AUSTRIA Law and Practice Contributed by: Farid Sigari-Majd and Mathias Lehner, Freshfields
In principle, Austrian law recognises the division of title between legal and beneficial ownership ( Treuhand ) as well as the right of a beneficial owner to segregate trust property in an insolvency of the legal owner. It is also recognised that an owner may retain legal title to an asset sold and delivered to a purchaser until the full satisfaction of the purchase price ( Eigentumsvor- behalt ). Conversely, Austrian law would not normally give effect to a division of legal from beneficial ownership if such division is used to circumvent the (strict) rules on the perfection of security interests under Austrian law (see 3.2.14 Perfection of Domestic Law Mort- gages ). Thus, if legal title to an aircraft is transferred to a lender as security ( Sicherungsübereignung ), the (legal) title of the lender will not be recognised unless the perfection requirements applicable to Austrian law pledges are observed. Similarly, an Austrian court may require the satisfaction of security perfection require - ments in “sale and lease back” transactions on terms economically amounting to a secured loan. 2.3 Lease Registration 2.3.1 Notation of Owner’s/Lessor’s Interests on Aircraft Register The owner ( Eigentümer ) and the operator ( Halter ) of the aircraft must be notified to the ACG when reg - istering an aircraft with the Austrian aircraft register. However, only the operator is listed in the (publicly available) aircraft register. 2.3.2 Registration If the Owner Is Different From the Operator An aircraft will always be registered in the name of the operator in the Austrian aircraft register, irrespective of whether it is also the owner of the aircraft. 2.3.3 Aircraft/Engine-Specific Registers There is no register for leases concerning aircraft or engines in Austria. 2.3.4 Registration of Leases With the Domestic Aircraft Registry Leases and the lessor’s interest therein cannot be reg - istered with the Austrian aircraft register.
Nevertheless, aircraft lease agreements which involve an Austrian air operator require the prior approval of the ACG (or a notification in the case of a wet lease- out agreement). For wet lease-in agreements, the ACG provides a specific form on its website. Engine leases are not subject to a specific approval or filing requirement in Austria. 2.3.5 Requirements for a Lease to Be Valid and Registrable Aircraft lease agreements are not subject to specific formal requirements in Austria, and no certification, notarisation or legalisation is required for the lease agreement to be enforceable. For the purposes of submitting the lease agreement to the ACG for approval, a simple copy would usu - ally suffice (see 2.3.8 Requirements for Documents Concerning Registration for language requirements). 2.3.6 Taxes/Duties Payable for Registering a Lease As an aircraft or engine lease cannot be registered in Austria, no taxes/duties apply (see 2.1.5 Taxes/Duties Payable for the Physical Execution of a Lease for stamp duties payable on the lease agreement itself). 2.3.7 Registration of Aircraft in Alternative Countries Commercial aircraft operated by Austrian carriers are commonly registered in Austria. Alternative countries occasionally used for the registration of corporate jets and general aviation aircraft are Germany and the USA. 2.3.8 Requirements for Documents Concerning Registration Documents submitted to the ACG are generally not required to be certified, notarised or authenticated. The authority provides specific forms on its website that should be used when registering an aircraft with the Austrian aircraft register. The forms (including the supporting documents) may be submitted by email, fax or post. If documents are provided in a language other than German, the ACG may request a (certified) German translation of the document or parts thereof. In prac -
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