Contributor: Uli Steppler and Christine Kranich
1. Which authority is in charge of the civil aviation registry in Germany? Does Germany use a single-registry system or is there a dual-registry system in place?
The Federal Aviation Authority (Luftfahrt-Bundesamt, or abbreviated LBA) is in charge of civil aircraft registry (Luftfahrzeugrolle). The LBA was established in 1954 and is located in Braunschweig as the supreme authority in civil aviation and, as such, is directly subordinated to the Federal Ministry of Transport and Digital Infrastructure (Bundesministerium für Verkehr und digitale Infrastruktur).
There is a separate register for aircraft mortgages located at the local court in Braunschweig.
2. Is the registry an operator registry or an owner registry (or both)?
Germany has an owner aircraft registry. However, if the operator is different from the owner, the operator is registered as well. Moreover, if the owner is not an “EU person” the aircraft needs to have an operator from an EU country, and in such case, the operator will be mentioned on the backside of the Certificate of Registration.
3. What are the requirements and documentation to register an aircraft in Germany? Include references to formalities such as notarisation, legalization, etc.
To register an aircraft in Germany the owner has to submit the following documents to the LBA (originals unless otherwise stated):
- completed and signed application form;
- power of attorney (POA) if a third party submits the documents for the owner;
- commercial register extract or company printout, or some other form of evidence of its corporate existence and registered address;
- section 3 Air Traffic Act declaration;
- declaration of German process agent for all communication between the aircraft owner and the LBA if the owner does not have its registered address in Germany;
- bill of sale (notarised and apostilled – if required – copy sufficient);
- lease agreement if the owner is not the operator (copy is sufficient); certificate of cancellation from previous registry or non-registration certificate;
- export certificate of airworthiness or airworthiness review certificate from previous State of registration (to obtain a certificate of airworthiness from the LBA);
- confirmation of insurance;
- CAMO and maintenance programme for the aircraft approved by the LBA; and
- customs certificate in case of import from a non-EU State.
4. What fees are payable to register an aircraft in Germany?
The registration fees are determined by the German Expenses Directive of Aviation Administration (Kostenverordnung der Luftfahrtverwaltung) and vary in regard to the weight of the aircraft. Currently (April 2021), the fees are as follows: up to 2,000 kg the fee is EUR 80; up to 20,000 kg the fee is EUR 350; up to 100,000 kg the fee is EUR 1,000; up to 150,000 kg the fee is EUR 2,500; and above 150,000 kg the fee is EUR 4,500.
5. Are there any weight and/or maximum age restrictions to register an aircraft in Germany?
6. Does registration of an aircraft in the national registry constitute proof of ownership under the laws of Germany?
No. The registration in the aircraft register (Luftfahrzeugrolle) with the LBA is only a declaratory one. It does not have any constitutive effect on the ownership of the aircraft under German law. This is a consequence of the fact that the German Aircraft Register mainly aims at securing registered data for purposes under public law, i.e., airworthiness and identification of the owner/operator (as applicable), nationality of the same, etc. Regardless of the public law nature and character of the Register, it is common practice to obtain an extract of the Aircraft Register for transactions under civil law.
7. How is an aircraft title transfer effected in Germany? What are the formalities required to register such title transfer in the national registry of Germany (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
The title of an aircraft is transferred pursuant to the general rules of German civil law on the transfer of ownership of movables. Thus, a bill of sale is neither needed, nor alone would it be sufficient, and a sale and purchase agreement only impose a contractual duty on the seller to transfer the ownership of the aircraft to the buyer (section 433(1) of the German Civil Code). To actually transfer title in an aircraft, the owner, in execution of the underlying contract of sale, usually must deliver possession of the aircraft to the buyer while both parties agree that the change of direct possession also results in a change of ownership (see section 929(1) of the German Civil Code). However, a transfer of title to an aircraft could be effected as well by any of the following: if at title transfer (i) the seller is in direct possession of the aircraft and wants to continue to use the aircraft, then seller and purchaser have to enter into a lease agreement (sale and lease back) pursuant to which the purchaser may demand repossession of the aircraft in accordance with its terms (thus the purchaser obtains indirect possession pursuant to section 930(1) of the German Civil Code); or (ii) a third party is in direct possession of the aircraft (e.g., a third-party lessee), then the seller, purchaser, and that third party must enter into an assignment or novation agreement in relation to the lease whereby the seller assigns to the purchaser, inter alia, its repossession right against the third-party lessee (section 931 of the German Civil Code).
Registration of an aircraft in the Aircraft Register does not have any legal impact on the transfer of title, it is governed by the general rules for transfer of ownership of movables (section 98(1)(1) of the Act on Rights in Aircraft). Thus, the registration of the aircraft on the German Aircraft Register does not in itself constitute such title to or interest in the aircraft but merely serves as some form of evidence that the person who is registered as the owner is in fact the owner of the aircraft. However, although there is no requirement for registration in order to effect transfer of title, there is a requirement that the owner of the aircraft has to notify the German Federal Aviation Authority of any change in ownership without undue delay (section 64(5) Air Traffic Act), and any owner who wants to be registered in the German Aircraft Register has to provide proof of ownership, usually done by providing the original or notarised (and apostilled – if required) copy of the bill of sale to the LBA (see question 3).
