The aviation world is a complex system comprising, inter alia, international organisations, central authorities and those with organisational and operational oversight of subordinate entities, air navigation service providers, equipment and aircraft manufacturers, operators, crews, airports, handling companies, flight schools, passengers, etc. Research shows that accidents in such complex organisms result from the accumulation of many factors that must come together for an event to occur. There are few recorded cases of, for example, air traffic disasters where there was a single, identifiable cause[i]. Rather, it works the other way round – it is usually sufficient to remove one factor from the coherent factors in a situation so that the hazard can be prevented. This phenomenon was described by James Reason when he created the Reason Model – the Swiss Cheese Concept as a metaphor for any event. He stated that a cube of cheese can be divided into slices – the domain of a given airborne operation. Each domain has its gaps, e.g. a given aircraft may be prone to the failure of a particular component, maintenance procedures may inadequately specify the wear parameters and replacement conditions for that component, and training may be inadequate in dealing with this technical problem among crews. The superimposition of these three holes in any consecutive area (slice of cheese) in a manner that results in a ‘cheese hole’ could bring disaster to air traffic[ii]. At the same time, the removal of any of them should eliminate the hazard. As it happens – although different sources give subtly different statistics – human error is the main cause of no small 80% of aviation accidents, and occurs even more frequently. Hence, the elimination of ‘holes’ in this area has become one of the priorities when it comes to air traffic safety[iii].
One manifestation of the fight to reduce the rate of human error is the introduction of a so-called ‘Just Culture’. – Just Culture. An important element of its successful implementation was the creation of an appropriate system and a just approach to reporting safety incidents in aviation organisations, which would apply to employees at all levels of the structure. The starting point was that human beings will always make mistakes and instead of focusing on punishing them, efforts directed at avoiding them should be centralised. However, it is difficult to avoid incidents of which the organisation has no knowledge because, for example, they are ‘swept under the carpet’. It is also much more arduous to analyse and investigate such incidents. Moreover, it is important to also look at seemingly insignificant incidents in order to avoid catalysts for serious accidents. However, in order to convince people to share such information – also with regard to their own mistakes – an essential guarantee had to be given – that there would be no consequences unless the incident was intentional or grossly negligent. Just Culture and the degree to which it has been implemented is also sometimes regarded as a litmus test of the safety culture prevailing in an organisation. Of course, a not insignificant proportion of employees may not trust their employer enough to check on themselves whether a promise of no penalty will be honoured, but a systemic solution has been found to this, which is discussed later in this paper. It has been advocated that organisations in the industry should publish a kind of Just Culture Statement, which will cover issues of confidentiality, sanctions and the implications for the wrongdoer’s entitlements. Employees should be assured that their identity and the identities of those named in the reports will remain confidential and will not be disclosed without their consent, unless required to do so by common law (e.g. the Code of Criminal Procedure). Secondly, employees should be aware that if the error – even if criminal – was unintentional and disclosed voluntarily before the law enforcement authorities became aware of it, then the perpetrator will not be liable for disciplinary and criminal penalties. Finally, only if it emerges from the circumstances of the incident that a person should by law be subjected to further training or have their privileges withheld or taken away can such a decision be taken against them, and such action should not be punitive in nature.
At this point, reference should be made to Regulation (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on occurrence reporting, analysis and follow-up of civil aviation occurrences, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007 (OJ EU. L. 2014, No. 122, p. 18, as amended; hereinafter: ‘Regulation 376’). It explains what an event is, i.e. according to its Article 2 para. 7, an occurrence is “[…] any safety-related event which endangers or which, if not corrected or dealt with, could endanger an aircraft, its occupants or any other person; an occurrence shall include, in particular, an accident or a serious incident[…].” Regulation 376 also introduces into the European legal order a division of events into those that must be reported mandatorily and those that can be reported voluntarily.
Starting from the end, as it were, it should be noted that the voluntary reporting system – directly to the President of the Civil Aviation Authority – covers all occurrences that are not required to be notified according to the rules described below (they are not described therein or the notifier is not an obliged person), but the notifier considers them to be of a recurrent nature or, in his/her opinion, may pose a threat to safety.
In turn, Article 4 of Regulation 376 derives the obligation to report occurrences that may pose a significant risk to aviation safety. These include operational occurrences, those of a technical nature, as well as those related to air navigation services and their infrastructure facilities and ground services. Operational incidents include all those related to aircraft collisions with each other or with other objects, flight phases of take-off or landing, communications, fuel and emergency situations (including medical), crew incapacitation of various causes, meteorological conditions and security issues (trespassing incidents, aggressive behaviour, sabotage, etc.). With regard to maintenance, it is primarily a matter of aircraft malfunctioning, necessitating repairs, particularly if structural components, system operation and propulsion are affected. As regards the performance of air navigation services, deficiencies should be reported concerning the application of separation between aircraft, air traffic management and ground services, which also includes the operation of aerodromes and passenger services.
