On 21 November 1995 the Council of the European Union adopted a Directive establishing the fundamental principles for investigation of civil aviation accidents and incidents (Directive 94/56/EG). This Directive replaces the former directive on cooperation and mutual assistance between Member States in respect of civil aviation accidents (Directive 80/1266/EEG). The new Directive is in line with Annex 13 of the 1994 Chicago Convention. However, it has a more binding character for Member States than the international standards and recommended practices of Annex 13.

The Directive distinguishes three types of events: accidents and serious incidents, which are always to be investigated, and other (minor) incidents, which can be investigated. The Directive contains definitions and examples of the above events, which may contribute to qualifying a certain event.

One of the objectives of the Directive is to effectuate a separation of the technical investigation (as to the "probable" cause of an accident or incident) and the judicial investigation. The Directive rules that the technical investigation does not intend to establish blame or liability. Safety recommendations of the investigating aeronautical authorities should, in addition, not create the presumption of blame or liability.

Pursuant to the Directive, the investigation report (containing safety recommendations) should be published and readily available so that every state or entity can benefit from the findings of the report. In addition, Member States must take necessary measures to ensure that the safety recommendations are duly taken into consideration and acted upon where appropriate. If a Member State fails to take the required measures, this may result in a cause for liability if accidents or incidents occur in the future which could have been prevented had the Member State involved complied with its obligations.

The investigating aeronautical authorities should be functionally independent of the national aviation authorities responsible for airworthiness, certification, flight operations, maintenance, licensing, ATC or airport operations and - more generally - of all parties whose interest may be in conflict with the task entrusted to the investigating body.

The European Council recognized that it is not always feasible for - especially smaller - Member States to set up and maintain a large permanent aeronautical investigating body. Therefore the Directive rules that Member States are obligated to cooperate and render mutual assistance if and when needed.

Member States are required to implement the Directive in their respective national administrative and legislative regulations prior to 21 November 1996.

Onno Rijsdijk, De Brauw Blackstone Westbroek, Amsterdam

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