PURPOSE: the adoption of new rules on investigation and prevention of accidents and incidents in civil aviation and to strengthen the rights of the victims of such catastrophes.

LEGISLATIVE ACT: Regulation (EU) No 996/2010 of the European Parliament and of the Council on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC.

CONTENT: following an agreement with the European Parliament at first reading, the Council adopted a Regulation on the investigation and prevention of accidents and incidents in civil aviation which updates the existing legal framework in this field.

The new Regulation replaces Directive 94/56/EC which laid the foundations for the European system of investigation and prevention in the civil aviation field. It applies to safety investigations of serious accidents and incidents and aims to improve aviation safety by ensuring a high level of efficiency, expediency, and quality of European civil aviation safety investigations, the sole objective of which is the prevention of future accidents and incidents without apportioning blame or liability, including through the establishment of a European Network of Civil Aviation Safety Investigation Authorities.

It also provides for rules concerning the timely availability of information relating to all persons and dangerous goods on board an aircraft involved in an accident. It also aims to improve the assistance to the victims of air accidents and their relatives.

Authority responsible for safety investigations: each Member State shall ensure that safety investigations are conducted or supervised, without external interference, by a permanent national civil aviation safety investigation authority capable of independently conducting a full safety investigation, either on its own or through agreements with other safety investigation authorities. A safety investigation authority from one Member State may request the assistance of safety investigation authorities from other Member States.

Obligation to investigate: every accident or serious incident involving aircraft other than specified in Annex II to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (EASA) shall be the subject of a safety investigation in the Member State in the territory of which the accident or serious incident occurred. Any person involved who has knowledge of the occurrence of an accident or serious incident shall notify without delay the competent safety investigation authority of the State of Occurrence thereof.

Safety investigation authorities shall, provided that the requirement of no conflict of interest is satisfied, invite EASA and national civil aviation authorities of the Member States concerned, within the scope of their respective competence, to appoint a representative or to participate in investigations. Where a judicial investigation is carried out in parallel, it must in coordination with the safety investigation, the independence of which must be respected.

Each safety investigation shall be concluded with a report in a form appropriate to the type and seriousness of the accident or serious incident. The report shall state that the sole objective of the safety investigation is the prevention of future accidents and incidents without apportioning blame or liability. The report shall contain, where appropriate, safety recommendations.

European Network of Civil Aviation Safety Investigation Authorities : the currently informal cooperation between national civil aviation safety investigation authorities is transformed into a more formal European network.

The Network shall seek to further improve the quality of investigations conducted by safety investigation authorities and to strengthen their independence. In particular, it shall encourage high standards in investigation methods and investigator training. Its tasks include advice on all aspects relating to the development and implementation of Union policy and rules in relation to safety investigations, the exchange of information, the promotion of best practices, the coordination of training activities and skills development for investigators, and the pooling of means and assistance. The network will also facilitate cooperation with the Commission and the EASA.

Information and assistance to victims : when an accident occurs, airlines are required to communicate: i) as rapidly as possible, and at the latest within two hours of the notification of the occurrence of an accident, the list of all persons on board; b) immediately after the notification, the list of dangerous goods on board.

Airlines shall offer travellers the opportunity to give the name and contact details of a person to be contacted in the event of an accident. Each Member State shall establish a civil aviation accident emergency plan at national level. Such an emergency plan shall also cover assistance, including psychological support, to the victims of civil aviation accidents and their relatives.

ENTRY INTO FORCE: 02/12/2010.

The European Parliament adopted by 604 votes to 11, with 26 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council on investigation and prevention of accidents and incidents in civil aviation.

The Parliament adopted its position at first reading under the ordinary legislative procedure (formerly known as the codecision procedure). The amendments adopted in plenary are the result of a compromise reached between the European Parliament and the Council. They amend the Commission’s position as follows:

Purpose of the Regulation : this Regulation aims to improve aviation safety by ensuring a high level of efficiency, expediency, and quality of European civil aviation safety investigations, the sole objective of which is the prevention of future accidents and incidents without apportioning blame or liability, including through the establishment of a European Network of Civil Aviation Safety Investigation Authorities .

The Regulation also provides rules concerning the timely availability of information relating to all persons and dangerous goods on board an aircraft involved in an accident. It also aims to improve the assistance to the victims of air accidents and their relatives (i.a. the immediate family and/or next of kin and/or other person closely connected with the victim of an accident, as defined under the national law of the victim).

