Aircraft are not ordinary movable property. Its often considerable economic value, its inherent mobility and its registration system place it in a legal category of its own, creating an link between the law governing movable property and the law governing immovable property. Seizing an aircraft, whether it's a private jet, a commercial aircraft or a helicopter, cannot be improvised and must comply with strict requirements. Recently, French law has undergone significant changes, notably with the incorporation of new provisions into the Transport Code and the clarification of the role of the Enforcement Judge. This article provides an expert analysis of the current rules to help you master these complex procedures.
Introduction to aircraft seizure procedures: A specific legal framework
Under French law, aircraft are legally classified as movable property, but their special nature has led the legislator to apply a hybrid regime to them. Subject to registration and possessing a nationality, it is subject to specific rights in rem which, paradoxically, bring it closer to immovable property. This duality has a direct impact on enforcement procedures and the way in which a creditor may apprehend this asset. There is a link between the nationality of the device and the applicable procedure.
The law on aircraft seizures must reconcile two contradictory imperatives: the effectiveness of recovery for the creditor and the need to avoid excessively hampering the commercial operation of a transport tool that is international by nature. The applicable texts, mainly taken from the French Transport Code (Code des transports) and the French Aviation Code (Code de l’aviation frequently derogate from civil law. common civil enforcement procedures. Mastering these nuances is essential for any bailiff (now commissaire de justice) or lawyer working in this sector.
Distinctions and particularities of aircraft in seizure law
Although aircraft share the status of «registered movable property» with ships, their seizure regimes differ considerably. Air law has its own international conventions, such as the 1948 Geneva Convention on the International Recognition of Rights in Aircraft. Unlike traditional seizures of movable property, where physical dispossession is the rule, the precautionary seizure of aircraft is based above all on its legal and material immobilisation on the’airport or theaerodrome.
Although they share a specific type of movable property, the air transport system is clearly distinct from other systems. rules applicable to the seizure of vessels on a number of procedural points. For example, the nationality criteria and the role of the’airport differ from those of harbourmasters’ offices. These specific features mean that greater care must be taken when the’bailiff instrument, which must establish a link between the debt and the device.
Seizure of aircraft: grounds, conditions and procedures (precautionary and enforcement)
As with all assets, there are two main types of procedure: precautionary seizure, which is designed to freeze the asset pending a decision by the court. judgment The second is seizure for execution, the purpose of which is the forced sale of the equipment to pay off the creditor. Each of these options is subject to strict conditions laid down in the French Commercial Code. civil procedure seizure being a serious act.
The special legal regime for the precautionary seizure of aircraft
Precautionary seizure is an essential surprise measure. It allows the aircraft to be immobilised on the tarmac of the’airport or theaerodrome to prevent it from leaving French territory. For seize property, the creditor must generally apply for a judicial authorisation on application. The law requires that the claim appears to be founded in principle and that recovery is threatened. A particularity of air law is that urgency is often presumed due to the extreme mobility of the goods, which can cross borders in a matter of minutes as soon as the aircraft is airborne.’aircraft has landed.
The seizure requires the compulsory intervention of a commissioner of justice (formerly bailiff) to serve documents on the’aerodrome and the captain. Once the document has been served, the aircraft may no longer take off or land. rise or move. The ministerial officer plays a pivotal role here, as any error in the designation of the device or the notification may invalidate the procedure. The seizure report writ of attachment, must be drawn up with surgical precision.
The aircraft seizure and enforcement procedure and its specific features
Seizure and execution, or seizure and sale, is the final stage in enforced debt collection, sometimes following a compulsory liquidation of theoperator. It requires the seizing party to have a enforcement order (a court decision or a notarial deed) establishing a liquid and payable claim. The procedure begins with the meaning a summons to pay worth formal notice. It is only if the debtor fails to perform within the deadline the aircraft is seized and then sold to the auctions public.
