2.1 Why should I report safety occurrences?

GM to Reg. (EU) No 376/2014 and its IRs

The reporting of aviation safety occurrences is vital to the prevention of aircraft accidents. It contributes to understand where safety risks lie in the aviation system and helps decision makers in organisations and competent authorities (both at national and European level) to adopt relevant measures (see also section 1.1). The information and safety intelligence needed to support safety improvement in the industry, in the Member States and in the EU largely relies on individuals reporting occurrences when they happen. Without this information, the realities of aviation safety issues cannot be properly understood and addressed.

Therefore, the reporting of safety occurrences by aviation professionals contributes to the prevention of accidents. Their role is fundamental to ensure the safety of aviation activities within the organisation that employs them or uses their services, but also more generally in the overall European aviation system.

2.2 Am I under the legal obligation to report occurrences?

GM to Reg. (EU) No 376/2014 and its IRs

Whereas the reporting of any safety relevant occurrence should be encouraged, Regulation 376/2014 differentiates between occurrences that should always be reported, because they have been considered by the legislator as posing a significant risk for aviation safety, and those that may be reported if judged relevant by potential reporters (more information of the reportable occurrences is provided in section 2.3).

Furthermore, whereas any person involved in aviation activities should be encouraged to report any safety occurrence it considers relevant, Regulation 376/2014 differentiates between the persons who are always required to report defined occurrences, because they have been considered as front line operators by the legislator, and those that may report occurrences when they judge it relevant.

This section provides information on the persons who are required to report certain occurrences in accordance with Regulation 376/2014.

This Regulation provides for a list of designated persons that must report occurrences in the context of mandatory reporting schemes (Article 4(6)). This list covers a broad range of persons involved in aviation activities, employees as well as other persons.

These designated persons are under a legal obligation to report certain defined occurrences. Without these occurrence reports, the European Union and the organisations and competent authorities that are part of it cannot make the best decisions on safety priorities. In addition, the failure to comply with the reporting legal obligation might have consequences for those required to report (Article 21; Recital 38).

It is therefore important to clearly identify the persons that are under the obligation to report occurrences under Regulation 376/2014.

Furthermore, clarification is necessary to ensure that, where relevant, natural persons already subject to an obligation to report safety occurrences under other European rules (see also section 3.6) are the same than the ones covered under Regulation 376/2014.

—             Pilots

In addition, Article 4(6) (a) refers to ‘‘the pilot in command, or, in cases where the pilot in command is unable to report the occurrence, any other crew member next in the chain of command of an aircraft’’. Situations where the pilot would be unable to report is understood as referring to cases where the pilot would be unable to report because he would not be physically able to do so.

The reference to ‘‘any other crew member next in the chain of command’’ intends to cover any configuration of the crew.

These situations should be covered and described by organisations within their safety management system.

—             Design / manufacturing / airworthiness personnel

This is aligned with occurrence reporting requirements in Commission Regulation (EU) No 748/2012⁵⁶ Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations; OJ L224, 21.08.2012, p.1., where the production organisation is required to liaise with the design organisation to confirm that the deviation in design data is actually an unsafe condition.

This is aligned with occurrence reporting requirements in Commission Regulation (EU) No 748/2012.

This is aligned with occurrence reporting requirements in Commission Regulation (EU) No 1321/2014⁵⁸ Commission Regulation (EU) No 1321/2014 of 26 November 2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks (Text with EEA relevance); OJ L 362, 17.12.2014, p. 1..

—             Airworthiness personnel

—             ATM/ANS personnel

—             Aerodrome personnel

It also includes personnel and persons whose services (e.g. ground handling organisations, bird control and aerodrome services) are contracted or used by the aerodrome and who are expected to report information in the context of the safety management system of the aerodrome because of their aviation related tasks.

