At the end of October the European Commission published a proposal to revise the EU Accident Investigation Directive 94/56/EC into a new regulation. This is now with the EU Council and Parliament who must agree together any binding regulation. ECA's first reaction to the pressure already being felt from the Spanish Presidency and a number of Member States to complete this task quickly is one of caution!
Accident investigation is usually an extremely complex process which is crucially important for flight safety; it involves managing conflicting interests in a difficult and emotional environment, normally under strong political and public pressure for results. Consequently, a revision of the current directive into a binding regulation should be undertaken with care and be given sufficient time to achieve a world leading outcome.
On first reading of the proposal, ECA already has some broad concerns. The area of accident investigation is covered by Annex 13 to the Convention of the International Civil Aviation Organisation. The terms of this Annex must be fully reflected in the regulation; otherwise the enormous experience and learning, which is the foundation of annex 13, will be ignored and the Member States of the EU will be put in an awkward legal position. Unless the annex is fully reflected in the regulation, each of the 27 member States of the EU will need to 'file a difference' with ICAO explaining why they are non-compliant. There are a number of important areas where the current draft is non-compliant, in particular in the separation of the safety investigation from any judicial inquiry and in the lack of accident prevention measures among others.
The role of the European Aviation Safety Agency is also not properly considered in the draft. EASA has responsibility for both rulemaking and certification and so although EASA should be invited to advise in any accident investigation, the investigation itself should be independent of the Agency to avoid a conflict of interests arising.
The emphasis in accident investigation should be on prevention of future accidents, rather than on apportioning blame or liability. This is the role of a completely separate judicial investigation, if necessary. ICAO Annex 13, attachment E provides essential legal guidance to facilitate constructive cooperation between the judiciary and the accident investigators at state level. Although, this is the very minimum ECA would expect in a European Regulation, the draft neither addresses this crucial point, nor provides for the protection of the reporter or data. Without these key cornerstones addressed, a regulation on accident investigation is fatally flawed. If the two separate functions – accident investigation and judicial investigation – are mixed, the value of the safety-oriented accident investigation risks being undermined and future victims would be potentially created.