Aviation finance in Germany: overview

A Q&A guide to aviation finance in Germany.

This Q&A provides a high level overview of key practical issues including financing options for purchasing aircraft; registration and deregistration requirements; transfer of title; security, including aircraft mortgages; transfer of security; enforcement of security and repossession; and application of the Cape Town Convention.

To compare answers across multiple jurisdictions, visit the Aviation Finance Country Q&A tool.

The Q&A is part of the global guide to aviation finance. For a full list of jurisdictional Q&As visit www.practicallaw.com/aviationfinance-guide.

Rainer Amann and Claudia Hess, Urwantschky Dangel Borst PartmbB
Contents

Financing options

1. What are the main options available for financing the purchase of an aircraft? How are aircraft purchases typically financed?

The main options available for financing the purchase of an aircraft in Germany are:

  • Operating leases.

  • Direct bank loans.

  • Finance leases.

  • Export financing.

  • Portfolio financing.

  • Cash payment.

The most common option for financing the purchase of an aircraft is leasing, either under an operating lease (short-term leasing) or under a finance lease (long-term leasing).

 
2. What are the issues arising in relation to the various financing options?

Financiers typically seek to have the highest possible security to protect their investment. The most common form of security for aircraft financing is an aircraft mortgage (Luftfahrzeug-Registerpfandrecht) registered in the German Aircraft Mortgage Register (Register für Pfandrechte an Luftfahrzeugen).

 

Registration and deregistration requirements

Registration

3. What is the procedure for registration of an aircraft?

An aircraft must be registered in the German Aircraft Register (Luftfahrzeugrolle) (Article 14, German Regulation on Air Traffic Permission (Luftverkehrs-Zulassungs-Ordnung).

The competent body for aircraft registration is the German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA), which is based in Braunschweig. Registration is effected automatically by the LBA when granting the certificate of airworthiness. Therefore, obtaining a certificate of airworthiness is a prerequisite for registration of an aircraft in the Aircraft Register (see Question 7).

Eligibility for registration

As a general rule, registration on the German Aircraft Register is only possible if the owner of the aircraft is a:

  • German national.

  • National of an EU or EEA member state.

  • National of Switzerland.

Natural persons and corporate entities must normally have their place of domicile or business registration in Germany.

A person from a third party country can be registered as owner in the German Aircraft Register if it indicates to the LBA details of a person authorised to accept service of documents who meets the above criteria.

If an aircraft is leased from an owner that is not domiciled or based in the EU, the owner can be registered in the German Aircraft Register if the following conditions are met:

  • The lessee is the operator of the aircraft and is a German air carrier with a valid operating permit.

  • The aircraft is leased for at least six months.

  • The aircraft is based and can regularly be found at an airport in Germany.

  • The owner proved its ownership of the aircraft by providing original documents or notarised copies of the originals to the LBA.

  • The owner declares in writing that:

    • it is aware of its obligations under the German aviation laws (especially the German Regulation on Air Traffic Permission (Luftverkehrs-Zulassungs-Ordnung) and the German Air Traffic Act (Luftverkehrsgesetz);

    • the costs of registration of the aircraft can be charged on the aircraft operator; and

    • it is aware that the registration can be cancelled if the first three conditions listed above cease to apply, and that it must inform the LBA of any changes in this context.

Corporate entities must provide a:

  • Copy of the commercial register extract.

  • Declaration signed by the representative bodies of the company confirming that the company fulfils the following conditions (Article 3, German Air Traffic Act):

    • the aircraft is not registered in a foreign aircraft register;

    • the assets of the company are majority-owned by German or EU nationals;

    • German or EU nationals have control over these assets; and

    • the majority of the representatives of the company or the majority of the partners personally liable for the entity are German or EU nationals.

Documents required for registration on import of an aircraft

An aircraft is automatically registered in the Aircraft Register after obtaining the certificate of airworthiness. In the case of import of an aircraft, the LBA requires the following documents for registration of the aircraft:

  • Ownership documentation. To register an aircraft in Germany, the owner must prove its ownership of the aircraft. This can be done through a written declaration of the buyer and the seller, which is made on a form provided by the LBA. The sales contract is not sufficient, but the LBA accepts the bill of sale.

