1. Introduction – Regulation (EU) No 376/2014: adoption and content
On the 3rd April 2014 the European Union adopted Regulation (EU) No 376/2014 of the European Parliament and of the Council on the reporting, analysis and follow-up of occurrences in civil aviation (hereinafter Regulation 376/2014)[1]. This Regulation has been adopted by co-legislators (the European Parliament and the Council) in 1st reading following a relatively quick agreement for a text subject to the ordinary legislation procedure (Article 294 TFUE). Actually, the legislative proposal[2] was presented by the European Commission on 18th December 2012 and an informal agreement was found between the co-legislators 12 months later, on 25th November 2013, formalised by a vote of the European Parliament on 26th February 2014 and by the Council approval on 14th March 2014. Both co-legislators strongly supported the proposal’s objectives and endorsed the ambitious legal provisions to ensure the achievement of these objectives (644 MEPs voted in favour of the Regulation, 14 against and 6 abstained; the Council adopted it by unanimity of the Member States).
Regulation 376/2014, which will become applicable from the 15th November 2015, creates a comprehensive legal framework, across all aviation domains, aiming at preventing accidents through the reporting, analysis and follow-up of occurrences in civil aviation. In the Regulation an ‘occurrence’ is defined as “any 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” (Article 2).
This Regulation is a core element of the future European aviation safety system, which aims to shift Europe towards a more proactive and evidence-based safety system, i.e. a system that attempts to foresee and prevent accidents based on the collection and analysis of data, rather than simply reacting after accidents (Recital 5). The need for this legislation was notably recognised in the Commission Communication on “Setting up a Safety Management System for Europe“[3].
Regulation 376/2014 also falls within a broader international context with the adoption of a new Annex to the Chicago Convention[4], Annex 19 dedicated to Safety Management, which has become applicable since 14th November 2013 and which recognises in particular the need to collect and analyse relevant safety information with the view to enhancing aviation safety (Recital 6).
In this European and international context, which aims at finding more efficient ways to prevent accidents, Regulation 376/2014 requires that the relevant safety information relating to civil aviation be reported, collected, protected, analysed together with the relevant corrective actions to be taken on its basis (Articles 1, 4, 5, 13, 14, 15 and 16) with the sole objective to prevent accidents and incidents and not to attribute blame or liability (Article 1). It also ensures that this information is appropriately exchanged among the relevant authorities (Articles 1, 8, 9 and 14).
The Regulation includes in particular the requirement for the relevant actors at all levels (industry, Member States, the European Aviation Safety Agency – EASA) to establish mandatory (Article 4) and voluntary (Article 5) reporting systems with the view to collecting all occurrences that may reveal a risk to aviation safety (Recital 8). Once collected, these occurrences shall be analysed in order to identify and mitigate safety risks (Recital 27 and Article 13).
Regulation 376/2014 also includes provisions aiming to ensure a high level of quality and completeness of occurrence reports (Recital 13 and Article 7) as analysis and trends derived from inaccurate data may show misleading results and may push for efforts being focused on inappropriate action.
In addition, the Regulation improves the exchange of information between relevant aviation authorities notably through the means of the European Central Repository (ECR), a database which regroups all occurrences collected in the European Union (Recitals 21, 22, 24 and Articles 8, 9). Such exchange aims at enhancing the identification of safety hazards (Recital 19) and should not serve for attribution of blame or safety performance benchmarking (Recital 20). Furthermore, Regulation 376/2014 addresses dissemination of the information contained in the ECR to interested parties in certain restricted circumstances (Recitals 25, 26 and Articles 10 to 12).
This entire occurrence system rests upon the reporting of occurrences by aviation professionals and the Regulation therefore recognises the necessity to establish an environment, which will ensure their confidence in the system and create incentives for reporting (Recitals 33 to 45 and Articles 15, 16). In this perspective, Regulation 376/2014 regulates the confidentiality and appropriate use of information (Article 15) and creates strict requirements for the protection of the source of information (Article 16).