Once the award has been made on price setting, the procedure continues with the sales price distribution and the settlement of costs, The order of creditors is specific to transport law. It should be noted that certain liens, such as those relating to costs of justice, conservation or crew salaries, have priority. L’bailiff in charge of the sale must ensure adequate publicity to attract potential bidders and obtain the best possible price. price.
Jurisdiction of the Enforcement Judge and immunity of foreign/state aircraft: Key developments in 2023-2024
In recent months, there have been some major developments in the field of aircraft seizure litigation, which have clarified the rules governing the seizure of aircraft. link between the competent court and the protection afforded to foreign states. These legislative and jurisprudential developments are fundamental to the strategy of claimants and the defence of debtors in court. judicial tribunal.
Exclusive jurisdiction of the Enforcement Judge for aircraft (Decree 2023-1008)
Until recently, the division of responsibilities between the president of the court of trade and the enforcement judge could lead to confusion, particularly in the case of foreign aircraft. The decree no. 2023-1008 of 31 October 2023 clarified the situation by completing the codification in the Transport Code (in particular the’art. L. 6123-1).
Recent codification now confirms the exclusive jurisdiction of the Enforcement Judge to deal with measures taken on aircraft. This jurisdiction of the JEX explicitly extends to aircraft of nationality foreign or whose owner is not domiciled at in France. This is a welcome simplification: the JEX becomes the single point of contact for authorise a precautionary measure or settle disputes, thereby centralising technical litigation. However, this exclusive jurisdiction is subject to Reservation of jurisdiction optional, concurrently recognised to the Chairman of the court of trade when the claim is of a commercial nature, creating a link alternative jurisdiction.
Immunity from execution: State aircraft and «emanations»
The seizure of aircraft belonging to foreign States or national companies («State emanations») comes up against the principle of immunity from execution. Customary international law and French law protect the property of foreign states assigned to a mission of public service. public. State aircraft benefit from principles of immunity from execution, This makes their seizure particularly complex without an express waiver.
However, the recent case law of the Cour de cassation (stop Civ. 1re, 13 March 2024) stated that the express waiver of immunity from execution by a foreign State is sufficient to seize an aircraft belonging to that State, provided that the State does not prove that the aircraft is assigned a diplomatic or sovereign mission. In addition, the use of complex ownership structures, such as «Single Ship Companies» (companies dedicated to a single asset), is not always sufficient to act as a screen if the fictitious nature of the structure or the confusion of assets with the State is demonstrated, establishing a "single ship". link undeniable. The ministerial officer must be particularly vigilant about these aspects before proceeding.
Formalities, publicity and legal effects of the seizure of aircraft
Entering a seized aircraft is not limited to affixing seals. It triggers a series of reporting obligations designed to inform third parties, in particular the third party holder, This will make the measure enforceable, thereby guaranteeing the legal certainty of the operation.
Publicity and enforceability of seizures: the new 2022 regime
To be effective and enforceable against third parties, the seizure must be entered in the aircraft registration register. Since the order of 15 September 2021 and its entry into force in January 2022, the system for registering security interests has changed. For aircraft registered in France, registration will be made with the Direction Générale de l'Aviation Civile (DGAC), the Registrar of Civil Aviation and the Registrar of Civil Aviation. in charge of of the register.
This publicity is crucial: it fixes the legal status of the appliance. Any act of disposition (sale, mortgage) subsequent to the publication of the seizure is not enforceable against the seizing creditor. The keeping the register plays a pivotal role in protecting the rights of third parties and creditors. L’study The bailiff must ensure that the documents are promptly transmitted to the register in order to avoid any conflict of rights and to preserve the confidentiality of the documents. link enforceability.
Consequences of seizure: Fixed assets, management and economic issues
The immediate effect of seizure is immobilisation. This means that parking fees, maintenance and insurance costs continue to run and can quickly add up to a considerable amount. The bailiff usually appoints a custodian (often the captain, the maintenance company or the«operator of the airport) responsible for the preservation of the aircraft.
