Την επόμενη εβδομάδα, θα λάβει χώρα στη Βιέννη το Διεθνές Συνέδριο (http://www.iacl2014congress.com/) της
Académie Internationale de Droit Comparé (www.iuscomparatum.org).
Έχω τη χαρά και την τιμή να είμαι εθνική εισηγήτρια σε ένα από τα θέματα, το οποίο επιπλέον μου είναι ιδιαιτέρως αγαπημένο, διότι είχα συμμετάσχει στις εργασίες και στην ολοκλήρωση αυτής της Διεθνούς Σύμβασης - βλ. προηγούμενες αναρτήσεις:
http://elinamoustaira.blogspot.com/2013/08/cape-town-convention-on-international.html
http://elinamoustaira.blogspot.com/2013/08/cape-town-cape-townluxemburgberlin.html
http://elinamoustaira.blogspot.com/2013/08/cape-town.html
Δυστυχώς δεν θα μπορέσω να πάω στη Βιέννη, δεν είχα προλάβει να οργανώσω το ταξίδι αυτό αλλά και ούτε τον χρόνο θα είχα να το πραγματοποιήσω, λόγω πολλών και διαφόρων υποχρεώσεων.
Οι εισηγήσεις - Γενική και εθνικές - θα εκδοθούν από τον εκδοτικό οίκο
Springer (http://www.springer.com/?SGWID=5-102-0-0-0).
Οι ελληνικές εθνικές εισηγήσεις θα δημοσιευθούν - όπως πάντα, στα συνέδρια αυτά που γίνονται κάθε τέσσερα χρόνια - στη
Revue Hellénique de Droit International.
Οι δύο πρώτες φωτογραφίες είναι από το
Freiburg, στη Γερμανία.
Αυτό το κείμενο είναι η δική μου εισήγηση. Επειδή οι εθνικές εισηγήσεις "απαντούσαν" σε συγκεκριμένο ερωτηματολόγιο, οι μονολεκτικές απαντήσεις θα σας φανούν μάλλον ακατανόητες...!
Security
interests burdening transport vehicles – The Cape Town Convention and its
implementation in national law
GREECE
Elina N. Moustaira
As it is well known by now, the initial idea, when the
text of the Cape Town Convention was being prepared, was to create a uniform
security interest, following the model of the “security interest” of the
article 9 of the USA’s Uniform Commercial Code, assimilating practically the
conditional sale agreements and the leasing agreements with the security
agreements. Τhis “functional” approach was partly abandoned
afterwards, because it was thought that it might find hindrance in the
non-common law States.
Nevertheless, the “basic framework” of the Cape Town
Convention is “that which applies to secured transactions in the UCC and other
legal systems which have been influenced by the UCC”.
Finally, Cape Town Convention applies to all three
mentioned agreements which create the
so-called by the Cape Town Convention “interest”. What is more, it is foreseen
that the according to the rules of conflict of law applicable law will have the
competence to determine if and in what category among the covered by this
common name, will an international interest be included.
Its rules are valid as a uniform law and they apply, not
only to the international cases, but also to absolutely national [internal]
transactions, except if a Member State declares that, as far as it is
concerned, the Cape Town Convention will not be applied to the internal
transactions.
Greece
has ratified the Geneva 1948 Convention on the International Recognition of
Rights in Aircraft (Law Decree 543/1970), but has neither signed nor,
obviously, ratified the Cape Town Convention.
1) Registration system
As far as the recognition of foreign [security]
interests is concerned, it is the law of the State of reception that decides
whether a certain form of publicity – here, the registration – constitutes a
part of the international public order.
a) No.
b) The registration of aircraft, in Greece, is the
responsibility of the Civil Aviation Authority (CAA). According to article 1 of
the Law 1340/1983: “The Civil Aviation Authority constitutes a Public Service
of the Ministry of Transport, Infrastructure and Networks and is administered
by its Director and Assistant Director”.
The following records, inter alia, are maintained with
the CAA:
a) Record of mortgages over aircraft and engines;
b) Record of Arrests of aircraft and engines;
c) Record of Ownership Claims over aircraft and engines;
d) Record of Aircraft Leases.
There is no separate register maintained in respect of
spare parts.
According to article 1339 of the Civil Code, which is
applied to aircraft by analogy (art. 73 of the Code of Aviation Law), it is
provided that the mortgage registers are public and anyone may consult them.