8. What information and details are reflected in the certificate of registration of an aircraft?
After registering an aircraft in the German Aircraft Register, the LBA issues a Certificate of Registration following international (International Civil Aviation Organization (ICAO)) usage (according to section 14 of the German Air Traffic Licensing Regulation). Such Certificate of Registration must be carried onboard the aircraft at all times. With nomenclature in German and English, it contains information on the register itself (volume, page), on the aircraft (class, nationality and registration mark, manufacturer, model, serial number) as well as name and address of the owner (if the owner is a non-EU entity the name and address of the operator is mentioned on the backside) and certifies that the aircraft has been duly registered in the Aircraft Register (date of issue and signature of issuing person as well as stamp of the LBA). As there is no register for engines, no separate engine Certificate of Registration is issued.
9. Are the entries in the aircraft registry of Germany made available to the public upon submission of a specific application to the competent authority? Are there any fees payable for this?
The entries in the Aircraft Register are generally not open to the public to be searched; however, data recorded in the Aircraft Register may be requested if that person provides prima facie evidence that it needs such information for the enforcement of a private claim (section 64(8) of the Air Traffic Act). Moreover, for data protection laws, only the registered owner may request a register extract from the LBA (with a current date). The LBA currently, as of April 2021, charges for such extract with a fee of EUR 40.
10. What kind of aircraft operations can be conducted with aircraft registered in Germany (i.e., private use, commercial air transport or both)?
Both private and commercial air transport however, commercial air transport may only be made if the aircraft is operated by an airline having an air operator certificate on which the respective aircraft is included.
11. Does the civil aviation authority in Germany authorise the operation of foreign registered aircraft? If so, with which countries has Germany entered into bilateral agreements on the basis of article 83-bis of the ICAO Chicago Convention for the delegation of regulatory oversight?
According to article 83-bis of the Chicago Convention in connection with section 3a (2 and 3) of the Air Traffic Act, it is possible that German-registered aircraft are used by foreign airlines and foreign registered aircraft may be used by German airlines whereby the Aviation Authority of the state of registration of the aircraft may, by agreement with the Aviation Authority from the other State, transfer certain functions and duties as state of registration in respect of the respective aircraft. For example, regarding its operation, airworthiness and the competency of its personnel as well as general ‘rules of the air transportation’. Germany has so far closed five bilateral agreements in relation to article 83-bis: with Italy (18 July 2007), Austria (1 July 2016), Sweden (3 November 2010), Spain (17 December 2010) and Denmark (26 September 2012).
12. Is there a separate register of aircraft mortgages and/or leases and/or security interests in Germany?
There is not a separate register of leases or other security interests, except for the local court in Braunschweig, where mortgages (only on German registered aircraft) may be registered.
13. What are the formalities required to register a mortgage / lease / security interest in the national registry of Germany (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
A German mortgage needs to be registered in the German Aircraft Mortgage Register as a condition to its effective creation and perfection against the debtor or aircraft owner and third parties. Registering an aircraft mortgage in Germany may take three to four weeks from filing the required documents with the German Aircraft Mortgage Register until having received an extract of the German Aircraft Mortgage Register showing the registration of the mortgage. Unlike the Aircraft Register is the Aircraft Mortgage Register maintained by the local court in Braunschweig (section 78 of the Act on Rights in Aircraft) (see question 12). Thus, in relation to the mortgage, all documents must be submitted to it and not to the LBA. For every aircraft registered, a new page is reserved, which is divided into two parts, one for the aircraft itself and one for any mortgages it might be encumbered with (section 81(1) of the Act on Rights in Aircraft, together with section 2 of the Aircraft Mortgage Register Regulation). Only the person or entity that is registered as owner in the Aircraft Register (with the LBA) is entitled to have an aircraft registered in the Aircraft Mortgage Register (section 79(2) of the Act on Rights in Aircraft). The mortgage application must contain the following (section 80 of the Act on Rights in Aircraft):
- page number of the Aircraft Register (if already known);
- manufacturer’s serial number and registration mark of the aircraft;
- make and model of the aircraft;
- name of the creditor, the amount of the secured claim, and the applicable interest rate and ancillary charge;
- name and address of the owner according to the Aircraft Register (the applicant must prove that the data to be recorded corresponds with the data from the Aircraft Register, therefore, an extract of the Aircraft Register from the LBA that is not older than four weeks needs to be submitted to the Aircraft Mortgage Register). It may be possible to file the ‘mortgage documents’ prior to registration of the owner in the Aircraft Register and submit the Aircraft Register extract later; however, it is a prerequisite to registration of the mortgage;
- in addition, prima facie evidence of ownership needs to be submitted (section 80 of Act on Rights in Aircraft), which is usually done by a notarised and apostilled affidavit of the aircraft owner; and
- the fees of the Aircraft Mortgage Register and the German notary vary in regard to the amount of the secured claim (see sections 34(1), 53(1) and 55(2) of the Act on Court and Notary Fees). After the ‘mortgage documents’ have been filed with the German Aircraft Mortgage Register, it will issue an invoice for its fee, and that invoice needs to be paid prior to the registration of the mortgage.
