EU Regulation 996/2010 ("the Regulation") came into effect on 2 December 2010 and replaces Directive 94/56/EC. Like the Directive, the new Regulation reflects the provisions of Annex 13 of the Chicago Convention 1944 which lays down international standards and recommended practices for aircraft accident and incident investigation and to which all the EU Member States are parties. It takes account of developments after 1994 such as the establishment of EASA and the increase in the number of Member States and the lessons learnt since then.

Application

The Regulation applies to the safety investigation of aviation accidents and serious incidents (such as, for example, near misses or overrunning the runway) which:

  • occur in any Member State;
  • involve an aircraft registered in a Member State or operated by an EU undertaking that occurs outside the EU which is not being investigated by another State;
  • in which a Member State is entitled, according to international standards, to appoint an accredited representative to participate;
  • in which a Member State has a special interest as a result of death of or injury to its citizens and is permitted by the State conducting the investigation to appoint an expert.

It does not apply to accidents or serious incidents involving military or other government aircraft unless a Member State so decides.

New Features

New features introduced by the Regulation are:

EASA

EASA and national civil aviation authorities of the Member States concerned are, provided there is no conflict of interest, to be invited by the safety investigation authority in charge to appoint a representative to participate in investigations as adviser to the investigator in chief and shall support the investigation by supplying information and assistance as requested.

European Network of Civil Aviation Safety Investigation Authorities

Member States are required to ensure that their safety investigation authorities establish between them a European Network of Civil Aviation Safety Investigation Authorities composed of the heads of such authorities and with a chairman chosen from among them, who shall hold office for 3 years. The objective of the Network is to improve the quality of investigations and strengthen their independence.

Passenger and Dangerous Goods Information

Airlines of the Member States and non-EU airlines operating from EU airports are required to be able to:-

  • provide a validated list of all persons on board any of their aircraft involved in an accident within 2 hours of being notified of the occurrence of the same at the latest;
  • immediately after being notified of the occurrence of an accident, the list of dangerous goods on board the aircraft concerned.

Airlines are also required to give passengers the opportunity to name a person who is to be contacted in the event that they are involved in an aviation accident.

Emergency Plans

Both Member States and airlines established in the Member States must have emergency plans for dealing with civil aviation accidents, which shall provide for assistance to the victims of such accidents and their relatives. In the case of airlines, they must take particular account of psychological support for the victims and their relatives but no further detail is given of what this entails. Member States are required to audit the emergency plans of their airlines.

Blame or Liability

The Chicago Convention established the principle that the objective of safety investigations is to prevent accidents without apportioning blame or liability and the Regulation re-affirms this principle. There is, however, likely to be a judicial investigation of an aviation accident as well as a safety one and the Regulation requires Member States to ensure that their safety investigation authority co-operates with other authorities likely to be involved through advance arrangements covering such matters as access to the accident site and access to and preservation of evidence. The Regulation also provides that certain evidence obtained in the safety investigation shall not be made available to other investigations such as statements made by witnesses and their identity. The Regulation then back-tracks on this by providing that the authority competent to decide on the disclosure of records according to national law may still decide that the benefits of disclosing information which is embargoed outweighs the adverse impact of such disclosure. If such disclosure is so permitted, only the data strictly necessary is to be disclosed.

Information Exchange

Directive 2003/42/EC requires Member States to set up aviation occurrence reporting systems and Regulation 1321/2007 established a central repository of the reports collected by the Member States with the objective of preventing aviation accidents and incidents. The Regulation requires all safety recommendations made as the result of an investigation to be recorded in such central repository and that EASA and the competent authorities of the Member States shall participate in the analysis of the information in the repository. The Regulation further recommends that the occurrence reporting Directive 2003/42/EC be revised before 31 December 2011.

Implementation

The Member States are responsible for fixing the penalties for breaches of the Regulation and such penalties are to be effective, proportionate and dissuasive. Member States are also responsible for auditing their airlines' emergency plans. Spain has already passed the necessary legislation. As far as the UK is concerned, it is understood that Department of Transport intends to consult the industry about the implementation of the Regulation, but this process is at an early stage. Nevertheless, the Regulation is in force and directly applicable and airlines should accordingly be complying with the passenger information and emergency contacts requirements and developing their emergency plans if they have not already done so.

Comment

Given that the EU now has a single aviation safety organisation in the shape of EASA, it would be logical for it to have a single safety investigation authority but the Commission apparently felt that this was a step too far and that increased cooperation is the way to proceed for the moment. The Regulation seems to have a good chance of achieving that and the increased emphasis given to the central repository of reports and recommendations is an important development. It will be interesting to see what emerges from the review of the occurrence reporting Directive 2003/42/EC.