This downtime can have disastrous economic repercussions for a company aerial or a operator. This is why the Transport Code provides for mechanisms that allow, under very strict conditions and against sufficient guarantees, to’authorise one or more trips despite the seizure. This measure ensures that economic activity is not totally paralysed if the security of the debt is not compromised and if the link confidence is maintained.
Liability and release in the event of wrongful seizure of aircraft
The power of the weapon of seizure means that it must be used with restraint. A creditor who seizes in a reckless manner, or a public official who fails to comply with the formalities of the Code of civil procedure their clients to heavy penalties.
Criteria and evidence of wrongful seizure of aircraft
If the seizure is carried out without a valid title, or if it is maintained even though the debt has been settled, it may be considered abusive. Jurisprudence punishes the creditor's fault, which may lie in an intention to harm or a blamable thoughtlessness, breaking the agreement between the creditor and the debtor. link proportionality. The immobilisation of a commercial aircraft for a minor debt may be a case of abusive nature of the seizure with regard to the disproportion caused.
If the value of the aircraft is out of all proportion to the amount of the debt (for example, blocking an Airbus for an unpaid catering invoice of a few thousand euros), the judge may order the aircraft to be released and order the seizing party to pay compensation for the operating loss. Liability may be incurred for the commercial loss suffered by the company.’operator, establishing a link direct causality with the measure.
Procedures for releasing seized aircraft
Seized debtors have several ways of obtaining the release of their equipment. The quickest way is often to provide a guarantee. The debtor offers a bank guarantee or deposits a sum of money equivalent to the amount of the debt claimed. The judge then orders the release of the seizure, with the guarantee replacing the aircraft in the creditor's assets. There is then no longer any link downtime on the device.
In addition, if the distrainor, after a precautionary seizure, does not initiate proceedings on the merits to obtain an title enforceable in the deadline (usually one month), the seizure lapses. In accordance with’article R6123 of the Transport Code, deadlines must be scrupulously respected. It should be noted that release decisions handed down by a judge in a Member State of the European Union benefit from cross-border recognition, reinforcing the link European judicial system.
Conclusion: Challenges and prospects for an aircraft seizure
Aircraft seizure is a technical procedure at the crossroads of transport law, law of the sea and law of the sea. domain and enforcement procedures. Recent reforms have strengthened the central role of the enforcement judge and clarified immunity regimes. For the creditor, this is a formidable means of exerting pressure, but it must be handled with care to avoid the risk of abuse and incurring liability on his part or that of his counsel.
To secure your procedures or challenge an immobilisation, our expert lawyers in enforcement and transport law to help you navigate these complex legal waters and establish the right course of action. link strategic.
For an in-depth analysis of your situation and tailored advice, contact our team of lawyers.
Frequently asked questions
What is a precautionary seizure of aircraft?
This is a legal measure that allows an aircraft to be temporarily grounded to ensure the safety of its occupants. payment of a claim, even before a credit is obtained. judgment to prevent it from escaping. It often requires a link emergency.
Can an aircraft belonging to a foreign state be seized?
In principle no, in reason immunity from execution. However, this immunity may be waived if the State has expressly waived it or if the aircraft is assigned to a private commercial activity, creating a link with ordinary law.
Who can authorise the seizure of an aircraft?
Since decree in 2023, the’Execution from location (JEX) has exclusive jurisdiction to authorise precautionary measures on aircraft, whether they are French or foreigners, under reserve certain commercial skills.
How can I obtain the release of a seized aircraft?
The debt can be discharged by paying the debt, contesting the validity of the seizure before a judge, or by providing sufficient financial security (a bond or deposit) to break the seizure. link input.
What are the risks of wrongful seizure?
If the seizure is found to be abusive (disproportionate or unfounded), the creditor may be ordered to pay substantial damages to compensate for operating losses and immobilisation, by link with the loss suffered.
Can a seized aircraft continue to fly?
No, the aircraft is stuck on the’air parking. However, the judge may exceptionally authorise one or more specific journeys if the debtor provides sufficient security to cover the claim.
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