Contributor: Philippe Wenker, Laurent Chassot and Marco Novoselac, gbf Attorneys-at-law, Ltd.
1. Which authority is in charge of the civil aviation registry in Switzerland? Does Switzerland use a single-registry system or is there a dual-registry system in place?
The Swiss Federal Office of Civil Aviation (FOCA) is in charge of regulating and monitoring civil aviation in Switzerland. Switzerland maintains a dual-registry system. There is the Swiss Aircraft Register, which is the Swiss aeronautical / nationality register, and there is the Swiss Aircraft Record, where rights in aircraft may be registered. Both the Swiss Aircraft Register and the Swiss Aircraft Record are kept by the FOCA.
2. Is the registry an operator registry or an owner registry (or both)?
The Swiss Aircraft Register is an owner registry. However, the operator may also be registered, besides the aircraft owner. If the operator holds a Swiss operating licence, this allows the registration of an aircraft which is not owned by a Swiss (or EU/EEA) national/resident/entity (see Section 3 hereinafter).
3. What are the requirements and documentation to register an aircraft in Switzerland? Include references to formalities such as notarisation, legalization, etc.
An aircraft is eligible for registration in the Swiss Aircraft Register if certain nationality requirements are met, i.e., if the aircraft is owned by:
- a Swiss citizen;
- foreign citizen’s resident in Switzerland, with a permanent Swiss residence permit (category B or C) and provided that the aircraft operation is based in Switzerland;
- a Swiss-incorporated company;
- a Swiss public law entity or institution; or
- a Swiss association, provided that at least two-thirds of its members as well as the members of the board and the chairman are residents in Switzerland.
In assessing nationality requirements, it is the status of the beneficial owner which is relevant (and not that of possible nominees).
An aircraft owned by an individual or an entity not meeting the aforementioned nationality requirements may, subject to a special permission by the FOCA, be registered in the Swiss Aircraft Register, provided, however, that it will be operated by Swiss licensed air transport undertaking for a period, as a rule, of at least six months.
In addition to the above nationality requirements, the FOCA must be satisfied that the aircraft meets the specified airworthiness requirements, complies with the prerequisites for aircraft emissions, and that it has been properly maintained. The application (FOCA Form) to register an aircraft in the Swiss Aircraft Register needs to be accompanied by the following documentation:
- Evidence of Swiss citizenship or incorporation (depending on the applicant).
- Evidence of the applicant’s title to the aircraft, i.e., a bill of sale or a declaration by the previous owner on the ad hoc FOCA form.
- Official confirmation that the aircraft has either never been entered in the aircraft register in the country of residence of the predecessor (in title) of the applicant (certificate of non-registration), or that it has been struck off from the aircraft register in the country in which it was last registered (certificate of cancellation of registration).
- If applicable, evidence needs to be provided to the effect that the aircraft has either never been entered in the liens record in the country in which it was last registered, or that any such entry has been deleted (no-lien certificate).
- In the case of a used aircraft, evidence must be provided to show that it has been properly maintained (e.g., fresh ARC).
As a rule, no particular formalities, such as notarisation or legalization of application documents, are required.
4. What fees are payable to register an aircraft in Switzerland?
For the reservation of a Swiss registration mark, a fee of CHF 110 applies. For processing the registration application, the fee varies between CHF 400 (up to 5.7 tonnes MTOW) and CHF 600 (more than 5.7 tonnes MTOW). In addition, an annual recurring supervision fee in the same amounts applies. For the airworthiness certification process, the fee is charged on a time spent basis and may vary, depending on the type and MTOW of the aircraft, between CHF 360 and CHF 30,000.
5. Are there any weight and/or maximum age restrictions to register an aircraft in Switzerland?
No, restrictions are subject to airworthiness requirements.
6. Does registration of an aircraft in the national registry constitute proof of ownership under the laws of Switzerland?
No, the registration in the Swiss Aircraft Register does not constitute proof of ownership (but a registration in the Swiss Aircraft Record has certain effects in this regard; see Section 12 hereinafter).
7. How is an aircraft title transfer effected in Switzerland? What are the formalities required to register such title transfer in the national registry of Switzerland (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
Swiss registered aircraft, unless registered in the Swiss Aircraft Record (see section 12 hereinafter), are, as a matter of Swiss property law, considered as movable assets. As such, a transfer of ownership requires a valid underlying cause (e.g., a purchase agreement) and the transfer of possession. However, if registered in the Swiss Aircraft Record, transfer of title to such an aircraft can only be effected by recordation of the change of ownership in the Swiss Aircraft Record and on the basis of a written agreement between the seller and the buyer.
8. What information and details are reflected in the certificate of registration of an aircraft?
A Swiss Certificate of Registration states, besides registration mark, manufacturer, type, and serial number of the aircraft, the registered owner and, if different, the operator of the aircraft.
9. Are the entries in the aircraft registry of Switzerland made available to the public upon submission of a specific application to the competent authority? Are there any fees payable for this?