The mortgage should also be noticed in the aircraft’s Certificate of
Registration (article 108 par. 3 of the Presidential Decree 7/1931).
A Presidential Decree should be issued concerning the
manner of keeping the above records, but until now no such Decree has been
issued. Consequently, the CAA currently does not keep a Register of Claims over
aircraft and engines or a Register of Aircraft Leases. The relevant
registrations are made in the general register.
The mortgage covers the aircraft, its engines and – if
there is no agreement to the contrary – its accessories (article 51 Code of
Aviation Law).
A mortgage may also be recorded over an aircraft under
construction, on the condition that the aircraft has been registered in the
appropriate register (article 52 Code of Aviation Law). An engine not attached
to an aircraft may be subject to a separate mortgage, provided that it has been
recorded with the appropriate registry (article 53 par. 1 Code of Aviation Law).
The mortgage may be of two types: a simple mortgage
and a preferred mortgage. The simple mortgage is granted by unilateral
declaration of the owner, written and registered in the Record of Mortgage
(article 50 Code of Aviation Law). The preferred mortgage is granted by
contract (article 58 Code of Aviation Law) and may be registered only over
aircraft of a maximum take-off weight of over 5,700 Kg (article 65 Code of
Aviation Law).
The simple mortgage grants priority to the mortgagee
over subsequent mortgagees, simple or preferred, and other simple creditors,
but does not give a right to private sale or to the possession and management
of the aircraft. The preferred mortgage gives the mortgage a right to the
management of the aircraft as soon as his claim becomes due and payable or in
any other case provided for by the terms of the preferred mortgage (article 57
Code of Aviation Law). Each and every detail must be noted in the Record of
Mortgages.
Registration of a mortgage secures priority for the
mortgagee over all other mortgages which will be registered later in time. In
case more mortgages are registered on the same day, they will be considered of
equal value and will rank in the same order – pari passu (article 1272 Civil Code).
A registered mortgage attaches the whole aircraft, its
engines and any accessories – the latter, only if there is no agreement to the
contrary (article 51 Code of Aviation Law).
Everything about an aircraft mortgage that is not
regulated by the Code of Aviation Law, is governed by the provisions of the
Civil Code, applied by analogy. According to article 973 of the Civil Code, the
mortgage is a “real right”.
A big percentage of the investments of many industrial
and commercial enterprises refers to such assets of professional equipment, as
the aircrafts. It is well known, that in international commerce the aircrafts
financing is very often taking place by leasing agreements.
According to
the Greek law, the aircraft may constitute object of leasing (article 1 par. 3
Law 1665/1986, as amended by article 11 par. 2 Law 2367/1995).
Article 1 par. 1 Law 1665/1986 allows that the
entrepreneur, who is interested in acquiring the use of the aircraft for
his/her business’s equipment, is addressed to a leasing company, which buys in
its name from the supplier or imports from abroad the aircraft in which the
lessee is interested, pays the price and assigns its use to the entrepreneur –
lessee.
The lessee pays a certain instalment over the duration
of the leasing contract and at the end of it, the lessee has the options either
to extend unilaterally the leasing for a certain time period, at a certain rent,
or to consider the leasing as terminated or to buy, on a unilateral
declaration, the leased object, by paying the agreed amount.
According to article 1 par. 2 Law 1665/1986, the
object of the leasing agreement may be a movable that the leasing company had
previously bought from the lessee (lease-back). A lease-back agreement allows
that a business owner of an asset, sells it to the leasing company, keeping it
though in its possession and using it as a lessee, on paying its value.
The lessee obtains the possession of the aircraft in
order to use and exploit it during the whole time of the leasing agreement. The
lessee has the obligation to preserve the leased aircraft accordingly to the
agreed use. He assumes the risk of the leased aircraft’s accidental destruction
or deterioration and has the obligation, according to the article 5 par. 2 Law
1665/1986, to insure the aircraft for the risk of its accidental destruction or
deterioration.
From the above, it follows that the lessee assumes not
only the use of the aircraft but also its commercial exploitation.
In order that the ownership right of the leasing
company is secured – as a security interest –, the leasing agreement must be in
writing and the relevant document must be registered with the specific Records
kept by the First Instance Courts (article 4 paragraphs 1 & 2 Law 1665/1986).
