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For Better Legal Protection Against Pilot Fatigue

For Better Legal Protection Against Pilot Fatigue

Why Flight Time Limitations?

Flight and Duty Time Limitations (FTL) aim at ensuring that pilot fatigue does not endanger flight safety, i.e. the lives of passengers, crews and the general public underneath the flight paths.

Since the 1944 Chicago Convention, it has been recognised that pilot fatigue (due to long duty hours, insufficient rest/sleep opportunities etc.) can pose a risk to the safety of air operations. This risk needs to be controlled by the means of Flight Time Limitations (FTL) [1].

[1]1944 Chicago Convention (Annex 6, 9.6.) "The State of the Operator shall establish regulations specifying the limitations applicable to the flight time and flight duty periods for flight crew members. These regulations shall also make provision for adequate rest periods and shall be such as to ensure that fatigue occurring either in a flight or successive flights or accumulated over a period of time due to these and other tasks, does not endanger the safety of a flight."

What Are the Rules in Europe?

Despite their importance for aviation safety, European flight time rules did not exist until very recently. It is only since July 2008, that EU Member States must respect the new "EU-OPS" Regulation's Subpart Q (in Annex III) that regulates Flight Time Limitations (FTL) for air crew.

With this EU-OPS Subpart Q, the EU introduced, for the first time in history, a harmonized, legally binding minimum set of FTL safety rules aimed at preventing pilot fatigue across Europe. While individual EU countries can apply stricter FTL rules at national level, they are not allowed to go below the minimum set by EU-OPS, unless they apply for a specific derogation.

In addition to the legal requirements, Collective Labour Agreements (CLAs) at company level often provide for FTL rules, specifically tailored to the conditions of that company. These CLA rules cannot set lower safety levels than EU-OPS, and in most cases they actually provide for more advanced FTL provisions than the national laws or EU-OPS. Thet therefore provide for higher safety levels than required by law.

While setting a minimum safety level, Subpart Q is by no means ideal. Its main weakness is that it has never been subject to a scientific and medical evaluation. Hence, Subpart Q's provisions are not based on sound scientific evidence as to their ability to prevent pilot fatigue. This weakness must be urgently addressed to ensure passengers can enjoy highest, scientifically supported safety levels when boarding a European airplane.

Also, Subpart Q does not cover key FTL aspects that are crucial for flight safety, such as "split duty", augmented crew, some forms of standby, etc. These areas are currently left to the national legislator, leading to different national legal provisions across Europe.

For a summary of Subpart Q see: link to ECA "Quick Reference Guide to FTL"

Links to the legal FTL requirements in your language (search for Annex III, then for Subpart Q):


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National Implementation

Despite having had 18 months to prepare for the introduction of the new EU-OPS FTL rules (Subpart Q), many EU Member States - and a large number of their airlines - missed the deadline of 16 July, and many airlines struggled to meet the new FTL requirements on time. Some countries, like the Netherlands or Denmark requested formal temporary exemptions to ensure their operators are not infringing EU law, while other Member States simply did not check on their operators. However, by mid-2009, most Member States seem to be compliant with the new EU-OPS rules on FTL.

At the same time, several EU Member States took the risk of endangering flight safety by replacing their previously higher national safety standards by the lower EU-OPS minimum. This goes against the objective of the Regulation and the "non-regression" principle, which aim at higher safety standards, not lower ones.

For example, Sweden, Norway and Denmark, chose to replace their state-of-the-art "FTL Points System" by EU-OPS Subpart Q, and did so without consulting their national pilot associations. ECA pilot safety experts from these countries consider that on several accounts, the new EU-OPS based Scandinavian FTL rules provide for less safety protection that the previous Points System.

On the other side there is also best practice. For example, the United Kingdom, which has the most advanced state-of-the-art FTL scheme in Europe, "CAP 371". The UK chose to respect the EU-OPS Regulation's "non-regression" clause, i.e. not to use EU-OPS as a pretext to "regress" on safety levels[1]. Instead, it maintains its CAP 371-based safety levels, and had involved all stakeholders in this decision.