—             ANS facilities personnel

—             Ground handling personnel

2.3 What types of occurrences shall be reported?

GM to Reg. (EU) No 376/2014 and its IRs

As mentioned in section 2.2, the reporting of any safety relevant occurrence should be encouraged. However, for the sake of clarifying legal obligations, Regulation 376/2014 differentiates between occurrences that should always be reported (mandatorily reportable occurrences) and those that may be reported if judged relevant by potential reporters (voluntarily reportable occurrences).

i. Mandatory reporting

The occurrences to be reported in the context of mandatory reporting systems are those which may represent a significant risk to aviation safety and which fall into defined categories (Article 4(1)). To facilitate the identification of those occurrences, the Commission was required to adopt a list classifying occurrences to be referred to (Article 4(5)).

These occurrences to be reported are therefore be listed in the Commission Implementing Regulation 2015/1018 which classifies the occurrences to be reported in the context of mandatory reporting schemes. The occurrences contained in Regulation 2015/1018 are those which have been considered by the legislator as potentially representing a significant risk to aviation safety.

Regulation 2015/1018 includes occurrences falling in the four categories mentioned in Regulation 376/2014 as well as those applicable to aircraft other than complex motor-powered aircraft (Article (5)) which are, where appropriate, adapted to the specificities of that aviation sector.

The division in categories of occurrences to be reported provided for in Article 4(1) is established to allow the identification of the occurrences to be reported by the persons designated under Article 4(6). Therefore the division in the various Annexes of the Regulation 2015/1018 intends to support the identification by reporters of the occurrences they are required to report.

Reporting obligations in the context of mandatory schemes are therefore a combination of persons subject to mandatory reporting obligations and occurrences to be mandatorily reported in a specific area of activity.

Consequently these reporting obligations are understood to apply as detailed in the diagram below.

Diagram 1. Obligations of reporting in the context of mandatory occurrence reporting systems (MORS)

Regulation 2015/1018 in its Annexes I, III, IV.1, IV.2, V.1, V.2 and V.3 states that the structure of the Annex or Section is made to ensure that the ‘‘pertinent occurrences are linked with categories of activities during which they are normally observed, according to experience, in order to facilitate the reporting of those occurrences’’. It highlights that this presentation should not be understood ‘‘as meaning that occurrences must not be reported in case they take place outside the category of activities to which they are linked in the list’’.

ii. Voluntary reporting

There is no legal obligation under Regulation 376/2014 for reporting occurrences outside the situations detailed in diagram 1 above. It is nevertheless understood that reporting of any safety relevant occurrence by anyone aware of it should be encouraged. To allow such reporting Regulation 376/2014 imposes a legal obligation on organisations and competent authorities (Article 5) to establish voluntary occurrence reporting systems (VORS).

In this context, the voluntary reporting systems notably enable the reporting of (Article 5(4)):

—             any occurrence or safety related information by individuals which are not subject to mandatory reporting (see section 2.2 for the detailed list of persons subject to MOR), this might include the reporting by those individuals of occurrences included in Regulation 2015/1018;

—             any occurrence or safety related information not included in the Regulation 2015/1018 by individuals which are subject to MOR.

It should be understood that while Regulation 376/2014 does not impose the reporting of all occurrences, its objective is to use all available safety data for the improvement of safety. Therefore the reporting of all relevant information should be strongly promoted and front-line professionals should be encouraged to share their experiences.

The legal obligation for organisations and competent authorities to establish voluntary reporting systems aims at supporting the collection of relevant information.

Industry organisations, the Member States and EASA are therefore encouraged to promote the reporting of any occurrence, whether or not there is a legal obligation to report it.

The Commission has prepared and published promotional material with the view to promoting and encouraging the reporting of safety occurrences. This material is available here⁶³ www.aviationreporting.eu.

iii. Interaction with other reporting requirements

Reporting requirements that exist under other EU rules are aligned with reporting requirements under Regulation 376/2014. This means in practice, that reporting obligations under the Regulation 216/2008 and its implementing rules on one hand and reporting obligations under Regulation 376/2014 on the other hand are compatible. These reporting obligations can be discharged through the use of one reporting channel and should avoid the establishment of two parallel systems (Recital 4).