The leasing agreement will be null, according to the
article 159 par. 1 Civil Code, if it is not in writing and if it is not
registered.
Some commentators believe that the financing of mobile
equipment suffers from the differences between the national laws and that
adopting a uniform regulation would contribute to stop the increase of the cost
of credit transactions for airline companies.
Things are not so simple and the differences between
the various legal systems cannot be deleted just by forcing upon them a new,
internationally agreed, regime.
c) The Cape Town Convention, following the opinion of
its initial drafters, common law lawyers, adopted the “notice-filing” system.
It had been considered as the best possible one, since the “only aim” of the
registration, according to the Cape Town Convention would be to assure the
priority of an international interest on an object, over other international
interests, of creditors who have acquired a preference (privilege) by judgment
or by law and of insolvency administrators.
The legal system of Greece, as far as the registration
of security interests is concerned, falls under the category of the “document-filing”
systems.
The advantages of this system are, among others, the following: the users of
the national registries consider as very important the fact that they can have
access to all documents gathered in one place. Furthermore, is also considered
as very important the fact that whoever is interested to proceed in some
transaction over an object, may be informed about previous transactions over
the same object.
d) As it was above mentioned, specific interests
constituted by a security agreement, a title reservation agreement and a
leasing agreement, “merge to form an autonomous international interest”. Or,
according to another, very accurate, description, the “international interest”
under the Convention is a property interest which derives its force from the
Convention and not from national law, “it is an artificial concept”.
Nevertheless, it is rightly pointed out that the
characterization of these legal devices which will constitute the basis of an
international interest is of the utmost importance.
In many civil law States, there is a clear distinction between proprietary and
contractual rights, between real rights and personal rights. Under the national
property laws of these States, the interests derived from a title reservation
agreement and/or a leasing agreement are not treated the same as the interests
derived by a security agreement. And that is the case for Greece, too.
Title reservation agreement’s definition by the Cape
Town Convention is broader than the definition provided by Greek law, according
to which
title retention (reservation) only secures the purchase price payable by the
buyer.
The term “security agreement” is very broad. It
reflects the mentality of the USA’s Uniform Commercial Code and, although some
commentators say that this fact should not impede the other States from
adopting the Cape Town Convention, it really creates many difficulties.
The absence of exceptions to the ‘first in time to
register’ principle may provide greater certainty to a creditor who registers
its interest in the International Registry, nevertheless a dual, parallel
system could be somewhat created in the States in which there are differences
between the various agreements which constitute the basis for international
interests according to the Cape Town Convention.
2) Enforcement of a security interest
a)No. For a security interest to be enforced, an
enforceable title is needed. The documents which constitute such titles are
final court judgments, notarial deeds and foreign titles declared enforceable
in Greece (articles 904 & 905 Code of Civil Procedure).
b)No.
A mortgagee who has a preferred mortgage on a Greek
aircraft may take possession of the aircraft when his claim becomes due and
payable, without any court process provided that the mortgagee is in the form
of a notarial deed.
There are various issues that create concerns to the
jurists of the non-common law countries. One of them is the “Relief pending
final determination”, of the article 13. As it is very well described by a
commentator, it “does not seem to correspond to any relief traditionally found
in national legal systems” and, among other problems, one can have strong
doubts whether there could be a harmonized procedural remedy, when there is the
international customary rule that procedure is governed by the lex fori.
Furthermore, there are doubts about this article’s
qualities: Is it an interim relief or not? For example, the Aircraft and the
Luxembourg Protocols allow contracting states to add to the remedies of Article
13 the sale of the object, an issue that had caused heated discussions during
the Cape Town Diplomatic Conference, since the sale of the object had been initially
included in the remedies. In common law systems, a sale may be a form of
interim relief, while in other systems of law it is not the case. “Selling the
object is not an interim measure”, “it actually enforces the interest”.
3) Treatment of Security Interests under the Insolvency
Procedure
The international interest, created by the Cape Town
Convention, as a supranational substantive law instrument, supersedes any
conflict of laws rule. Nevertheless, Cape Town Convention is not an
all-inclusive codification of asset-based secured financing. Therefore, there
is room for application for domestic substantive law rules, which will be
determined either directly by uniform conflict of laws rules of the Cape Town
Convention, or indirectly domestic conflict of laws rules.