Scope : this Regulation shall apply to safety investigations into accidents and serious incidents which have occurred in the territories of the Member States to which the Treaties apply. It shall not apply to safety investigations into accidents and serious incidents which involve aircraft engaged in military, customs, police or similar services, except when the Member State concerned so determines, in accordance with this Regulation and national legislation.

Civil Aviation Safety Investigation Authority : the amended text stipulates that each Member State shall ensure that safety investigations are conducted or supervised, without external interference, by a permanent national civil aviation safety investigation authority capable of independently conducting a full safety investigation, either on its own or through agreements with other safety investigation authorities. In order to inform the public of the general aviation safety level, a safety review shall be published annually at national level. In this analysis, the sources of confidential information shall not be revealed.

Obligation to investigate : every accident or serious incident involving aircraft other than specified in Annex II to Regulation (EC) No 216/2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency shall be the subject of a safety investigation in the Member State in the territory of which the accident or serious incident occurred.

When an aircraft, other than specified in Annex II to Regulation (EC) No 216/2008, registered in a Member State is involved in an accident or serious incident the location of which cannot be definitely established as being in the territory of any State, a safety investigation shall be conducted by the safety investigation authority of the Member State of registration.

Safety investigations shall be independent of, separate from and without prejudice to any judicial or administrative proceedings to apportion blame or liability.

Cooperation between safety investigation authorities : when, following a request, a safety investigation authority agrees to provide assistance , such assistance shall, as far as possible, be provided free of charge.

European Network of Civil Aviation Safety Investigation Authorities : Member States shall ensure that their safety investigation authorities establish between them a European Network of Civil Aviation Safety Investigation Authorities ("the Network"), composed of the heads of the safety investigation authorities in each of the Member States and/or, in the case of a multimodal authority, the head of its aviation branch, or their representatives, including a chairman chosen among these for a period of three years. In close consultation with the members of the Network, the chairman shall draw up the annual work programme of the Network. The Commission shall transmit the work programme to the European Parliament and the Council. The chairman shall also draw up the agenda for the meetings of the Network.

The Network shall seek to further improve the quality of investigations conducted by safety investigation authorities and to strengthen their independence. In particular, it shall encourage high standards in investigation methods and investigator training.

In order to bring a genuine added value compared to the current situation, a series of amendments defines the tasks and missions which the Network should be responsible for. The Network should in particular: (a) prepare suggestions and advise Union institutions on all aspects of development and implementation of Union policies and rules relating to safety investigations and the prevention of accidents and incidents; (b) promote the sharing of information useful for the improvement of aviation safety and actively promote structured cooperation between safety investigation authorities, the Commission, EASA and national civil aviation authorities; (c) coordinate and organise, where appropriate, "peer reviews", relevant training activities and skills development programmes for investigators; (d) promoting best safety investigation practices with a view to developing a common Union safety investigation methodology; (e) strengthen the investigating capacities of the safety investigation authorities.

The Commission shall inform the European Parliament and the Council of the activities of the Network on a regular basis. The European Parliament shall also be informed whenever the Council or the Commission submits requests to the Network.

The members of the Network shall neither seek nor accept instructions from any body which could affect the independent status of safety investigations.

Participation of EASA and national civil aviation authorities in safety investigations : safety investigation authorities shall, provided that the requirement of no conflict of interest is satisfied, invite EASA and national civil aviation authorities of the Member States concerned, within the scope of their respective competence, to appoint a representative to participate in investigations. EASA and the national civil aviation authorities shall support the investigation in which they participate by supplying the requested information, advisers and equipment to the safety investigation authority in charge.

Obligation to notify accidents and serious incidents : the Regulation states that any person involved who has knowledge of the occurrence of an accident or serious incident shall notify without delay the competent safety investigation authority of the State of Occurrence thereof. The safety investigation authority shall notify without delay the Commission, EASA, the International Civil Aviation Organisation (ICAO), the Member States and third countries concerned in accordance with the international standards and recommended practices of the occurrence of all accidents and serious incidents of which it has been notified.

Participation of the Member States in safety investigations : upon receipt of the notification of the occurrence of an accident or serious incident from another Member State or third country, the Member States which are the State of Registry, the State of the Operator, the State of Design and the State of Manufacture shall, as soon as possible, inform the Member State or third country in the territory of which the accident or serious incident occurred whether they intend to appoint an accredited representative in accordance with the international standards and recommended practices.