  • Airworthiness documentation. A certificate of airworthiness for export must be provided, along with confirmation of airworthiness by an approved maintenance company.

  • Certificate of deregistration or non-registration. The applicant must provide documentation to the LBA proving that the aircraft is not registered in any other aircraft register. This is usually proven by way of a non-registration certificate (for new aircraft) or deregistration certificate (for used aircraft).

  • Customs clearance. For aircraft that are imported from outside the EU, documentation on customs clearance must be provided. Customs duties are not usually payable on importation of aircraft to Germany. However, customs registration is required. Customs registration is made through an online registration process, and is usually carried out by a forwarding company. The customs clearance process only takes a few hours or minutes. Customs registration is usually carried out about four hours before the importation of the aircraft.

  • VAT declaration. Import of an aircraft into Germany is exempt from VAT if the aircraft is to be used by a company that predominantly undertakes international air carriage (Articles 4 and 8, paragraph 2, no.1, German Value Added Tax Act (Umsatzsteuergesetz)). The German Federal Ministry of Finance has published a list of the companies that mainly operate international air carriage. If the conditions for VAT exemption are not met, import VAT may be payable at a rate 19 %. However, pre-tax allowances may apply.

Timing

According to the LBA, the registration process currently takes about three to four weeks from filing of all the necessary documents. The owner of the aircraft receives a certificate of registration, which must be carried in the aircraft while it is operated.

Temporary registration

There is also a process for temporary registration of aircraft in Germany. The temporary registration is obtained from the LBA by way of a permit to fly. The timing for obtaining a permit to fly is two to three days.

 
4. What is the procedure for registration of aircraft mortgages?

In Germany, aircraft mortgages are registered in the Aircraft Mortgage Register (Register für Pfandrechte an Luftfahrzeugen) at the Local Court in Braunschweig.

The application procedure is governed by Articles 79 et seq. of the German Act on Rights on Aircraft (Gesetz über Rechte an Luftfahrzeugen).

An application for registration of an aircraft mortgage can only be filed once the aircraft is registered on the Aircraft Register of the German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA). The application for registration of an aircraft mortgage must:

  • Indicate the aircraft register number for the relevant aircraft.

  • Be drafted and filed by a German notary by way of a notarial deed in the German language.

The notarial deed must be filed at the Local Court in Braunschweig and include the following documents and information:

  • The application for registration of the mortgage, which indicates:

    • the mortgage amount;

    • whether interest is payable;

    • the interest rate; and

    • the start of the interest period.

  • General information on the aircraft, including the:

    • page number of the Aircraft Register on which the aircraft is registered;

    • nationality and registry mark of the aircraft;

    • aircraft type;

    • serial number of the airframe; and

    • name and place of residence of the aircraft owner.

  • An affidavit confirming that the mortgagor is the sole owner of the aircraft and that the aircraft is not mortgaged to another person or entity.

  • An affidavit confirming the value of the aircraft.

  • Confirmation that the mortgagor owes the secured obligations to the mortgagee.

  • A declaration subjecting the aircraft to immediate enforcement proceedings in the case of default under the mortgage, which includes enforcement measures against the mortgagor.

  • Confirmation that the mortgagee can obtain an enforceable copy of the notarial deed.

  • Confirmation that the mortgagor must bear the costs of the notarial deed and of registration of the mortgage in the Aircraft Mortgage Register.

On receipt of the application, the Local Court of Braunschweig will request payment of the registration fees. The amount of these fees is based on the value of the mortgage, and is calculated in accordance with the provisions of the German Court Fee Act (Gerichtskostengesetz).

The aircraft mortgage is registered once the payment of the fees is made and once the Court has reviewed and approved the required documents. Registration of an aircraft mortgage takes about two to three days from receipt of payment by the Court.

There is no separate mortgage register for aircraft engines and spare parts in Germany. An aircraft mortgage can only be registered over the whole aircraft. Spare parts or engines attached to the aircraft are not identified separately in the Aircraft Mortgage Register. The engines and spare parts are considered as parts of the aircraft. A registered aircraft mortgage will also cover spare parts and engines if both:

  • The aircraft owner is also the owner of the spare parts and engines.

