Contributor: Dr. Rudolf Pendl, Attorney at Law, Partner, PENDL MAIR Rechtsanwälte OG
1. Which authority is in charge of the civil aviation registry in Austria? Does Austria use a single-registry system or is there a dual-registry system in place?
The authority in charge of the civil aviation registry in Austria is Austro Control Österreichische Gesellschaft für Zivilluftfahrt mbH (“Austro Control”) having its seat in Vienna (www.austrocontrol.at).
It has a single-registry system.
2. Is the registry an operator registry or an owner registry (or both)?
It is an operator registry only.
3. What are the requirements and documentation to register an aircraft in Austria? Include references to formalities such as notarisation, legalization, etc.
The lessee has to apply for recording the aircraft in the Aircraft Register at the Austro Control. The consent of the owner of the aircraft is required. Furthermore, the following information and documents are required (Section 7 of the Austrian Civil Aircraft- and Aeronautical Equipment-Regulation – “Zivilluftfahrzeug- und Luftfahrgerät-Verordnung”):
- name and seat of the holder/operator;
- name and seat of the owner;
- documents showing the title of ownership (e.g., bill of sale, purchase agreement);
- documents showing that the holder/operator is located in an EU member state or such state equated by bilateral agreement (excerpt of the respective commercial register required);
- documents showing that the holder/operator is entitled to register the aircraft, in case the holder/operator is not the owner of the aircraft (declaration of owner that the power of making dispositions in respect to the aircraft was transferred to holder/operator within the framework of the lease contract);
- documents showing the name and the corporate seat of the manufacturer; in case of a foreign aircraft, and the name and seat of its agent/representatives in Austria, if any;
- documents showing the type of aircraft, manufacturer’s serial number;
- documents showing the customs clearance pursuant to the Austrian VAT Act in the case of an intracommunity acquisition of the aircraft. In case the request for registration is filed before the aircraft is brought into Austria, these documents have to be filed immediately after the importation of the aircraft;
- documents of the manufacturer showing that the aircraft was not registered before in any other country (attestation of non-registration), or documents of the last country of registration showing that the aircraft is not registered in that country anymore (confirmation of deregistration);
- documents showing that the aircraft complies with the Austrian Civil Aircraft Noise Permissibility Regulation.
In general, notarisation and legalization of the documents is not required, but original documents have to be submitted. It is recommendable to discuss this issue with the competent official at Austro Control. Sometimes, certain documents (e.g., regarding aircraft manufacturers) are already in the files of Austro Control and do not need to be submitted again.
There is no specific form required for the application for registration. However, certain sample forms can be obtained from the website of Austro Control.
4. What fees are payable to register an aircraft in Austria?
The fees for the registration of the aircraft in the Aircraft Register are dependent on the weight of the aircraft ranging from EUR 89 (aircraft up to 1.200 kg) to EUR 2.957 (aircraft with more than 20.000 kg).
The allocation of the registration mark triggers a fee of EUR 107.
Furthermore, the initial airworthiness certificate will trigger fees between EUR 177 and EUR 21.748. The following reviews of the airworthiness are between EUR 236 and EUR 7.564 (all fees are dependent on the weight of the aircraft).
5. Are there any weight and/or maximum age restrictions to register an aircraft in Austria?
There are no weight and age restrictions to register an aircraft in Austria.
6. Does registration of an aircraft in the national registry constitute proof of ownership under the laws of Austria?
The registration of an aircraft in the national registry does not constitute proof of ownership. As the registry at Austro Control is an operator registry, it only shows the holder and not the owner.
However, upon request of the owner or holder/operator of the aircraft, Austro Control issues a Confirmation confirming who has been disclosed to the authority as the owner (in the legal sense of ownership of property) of the aircraft.
Furthermore, the aircraft registration is prima facie evidence of legal ownership. With the request to register the aircraft the holder/operator of the aircraft must submit documents showing that he is entitled to be the holder/operator of the aircraft, e.g., pursuant to a lease agreement. However, in court proceedings, the lessor’s or holder’s/operator’s title should, in addition, be evidenced with the respective contracts and documents.
7. How is an aircraft title transfer effected in Austria? What are the formalities required to register such title transfer in the national registry of Austria (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
An aircraft title transfer is basically effected in Austria by a respective agreement (the valid title – “titulus”) and the physical delivery/transfer of the aircraft to the new owner (“modus”).