In addition, a person who holds more than one role subject to the obligation to report can discharge all those obligations with a single report. Organisations are encouraged to properly describe this in the organisation manual, to address cases where the responsibilities are taken up on behalf of the organisation.

2.4 How can I know if an occurrence is reportable?

GM to Reg. (EU) No 376/2014 and its IRs

Safety management systems rely on the collection and analysis of safety related information. Therefore, anything that is perceived by the individuals as having the potential to impact or potentially impact safety should be reported.

The mandatory obligation of reporting is linked with the awareness of the situation by the person subject to the reporting obligation. It is understood that ‘‘being aware’’ of an occurrence refers to situations where the individual has been directly involved in the occurrence. Therefore, for example, while being aware of an occurrence through radio on-board the aircraft or ear say may motivate the reporting to the organisation or to the competent authority under VORS, this should not be understood as a legal obligation to be discharged by the individual under MORS.

Regulation 2015/1018 contains certain occurrences which are factual events easily identifiable such as ‘‘a collision on the ground or in the air, with another aircraft, terrain or obstacle’’. In such cases, as soon as the occurrence happens and the potential reporter is aware of it, the obligation to report it applies.

Regulation 2015/1018 also includes situations in which a judgement has to be made by the reporter to assess whether the aircraft or its occupants have or might have been endangered. This is for example the following occurrence: ‘‘Significant failure, malfunction or defect of aerodrome equipment or system considered to have endangered or which might have endangered the aircraft or its occupants’’. In such cases, the occurrence is reportable if the potential reporter has assessed that the aircraft or its occupants have or might have been endangered.

In such situations it is more difficult to identify whether the reporter has fulfilled his/her obligations under the legislation or not. This may be particularly challenging if the reporter has decided not to report an occurrence which has been reported by another person in the context of voluntary reporting schemes (Recital 38).

The Regulation sets the necessary legal framework to encourage individual reporters to go beyond the strict compliance with the mandatory reporting obligations and share those issues perceived by them as a threat to the aviation system with the relevant party (organisation or competent authority, as applicable). Therefore any occurrence or safety-related information considered as safety relevant by reporters should be reported.

2.5 Am I required report occurrences that happened outside of the EU?

GM to Reg. (EU) No 376/2014 and its IRs

Regulation 376/2014 covers all occurrences involving an aircraft registered in a Member State or operated by an organisation established in a Member State, even if the occurrence happened outside the territory of that Member State (Recital 18).

In addition, in the case of potential reporters working in production and design organisations, the reporting of occurrences is understood as covering products under their manufacturing or design responsibilities, regardless of the State of occurrence, operator or registration.

2.6 If I report an accident or serious incident under Regulation 376/2014, am I also required to report it to the State of Occurrence?

GM to Reg. (EU) No 376/2014 and its IRs

Accidents and serious incidents, as defined within Regulation (EU) No 996/2010⁶⁴ 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; OJ L 295, 12.11.2010, p. 35., are also subject to Regulation 376/2014 (Article 2(7)).

This should not interfere with the implementation of Regulation (EU) No 996/2010 and in particular, the notification of occurrences to the safety investigation authority (SIA) of the State of Occurrence in the context of Article 9 of that Regulation (Recital 3).

It means double reporting could be required in a situation where a person subject to mandatory reporting obligations in accordance with Article 4(6) has to report an accident or a serious incident listed in Regulation 2015/1018.

In such cases, this person shall report the accident or serious incident in accordance with Article 4(6) of Regulation 376/2014 and shall also ‘‘notify without delay the competent safety investigation authority of the State of Occurrence thereof’’ in accordance with Article 9 of Regulation (EU) No 996/2010.

2.7 If several reporters are aware of the same reportable occurrence, are they all required to report it?

GM to Reg. (EU) No 376/2014 and its IRs

Situations may occur where several reporters subject to mandatory reporting obligations are aware of the same occurrence.

