Firm: Cabinet Gomes
Miranda & Associados
1. Which government authority in your country has primary responsibility for the regulation of aviation and the registration of aircraft?
The “Agence Nationale de l’Aviation Civile” (“ANAC”).
2. Can foreign-owned aircraft be registered on your national aircraft register, for example when leased to an airline based in your country?
Generally an aircraft may only be registered in the Republic of Congo if it is owned by a Congolese company or individual. ANAC may authorise the registration of an aircraft owned by a foreign entity if the aircraft is to be operated by a Congolese company under lease
3. Are there any limits/restrictions on the age of the aircraft that may be registered or operated in your country?
To the best of our knowledge, there are no specific limitations in this respect.
4. Who is entitled to have their interests recorded on your national aircraft register?
The owners of the aircraft, a mortgagee and potentially some other creditors.
5. Would a mortgage governed by a foreign law over aircraft and/or engines be recognised in your country?
In principle any mortgage over assets located in the Republic of Congo must be governed by Congolese law. However, since the Republic of Congo is a signatory to the Chicago Convention and to the Geneva Convention, a mortgage agreement governed by the laws of a foreign contracting state can be recognized here provided the respective requirements are met, notably that (i) the mortgage was created under the terms of the law of the Contracting State where the aircraft was registered at the time (and before importation and registration in Congo); (ii) the mortgage was duly registered in the public registry of the Contract State and (iii) the certificate of deregistration expressly confirms the previous creation and registration of said mortgage.
6. To be recognised under your laws, must a lease or mortgage over an aircraft and/or engines be in a particular form or language, are there any special terms that it must contain and/or must it be registered or filed anywhere?
All documents to be submitted to public authorities must be in French (or be translated into French by a certified translator) and if the document is signed abroad, it must be notarised at time of signature and legalised.
The Republic of Congo is a member State of the Economic and Monetary Community of Central Africa (CEMAC) and CEMAC Regulations, including the Civil Aviation Code are applicable. The CEMAC Civil Aviation Code and domestic laws establish special terms and formalities and registration requirements in respect of a lease or mortgage over aircraft and/or engines.
7. If an engine owned by a third party is installed on an aircraft, would your country’s law treat that engine as being subject to the same ownership as the aircraft itself? In other words is there a risk that by physical installation, the engine owner loses its title to the engine or that the engine becomes subject to any mortgage which exists over the aircraft on which it is installed? Would a nameplate fixed on the engine, confirming its separate ownership, make any difference?
According to the CEMAC Civil Aviation Code a mortgage over an aircraft covers, inter alia, the airframe, the engines, the propellers, on-board equipment and all parts of the aircraft that are part of it or are only temporarily separated from it, provided that they belong to the same owner. There is not specific registry for aircraft engines in Congo. A registered owner or mortgagee will not lose their rights even if the engines are installed on an aircraft owned by other party provided there is evidence to that effect (such as a special reference in the registry, a nameplate fixed in the engine, etc.).
8. Has your country ratified and brought into force any of the following aviation related conventions: 1944 Chicago Convention, 1948 Geneva Convention and 2001 Cape Town Convention (with its Aircraft Equipment Protocol)?
The Republic of Congo has ratified the 1944 Chicago Convention and the 1948 Geneva Convention. Although the Republic of Congo is a signatory to and in 2013 ratified the Cape Town Convention and that Protocol, and declared self-help under the Convention, it has made no declarations yet under the Protocol.
9. Does the local civil aviation authority provide assurances to lessors and financiers as to prompt deregistration of the aircraft (for example the IDERA under the Cape Town Convention)?
Not that we are aware of.
10. Are powers of attorney from a local airline in favour of a lessor or mortgagee likely to be effective to allow the lessor or mortgagee to deregister the aircraft? Can such powers be irrevocable, be governed by a foreign law and/or do they need to be in any particular form for local recognition?
