Malta

Transport Malta, the authority overseeing transport in Malta, is “in charge” of the National Aircraft Registry (“NAR”) in Malta. The NAR uses a single registry system. Nonetheless, the NAR does implement, when requested, the Article 83 bis arrangements under the Chicago Convention.  

The aircraft register in Malta is an operator’s register. Nonetheless, an owner can register an aircraft in Malta in the event that the aircraft is not being temporarily operated or else the owner and the operator are the same entity. 

It shall be lawful to register any aircraft which is under construction upon it becoming uniquely identifiable.  

Basic Requirements 

Prior to registration, it is a basic requirement that the airline/operator is eligible to register an aircraft in Malta. These persons/bodies are:  

(a)   the Government of Malta; 

(b)  a citizen of Malta or a citizen of a Member State of the European Union or of an EEA State, or Switzerland having a place of residence or business in Malta, the European Union, the European Economic Area or Switzerland, including a person sharing in the ownership of such aircraft by virtue of the community of acquests subsisting between such person and a citizen as described above in whose name the aircraft is registered;  

(c)  an undertaking formed and existing in accordance with the laws of Malta, of a Member State of the European Union, of an EEA State or of Switzerland and having its registered office, central administration and principal place of business within Malta, or the European Union, or the European Economic Area or Switzerland whereof not less than fifty per cent of the undertaking is owned and effectively controlled by the Government of Malta, or by any Member State of the European Union, or by persons referred to in (b), whether directly or indirectly through one or more intermediate undertakings; 

(d)  a natural person who is a citizen of, or an undertaking established in, an approved jurisdiction, other than those mentioned in (b) or (c) above, shall be qualified to register an aircraft in construction or one which is not used to provide air services if it; 

1. enjoys, to the satisfaction of the Director General responsible for civil aviation in Malta, legal capacity to own or operate an aircraft  in terms of the law under which it has been established or registered; 
2.  complies with the requirements established under the Aircraft Registration Act, 2010 (“ARA”), any regulations or guidelines issued pursuant thereto;  
3. satisfies the Director General that it can and will ensure due observance of the laws of Malta relating to civil aviation; and
4. appoints a resident agent in Malta for the duration of the registration in accordance with the requirements of the ARA. 

Under the ARA, a qualified person may apply to register an aircraft in the following capacities:  

1. an owner of the aircraft who operates the said aircraft; or 
2. an owner of an aircraft under construction or temporarily not being operated or  managed; or 
3. an operator of an aircraft under a temporary title (by virtue of a lease agreement) which satisfies the conditions which may be prescribed; or  
4. a buyer of an aircraft under a conditional sale or title reservation or similar agreement which satisfies the conditions which may be prescribed and who is authorised to operate the aircraft.  

Where the applicant for registration of an aircraft is a person enjoying a temporary title (by virtue of a lease agreement), whether or not an unqualified person holds any interest therein by way of ownership, the aircraft may be registered in the name of that person upon the Director General being satisfied that the aircraft may otherwise be properly registered, and the aircraft may remain registered for the duration of the temporary title. 

Documents Required  

To register an Aircraft in Malta, the operator/airline will have to furnish the Director General responsible for civil aviation with an application, along with the following documents:  

1. Deregistration Certificate in the event the aircraft was previously registered in another state; 
2. documents pertaining to the owning entity of the aircraft, such as:  
   1. the Certificate of Registration,  
   2. memorandum and articles of association,  
   3. extract or certificate of good-standing; 
3. an application form signed by the operator; 
4. constitutional documents on the operator; 
5. radio licence; 
6. insurance certificate; 
7. photo of registration marks and fire proof plates; 
8. lease agreement; 
9. proof of ownership – such as a bill of sale (and also a Power of Attorney); and 
10. statement of no mortgages. 

Notwithstanding, the Civil Aviation Directorate reserves the right to request further documentation from operator/airlines and therefore it is always suggested to first file the application form and then request a list of the documents required to register the aircraft. 

The Civil Aviation Directorate requests that documents signed in the EU are notarised, while those executed outside of the EU are notarised and apostilled. However, the Civil Aviation Directorate can also waive these requirements.