This key component of the system is notably based on the recognition of the ‘Just Culture’ principle, which establishes that aviation professionals shall not be “punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but in which gross negligence, wilful violations and destructive acts are not tolerated” (Definition of ‘Just Culture’ Article 2).
2. Evolution of the ‘Just Culture’ concept
Just Culture is not a new concept; it exists and has been discussed for more than a decade. In addition, this notion is not inherent to aviation as it is also used in other domains such as healthcare. In an aviation context, it was defined for the first time in EU legislation in 2010[6] but its underlying principle was already present in several EU legislations. This was notably the case with the first EU legislation on occurrence reporting[7], in its Article 8, and with the so-called EASA Basic Regulation[8], in its Article 16, which both contain provisions ensuring that individuals are not blamed when reporting ‘honest errors’ but are held accountable for wilful violations and gross negligence.
Initially, ‘Just Culture’ was mainly understood in a context where judicial authorities were involved. Indeed, in a safety system, which was mostly relying on technological progress and on lessons learnt from accidents, information provided by aviation professionals on the possible circumstances of accidents was important in order to understand the causes of accidents and avoid their reoccurrence. When an accident happens two main questions usually come up: Why did this happen – how can we prevent it in the future? And, should anyone be liable, be held responsible for this? Whereas the first question is addressed by aviation authorities, the second one leads to the involvement of judicial authorities, be it criminal or civil. This situation may cause aviation professionals’ reluctance to provide important safety information to aviation authorities, as they are afraid that such information could later be used against them by judicial authorities. ‘Just Culture’ has therefore risen from the necessity to create an atmosphere of trust in which front line operators are encouraged to report important safety information and are given protection in case of judicial actions.
Over the last decade, with the increasing development of safety management systems (SMS), the large majority of safety information reported by aviation professionals has been gathered in the context of occurrence and other reporting systems. Therefore, today safety information is not mainly gathered to understand the reasons of an accident but even before it occurs in order to avoid it, following a systematic data collection process by the industry in the context of their SMS. The use of such information by judicial authorities in such circumstances, while possible, rarely occurs.
Regulation 376/2014 accompanies this evolution of the safety system and furthermore strengthens the ‘Just Culture’ related provisions. Indeed, the changes introduced by Regulation 376/2014 are substantial and are going much further that a simple definition of ‘Just Culture’ principles. For the first time in the European legislation, the ‘Just Culture’ principles are translated into concrete legal provisions which aim at ensuring their effective implementation. In addition, it shifts the focus towards the protection of aviation professionals in their daily working environment whereas in the past ‘Just Culture’ was mainly seen from the perspective of interaction with the judicial environment.
3. Preventing accidents with ‘Just Culture’
The growing levels of air traffic volumes combined with a fairly constant accident rate and the increasing complexity of aircraft (Recital 2) yielded calls for the transition of the aviation safety system towards a more proactive and evidence-based system, built on continuous analysis of safety information, including occurrences (Recital 5), as described in the sections above.
Whilst information coming from automatic reporting systems (such as Flight Data Monitoring systems) is increasingly being used in the context of SMS, reporting by aviation professionals remains a substantial and fundamental source of information to identify safety hazards and prevent accidents from occurring. In particular, aviation systems, whilst very complex, are heavily dependent on human performance. Preventing accidents therefore requires an increased focus on human factors. This can notably be achieved through the collection of extensive information about what people thought and how they acted in a given situation, far more than that obtainable by automatic means. The safety system therefore is crucially dependant on the participation and contribution of aviation professionals (Recital 8) in narratives that help to provide a description of the occurrence and the context surrounding the occurrence.
The methodologies used for occurrence reports analysis are very important to allow the best possible use of the information collected. The perspective adopted is frequently one where the event is seen entirely through a filter of the human’s errant behaviour. Occurrences are analysed by an approach of decomposition of system’s components, which are then analysed one by one.. The presence of ‘human error’ is often used as the final point, the point of causal explanation of the occurrence.
