Introduction

Switzerland recently adopted EU Regulation 376/2014,(1) which aims to prevent accidents through the reporting, analysis and follow-up of occurrences in civil aviation. The regulation defines an 'occurrence' as a:

"safety-related event which endangers or which, if not corrected or addressed, could endanger an aircraft, its occupants or any other person and includes in particular an accident or serious incident."

Accidents are often preceded by safety-related incidents and deficiencies revealing the existence of safety risks. An important way to learn about these risks is through incident reporting by aviation professionals.

Regulation

The regulation seeks to create incentives for reporting by recognising the 'just culture' concept, which establishes that aviation professionals should not be punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but under which gross negligence, wilful violations and destructive acts are not tolerated.

The main thrust of the regulation is the translation of the 'just culture' concept into specific and enforceable legal provisions. In particular, the regulation states that information on occurrences cannot be used:

  • to attribute blame or liability; or
  • for any other purpose other than the maintenance and improvement of aviation safety.

Accordingly, reporters and other persons mentioned in the report should be protected from blame and punishment. The regulation provides that employees and contracted personnel will not be subject to any prejudice (particularly from their employer or the organisation for which they render services) based on information collected through occurrence reporting systems.

To encourage reporting, the regulation establishes that collected safety information will be handled in such a way as to protect the confidentiality of the reporter and other persons mentioned in the report, including through anonymisation of details related to the persons involved. To achieve this, division between departments handling the occurrence reports and the rest of the organisation is recommended.

'Just culture' does not mean full immunity, nor does it absolve aviation professionals of their normal responsibilities. The regulation therefore draws a line between acceptable and unacceptable behaviour. Thus, the protection of aviation professionals under the regulation does not apply in cases of wilful misconduct or:

"where there has been a manifest, severe and serious disregard of an obvious risk and profound failure of professional responsibility to take such care as is evidently required in the circumstances, causing foreseeable damage to a person or property, or which seriously compromises the level of aviation safety."

Comment

While the adoption of the regulation is welcome news, challenges remain. The line between acceptable and unacceptable behaviour will not always be clear in practice. A person who considers reporting may not know beforehand whether the authorities will consider his or her actions, omissions or decisions as acceptable. However, if aviation professionals are expected to disclose incidents, it is essential that they trust those who read the reports. Any doubt that filing a report could be used against the aviation professional could destroy trust in the reporting system. The regulation alone will not automatically establish an environment leading to trust and facilitation of reporting occurrences. The concept of a 'just culture' will work only if all aviation stakeholders treat mistakes as learning opportunities and if aviation professionals are given broad protection in case of judicial action.

For further information on this topic please contact Andreas Fankhauser at Baumgartner Mächler by telephone (+41 44 215 4477) or email (afa@bmlaw.ch). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.

Endnotes

(1) EU Regulation 376/2014 (April 3 2014) on the Reporting, Analysis and Follow-up of Occurrences in Civil Aviation, amending EU Regulation 996/2010 and repealing Directive 2003/42/EC and EU Council Regulations 1321/2007 and 1330/2007.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.