Digital Aviation Document QAs: Malta

The Aircraft Registration Act (Chapter 503 of the Laws of Malta) (the “ARA”) takes note of any formal requirements regarding aircraft registration; however, the ARA does not delve into the using of digital platforms or any electronic signature. Currently, there exists no strict procedure for the acceptance or otherwise of electronic signatures in terms of the Aircraft Registry; however, the Maltese Aircraft Register has introduced an online document management infrastructure (Centrik) that allows operators, lessors and financiers to submit any scanned copies of aircraft related documents on this platform. Through this platform, registry officials and inspectors will be able to provide their comments and/or verify the contents of any of the documents uploaded thereto.

With regards to security documents (such as mortgages, deregistration, power of attorneys and irrevocable deregistration and export request authorisations), the registry would also require original wet-ink versions of such documents.

The execution of all documents (other than the IDERA, Deregistration power of attorney and the Maltese law mortgage) in electronic form is accepted in Malta. The eIDAS regulations (Regulation (EU) No 910/2014), which is an EU regulation on electronic identification and trust services whereby a legal framework for electronic signatures has been established, is automatically applicable in Malta and need not be transposed into Maltese law. To our knowledge, no specific cryptographic platforms have been developed by any local institute of technology for the aviation industry.

The Aircraft Registration Act (Chap 503 of the Laws of Malta) dictates in Article 4 that there shall be a National Aircraft Register which shall be maintained by the Director General responsible for Civil Aviation in Malta in physical or electronic form. All aircraft-related documents are uploaded electronically on Centrik, including any aircraft Lease Documents. With regards to security documents (such as mortgages, deregistration power of attorneys and irrevocable deregistration and export request authorisations), the registry would also require original wet-ink versions of such documents.

i. Lease Agreements, Novation Agreements and Lease Assignments

Lease and operating agreements are to always be present for aircraft registration. The agreement must be in English, must have a date and duration and must be a certified true copy. The signatures on the agreement must also be authenticated according to a list of signatories. Scans of the lease agreement may be uploaded for registration through the Centrik platform – this would also apply to novation and amendment agreements or lease assignments.

ii. Foreign Law Governed Security Agreements

Foreign law governed security Agreements are recognized in Malta to validly create security interest over an aircraft registered in the national registry of Malta on the condition that such 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. Despite this, a foreign law governed security agreement is not registerable here in the Aircraft Malta Register and thus would not be uploaded to Centrik.

iii. IDERAs

The Civil Aviation Directorate requests that a wet-ink original of the undated IDERA is to be submitted in the transcribed format, in duplicate and on the letterhead of the operator/registrant. A scanned version of the undated and signed IDERA would still need to be uploaded to Centrik for proper documentation purposes.

iv. Deregistration Power of Attorney (DPOA)

The Civil Aviation Directorate requests that a wet-ink original of the undated DPOA is to be submitted in duplicate and on the letterhead of the operator/registrant. A scanned version of the undated and signed DPOA would still need to be uploaded to Centrik for proper documentation purposes.

v. Maltese law Mortgage

The statutory mortgage form will need to be submitted at the registry in original duly signed and left undated. A scanned version of the undated and signed Maltese law mortgage would still need to be uploaded to Centrik for proper documentation purposes.

The eIDAS Regulation, being an EU Regulation, is directly applicable to Maltese law without the need for local transposition. The general rule set out in the eIDAS

Regulation applies in Malta, namely that an e-signature cannot be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

Several notices issued by the Aviation Authority include non- exhaustive lists of this list are not exhaustive, and one can see a high degree of flexibility with regard to documents that can be provided, especially if they relate to any other interests on the aircraft and any limitations with regard to the operator’s right to the aircraft.

In order to file proceedings with the Courts of Malta, such must be made in original. This said, and as explained earlier, an e-signature cannot be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

However, if (i) the agreement is governed by a foreign law (including in terms of formal validity) and (ii) the choice or application of that foreign law is recognized in Malta (for example, by way of the Rome I Regulation), then our courts would be guided by what the applicable position is under that same foreign law.

Having said that, qualified electronic signatures are generally regarded as carrying more (immediate) evidential weight than advanced electronic and standard electronic signatures due in large part to the onerous requirements that they must fulfill for validation (e.g., a supporting qualified certificate).

In fact, per article 25(2), eIDAS Regulation, qualified electronic signatures are expressly stipulated to have the “equivalent legal effect of a handwritten signature” and thus can be said to enjoy a juris tantum presumption of legal validity and authenticity as to the identity of the indicated signatory. This legal presumption may prove to be particularly relevant and useful where the electronic signature, or identity of the signatory, is challenged or could be subject to dispute.

Further to our reply to question 6, this very much depends on the type of documents being submitted, the forum where they are being submitted and the purpose of their submission. This said, the general rule is that procedural documents are to be filed in original wet ink by the authorized person and/or legal representative in Malta.

Furthermore, the representation of a client and defence of his interests is excluded from the areas or fields to which our provisions on e-signatures apply. These are exhaustively listed in the Fifth Schedule of the E-Commerce Act, Chapter 426 of the Laws of Malta, and include, amongst others, the following:

a) the representation of a client and defence of his interests before the courts,

b) the law governing the creation, execution, amendment, variation or revocation of:

(i) a will or any other testamentary instrument. (ii) a trust; or

(iii) a power of attorney.

c) Any law governing the making of an affidavit or a solemn declaration or requiring or permitting the use of one for any purpose.

d) the rules, practices or procedures of a court or tribunal however so described.

e) Any law relating to the giving of evidence in criminal proceedings.

f) Any contracts governed by family law.

To our knowledge and understanding, there currently exists no formal requirements for the consent of digital signatures.

Foreign entities not located in the Maltese jurisdiction are authorized to execute Lease Agreements with the Aviation Authority so long as the law governing the lease agreement permits it to do so.

Finance documents other than a Maltese mortgage, IDERA and DPOA are not registerable here in Malta and, therefore, will not be requested by TM-CAD. With regard to the aforementioned documents, wet-ink signatures will be required, and digital signatures will not be accepted.

To our knowledge, the Maltese Aviation industry does not make use of blockchain technology; however, as discussed in previous questions, Transport Malta CAD does make use of digital tools to expedite and facilitate the aircraft registration process.

Despite the above, blockchain is an emerging industry in Malta, and parliament has legislated towards a regulatory framework with The Malta Digital Innovation Authority Bill, The Technology Arrangements and Services Bill and the Virtual Financial Assets Bill. Having said so, blockchain has yet to make an appearance with regard to the control of digital aircraft documents.

The Civil Aviation Directorate requests that documents signed (electronically or in wet-in) in the EU are notarized, while those executed outside of the EU are notarized and apostilled. However, the Civil Aviation Directorate may waive these requirements at their own discretion on a case-by-case basis. The documents that would need to be notarised and/or apostilled will also include, inter alia, a power of attorney issued by a foreign lessor and/or a foreign registrant of an aircraft, duly appointing identified signatories to execute and submit any security documents (IDERA, mortgage or a deregistration power of attorney) to be registered over an aircraft registered in Malta and any foreign law governed lease agreement if this is executed outside Europe.

With regards to any document that indicates it was signed in Malta and/or by a Maltese-established entity will be accepted by the Civil Aviation Directorate without additional formalities.

It would persist that these requirements, as well as specific requirements catered for in Information and Advisory Notices, are to be carried on to the publishing of electronic documents on the Centrik Application.

a. Has Malta implemented the e-Apostille program?

Malta has not yet implemented the e-Apostille program.