5.9Can my report be used against me or anyone mentioned in it?

IRImplementing rule

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

Key principle Regulation 376/2014 includes strong protection rules for occurrence reporters and persons mentioned in occurrence reports. These rules include limitations to the possibility of disclosing or using occurrence reports.

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. 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, nonselfincrimination 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 individuals 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.

Key principle A ‘Just Culture’ should encourage individuals to report safety-related information but should not absolve individuals of their normal responsibilities (Recital 37). 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 (Article 2).

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 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. 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).

Key principle States 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)).

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. 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.

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