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Recommendation in case 1311/2016/TM on how the European Aviation Safety Agency dealt with a safety report

Línguas disponíveis :  en
  • Caso :  1311/2016/TM
    Deschis la 16/Nov/2016 - Recomendação sobre 14/Fev/2018 - Decizie din 12/Jun/2018

Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The case concerned how the European Aviation Safety Agency (EASA) dealt with a ‘safety report’ submitted by an aircraft maintenance mechanic working at a maintenance base at an airport in the EU. The complainant was unhappy that the EASA had also failed to inform him about the follow-up to his report.  

The Ombudsman found that the EASA had complied with its obligations under the applicable rules, and had investigated the report in an appropriate manner. As a result, she concluded that there was no maladministration concerning this aspect of the complaint.

The complainant’s report was handled under the EASA’s Confidential Safety Reporting (CSR) rules. Under these rules, people making reports are informed that they will not be notified of the follow-up to their report. The Ombudsman notes that ensuring public trust in reporting in the public interest is an essential aspect of good governance. She found that the EASA’s practice, of not providing follow-up information on the reports it receives, constitutes maladministration, as this practice could undermine confidence in the reporting mechanism. The Ombudsman therefore recommends that the EASA revise the CSR procedure to ensure that feedback on the outcome of CSR procedures is given to those making reports to the EASA.

The Ombudsman welcomes the fact that, in the course of her inquiry, the EASA put in place a dedicated online tool for Confidential Safety Reporting, though it does not as of yet provide for the giving of feedback to the person making a report.

Background to the complaint

1.  The complainant[2] works at an aircraft maintenance base at an airport in an EU Member State. On 13 June 2016, he submitted an ‘occurrence report[3] to the European Aviation Safety Agency (hereafter, the EASA) using its Safety Reporting Portal[4]. In the report, the complainant stated that the facilities for carrying out aircraft maintenance at the company for which he worked were in breach of the applicable rules[5]. He said that maintenance procedures had been carried out outside the hangars, thus forcing the staff to work under adverse weather conditions, which risked impairing the maintenance work[6]. The complainant provided information about the aircrafts (on which maintenance procedures were carried out outside the hangars), the air companies to which the aircrafts belonged, and the timing of the maintenance work. In subsequent correspondence with the EASA, the complainant also referred to irregularities concerning fuelling/defuelling procedures for aircraft. Finally, he suggested that the EASA carry out on-the-spot checks to verify the reported incidents.

2. The complainant informed the EASA that, before submitting his report, he had contacted the health and safety department at the maintenance base where he worked, but was not satisfied with the reply he received. The department did not consider that the issues he raised revealed a real problem, and considered that all necessary precautions were taken. In his report to the EASA, the complainant questioned the independence of the company for which he worked, as well as of the national authority[7]. He also mentioned that the national authority was aware of the situation.

3. On 13 June 2016 the EASA confirmed receipt of the complainant’s report. It asked him whether the competent national authority had been informed of the irregularities he outlined in his report. The EASA informed the complainant that the information he had provided would be treated under the EASA’s ‘Confidential Safety Reporting ‘(CSR) procedure. When the complainant asked whether he could follow the progress of the investigation procedure online, the EASA informed him that the issues he had brought to the EASA’s attention would be processed internally. Therefore, it would not provide the complainant with any follow-up. The EASA would get back to him only if it needed additional information to process the matter further.

4. In September 2016, the complainant turned to the Ombudsman. In his view, the EASA had not handled his ‘occurrence report’ properly.

The inquiry

5. The Ombudsman opened an inquiry into the complainant’s concern that the EASA (i) failed to properly investigate the issues raised in his report, and (ii) failed to inform him of its actions following his report.

6. The Ombudsman’s inquiry team asked the EASA[8] to outline its actions after it received the complainant’s report, as well as to explain its policy concerning giving feedback to individual reporters when they report matters such as those reported in this case. The Ombudsman asked specifically about the way the EASA interprets and applies EU rules on the reporting of civil aviation incidents (hereafter, Regulation 376/2014), which includes a provision on providing follow-up on occurrence reports to individuals who have directly reported occurrences to a competent authority[9].