2.8 To what entity shall I report occurrences?

GM to Reg. (EU) No 376/2014 and its IRs

The Regulation gives persons subject to the MOR obligation the following reporting channels (Article 4(6)):

—             The mandatory reporting system of the organisation which employs them or contracts or uses their services, or

—             The mandatory system of the Member State of establishment or of the competent authority of their organisation, or by the State which issued, validated or converted the pilot’s licence or

—             The mandatory system of EASA.

This is notably consistent with the integration of occurrence data into the safety management system of an organisation.

The reporting through the system of a Member States is understood as the one to be used in the absence of any organisation or in situation where the reporter is not confident in the reporting system of an organisation certified or approved by that Member State.

The reporting through the mandatory system of EASA is understood as the one to be used by organisations for which EASA is the competent authority or in situation where the reporter is not confident in the reporting system of an organisation certified or approved by EASA.

Whereas the most direct reporting channel should be preferred (the organisation’s reporting system) and even promoted, it is understood that direct reporting to a competent authority by a person employed by an organisation or whose services are contracted or used by this organisation is not prevented. Indeed, situations may occur where reporters are not confident in the reporting system of their organisations and may wish to use another reporting channel. This is consistent with the objective of fostering a ‘Just Culture’ which is pursued by Regulation 376/2014. It aims, in particular, at ensuring confidence of aviation professionals in occurrence reporting systems and encourages them to reports any relevant safety information with a view to contribute to the enhancement of aviation safety and accidents prevention.

It should be highlighted that the choice of a reporting system should be exclusive. Indeed the use of ‘‘or’’ in Article 4(6) indicates that only one report is required to be made by the reporter and that an occurrence should not lead to multiple reports from the reporter.

It is therefore understood, in accordance with the Regulation, that a reporter should not report an occurrence to his/her organisation and report it as well to a Member State and/or to EASA. This is without prejudice to other reporting obligations contained in other legal acts (see also section 2.6).

2.9 What is the deadline to report an occurrence?

GM to Reg. (EU) No 376/2014 and its IRs

Regulation 376/2014 requires the persons subject to mandatory reporting requirements to report occurrences listed in the Regulation 2015/1018 within 72 hours of becoming aware of the occurrence, unless exceptional circumstances prevent this (Article 4(7)).

It is understood that the 72 hours period starts from the moment they learn about the occurrence, usually meaning when they witness the occurrence or are involved in it.

In the case of individuals engaged in design or production organisations (Design Organisation Approval — DOA — or Production Organisation Approval — POA) and who are under the obligation to report a potential unsafe or unsafe condition, the 72 hours period starts from the identification of the possible unsafe condition, which is normally reported through a dedicated process in those organisations.

The circumstances allowing a reporting of the occurrences after the 72 hours deadline shall be exceptional. This may for example include situations in which the reporter is unable to access a mean to report the occurrence.

In some cases an individual may be made aware of an occurrence through the automatic reporting systems of his/her organisation (e.g. Flight Data Monitoring programme, post processing of radar tracks etc) and not during the actual operation. In those cases, the 72 hours period starts when the potential reporter is made aware of this occurrence.

2.10 What is the format to report an occurrence?

GM to Reg. (EU) No 376/2014 and its IRs

Regulation 376/2014 does not impose any reporting format for individual reporters.

The format to be used by an aviation professional to report an occurrence to his/her organisation may be defined by the organisation as part of its safety management system.

In general, it is encouraged to develop reporting forms and means to report that are user-friendly and that do not discourage potential reporters to report occurrences. The aim should be to facilitate the collection of information from the front-line individuals into the management system of the organisation or into the system of the competent authority.

2.11 What information should be included in an occurrence report?

GM to Reg. (EU) No 376/2014 and its IRs

Regulation 376/2014 does not impose any specific information to be provided by aviation professionals when reporting an occurrence. Obviously, the description of the occurrence is expected to be included in the report.

Reporters are encouraged to include as complete as possible information in their report. To this purpose, reporters can use Annex I of Regulation 376/2014 as a reference for information encouraged to be reported in each specific circumstance.

