Powers and recitals

• Regulation (EU) No 376/2014 found in: Occurrence Reporting (376/2014) (Dec 2022)

Powers and recitals Regulation (EU) No 376/2014 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee ([[4]](#_ftn4)), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure ([[5]](#_ftn5)), Whereas: (1) A high general level of safety should be ensured in civil aviation in the Union and every effort should be made to reduce the number of accidents and incidents with a view to ensuring public confidence in aviation transport. (2) The rate of fatal accidents in civil aviation has remained fairly constant over the last decade. Nevertheless, the number of accidents could rise over the decades to come, due to an increase in air traffic and an increase in the technical complexity of aircraft. (3) Regulation (EU) No 996/2010 of the European Parliament and of the Council ([[6]](#_ftn6)) aims to prevent accidents by facilitating the prompt holding of efficient and high-quality safety investigations. This Regulation should not interfere with the process of accident and incident investigations managed by national safety investigation authorities as defined in Regulation (EU) No 996/2010. In the event of an accident or a serious incident, notification of the occurrence is also subject to Regulation (EU) No 996/2010. (4) Existing legislative acts of the Union, in particular Regulation (EC) No 216/2008 of the European Parliament and of the Council ([[7]](#_ftn7)) and its implementing regulations, impose obligations on certain organisations to establish occurrence reporting systems in the context of their safety management systems. Compliance with Regulation (EC) No 216/2008 and its implementing regulations should not exempt organisations from compliance with this Regulation. Likewise, compliance with this Regulation should not exempt organisations from compliance with Regulation (EC) No 216/2008 and its implementing regulations. However, this should not give rise to two parallel reporting systems, and Regulation (EC) No 216/2008, its implementing regulations, and this Regulation should be seen as complementary. (5) Experience has shown that accidents are often preceded by safety-related incidents and deficiencies revealing the existence of safety hazards. Safety information is therefore an important resource for the detection of potential safety hazards. In addition, whilst the ability to learn from an accident is crucial, purely reactive systems have been found to be of limited use in continuing to bring forward improvements. Reactive systems should therefore be complemented by proactive systems which use other types of safety information to make effective improvements in aviation safety. The Union, its Member States, the European Aviation Safety Agency (‘the Agency’) and organisations should contribute to the improvement of aviation safety through the introduction of more proactive and evidence based safety systems which focus on accident prevention based on the analysis of all relevant safety information, including information on civil aviation occurrences. (6) In order to improve aviation safety, relevant civil aviation safety information should be reported, collected, stored, protected, exchanged, disseminated and analysed, and appropriate safety action should be taken on the basis of the information collected. This proactive and evidence-based approach should be implemented by the relevant aviation safety authorities of Member States, by organisations as part of their safety management system and by the Agency. (7) The imposition on organisations of occurrence reporting obligations should be proportionate to the size of the organisation concerned and the scope of its activity. It should therefore be possible, in particular for smaller organisations, to decide to join or merge functions related to occurrence handling within the organisation, to share occurrence reporting tasks with other organisations of the same nature or to outsource the collection, evaluation, processing, analysis and storage of details of occurrences to specialised entities approved by the competent authorities of the Member States. Such entities should comply with the protection and confidentiality principles established by this Regulation. The outsourcing organisation should maintain appropriate control of the outsourced tasks and should be ultimately accountable and responsible for the application of the requirements prescribed by this Regulation. (8) It is necessary to ensure that front-line aviation professionals report occurrences that pose a significant risk to aviation safety. Voluntary reporting systems should complement the mandatory reporting systems, and both should allow individuals to report details of aviation safety-related occurrences. Mandatory and voluntary reporting systems should be set up within organisations, the Agency and competent authorities of the Member States. The information collected should be transferred to the authority competent for appropriate monitoring in order to enhance aviation safety. Organisations should analyse those occurrences that could have an impact on safety, in order to identify safety hazards and take any appropriate corrective or preventive action. Organisations should send the preliminary results of their analyses to the competent authority of their Member States or to the Agency and should also send them the final results if those results identify an actual or potential aviation safety risk. The competent authorities of the Member States and the Agency should put in place a similar procedure for those occurrences that have been directly submitted to them and should adequately monitor the organisation’s assessment and any corrective or preventive action taken. (9) Various categories of staff working or otherwise engaged in civil aviation witness events which are of relevance to accident prevention. They should therefore have access to tools enabling them to report such events, and their protection should be guaranteed. In order to encourage staff to report occurrences and enable them to appreciate