The First Schedule of the ARA identifies the fees that are payable to the Director General for the issue of Certificate of Registration in respect of an aircraft:  

(i) Aeroplanes having an empty weight not exceeding 150 kg, a wing area of not less than 10 square metres, and a wing loading not exceeding 10kg per square metre at empty weight and which are designed to carry not more than 2 persons……………… €60 

Any other aircraft whose maximum take-off mass: 

(ii) does not exceed 750 kg …………………… €80 

(iii) exceeds 750 kg but not 2730 kg ………………… €150 

(iv) exceeds 2730 kg but not 5700 kg ……………….. €220 

(v) exceeds 5700 kg but not 15 tonnes ……………. €300 

(vi) exceeds 15 tonnes but not 50 tonnes …………… €450 

(vii) exceeds 50 tonnes ……………………….. €750 

On making an application for a revised Certificate of Registration, the following charges shall apply: 

(i) if due to change of address, or other technical details, a fee of €50 will be applicable. 

(ii)  if due to change of legal ownership of the aircraft, a charge equal to 50% of the fee as would be payable for the issue of the initial Certificate of Registration. 

(iii)  if for a replacement Certificate of Registrationor aircraft Deregistration, the registered owner of the aircraft shall pay €50. 

Other Fees 

Fees have also been introduced for registration of Mortgages (€500) and for the registration of an IDERA (Euro 100 each IDERA). A fee of €250 is payable upon the registration of an amendment mortgage.  

A charge of €250 is applicable, in addition to the registration fee, for making an application for the reservation of a customised out of sequence registration mark. 

The registration fees (and any other fees mentioned above) will be payable when the aircraft is registered in Malta and are not related to the transactions contemplated or the financing.   

Maltese law does not stipulate any weight or maximum restrictions to register an aircraft; however, it is necessary that the Director General is satisfied that all regulations relating to the safety or the operation or the airworthiness of the aircraft are being complied with.  

The Certificate of Registry of the aircraft constitutes prima facie evidence of ownership of the aircraft under the laws of Malta. A bill of sale confirming the identity of the owner will constitute proof of ownership of an aircraft under Maltese Law. The Certificate of Registration confers rights to an aircraft to be subject to the laws of Malta and have all the rights and privileges of a Maltese aircraft. 

Any registrant of an aircraft shall inform the Director General in writing of a transfer of title of an aircraft. The Maltese Registry would usually request the following documents:  

(i)  Certified true copy of the executed bill of sale (evidence of the transfer of title); 

(ii) Copy of the duly executed corporate authorities or power of attorney appointing the representatives who have signed the bill of sale; 

(iii) If there is a lease agreement in place, then a copy of the novation/amendment deed by which the lease has been novated to the new lessor; 

(iv) corporate documents of the new owner/lessor including the Certificate of Registration and memorandum/articles of association (or other equivalent statutory document); and 

(v) new IDERA/mortgage in favour of the new lessor, together with the relevant Power of Attorney/corporate authorities (where applicable). The Powers of Attorney appointing signatories to sign and submit any security documents (IDERA, mortgages or a deregistration power of attorney) to be registered over an aircraft registered in Malta will need to be notarised and apostilled.   

A new certificate must be issued recording this change in title and a charge equal to 50% of the fee as would be payable.  

Also, since Malta is party to the Cape Town Convention, we would usually recommend that the transfer of ownership is also registered in the international registry. 

The Certificate of Registry shall include the following particulars:  

1. The name and address of the registrant; 
2. The name, address and ownership interests or title of the owner (if different); 
3. The date of issue of the Certificate of Registration;  
4. the number of the Certificate of Registration;  
5. the nationality marks of the aircraft, and the registration marks assigned to it by the Director General;  
6. the name of the constructor of the aircraft and its designation;  
7. the serial number of the aircraft; and  
8. the manufacturer, the serial numbers, and physical details of the engines attached to the aircraft and any replacement engines to the extent they are designated for use on the aircraft. 

Any registration of an aircraft in the NAR in Malta shall have its information made public once the registration of the aircraft has been completed. The information shall be considered to be within the knowledge of third parties. Any person can request a transcript to be issued on a specific aircraft – duly issued upon payment of the prescribed fee. Kindly note that the details of any lease agreement or mortgage will not be available to the public.  

An aircraft registered in Malta can use the aircraft for purposes relating to private use and commercial air transport.  

