By Michael Hübner and Juliëtte Fredriksz
Exactly two years ago, March 24th 2015, flight 4U9525 took off from Barcelona airport, on its way to Düsseldorf. The first 44 minutes of the flight passed without any irregularities. Whilst flying above the French Alps, however, the Germanwings’ aircraft began an unexplained descent. The airbus eventually crashed into a mountain hillside, leaving all 150 passengers dead. After the incident, various news sites reported that the incident was caused by the co-pilot, who had shut the first pilot out of the cockpit and deliberately crashed the aircraft. It was later revealed that the co-pilot had a history of mental illness, which was known by the aeromedical centre that declared him fit for service. Apart from a reopened debate on the confidentiality relationship between patients and doctors in a case like the Germanwings-crash, this last fact has also started discussion about the national and European supervision that is executed on those aeromedical centres. What is the role of these supervisors regarding the Germanwings-incident, and in what ways could they be held accountable for this?
System of supervision and enforcement
Civil aviation safety in Europe is part of a very complex system, that is subject to a multitude of European, national and international rules. Shortly put, the European Union oversees and enforces the European rules assisted by their specialized agency – the European Aviation Safety Agency (EASA) – and the support of the national aviation authorities (NAA’s). Together with the European Commission, both levels of supervisors work closely together to ensure compliance with the European aviation rules.
EASA was set up in 2002, as a successor of the Member-State controlled supervisor JAA. With the establishment of the agency, more tasks in regards to civil aviation safety moved to the European level. To ensure the uniform application of the rules, and to create a level playing field in the European aviation market, Regulation 216/2008 now confers various regulatory and executive tasks upon EASA. These tasks involve amongst others the drafting of implementing rules, the certification of products and organizations, the oversight and support to Member States in the relevant areas and research to improve aviation safety. Apart from this, EASA also supervises the monitoring of the rules by the NAA’s, as a way of indirect enforcement.
The relevant NAA in the Germanwings-case is the German Luftfahrt-Bundesamt (LBA), which has been delegated nation-wide tasks of licensing and supervising the aviation industry by the German Federal Ministry of Transport and Digital Industry. The LBA – like other NAA’s – also supports EASA in executing certain inspections on its territory, since EASA does not have the resources to perform these inspections on its own.
On another level, such a lack of resources turned out to be more of a problem. The transferring of competences from Member State-level to EU-level might have had a negative effect on the institutional set-up of a national aviation authority like the LBA. After the Germanwings-crash it came to light that the LBA had been under investigation by EASA for years, in relation to a lack of resources that led to the NAA performing substandard. In 2005 an ICAO audit already concluded that the LBA was understaffed, which was confirmed by an EASA-audit in 2011. The response of the Commission on this was that the LBA would solve its staff problems, though not before 2012. However, in a safety report from EASA in 2014 the same problems were brought to light again. Although the final report on the Germanwings-crash by the French Civil Aviation Safety Investigation Authority (BEA) stated that the authorities could not have prevented the crash, had they been in possession of the medical files of the co-pilot, the fact remains that the supervision of EASA on NAA’s does not seem to be as effective.
What could EASA do after their audits of the LBA? The Regulation provides for the agency to report to the Commission of their findings. The asking by EASA for the imposing of a fine or periodic payment by the Commission for infringements of the rules is, however, limited to persons or undertakings to which EASA has given a certification. This means that except from recommendations and informal conversations with the underperforming national authority, actual sanctions on these authorities can only come from the Commission. What EASA is able to do, namely conduct informal coercion on the German aviation authority appears not to be sufficient to force the NAA to comply with the rules, since the German aviation authority has been performing substandard for a number of years now.
After the Germanwings-crash, EASA has issued out new recommendations regarding requirements on the monitoring and assessment of the medical health of aircraft-staff. However, with the previous mentioned results of the report on the enforcement by national aviation authorities in mind, it will be decisive whether the national aviation authorities will actually be able – and willing – to enforce these rules. It seems that the indirect enforcement powers of EASA are useless without the role of the Commission herein. In regards to the Germanwings-crash, we see however that the role of the Commission cannot be forced by EASA.
Even the short period of time the LBA was put on the so-called ‘blacklist’ by the European Commission in 2011 did not improve the conditions. Without a specific instrument to pressure the Commission into starting an infringement procedure against Germany, the indirect enforcement by EASA should be strengthened in other ways.
Who can be held accountable?
To return to the rather controversial title of this blog-post, it is unlikely that EASA is guilty of the Germanwings-crash. The same goes for the LBA, although the unfortunate event has however laid open a serious deficit in regards to the organization of the German NAA and the European supervision on national aviation authorities. Especially taken into account the period of time in which the LBA seems to have performed substandard, for this deficit all three actors should be blamed. There are, however, already some solutions proposed for this lack of enforcement by EASA, such as the expansion of the competences of EASA to sanctioning powers, or the temporary take-over of supervision by EASA. As could be expected from the very short mentioning of these solutions, there are various legal and political hurdles to be taken before these might be adopted. The realistic expectancies of these developments coming into practice will therefore be discussed in our upcoming blog-post “Keeping European aviation safe: a necessary expansion of EASA competences?”.