Seizing an aircraft is a formidable procedure for a creditor and devastating for a debtor. Because of the considerable economic value of these assets and their great mobility, their forced immobilisation is a powerful lever in debt recovery. However, this measure is governed by a complex legal regime, at the crossroads of property law, transport law and civil enforcement procedures. Its implementation requires a precise analysis of the applicable national and international rules. The specific nature of this procedure brings it closer in some respects to the vessel seizureAlthough it has its own foundations and specific features. Understanding these mechanisms is essential for all economic players, whether creditors seeking to secure their rights or aircraft owners wishing to protect themselves against wrongful grounding. Our firm offers tailor-made support for these technical procedures, particularly in the context of our services for entering means of transport.
Introduction: the special regime for aircraft
Aircraft disrupt the traditional legal classification of property. Although it is classified as movable property, its legal status is similar to that of immovable property, justifying seizure rules that depart from ordinary law.
Definition of aircraft
Legally, article L. 6121-2 of the French Transport Code expressly classifies aircraft as movable property. This category includes any aircraft capable of rising or travelling through the air, whether commercial aircraft, private jets, helicopters or dirigible balloons. However, this classification as "movable" is immediately tempered by a set of specific rules that take account of its value and its nature as international transport property.
Special features and assimilation to real estate
Aircraft are not ordinary movable property. Its legal status borrows many characteristics from that of immovable property. The central element of this particularity is its compulsory registration in a national register, in the same way as land registration for immovable property. This registration, as provided for in the Civil Aviation Code, makes it possible to identify the aircraft, its owner and the real rights that encumber it.
This quasi-assimilation with a building is manifested mainly through two mechanisms:
- Publicising rights : The sale of an aircraft or the constitution of rights in rem over it must be advertised in the registration register in order to be enforceable against third parties. This publication requirement is directly inspired by the system applicable to real estate transactions.
- The aerial mortgage : Aircraft can be mortgaged, a security interest traditionally reserved for immovable property. Aircraft mortgages, governed by the French Transport Code, enable creditors to secure their claims against the value of the aircraft and to benefit from a preferential right and a right of resale.
This hybrid status, between movable property by nature and immovable property by legal purpose, justifies the existence of specific seizure procedures, distinct from the seizure and sale of movable property under ordinary law.
The legal basis of aircraft seizure
The legal framework governing the seizure of aircraft is multifaceted. It is based on specific national provisions, international conventions and, subsidiarily, on the ordinary law of enforcement procedures.
Civil Aviation Code and Transport Code
French law on the seizure of aircraft has its main source in two codes. Historically, the Civil Aviation Code, in particular articles R. 123-1 et seq., set out the rules for precautionary seizure and enforcement. In an effort to clarify and centralise these provisions, a codification movement has gradually transferred them to the Transport Code. Today, articles L. 6123-1 et seq. of the Transport Code form the legislative basis for the subject. This codification process has recently been completed, making the applicable law easier to understand.
International conventions (Rome 1933, Geneva 1948)
The international dimension of air transport makes international conventions particularly important. Two main texts should be mentioned:
- The Rome Convention of 29 May 1933 for the unification of certain rules relating to the precautionary seizure of aircraft. Although not ratified by France, it is an important doctrinal and historical reference, having inspired many national systems. In particular, it establishes the principle that aircraft assigned to a State service or regular public transport cannot be seized, except for certain specific claims.
- The Geneva Convention of 19 June 1948 on the International Recognition of Rights in Aircraft. Ratified by France, this convention is essential. It does not organise the seizure procedure itself, but it does guarantee the recognition of rights in rem (ownership, mortgages) duly entered in the register of a contracting state. It therefore has a direct impact on the effectiveness of an attachment by determining the order of creditors and protecting the holders of registered rights.
Subsidiary role of ordinary law
Where the special texts of the Transport Code or international conventions are silent, the ordinary law of civil enforcement procedures, codified in the Code of Civil Enforcement Procedures (CPCE), applies. This subsidiary role is fundamental. For example, the general principles governing the territorial jurisdiction of the court, the conditions of validity of bailiff's documents or the means of appeal against a decision to authorise seizure may be taken from the CPCE, unless a special rule expressly derogates from them.
Precautionary seizure of aircraft
Attachment is a preventive measure. Its purpose is to immobilise an aircraft in order to secure a debt whose validity has not yet been definitively established by a writ of execution. The aim is to prevent the debtor from organising his insolvency by moving the aircraft out of the creditor's reach.
Conditions (claim appears to be well-founded, role of the 1952 Convention by analogy)
To obtain authorisation to levy a protective attachment on an aircraft, the creditor must demonstrate that its claim "appears to be founded in principle". This condition, taken from article L. 511-1 of the CPCE and applicable by reference, is less demanding than proof of a claim that is "certain, liquid and due". Mere plausibility is sufficient. The creditor must present the judge with evidence that makes his claim credible.
In addition, it must justify "circumstances likely to threaten the recovery" of its debt. The high mobility of the aircraft and the ease with which it can leave the national territory are in themselves circumstances of this nature.
Interestingly, although it relates to ships, the 1952 Brussels Convention on attachment is sometimes used by analogy to clarify certain concepts. It requires only a simple "allegation of claim", an even lower threshold. Although this rule is not directly transposable, the liberal spirit that drives it influences the assessment of judges, who are aware of the need to act quickly for this type of asset.
