The Just Culture Initiative Roderick D. van Dam Head of Legal Service, EUROCONTROL ICAO / ASPA Regional Seminar 10-11 April 2007 European Organisation for the Safety of Air Navigation

Outline Setting the (European) scene Concept of Just Culture Challenges Way forward – European and International approaches

24 Hours of Europe Air Traffic: September 10, 2004

Membership of the EU, EUROCONTROL and ECAC IS FI Eurocontrol (37 + European Community) ECAC (42) EU (27) RU NO SE EE XX LV DK LT KZ IE BY GB NL PL BE DE UA LU CZ SK MD AT FR CH HU RO GE SI AZ HR AM BA SR BG IR IT CG PT ES MK TR AL GR IQ SY CY DZ MA TN MT

EUROCONTROL European Organisation for the Safety of Air Navigation EUROCONTROL Convention 13 December 1960 Amended Convention Protocol 12 February 1981 Revised Convention Protocol of 27 June 1997 Not yet in force – however, early implementation of certain provisions of the revised Convention

EUROCONTROL - CORE BUSINESS Management of pan-European programmes Research & Development work aimed at increasing Air Traffic Control capacity and safety in Europe Operation of a Central Flow Management Unit Collection of Route Charges on behalf of Member States and through bilateral agreements with non-Member States Provision of training, education and knowledge transfer in Air Navigation Services inside and outside Europe Provision of Air Traffic Services Management of an international (4 States) ATC Centre: Maastricht Development of an international (8 States) ATC Centre: CEATS

Setting the scene Accidents in 2001 & 2002 SAFREP Strengthen the need for continuous safety improvements Led to, inter alia, creation of Safety Data Reporting and Data Flow Task Force (SAFREP) SAFREP Report on ATM incident reporting culture: Impediments and Practices Involving EUROCONTROL, European Commission, IFATCA, IATA, States and ANSPs representatives Conclusions and Recommendations EUROCONTROL to continue to actively support and cooperate with ICAO

Setting the scene European Safety Programme for ATM (ESP) Supporting 42 ECAC States Safety maturity to a minimum common level by December 2008 High Priority Area: Incident Reporting and Data Sharing Special emphasis on “Just Culture”

ATM Safety Maturity in Europe 50 55 60 65 70 75 80 2002 2003 2004 2005 2006 ANSPs Regulator Today Air Traffic Management in Europe is mostly cruising along nicely, which is a remarkable achievement. Europe's ATM system is safe: Europe has not had a single ATM-induced fatal accident since 2002. Moreover, the safety of both ANSPs and national Regulators is rising steadily. According to a range of indicators measured by EUROCONTROL, in the last four years the safety maturity of ANSPs rose by 27 %, and that of regulators by 25 %.

Concept of Just Culture What is “Just Culture”? EUROCONTROL / SAFREP definition: “A culture in which front line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated” Definition to be submitted to next ICAO Assembly

Concept of Just Culture Main elements: Actions, omissions and decisions expected from someone with your level of training and experience Not punished Gross negligence, willful violations and destructive acts Not tolerated

Concept of Just Culture Objectives: To provide increase in reporting Not to justify absence of reporting Evolved from punitive-free reporting, blame free reporting To achieve a balance between interests of safety (and protection of safety information) while allowing proper administration of justice

Concept of Just Culture Involving a number of players: States (Regulators, prosecutors, etc.) ANSPs “Reporters” (e.g. controllers) International / regional organisations A number of challenges must be addressed to establish “Just Culture”

Challenges Powers of judicial authorities vs. Protection of safety information Both addressed by ICAO Annex 13: Section 4.2 : Non – Disclosure of records Legal Guidance: (new) Annex E Not purpose of protecting safety information to interfere with proper administration of justice Protection of qualified safety information under conditions is part of a State’s responsibilities

Challenges Powers of judicial authorities vs. Protection of safety information Relevant Assembly Resolutions: A31-10: “Urges Contracting States (…) to implement voluntary and non punitive reporting systems” A33-17: “Instructs the Sec. Gen. to develop appropriate guidance material related to laws and regulations to protect certain accident and incident records” A35-17: “Instructs the Council to develop appropriate legal guidance that will assists States (…) to protect information gathered from all relevant safety data collection and processing systems, while allowing for the proper administration of justice in the State”

Challenges European Level – same “conflict” EUROCONTROL Directive 94/56/EC on the investigation of civil aviation accidents and incidents Directive 2003/42/EC on occurrence reporting in civil aviation EUROCONTROL ESARR 2 and Guidance Material Directives currently under review States shall refrain from initiating proceedings (except in case of gross negligence) No prejudice from employer Without prejudice to applicable rules: - penal law - related to access to information by judicial authorities

Challenges Cooperation betweenJustice and ATM/Safety experts Public interest Safeguards Respect roles and responsibilities Address grey areas The last challenge is one which could to a certain extent also provides solution for the other identified challenges. It seems that in order to create an environment where the notion of Just Culture becomes part of reporting, there is a need to increase the cooperation between ATM / Safety experts and those involved with the administration of Justice. Both Safety and Justice interest are both working for the public interest – there should be therefore room for dialogue and cooperation. This should be done respecting a number of safeguards – not trying to create a system where for example the function of a prosecutor would be replaced by those of a safety experts – and vice-versa. You have to respect the roles, responsibilities and expertise of each party. One way to improve the situation would be address a number of grey areas – e.g. definition of gross negligence, wilful misconducts, honest mistakes to ensure that Justice and Safety /ATM experts speak the same language. Could also develop environment where, for example, prosecutors could use their power of discretion regarding the launching or not of legal proceedings.

Challenges Communication and trust Training Trust at all level (ANSPs) Staff / Managers Between Managers Important role of management Training Reporting is an obligation – part of professional duty

Challenges Liability of ATC Lack of harmonization National frameworks Criminal liability Administrative sanctions Civil Liability Disciplinary sanctions

Challenges Trend in Europe: ATC and criminal proceedings Relatively recent trend Further to an accident: Linate case Überlingen case Mt-St-Odile case Further to an incident: Delta case

Challenges Increase of criminal proceedings - Why? Impact on reporting Basic principles have not changed Increase awareness of safety matters Not solely affecting aviation Impact on reporting “Vicious circle” Calls for Just Culture Less reporting More incidents/ accidents Increase in legal proceedings

Way Forward Potential Impact on ATM safety recognised: Incidents report are essential to ATM safety Need to ensure flow of information Need to provide environment supporting reporting (and address “fear” of reporting) Just Culture concept –supporting safety reporting in a culture that is “just” to all concerned

Way Forward To achieve this… Review and implement applicable legislative framework, structures and procedures National level International level However – focus not only on legal framework: Dialogue Justice / Safety Trust and Communication Training

Way Forward Aim for balance Respecting roles and responsibilities of each party Seek collaborative approach of all concerned Use best practices and experiences and Endorse and further develop Just Culture at international level Next ICAO Assembly