Furthermore, aviation professionals are encouraged to include, in their report, any factor relevant to the occurrence, including contributing human factor. Including these details should help to a better understanding of safety hazards and to a more accurate identification of safety risks.

2.12 Is my report confidential?

GM to Reg. (EU) No 376/2014 and its IRs

i. Within my organisation

Reporting to the organisation is not necessarily anonymous. This may depend of the type of reporting system used, as some organisations run, next to their mandatory and voluntary reporting systems, confidential reporting systems.

Regulation 376/2014 does not require organisations to fully anonymise reports collected but it requires organisations to take the necessary measures to ensure the appropriate confidentiality of the details of occurrences contained in its database (Article 15(1)).

It is notably recognised by Regulation 376/2014 that a clear separation between the department handling occurrence reports and the rest of the organisation may be an efficient way to achieve this objective (Recital 34). This should therefore be encouraged where practicable.

In addition Regulation 376/2014 requires organisations to process personal data only to the extent necessary for the purposes of this Regulation and in accordance with applicable personal data rules (Article 15(1)).

The Regulation also includes a number of provisions limiting the possible disclosure and use of the information reported and protecting reporters and any person mentioned in a report (see section 2.13 below).

ii. Outside of my organisation

Regulation 376/2014 ensures the confidentiality of individual reporter identity and of any other person involved in reports stored in Member States national occurrence databases and in the EASA database. Indeed it prohibits the recording of personal details (e.g. name of the reporter or anyone else mentioned in the report, addresses of natural persons) in the competent authority database (Article 16(1), (2) and (3) and Recital 35). To support this requirement, organisations are encouraged to refrain from including names and personal details when transferring occurrences reports to their competent authority.

In addition, requirements on the confidentiality of information and processing of personnel data similar to those imposed to organisations are applicable to the Member States and to EASA. Finally, Recital 33 highlights the need for national rules on freedom of information to take into account the necessary confidentiality of information.

See section 2.13 below for more information on limitation to disclosure and use of information coming from occurrence reports.

2.13 Can my report be used against me or anyone mentioned in it?

GM to Reg. (EU) No 376/2014 and its IRs

Regulation 376/2014 includes a number of provisions aimed at encouraging the reporting of occurrences by preventing their use against reporters and other persons mentioned in occurrence reports. These provisions protect the reporter and other persons mentioned in the report in their working environment as well as in the broader national and European context.

Regulation 376/2014 states that the aviation safety system is based on feedback and lessons learned from accidents and incidents and that the reporting of information by front line professionals is crucial to bringing safety improvements. It also highlights the need to establish an environment in which potential reporters feel confident in the existing systems and to report the relevant safety information. The necessity to create such an environment supports the protection principles in the Regulation (limitation to information use or availability, Just Culture principles within an organisation, non‑self‑incrimination principle etc). The objective of such rules is to create an environment in which people will feel confident to report and therefore ensure a continued availability of safety information.

The objective is not to exonerate aviation professionals from their responsibilities but to find a balance between full impunity and blame culture. This balance is notably supported by the definition of ‘Just Culture’ (Article 2), by Article 16 and by several recitals.

i. In the context of the organisation

This principle is implemented by several provisions which prevent certain actions to be taken against reporters and persons mentioned in an occurrence report while identifying unacceptable behaviours that are not covered under this protective framework.

This is the implementation of the Just Culture principle in a corporate context. It means that if a person reports an occurrence to his/her organisation, the organisation is not allowed to blame that person or to impose prejudice on him/her on the basis of the occurrence reported. This rule also applies if the person is not the reporter but is mentioned in the occurrence report.

The objective is to clearly set, in the legislation, the line between acceptable behaviours (which shall not be punished) and unacceptable behaviours (which can be punished).

Furthermore, Regulation 376/2014 states additional principles limiting the possibility for an organisation to disclose or use occurrence reports.

Those limitations to the disclosure or use of occurrence reports apply within the organisation as well as outside of it.