more fully the positive impact which occurrence reporting has on air safety, they should be regularly informed about action taken under occurrence reporting systems. (10) The hazards and risk associated with complex motor-powered aircraft are very different from those associated with other types of aircraft. Therefore, while the entire aviation sector should be covered by this Regulation, the obligations imposed by it should be proportionate to the sphere of activity and the complexity of different types of aircraft. Accordingly, information collected on occurrences involving aircraft other than complex motor-powered ones should be subject to simplified reporting obligations which are better suited to that branch of aviation. (11) The development of other means of collecting safety information in addition to the systems required by this Regulation should be encouraged, with a view to collecting further information which could contribute to the improvement of aviation safety. Where organisations have existing and well-functioning safety information collection systems, they should be allowed to continue to use those systems alongside the systems to be established for the purpose of this Regulation. (12) Safety investigation authorities and any entity entrusted with regulating civil aviation safety within the Union should have full access to details of occurrences collected and occurrence reports stored by their Member States, in order to decide which incidents require a safety investigation, as well as to identify where lessons can be learned in the interest of aviation safety and to fulfil their oversight obligations. (13) It is essential to have high-quality and complete data, as analysis and trends derived from inaccurate data may show misleading results and may lead to effort being focused on inappropriate action. In addition, such inaccurate data may lead to a loss of confidence in the information produced by occurrence reporting schemes. In order to ensure the quality of occurrence reports, and to facilitate their completeness, they should contain certain minimum information, which may vary depending on the occurrence category. In addition, procedures should be implemented for checking the quality of information and avoiding inconsistency between an occurrence report and the details of the occurrence that were initially collected. Moreover, with the support of the Commission, adequate guidance material should be developed, notably to ensure the quality and to facilitate the completeness of data as well as the consistent and uniform integration of data into databases. Workshops should also be organised, notably by the Commission, to provide necessary support. (14) The Commission should develop a common European risk classification scheme to ensure the identification of any rapid action needed when looking at high-risk individual safety occurrences. That scheme should also enable key risk areas to be identified from aggregated information. Such a scheme should help the relevant entities in their assessment of occurrences and in determining where best to focus their efforts. A common European risk classification scheme should facilitate an integrated and harmonised approach to risk management across the European aviation system and thus enable organisations, Member States, the Commission and the Agency to focus on safety improvement efforts in a harmonised manner. (15) A common European risk classification scheme should also both enable key risk areas within the Union to be identified on the basis of aggregated information from a European perspective and support the work done in the area of the European Aviation Safety Programme and the European Aviation Safety Plan. Appropriate support should be given by the Commission to ensure consistent and uniform risk classification across Member States. (16) To facilitate information exchange, occurrence reports should be stored in databases which should be compatible with the European Coordination Centre for Aircraft Incident Reporting Systems (ECCAIRS) (the software used by all Member States and by the European Central Repository to store occurrence reports) and with the ADREP taxonomy (the International Civil Aviation Organisation (ICAO) taxonomy, also used for the ECCAIRS software). The Agency and the Commission should provide technical support for the interoperability of the systems. (17) Organisations should store occurrence reports derived from details of occurrences collected under the mandatory and, where applicable, the voluntary reporting systems in one or more databases. It should be possible for the complexity of the database to be proportionate to the size of the organisation concerned and/or its significance with respect to the objectives of this Regulation, and it should at least consist of a data file containing common mandatory data fields and, where applicable, specific mandatory data fields. (18) An occurrence involving an aircraft registered in a Member State or operated by an organisation established in a Member State should be reported even if it happened outside the territory of that Member State. (19) Information on occurrences should be exchanged within the Union to enhance the detection of actual or potential hazards. This information exchange should also enable Member States to have access to all information on occurrences which occur on their territory or in their airspace but which are reported to another Member State. It should also allow the Agency to obtain precise information about occurrences and access to all occurrence reports collected in the Union in order, where necessary, to take corrective action to counteract a risk identified in the Union. This information exchange should enable the competent authorities of the Member States to obtain precise information about occurrences in their airspace and, where necessary, to take corrective action to counteract a risk identified on their territory. (20) The objective of the exchange of information on occurrences should be the prevention of aviation accidents and incidents. It should not be