7. In the course of the inquiry, the Ombudsman received the EASA’s reply. The complainant did not submit any comments on the EASA’s reply. On 27 June 2017, the Ombudsman’s inquiry team also held a teleconference with the EASA staff members who had been responsible for dealing with the complaint in question. The purpose of this meeting was to seek further information and clarifications about the CSR procedure and how it works. The Ombudsman’s inquiry team subsequently asked for further clarifications, which it received on 6 September 2017. The Ombudsman's recommendation takes into account all the information submitted to her.

Actions undertaken by the EASA following the report

Arguments presented to the Ombudsman

8. The complainant claimed that the EASA had failed to investigate the safety issues he had brought to its attention.

9. In its reply, the EASA stated that ”it carefully undertook all the possible actions available under its remit in order to investigate the allegations described in the complaint”.

10. The EASA explained that, after assessing the issues described in the complainant’s report, it concluded that the report did not qualify as ‘occurrence reporting’ under Regulation 376/2014[10]. The EASA clarified, however, that ”some of the allegations made by the complainant, particularly the ones related to performing planned base maintenance activities on an aircraft outside the hangar (in a tent),” needed to be assessed. The EASA did so under its so-called ‘Confidential Safety Reporting’ (CSR) procedure.  

11. According to the EASA, CSR is an umbrella procedure available to any individual wishing to report a safety concern, such as malpractices and irregularities in the field of aviation safety. The CSR procedure ensures that the identity of the reporter is not disclosed, and creates an environment of trust by protecting the reporter from possible retaliation or reprisal[11]. The EASA also clarified that the CSR ”procedure does neither replace normal (mandatory) reporting lines from EASA approval and certificates holders nor regular exchange of safety information between aviation authorities in the field of Regulation 216/2008 and Regulation 376/2014”[12]. Indeed, the latter has specific procedures for compulsory and voluntary occurrence reporting, which set out who should report and on what matters[13].

12. The EASA explained the internal procedure it follows when dealing with a report such as the one in this case. The EASA first assesses whether the reported matter(s) falls within the scope of Regulation 216/2008, which sets out EU rules on civil aviation (and established the EASA). It also checks whether the reported matter(s) fall within the scope of Regulation 376/2014. If the report describes an incident, as set out in Regulation 376/2014, it is classified as an ‘occurrence report’.  If the report falls within the scope of Regulation 216/2008, and is not an occurrence report, it falls under the CSR procedure. The EASA then assesses whether an investigation should be carried out and, if so, whether a Member State or the EASA itself is the authority competent to carry out the investigation.  

13. In this case, the EASA asked the competent national authority to carry out an inspection to assess the issues raised by the complainant, and to report the results to the EASA. The EASA informed the Ombudsman that the inspection was closed with a finding that there had not been any irregularities.

14. In addition, the EASA carried out a ‘standardisation inspection’[14] in November 2016. The EASA said that, during the standardisation inspection, it also took the opportunity to carry out a regular ‘undertaking inspection’[15] at the company which was the subject of the complainant’s claims. This inspection assessed the matters raised in the complainant’s report. The EASA specified that, during its inspection, it also checked the complainant’s claim regarding ”the performance of planned base maintenance of an aircraft in a tent outside the hangar”.

15. Finally, the EASA stated that the reported irregularities on the ‘fuelling/defuelling’ process are considered as a ground-handling activity and, as such, fall outside the EASA’s remit. It also stated that EU rules on the airworthiness of aircraft do not contain any provision related to de-fuelling/fuelling procedures[16]. Therefore, the EASA explained, neither it nor the national authorities have a legal basis to assess this issue during inspections or otherwise.

The Ombudsman's assessment

16. The EASA said that it decided to deal with the complainant’s report under the CSR procedure and maintained that the irregularities reported by him did not constitute an ‘occurrence report’, according to Regulation 376/2014. Indeed, Regulation 376/2014 defines an occurrence as ”any safety-related event which endangers or which, if not corrected or addressed, could endanger an aircraft, its occupants or any other person and includes in particular an accident or serious incident”. This definition therefore excludes ‘malpractices’ and ‘irregularities’ of the kind reported by the complainant to the EASA, which are instead dealt with through the CSR procedure.