Status of the safety investigators : notwithstanding any confidentiality obligations under the legal acts of the Union or national law, the investigator-in-charge shall in particular be entitled to: (a) have immediate unrestricted and unhampered access to the site of the accident or incident as well as to the aircraft, its contents or its wreckage; (b) request the medical examination of the people involved in the operation of the aircraft or request tests to be carried out on samples taken from such people and to have immediate access to the results of such examinations or tests.

Any person participating in safety investigations shall perform his or her duties independently and shall neither seek, nor accept instructions from anybody, other than the investigator-in-charge or the accredited representative.

Coordination of investigations : when a judicial investigation is also instituted, the investigator-in-charge shall be notified thereof. In such a case, the investigator-in-charge shall ensure traceability and retain custody of flight recorders and any material evidence.

Member States shall ensure that safety investigation authorities, on the one hand, and other authorities likely to be involved in the activities related to the safety investigation, such as the judicial, civil aviation, search and rescue authorities, on the other hand, cooperate with each other through advance arrangements.

Those arrangements shall respect the independence of the safety investigation authority and allow the technical investigation to be conducted diligently and efficiently. Among others, the advance arrangements shall cover the following subjects: (a) access to the site of the accident; (b) preservation of and access to evidence; (c) initial and ongoing debriefings of the status of each process; (d) exchange of information; (e) appropriate use of safety information; (f) resolution of conflicts.

Member States shall communicate to the Commission those arrangements, which shall transmit them to the chairman of the Network, the European Parliament and the Council for information.

Preservation of evidence : the Member State in the territory of which the accident or serious incident occurred shall be responsible for ensuring safe treatment of all evidence and for taking all reasonable measures to protect such evidence and for maintaining safe custody of the aircraft, its contents and its wreckage for such period as may be necessary for the purpose of a safety investigation.

Protection of sensitive safety information : the amended text states that the cockpit voice and image recordings and their transcripts, as well as voice recordings inside air traffic control units, ensuring also that information not relevant to the safety investigation, particularly information with a bearing on personal privacy, shall be appropriately protected.

Flight data recorder recordings shall not be made available or used for purposes other than those of the safety investigation, airworthiness or maintenance purposes, except when such records are de-identified or disclosed under secure procedures.

The communication of records to another Member State for purposes other than safety investigation and for purposes other than those aiming at the improvement of aviation safety may be granted insofar as the national law of the communicating Member State permits.

Communication of information : the safety investigation authority in charge shall be authorised to inform victims and their relatives or their associations or make public any information on the factual observations, the proceedings of the safety investigation, possibly preliminary reports or conclusions and/or safety recommendations, provided that it does not compromise the objectives of the safety investigation and fully complies with applicable legislation on the protection of personal data.

Occurrence reporting : the amended text stipulates that the competent authorities of the Member States shall in collaboration participate regularly in the exchange and analysis of information covered by Directive 2003/42/EC and shall have access by designated persons to information contained in the central repository established under Regulation (EC) No 1321/2007.

Information on persons and dangerous goods on board : Union airlines operating flights arriving to or departing from, and third country airlines operating flights departing from an airport located in the territories of the Member States to which the Treaties apply , shall implement procedures which allow for the production: (a) as soon as possible, and at the latest within two hours of the notification of the occurrence of an accident to the aircraft, of a validated list, based on the best available information, of all the persons on board; and (b) immediately after the notification of the occurrence of an accident to the aircraft, of the list of the dangerous goods on board.

In order to allow passengers' relatives to obtain information quickly concerning the presence of their relatives on board an aircraft involved in an accident, airlines shall offer travellers the opportunity to give the name and contact details of a person to be contacted in the event of an accident . This information may be used by the airlines only in the event of an accident and shall not be communicated to third parties or used for commercial purposes.

The name of a person on board shall not be made publicly available before the relatives of that person have been informed by the relevant authorities. The lists referred to in the Regulation shall be kept confidential in accordance with the legal acts of the Union and national law and the name of each person appearing in these lists shall, subject thereto, only be made publicly available in so far as the relatives of the respective persons on board have not objected.

Assistance to the victims of air accidents and their relatives : each Member State shall establish a civil aviation accident emergency plan at national level. Such an emergency plan shall also cover assistance to the victims of civil aviation accidents and their relatives.

