1.1 How will Regulation (EU) No 376/2014 contribute to enhance aviation safety?
GM to Reg. (EU) No 376/2014 and its IRs
The European Union and its Member States are committed to ensure a high level of aviation safety and to protect European citizens by better preventing aircraft accidents (Recital 1 of Regulation (EU) No 376/2014).
While air transport remains one of the safest forms of travel, the expected air traffic growth foreseen for the next decades presents significant challenge to the European Union if it wants to prevent air accidents from increasing (Recital 2).
However, the current aviation safety system is mainly a reactive and prescriptive safety system, in which safety improvements are essentially resulting from technological progresses, compliance with prescriptive regulations and lessons learned from aircraft accidents. Therefore additional actions should be taken to avoid an increased number of fatalities and accidents (Recital 5). In that perspective, the European Union and its Member States have started the transition towards a more proactive, evidence-based, risk and performance oriented safety system (Recital 5). Such system requires a systematic and continuous collection of safety information in view for safety hazards to be identified, assessed and addressed. It should work continuously to ensure that any new hazards or risks are rapidly identified and that mitigation actions are implemented and where found ineffective are revised (Recital 6). In addition, in a safety system where the EU and its Member States are aiming to focus available resources on higher risks to ensure a better safety efficiency of measures taken, safety information supports a risk-based oversight of regulated entities.
As it is highlighted in the Commission Communication on ‘‘Setting up an Aviation Safety Management System for Europe’’47 COM/2011/0670 final: Communication from the Commission to the Council and the European Parliament ‘‘Setting up an Aviation Safety Management System for Europe’’., the collection, analysis and follow-up of occurrences are a central element of such proactive and evidence-based safety system. This is also reflected at international level, where ICAO rules puts data reporting and analysis systems at the heart of safety management48 Annex 19 ‘‘Safety Management’’ to the Chicago Convention..
In this context, on the basis of a Commission proposal from December 201249 COM/2012/0776 final — 2012/0361 (COD): 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., the European Parliament and the Council have adopted, on 3rd April 2014, a new legislation: Regulation (EU) No 376/2014 on the reporting, analysis and follow up of occurrences in civil aviation50 Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 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 L 122, 24.4.2014, p. 18. (hereinafter called ‘Regulation 376/2014’). It is completed by Commission Implementing Regulation (EU) 2015/101851 Commission Implementing Regulation (EU) 2015/1018 of 29 June 2015 laying down a list classifying occurrences in civil aviation to be mandatorily reported according to Regulation (EU) No 376/2014 of the European Parliament and of the Council (Text with EEA relevance); OJ L163, 30.06.2015, p. 1. classifying the occurrences to be reported in the context of mandatory reporting schemes (hereinafter called ‘Regulation 2015/1018’).
The objective of Regulation 376/2014 is to ensure that the necessary safety intelligence is available to support the safety management efforts of the whole European Aviation Community. The information provided through the collection and analysis of occurrence reports under this Regulation should allow the industry and the regulators to be informed about the risks they are facing and to take decisions supported with relevant knowledge and information.
Regulation 376/2014 establishes a framework, across aviation domains and at each level (industry, national and European), to ensure the collection of as complete as possible safety occurrence data and its analysis with a view to support the full spectrum of safety management activities, including the adoption and implementation of mitigation actions where relevant.
The reporting, analysis and follow-up of occurrences is supported by a broader safety risk management process that helps to identify the main safety issues and risks. This process involves continuous dialogue between the industry and their competent authorities and full engagement from all involved — the industry, the European Aviation Safety Agency (EASA) and the Member States — as part of routine safety management activity. This notably includes the provision of feedback and lessons learned to improve safety.
This Regulation aims to ensure that the industry is aware of the risks it is facing and takes relevant measures to mitigate those risks. It should also allow the Member States to be informed about the risks it is facing at national level and to identify national measures that may be necessary to ensure aviation safety from a broader national perspective. In addition, it intends to ensure that the Member States, EASA and the European Commission are collectively informed of the risks faced by the European Union as a whole and may decide, on the basis on joint analysis, the adoption of relevant mitigation actions to maintain or improve the level of aviation safety from a European perspective.
Regulation 376/2014 and its implementing rules are completed by other existing reporting, analysis and follow-up requirements contained in other European or national rules.
