Punishing air traffic controllers and pilots with fines or by suspending their licences can discourage the front-line operators from reporting any kind of mistake, with a consequent reduction in safety information.
It is therefore fundamentally important to encourage the development of an environment in which occurrences are reported and the necessary processes for investigating and developing preventive action (such as re-training, improved supervision, etc.) are put in place.
What is at stake
Just culture does not mean complete protection of front-line operators in the event of aviation incidents and accidents. Nobody can be above the law, and interpreting acceptable or unacceptable behaviour or actions remains the responsibility of the national judiciary.
Indeed, the administration of justice, in particular in the domain of criminal law, constitutes one of the pillars of a State’s sovereign functions. Both at International Civil Aviation Organization (ICAO) level (see
ICAO Annex 13, Aircraft Accident and Incident Investigation) and in Europe, effective and focused rules and regulations on the protection of safety data already exist or are under discussion, but there are limits to what can be addressed by safety legislation.
In this context, a just culture signifies the growing recognition of the need to establish communication and training initiatives and advance arrangements amongst those in the aviation safety sector, regulators, law enforcement and the judiciary in order to avoid unnecessary interference and to engender mutual trust in and an understanding of the relevance of their respective activities and responsibilities.
A just culture requires an understanding and appreciation of the various processes and commitments by both safety specialists and the judiciary. A just culture is based on the assumption that controllers and pilots can make mistakes and that only a member of the judiciary can decide what is an “honest mistake” and what constitutes intentional or reckless behaviour.
The concept of a just culture represents the fundamental recognition that both aviation safety and the administration of justice would benefit from a carefully established equilibrium, moving away from fears of criminalisation. That is easier said than done, of course, but the time has come to seriously question the added value of endless and generally unsuccessful efforts at international level to “protect” controllers and pilots against legal action by creating standards, regulations and laws which are supposed to shield them from intervention by the justice system.
What is the legal status
In Europe, the European Union (EU) not only formally enacted the concept of a just culture as part of EU law, with the introduction of Regulation (EU) No 691/2010, but it also introduced elements of this culture in Regulation (EU) No 996/2010 governing air accident and incident investigation, which also addresses the need to achieve a balance between the objectives of the judiciary in determining whether criminal intent was involved, and the need of the aviation industry to be able to run a real-time self-diagnostic system without unnecessary interference from the justice system.
The title of Regulation (EU) No 996/2010 indicates that it has a dual purpose, namely to regulate both “the investigation and prevention of accidents and incidents”. It states as follows: “An accident raises a number of different public interests such as the prevention of future accidents and the proper administration of justice. Those interests go beyond the individual interests of the parties involved and beyond the specific event. The rightbalance among all interests is necessary to guarantee the overall public interest”.
Since July 2005, States have had to comply with the European Directive on occurrence reporting in civil aviation, which to a large extent mirrors the content of ESARR2 – Reporting and Assessment of Safety Occurrences in ATM. As from 15 November 2015, this Directive will be repealed by the new Regulation (EU) No 376/2014 (which also amends Regulation (EU) No 996/2010 of the European Parliament and of the Council).
The EUROCONTROL definition of Just Culture was formally enacted by the European Commission in the Regulation (EU) No 691/2010 (the “performance Regulation”), updated by Implementing Regulation (EU) No 390/2013, and in Regulation (EU) 376/2014 of the European Parliament and of the Council (the “reporting Regulation”).
At ICAO, the discussions and findings of the 36th Assembly, the Accident Investigation and Prevention Divisional meeting in 2008 and the recommendations of the ICAO High-Level Safety Conference in March 2010, resulted in resolutions A37-2 and A37-3 of the 37th General Assembly on the sharing of safety information and the protection of safety data.Both resolutions, using the description of the just culture initiative, instructed the Council to strike a balance between the need for the protection of safety information and the need for the proper administration of justice. The Assembly further noted the need to take into account the necessary interaction between safety and judicial authorities in the context of an open reporting culture.
The ICAO Safety Information Protection Task Force (SIPTF) was, among other reasons, created as a result of these conclusions, which to a great extent have inspired its findings and recommendations.
A lot of progress has already been made in this domain through safety management and related practices and the new ICAO Annex 19 will certainly also play an important role in this area. These developments will also require the recognition and perhaps harmonisation of a corporate just culture with criminal law requirements and policies at State level.
What we have done so far
EUROCONTROL is currently focusing its efforts primarily on the introduction and benefits of a Just Culture at State and international level and on the interaction between safety experts and the judiciary.