In case of a company’s insolvency the international
insolvency law and the private international law of real rights, of proprietary
rights, are on a crossroad. So,
when a creditor claims having a contractual security that confers to him a
proprietary right, that is, a security interest, according to the Greek law he
will be able to exercise it, without it being automatically or by order of the
insolvency administrator stayed. Publicity of this security interest is
absolutely required.
As far as the title reservation agreement is
concerned, some decades ago, the predominant view in the case law (courts’
decisions) was that this agreement had no effect whatever in case of the
purchaser’s insolvency. However, the view of part of theoreticians of law was
that if the title reservation agreement had no effect in case of the
purchaser’s insolvency, in the name of the creditors’ protection, then this
agreement would practically have no validity in transactions between merchants
and this would be a “coup dur” for the credit agreements, which are of vital
importance for the national economy.
Actually, it is accepted by both theory and courts,
that title reservation agreement is “saved” in case of the purchaser’s
insolvency and that the seller – proprietor of the asset may take possession of
the asset, since the insolvent purchaser had never acquired the ownership of it
and therefore it could not be included in the insolvency estate.
4) General Considerations
a)
One
could say that it has been customary, these last years, due to influences by
the mentality of foreign laws, mainly those of the common law tradition.
b)
Generally,
yes. Still, the Cape Town Convention is considered by Greek jurists as very
much complicated and difficult to be adopted by Greece, given the system that
is already in existence.
A very important issue is that of the Public Service
and the way the Cape Town Convention deals with it. Things in Greece’s economy
and the structure of it, change fast, too fast most probably. The three
Protocols took different approaches, or, to be more accurate: they took
non-identical approaches, in relation to this issue. The least interested in
dealing “directly with the on-going possibility of a public interest in
protecting certain assets from creditor repossession” is the Aircraft Protocol.
It might be because, as it is pointed out, “governments are persuaded that the
political gain of facilitating cost-effective private sector finance for
aircraft operators, and therefore a highly competitive aviation industry and
cheap flights for the public, outweighs the political downside of withdrawal of
service”,
but it is not always so simple and, obviously, not all governments have the
same attitude.
In Greece, by law 3710/2008, the National Council of
Railways was constituted, which became the competent institution for the
purchase of the railway services. By law 3891/2010, all necessary legislatives
were taken for the restructuring of the rail sector, while, in parallel, the
Regulative Authority of Railways was constituted, being mainly competent for
the purchase of railway services.
The article 29 of the law 4111/2013 provides that the
“Hellenic Company of Preservation of Rail Rolling Stock” will be competent, as
the agent of the Hellenic State, for the management and the leasing to third
parties of the rail rolling stock that either belongs to the Hellenic State or
belongs to EUROFIMA and is leased by the Hellenic State.
The Luxembourg Protocol follows a “successful” Cape
Town Protocol, as far as the success is counted on the number of ratifications.
The problems persist though, and, for example, a much discussed issue of the
Luxembourg Protocol is that of the prospective liability of the Registrar.
As already mentioned, in Greece many things change and
one of them is that many public sectors are being privatized or, at least,
using private financing.
This fact has stirred a lot of heated debates and one
could express the opinion that the picture of the legal and economic system is
not yet clear.
The Space Assets Protocol, for now, does not really
concern Greek jurists. HellasSat, the only satellite that Greece had, has been
purchased by foreign capitals, a few years ago.
Let me repeat once more, that the Cape Town Convention
and Protocols, as legal texts are brilliantly structured, nevertheless very
much complicated in practice and very difficult to be implemented in the
various and very different between each other legal systems, especially since
the whole texts’ mentality is more or less evidently common law oriented.
Αυτή η φωτογραφία είναι από το Μουσείο Αμερικανικής Τέχνης, στη
Washington D.C.
Στην πόλη αυτή προσπαθεί να πάει ο δεκάχρονος ήρωας της ταινίας "Ο Απρόβλεπτος Κος Σπίβετ", για να παραλάβει το βραβείο του!
http://www.athinorama.gr/cinema/movie.aspx?id=10038595
Είδα την ταινία το Σάββατο βράδυ και μου άρεσε πολύ. Μην ακούτε πάντα τις κριτικές!! Προσέξτε τις κριτικές του κοινού.