The mandatory and voluntary reporting systems as well as the analysis and follow-up tasks established by Regulation 376/2014 shall be understood as part of existing safety management processes of the organisations and authorities subject to such processes under other European rules.
1.2 Why developing guidance material for Regulation 376/2014?
GM to Reg. (EU) No 376/2014 and its IRs
European legislation is generally the result of a political compromise between the co-legislators i.e. the European Parliament and the Council (representing the Member States). This reality may impact the overall coherence of an adopted legislation and may lead to provisions which are vague or unclear because they are resulting from a political compromise.
Furthermore, legal provisions that are contained in a regulation may be read without a clear understanding of the purpose intended by the co-legislators. This may therefore lead to diverging implementation across the Member States. It may also sometimes lead to implementation that is contracting with the objective pursued by the co-legislators.
Regulation 376/2014 repeals and replaces the existing occurrence legal framework (Directive 2003/42/EC52 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. and its implementing regulations) and introduces a number of new legal requirements. Impacted stakeholders expressed the need to benefit from guidance material supporting the implementation of that Regulation and its implementing rules. Furthermore, Article 7(8) of Regulation 376/2014 requires the Commission and EASA to develop guidance material to support the implementation of certain provisions of it.
In addition, the interaction between Regulation 376/2014 and other occurrence reporting, analysis and follow-up related requirements contained in other existing European regulations should be explained to ensure the proper implementation of all these rules and to allow Regulation 376/2014 to fully achieve its objectives.
This paper aims to explain the intended purpose of Regulation 376/2014 provisions and its implementing regulations, in accordance with the spirit of the agreement found between co‑legislators. It proposes, where relevant, possible means of compliance and examples of good practices, with a view to contribute to a consistent and appropriate implementation of Regulation 376/2014 and its implementing rules across the EU.
It has been prepared by the services of the European Commission, with the support of the European Aviation Safety Agency (EASA). If relevant, this paper may be updated by the European Commission, based on feedback and experience with the application of the Regulation and when new delegating or implementing provisions will be introduced.
1.3 When did Regulation 376/2014 become applicable?
GM to Reg. (EU) No 376/2014 and its IRs
The Regulation was adopted on 3rd April 2014. It became applicable on 15 November 2015.
Its first implementing regulation, Regulation 2015/1018, was adopted on 29 June 2015 and became applicable at the same date than Regulation 376/2014, on 15 November 2015.
A roadmap to support the industry, the Member States and all relevant stakeholders in preparing for Regulation 376/2014 application has been prepared by the Commission, with the support to EASA. This guidance material is part of the various initiatives included in the roadmap.
The roadmap includes other initiatives such as the establishment of a European Reporting Portal53 www.aviationreporting.eu, the development of a European Corporate Just Culture Declaration, of promotional material54 www.aviationreporting.eu, as well as other activities and initiatives.
1.4 Is the application of Regulation 376/2014 compulsory?
GM to Reg. (EU) No 376/2014 and its IRs
Regulation 376/2014 is a Regulation and therefore, in accordance with Article 288 of the Treaty on the Functioning of the European Union (TFEU), it is binding in its entirety and directly applicable in all Member States.
It is binding in its entirety and so cannot be applied incompletely, selectively or partially.
In addition, Regulation 376/2014 is directly applicable as a national law in the Member States and no measure to incorporate it in national law is required.
This Regulation is applicable in the legal orders of the 28 EU Member States. It is also expected to be applicable in Norway, Iceland and Liechtenstein (via the Agreement on the European Economic Area) and in Switzerland (via the Agreement between the European Community and the Swiss Confederation on Air Transport) once the Regulation will be incorporated within these respective agreements.
Same applies to Regulation 2015/1018.
1.5 Can Member States adopt rules in areas covered by Regulation 376/2014?
GM to Reg. (EU) No 376/2014 and its IRs
Regulation 376/2014 is different from Directive 2003/42 it replaces as it is directly applicable in the Member States as national law, whereas the Directive was requiring national transposition measures. Same applies to its implementing rules.
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Key principle Regulation 376/2014 and Regulation 2015/1018 do not require the adoption of national transposition legislation. |
This does not mean that the Member States cannot take implementing measures. They must do so if required by the Regulation.