The National Aircraft Registry in Malta does authorise the operation of foreign registered sircrafts. Malta has entered into bilateral agreements on the basis of Article 83 bis of the ICAO Chicago Convention with Italy, Greece and Ireland. However, these are entered into on a per aircraft basis and if requested the Malta Civil Aviation Directorate would enter into an Article 83 bis agreement with other countries. 

No, there is one registry, the National Aircraft Registry, which caters for the registration of aircrafts, aircraft mortgages, aircraft leases and aircraft security interests.  

Mortgage Registration 

When a mortgage is lodged at the NAR, the form is to be prepared in accordance with the prescribed form, which shall indicate the following:  

1. Details on the aircraft; 
2. Details pertaining to the loan agreement;  
3. Mortgagee details; 
4. Borrowers details; 
5. Mortgagor details;  
6. Details pertaining to the aircraft mortgage agreement;   
7. Any other details (prohibition against the creation of new mortgages and/or the transfer of the aircraft);  

Once the mortgage form has been produced in the prescribed form, the Director General shall record it in the National Register.  

Upon the registration of a mortgage in terms of the First Schedule of ARA, a charge of €500 shall be payable to the Director General. A charge of €250 shall be payable to the Director General upon registering an amendment mortgage.  

Lease Registration 

There is no particular form which a lease should be registered in; however, the Civil Aviation Directorate requires that the lease agreement complies with the following:  

1. Such an agreement must be in English. If it is in any other language, then it must be accompanied by a certified translation;  
2. The date as to when the agreement was made and the duration of the agreement;  
3. The agreement must be a Certified True Copy. If the agreement is from outside Europe it should be legalised and apostilled;  
4. The signatures on the agreement must be authenticated according to the list of signatories. This also applies to the initials on each page of the document;  
5. Reference must only be made to the Maltese registration marks and not to the previous registration marks of the aircraft;  
6. The agreement/s shall have clear delineation of responsibilities of the parties involved pursuant to the applicable laws and regulations;  
7. The agreement/s shall contain clear suspension/termination clauses. 

Furthermore, it is important to note that if the lease is intended to be registered as an international interest then it is required that the lease is compliant with the requirements under the Cape Town Convention for it to consitute an international interest.  

No fees are payable upon the registration of a lease with the NAR. 

A mortgage priority notice is not an available security instrument for aircraft financiers in Malta. However, aircraft mortgages take priority according to the date and time at which they were registered – meaning that when a mortgage is registered on an aircraft, it will take priority over any mortgages registered at a later date and time.  

The ARA states that where an engine has been attached to an airframe which is not also owned by the airframe owner, each of the owners shall retain the ownership of the thing and the engine shall not accede to the airframe. Article 26 (4) of the ARA states that any security over the aircraft shall not extend to any engine attached to the airframe when such engine does not belong to the owner of the airframe who has granted the security, notwithstanding that the engines may be specifically referred to in the instrument of mortgage, the National Aircraft Register or elsewhere.  

Furthermore, an aircraft shall comprise of any engines owned by the owner of the aircraft whether attached to the aircraft or not, as well as any replacement engines which are designated for use on the aircraft and owned by the owner of the aircraft but temporarily not attached to the aircraft.  

Being a civil law jurisdiction, in Malta, liens are referred to as special privileges. Any debt secured by a mortgage registered in the NAR or a charge in the International Registry or secured by a foreign mortgage recognised under the ARA shall rank after the debts secured by possessory liens and, special privileges on aircraft (as specified below) and in preference to other hypothecary and privileged claims:  

1. judicial costs incurred in respect of the sale of the aircraft and the distribution of the proceeds thereof pursuant to the enforcement of any mortgage or other executive title; 
2. fees and other charges due to the Director General arising under applicable law of Malta in respect of the aircraft; 
3.  wages due to crew in respect of their employment on the aircraft; 
4.  debt due to the holder of a possessory lien for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft; 
5.  the expenses incurred for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft; and 
6. wages and expenses for salvage in respect of the aircraft. 

The debts listed above shall rank in the order set out and in preference to all other claims, on the condition that the person in possession of the aircraft enjoying a possessory lien shall not be constrained to release the aircraft until the sums due to him are unconditionally discharged or otherwise secured to his satisfaction, and in any such case shall rank first on such security.  

Yes, for judicial costs, registration dues, crew wages, repairs and possessory lien holders and salvage (as set forth in Article 42(1) of the ARA). 

