The precautionary arrest of an aircraft in France is an emergency measure which allows a creditor, even without a final judgment on the validity of its claim, to immobilize the aircraft of his debtor if he proves that the creditor’s claim appears to be well-grounded in principle and that there are circumstance which threaten the collection of the debt. In such case, the conservatory arrest of the aircraft in France will be authorized by the French judge.
Article L. 6100-1 of the French Transport Code defines aircraft as “any device capable of rising or circulating in the air”. This broad definition therefore includes airplanes, seaplanes, helicopters, gyrocopters, microlights, gliders and dirigible balloons.
Military aircraft and those belonging to the French State, if they are exclusively assigned to a public service, cannot be the object of a conservatory arrest.
At an international level, the conservatory arrest of aircraft has been the subject of an international convention, namely, the Rome Convention of May 29, 1933 for the unification of certain rules relating to the precautionary attachment of aircraft. This convention has not been ratified by France. The rules applicable to the precautionary attachment of aircraft in France are therefore based solely on French domestic law.
The precautionary attachment of aircraft is governed in French law by article L. 6123-1 of the French Transport Code, articles R. 123-8 of the French Aviation Code and, insofar as it is not derogated from by the above-mentioned provisions, by article L. 511-1 et seq. of the French Code of Civil Enforcement Procedures.
Conditions to obtain the precautionary arrest of an aircraft in France
Article L. 511-1 of the French Code of Civil Enforcement Procedures states that any person whose claim appears to be well-founded in principle may request the judge to authorize a protective seizure (conservatory or precautionary arrest) of the debtor’s property, without a prior order, if he can justify circumstances likely to threaten its recovery.
The creditor must therefore hold a claim that is well founded in principle and demonstrate to the judge that there are circumstances that threaten its recovery, in order to obtain an authorization to carry out a protective seizure of aircraft in France, without the debtor being informed of the procedure until the protective seizure is carried out.
a) A claim which appears to be founded in principle
The seizure is possible as soon as the creditor justifies the existence of a claim which appears to be well founded in principle, even if it is contested by the debtor. It is not necessary to justify that the claim is certain, nor that it is of a precisely quantified amount, nor that it is due. By definition, the creditor’s claim is not yet enforceable as there is no final judgement having ruled on the validity of that claim. It is not necessary either for the creditor to justify an urgency.
An interim seizure of aircraft may thus be carried out in a variety of situations to secure the payment of a not yet enforceable claim, such as claim of an agent claiming unpaid commissions, of a repairer or other service provider whose invoices have remained unpaid, etc.
The judge does not have to rely upon a certain or enforceable claim to authorize the precautionary arrest of aircraft, but only upon a claim that appears to be founded in principle.
b) Circumstances that threaten the collection of the debt
To be authorized to practice a precautionary arrest of aircraft, the creditor must also prove that there are circumstances which threaten the recovery of its claim.
According to French case law, circumstances that may threaten the collection of a claim include default of payment, insolvency, a proven deficit or weakness of the debtor’s working capital in relation to the size of the claim, or the debtor’s well-known financial difficulties.
The fact that a company has not published its accounts has also been considered as a circumstance justifying that a precautionary attachment be authorized.
On the other hand, the judge will refuse the requested measure if the debtor pays its debts as they fall due or presents obvious guarantees that it does not lack working capital.
In principle, there is no reason to presume an intention to organize his insolvency on the part of a debtor in the absence of preparatory material evidence showing such an intention, especially since the debtor’s assets would be sufficient to allow payment of the amount due.
French case law refuses to consider that the mere fact that a company has its registered office abroad should constitute a circumstance likely to threaten the recovery of the debt.
In all cases, the burden of proof of the circumstances threatening the recovery of the debt lies with the creditor.
Irrelevance of the nationality of the aircraft, of the creditor and debtor and of the law applicable to the contract
The precautionary arrest of an aircraft in France is possible, as long as the aircraft to be attached is on French territory. The French judge will have jurisdiction by the sole fact that the aircraft is in France, regardless of the nationality or place of residence of the debtor or creditor and regardless of the nationality of the aircraft.
Competent judge to order the precautionary arrest of aircraft in France
The precautionary arrest of aircraft in France may be ordered by the enforcement judge (“Juge de l’exécution” or commonly referred to as “JEX”) or by the President of the Commercial Court when the debt is of a commercial nature.
The judge who authorized the precautionary arrest (respectively, JEX or President of the Commercial Court) has sole jurisdiction to hear applications for withdrawal of its decision or to order the release of the arrest. However, only the enforcement judge (JEX) has jurisdiction to rule on an application for the nullity of the seizure.
With regard to the question of territorial jurisdiction, the competent judge is that of the place of residence of the debtor, unless the latter resides abroad or his residence is unknown, in which case the competent judge is that of the place of execution of the measure (thus, the place where the aircraft to be seized is located).
Procedure for the precautionary seizure of aircraft in France
The procedure is not contradictory (the debtor is not informed of the procedure) as it must remain discreet. The applicant-creditor will be careful not to warn the debtor. If the debtor is informed of the procedure, the debtor will have time to make the aircraft disappear or move it to another location.
The order on motion for authorization is not adversarial. The seized debtor is not summoned and the motion is not served on him. The order issued by the judge must be reasoned. In principle, its text is drafted by the petitioner himself and proposed to the judge.
The authorization for interim seizure must mention the types of equipment to be seized. The judicial order authorizing the interim attachment will also indicate the amount of the claim secured by the seizure. The order is enforceable immediately after issuance by the judge.
Implementation of the precautionary seizure of aircraft in France
The essential purpose of the aircraft seizure in France is to immobilize the aircraft in France, while waiting for the debtor to pay, or to provide guarantees for the payment or to obtain a judgment on the merits of the claim.
To do this, the bailiff notifies the airport authority and the civil aviation authorities of the precautionary arrest of the aircraft, to whom he will declare that the aircraft has been placed under legal control, that it must be prevented from taking off, that it must be parked in a place that does not allow it to be taken off illegally and, if necessary, that it is appropriate to remove and keep in a safe place a part that is essential for its navigation.
The bailiff also appoints a custodian for the aircraft. In case of hijacking of the seized aircraft, the custodian is liable to three years imprisonment and a fine of 375 000€.
Notification of the aircraft precautionary seizure in France to the debtor
The seizure order is notified by the clerk’s office of the Court to the parties by means of a registered letter with acknowledgement of receipt.
In addition, the bailiff must notify the seized debtor of the seizure.
Contesting the precautionary seizure of aircraft in France by the debtor
The debtor may apply for withdrawal or cancellation of the seizure to the judge who ordered the seizure with a view to demonstrate:
– the nullity of the seizure for failure of the bailiff to serve the seizure report in the proper manner,
– that the claim does not exist and that consequently the seizure was obtained in an abusive manner
– that guarantees have been provided by the debtor to secure the claim and that the seizure must be lifted.