Another positive example is Spain where the national authorities set up a formal working group - involving all aviation stakeholders - to prepare and upgrade their out-dated FTL legislation. They used EU-OPS as a basis, improving it in many areas through national legislation, firmly establishing the principle of non-regression. Thereby the national safety standards override EU-OPS wherever they provide for a higher safety level. The formal publication of the Spanish decree is still awaited, but the principle is already applied for the actual operations.

In most Member States, safety levels are expected to remain more or less the same or to increase with the transposition of EU-OPS into national law. This is the overall result of an ECA poll among its national Member Associations. However, the intransparent process and risk of safety regression in a number of EU countries give raise for concern.

Results of ECA Poll on EU-OPS Implementation

  • Safety versus safety regression in Europe
  • Transparency versus Secrecy

Another trend is the gradual downgrading of safety levels within the framework of Collective Labour Agreements (CLAs) at company level. In many countries, CLAs provide for more advanced FTL provisions than the national laws or EU-OPS. Increasing competitive pressure, combined with the existence of an EU-wide FTL standard which is below most CLAs, encourages many companies to dismantle the more protective CLA provisions and to move towards the lower EU minimum. If this trend continues in future, aviation safety levels risk to suffer.

Fatigue in Accidents

It has long been established that pilot fatigue can present a risk to flight safety - a risk that needs to be managed at company, national and European level (see also "Proof that Fatigue Kills").

Safety experts reckon that, pilot fatigue contributes to 15-20% of fatal aviation accidents caused by human error. They also establish an increased probability of a human factor accident the longer pilots are on duty, especially for duty periods of 13 hours and above (see following statements):

"It is estimated (e.g. by the NTSB) that fatigue contributes to 20-30% of transport accidents (i.e. air, sea, road, rail). Since, in commercial aviation operations, about 70% of fatal accidents are related to human error, it can be assumed that the risk of the fatigue of the operating crew contributes about 15-20% to the overall accident rate. The same view of fatigue as a major risk factor is shared by leading scientists in the area, as documented in several consensus statements." See Akerstedt, T., Mollard, R., Samel, A., Simons, M., Spencer, M. The role of EU FTL legislation in reducing cumulative fatigue in civil aviation.

"For 10-12 hours of duty time the proportion of accident pilots with this length of duty period is 1.7 times as large as for all pilots. For pilots with 13 or more hours of duty, the proportion of accident pilot duty periods is over five and a half times as high. [...] 20% of human factor accidents occurred to pilots who had been on duty for 10 or more hours, but only 10% of pilot duty hours occurred during that time. Similarly, 5% of human factor accidents occurred to pilots who had been on duty for 13 or more hours, where only 1% of pilot duty hours occur during that time. There is a discernible pattern of increased probability of an accident the greater the hours of duty time for pilots." See Goode, J. H. Are pilots at risk of accidents due to fatigue?. Federal Aviation Administration, Office of Aviation Policy and Plans, Washington, DC 20591, USA, March 2003.

The most recent example of how pilot fatigue can pose concrete risks to the safety of passengers and flight crew is the serious incident that took place in Iceland (Keflavik airport), where a fatigued crew made a number of errors during landing, with the aircraft ending up beside the runway. See next subsection.

See also accident press articles: YAK 42 | Flight International

Serious Fatigue-related Incident at Keflavik (Iceland), Oct. 2007

One of the most recent examples of accidents/incidents where pilot fatigue has shown to play a prominent role is the serious incident at Keflavic airport (Iceland). Published on 29 Jan. 2009, the Investigation Report identifies pilot fatigue and inadequate in-flight rest facilities as key factors contributing to this incident.

It happened when 188 passengers were on board, after a flight duty period of 17:20 hours and at a time when the pilots' "body clock" was programmed for sleep (at 01:55 in the morning) and when they had been without "restorative sleep" for more than 19 hours.