Member States shall ensure that all airlines established in their territory have a plan for the assistance to the victims of civil aviation accidents and their relatives. Those plans must take particular account of psychological support for victims of civil aviation accidents and their relatives and allow the airline to react to a major accident. The Member States shall audit the assistance plans of the airlines established in their territory. Member States shall also encourage third-country airlines which operate in the Union to similarly adopt a plan for the assistance of victims of civil aviation accidents and their relatives.

When an accident occurs, the Member State in charge of the investigation, the Member State in which the airline, the aircraft of which was involved in the accident is established, or the Member State which had a large number of its nationals on board the aircraft involved in the accident, shall provide for the appointment of a reference person as a point of contact and information for the victims and their relatives.

Amendment of this Regulation : this Regulation shall be subject to a review no later than four years following its entry into force. Where the Commission considers that this Regulation should be amended, it shall request the Network to issue a preliminary opinion, which shall also be forwarded to the European Parliament, the Council, the Member States and EASA.

The Committee on Transport and Tourism adopted the report drawn up by Christine DE VEYRAC (EPP, FR) on the proposal for a regulation of the European Parliament and of the Council on investigation and prevention of accidents and incidents in civil aviation.

It recommended that the European Parliament’s position at first reading under the ordinary legislative procedure (formerly known as the codecision procedure) should amend the Commission proposal as follows:

Purpose : this Regulation aims – notably through the establishment of a Network of Civil Aviation Safety Investigation Authorities – to improve aviation safety by ensuring a high level of efficiency, expedition and quality of European civil aviation safety investigations, including the exchange of ideas, experiences and practices between members of the Network.

It also aims to establish rules on the availability of lists of all persons on board aircraft involved in accidents and to improve the assistance given to air accident victims and their families.

Definitions : Members propose replacing the term ‘causes’ with the term ‘factors’ to mean actions, omissions, events, conditions, or a combination thereof, which led to the accident or incident. They have also included the definitions of: 'deliberate act' which means an intentional act carried out with the aim of causing an aviation accident or serious incident; 'preliminary report' means the communication used for the prompt dissemination of data obtained during the early stages of the investigation; ‘act of unlawful interference’ shall mean an act or attempted act such as to jeopardise the safety of civil aviation and air transport, namely unlawful seizure of an aircraft in flight.

Obligation to conduct an investigation : the safety investigation authorities should be able to conduct their investigations free of any form of pressure and entirely independently of regulatory or judicial authorities and in the interest of public safety protection. They shall be independent of any judicial or administrative proceedings or financial interests to apportion blame or liability.

Safety investigation authority : each Member State shall ensure that safety investigations are conducted or supervised, without external interference, by a permanent civil aviation safety investigation authority capable of independently carrying out a full safety investigation. In order to inform the public of the general safety level, a safety review shall be published annually by the safety investigation authorities.

Cooperation between safety investigation authorities : these may be assisted by the Network. Specifically, the Network should supply to a safety investigation authority, at its request, a list of investigators and equipment available in the other Member States for potential use by the authority conducting an investigation.

European Network : the Network shall seek to improve the quality of investigations conducted by safety investigation authorities and to strengthen their independence. It should help to make air transport safer by setting high standards in relation to investigation methods and investigator training. In order to produce a real value added compared with the current situation, a series of amendments define the tasks and missions that the Network should accomplish. It shall have responsibility in particular for: (a) preparing recommendations and advising the European institutions on all aspects of developing and implementing European policies and rules relating to civil aviation investigations and accident prevention and assistance to the victims of air accidents and their families; (b) developing the sharing of information ; (c) coordinating training and skills development programmes for the investigators; (d) establishing a register of good practice and developing a European safety investigation methodology; (e) strengthening the investigating capacities of the safety investigation authorities.

The Network shall publish an annual report on its activities and forward it to the European Parliament, the Council and the Commission for information. This report must set out the results of the implementation of the annual work programme and its impact on improving aviation safety in the European Union. It shall be made public.

Work organisation : the work of the Network shall be organised according to its rules of procedure. The Network shall be chaired by each of its members in turn under a rotating chairmanship that matches the presidency of the Council. The Network shall elect a coordinator for a renewable period of three years. The coordinator may be a member of the Network, an authority responsible for safety investigations in a Member State or a person with recognised experience in civil aviation safety investigation.