  • The engines and spare parts are attached to the aircraft.

The parties can agree that an aircraft mortgage extends to engines and spare parts that are located elsewhere and are not attached to the aircraft. However, it is not possible to grant a mortgage solely over the engines and/or spare parts.

 
5. Can aircraft leases be registered? If so what is the procedure for registration of aircraft leases?

There is no specific register for aircraft leases in Germany.

An aircraft lease is not in itself registered in the Aircraft Register. However, if both the owner and the operator (that is, the lessee) of the aircraft are registered when the aircraft is registered, it is implied that the aircraft is a leased aircraft.

An aircraft lease must be approved by the German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA). The application form must be filed with the LBA at least four weeks before the intended start of the lease. The following documents and information must be provided to the LBA with the application form:

  • Aircraft type.

  • Aircraft registration number.

  • Aircraft serial number.

  • Name and address of the operator and the owner.

  • Copy of the certificate of airworthiness.

  • Copy of the lease agreement or description of the lease agreement, including the financial agreements.

  • A declaration signed by the lessee that the parties are aware of their responsibilities.

  • Proof that the foreign air carrier (if any) has a valid operating permit and a valid air operator certificate (AOC), and that the aircraft subject to the lease is listed in the AOC of the foreign air carrier (in the case of a wet lease).

  • Proof that the aircraft is insured against damages covered by the statutory liability of German air carriers.

Additionally, specific rules apply to each of the following types of lease:

  • Lease between German air carriers.

  • Lease between a German air carrier and an EEA carrier.

  • Lease between a German air carrier and a third country air carrier.

Within these three categories, there are further specific rules for the following types of lease:

  • Wet lease-in (that is, where the lessee leases an aircraft with crew, maintenance and insurance).

  • Short-term wet lease-in.

  • Wet lease-out (that is, where the lessor provides an aircraft with crew, maintenance and insurance).

  • Dry lease-in (that is, where the lessee leases an aircraft without crew, maintenance and insurance).

  • Dry lease-out (that is, where the lessor provides an aircraft without crew, maintenance and insurance).

 
6. What is the effect of registration of:
  • An aircraft?

  • An aircraft mortgage?

  • An aircraft lease?

Aircraft

The effect of registration of an aircraft in the German Aircraft Register is that the aircraft is authorised to operate.

Registration in the Aircraft Register does not establish ownership over the aircraft. Therefore, an incorrect registration does not create a legal presumption of ownership for a person registered incorrectly.

On registration, the aircraft is allocated an official registration number. The owner obtains a registration certificate that indicates the registration number. The registration number must be affixed on both sides of the aircraft and below the left wing, and the German flag must be affixed on both sides of the vertical tails.

The certificate of registration must be carried in the aircraft while it is operated.

Aircraft mortgage

To perfect an aircraft mortgage, the mortgage must be registered in the German Aircraft Mortgage Register (Register für Pfandrechte an Luftfahrzeugen), which is a public register maintained by the Local Court in Braunschweig. Registration is sufficient to perfect the mortgage.

A registered aircraft mortgage takes priority over any subsequently registered mortgage. The buyer of an aircraft will become the owner subject to any previously registered mortgage (and free of any mortgage that was not registered at the time of the purchase).

Aircraft lease

The effect of registration of an aircraft lease is that the lessee is registered as the operator of the aircraft. The operator/lessee of the aircraft is liable for any damage caused by the aircraft. The aircraft owner only bears liability in respect of the aircraft if the lessee is not registered as operator.

 
7. What is the procedure for obtaining a certificate of airworthiness?

An application for a certificate of airworthiness must be made on a form provided by the German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA). This form is available on the LBA's website (www.lba.de).

The main following documents are required to obtain a certificate of airworthiness:

  • Proof of ownership of the aircraft.

  • Commercial register extract or copy of the ID of the owner.

  • Declarations signed by the representatives of the owner indicating who owns the company's assets and who controls these assets.

  • Proof of nationality.

  • Insurance confirmation.

  • Confirmation of deregistration or non-registration of the aircraft.

  • Approval of the aircraft radio station.

  • Proof of airworthiness.