14. Is a mortgage priority notice an available security instrument for aircraft financiers in Germany?
15. Does an aircraft mortgage duly registered in the national registry of Germany extend to engines and other parts of such aircraft (either installed or not on the airframe)?
The engines are not specifically mentioned in the register; however, the German aircraft mortgage actually extends to the engines and other parts (provided they are also owned by the airframe owner).
16. What statutory liens (if any) would rank prior to an aircraft mortgage duly registered in the national registry of Germany?
Any existing registered security interests because of salvage or inevitable maintenance measures by third parties will have priority (sections 75 and 76 of the Act on Rights in Aircraft). On the other hand, liens for repairs and comparable statutory pledges cannot be created on a German registered aircraft (section 9(1) on the German Act of Rights on Aircraft). An aircraft may be seized when enforcing a private claim with the result of creating an ordinary registered mortgage (section 99(2) of the Aircraft Mortgage Act). However, certain aircraft, such as aircraft used for public transportation, are protected from such seizure by specific provisions (section 1 of the Act on Inadmissibility of Seizure of Aircraft).
17. Do the laws of Germany 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)?
No. Even the mortgagee may not take possession when enforcing its mortgage but must get it detained by a bailiff through court proceedings and have it sold by public auction.
18. Are foreign law-governed security agreements (e.g., mortgages) recognized in Germany in order to validly create a security interest over an aircraft registered in the national registry of Germany? If so, are there any formalities/requirements to bear in mind?
No, a German registered aircraft may be levied only by a mortgage registered in the German Aircraft Mortgage Register.
19. Are foreign law-governed leases recognized in Germany in order to validly lease an aircraft registered in the national registry of Germany to a lessee incorporated in Germany? If so, are there any formalities/requirements to bear in mind?
Yes, foreign law-governed leases are recognized and no formalities/requirements exist.
20. Has Germany ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol? Has Germany made any declarations to better determine the scope of application of the Convention / Protocol in Germany? 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?
The Cape Town Convention has not been ratified by Germany.
21. What are the requirements and documentation to deregister an aircraft from Germany? How does the aircraft deregistration process work?
In Germany, it is only the owner (and not the operator) who is entitled to deregister an aircraft. The owner of the aircraft must apply for deregistration and a certificate of airworthiness for export (if needed), at the LBA, using a standard form (LBA Form No. 11 that is available in German and English). As Germany is an ‘owner register’, the operator may not block deregistration or export. However, in order to have the aircraft actually deregistered in Germany, the original Certificate of Registration, certificate of airworthiness and noise certificate issued by the LBA (which have to be carried at all times on board the aircraft) (see question 3 a.) have to be returned to the LBA. Upon deregistration, the LBA will notify the Aviation Authority of the next State of registration if requested by the owner with the application.
22. What fees are payable to deregister an aircraft from Germany?
The deregistration fees are determined by the German Expenses Directive of Aviation Administration (Kostenverordnung der Luftfahrtverwaltung) and vary in regard to the weight of the aircraft. Currently (April 2021), the fees are as follows: up to 2,000 kg the fee is EUR 64; up to 20,000 kg the fee is EUR 280; up to 100,000 kg the fee is EUR 800; up to 150,000 kg the fee is EUR 2,000; and above 150,000 kg the fee is EUR 3,600.
23. Is the consent of the mortgagee / lessor (as the case may be) required in order to deregister an aircraft from Germany?
The mortgagee does not have to consent to the deregistration by the owner.
24. What are the usual practical difficulties (if any) involved in deregistering aircraft from Germany?
The usual practical difficulties are that the operator needs to cooperate, and the original Certificate of Registration, Certificate of Airworthiness, and Noise Certificate (issued by the LBA) must be returned to the LBA to procure deregistration.
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?
If the original application and the original documents mentioned in No. 23 have been provided, deregistration can be effected within one or two days. However, if the operator does not cooperate in relation to those documents, court proceedings need to be initiated which could take a longer time.
26. Please outline the applicable repossession rules under the national laws of Germany (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 Germany.
There are no self-help remedies available to the owner. In order to repossess the aircraft, the owner must proceed in accordance with the German laws of debt enforcement. That necessitates obtaining an enforceable title (court order or judgement) for the repossession claim from the German civil court having jurisdiction. The title must contain the necessary enforcement clause and needs to be duly served on the debtor. The owner can then apply for the enforcement of the court order or judgement with a bailiff, who will put the owner in possession of the aircraft.
Alternatively, confronting the pilot in the cockpit with a bailiff serving the termination notice of the lease has proven to be successful.