Of course, not every person is under such an obligation. Within 72 hours of learning of the occurrence (unless there are extraordinary circumstances preventing compliance with the order), the pilot in command of the aircraft and other crew members, persons responsible for the design, manufacture, continued airworthiness monitoring, maintenance or modification of the aircraft and any equipment or parts thereof should notify the pilot of the occurrence, persons authorised to sign airworthiness review certificates or aircraft releases, air traffic services personnel, the person responsible for airport safety management or the person responsible for the maintenance (including repair and modification and inspection) of aeronautical navigation installations – and finally – persons performing maintenance on the ground on aircraft, i.e., refuelling, fuelling and stowing them. including, but not limited to, refuelling, de-icing, towing or loading aircraft. Article 135a of the Act of 3 July 2002. – Aviation Law (i.e. Journal of Laws of 2023, item 2110; hereinafter: ‘Aviation Law Act’), with regard to aircraft not covered by the provisions of Regulation 376, it is obligatory to report the occurrence of an event which consists of an interruption in the operation, defect, damage to an aircraft or its component or any other circumstance relevant from the point of view of flight safety, not only to the entities already indicated above, but also, inter alia, to the operator designing or modifying the aircraft or its component, i.e. to the operator designing or modifying the aircraft.Among others, the entrepreneur designing or modifying an aircraft and the organisational unit or association of the Polish Armed Forces to which a military aerodrome has been transferred for use and which has accepted Polish or foreign civil aircraft.
Regulation 376 also mandates that each organisation operating in European aviation establish a mandatory occurrence reporting system so that detailed data on incidents can be collected. From 1 February 2023, incidents can also be reported via ECCARIS 2 (European Co-ordination Centre for Accident and Incident Reporting Systems) available at: https://e2.aviationreporting.eu/reporting
The notification should go both to the organisation associated with the incident and to the State Aviation Accident Investigation Commission, which will decide whether to initiate proceedings in the case (e.g. in the case of an accident involving a person without the required certificates, it has the right to refrain from further investigation of the incident). The Commission shall immediately notify the President of the Civil Aviation Authority of the notification.
What is noteworthy is that, according to Article 135a(7) of the Aviation Law, an employer may not discriminate in any way against an employee who has made a mandatory notification. Going further – Article 135e of the Aviation Law protects against the possible consequences of compulsory or voluntary notification in that it excludes the employee’s liability for breach, non-performance or improper performance of his/her employment duties in connection with the event. On the other hand, persons performing activities under a civil law contract cannot be held liable by the civil aviation entity for which the services were performed for non-performance or improper performance of an obligation. The protection extends to employees and persons performing the aforementioned activities who are merely named in the notifications.
Breach of this prohibition results in the imposition of an administrative penalty by the President of the Civil Aviation Authority on the organisation, in the amount of PLN 25,000, as stipulated by the standard resulting from Articles 209ui and 209w(1) of the Aviation Law.
Finally, mention should be made of the benefit of Article 135a(8) of the Aviation Law, which provides that “[…] with due observance of the provisions of criminal law, no proceedings shall be instituted in respect of infringements of the law committed through unintentional fault, with the exception of cases of gross negligence of which only a report has been made […]”. This provision seems to concern administrative law rather than criminal law and offences, which have a similar regulation contained in the text of Article 212a of the Aviation Law. Article 212a of the Aviation Law provides that a person who reports an event by means of a mandatory or voluntary occurrence reporting system shall not be liable for the unintentional offence specified in Section XII of the Aviation Law, as well as for the unintentional offence specified in the same Section, and also for the unintentional introduction of an imminent danger of an air traffic catastrophe, and the person named in the report shall not be liable if the report was made before the law enforcement authorities became aware of the offence. The only exceptions are the cases indicated in Article 210, paragraph 1, items. 1-3a of the Aviation Law, i.e. performing a flight without signs on the aircraft, violating the provisions on the aircraft register and failing to notify the relevant authority of the intention to acquire shares in certain entities. It is worth noting here that while under administrative law it is permissible to initiate proceedings (e.g. to take away powers) against a person who violates the legal order in a grossly negligent manner, under criminal law and misdemeanours no such exception is placed and here the perpetrator is absolutely not subject to punishment. For the sake of clarification, it should be pointed out that the effect of considering that the perpetrator is not subject to punishment is the refusal to initiate criminal proceedings or the discontinuation of already initiated proceedings, as mentioned in Article 17 § 1 pt. 4 of the Act of 6 June 1997 of the Code of Criminal Procedure (i.e. Journal of Laws of 2022, item 1375 as amended)].
It has been stated above that the benefit under criminal law and misdemeanours applies to the offences specified in Section XII of the Aviation Law. In view of the level of elaboration of the regulations in question (Articles 210-212 of the Aviation Law) and the multitude of references therein, it is necessary to confine myself to providing the address where the regulations in question can be found:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu20021301112
In summary, Just Culture has introduced far-reaching solutions to both European and domestic regulations. With the aim of enabling awareness of the dangers, in particular of human error, to be created, analysed and prevented, the regulations introduce a number of boons for inadvertent violators of aviation law. Their making a declaration along the lines of ‘active regret’ familiar from other branches of the law, in the form of a voluntary or compulsory notification, will not only support the level of safety, but also have the tangible benefit of receiving a chance to improve without incurring far-reaching consequences. This can be a particularly good tool for those who are just starting out in the aviation world, when it is not difficult to make a mistake.
Artur Banach, attorney at law
[i] EUROCONTROL (2006, October) REVISITING THE ” SWISS CHEESE ” MODEL OF ACCIDENTS, EEC No 13/06, p. 2;
[ii] Ibid, p. 14;
[iii] NASA-Ames Research Centre (2013) If Human Error is the cause of most aviation accidents, then shouldn’t we remove the human? Medium in English: https://ntrs.nasa.gov/api/citations/20190001065/downloads/20190001065.pdf [accessed 2.11.2023] p. 3;