used to attribute blame or liability or to establish benchmarks for safety performance. (21) The most efficient way to ensure the exchange of large quantities of safety information between the Member States, the Commission and the Agency is through the European Central Repository, provided that the Member States, the Commission and the Agency have full access to it. (22) All safety-related information derived from occurrence reports collected in the Union should be transferred in the European Central Repository in a timely manner. This should include the collection of information on incidents but also information on accidents and serious incidents investigated pursuant to Regulation (EU) No 996/2010. (23) This Regulation should apply to information on occurrences which is stored in the databases of organisations, Member States or the Agency. (24) All safety-related information contained in the European Central Repository should be available to entities entrusted with regulating civil aviation safety within the Union, including the Agency, and to the authorities responsible for investigating accidents and incidents within the Union. (25) It should be possible for interested parties to request access to certain information contained in the European Central Repository, subject to the rules concerning the confidentiality of such information and the anonymity of the persons involved. (26) As national points of contact have the best knowledge of interested parties established in a given Member State, it should be for each national point of contact to deal with requests from interested parties established in the territory of its own Member State. The Commission should deal with requests from interested parties from third countries or from international organisations. (27) Information contained in occurrence reports should be analysed, and safety risks identified. Any appropriate consequent action for improving aviation safety should be identified and implemented in a timely manner. Information on the analysis and follow-up of occurrences should be disseminated within organisations, competent authorities of the Member States and the Agency, since providing feedback on occurrences that have been reported incentivises individuals to report occurrences. Where applicable and when possible, information on the analysis and follow-up of occurrences should also be provided to individuals who have directly reported occurrences to the competent authorities of the Member States or to the Agency. Such feedback should comply with the rules on confidentiality and protection of the reporter and the persons mentioned in occurrence reports pursuant to this Regulation. (28) This Regulation should assist Member States, the Agency and organisations in managing aviation safety risks. The safety management systems of organisations are complemented by the safety management systems of the Member States and of the Agency. While organisations manage safety risks associated with their specific activities, the competent authorities of the Member States and the Agency manage safety risks for the aviation systems of, respectively, entire Member States and of the Union as a whole, addressing common safety risks for aviation in the Member State concerned or at Union level. The responsibilities of the Agency and of the competent authorities of the Member States should not exonerate organisations from their direct responsibilities in managing safety inherent in the products and in the services they provide. For that purpose, organisations should collect and analyse information on occurrences in order to identify and mitigate hazards associated with their activities. They should also assess associated safety risks and allocate resources to take prompt and appropriate safety risk mitigation measures. The overall process should be monitored by the relevant competent authority, which should, when necessary, require that additional action be taken to ensure that the safety deficiencies are correctly addressed. On the other hand, the competent authorities of the Member States and the Agency should complement the safety management systems of the organisations at Member State and European levels respectively. (29) When determining the action to be included within their State Safety Programme and State Safety Plan, and in order to ensure that the action is evidence-based, Member States should use the information derived from the occurrence reports that have been collected and from their analysis. State Safety Programmes and State Safety Plans are complemented at European level by the European Aviation Safety Programme and the European Aviation Safety Plan. (30) Since the objective of aviation safety improvement cannot be sufficiently achieved by the Member States because reporting systems operated by Member States in isolation are less efficient than a coordinated network with exchange of information allowing identification of possible safety problems and key risk areas at Union level, analysis at national level should be complemented by analysis and follow-up at Union level in order to ensure better prevention of aviation accidents and incidents. This Union-level task should be carried out by a network of aviation safety analysts in coordination with the Agency and the Commission. It should be possible for that network to decide, by consensus, to invite observers to their meetings, including industry employees or representatives. (31) The European Aviation Safety Programme and the European Aviation Safety Plan should benefit in particular from the work of the network of aviation safety analysts for the purpose of determining what action needs to be implemented at Union level from an evidence-based perspective. (32) The general public should be provided with general aggregated information on the level of aviation safety in Member States and in the Union. That information should cover, in particular, trends and analysis deriving from the implementation of this Regulation by the Member States, as well as information in an aggregated form on the content of the European