17. The Ombudsman acknowledges the EASA’s explanation of why it applied the CSR procedure to the complainant’s report, as well as of the investigation steps it followed. She notes that the EASA asked the competent national authority to carry out an inspection and to report the results back to it (no irregularities were found). She also notes that the EASA undertook follow-up actions in the context of the standardisation inspection.

18. However, the Ombudsman finds that the EASA’s website at the time did not clearly explain the distinction between the reporting procedure provided for in Regulation 376/2014 and the CSR procedure. On the EASA’s website at the time, there was only one way (tool) of reporting on-line whatever concern one might have, called “Occurrence reporting”[17]. This provided a link to the Safety Reporting Portal. This could have created the impression that any reporting could potentially be characterised as an ‘occurrence report’ and be treated under Regulation 376/2014.

19. The Ombudsman raised this issue with the EASA, which informed the Ombudsman that it was in the process of updating its website, so as to provide information about the CSR procedure and provide a separate online tool for CSR reporting which would be different from occurrence reporting. On 4 July 2017, the EASA informed the Ombudsman that the above-mentioned improvements, which the Ombudsman considers very useful, had already been implemented on the EASA’s website[18].The Ombudsman commends the EASA for having done this.

20. Concerning the fuelling/de-fuelling matter raised by the complainant, the EASA’s reply appears to be accurate and in accordance with the relevant legal provisions. However, it would have been appropriate to inform the complainant about this, so that he could then raise his concerns with the authority competent to deal with the matter. This will be further assessed below.

21. Against this background, the Ombudsman concludes that the EASA has complied with its obligations and carried out an investigation in an appropriate manner, in response to the complainant’s report.

The EASA´s failure to provide feedback to the complainant following his report

Arguments presented to the Ombudsman

22. The complainant asked the EASA to keep him informed about any actions it took in response to his report.

23. The EASA clarified that, since it considered the report fell under the CSR procedure, and was not an occurrence report, the provisions in Regulation 376/2014 did not apply. This included the provision requiring the EASA to provide information on how it was following-up on reports. The EASA further stated that it interpreted this provision of Regulation 376/2014 on following-up on reports to be “a desirable target”, rather than an obligation. The EASA considered that it is fulfilling “this objective vis-à-vis the general public” by publishing annual safety reports, in line with Regulation 216/2008[19]. It also stated that, in accordance with Regulation 376/2014[20], it shares information on the analysis and follow-up of occurrences with the European Commission and competent national authorities in the Member States.

24. The EASA said that the CSR procedure does not provide for an obligation to give individual feedback on the actions undertaken by the Agency after receiving a report. It added that, since the majority of the reports it receives do not reveal issues of concern, replying to every individual who submits a report ”would create [...] great misuse of time and resources”. Thus, the EASA simply sends those reporting an issue just “a specific acknowledgment of receipt” in which it clarifies that it will get back to them only if additional information is needed.

The Ombudsman's assessment

25. The Ombudsman notes that the EASA sent an acknowledgment of receipt to the complainant, thereby complying with its own rules, which set a time-limit of 15 working days for doing so[21]. As there had initially been a problem with the system and reporting portal, the EASA asked the complainant to resubmit his report. Furthermore, in its exchange with the complainant, the EASA had asked him whether the national competent authority was informed of the issues he raised. This shows that, when necessary, the EASA does contact those who report incidents.

26. The Ombudsman also notes that the EASA notified the complainant about its information policy in its acknowledgment of receipt and informed him that the report would be dealt with under the CSR procedure and that it would contact him only if it needed additional information. While this was in accordance with the CSR procedure, it is legitimate to assess whether this procedure complies with the principles of good administration.

27. The Ombudsman welcomes the EASA’s step to develop a dedicated online tool for CSR reporting which contains information on who can report, what can be reported, what happens after a report is submitted (acknowledgment of receipt, information on anonymisation of reports and processing of personal data). However, the form contains the following disclaimer “[the] EASA will not involve you – the reporter – in any follow up action EASA may take, nor will you be informed of the outcome thereof(emphasis added).