It is therefore understood that sharing information on occurrences with press and media is not allowed by the Regulation. Disclosure of information on occurrence reports to judicial authorities is similarly not allowed.

Regulation 996/2010 foresees in its Article 14(2) and (3) that, in cases where it applies (opening of a formal technical accident or incident investigation), occurrences reports shall not be made available or used for purposes other than aviation safety unless the administration of justice or the authority competent to decide on the disclosure of records according to national law decides that the benefits of the disclosure of the occurrence report outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation (balancing test). If this balancing test concludes that the information on occurrences should be disclosed, then the organisation should make it available to the requesting authority.

An organisation shall only disseminate personal details within the organisation in those cases where it is essential to progress the investigation or to ensure the safety actions are properly taken (Article 16(2)). In this regards, the organisation may use the same protocols and agreements than the ones established and consulted with staff representatives to deal with other safety information (e.g. Flight Data Monitoring).

In order to support all these legal provisions, each organisation is required to adopt internal rules describing how Just Culture principles are guaranteed and implemented within that organisation (Article 16(11)). It is specified that staff representatives shall be consulted before the adoption of these internal rules.

With the support of the Commission and of EASA, staff and employers representatives across aviation domains have developed a European Corporate Just Culture Declaration which contains principles to be implemented in each organisation and reflected in its internal Just Culture rules, with a view to ensure an effective Just Culture within the organisation. This initiative is expected to support a proper and harmonised implementation of this legal provision and should guarantee a similar level of protection across European organisations.

In addition a best practice issued from experience in a number of operators is the setting up an ‘occurrence review committee’ within the organisation whose role is to support the practical implementation of the protection principles.

ii. In the context of the Member States and of the EU

In addition to limitations to the use and disclosure within and by organisations, Regulation 376/2014 also includes provisions limiting the use of an occurrence report by a State or EASA and guaranteeing its confidentiality.

The exceptions contained in Article 16(10) (see in section i. above) apply to those principles.

The Member States are allowed to provide, at national level, a more protective framework (Article 16(8)) which may in particular provide full impunity to reporters.

This means that outside those unacceptable behaviours situations, a State is not allowed to open a proceeding if it is only made aware of a situation because an occurrence was reported under Regulation 376/2014. It is however understood that in those cases where the opening of a criminal proceeding on the basis of an occurrence report is allowed under national law, national law has precedent and applies. But limitation to the possibility of disclosing information on occurrences (see below) remains applicable in all cases.

Those limitations to the disclosure or use of occurrence reports apply within the competent authorities as well as outside of them.

It is therefore understood that sharing information on occurrences with press and media is not allowed by Regulation 376/2014. Disclosure of information on occurrence reports to judicial authorities is similarly not allowed.

Regulation 996/2010 foresees in its Article 14(2) and (3) that, in cases where it applies (opening of a formal technical accident or incident investigation), occurrences reports shall not be made available or used for purposes other than aviation safety unless the administration of justice or the authority competent to decide on the disclosure of records according to national law decides that the benefits of the disclosure of the occurrence report outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation (balancing test). If this balancing test concludes that the information on occurrences should be disclosed, then the organisation should make it available to the requesting authority.

Finally Regulation 376/2014 provides for rules ensuring the confidentiality of the identity of the reporter and of any person mentioned in the report within Member States and EASA databases.

2.14 What can I do if I consider that the above protection rules have been infringed?

GM to Reg. (EU) No 376/2014 and its IRs

There may be situation where an aviation professional will consider that the protection principles have not been complied with, for example if he/she has been subject to prejudice from his/her employer on the basis of an occurrence report or if a proceeding has been opened by a Member State.

Regulation 376/2014 addresses such situation and requires each Member State to put in place an entity to which employees and contracted personnel may report alleged infringements of the protection rules contained in the Regulation (Article 16(12)). The Regulation also ensures that employees and contracted personnel are not penalised for reporting alleged infringements (Article 16(12)).