Civil aviation faces many potential dangers, including accidents and incidents that need to be addressed at the international, EU and national level. This update provides an overview of international and EU aviation accident and incident policies and outlines how Belgium deals with such incidents.

International and EU legislation

The Chicago Convention is the key international agreement governing aviation safety, including in Belgium and the European Union. EU and Belgian aviation legislation is based on the International Standards and Recommended Practices approved by the International Civil Aviation Organisation and published as annexes to the Chicago Convention.

Article 26 of the Chicago Convention provides that the state where an accident occurs must institute an inquiry into its circumstances. Annex 13 (Aircraft Accident and Incident Investigation) of the convention prescribes that when an accident occurs, the state where the accident takes place will investigate the circumstances and be responsible for the investigation with the possibility – under certain conditions – to delegate all or part of the investigation to another state. The objective of the investigation will be the prevention of future accidents and incidents, rather than any apportionment of blame or liability.

Belgian legislation

One of the state's duties is to create an environment in which the aviation sector can perform its activities as safely as possible.

Annex 13 of the Chicago Convention is enforceable in Belgium through EU legislation, the Belgian Aviation Act (Law of June 27 1937) and additional Belgian aviation regulations, such as the Royal Decree of March 15 1954 and over 70 other royal and ministerial decrees and circulars.

As part of the Federal Public Service for Mobility and Transport, the Belgian Civil Aviation Authority (BCAA) is responsible for developing and maintaining the Belgian Aviation Safety Programme (BASP) in accordance with EU and international requirements on behalf of the state. The cornerstones of the aviation safety policy set out in the BASP are:

  • safety management;
  • continuous improvement; and
  • a risk-based approach.

The BASP provides an overview of the different regulations and actions in view of:

  • maintaining and improving aviation safety; and
  • ensuring that Belgium operates in compliance with the safety management requirements set out in EU and international regulations.

The BASP is applicable to the Belgian Air Accident Investigation Unit (AAIU), created by the Royal Decree of December 9 1998, which investigates aviation accidents and incidents that occur in Belgium. The AAIU is independent of the Federal Public Service for Mobility and Transport. Notably, all investigations take place independently from the BCAA's administrative and supervisory activities.

Common practice

The Federal Public Service for Mobility and Transport's Circular ACCID-01 relating to the notification duty in case of accidents or serious incidents, dated May 10 2016, contains the obligations that must be complied with when an accident or serious incident takes place.

An 'accident' is defined as:

"an occurrence associated with the operation of an aircraft which, in the case of a manned aircraft, takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, or in the case of an unmanned aircraft, takes place between the time the aircraft is ready to move with the purpose of flight until such time it comes to rest at the end of the flight and the primary propulsion system is shut down, in which: (a) a person is fatally or seriously injured... (b) the aircraft sustains damage or structural failure... (c) the aircraft is missing or is completely inaccessible."

A 'serious incident' is defined as "an occurrence, other than an accident, which affects or could affect the safety of operation".

Pursuant to Article 4.1 of Circular ACCID-01, referring to Article 9 of EU Regulation 996/2010, any accident or serious incident in or above Belgian territory must be notified without delay to the AAIU. The notification must be communicated by:

  • the owner, crew member or operator of the aircraft by phone;
  • any person participating in navigation, information or airport services;
  • any person associated with the maintenance or manufacturing of the aircraft or crew member instruction; and
  • BCAA or European Aviation Safety Agency employees.

Any accident or serious incident involving a Belgian-registered aircraft at sea or in third countries must be notified by the owner, crew or operator. The AAIU will consequently notify the BCAA.

Apart from urgent cases, it is prohibited without the authorisation of AAIU investigators to:

  • move an aircraft that has sustained or caused an accident; or
  • remove, detach or move objects or debris therefrom.

In practice, the AAIU will work closely to determine the probable cause and draft a list of recommendations to minimise the risks of similar accidents or serious incidents in future with:

  • the air carrier;
  • the aircraft and engine manufacturers;
  • the professional organisations representing pilots and flight attendants; and
  • air traffic control.

Due to the complexity of modern aircraft and the multitude of factors that can contribute to an accident, an investigation can take months, or even years, to complete.

Accident and serious incident investigation reports are made public on the BCAA's website.

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.