  • In the case of import:

    • certificate of airworthiness for export; or

    • airworthiness review certificate.

  • Noise certificate application.

  • Flight manual.

  • Weight report and loading plan.

  • Routine test certificate and last airworthiness certificate.

  • Proof of registration mark.

  • Customs duties and/or VAT payment confirmation.

It usually takes three to four weeks for the LBA to issue a certificate of airworthiness from receipt of all the required documents.

Once the certificate of airworthiness is issued, the aircraft is registered automatically by the LBA in the German Aircraft Register (see Question 3).

 

Deregistration

8. What is the effect of deregistration of:
  • An aircraft?

  • An aircraft mortgage?

  • An aircraft lease?

Aircraft

To deregister an aircraft, the owner must file the relevant application form with the German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA). The form is available on the website of the LBA. The owner must also file originals of the following documents with the LBA:

  • Registration certificate.

  • Airworthiness certificate.

  • Noise certificate.

After verification of the documents, the LBA deregisters the aircraft from the Aircraft Register. The owner obtains a confirmation of deregistration from the LBA.

It usually takes one to two weeks to obtain a confirmation of deregistration from the LBA.

Aircraft mortgage

Under German law, deregistration of an aircraft mortgage requires both:

  • A declaration of the mortgagee that it surrenders its rights under the mortgage.

  • Deletion of the mortgage from the German Aircraft Mortgage Register by the Local Court in Braunschweig.

On deregistration, the mortgage ceases to exist and the aircraft is no longer a security for the relevant claim.

Aircraft lease

As there is no specific aircraft lease register, a lease itself is not deregistered on termination of the lease agreement. However, if the operator is no longer the lessee of the aircraft, this must be notified to the LBA immediately on termination of the lease contract. The LBA will then deregister the lessee as the operator from the Aircraft Register and register the new operator, which must be indicated to the LBA. The new operator must meet the requirements of an aircraft operator under German law (see Question 3).

 

Transfer of title

9. How is legal title to an aircraft transferred?

Airframe

To transfer ownership of an aircraft, the owner must deliver the aircraft to the buyer, and both parties must agree that ownership is transferred to the buyer. If the buyer is already in possession of the aircraft, an agreement on the transfer of ownership is sufficient. A contract for the sale of an aircraft does not need to be notarised. The aircraft must then be registered with the German Civil Aviation Authority.

Engine

To transfer ownership of an engine, the owner must deliver the engine to the buyer, and both parties must agree that ownership is transferred to the buyer. If the buyer is already in possession of the engine, an agreement on the transfer of ownership is sufficient. The sale contract does not need to be notarised.

 

Security

Mortgages

10. What are the types of aircraft mortgages available? What are the validity requirements for aircraft mortgages?

There is only one type of aircraft mortgage under German law (that is, the Luftfahrzeug-Registerpfandrecht). Aircraft mortgages are regulated by the Act on Rights on Aircraft (Gesetz über Rechte an Luftfahrzeugen).

An aircraft mortgage must be registered in the Aircraft Mortgage Register with the Local Court in Braunschweig. The application must be filed by a German notary by way of a notarial deed. See Question 4 for details on the applicable registration procedure for aircraft mortgages.

 
11. Will a registered mortgage take priority over other mortgages and charges over the aircraft?

A registered aircraft mortgage takes priority over subsequently registered mortgage and other charges over the aircraft.

It is not possible to register aircraft liens or any other security interests in the Aircraft Mortgage Register. Only aircraft mortgages can be registered.

 
12. Can spare parts be subject to an aircraft mortgage? If not, are there any other forms of security that can be taken over spare parts?

Under German law, spare parts cannot individually be subject to an aircraft mortgage. A mortgage can only be registered over the whole aircraft. Spare parts or engines are not identified separately in the Aircraft Mortgage Register.

Spare parts are considered as parts of the aircraft. A registered aircraft mortgage also covers spare parts if both the:

  • Owner of the aircraft is also the owner of the spare parts.

  • Spare parts are affixed to the aircraft.

If the spare parts are not affixed to the aircraft but are located in a different place, the parties can agree that the aircraft mortgage also covers these spare parts. The extension of the mortgage over these spare parts must also be registered in the Aircraft Mortgage Register.