Participation of the European Aviation Safety Agency (EASA) and national civil aviation authorities in investigations : within the scope of their competence, EASA and the national civil aviation authorities shall be invited by the safety investigation authorities of the Member States to be represented and to participate in investigations. Members propose that the EASA be termed as an ‘ adviser’ as opposed to an ‘expert’ in any safety investigation carried out in a third country to which a safety investigation authority of a Member State is invited to designate an accredited representative. The term ‘adviser’ is the appropriate term, used in ICAO’s Annex 13. EASA and the national civil aviation authorities may not make public, without the agreement of the safety investigation authority in charge of the investigation, information that they obtain in the course of the investigation, or use it for purposes other than improving aviation safety.

Accident investigators : Members consider it necessary that the investigator-in-charge should have immediate unrestricted and unhampered access to the site of the accident in order to gather and secure all evidence necessary to analyse and explain the factors related to the accident.

Coordination of investigations : Member States shall ensure good cooperation between the safety investigation authorities, on the one hand, and other authorities likely to be involved in the activities related to the safety investigation, such as the judicial, civil aviation, search and rescue and other authorities, on the basis of advance arrangements . Members state these arrangements must contain the relevant provisions laid down in this Regulation, in particular as regards the protection of information obtained in the course of the technical investigation.

Protection of sensitive data : Members state that it is essential that persons involved in an accident cooperate with the safety investigation in order to establish the causes of the accident. In this context sensitive safety information should not be used for purposes other than prevention of accidents and incidents. However, while some types of data need to be kept strictly confidential, it is important, both for the families of accident victims and for the smooth functioning of the justice system, that the courts should have access to certain data and facts which are useful for judicial inquiries. This must be done in accordance with the relevant instructions issued to protect the continued confidentiality of the information once the judicial authorities have completed their work.

The right balance among all interests including safety, justice and the protection of the victims and the persons involved is necessary to guarantee the overall public interest.

When safety data is used as evidence in criminal proceedings pursuant to paragraph 2a, the fundamental rights of the persons involved, notably the rights to privacy and to a fair trial, shall be respected. Only the data strictly necessary for the criminal proceedings shall be disclosed, the rest being preserved by the investigation authority to the maximum extent possible.

The use of recordings : the amended text stipulates that cockpit voice and image recordings and their transcripts shall not be made available or used for purposes other than safety investigation unless the safety investigation authority establishes that the accident was caused by a deliberate act or an act of unlawful interference.

Information not relevant to the safety investigation, particularly information with a bearing on personal privacy, that is derived from cockpit voice and image recordings and their transcripts shall be subject to full protection and may not be forwarded or disclosed.

Member States shall ensure that the use in legal proceedings of recordings and safety data arising from accident investigation does not breach the right to privacy or the right to a fair trial. Under all circumstances, the right not to incriminate oneself shall be preserved.

Information to victims, their families or their associations : they should have priority access to information before it is made public, provided they have given contact details.

Occurrence reporting : Members consider that the question of occurrence reporting is important and must be paid particular attention. Currently, the data contained in ECCAIRS are not analysed at European level. Analysing those data could make it possible to detect trends and to take action to prevent an accident. The amended text stipulates that the EASA shall, in collaboration with the Member States, participate regularly in the exchange and analysis of information covered by Directive 2003/42/EC and shall have online access to all information contained in the central repository established under Regulation (EC) No 1321/2007.

Availability of passenger lists and contact with families : EU airlines and airlines departing from or arriving at an airport located in the territory of a Member State to which the Treaty applies shall implement procedures to produce a list of all the persons on board an aircraft, as soon as possible but at any rate within two hours of the notification of the occurrence of an accident to this aircraft, as well as a list of any dangerous goods on board which could constitute a threat to public health or to the environment.

In order to allow passengers’ families to obtain information quickly concerning the presence of their relatives on board an aircraft involved in an accident, airlines and travel agencies shall offer travellers the opportunity to give the name and contact details of a person to be contacted in the event of an accident . This information may be used only in the event of an accident. It shall not be communicated to third parties and it may not be used for commercial purposes. The list of passengers shall not be publicly available before all families of the passengers have been informed by the relevant authorities and their agreement has been obtained.