Although the Swiss Aircraft Register is not a public register, the FOCA maintains a database of Swiss registered aircraft which is freely accessible online:
(https://app02.bazl.admin.ch/web/bazl/en/#/lfr/search). The Swiss Aircraft Record is, as a matter of law, public and entries are furnished upon application to the FOCA. For a transcript from the Swiss Aircraft Record a fee of CHF 50 applies (CHF 85 for a certified extract).
10. What kind of aircraft operations can be conducted with aircraft registered in Switzerland (i.e., private use, commercial air transport or both)?
The operation of Swiss-registered aircraft is, like in the EU, governed by the Regulation (EU) No. 965/2012 and, subject to the conditions set out in that regulation, aircraft can be used for commercial, non-commercial, and specialised operations.
11. Does the civil aviation authority in Switzerland authorise the operation of foreign registered aircraft? If so, with which countries has Switzerland entered into bilateral agreements on the basis of article 83-bis of the ICAO Chicago Convention for the delegation of regulatory oversight?
In accordance with Art. 12 of Regulation (EU) No. 1008/2008, a Swiss operator may operate aircraft registered in a Member State of the EU/EEA. Besides, Switzerland allows delegation of surveillance (in and outbound) within the scope of ICAO Convention Art. 83bis, where a Swiss registered aircraft is supplied to a foreign operator (dry-lease out) or where a foreign registered aircraft is supplied to a Swiss operator (dry-lease–in). Such delegation is subject to an agreement between the FOCA and the relevant foreign civil aviation authority. However, under certain circumstances, the completion of an agreement for delegation of the surveillance may take several months and the arising costs will be charged to the Swiss applicant according to expenditure. The FOCA has entered into such delegation agreements on an ad hoc basis for specific aircraft (such as, for example, with Austria).
12. Is there a separate register of aircraft mortgages and/or leases and/or security interests in Switzerland?
Besides the Swiss Aircraft Register (being the Swiss nationality/aeronautical register), the FOCA maintains the Swiss Aircraft Record where rights (ownership, mortgage, or lease interest) in aircraft are recorded. A registration of the aircraft is not mandatory unless a mortgage or is to be registered (as, unless so registered, Swiss law does not permit consensual non-possessory liens on aircraft).
13. What are the formalities required to register a mortgage / lease / security interest in the national registry of Switzerland (e.g., notarization, legalization etc.)? Please summarize the related costs and procedures.
The registration of an interest (ownership, mortgage, lease) of a Swiss aircraft in the Swiss Aircraft Record is twofold: to register such an interest, it is required that first the aircraft be recorded in the Swiss Aircraft Record, following which the interest will be registered as an encumbrance on the Aircraft. Recordation of an aircraft is subject to a statutory 30-days objection period, which means that the application for recordation of an aircraft in the Swiss Aircraft Record will be published in the Swiss Official Gazette allowing third parties to notify the FOCA of their objection within 30 days upon publication. In case no objections are raised or, if raised, are set aside, the recordation of the aircraft will become effective (retroactively as of the date of receipt of the application by the FOCA).
The application for registration of an aircraft in the Swiss Aircraft record must be accompanied by:
- Application for registration of the aircraft (FOCA Form).
- Proof of ownership: such as a bill of sale, or similar (in original form), evidencing unconditional transfer of ownership to the applicant.
- In case of a Swiss applicant: extract from the competent Swiss register of retention of tiles at the domicile of the applicant.
- Evidence of signing authority, such as extract from the competent commercial register, or notarized signatures (confirming such authority).
In addition, thereto, the application for registration of a mortgage must be accompanied by:
- The mortgage agreement (which must be in writing and provide for maximum amount secured by the mortgage expressed in Swiss Francs).
- Where the mortgagee is a non-Swiss entity, such mortgagee must appoint a Swiss representative and provide evidence of its corporate existence.
The fee for registration of an aircraft in the Swiss Aircraft Record is calculated on the basis of the MTOW of the aircraft (CHF 9 per 100kg) and ranges from a minimum of CHF 195 up to a maximum of CHF 10,320. In addition to that, the fee for registration of a mortgage is calculated on the basis of the value secured thereby (0.2 % up to a secured value of CHF 2 million and 0.1% of the value exceeding CHF 2 million) and ranges from a minimum of CHF 385 up to a maximum of CHF 17,200.
14. Is a mortgage priority notice an available security instrument for aircraft financiers in Switzerland?
No, there is no priority notice available in Switzerland.
15. Does an aircraft mortgage duly registered in the national registry of Switzerland extend to engines and other parts of such aircraft (either installed or not on the airframe)?
Aircraft engines may (along with the aircraft) be registered in the Swiss Aircraft Record. If so registered, they form part of the aircraft irrespective of whether they are on or off the aircraft. A mortgage on the aircraft extends to them. A mortgage may, subject an inventory and further conditions, be extended to spare parts.
