme will support this task by the classification of all occurrences collected by Member States in a harmonised manner.
The European Aviation Safety Programme and the European Aviation Safety Plan will both benefit from the analysis and activities performed by the Network of Aviation Safety Analysts.
The proposal, while respecting the necessary confidentiality of certain information, brings more transparency on aviation safety matter for the general public by the publication of annual safety reviews containing information about actions taken in application of this regulation, trends and aggregated data.
The proposal is based on Article 100 TFUE.
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the European Union. The objectives of the proposal cannot be sufficiently achieved by the Member States individually. EU action is better able to achieve the objectives of the proposal.
European action will better achieve the objectives of the proposal for the following reasons. First, there is a need to harmonise the reporting of occurrences and the rules related to use and protection of information and reporter's protection; and secondly, it is necessary for safety means to strengthen the system of information exchange between Member States and to ensure that this information is analysed and that they are follow up actions taken in all Member States. In addition issues such as access to the ECR data and establishing processes and tools to analyse ECR data cannot be achieved at national level as it involves a European database for which action should be taken at EU level. Action at national level is absolutely necessary but is not sufficient to ensure the good functioning of the system as a whole and subsequently contribute to improve air safety. Indeed, the objective of air safety improvement cannot be sufficiently achieved by the Member States because reporting systems operated by Member States in isolation are less efficient than a coordinated network with exchange of information enabling an identification of possible safety problems and key risk areas at European level.
Therefore, the proposal complies with the subsidiarity principle.
The proposal complies with the proportionality principle. The additional burdens for industry and national authorities are limited to those necessary to enhance the efficiency and overall quality of the system. While the proposal involves costs with regards to the implementation of provisions related to analysis and follow up of occurrences these are expected to be offset by the economic benefits obtained by a decreased number of accidents and of related fatalities.
The legal instrument would have to be of general application. The proposed instrument is a regulation.
Other means would not be adequate notably for the following reasons:
· the proposal establishes rights and obligations for the European Aviation Safety Agency which prevents the use of a directive;
· many shortcomings and problem areas identified with the current legal framework are linked to divergent implementation among Member States. The variation in practices resulting from the present directive clearly shows that a directive is not the appropriate instrument to achieve unanimous and consistent application of the law in an area where it is needed for safety reasons.
Therefore the most appropriate legal instrument is a regulation, since alternative options would not be sufficient to achieve the proposed objectives.
The budgetary implications related by the development of a common EU risk classification scheme and the extension of the budget allocated to the development of ECCAIRS and the management of the European Central Repository are already covered in the Multi-Annual financial framework.
The budgetary implication of this proposal is related to additional human resources for the European Aviation Safety Agency (involved by the Network of Analysts) and additional budget for mission and outreach activities.
Both additional human resources (2 posts estimated at €300.000 per year) and additional budget (mission and outreach activities estimated at €65.000 per year) will fully be covered by redeployment within the existing resources of the Agency, therefore having an impact on the EU budget which is neutral.
The proposal provides for simplification of legislation, since it replaces a Directive and two Commission Regulations by a single act, a Regulation from the European Parliament and the Council, and will not require national implementing measures.
Adoption of the proposal will lead to the repeal of the existing Directive 2003/42/EC, Commission Regulation (EC) No 1321/2007 and Commission Regulation (EC) No 1330/2007 and to the amendment of Regulation (EU) No 996/2010.
The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.