4.7How shall information collected be handled?

IRImplementing rule

4.7 How shall information collected be handled?

Key principle Member States and EASA shall not be prevented from taking any action necessary for maintaining or improving aviation safety (Article 16(5)).

Detailed information on those aspects is contained in Section 2.12 and 2.13.

Key principle Member States and EASA are not allowed to record personal details in their database. Furthermore, they are required to take the necessary measures to ensure the appropriate confidentiality of occurrences they collect and to comply with rules on the processing of personal data.

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). 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 EASA. Finally, Recital 33 highlights the need for national rules on freedom of information to take into account the necessary confidentiality of information. 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.

Key principle 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 (Article 16(6) and Recital 43). 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 (Article 16(7) and Recital 44).

Key principle Regulation 376/2014 recognises two exceptions to these principles (Article 16(10)): wilful misconduct; and 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.

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). 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.

Key principle Competent authorities can only use an occurrence report for the purpose for which it has been collected (Article 15(1)). They are not allowed to make available or use occurrence reports: in order to attribute blame or liability; or for any purpose other than the maintenance or improvement of aviation safety (Article 15(2)).

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

Key principle There are however few exceptions to those principles. 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 Article 16(10) with the view to address the risks to safety is allowed by the Regulation. In addition, any measure necessary for safety can be adopted, including where necessary the suspension of a licence or requesting a person to do additional training. This is reinforced with the principle that Member States and EASA shall not be prevented from taking any action necessary for maintaining or improving aviation safety as stated in Article 16(5). 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 (Article 15(2)).

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. 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.

Key principle All limitations applicable to disclosure and use of occurrences information contained in Regulation 376/2014 cover to the entire competent authority database i.e. it applies to all occurrences contained in the database including those registered in the database prior to 15 November 2015.

The Regulation also requests the Member States competent authorities to cooperate with their competent authorities for the administration of justice through advance administrative arrangements (Article 15(4)). It is specified that these advance administrative arrangements shall seek to ensure the correct balance between the need for proper administration of justice, on the one hand, and the necessary continued availability of safety information, on the other. It is understood that these advance arrangements should notably cover the access to occurrence reports by judicial authorities in cases where Regulation 996/2010 is applicable.

IR — Regulation (EU) No 376/2014 · GM to Reg. (EU) No 376/2014 and its IRs · Occurrence Reporting Easy Access Rules · EAR revision 27 Sep 2023