Through Law No 10/014 of December 31, 2010 in respect of civil aviation, the Democratic Republic of Congo (“DRC”) has reformed and modernized the legal and institutional framework of air transport. Pursuant to this law, many statutory instruments were enacted especially to set forth requirements to grant operating permits for air services and air operator's certificates, as well as lay down criteria for design, construction and technical operation standards of airfields open to public air traffic.
Before the reform was initiated in 2010, the new Congolese Aviation Law has introduced mortgages and preferential rights on aircraft, which were covered by common-law schemes. The Ministerial Order of November 13, 2012 defining terms and conditions for registering and cancelling aircraft mortgages supplemented the new rules that are different from the OHADA Uniform Act organizing security interests.
In this regard, the Congolese law was inspired by the aviation security interest system established by the French Civil Aviation Code. But, in many respects, it is different from the Civil Aviation Code of the "Central African Economic and Monetary Community” ("CEMAC") which was also based on the French Law.
As a reminder, CEMAC consists of the following six countries: Cameroon, Congo (Brazzaville), Gabon, Equatorial Guinea, Central African Republic and Chad. All these countries, including the DRC, Angola, Burundi and Sao Tomé and Principe constitute the Economic Community of Central African States ("ECCAS").
The CEMAC and the ECCAS cover an area of 6,640,000 Km2 with a population estimated at 123,933,000. The DRC, covering an area of 2,345,000 Km2 and a population estimated at 60,644,000, represents 35% of CEMAC/ECCAS territory and 49% of the total population of both the African sub-regional organizations of economic integration1.
This is a significant air transport market, which is operated by aircrafts with ever-growing capacity and value. Therefore, all aircraft services should be provided such as supply of spare parts: engines, propellers, radio-electric equipment and any other parts for better aircraft operation. Consequently, the need for a clear and practicable legislation is imminent in order to encourage investors and credit agencies to grant asset-based financing necessary in this sector.
The CEMAC and the Congolese law on aircraft mortgages are conventional; it should be written. In addition, this mortgage shall be recorded in the Aircraft Registry of the relevant service of Civil Aviation. It can be invoked against others only from the registration date since it is also subject to three-year interest like the capital.
However, both CEMAC and DRC schemes are different in the design of aircraft mortgage deed and the validity period thereof. With CEMAC, the deed may be a notarial deed or a private document; under penalty of nullity, the Congolese Mortgage instrument is a notarial deed. Furthermore, the retention period of the mortgage deed in CEMAC law is ten years from the registration date, while it is five years in the Congolese law.
In addition, the difference between DRC and CEMAC legislations lies on rules applicable to preferential creditors compared to aircraft mortgages. The DRC has established three new classes of privileges, namely: fees payable to the Public Treasury generated by airport royalties and air navigation services; staff salaries come in third place, and expenses other than legal fees incurred for aircraft sales and sale costs for the common interest of creditors. This privileged is at the bottom of the list.
The ECCAS passed a draft Civil Aviation Code in June 2012 based on the CEMAC Code2 paving the way to the uniformization of the aircraft mortgage law in that space when it enters into force. Beyond this integrative work in the sub-region, States in the region should also adhere to the Cape Town Convention and Aircraft Protocol of 20013 which provides for the constitution and effects of an international warranties to facilitate financing of the acquisition and use of aircraft equipment such airframes, aircraft engines and propellers, including installed, integrated or fixed accessories, parts and equipment, as well as all manuals, data and related registries.
Aircraft warranties and their accessories mentioned above, particularly the mortgage and privilege will be recognized and protected worldwide.