Procedure (judicial authorisation, territorial jurisdiction, publicity)
The procedure begins with an application to the judge. The creditor must obtain judicial authorisation before any immobilisation measures can be taken. The enforcement judge (JEX) has jurisdiction. Recent case law has clarified that the JEX has exclusive jurisdiction to authorise the precautionary seizure of a foreign aircraft or an aircraft belonging to an owner not domiciled in France (Civ. 2e, 2 Feb. 2023). Territorially, the court with jurisdiction is that of the place where the debtor lives or, if the debtor is abroad, that of the place where the measure is executed, i.e. the court within whose jurisdiction the airport where the aircraft is parked is located.
Once the order has been obtained, a bailiff serves it on the debtor and notifies the airport authority and the civil aviation authority to ensure that the aircraft is effectively immobilised. Publication of the seizure in the aircraft's registration register is a fundamental step in making it enforceable against third parties, in particular a potential buyer.
Effects and release
The main effect of the seizure is to immobilise the aircraft. It can no longer take off. This material unavailability has immediate economic consequences for its operator (cancellation of flights, loss of income). The shipowner or any other interested party may request the release of the seizure. This release can be obtained either by contesting the merits of the measure (the claim does not appear to be well-founded, the procedure is irregular), or by providing a sufficient financial guarantee (bank guarantee, deposit of a sum) to cover the amount of the alleged claim. The judge will then rule on the application, balancing the interests of the creditor against the damage suffered by the owner of the appliance.
Seizure and execution of aircraft
Seizure and execution is a compulsory enforcement measure. It is no longer a protective measure but aims to sell the aircraft in order to pay the creditor the price obtained. It assumes that the creditor already has a recognised claim.
Conditions (writ of execution, ownership of aircraft)
The sine qua non of seizure and execution is that the creditor must hold a writ of execution. This may be a final court judgment, a notarised deed bearing the enforcement formula or any other instrument to which the law attaches enforceability. Without such a document, seizure and enforcement is impossible.
Secondly, the aircraft must belong to the debtor covered by the enforcement order. Proof of ownership is therefore a major issue. Complex ownership structures (shell companies, leasing, trusts) can make it difficult to identify the true owner and require in-depth investigations, often with the help of a lawyer.
Procedure (summons, report, notification, publicity)
The procedure begins with the service of a summons to pay on the debtor by a bailiff. This summons instructs the debtor to pay the debt, failing which the aircraft will be seized and sold. If payment is not made, the bailiff seizes the aircraft and draws up a seizure report. This act marks the starting point of the legal unavailability of the aircraft: it can no longer be sold or further encumbered by its owner.
The seizure is then notified to the registered creditors (particularly mortgagees) so that they can assert their rights. The procedure culminates in the drafting of a schedule of conditions of sale and the organisation of the forced sale. This crucial stage, which is akin to forced sale of aircraftThis is usually done by public auction before the court.
Latest developments in case law and legislation
Aircraft seizure law is constantly evolving, driven by legislation and court rulings that fine-tune the applicable regime.
Jurisdiction of the enforcement judge (decree 2023-1008)
Decree no. 2023-1008 of 31 October 2023 completed the codification of the regulatory rules on seizure and security interests in aircraft in the French Transport Code. This reform, which came into force on 1 November 2023, has clarified and modernised the texts, but above all it has definitively established the principle that the enforcement judge (JEX) has jurisdiction over all disputes relating to aircraft seizures, reinforcing the consistency and specialisation of the procedure.
Immunity from execution of state aircraft (civ. 1re, 13 March 2024)
A very recent decision by the Cour de cassation (French Supreme Court) clarified the following points immunities from execution enjoyed by foreign States. In a judgment of 13 March 2024, the Court held that an express and general waiver by a State of its immunity from execution was sufficient to permit the seizure of an aircraft belonging to it. It is not necessary to obtain a special waiver for a particular aircraft, as long as the State does not show that the aircraft is specifically for the use of its diplomatic mission. This decision facilitates proceedings against State debtors by limiting their ability to hide behind their immunity.
Seizure of bunkers (Paris case law, 7 May 2003)
The question of the legal nature of fuel (bunkers) was settled by the Paris Court of Appeal in a ruling dated 7 May 2003. The court ruled that fuel, although distinct from the aircraft itself, is a "necessary accessory" to its operation. As its immobilisation effectively immobilises the aircraft, its seizure must be governed by the special rules governing the seizure of aircraft and not by the ordinary law governing the seizure of movable property. This logical solution confirms that any measure having the effect of grounding an aircraft must comply with the guarantees and procedures specific to this asset.
Aircraft seizure is a legal weapon whose complexity and financial stakes call for highly specialised expertise. Proceedings that are not properly initiated can be annulled, while an ill-prepared defence can result in considerable economic losses. For an in-depth analysis of your situation and an appropriate strategy, contact our team of lawyers.
Sources
- Transport Code (in particular articles L. 6123-1 et seq., R. 6123-1 et seq.)
- Civil Aviation Code (in particular articles R. 123-1 et seq.)
- Code of civil enforcement procedures
- Geneva Convention of 19 June 1948 on the International Recognition of Rights in Aircraft
- Rome Convention of 29 May 1933 for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft
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