The EUROCONTROL Just Culture Task Force and the Model Policy
Over the last few years, EUROCONTROL has championed developments in this crucial safety area with a dedicated EUROCONTROL Just Culture Task Force.
The Just Culture Task Force (JCTF) started holding meetings in 2007 to promote, debate and discuss the legal questions relating to safety and justice, to foster and support dialogue between safety and judicial experts, andto develop relevant guidance material and policies in order to support the implementation and dissemination of a Just Culture concept. The Task Force is composed of representatives of the European Commission, the European Aviation Safety Agency (EASA), the International Federation of Air Traffic Controllers’ Associations (IFATCA), the European Regional Airlines Organisation (ERA), the European Cockpit Association (ECA), accident investigation boards, national prosecutors, Civil Aviation Authorities (CAAs), Air Navigation Service Providers (ANSPs), the National Transportation Safety Board (US NTSB) and ICAO.
In accordance with its terms of reference, the JCTF has developed a “Model Policy regarding criminal investigation and prosecution of criminal offences further to the reporting of civil aviation incidents and accidents” .
The objective of this Policy is to provide direction regarding the criminal investigation and prosecution of potential criminal offences resulting from aviation accidents or which come to the attention of prosecutors through the reporting of civil aviation incidents.
The Model Policy was unanimously endorsed by the Provisional Council at its May 2012 session. It will be shortly submitted to Member States for their endorsement, represents a promising development with a view to fostering the relationship between aviation and judicial experts.
The EUROCONTROL Just Culture Policy (Maastricht)
At (national) corporate level, in the interaction between management and staff of airlines and air traffic service providers for example, the Just Culture concept of course plays an equally important role in the acts of pilots and controllers and the application of company rules, contract and employment law.
The just culture concept has become a cornerstone of both the Maastricht Upper Area Control Centre’s and the Network Manager’s approach to safety. Indeed, EUROCONTROL has just introduced a new Just Culture Policy, one that was agreed by both management and staff, and signed by the Director General, Frank Brenner, at a special Safety Day held at the Maastricht Upper Area Control Centre on 23 September 2014.
Together with IFATCA and the ECA, EUROCONTROL has devised and held special just culture courses for aviation experts and prosecutors.
These courses, held twice a year, seek to involve representatives of the European judiciary in dealing with and discussing aviation accidents and incidents by means of interaction with other participants and moderators from different European countries and with experts in aviation safety and the legal domain, thus providing their contribution to and evaluation of the matter discussed. The main objective of the course is to make all the representatives aware of each others’ needs and difficulties, in order to provide a complete and exhaustive framework not only for questions related to air traffic control and management, but also for the whole investigation activity and the decision-making process followed by the judicial authority in the event of aviation accidents and incidents.
In conclusion, although air traffic control activity has common elements in the different European Union countries, EUROCONTROL, by organising this course, is seeking to provide the national legal systems with uniform evaluation criteria of the events involving the aviation field, with due regard to their different peculiarities.
So far, EUROCONTROL has organised two pilot courses and four official courses, with the participation on the one hand of a large number of ATCOs, pilots and aviation front-line operators, and on the other of prosecutors and judges from several countries (the UK, the Netherlands, Italy, Switzerland, the Czech Republic, Poland, Romania and Latvia).
Besides the just culture courses for experts, EUROCONTROL is also committed to organising regional and/or local workshops all over Europe, with the aim of spreading the message of the real essence of the Just Culture concept as widely as possible. These workshops are basically aimed at the judiciary of the European countries.
In these courses, various prosecutors from the Netherlands and the United Kingdom, countries which already have successful examples of agreements between safety and judicial authorities in the event of aviation incidents and accidents, explain how the interface between the safety experts and the judiciary operates in their legal systems in the aftermath of an occurrence.
At the workshop, the participants are also shown the EUROCONTROL Just Culture Model Policy in order to publicise its content and also to promote in the participating countries the initiative of a national aviation prosecution policy which balances the needs of aviation safety and the administration of justice, in full compliance with the rules and principles of those countries’ own legal systems.
So far, workshops have been organised in:
- Vienna, Austria (also attended by representatives of the judiciary from Hungary, the Czech Republic, the Slovak Republic and Slovenia);
- Bucharest, Romania;
- Warsaw, Poland (also attended by representatives of the judiciary from Latvia);
- Ohrid, Macedonia (also attended by representatives of the judiciary from Albania and Bosnia and Herzegovina).
Other workshops are expected to be organised in the coming months.