However, aviation professionals may be reluctant to report occurrences, in particular when this occurrence has involved an error or a mistake they made. This reluctance is notably due to the potential consequences which may follow their reporting, in particular from their employer (Recital 33) such as losing their job or being blamed. In addition to pressure within the immediate working environment, reporters may also suffer from the pressure of being judged by others, such as society. Moreover, some reporters may also fear potential prosecution for an action which did not have the expected outcome. There are cases in the past that illustrates the dramatic impact that such action had on the level of reporting (Delta case).
Failure to ensure reporting of safety occurrences is detrimental to aviation safety as it prevents aviation industry and authorities from being aware of the risks they might face.
In summary, without reporting there is no information, and without information it is not possible to understand how and where to take action in order to prevent future accidents. Therefore, the efficient functioning of the aviation safety system partially depends on the trust the aviation professionals have in the reporting systems.
Regulation 376/2014 establishes strong provisions to create this trust relationship through an efficient ‘Just Culture’ environment in the EU and its Member States, with the view to promote reporting of occurrences and its consequential use for accident prevention in a forward-looking way.
4. A substantially improved ‘Just Culture’ with Regulation 376/2014
The ‘Just Culture’ principles set up in Regulation 376/2014 rely on two main pillars:
- The access to and use of collected information is strictly limited (Article 15), and
- Reporters and other persons mentioned in the report are protected from blame and punishment, in particular from their employer (Article 16).
However, the end purpose of ‘Just Culture’ being the improvement of safety, it is clarified that this should not prevent actions to be adopted where necessary to maintain or improve aviation safety (Recital 36 and Article 16(5)).
On the basis of the above-mentioned principles, the Regulation includes a number of detailed provisions which transpose them into legal requirements.
a. A significantly expanded scope of protection:
During the decision-making process, the European Parliament argued that aviation professionals might be reluctant to report occurrences involving a mistake or an error they had made but also occurrences involving a mistake or error from their colleagues. The Parliament therefore proposed to extend the protection rules to any other person mentioned in the occurrence report. This proposal was agreed and all the provisions detailed below are therefore applicable not only to the reporter but also to any other person mentioned in the report (Recital 38 and Article 16).
Furthermore, the development of new business models in the aviation industry and the increasing number of self-employed pilots led the co-legislators to ensure that not only employees but also persons whose services are contracted or used by an industry organisation are equally protected (Articles 4(6) and 16(6) (7) (9)).
b. Confidentiality and protection of the reporter and of other persons mentioned identity:
Regulation 376/2014 establishes the principle that collected safety information shall be handled in such a way that it protects the confidentiality of the reporter and of other persons mentioned in the report (Recital 40 and Articles 6(1) (3) (4) and 15(1)), including through de-identification of details related to the persons involved (Recital 35 and Article 16(2)). To achieve this objective the division between the departments handling the occurrence reports and the rest of the organisation is encouraged (Recital 34). Moreover, the Member States and EASA are prevented from registering personal details, including names of persons, in their databases (Recital 35 and Articles 16(3) (4)).
c. Prevention from prejudice by employer:
Regulation 376/2014 includes an essential principle which states that employees and contracted personnel shall not be subject to prejudice on the basis of information collected through occurrence reporting systems (Recital 37 and Article 16(9)) except in cases of wilful misconduct or unacceptable behaviour. Should employers infringe this legal requirement, the Regulation specifies that they should face penalties (Recital 51 and Article 21).
This legal provision is essential in a safety system mainly relying on Safety Management Systems put in place by the industry. It is the transposition into direct legal requirement of the ‘Just Culture’ definition, in a corporate context.
d. Clarify the line between acceptable and non acceptable behaviour:
‘Just Culture’ does not mean full immunity; it means that actions, which are commensurate with experience and training, shall not be punished but that “gross negligence, wilful violations and destructive acts are not tolerated” (Article 2). While the meaning of destructive acts and wilful violations is commonly agreed, ‘gross negligence’ left a lot of room to interpretation.