However, it is not possible to register a mortgage solely over spare parts in the Aircraft Mortgage Register.

The following other forms of security can be taken over spare parts under German law:

  • Retention of title (Article 449, German Civil Code (Bürgerliches Gesetzbuch) (BGB)).

  • Chattel mortgage (Articles 929 and 930, BGB).

  • Lien (Articles 1204 et seq., BGB).

These forms of security are not registered in any official register, but are solely based on the agreement between the grantor of the security and the secured party.

 

Leases

13. What forms of security can be granted over an aircraft lease?

The following forms of security can be granted over an aircraft subject to an aircraft lease:

  • Aircraft mortgage.

  • Retention of title.

  • Chattel mortgage.

 

Other forms of security

14. What other forms of security can be taken over an aircraft?

Airframe

Apart from aircraft mortgages, the following forms of security can be taken over an aircraft:

  • Retention of title (Article 449, German Civil Code (Bürgerliches Gesetzbuch) (BGB)).

  • Chattel mortgage (Articles 929 and 930, BGB).

Engine

An aircraft mortgage can be taken over an engine together with the aircraft, but not over the engine only. The following other forms of security can be taken over an engine independently from any security over the aircraft:

  • Retention of title (Article 449, German Civil Code (Bürgerliches Gesetzbuch) (BGB)).

  • Chattel mortgage (Articles 929 and 930, BGB).

  • Lien (Articles 1204 et seq., BGB).

 
15. What other forms of security over an aircraft can be registered?

No other forms of security over an aircraft can be registered under German law.

 

Transfer of security

16. Is it possible to transfer security interests over an aircraft? Are there specific issues of local law when transferring security interests?

Under German law, an aircraft mortgage is an accessory right, meaning that the mortgage only exists as an accessory to the secured claim. Therefore, a mortgage can only be transferred together with the secured claim (that is, if the secured claim is assigned, the assignee will have rights under the mortgage).

It is also possible to transfer other forms of security interests over an aircraft by agreement between the old and the new creditor.

 
17. Is a transfer of security subject to registration requirements?

The transfer of an aircraft mortgage must be registered on the Aircraft Mortgage Register at the Local Court in Braunschweig (that is, the old and new creditors must agree to the change on the mortgage register). The new mortgagee is then registered in the Aircraft Mortgage Register.

 

Enforcement of security and repossession

Mortgages

18. What are the circumstances in which a mortgagee can take possession of the aircraft and/or sell the aircraft? What requirements must the mortgagee comply with?

A mortgagee can take possession of the aircraft if it has the contractual right to do so. However, self-help remedies are not recognised in Germany, including in the event of default. Only the owner of the aircraft can sell the aircraft.

 
19. What is the procedure for repossession of the aircraft?

To repossess an aircraft against the will of the current possessor, the mortgagee must initiate legal proceedings before a competent civil court. As part of these proceedings, the mortgagee must prove that it has a contractual right to repossess the aircraft. The court will then order the current possessor to return the aircraft.

An interim injunction can be granted in the case of urgency and if there is a risk of deterioration of the aircraft. It only takes several days to obtain an interim injunction, whereas it can take several months to more than one year (in the case of an appeal) to obtain a final judgment.

If the debtor agreed to immediate enforcement under a notarial deed, a mortgagee can also enforce its rights without prior legal proceedings.

A mortgage is enforced by way of public auction of the aircraft.

 
20. Will local courts recognise a choice of foreign law in an aircraft mortgage? Are there any mandatory local rules that apply, despite a choice of foreign law?

Generally, German courts recognise a choice of foreign law provided that the foreign rules do not violate German public order.

 
21. Will local courts recognise and enforce a foreign court judgment in favour of a mortgagee?

Generally, German courts recognise and enforce foreign court judgments if certain requirements are met (for example, if there is a bilateral treaty in place). Judgments from EU countries are recognised under Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

 

Other forms of security

22. What is the applicable procedure for repossession of an aircraft under other forms of security interests?

See Question 19. Legal proceedings must also be commenced for repossession of an aircraft under other forms of security interests.