16. What statutory liens (if any) would rank prior to an aircraft mortgage duly registered in the national registry of Switzerland?
The following claims rank prior to a registered mortgage as a matter of law:
- Claims arising from action taken to save or rescue aircraft; and
- Claims arising from extraordinary expenditure which was essential to maintain the existence of the aircraft or to secure claims against third parties who would otherwise have to pay damages for loss caused if the aircraft was confiscated or destroyed (whether partially or in total).
17. Do the laws of Switzerland 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)?
Other than the claims specified in Section 16 above, Swiss law does not recognise any other preferred interest that ranks in priority to mortgages on aircraft recorded in the Swiss Aircraft Record.
18. Are foreign law-governed security agreements (e.g., mortgages) recognized in Switzerland in order to validly create a security interest over an aircraft registered in the national registry of Switzerland? If so, are there any formalities/requirements to bear in mind?
Mortgages on a Swiss registered aircraft must be governed by Swiss law, be in writing, and must state the maximum amount in Swiss Frances secured thereby. However, a mortgage agreement may also contain other contractual terms which, in theory, could be governed by another law.
19. Are foreign law-governed leases recognized in Switzerland in order to validly lease an aircraft registered in the national registry of Switzerland to a lessee incorporated in Switzerland? If so, are there any formalities/requirements to bear in mind?
Generally, foreign law-governed leases in relation to Swiss registered aircraft are recognised in Switzerland and there are no particular formalities that apply.
20. Has Switzerland ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol? Has Switzerland made any declarations to better determine the scope of application of the Convention / Protocol in Switzerland? 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?
Although signed, the Cape Town Convention has not been ratified by Switzerland yet.
21. What are the requirements and documentation to deregister an aircraft from Switzerland? How does the aircraft deregistration process work?
It is the owner who must apply for deregistration of the aircraft from the Swiss Aircraft Register and the Swiss Aircraft Record (if applicable, with the consent of any registered mortgagee or lessee), if recorded therein. Upon request, the FOCA issues a deregistration certificate. For this purpose, a deregistration application form along with evidence of the signing authority of the persons executing such deregistration application on behalf of the owner has to be submitted. As a rule, the FOCA only cancels the aircraft from the Swiss Aircraft Register upon return of the originals of the Swiss Certificate of Registration and the airworthiness certificate / permit to fly. Upon request, the FOCA issues a deregistration certificate and/or (subject a conformity inspection) an export certificate of airworthiness (CofA for Export).
22. What fees are payable to deregister an aircraft from Switzerland?
The fee for deregistration of an aircraft from the Swiss Aircraft Register varies between CHF 200 to CHF 300 (depending on MTOW of the aircraft). The fee for cancellation of an aircraft from the Swiss Aircraft Record is 20% of the fee that applied for the aircraft’s registration therein (see Section 13 above). For inspection and certification of export airworthiness of the aircraft the fees are charged on time spent basis and may vary, depending on the type and MTOW of the aircraft, between CHF 360 and CHF 30,000.
23. Is the consent of the mortgagee / lessor (as the case may be) required in order to deregister an aircraft from Switzerland?
Yes, deletion of the aircraft in the Swiss Aircraft Record requires the written consent of any registered mortgagee or lessee.
24. What are the usual practical difficulties (if any) involved in deregistering aircraft from Switzerland?
Usually, if well prepared, there are no specific practical difficulties for deregistering an aircraft in Switzerland.
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 well prepared and with co-operation of the parties involved, a deregistration should not take more than one to three working days. In case of no such co-operation from the defaulting party, such deregistration may take substantially longer and, in case of a mortgage, usually is part of the foreclosure procedure (see section 26 below). For completion’s sake, deregistration powers of attorney are valid and in principle accepted by the FOCA. However, as a matter of Swiss law, powers of attorneys are revocable by the grantor at any time, notwithstanding anything stated to the contrary therein.
26. Please outline the applicable repossession rules under the national laws of Switzerland (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 Switzerland.
As mentioned above, Switzerland is not a contracting state to the Cape Town Convention. In case of a default under a lease, the lessor may file a claim for repossession of the aircraft under the agreement or the relevant provisions of the Swiss Civil Code at the place of the location of the aircraft in Switzerland. The proceedings are governed by the Swiss Code of Civil Procedure and may be conducted under summary proceedings and, in the event of urgency, by preliminary ex parte injunctions.
In case of a mortgage, the mortgage must be enforced at the place of the domicile of the owner/mortgagor as recorded in the Swiss Aircraft Record. Foreclosure is governed by the Swiss Federal Act on Aircraft Record (and implementing ordinances) which, to a large extent, refers to the enforcement procedures applicable to real estate.
For completion’s sake the Swiss Aviation Act, in line with the Rome Convention of 1933, excludes seizure or aircraft currently in service on a regular line of public transportation. Also, self-help remedies are, as a rule, not permissible in Switzerland but enforcement requires intervention by courts or competent authorities.