The Investigation Report makes several safety recommendations addressed to the EU Institutions. All of them focus on ways to better prevent pilot fatigue, among other calling for EU legislation to take into consideration "scientific recent research, scientific evidence, and current industry experience".

Read more details on this safety incident.

Read a copy of the Investigation Report.

Do You Want Your Pilot to Fall Asleep?

Would you want your taxi driver be DRUNK while you are in his car? No? Why would you then accept your pilot be "drunk" from FATIGUE while you are on board? FATIGUE stemming from long flight/duty hours or insufficient sleep reduces alertness as much as alcohol does for car drivers. For more info, see ... [1]

[1]"Our results underscore the fact that relatively moderate levels of fatigue impair performance to an extent equivalent to or greater than is currently acceptable for alcohol intoxication." Drew, Dawson, Kathryn, Reid, Fatigue, Alcohol and Performance Impairment, in: Nature, Volume 388, July-August 1997.

FTL Calculator

Why Do We Need Science?

For a long time, fatigue and its impact on transport safety has been subject to research. A wide body of aviation- and flight time-related scientific evidence is available (see list below) identifying pilot fatigue as a risk factor in flight safety, and showing the need for effective Flight Time Limitations (FTL) to reduce this risk. (see list of scientific publications).

Despite this, EU legislation (EU-OPS Regulation, "Subpart Q") setting Flight Time Limitations (FTL) for pilots, has never been subject to a scientific and medical evaluation. Instead, it is the result of a political compromise during the legislative process that resulted in today's Subpart Q. Hence, Europe's current legislation is not based on sound scientific evidence as to its ability to prevent pilot fatigue.

This lack of scientific basis, must be urgently addressed to ensure passengers can enjoy highest, scientifically supported safety levels when boarding European airplanes.

This lack of scientific basis is also why European pilots insisted - during the legislative process - that a medical and scientific evaluation of Subpart Q is carried out, within 2 years after entry into force of the EU-OPS Regulation. As a result, EU-OPS mandated the

  • European Aviation Safety Agency (EASA) to carry out such an evaluation by 16 January 2009;
  • European Commission to "draw up and submit [legislative] proposals without delay to amend the relevant technical provisions" of Subpart Q on the basis of this scientific evaluation, should the latter show that FTL rules need to be amended.

EASA's Scientific FTL Study

To fulfill the EU-OPS Regulation's requirement to carry out a scientific and medical evaluation of Subpart Q's FTL provisions, in late 2006 EASA set up an Advisory Group bringing together all relevant aviation stakeholders. In this framework, airline and aviation staff experts were consulted on the drafting of the EASA tender document, on its selection criteria [1], the project's working methodology and the specific questions that were to be submitted to the scientists[2].

After this stakeholder consultation, EASA launched a tender (EASA.2007.OP.08). The tender resulted in a Swiss consultancy being chosen which had put together a panel of renowned European scientists. The draft final report by Moebus Aviation was presented to the Agency and stakeholders in late Sept. 2008 and discussed in the Advisory Group in early Nov. 2008.

[1]These criteria were "to guarantee a high level of knowledge, competence and independence, so that their conclusions can provide for a strong scientific basis for regulating flight time limitations and rest periods in an objective way" (quote from the EASA tender).

[2]EASA chose to focus the study on "the points of disagreement between the main parties affected by FTL regulations and to seek the opinion of a panel of independent experts on the right way to address these points" (quote from the EASA Tender).

Scientific Study Results

On 22 January 2009, EASA officially published the results of the scientific study. As expected, the study identifies a number of legal provisions in Subpart Q that need improvement to ensure adequate levels of flight safety (details see below). Having identified a number of factors that increase pilot fatigue - thereby potentially reducing flight safety - the study states that "some of the present [EU-OPS] rules or proposed modifications of rules are in violation with one or more of these factors."