Central Repository, and may be provided by publishing safety performance indicators (SPI). (33) The civil aviation safety system is established on the basis of feedback and lessons learned from accidents and incidents. Occurrence reporting and the use of occurrence information for the improvement of safety depend on a relationship of trust between the reporter and the entity in charge of the collection and assessment of the information. This requires strict application of rules on confidentiality. The purpose of protecting safety information from inappropriate use, and of limiting access to the European Central Repository solely to interested parties participating in the improvement of civil aviation safety, is to ensure the continuing availability of safety information so that appropriate and timely preventive action can be taken and aviation safety improved. In this context, sensitive safety information should be protected in an appropriate way and its collection should be ensured by guaranteeing its confidentiality, protecting its source and ensuring the confidence of staff working in civil aviation in occurrence reporting systems. Appropriate measures should be put in place to ensure that information collected through occurrence reporting schemes is kept confidential and that access to the European Central Repository is restricted. National rules on freedom of information should take into account the necessary confidentiality of such information. The information collected should be adequately protected from unauthorised use or disclosure. It should be used strictly for the purpose of maintaining or improving aviation safety and should not be used to attribute blame or liability. (34) In order to ensure the confidence of employees or contracted personnel in the occurrence reporting system of the organisation, the information contained in occurrence reports should be protected appropriately and should not be used for purposes other than maintaining or improving aviation safety. The internal ‘just culture’ rules adopted by organisations pursuant to this Regulation should contribute in particular to the achievement of this objective. In addition, the limitation of the transmission of personal details, or of information allowing the identification of the reporter or of the other persons mentioned in occurrence reports, by a clear separation between the departments handling occurrence reports and the rest of the organisation, may be an efficient way to achieve this objective. (35) A reporter or a person mentioned in occurrence reports should be adequately protected. In this context, occurrence reports should be disidentified and details relating to the identity of the reporter and of the persons mentioned in occurrence reports should not be entered into databases. (36) In addition, the civil aviation system should promote a ‘safety culture’ facilitating the spontaneous reporting of occurrences and thereby advancing the principle of a ‘just culture’. ‘Just culture’ is an essential element of a broader ‘safety culture’, which forms the basis of a robust safety management system. An environment embracing ‘safety culture’ principles should not prevent action being taken where necessary to maintain or improve the level of aviation safety. (37) A ‘just culture’ should encourage individuals to report safety-related information. It should not, however, absolve individuals of their normal responsibilities. In this context, employees and contracted personnel should not be subject to any prejudice on the basis of information provided pursuant to this Regulation, except in cases of wilful misconduct or where there has been manifest, severe and serious disregard with respect to 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 to property, or seriously compromising the level of aviation safety. (38) In order to encourage reporting of occurrences, it should be appropriate to protect not only reporters, but also persons mentioned in the occurrence reports concerned. However, such protection should not exonerate those persons from their reporting obligations under this Regulation. In particular, in a situation where a person is mentioned in an occurrence report and has himself or herself the obligation to report that same occurrence, and intentionally fails to report it, then that person should lose his or her protection and face penalties in application of this Regulation. (39) Without prejudice to national criminal law and the proper administration of justice, it is important to clearly demarcate the extent of the protection of the reporter and other persons mentioned in occurrence reports from prejudice or prosecution. (40) In order to enhance the confidence of individuals in the system, the handling of occurrence reports should be organised in such a way as to appropriately safeguard the confidentiality of the identity of the reporter and other persons mentioned in occurrence reports with regard to fostering a ‘just culture’. The aim, wherever possible, should be to enable an independent occurrence handling system to be established. (41) Staff of organisations, of the competent authorities of the Member States and of the Agency who are involved in the evaluation, processing or analysis of occurrences have a significant role to play in the identification of safety hazards and safety deficiencies. Experience shows that when occurrences are analysed with the benefit of hindsight following an accident, the analysis leads to the identification of risks and deficiencies that might otherwise not have been identified. It is possible, therefore, that the persons involved in the evaluation, processing or analysis of occurrences may fear potential consequences in terms of prosecution before judicial authorities. Without prejudice to national criminal law and the proper administration of justice, Member States should not institute proceedings against persons who, in the competent authorities of the Member States, are involved in the evaluation, processing or analysis of occurrences in respect of decisions taken as part of their duties