The title transfer has to be notified to Austro Control in order to be registered in the registry. Together with this formal application, a document evidencing the title transfer has to be submitted to the authority. Such document can be e.g., a bill of sale or a purchase agreement.
In general, notarisation and legalization of the documents is not required but original documents have to be submitted.
The costs for the change of the registration in the registry amount to half of the fees for the registration of the aircraft in the registry (see Article 4. above) and amount to a range between EUR 44,50 – EUR 1.478,50.
8. What information and details are reflected in the certificate of registration of an aircraft?
The following information is reflected on the Certificate of Registration:
- nationality and registration marks;
- manufacturer and manufacturer’s designation of aircraft;
- aircraft serial number;
- name and address of operator;
- registration number and kind of aircraft.
9. Are the entries in the aircraft registry of Austria made available to the public upon submission of a specific application to the competent authority? Are there any fees payable for this?
The entries on the Certificate of Registration are available to the public online. However, there is not information available for the public regarding the owner of the aircraft due to data protection reasons. However, upon request of the owner or holder/operator of aircraft Austro Control issues a Confirmation confirming who has been disclosed to the authority as owner (in the legal sense of ownership of property) of the aircraft. The fee payable are EUR 73.
10. What kind of aircraft operations can be conducted with aircraft registered in Austria (i.e., private use, commercial air transport or both)?
At Austro Control aircraft can be registered for conducting private and commercial aircraft operations, provided of course that all formal requirements are met.
11. Does the civil aviation authority in Austria authorise the operation of foreign registered aircraft? If so, with which countries has Austria entered into bilateral agreements on the basis of article 83-bis of the ICAO Chicago Convention for the delegation of regulatory oversight?
Austro Control authorizes the operation of foreign registered aircraft. Austria has entered into bilateral agreements on the basis of article 83-bis of the ICAO Chicago Convention for the delegation of regulatory oversight with Germany, Russia, Italy, Switzerland, Belgium, Spain and Denmark.
12. Is there a separate register of aircraft mortgages and/or leases and/or security interests in Austria?
The registry at Austro Control is an operator registry. Therefore, it is not possible to register aircraft mortgages and/or leases and/or security interests in Austria.
13. What are the formalities required to register a mortgage / lease / security interest in the national registry of Austria (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
Such registrations are not possible in Austria.
14. Is a mortgage priority notice an available security instrument for aircraft financiers in Austria?
In Austria, a mortgage on a moveable asset can only be established by means of an actual transfer of possession of the mortgaged property to the mortgagee. This is naturally not feasible in practice for aircraft. Under Austrian law, the instrument on the basis of retention of title is usually used. In such a case, the title remains with the lessor until final payment.
It is not very common in Austria, but in order to fulfil the requirement of delivery of the mortgaged aircraft to the mortgagee, the parties sometimes instruct the operator to hold possession of the aircraft for the exclusive benefit of, on the instruction of and on behalf of the collateral agent and not to hold possession of the aircraft on behalf of the owner.
In addition, it is required to mark the aircraft as being subject to an Austrian law pledge by affixing plates to the airframe (and ideally also to each engine) to create external visibility of the pledge.
15. Does an aircraft mortgage duly registered in the national registry of Austria extend to engines and other parts of such aircraft (either installed or not on the airframe)?
Such registrations are not possible in Austria. Furthermore, please note that there is no specific engine registry in Austria.
16. What statutory liens (if any) would rank prior to an aircraft mortgage duly registered in the national registry of Austria?
Such registrations are not possible in Austria.
17. Do the laws of Austria provide for possessory rights and/or rights of detention over aircraft in favor of third parties (such as airport taxes, customs duties, air navigation charges, crew’s wages, MRO’s receivables)?
Basically, the laws of Austria provide for the right of a creditor to retain an aircraft as security in respect of unpaid airport taxes, customs duties and air navigation charges or other unpaid debts caused by the respective aircraft (detention right) in favour of third parties.
The respective creditor has to obtain an enforceable judgement with which it may initiate enforcement proceedings. The Austrian Enforcement Act contains provisions according to which a judicial pledge of the aircraft may be obtained. However, since the use of e.g., airport facilities and airport services are matters of private law, an airport may refuse to provide services to operators in case they have outstanding airport charges.
Please note that the Austrian state will not seize an aircraft if there is not a suspicion of a criminal act for which the aircraft was used (e.g., smuggling of drugs into Austria).