The study points out "problems" e.g. in the area of a large number of pilots' duty hours in a short time, long duty hours, night duty, early starts of duty, time-zone crossing, and standby duty. Based on their assessment, the scientists conclude, e.g. that:

  • The currently allowed maximum daily flight duty period of 13-14 hours "exceeds reasonable limits" and is "not in keeping with the body of scientific evidence"; it should therefore be reduced;
  • The currently allowed maximum of 11:45 hours night duty should be reduced to 10 hours, because of the particularly fatiguing nature of work at night;
  • The currently allowed practice of 3 consecutive 60-hour weeks (i.e. 180 duty hours in 21 days) needs to be changed by setting an additional limit of 100 duty hours within 14 consecutive days (i.e. an average of 50 hours/week, instead of 60);
  • The currently allowed practice of "advancing" the end of the pilots' weekly rest - which allows a start of duty as early as 04:00 in the morning - is "unacceptable" as "it would result in aircrew starting their week [...] in a fatigued state"; hence this practice should not be allowed;
  • Stand-by at the airport is as fatiguing as flight duty, and should therefore not be considered as "rest" but normally "count 100% as flight duty when calculating the maximum flight duty period.

Click here for the Moebus Aviation FTL Study - Full Report

Click here for a summary of the study's main findings

EASA Explanatory Note

What to Do with the Results?

While Moebus Aviation's panel of experts was able to find consensus on all points, EASA considers the study's findings and recommendations to fall into different categories of "scientific robustness". Some are based on very sound scientific evidence, others are based on evidence that is not sufficiently sound in all aspects, and other findings show a need for further research.

Particularly the recommendations falling into the first category demonstrate a clear need for the European legislator to amend several aspects of Subpart Q. In line with the EU-OPS Regulation's mandate, these amendments should be done "without delay", to ensure passengers can rely on highest, scientifically supported safety rules in Europe.

ECA considers the OPS NPA process which was launched in late January 2009 to be the adequate platform to integrate the study's recommendations into future EU law. Regrettably, EASA decided against that and chose a different way forward (see chapter on "EASA's Future FTL Rules").

EASA's Future FTL Rules

To ensure that passengers can rely on "the highest common standards of safety", the European Aviation Safety Agency (EASA), has started to draft future FTL "Implementing Rules" and "Certification Specifications". These will eventually replace Subpart Q by April 2012, at the latest.

When drafting these FTL rules, EASA must comply with the requirements of Regulation 216/2008, Art. 22 which states that: "Initially, the implementing rules shall include all substantive provisions of Subpart Q [...], taking into account the latest scientific and technical evidence".

This means two things:

  • EASA's future FTL rules must reflect the findings of the Moebus study, which constitutes "the latest scientific and technical evidence" available;
  • All substantive provisions of Subpart Q must be fully reflected in EASA's legally binding Implementing Rules. Moving large parts of the - legally binding - Subpart Q into legally non-binding EASA Certification Specifications would be against Reg. 216/2008. Europe needs a basic, legally binding framework for pilot fatigue rules, rather than a collection of legally non-binding provisions that EU Member States can chose to replace by other rules.

EASA's new draft rules for FTL are part of a wider package which was published - as Notices of Proposed Amendment (NPA) - on 30 January 2009, containing draft Implementing Rules and Certification Specifications for "OPS", "Management Systems" and "Authority Requirements". Aviation stakeholders had until 31 July to comment. The final text is expected to be proposed to the European Commission in 2010/11, for final adoption through "Comitology" in 2011, and EU-wide application by April 2012, at the latest (probably accompanied by a 1-2 year transitional period for implementation at national level).

Regrettably, EASA chose to disregard the scientific study's results in its OPS-NPA (2009-2c). It did so despite having had 4 months (since late Sept. 2008) to assess the study and to take it into account for the NPA. Instead, in January '09, the Agency announced the opening of a separate EASA rule-making process (OPS.055) to deal with the study's results, however without indicating a start-date. Until now, EASA has shown no activity in this respect; no new rule-making task has been opened.

