Commission battles Berlin in aftermath of Germanwings crash

Officials fear that Germany will not amend its national law in accordance with EU air safety rules. [Martina Makosch]

EU laws on air safety, in particular, rules affecting health checks for pilots, came under the spotlight after a Germanwings flight crashed on 24 March in the French Alps, killing 150 people.

Despite the tragedy, Germany is reluctant to change national laws which protect pilots’ medical records. In response, the European Commission is expected to step up its procedure against Berlin by the end of the year, and could bring the case to the EU judges, EURACTIV has learned.

Germany has not fully implemented various EU regulations (748/2012, 1321/2014, 1178/2011), specifically the rules for issuing pilot licenses. EU officials considered that the existing EU data protection regulation ensures that member states have to strike the “appropriate balance” between patient confidentiality and the protection of public safety. However, German law prioritises the data protection of pilots’ information over the general interest of the passengers, reflecting the strong culture of data privacy embedded in Germany.

Therefore, the Commission is not only concerned about the lack of implementation, but the overall philosophy behind the German regulation. Moreover, German authorities usually turn a deaf ear to the recommendations made by the European Air Safety Agency. 

“The Germanwings accident should have had consequences, and things should not be as ‘business as usual,’” an EU official commented, on condition of anonymity.

Following the crash, it was revealed that 27-year-old co-pilot Andreas Lubitz stopped his pilot training due to a period of severe depression. Lubitz barricaded himself inside the cockpit when the pilot went to the toilet and crashed the plane flying from Barcelona to Dusseldorf. 

>>Read: EU to challenge Germany over pilot licensing after Germanwings crash

According to EU law, when there is a problem with the medical record of a pilot, a doctor cannot authorise the license, and it the dossier should be transferred to national authorities. However, the German rules allow only for a partial transfer of the information, which creates “safety concerns” without full access to the medical record, experts explained. This not only goes against EU law, but also the Chicago convention of the International Civil Aviation Organisation. 

In September, the executive sent a letter of formal notice to the German government, the first step in an infringement procedure. The Commission detected deficiencies in Germany’s system back in October 2014. But, due to the Germanwings crash, Brussels decided to keep a low profile during the first half of the year. Since Berlin has not fully adopted the EU law, the Commission has decided to take action against the German authorities.

By the end of this year, the European Commission is expected to take the dossier to the next level and issue a reasoned opinion, which will give two months before the case ends up in the Court of Justice. Although the German government has requested some time to adapt its national regulation, officials fear that no action will be taken due to the limited time left, Germany’s strong position on data protection, and the role played by well organised and influential Lufthansa pilots.

Officials recognised that the decision will not be technical, but highly political.

A German official declined to comment on the infringement procedure.

>>Read: New EU air safety measures could follow Germanwings tragedy

Berlin’s reluctance to share the medical records of German pilots complicates the adoption of the key recommendations made by the EASA to avoid new tragedies like the Germanwings accident. In a report published on 7 October, the agency called on national authorities to ensure an appropriate balance between patient confidentiality and the protection of public safety. Moreover, the EASA recommended the creation of a European aeromedical data repository as a first step towards the sharing of medical information affecting pilots.

In order to reach this balance, the EASA passed the ‘hot potato’ to the “discretion of the Commission”. However, the EASA proposed discussing the processing of health data during an Aircrew Medical Fitness workshop scheduled to take place before the end of this year, and involving representatives of national medical associations. The report stressed that the notification obligations of various actors should be addressed: operators, medical doctors, authorities and pilots.

A lack of appetite on the German side to progress on air safety regulations came amid the unfolding Volkswagen scandal, one of the country’s leading brands. Despite the huge impact of this case worldwide, Germany is leading a group of member states in favour of postponing the implementation of stricter rules to limit emissions from diesel vehicles.

These two issues, and some other dossiers in the pipeline, have provoked a debate at the highest level in the executive on whether a tougher approach is needed toward Germany, EU sources said. The European Commission is also expected to launch a procedure on Germany’s minimum wage and road toll by December.

The recommendations put forward by EASA’s task force are:

  • The 2-persons-in-the-cockpit recommendation is maintained. Its benefits should be evaluated after one year. Operators should introduce appropriate supplemental measures including training for crew to ensure any associated risks are mitigated.
  • All airline pilots should undergo psychological evaluation as part of training or before entering service. The airline shall verify that a satisfactory evaluation has been carried out. The psychological part of the initial and recurrent aeromedical assessment and the related training for aero-medical examiners should be strengthened. EASA will prepare guidance material for this purpose.
  • A mandatory drugs and alcohol testing as part of a random programme of testing by the operator and at least in the following cases: initial Class 1 medical assessment or when employed by an airline, post-incident/accident, with due cause, and as part of follow-up after apositive test result.
  • The establishment of robust oversight programme over theperformance of aero-medical examiners including the practical application of their knowledge. In addition, national authorities should strengthen the psychological and communication aspects of aero-medical examiners training and practice
  • The implementation of pilot support and reporting systems, linked to the employer Safety Management System within the framework of a non-punitive work environment and without compromising Just Culture principles. Requirements should be adapted to different organisation sizes and maturity levels, and provide provisions that take into account the range of work arrangements and contract types.
  • 2 December: The European Commission will present its aviation strategy, which will primarily focus on the commercial side of the airlines.
  • End 2015: An Aircrew Medical Fitness workshop will discuss the implementation of new measures.
  • First Quarter of 2016: The EASA will consider publishing operational directives for air operations and aircrew to address specific safety issues.

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