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

• GM to Reg. (EU) No 376/2014 and its IRs found in: Occurrence Reporting (376/2014) (Dec 2022)

2.13 Can my report be used against me or anyone mentioned in it? GM to Reg. (EU) No 376/2014 and its IRs <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>Regulation 376/2014 includes strong rules protecting occurrence reporters and persons mentioned in occurrence reports. These rules limit possible disclosure or use of occurrence reports.</p></td></tr></table> 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*](#_DxCrossRefBm2103820734)), by [Article 16](#_DxCrossRefBm2103820751) and by several recitals. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>A ‘Just Culture’ should encourage individuals to report safety-related information but should not absolve individuals of their normal responsibilities (<a href="#_DxCrossRefBm2103820732"><b>Recital 37</b></a>). It is defined as a culture in which front-line operators or other persons are not 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 (<a href="#_DxCrossRefBm2103820734"><b>Article 2</b></a>).</p></td></tr></table> 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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>Employees and contracted personnel who report or are mentioned in occurrence reports shall not be subject to any prejudice by their employer or by the organisation for which the services are provided, on the basis of the information supplied by the reporter except in cases of unacceptable behaviour (<a href="#_DxCrossRefBm2103820751"><b>Article 16</b></a>(9)).</p></td></tr></table> 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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>Regulation 376/2014 recognises two exceptions to this principle (<a href="#_DxCrossRefBm2103820751"><b><i>Article 16</i></b></a><i>(10)</i>):</p><p>— wilful misconduct; and</p><p>— situations where there has been 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.</p></td></tr></table> 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. <table border="0" cellpadding="0" cellspacing="0" width="595"><tr><td width="595"><p align="center"><b>Key principle</b></p><p><b>Organisations can only use an occurrence report for the purpose for which it has been collected (</b><a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><b><i>(1))</i>.</b></p><p><b>Organisations are not allowed to make available or use occurrence reports:</b></p><p>— in order to attribute blame or liability; or</p><p>— for any purpose other than the maintenance or improvement of aviation safety (<a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><i>(2)</i>).</p></td></tr></table> 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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>There are however few exceptions to those principles.</p><p>Firstly, it is understood that in a situation where safety might be endangered, information on occurrences may be shared or used with a view to maintain or improve aviation safety. It is therefore understood that sharing or using information on occurrences in the cases detailed in <a href="#_DxCrossRefBm2103820751"><b>Article 16</b></a>(10) with the view to address the risks to safety is allowed by the Regulation.</p><p>Secondly, exception may apply in a situation where an investigation under Regulation (EU) No 996/2010 has been instituted, as the provisions of Regulation 996/2010 have precedent in such case (<a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><i>(2)</i>).</p></td></tr></table> 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*](#_DxCrossRefBm2103820751)*(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*](#_DxCrossRefBm2103820751)*(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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>States cannot institute disciplinary, administrative or legal proceedings in respect of unpremeditated or inadvertent infringements of the law which come to their attention only because they have been reported pursuant to Regulation 376/2014 unless where otherwise provided by applicable national criminal law (<a href="#_DxCrossRefBm2103820751"><b><i>Article 16</i></b></a><i>(6) and </i><a href="#_DxCrossRefBm2103820732"><b><i>Recital 43</i></b></a>).</p><p>In the cases where disciplinary or administrative proceedings have been instituted under national law, information contained in occurrence reports cannot be used against the reporters or the persons mentioned in occurrence reports (<a href="#_DxCrossRefBm2103820751"><b><i>Article 16</i></b></a><i>(7) and </i><a href="#_DxCrossRefBm2103820732"><b><i>Recital 44</i></b></a>).</p></td></tr></table> The exceptions contained in [Article 16](#_DxCrossRefBm2103820751)(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*](#_DxCrossRefBm2103820751)*(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. <table border="0" cellpadding="0" cellspacing="0" width="595"><tr><td width="595"><p align="center"><b>Key principle</b></p><p><b>Competent authorities can only use an occurrence report for the purpose for which it has been collected (</b><a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><b><i>1))</i>.</b></p><p><b>They are not allowed to make available or use occurrence reports:</b></p><p>— in order to attribute blame or liability; or</p><p>— for any purpose other than the maintenance or improvement of aviation safety (<a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><i>(2)</i>).</p></td></tr></table> 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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>There are however few exceptions to those principles.</p><p>Firstly, it is understood that in a situation where safety might be endangered, information on occurrences may be shared or used with a view to maintain or improve aviation safety. It is therefore understood that sharing or using information on occurrences in the cases detailed in <a href="#_DxCrossRefBm2103820751"><b>Article 16</b></a>(10) with the view to address the risks to safety is allowed by the Regulation.</p><p>Secondly, exception may apply in a situation where an investigation under Regulation (EU) No 996/2010 has been instituted, as the provisions of Regulation 996/2010 have precedent in such case (<a href="#_DxCrossRefBm2103820752"><b><i>Article 15</i></b></a><i>(2)</i>).</p></td></tr></table> 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. <table border="1" cellpadding="0" cellspacing="0"><tr><td valign="top" width="599"><p align="center">Key principle</p><p>No personal details are allowed to be recorded in the Member States and in EASA occurrence databases (<a href="#_DxCrossRefBm2103820751"><b><i>Article 16</i></b></a><i>(3) and (4)</i>).</p></td></tr></table>