It was only on 21. Sept. 2009 – i.e. 1 year after the Moebus Report was available – that EASA convened a stakeholder meeting to hold "preliminary discussions on possible options that could be envisaged." This meeting showed deep disagreements about the way to move forward. Whereas pilot and cabin crew representatives stressed the need for science-based FTL rules, in line with EU and ICAO legal obligations, the airline representatives stated that new fatigue rules are not a priority. They announced that they reject anything that would change today's fatigue rules – except if it resulted in more flexibility.

Against this background, EASA's rule-making work on future pilot fatigue rules is unlikely to make quick progress, and there is doubt that new science-based FTL rules will be ready for April 2012.

After intensive stakeholder consultations, the Terms of Reference of the OPS.055 rulemaking task’s are expected to be published towards the end of November. A kick-off meeting is to take place in early December, followed by monthly meetings between January and June 2010, resulting – if things go according to plan – in an EASA proposal by July 2010.

Pilot Fatigue: Scientific Studies

What Do the Airlines Say?

"The report is a study of fatigue - not of flight safety. Therefore, it is not worth the paper it is written on, and if the politicians recognize its conclusions, they are incompetent" says [AEA] general manager Vincent De Vroej.

(translation from an article in the Danish daily newspaper EPN, Erhverv På Nettet, on 6 Jan. 2009.)

"Latest study is based on flawed science [...]. The report makes little attempt to provide safety evidence to justify its recommendations [...]. It appears to be a hurriedly undertaken study which disregards the decades of experience [...]"

(quote from ERA Press Release, 22 Jan. 2009.)

"The report [...] employs a flawed methodology, is seriously lacking in substantive scientific and medical content, and arrives at conclusions which are oblivious to the evidence of decades of safe operation," [...] "The EASA report is wholly unconvincing in this respect"

(quote from AEA Press Release, 22 Jan. 2009.)

Right from the beginning the Association of European Airlines (AEA) rejected the idea of a scientific and medical study, as proposed by EASA and required by EU law. Consequently, even before the official publication, AEA started a campaign to discredit the study, the scientists and their findings, and putting pressure on EASA to withdraw its support from the study.

An AEA position paper (Nov. 2008) alleges that:

  • the study "lacks any scientific credibility" and "includes a lot of emotional statements cherry picking references to previous studies";
  • the group of scientists "lacks expertise on flight operations and aviation safety" and "is very much linked with the hidden agenda's of the trade unions";
  • the study's recommendations would "likely add more than 1 Billion Euro to the AEA member crew cost" and " will result in business shifting to non-EU airlines".

Click here to visit the Association of European Airlines (AEA) website.

ECA deplores AEA's unconstructive attitude, allegations, and pressure on EASA to disregard the study and refrain from proposing changes to Europe's FTL rules - an approach that has since been taken up by the other major European airline associations IACA (charter airlines), ERAA (regional airlines), and EFLAA (low cost airlines). At an EASA meeting in Sept. 2009, all four associations rejected any revision of EU pilot fatigue rules in line with the scientific evidence. Revising fatigue rules was declared "not a priority".

The airlines choose to question the study's independence and methodology, because the findings confirm many of the long-held safety concerns of pilot associations and - crucially - because they would entail costs to the airlines. When EASA awarded the study to Moebus Aviation, it was bound to strict selection criteria to "guarantee a high level of knowledge, competence and independence" of the scientists. It is reasonable to assume that the Agency respected its own internal rules. On the other hand, it seems that the airlines are more concerned about costs that about the need to provide their passengers with an EU legislation that properly protects them against any fatigue-related safety risks.

Current Rules Insufficient

EASA's recently published scientific and medical evaluation of Subpart Q FTL provisions clearly demonstrates a need to review and amend Europe's FTL rules. The scientific study carried out for EASA by Moebus Aviation recommends a number of concrete legislative changes to address the risk that pilot fatigue poses a risk to flight safety.

This study confirms ECA long-held concerns that current FTL legislation does not set safety standards at an adequate, scientifically backed level, and that legislative changes are urgently needed.

Passengers' Rights

The most fundamental right of airline passengers it to have a safe flight.