Any debt secured by a mortgage registered in the NARor a charge in the International Registry or secured by a foreign mortgage recognised under the ARA shall rank after the debts secured by possessory liens and, special privileges on aircraft (as specified above) and in preference to other hypothecary and privileged claims. 

The debts mentioned below shall, on registration in the International Registry, rank after the debts referred to above (special privileges) but after all debts secured by mortgages and charges in the International Registry registered prior to the date of the registration of the relevant privilege. 

The debts mentioned in the following paragraph are secured by a special privilege upon the aircraft, as well as any proceeds from any indemnity arising from any mishaps as well as any insurance proceeds, other than from a liability policy, if registered in the International Registry after the effective date: 

(a) taxes, duties and, or levies due to the Government of Malta in respect of the aircraft; and 

(b) wages and expenses for assistance or recovery in respect of the aircraft. 

Foreign law-governed security agreements are recognised in Malta to validly create a security interest over an aircraft registered in the national registry of Malta on the condition that such security interests are registered in accordance with the ARA. Any foreign security interests will be enforceable in Malta and shall have the status and all rights and powers specified in the ARA. 

The choice of the laws of a foreign country to govern a security agreement would be recognised and given effect to as a valid choice of law in any action in the courts of Malta in accordance with the provisions of Regulation 593/2008/EC of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) of 17 June 2008 (“Rome I Regulation”).  The Rome I Regulation applies to contracts concluded after 17 December 2009.  It should be noted; however, that:  

1. in terms of the said Regulation there are certain instances where other laws may prevail irrespective of the choice of governing law (including in the case of overriding mandatory provisions or the public policy of the forum). In particular (i) where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties does not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement; and (ii) where all other elements relevant to the situation at the time of choice are located in one or more Member States of the European Communities, the parties’ choice of applicable law other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement; 
2. in certain instances the Rome I Regulation also imposes limits on the autonomy of the will of the parties to select the applicable law in contract. 

In the event of a default of any term or condition referred to in such security agreement, upon giving notice in writing to the debtor, the holder of a security interest shall:  

• have the power to terminate the security agreement and take possession or control of the aircraft to which the security agreement relates; or 

• apply to the court to authorise or direct either of the above acts.   

We express no opinion as to the choice of a foreign law to govern obligations falling outside the scope of the Rome I Regulation. 

Furthermore, the ARA holds that a foreign mortgage shall be recognised as a mortgage, nowithstanding that it is not entered on a registered aircraft if: 

1. the mortgage in question was validly recorded in the registry of the aircraft’s registry or any other registry of the country under whose laws the aircraft is documented;  
2. such registry is a public registry; 
3. the mortgage attached to the aircraft is granted an equivalent and preferential status as a mortgage registered under the ARA; and  
4. the mortgage may be discovered upon a search of such registry.  

Foreign law-governed lease agreements are recognised in Malta and such aircrafts may be registered in Malta on the condition that the Civil Aviation Directorate is satisfied that the lease agreement complies with the following:  

1. Such an agreement must be in English. If it is in any other language, then it must be accompanied by a certified translation;
2. The date as to when the agreement was made and the duration of the agreement;
3.  The agreement must be a Certified True Copy. If the agreement is from outside Europe it should be legalised and apostilled.;
4. The signatures on the agreement must be authenticated according to the list of signatories. This also applies to the initials on each page of the document;
5. Reference must only be made to the Maltese registration marks and not to the previous registration marks of the aircraft;
6. The agreement/s shall have clear delineation of responsibilities of the parties involved pursuant to the applicable laws and regulations.;
7. The agreement/s shall contain clear suspension/termination clauses.

Furthermore, in terms of Maltese law, if the lease is to be registered as an international interest then it is important that it complies with the requirements under the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol (“Cape Town Convention and Protocol”) in order to constitute an international interest. 

The Cape Town Convention is in force in Malta and a consolidated text of the Cape Town Convention and Protocol has been reproduced in the First Schedule of the ARA and has force of law in Malta in relation to matters to which they apply and shall prevail over any other law, in a case of conflict.   

