Although aircraft repossession is used only as a last resort, it remains unfortunately inevitable in some cases. Under German law there are no self-help rights available to the owner in order to take possession of the aircraft.
It is possible to obtain interim injunctions or arrest orders before the German courts; however, those require a substantial amount of time to prepare court documents, as the entitlement to the claim must be shown to be prima facie. Further, filing for the injunction and enforcing the order encounter severe time constraints due to jurisdictional questions. It can be particularly challenging if, for example, several aircraft of the same owner or lessor are to be repossessed. In such a case, it is often uncertain which aircraft will be operated on the route to Germany. Therefore, a set of documents for each aircraft is needed; if several routes to Germany are concerned, documents for each venue are also required, as different courts would be competent for each airport location.
A mixture of law and practice – not necessarily requiring an interim injunction – has proven to be the best and fastest way in Germany for a successful recovery of aircraft from a defaulting airline. There are legal instruments available under German law that can prevent an aircraft from departing Germany once landed. These legal measures require support from a German bailiff, the local aviation authorities and the police. This solution has a proven track record of successful repossessions over the last 10 years, including both commercial and business aircraft. However, the owner may also choose to combine the aforementioned measures with an interim injunction.
Katja H Brecke
Katja H Brecke is a partner with the law firm ARNECKE SIBETH DABELSTEIN in Frankfurt, Germany. She studied law at the Universities of Mannheim (Germany), Lausanne (Switzerland), New York (NYU) and Leiden (the Netherlands). After having worked for the European Aviation Safety Agency, she joined ARNECKE SIBETH DABELSTEIN in 2011, where she has been involved in numerous aviation-related matters, including regulatory affairs, aircraft financing, aircraft repossession, commercial disputes and claims handling. She is member of the European Aviation Club, the International Aviation Women’s Association, the European Air Law Association and the German-American Lawyers' Association. She also holds a European private pilot licence.
Ulrich Steppler heads the firm’s transportation, aviation and logistics practice group. He specialises in aviation matters, focusing in particular on passenger air transportation. He has published numerous articles, case notes and reviews, as well as a book on International Air Transport Association interlining and a collection of regulations on the inclusion of aviation in the EU Emissions Trading Scheme. He won the ILO Client Choice Award for the category of Aviation Law Expert – Germany in 2010, 2011, 2014 and 2015, as well as other awards, and has been recognised as a leading practitioner in aviation law by various legal directories such as Who’s Who Legal, Legal 500 and Legal Experts EMEA. He represents numerous international airlines, industry participants, insurers and banks in all relevant areas. He is also admitted to act before the Austrian courts and institutions.