Assistance to victims and their families : t he Member States shall ensure that a civil aviation accident emergency plan is set up at national level. At the same time it must be governed by certain common principles in the Member States, thereby ensuring a more comprehensive and harmonised response to such occurrences at European level.

This emergency plan shall include in particular a plan for the assistance of the victims of civil aviation accidents and a plan for the rapid activation of airport emergency services in the event of an accident at take-off or landing in a Member State.

When an accident occurs, the airline is the first point of contact for passengers’ families. Member States must therefore check that the airlines established on their territory also have an appropriate crisis-response plan. Third-country airlines, too, must have such a plan.

When an accident occurs, the Member State that is in charge of the investigation, or where the airline whose aircraft was involved in the accident is established, or that had a large number of nationals on board the aircraft involved in the accident, shall provide for the appointment of a reference person as a point of contact and information for the victims and their families.

European travellers must be protected by the Montreal Convention irrespective of the company they fly with.

Access to documents and the protection of personal data : Members consider that particular attention should be paid to the protection of personal data. The provisions of this Regulation shall apply in accordance with Directive 95/46/EC and Regulation (EC) No 45/2001 of the European Parliament and of the Council.

Adaptations to technical progress : the Commission should be empowered to adopt delegated acts in accordance with Article 290 of the TFEU concerning adaptations to technical progress, in particular with regard to modifications in the context of Annex 13 to the ICAO Convention, of the definitions in Article 2 and the Annex to this Regulation. Amendment of the Regulation : Members call for this Regulation to be subject to a review no later than 4 years after its entry into force. To this effect, and based inter alia on a wide consultation of stakeholders and the Network, the Commission shall assess the implementation of this Regulation and present a written review report, no later than five years after its entry into force, including proposals for legislative changes where necessary.

Pending the European Parliament's position at first reading, the Council agreed on a general approach on the draft regulation on investigation and prevention of accidents and incidents in civil aviation (doc. 7085/10 ).

The overall objective of the draft regulation is to ensure that safety investigations are carried out expeditiously and to the highest standards in order to prevent future accidents, without apportioning blame or liability. To this end, current informal cooperation among national safety investigation authorities will be transformed into a European network of civil aviation safety investigation authorities. The cooperation thus strengthened will be complemented by a set of compulsory rules for safety investigations.

Discussing the draft regulation, the delegations that still had reservations on some issues were able to lift them. However, some Member States pointed out that certain issues, such as the relationship between safety investigations and judicial investigations, would need to be further discussed in the course of negotiations with the European Parliament on the text. Moreover, the Commission considers that the obligation to investigate should also cover serious incidents involving smaller aircraft and intends to bring up this issue in the forthcoming discussions with Parliament.

As regards the time limit for making available the list of persons on board an aircraft when an accident occurs, the Council agreed that such a list should be produced as soon as possible, but at the latest within two hours after the accident so that relatives of persons on board can be informed without delay.

The network to be established will be composed of the heads of the civil aviation safety investigation authorities or their representatives and be chaired by one of its members for a mandate of three years. Its purpose is to contribute to better implementation of EU civil aviation investigation legislation and enhanced availability of investigation capacity throughout the Union. Cooperation through the network includes exchange of information, promotion of best practices, sharing of resources and provision of assistance. The network will also facilitate cooperation with the Commission and the European Aviation Safety Agency (EASA). It will have an advisory and coordination role and will not have the status of a new EU body. Responsibility for safety investigations will rest with the national authorities.

As regards the conduct of safety investigations, the draft regulation includes in particular the following common requirements:

every accident has to be investigated by an independent body, that is, the safety investigation authority of the Member State in which the accident occurred. Such an investigation also has to be undertaken in the case of a serious incident involving aircraft with a maximum take-off mass of over 2250 kg; the state of registry, the state of the operator, the state of design and the state of manufacture of the aircraft concerned will be invited to designate accredited representatives to participate in the safety investigation; when appropriate, the EASA should be invited to appoint a representative to participate as an advisor in investigations under the control and at the discretion of the national authority in charge; coordination has to be ensured between safety investigations and possible judicial investigations instituted in parallel.

The text sets out the rights and obligations of safety investigators and provides for protection of sensitive information and procedures for follow-up of safety recommendations issued as a result of the investigations. It also contains provisions on assistance to victims and their families.

The proposed regulation is designed to modernise the existing EU legal framework in this field. It will replace Directive 94/56/EC, which laid the foundations of the European investigation and prevention system in civil aviation.