 

Leases

23. In the event of a default event under an aircraft lease, can the lessor take possession of the aircraft without judicial intervention?

A lessor cannot take possession of an aircraft without judicial intervention, as self-help is not permitted under German law.

 
24. What is the procedure for taking possession of an aircraft before the expiration of a lease?

If the lessee complies with its obligations under the contract, the lessor cannot take possession of the aircraft before the expiration of the lease. If there is a breach of the contract, the lessor will have to initiate legal proceedings to obtain a judgment stating that the lessee must transfer the aircraft to the lessor. The procedure is similar to that described in Question 19.

 
25. If recovery of the aircraft is contested by the lessee and a court judgment is obtained in favour of the lessor, how long is it likely to take to gain possession of the aircraft?

If a court judgment is obtained in favour of the lessor, and the lessee refuses to return the aircraft, it can take several weeks or months for the lessor to gain possession of the aircraft by way of proceedings to enforce the court judgment.

 
26. Will local courts recognise a foreign court judgment in favour of a lessor?

Generally, German courts will recognise a foreign court judgment in favour of the lessor, unless this violates German public order.

 

Cape Town Convention

27. Has your country signed and ratified the Convention on International Interests in Mobile Equipment (Cape Town Convention)?

Germany signed the Cape Town Convention on 17 September 2002, but has not ratified it. Germany has no current plans to ratify the Cape Town Convention.

 
28. Has ratification of the Cape Town Convention caused any conflicts or issues with local laws?

Not applicable. Germany has not ratified the Cape Town Convention.

 
29. What is the legal position regarding non-consensual rights and interests under Article 39 of the Cape Town Convention?

Not applicable. Germany has not ratified the Cape Town Convention.

 
30. Has your country adopted the remedies on insolvency provided under Article XI of the Protocol to the Cape Town Convention?

Not applicable. Germany has not ratified the Cape Town Convention.

 
31. What is the procedure to file an irrevocable deregistration and export request authorisation (IDERA)?

Not applicable. Germany has not ratified the Cape Town Convention.

 

Reform

32. Are there any proposals for reform in the area of aviation finance?

There are currently no proposals for reforms in the area of aviation finance. However, certain legal scholars have suggested amendments to various German laws so that Germany can ratify the Cape Town Convention. Germany is not currently planning to ratify the Cape Town Convention.

 

Online resources

German Civil Aviation Authority (Luftfahrt-Bundesamt) (LBA)

W www.lba.de

Description. This is the official website of the LBA. The website is regularly updated by the LBA and contains information and forms concerning registrations, applications and other aviation-related issues. The website is available in the German language, and some pages and forms are also available in English. The German language version is binding.

Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz)

W www.gesetze-im-internet.de

Description. This is an official website maintained by the German Ministry of Justice and Consumer Protection that provides access to all German laws. The website is updated regularly by the Ministry, so that the laws available are normally up to date. Some of the laws are translated into English. Only the German version of the laws is binding.



Contributor profiles

Rainer Amann, Partner

Urwantschky Dangel Borst PartmbB

T +49 731 70 70 937
F +49 731 70 70 999
E ramann@udabo.de
W www.udabo.de

Professional qualifications. Germany, Qualified Lawyer; Specialist Lawyer for Transportation Law (Fachanwalt für Transportrecht)

Areas of practice. Aviation law; transport law; contract law.

Languages. German, English

Professional associations/memberships

  • Aviation Insurance Association (AIA).
  • European Air Law Association (EALA).
  • Transport Lawyers Association (Deutsche Gesellschaft für Transportrecht).

Claudia Hess, Partner

Urwantschky Dangel Borst PartmbB

T +49 731 70 70 941
F +49 731 70 70 999
E chess@udabo.de
W www.udabo.de

Professional qualifications. Germany, Qualified Lawyer

Areas of practice. Aviation law; commercial law; contract law.

Languages. German, English, French, Chinese (Mandarin)

Professional associations/memberships

  • European Air Law Association (EALA).

  • International Aviation Womens Association (IAWA).

  • Société Française de Droit Aérien et Spatial (SFDAS).

  • Association of German and Chinese Jurists (Deutsch-Chinesische Juristenvereinigung).


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