18. Are foreign law-governed security agreements (e.g., mortgages) recognized in Austria in order to validly create a security interest over an aircraft registered in the national registry of Austria? If so, are there any formalities/requirements to bear in mind?
Foreign law-governed security agreements are basically recognized in Austria in order to validly create a security interest over an aircraft. A signed contract is required, but no legalization or notarization.
However, in regard to mortgages, the law of the state of the registration of the aircraft basically has to be applied, which might have different legal requirements to be effective (delivery of the mortgaged aircraft to the mortgagee).
19. Are foreign law-governed leases recognized in Austria in order to validly lease an aircraft registered in the national registry of Austria to a lessee incorporated in Austria? If so, are there any formalities/requirements to bear in mind?
Foreign law–governed leases are recognized in Austria in order to validly lease an aircraft registered in the national registry of Austria to a lessee incorporated in Austria. A signed contract is required, but no legalization or notarization.
20. Has Austria ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol? Has Austria made any declarations to better determine the scope of application of the Convention / Protocol in Austria? If so, what is the impact of such declarations on aircraft registration issues? Are there any specific aspects relating to the enforcement of IDERA’s to be considered?
Austria has not ratified the Cape Town Convention. Therefore, IDERA is not applicable in Austria. There are no specific aspects relating to the enforcement of IDERAs. However, please note that traditional deregistration powers of attorney suffice according to Austrian law and would be respected by Austro Control.
21. What are the requirements and documentation to deregister an aircraft from Austria? How does the aircraft deregistration process work?
The deregistration is basically applied for by the operator of the aircraft and the consent of the owner is required for the deregistration.
Together with the application for deregistration, the operator has to submit to Austro Control the written consent of the owner, the Certificate of Registration, the certificate of airworthiness, the periodic inspection certificate (if applicable), the qualification certificate (if applicable) and the noise certificate or noise exemption permit. Furthermore, the markings (license number), the sign and colours and the emblem of the Republic of Austria have to be removed from the aircraft.
22. What fees are payable to deregister an aircraft from Austria?
Deregistration fees are between EUR 53 (aircraft up to 1.200 kg) and EUR 1.419 (aircraft with more than 20.000 kg).
23. Is the consent of the mortgagee / lessor (as the case may be) required in order to deregister an aircraft from Austria?
If the operator files the application for deregistration, the written consent of the owner is required.
24. What are the usual practical difficulties (if any) involved in deregistering aircraft from Austria?
Deregistration works very smoothly at Austro Control. We do not foresee any difficulties provided that the deregistration application is filed with the complete required documentation to the authority.
25. How long does deregistration take, both where there is co-operation from the defaulted party (mortgagor / lessee / Operator) and where there is no such co-operation from it?
Deregistration can be effected very promptly provided that the required documentation is submitted to the authority.
The owner, as well as lessors or finance providers, usually request to obtain a power of attorney (POA) from the operator in order to be authorized to deregister or arrange other changes to the registration of the aircraft and to avoid non-cooperation by the operator regarding registration or deregistration. In this respect, the lease, the operating agreement or the finance agreement regularly contain specific provisions in this respect.
26. Please outline the applicable repossession rules under the national laws of Austria (and the Cape Town Convention, if applicable) following an event of default under a mortgage or a lease, including registration issues with the national registry in Austria.
In order to repossess an aircraft in the event of default, it would be required to obtain a respective court order. The use of self-help repossession is not possible in Austria.
The first instance procedure to repossess an aircraft may take between six months and one year.
The second instance procedure may take four to eight months. In such case, it would be advisable to obtain a preliminary decision first from the court enjoining the defendant from making any disposition in respect of the aircraft. Such preliminary decision can be obtained quickly and is immediately enforceable.
The costs for the proceedings would depend on the length of the proceedings. However, Austrian law provides for full reimbursement of law costs, including lawyers’ fees from the losing party to the winning party. Usually, 70% to 80% of the actual costs will therefore be adjudicated. The court fees depend on the amount of litigation, so it is impossible to give you an abstract estimate in advance.
In order to prevent the aircraft to be flown out of Austria, it is recommendable to request the court grant an interim injunction. The injunction can be obtained within some days.
The court will most likely require the applicant to put up a security for any damages the lessee may suffer as a result of the injunction. The security can be in cash or a signature bond with a surety; the form of the security is at the discretion of the judge.
In addition, a deregistration power of attorney deregistration of the aircraft can be applied for at Austro Control.