Opinion of the European Data Protection Supervisor on the proposal for a Regulation of the European Parliament and of the Council on investigation and prevention of accidents and incidents in civil aviation

The EDPS welcomes the fact that the regulation explicitly applies without prejudice to Directive 95/46/EC, and thus, to some extent, takes data protection principles into account. However, considering the context in which personal data are processed, he considers that specific provisions should be added in order to ensure a fair processing.

This is all the more necessary considering the circumstances in which these data are processed: they will mostly relate to individuals directly or indirectly affected by a serious accident and/or with the loss of relatives. This supports the need for an effective protection of their rights, and for a strict limitation of the transmission or publication of personal data.

Considering that the purpose of the proposal is to allow the investigation of accidents or incidents and that personal data are relevant only where necessary in the framework of such investigation, such data should in principle be deleted or anonymised, as soon as possible, and not only at the stage of the final report. This should be guaranteed by the insertion of a horizontal provision in the Regulation.

The EDPS stresses the need to:

strictly define and limit the exceptions to the purpose limitation principle: although the proposal states as a principle that personal information should only be used for investigation purposes and by the parties responsible for such investigations, the text includes some broad derogations; provide for a limited period of storage of personal data: the proposal does not provide for any indication as to the duration of storage of this information. According to data protection principles, personal data must be kept ‘in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed’. Accordingly, personal data should in principle be deleted as soon as the investigation is terminated, or should be kept in an anonymous format if complete deletion is not possible. Any reasons for which identifiable data is kept longer should be indicated and justified, and should include criteria identifying those entitled to keep the data. A provision should be inserted in the proposal to that effect , which should apply in a horizontal way to any personal information exchanged through the network; ensure a coordinated procedure for access, rectification and/or deletion of personal data, especially in the context of their transmission to Member States through the network: the EDPS welcomes the measures as far as confidentiality of information is concerned, and especially the obligation not to disclose information which has been considered as confidential by the Commission. Regarding personal information processed through the network, the EDPS considers that these safeguards should be complemented by an obligation to guarantee the accuracy of these data and their possible correction and deletion in a synchronised way by all members of the network processing such personal data; submit the transmission of personal data to representatives of third countries to the condition that they provide an adequate level of protection: a provision could be added in the proposal recalling that no personal data should be transferred to representatives of a third country which does not provide an adequate level of protection, except when specific conditions have been fulfilled. It would apply in particular with regard to Article 8 on the network, and Article 18 on the conditions of communication of information; clarify the roles and responsibilities of the Commission and of EASA, in the perspective of the application of Regulation (EC) No 45/2001. The EDPS calls for clarification on the extent to which the network will be managed by the Commission and through European Unions’ technical infrastructure. Would the purpose be to use an already existing network, any plan to allow for interoperability with existing databases should be clearly mentioned and motivated. The EDPS emphasises the need to provide for a secure network, accessible only for the purposes described in the proposal and to entitled stakeholders. The respective roles and responsibilities of the Commission and of EASA ( 13 ) as well as any other Union body which would be involved in the management of the network, should be clarified in the text for reasons of legal certainty.

PURPOSE: to propose new rules on investigation and prevention of accidents and incidents in civil aviation and to strengthen the rights of the victims of such catastrophes and their families.

PROPOSED ACT: Regulation of the European Parliament and of the Council

BACKGROUND: civil aviation, although in existence for a relatively short period of time, has well established traditions in accident investigation. The obligation to investigate accidents in civil aviation is enshrined in the Convention on International Civil Aviation to which all Member States are Parties. In recognition of the importance of accident investigation, the European Community, already in 1980, adopted a Directive 80/1266/EEC on cooperation and mutual assistance between the Member States in the field of air accident investigation, later replaced by Directive 94/56/EC. In addition, Directive 2003/42/EC on occurrence reporting in civil aviation, was adopted in 2003. Directive 2003/42/EC, by supporting the establishment of safety occurrence reporting systems, significantly contributed to the promotion of "Just Culture" in European civil aviation.