Yes and a power of attorney is recommended. In practice an owner/lessor may have to obtain and enforce a judgment to recover possession of the aircraft. Extrajudicial remedies would also be limited in the event of insolvency and similar procedures.
11. Are there any charges which would have to be paid before an aircraft can be deregistered from your national register (e.g. local air navigation fees)?
Yes and see also the Cape Town Convention declarations.
12. Would courts in your country generally uphold a choice of law and jurisdiction clause in an aircraft lease or loan document entered into between commercial parties?
Yes to the extent this does not conflict with public policy. Congolese courts have general jurisdiction over actions relating to moveable assets located in the country. However, neither the Code of Civil Procedure nor the Law on the Organization of the Judicial System contains any provision setting forth the exclusive nature of said jurisdiction.
13. If the lease is terminated for lessee default, would the lessor be entitled to repossess (by taking physical possession) of the relevant aircraft or engine or does it need the prior permission or order of a local court or agency?
Under the OHADA Uniform Act on Securities, the lessor may take possession of an aircraft upon termination of the lease agreement without judicial intervention provided the aircraft is valued by an expert. Please contact us for further information in any particular case.
14. In clear cases of a lessee default is there an effective summary procedure or interim relief available in your courts allowing lessor prompt repossession of the aircraft? Would security be required to avail of such process?
Yes. The procedure for repossession after a lease default may be either the “simplified procedure for restitution of a specific moveable asset” (“procedure simplifiée de restitution d’un bien meuble determine”) or a legal action requesting the court to declare an event of default under the lease and order the restitution of the aircraft. Alternatively, the lessor may file a simplified procedure aimed at requiring the lessee to pay the amounts due (1998 OHADA Uniform Act on Simplified Recovery and Enforcement Procedures). The lessor may also apply for interim measures specifically to arrest the aircraft (“saisie mobilière conservatoire”), either in anticipation of, or in aid of, the “simplified procedure” or legal action.
15. What is the procedure for a lender to enforce a mortgage over the aircraft or engine in your country when the borrower is in default? For example must the aircraft be sold by the court or can the lender itself take possession and arrange a sale?
The typical procedure would be similar to that noted in 14 above.
16. Do the courts in your country have experience of repossession / foreclosure action involving aircraft? If so, please provide some details and indicate the time such proceedings generally would be expected to take from start to finish.
Unfortunately there are no reported court decisions on this matter so it is difficult to predict. According to our experience of other matters, interim measure proceedings may be finalized in roughly one month but the required legal action and possibly necessary enforcement proceedings may be pending for more than one year (even without appeals).
17. Where an aircraft is leased to (i.e. not owned by) the airline operating it, can that airline create liens or encumbrances over the aircraft for example if it fails to pay suppliers, airport charges or maintenance providers? If so, would the existence of any such liens (e.g. in respect of unpaid airport charges) prevent an owner or mortgagee from repossessing the aircraft?
Yes – see Article 49 of the CEMAC Civil Aviation Code – for example navigation and landing charges are privileged debts (ranking above a mortgage).
18. Are there any circumstances under your country’s laws where a non-operating lessor, owner or a mortgagee could be held liable for damage caused by the aircraft whilst operated by an airline, even if there is no fault on the part of lessor, owner or mortgagee?
An owner may be strictly liable if the lease is not registered; if registered the owner would only be liable if it is at fault (Article 95 of the CEMAC Civil Aviation Code).
19. Are there any legal requirements in relation to insurance and/or reinsurance of an Aircraft registered in or operated to/from/within your country? For example is there a minimum liability insurance amount required and must some or all of the cover be taken out with local insurers?
Yes there are specific legal requirements for insurance to be taken out with local insurance companies. However it is possible to reinsure with a foreign company.
20. Are there any other specific issues arising under your country’s laws that you feel a lessor or financier of aircraft or engines ought to be aware of when considering whether to lease or finance an aircraft to be based or registered in your country?
Yes. Foreign exchange controls, registration requirements and procedures and enforceability of foreign awards and judgements (subject to mandatory recognition and confirmation proceedings).