The lack of clear legal delimitation between acceptable behaviour under which professionals are protected and unacceptable behaviour, which could lead them to be punished, was considered by co-legislators as preventing an efficient implementation of ‘Just Culture’ and of the Regulation itself.
Indeed, in practice the protection not only depended on the cultural and legal environment within each Member State but also on the internal culture and practices of each industry organisation. Co-legislators considered, as did the Commission in its legislative proposal, that this would have led to a
situation where the Regulation would have been implemented in very diverse manners and have created different levels of protection for aviation professionals.
An agreement was therefore found to include a description of which behaviours are acceptable and which are not (Recitals 37, 39 and Article 16(10)). According to the Regulation, gross negligence or unacceptable behaviour are therefore understood as “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” (Article 16(10)).
It has to be understood that such definition does not interfere with possible other definitions of ‘gross negligence’ under national criminal Law. Indeed, the description contained in Article 16(10) is only applicable in the context of Regulation 376/2014 and of legal obligations covered under this Regulation. In a situation where a criminal proceeding is open, the definition of ‘gross negligence’ under national law remains applicable. In practice, it means that the limitation between acceptable and unacceptable behaviour is the same in all Member States, which ensures a similar level of protection to aviation professionals across the Member States and across the various aviation organisations. This common definition is applicable by the industry and the Member States, including their administration of justice, outside criminal proceedings, if it has to determine whether or not Regulation 376/2014 has been infringed (e.g. civil or labour Law context).
e. Requirement for an industry internal ‘Just Culture’ policy:
Regulation 376/2014 also contains a requirement for industry organisations to adopt an internal ‘Just Culture’ policy (Recital 34 and Article 16(11)), which notably describes the safeguards and processes put in place to prevent punishment on the basis of reported occurrences.
This provision is an important component of the confidence and trust in the relationship to be built between potential reporters and the reporting system of their organisation as it imposes the adoption of internal rules that can be consulted by employees and through which their management commits to their protection in defined circumstances.
f. Limitation to access and use of information:
Regulation 376/2014 also includes very protective provisions regarding the possibility to access or use information contained in occurrence reports. It provides that information derived from occurrence reports shall only be used for the purpose for which it has been collected and prevents Member States, EASA and industry organisations from making this information available or being used for purposes other than maintenance or improvement of aviation safety (Recitals (33) (34) and Article 15(2) (3)).
In practice, this means that occurrence reports cannot be accessed or used by judicial authorities for any purpose other than aviation safety (i.e. not for blame or liability Article 15(2) a)) except in the situations foreseen under Regulation (EU) No 996/2010[8].
g. Requirement to establish advance arrangements
Regulation 376/2014 also requires the adoption of advance arrangements between judicial and aviation authorities (Recital 45 and Article 15(4)) with the view to enhancing and formalising their cooperation. Such advance arrangements will have to comply with the requirements of the Regulation, including provisions related to the limited possibility to access and use information contained in occurrence reports.
h. Limitation to institution of proceedings:
In addition to the requirement of establishing advance arrangements, the Regulation also contains provisions related to possible interaction of judicial authorities, such as the obligation for States to refrain from instituting proceedings on the basis of occurrences collected under Regulation 376/2014 (Recital 43 and Article 16(6)). It is specified that this provision does not apply, in principle, if national criminal Law states otherwise as well as in the situations of exceptions as detailed in section d) above but that Member States can adopt or retain measures that are more protective towards the reporter or persons mentioned in the report (Recital 43 and Article 16(6)). This is the case, for example, in Denmark where national Law forbids any proceedings to be instituted on the basis of an occurrence report, including in cases of gross negligence. It is clarified that this is only applicable to proceedings instituted by States and that it does not limit the right of a third party to institute civil proceedings under national Law (Recital 43).
i. Principle of non self-incrimination:
Regulation 376/2014 completes the previous provision by preventing, in cases where disciplinary or administrative proceedings are instituted, the use of information contained in occurrence reports against reporters or persons mentioned in the report (Recitals 43, 44 and Article 16(7)). In this situation, the possibility is also given to the Member States to apply more protective measures and in particular to extend the principle of non self-incrimination in the context of civil or criminal proceedings (Recital 44 and Article 16(8)).