which subsequently, and with the benefit of hindsight, prove to have been erroneous or ineffective but which, when they were taken and on the basis of the information available at that time, were proportional and appropriate. (42) Employees and contracted personnel should have the opportunity to report breaches of the principles delimiting their protection as established by this Regulation, and should not be penalised for so doing. Member States should define the consequences for those who infringe the principles of protection of the reporter and of other persons mentioned in occurrence reports and should adopt remedies or impose penalties as appropriate. (43) Individuals may be discouraged from reporting occurrences by the fear of self-incrimination and the potential consequences in terms of prosecution before judicial authorities. The objectives of this Regulation can be achieved without interfering unduly with the justice systems of the Member States. It is therefore appropriate to provide that unpremeditated or inadvertent infringements of the law that come to the attention of the authorities of the Members States solely through reporting pursuant to this Regulation should not be the subject of disciplinary, administrative or legal proceedings, unless where otherwise provided by applicable national criminal law. However, the rights of third parties to institute civil proceedings should not be covered by this prohibition and should be subject only to national law. (44) Nevertheless, in the context of developing a ‘just culture’ environment, Member States should retain the option of extending the prohibition on using occurrence reports as evidence against reporters in administrative and disciplinary proceedings to civil or criminal proceedings. (45) In addition, the cooperation between safety authorities and judicial authorities should be enhanced and formalised by means of advance arrangements between themselves which should respect the balance between the various public interests at stake and which should in particular cover, for example, access to and the use of occurrence reports contained in the national databases. (46) To support the increased responsibilities of the Agency under this Regulation, it should be given sufficient resources to enable it to carry out the additional tasks assigned to it. (47) In order to supplement or amend this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. (48) In applying this Regulation, the Commission should consult the Agency and the network of aviation safety analysts referred to herein. (49) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council ([[8]](#_ftn8)). (50) The rules on data processing and the protection of individuals as laid down in Directive 95/46/EC of the European Parliament and of the Council ([[9]](#_ftn9)) and in Regulation (EC) No 45/2001 of the European Parliament and of the Council ([[10]](#_ftn10)) should be fully respected in the application of this Regulation. The rules on access to data as laid down in Regulation (EC) No 1049/2001 of the European Parliament and of the Council ([[11]](#_ftn11)) should be fully respected in the application of this Regulation except as regards the dissemination of data and information contained in the European Central Repository, which are protected under stricter access rules laid down in this Regulation. (51) Penalties should, in particular, be applicable against any person who or entity which, contrary to this Regulation, misuses information protected by this Regulation; acts in a prejudicial manner against the reporter or other persons mentioned in occurrence reports, except in cases where the exemptions laid down in this Regulation apply; does not establish an environment appropriate for allowing the collection of details of occurrences; does not analyse the information collected; does not act to address any safety or potential safety deficiencies detected; or does not share the information collected in application of this Regulation. (52) Since the objective of this Regulation, namely the establishment of common rules in the field of occurrence reporting in civil aviation, cannot be sufficiently achieved by the Member States but can rather, by reason of its Union-wide scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (53) Regulation (EU) No 996/2010 should therefore be amended accordingly. (54) Directive 2003/42/EC of the European Parliament and of the Council ([[12]](#_ftn12)), Commission Regulation (EC) No 1321/2007 ([[13]](#_ftn13)) and Commission Regulation (EC) No 1330/2007 ([[14]](#_ftn14)) should therefore be repealed. (55) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 10 April 2013 ([[15]](#_ftn15)), HAVE ADOPTED THIS REGULATION: --- [[4]](#_ftnref4) OJ C 198, 10.7.2013, p. 73. [[5]](#_ftnref5) Position of the European Parliament of 26 February 2014 (not yet published in the Official Journal) and decision of the Council of 14 March 2014. [[6]](#_ftnref6) 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). [[7]](#_ftnref7) 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 (OJ L 79, 19.3.2008, p. 1). [[8]](#_ftnref8) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). [[9]](#_ftnref9) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). [[10]](#_ftnref10) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). [[11]](#_ftnref11) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). [[13]](#_ftnref13) Commission Regulation (EC) No 1321/2007 of 12 November 2007 laying down implementing rules for the integration into a central repository of information on civil aviation occurrences exchanged in accordance with Directive 2003/42/EC of the European Parliament and of the Council (OJ L 294, 13.11.2007, p. 3). [[14]](#_ftnref14) Commission Regulation (EC) No 1330/2007 of 24 September 2007 laying down implementing rules for the dissemination to interested parties of information on civil aviation occurrences referred to in Article 7(2) of Directive 2003/42/EC of the European Parliament and of the Council (OJ L 295, 14.11.2007, p. 7). [[15]](#_ftnref15) OJ C 358, 7.12.2013, p. 19.