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Example: Article 6(3) requests each Member State to ‘‘designate one or more competent authorities to establish a mechanism to independently collect, evaluate, process, analyse and store details of occurrences reported pursuant to Articles 4 and 5’’. In this case, as well as in similar situations where States are required to adopt measures, each Member State shall adopt relevant implementing measures. |
1.6 Are Member States allowed to adopt national rules which are stricter than Regulation 376/2014?
GM to Reg. (EU) No 376/2014 and its IRs
In principle States should not adopt national rules covering issues already regulated in a European Regulation, including rules that would be stricter, unless it is specifically foreseen in that European Regulation.
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Key principle The Member States, and EASA when acting as a competent authority, can adopt measures going beyond the provisions of Regulation 376/2014 only where this possibility is specified in the Regulation itself. |
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Example: Article 3(2) of Regulation 376/2014 states that the Regulation ‘‘applies to occurrences and other safety-related information involving civil aircraft, with the exception of aircraft referred to in Annex II to Regulation (EC) No 216/2008’’. The paragraph continues as follows ‘‘Member States may decide to apply this Regulation also to occurrences and other safety-related information involving the aircraft referred to in Annex II to that Regulation’’. In such case, while the Regulation is only applicable to non-Annex II aircraft, the possibility is given to States to go beyond and to equally apply it to Annex II aircraft. |
Similar provisions allowing to go beyond the requirements of the Regulation are included in Articles 5(6), (7) and (8); 6(2), 13(4); (5) and (12); 16(6), (7) and (8).
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Key principle In any other situation, the Member States, and EASA when acting as a competent authority, are not allowed to deviate from the provisions of the Regulation. |
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Example: Article 4(7) requests reporters to ‘‘report occurrences within 72 hours of becoming aware of the occurrence, unless exceptional circumstances prevent this’’. Adopting a national legal measure requesting reporters to report occurrence within a short deadline (e.g. 36 hours) is not authorised and is understood as going against the Regulation. |
1.7 What type of aircraft is covered under the Regulation?
GM to Reg. (EU) No 376/2014 and its IRs
Regulation 376/2014 applies to occurrences and other safety-related information involving civil aircraft, with the exception of aircraft referred to in Annex II to Regulation (EC) No 216/200855 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 (Text with EEA relevance); OJ L 79, 19.3.2008, p. 1. (Article 3(2)).
The concept of civil aircraft in the area of design and production is understood as relating to the Type Certificate and not necessarily to the type of operation that an individual aircraft (registration) performed at the time of the occurrence.
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Example: If an occurrence occurred during non-civil operations (e.g. military operations) and reveals an unsafe condition in the civil Type Certificate of the aircraft, this occurrence should be considered within the scope of Regulation 376/2014 and should, therefore, be reportable under the mandatory reporting scheme. |
The same criteria apply in other fields for cases where there is potential impact on safety of civil aviation, though no civil aircraft was directly involved in the occurrence.
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Example: If there is an airspace infringement of military or Annex II aircraft, the occurrence should be considered within the scope of this Regulation. |
Member States have the possibility to extend the application of this Regulation to occurrences and other safety-related information involving the aircraft referred to in Annex II to Regulation (EC) No 216/2008 (Article 3(2)).
1.8 What type of information is covered under the Regulation?
GM to Reg. (EU) No 376/2014 and its IRs
Regulation 376/2014 applies to (Article 3(1)):
— occurrences i.e. 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(7)),
— and to other relevant safety-related information in that context.
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Key principle Events or information which are reported through reporting systems but which are not aviation safety-related (in the sense of pertinent to prevent an aircraft, its occupants or any other person to be endangered) are not subject to the provisions of Regulation 376/2014. |
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Example: An event reported by a crew member to his/her operator about a commercial or quality issue and which has no safety implication, is therefore not subject to Regulation 376/2014 and to the requirements of transfer, analysis and follow-up contained in that Regulation. |
It is understood that Regulation 376/2014 does not apply to automatic sources of safety information such as the Flight Data Monitoring programmes in air operators or radar track analysis calculations in Air Navigation Service Providers. Other rules, outside the context of Regulation 376/2014 and its implementing rules, may be applicable to those sources of safety information, including possible reporting and analysis obligations.