l. Appeal mechanism:
Member States are required to designate a body for the implementation of several clauses (Recital 42 and Article 16(12)), namely the limitation to institute proceedings (Article 16(6)), the prevention from prejudice by the employer (Article 16(9)) and the requirement for the industry to adopt an internal ‘Just culture’ policy (Article 16(11)). The body can in particular receive complaints in cases where employees and contracted personnel consider that Article 16 of Regulation 376/2014 has been infringed.
5. Remaining challenges – the way forward
As described above, Regulation 376/2014 introduces a number of legal requirements to create an environment where aviation professionals feel confident to report safety information so that this information can subsequently be used for the purpose of accident prevention. However, while these legal provisions aim to ensure an efficient and strong implementation of ‘Just Culture’ principles, it is recognised that legislation alone, while necessary, will be insufficient to establish an environment leading to trust and facilitating the reporting of occurrences.
To better understand the impact of Regulation 376/2014 on the existing situation, Member States are requested to report every five years to the European Commission (Article 16(13)) on the implementation of Article 16 and in particular on the activities of the body designated to handle the complaints foreseen under Article 16(12).
Furthermore, additional action will be necessary to ensure that Regulation 376/2014 fully reaches its objective. In this context, the European Commission, with the support of all stakeholders including ECA and IFATCA, intends to develop a number of initiatives to accompany the application of the Regulation. Such actions include in particular the development of guidance material, the preparation of a model for the industry internal ‘Just Culture’ policy, the adoption of promotional and communication material and the organisation of a high-level Conference at the end of 2015.
The success of Regulation 376/2014 and its ability to improve aviation safety will require a collective effort of all stakeholders: pilots and operators, safety analysts and civil aviation authorities, staff and employers organisations, the European Commission and the European Aviation Safety Agency.
One of the main challenges for all the actors involved will be that, in parallel to Regulation 376/2014, the aviation sector will have to evolve towards a more systemic thinking approach. This new approach should allow the operator’s actions to be explained not at the human level, but at the level of the system itself, thus providing a unique view of how the system behaves. In doing so, a better and more useful description of the system behaviour will be available. Making investigation and analysis based on the actors’ reporting, leads to a better understanding of the boundaries of the system, as it is designed or prescribed in procedures and rules. The importance of the systemic thinking approach will thus contribute to improving the overall understanding and improvement of the current system.
The legal framework is there but there are many challenges ahead to ensure it fully meets its objectives and this will only be possible with the involvement and commitment of those who work at preventing aircraft accidents for safely transporting thousands of European citizens through the air every day.
[1] Regulation (EU) No 376/2014 of the European Parliament and of the Council on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007, OJ of the European Union L 122 of 24.4.2014 page 18.
[2] Proposal for a Regulation of the European Parliament and of the Council on occurrence reporting in civil aviation amending Regulation (EU) No 996/2010 and repealing Directive No 2003/42/EC, Commission Regulation (EC) No 1321/2007 and Commission Regulation (EC) No 1330/2007, COM/2012/0776 final – 2012/0361 (COD).
[3] COM/2011/0670 final.
[4] Convention on International Civil Aviation – ICAO Doc 7300.
[5] Article 2 of Commission Regulation (EU) No 691/2010 of 29 July 2010 laying down a performance scheme for air navigation services and network functions and amending Regulation (EC) No 2096/2005 laying down common requirements for the provision of air navigation services; OJ L 201, 3.8.2010, p. 1.
[6] Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation; OJ L 167, 4.7.2003, p. 23.
[7] 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, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC.
[8] Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC Text with EEA relevance, OJ L 295, 12.11.2010, p. 35. Article 14 of that Regulation foresees that occurrences reports cannot be disclosed for other purposes than aviation safety unless the authority competent to decide on the disclosure of records decides that the benefits of the disclosure outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation.