28. The Ombudsman understands the EASA’s argument that it needs to use its resources in the most efficient manner. However, it must not be forgotten that those making reports must go to some effort to do so. The Ombudsman notes that ensuring trust in the work of the EU authorities is an essential aspect of good governance. Principles of good administration require that, regardless of what decision an EU institution or body may take, it should inform the individual who raised the matter about the outcome. This avoids creating the impression, on the part of the person reporting a matter, that their report has not been properly dealt with, or has not been dealt with at all. Pproviding meaningful feedback to those who report issues of concern ensures trust in the process, thereby helping to encourage people to raise issues with the relevant authorities in the public interest. Introducing such an obligation would also be in line with international standards in this area[22]. The Ombudsman notes that the Organisation for Economic Co-operation and Development (OECD) Guidance on encouraging reporting in the public interest concludes that “the lack of trust in the ability or willingness of the authorities to investigate the report is one of the biggest deterrents to reporting wrongdoings”.

29. Merely informing those reporting issues of concern that they will not be provided with feedback, as the EASA does, compromises the reporting mechanism. This practice constitutes maladministration. The Ombudsman shall make a recommendation to the EASA below, with a view to addressing this. However, the Ombudsman recognises that in some cases there will be a limit on the extent to which the EASA is free to disclose the nature of the action it has taken or proposes to take.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman concludes as follows:

There was no maladministration by the European Aviation Safety Agency with regard to the first aspect of the complaint.

As regards the second aspect of the complaint, the Ombudsman finds that the EASA’s practice, of not giving any feedback to those making reports of safety concerns, constitutes maladministration.

Recommendation

The European Aviation Safety Agency should amend its Confidential Safety Reporting procedure to ensure that those who report safety concerns receive feedback to the extent that this is possible without compromising the integrity of the EASA’s actions.

The EASA and the complainant will be informed of this recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the EASA shall send a detailed opinion by 14 May 2018.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 14/02/2018

 

[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] The complainant wrote to the Ombudsman on behalf of a number of other employees working for the same company.

[3] As provided for under the applicable EU rules on the reporting of civil aviation incidents, Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation. More information is available at: https://www.easa.europa.eu/easa-and-you/safety-management/occurrence-reporting.

[4] This is an evidence-based system that was created to allow the collection, analysis and follow-up of safety issues. The aim of the system is to ensure that the necessary safety intelligence is available to identify hazards and risks, and that mitigation actions are rapidly implemented. The portal offers individuals wanting to report a safety issue the possibility of reporting on their own behalf or on behalf of their organisation.

[5] In particular, Regulation 1321/2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks.

[6] This would be contrary to Article 145.A.25 of Annex II, of Regulation 1321/2014.

[7] According to Article 2 of the Commission’s Implementing Regulation 628/2013 on working methods of the EASA for conducting standardisation inspections and for monitoring the application of the rules of Regulation 216/2008, a ‘competent authority means the entity designated by the Member State as competent for the implementation of Regulation (EC) No 216/2008 and its implementing rules.’

[8] Letter of 15 November 2016.

[9] Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation. Recital 27 of Regulation 376/2014 states that ”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 occurrences reports pursuant to this Regulation”.

[10] Article 2(7) of Regulation 376/2014 states ‘occurrence’ means any safety-related event which endangers or, if not corrected or addressed, could endanger an aircraft, its occupants or any other person. This includes, in particular, an accident or serious incident.

[11] The legal basis for the CSR procedure is Article 16 of Regulation 216/2008 on common rules in the field of civil aviation and establishing the EASA. This provides for the obligation to protect the identity of the source of information when that source is a natural person. Thus, Regulation 216/2008 establishes a ‘horizontal basic principle of protection’ for whoever wants to report safety concerns and be protected from possible retaliation. 

[12] Annex I to the EASA’s reply provides a detailed explanation about the Confidential Safety Reporting (cf. p. 4 of Annex I). 