(1) Pursuant to Article 39 1(a) of the Convention, it is declared that the following categories of non-consensual right or interest; 

1. Judicial costs incurred in respect of the sale of the aircraft and the distribution of the proceeds thereof pursuant to the enforcement of any mortgage or other executive title;
2. Fees and other charges due to the Director General arising under applicable law of Malta in respect of the aircraft;
3. Wages due to crew in respect of their employment on the aircraft;
4. Any debt due to the holder of a possessory lien for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft;
5. The expenses incurred for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft; and
6. Wages and expenses for salvage in respect of the aircraft, have priority under the laws of Malta over an interest in an object equivalent to that of the holder of certain registered international interests and shall have priority over such registered international interests whether in or outside insolvency. 

(2) Pursuant to Article 39 (4) of the Convention, it is declared that all categories of non-consensual rights or interests which under Maltese law constitute a special privilege on an aircraft shall have priority over an international interest registered prior to the date of its deposit of its instrument of accession. 

(3) Pursuant to Article 40 of the Convention, it is declared that the following categories of non-consensual right or interest; 

1. taxes, duties and/or levies due to the Government of Malta in respect of the aircraft; and 
2. wages and expenses for assistance or recovery in respect of the aircraft shall be registrable under the Convention as regards aircraft objects as if the right or interest were an international interest and shall be regulated accordingly. 

(4) Pursuant to Article 53 of the Convention, it is declared that the First Hall of the Civil Court is the relevant court for the purposes of Article 1 and Chapter XII of the Convention. 

(5) Pursuant to Article 54 (2) of the Convention, it is declared that all remedies available to the creditor under the Convention or Protocol which are not expressed under the provision thereof to require application to the court, may be exercised without leave of the court or other court action. 

(6) Pursuant to Article XXX (1) of the Aircraft Protocol, it is declared that Article XIII of that Protocol applies to and in respect of Malta. 

In order to deregister the aircraft, an application has to be filed by the registrant of the aircraft, which would be the operator. If the deregistration is taking place by the IDERA holder, then no application needs to be filed; however, the IDERA holder must inform the Civil Aviation Directorate about such deregistration and the latter should follow the instructions. 

It is the registrant (i.e., the operator) who can apply for deregistration of the aircraft, unless there is an IDERA in place. If there is an event of default, then the IDERA holder can deregister the aircraft. 

There is an administrative fee of EUR 50 payable for the deregistration of an aircraft. However, registrants are required to settle all outstanding fees before an aircraft can be deregistered.  

Given that the aircraft is typically registered by a lessee (i.e., as operator), then it would be the lessee who would be permitted to deregister the aircraft, unless an IDERA would have been registered. In the event that an IDERA would have been registered, then the consent of the IDERA holder would be required in order to be able to deregister the aircraft – in the absence of which the aircraft would only be able to be deregistered by the said IDERA holder. 

Before an aircraft can be deregistered the consent of the mortgagee is also required or else the mortgage would need to be discharged before the aircraft can be deregistered. 

It is difficult to earmark practical difficulties that may emerge upon deregistering an aircraft from Malta as this will depend on a case-by-case basis.  

If there is cooperation from the registrant, then deregistration should not take long (probably one to two weeks) as long as arrangements are made for the aircraft to be registered in another registry.  

If there is no cooperation from the registrant and an IDERA is being utilized then the same time frame should apply, though this may depend on the actual facts of the case at hand.

In the event of default under a mortgage or a lease agreement, the holder of a security interest formally registered in Malta (and in the international registry) in terms of the First Schedule shall upon giving notice in writing to the debtor, have the power to terminate the agreement that stands between them and take possession of the aircraft to which the agreement relates. If faced with registration issues, this will be tantamount to an event of default under the agreement, thus should the deregistration not materialise, the creditor (holder of the security interest) shall be permitted to take possession of the aircraft identified in the agreement.  

The Cape Town Convention has introduced self-help remedies to Maltese law, which remedies can be obtained by a Secured Party/ Lessor without the need of judicial recourse.   

Upon there being an event of default, the creditor may, inter alia, take possession or control of an aircraft (Article 12 Schedule 1 of the Aircraft Registration Act).  Should the operator refuse to give possession of the aircraft to the owner, the owner can apply to the Court for the help of the authorities to obtain possession of the aircraft. An event of default can be constituted by virtue of an agreement in writing made between the debtor and the creditor; or if a creditor is substantially deprived of what he is entitled to expect under an agreement with the debtor (Article 17 Schedule 1 to the Aircraft Registration Act).