However, the Community system for civil aviation accident investigation and occurrence reporting, as currently established, functions below optimum efficiency. The current regulatory framework dealing with accident investigation, which is already 15 years old, no longer meets the requirements of the Community and the Member States. More specifically, this is the case in regard to (i) the investigating capacity of the Member States compared with the situation in 1994, where there are considerable divergences between Member States; (ii) aircraft and their systems are becoming increasingly complex; (iii) the EU common aviation market has grown in size to 27 Member States and complexity; (iv) the increase in the size and complexity of the internal aviation market also requires the increased responsibility of the Community for aviation safety.

No improvements in transport safety are possible without the conduct of independent accident investigations. A change is therefore necessary to overcome the shortcomings of the current regulatory framework.

IMPACT ASSESSMENT: the Commission conducted an impact assessment which identified the following specific problem areas: (i) lack of a uniform investigating capacity in the EU; (ii) tensions between safety investigations and other proceedings; (iii) unclear role of the Community in safety investigations; (iv) weaknesses in the implementation of safety recommendations; and (v) lack of common standards concerning management of passenger manifests and support to the victims of air accidents and their families.

The Commission, therefore, analysed several scenarios:

Option 1: the promotion of voluntary cooperation; Option 2: the creation of a European Network of Civil Aviation Safety Investigation Authorities; Option 3: the creation of a European Civil Aviation Safety Board.

All the options were compared against each other and measured against the “do nothing” option as the benchmark. The analysis clearly indicated that support for voluntary cooperation, coupled with a number of important principles enshrined in a legally binding framework would permit the Community’s objectives to be met in the most cost-efficient way and without going beyond what is strictly necessary from the proportionality point of view. These preferred policy options, while fully respecting the principle of independence of safety investigations, would permit, by supporting voluntary cooperation and without establishing new structures at the Community level, a significant enhancement of the overall efficiency of the current regulatory framework for civil aviation accident investigation and prevention in the EU.

CONTENT: the aim of the proposed Regulation is to improve the aviation safety by ensuring a high level of efficiency and quality of European civil aviation safety investigations, with the sole objective of preventing future accidents and incidents without apportioning blame or liability.

The proposal provides for the support for voluntary cooperation, coupled with a number of important principles enshrined in a legally binding framework. It builds on the resources already available in the Member States and experiences of the existing informal cooperation of the National Safety Investigation Authorities.

Under the proposed Regulation this informal cooperation will be transformed into a European Network of Civil Aviation Safety Investigation Authorities .

The network will contribute to greater uniformity, better implementation and enforcement of the Community civil aviation accident investigation legislation . It will also strengthen the investigating capacity of the EU and the preventive function of accident investigation by promoting a more structured cooperation between the national Safety Investigation Authorities, the Commission and the European Aviation Safety Agency, while fully retaining an independent status.

In order to avoid the creation of a new Community body, the network will have no legal personality and its mandate, which is clearly described in the proposed Regulation, will be limited to advisory and coordination tasks.

The proposed Regulation would supplement the voluntary cooperation with a number of obligations enshrined in law which will:

strengthen the efficiency of safety investigations by implementing into the Community law the international standards and recommended practices related to protection of evidence and sensitive safety information, in accordance with Annex 13 to the Chicago Convention; establish common requirements in terms of organisation of national Safety Investigation Authorities and strengthen the independent status of safety investigations; better coordinate the various inquiries into the causes of accidents and incidents , notably by mandating the national Safety Investigation Authorities to conclude appropriate advance arrangements with other authorities (judicial, search and rescue) likely to be involved in accident investigation; clarify the mutual rights and obligations of the European Aviation Safety Agency and national Safety Investigation Authorities without compromising independence of safety investigations; specify the criteria on the basis of which Safety Investigation Authorities would appoint accredited representatives for the "State of Design"; establish common requirements for Community airlines regarding passenger lists and protection of the data contained therein; strengthen the rights of the victims of air accidents and of their families; better protect anonymity of persons involved in accident; strengthen implementation of safety recommendations by: i) establishing a central database of safety recommendations ; ii) establishing a legal requirement for every entity in the EU issuing a safety recommendation or receiving it to have a process for recording the responses to the safety recommendation issued and monitoring the progress of the action taken in response to a safety recommendation;

BUDGETARY IMPLICATIONS: the European Network of Civil Aviation Safety Investigation Authorities will constitute a body pursuing an aim of general European interest, within the meaning of Article 108 (1)b of the Council Regulation (EC, Euratom) No 1605/2002 (the Financial Regulation), which will allow the Community to support its activities with an annual grant of €600 000 , on the basis of an annually agreed work programme.