Air Navigation and Airport Charges
Rules that have the effect of allowing air navigation and airport authorities to hold owners/lessors and financiers responsible for unpaid charges owed by the operator, for example, those granting such entities super priority or detention rights against aircraft, are inefficient and against general principles.

AWG is committed to working with these authorities and other bodies to find alternative approaches that address our concerns, while ensuring effective collection of amounts needed to finance air navigation and airport systems.

The approach of AWG to these problems is divided into three areas: risk allocation, risk mitigation, and risk management.

RISK ALLOCATION

Certain air navigation and airport authorities have broad priority and detention rights against an aircraft for debts owing to that entity, including debts arising through use of other aircraft (the latter, so-called fleet lien).

The effect of such priority and detention rights is to penalise owners/lessors and financiers who neither contributed to the incurred debt nor have the practical ability to prevent that debt from accumulating. AWG believes that owners/lessors and financiers – innocent parties – should not by virtue of property rights in aircraft be made liable for navigation and airport charges incurred by operators.

The threshold question centers on the appropriate allocation of risk. AWG takes particular issue with the existence and exercise of rules that allocate risk to innocent parities, starting with but not limited to the fleet lien.

The fleet lien, including on behalf of debts owed to Eurocontrol, exists in the United Kingdom. It has recently been exercised, with litigation resulting. AWG submitted documents relating to the fleet lien in the related court proceedings. AWG was not a party to such proceedings. Fleet lien issues are also subject to litigation in Canada. An AWG - taking issue with fleet liens in general and as applied in Canada - was cited as authority by parties to that litigation.

To the extent that courts, interpreting statutory law, uphold fleet liens and similar rights, AWG believes that a legislative change to such law is required.

RISK MITIGATION

Risks related to liens and detention rights in favor of air navigation and airport authorities in respect of leased or financed aircraft, where not eliminated, need to be mitigated in practice.

One such means is the EC Regulation on Common Charging System, (EC) No 1794/2006.

Section 14(3) of that Regulation states that countries 'shall ... ensure that effective enforcement measures are applied {which} may include denial of services, detention, or other enforcement measures in accordance with applicable law'.

This regulation, if effectively implemented, has the potential to mitigate risks to owners and lessors, particularly if action other than liens are utilised by States. AWG is monitoring the implementation process.

RISK MANAGEMENT

Risks related to liens and detention rights in favor of air navigation and airport authorities in respect of leased or financed aircraft, where not eliminated or mitigated, need to be managed in practice.

One such means is access to airline account information through arrangements with Eurocontrol. With an airline's express consent, Eurocontrol will provide a lessor / financier with electronic access (through its web-based data retrieval system, CEFA) to an airline's account information. That process, developed from an email based system worked out between AWG and Eurocontrol, helps keep that lessor / financier apprised of the general situation. While not addressing the fundamental risk allocation, it could serve as an early warning of potential problems. Those wanting further information should contact the Central Route Charges Office of Eurocontrol.

More broadly, AWG has proposed the development of a more comprehensive enhanced information system. With an airlines' consent, a creditor would be provided with online aircraft specific debt information. We encourage support and development of this concept by Eurocontrol and others.