If scientific evidence shows that current EU safety legislation is not set at the highest, scientifically supported levels, passenger have the right to get this legislation changed. When boarding a European airplane, passengers must be able to trust in the European legislator that they are protected by adequate safety legislation that does not ignore scientific evidence. SAFETY MUST COME FIRST!

Legal Obligation to Change

EU-OPS Regulation 1899/2006 obliges the European Institutions to change the current FTL legislation if EASA's scientific study/evaluation shows that this legislation is insufficient to adequately protect against pilot fatigue from posing a safety risk.

Art. 8a calls upon EASA to "assist the Commission in the preparation of proposals for the modification of [...] Subpart Q". As specified in a related recital, the Commission is to "draw up and submit proposals without delay to amend the relevant technical provisions" of Subpart Q" and to do so "on the basis of the results of this evaluation".

In addition, in early March 2009, the International Civil Aviation Organisation (ICAO) adopted unanimously changes to the ICAO Annex 6, which require that FTL rules are "based upon scientific principles and knowledge, where available". This new Annex 6 became applicable on 19 November 2009, binding all ICAO Member States - including the EU Member States (see Press Release).

Pilots' Position

Representing 38,200 professional pilots from 36 European countries, ECA has been a long-standing supporter of harmonised Flight Time Limitations across the EU. Harmonisation at the highest, scientifically derived safety level is needed to keep European aviation safe and to help create an EU-wide level playing field.

Now that the need for changes to Europe's FTL rules has been scientifically demonstrated, ECA insists that the FTL rules of Subpart Q are amended as soon as possible.

ECA calls upon the Commission to table legislative proposals - without delay - for changing Subpart Q, based on the findings of the scientific study and EASA's evaluation.

ECA also insists that the legal requirements of Reg. 216/2008 Art. 22(2) are complied with. It explicitly requires EASA's FTL-related Implementing Rules to be developed "taking into account the latest scientific and technical evidence."

ECA therefore calls upon the Agency to take into account the study's findings in the FTL-related Implementing Rules and Certification Specifications that are part of the EASA Notices of Proposed Amendments (NPA) on Air Operations (NPA 2009-2c).

For flight safety, it is indispensable that both Subpart Q and the first generation of EASA FTL rules are based on scientific and medical evidence. Any delays in achieving this safety objective would not be acceptable.

See exchange of letters between ECA and EASA

ECA Press Releases (English)

ECA Press Releases (Other Languages)

Other Pilot Association Press Releases

America Acts on Pilot Fatigue

On 15 July, the US Aviation Authorities kick-started a special Aviation Rulemaking Committee (ARC) to overhaul US flight time limitations. The ARC's was to "develop recommendations for rulemaking on flight time limitations, duty period limits and rest requirements for pilots", and to present them by 1 Sept. 2009. This is what they did, and the US Federal Aviation Authority (FAA) will issue a proposal for new science-based FTL rules by the end of 2009, followed by a formal stakeholder consultation. The aim is to have the new rules adopted and in place by the end of 2010.

This bold move comes after pilot fatigue was identified as a key factor that contributed to the Colgan Air crash near Buffalo, which killed 50 people on 12 Feb. 2009. Since 1990, pilot fatigue has been on the "Most Wanted List" of the US National Transport Safety Board (NTSB).

To achieve its aim, the ARC is to consider, inter alia:

  • "Current fatigue science and information on fatigue", incl. the UK Civil Aviation Publication (CAP) 371;
  • "Current approaches to address fatigue in international standards", e.g. ICAO standards;
  • "Incorporation of fatigue risk management systems."

This ambitious US initiative is in stark contrast to the European Union, where the EU Institutions so far shied away from acting upon the conclusions from its own scientific study that recommends an improvement of the EU's current EU pilot fatigue rules. In July 2009, ECA called on EU Transport Commissioner, Antonio Tajani, to muster the political will and show the same leadership on combating pilot fatigue, as his US counterparts are showing. So far, Mr Tajani has failed to do so.

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