[13] Article 4(1) of Regulation 376/2014  provides for a list of occurrences which may present a significant risk and it is compulsory to be reported by the person listed under Article 4(6) (persons having airworthiness responsibilities). Article 5 of Regulation 376/2014 deals with voluntary reporting, reports under Article 5 can be made by persons not listed under Article 4(6) (e.g. any individual or legal person).

[14] Standardisation inspections are conducted by the EASA in order to monitor how Regulation 216/2008 is being applied by the competent authorities in EU Member States. The inspections also verify the application of a separate Commission implementing Regulation 628/2013, which provides the basis for these inspections.

[15] In accordance with Article 54(4) of Regulation 2016/2008 in the framework of standardised inspections the EASA may conduct investigations of undertakings.

[16] Regulation 1321/2014 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances (Part 145).

[17] https://www.easa.europa.eu/easa-and-you/safety-management/occurrence-reporting

[18] The CSR dedicated tool is available at https://www.easa.europa.eu/confidential-safety-reporting.

The webpage contains information on who can report, what can be reported, what happens after a report is submitted (acknowledgment of receipt, information on the anonymisation of reports and processing of personal data). The form contains the following disclaimer ”EASA will not involve you – the reporter – in any follow up action EASA may take, nor will you be informed of the outcome thereof”.

[19] Article 15(4) of Regulation 216/2008 provides that: “In order to inform the public of the general safety level, a safety review shall be published annually by the Agency. From the entry into force of the measures referred to in Article 10(5), this safety review shall contain an analysis of all information received pursuant to Article 10. This analysis shall be simple and easy to understand and shall indicate whether there are increased safety risks. In this analysis, the sources of information shall not be revealed”.

[20] Article 14 ‘Occurrence analysis and follow up at Union level’ states:

“1. The Commission, the Agency and the competent authorities of the Member States shall, in collaboration, participate regularly in the exchange and analysis of information contained in the European Central Repository.

Without prejudice to the confidentiality requirements laid down in this Regulation, observers may be invited on a case-by-case basis, where appropriate.

2. The Commission, the Agency and the competent authorities of the Member States shall collaborate through a network of aviation safety analysts.

The network of aviation safety analysts shall contribute to the improvement of aviation safety in the Union, in particular by performing safety analysis in support of the European Aviation Safety Programme and the European Aviation Safety Plan.

3. The Agency shall support the activities of the network of aviation safety analysts by, for example, providing assistance for the preparation and organisation of the meetings of the network.

4. The Agency shall include information about the result of information analysis referred to in paragraph 1 in the annual safety review referred to in Article 15(4) of Regulation (EC) No 216/2008”.

[21] See Annex 1 of the EASA’s reply to the Ombudsman, p. 6 .

[22] OECD Guidance Whistleblower protection: encouraging reporting, July 2012, p.9.

The Guidance document states:

It is also essential to ensure that once the wrongdoing or corruption is reported appropriate investigation is carried out and the whistleblower may be able to effectively follow-up on his/her report. Procedures to take up the report and investigate it should be clear and informed to all employees and a response has to be provided to the whistleblower. Lack of trust in the ability or willingness of the authorities to investigate the report is one of the biggest deterrents to reporting wrongdoings.

Available at: https://www.oecd.org/cleangovbiz/toolkit/50042935.pdf

Moreover, the G20 Study on Whistleblower Protection Frameworks, Compendium of Best Practices and

Guiding Principles for Legislation on the Protection of Whistleblowers also provides guidance on providing feedback to reporters, p.32.

Available at: https://www.oecd.org/g20/topics/anti-corruption/48972967.pdf

See also: Public Concern at Work Code of Practice of the UK’s ‘Whistleblowing Commission’, Point 5(e) “a worker raising a concern should:

i. be told how and by whom the concern will be handled;

ii. be given an estimate of how long the investigation will take;

ii. be told, where appropriate, the outcome of the investigation identifying best practices and recommendations for effective legislation”. 

Available at: http://www.pcaw.org.uk/files/PCaW_COP_FINAL.pdf