Switzerland

Registry: Swiss Aircraft Register

Prefix: HB-

Website: bazl.admin.ch

Author's details: Schellenberg Wittmer Ltd

Email: gregoire.wuest@swlegal.ch edmond.kohler@swlegal.ch

Phone: +41 22 707 80 00

3,255

Aircraft registered

332

Helicopters registered

20

Air Operators Certificates

As of August 2019

Words by Grégoire Wuest & Edmond Kohler

Tell us a bit about the jurisdiction?

Switzerland is a federal republic composed of 26 cantons, with federal authorities seated in Bern. Zürich and Geneva are the two major cities and economic centres of the country. In addition to its famous chocolate production, watch makers and banks, the Swiss aviation market is flourishing and it has one of the European continent’s busiest business aviation airports, Geneva Cointrin.

Tell us a bit about the registry

The Federal Office of Civil Aviation (FOCA) is the primary body responsible for the regulation and monitoring of civil aviation in Switzerland. In this respect, it holds two aircraft registers: (i) the Swiss Aircraft Register in which all Swiss aircraft (including aircraft, balloon, helicopter, gyrocopter, etc.) have to be registered, and (ii) the Swiss Aircraft Record in which a Swiss aircraft already registered with the Swiss Aircraft Register can be registered on request of its owner.

How can I use my aircraft?

Private use:

Yes.

Corporate use:

Yes.

Commercial air transport/aircraft charter:

Yes.

Aerial work:

Yes.

Unmanned aerial vehicles:

Yes.

What sort of aircraft do you consider:

Are there weight restrictions?

There are no weight restrictions (Article 10 of the Ordinance of the Federal Department of the Environment, Transport, Energy and Communications (DETEC) on the navigability of aircraft).

Which aircraft type certificates are accepted?

EASA (art. 9 para. 5 of the Ordinance of the DETEC on the navigability of aircraft).

Are there age restrictions:

There are no age restrictions. That being said, airworthiness requirements must be complied with (art. 58 para. 1 of the Act of the Aviation and art. 10b of the Ordinance of the DETEC on the navigability of aircraft).

Structuring requirements

Are aircraft registered in the name of aircraft operator or the aircraft owner?

The aircraft are registered in the name of the aircraft owner, but both the aircraft’s owner and the aircraft operator are registered in the Swiss Aircraft Register respectively as owner and as operator.

Are there nationality requirements and if so what are they?

An aircraft might only be registered in the Swiss Aircraft Register if the owner is:

  1. A Swiss citizen
  2. A foreign citizen assimilated to a Swiss citizen under international conventions, if he has his domicile in Switzerland and is authorised to stay there for a certain period of time
  3. A foreign citizen resident in Switzerland, with a permanent Swiss residence permit(type B or C), provided that the aircraft operation (home base) is based in Switzerland
  4. A Swiss company (i.e. companies with domicile in Switzerland and registered in a Swiss commercial register)
  5. A Swiss public law entity and institutions
  6. A Swiss association (‘Verein’) provided that at least two thirds of its members and of the members of the board (including its president) are Swiss citizens resident in Switzerland.

As part of the above requirements, Swiss nominees do not fulfil the nationality requirement. An aircraft owned either by a foreign entity or individual might not be registered in the Swiss Aircraft Register. That being said, there is an exception, according to which such an aircraft might be registered in the Swiss Aircraft Register provided that it is operated by a Swiss commercial aircraft operator (with Swiss AOC), for a sufficient period of time, and for commercial operations on the basis of a lease or operating management agreement.

What are the typical structures used?

Companies limited by shares or Limited Liability Companies are commonly used. Foreign special-purpose companies can also be used as owner companies provided that Swiss aircraft registration is made on the basis of a lease to or management by a Swiss aircraft operator (with Swiss AOC) for commercial operations (as see above).

Is there a requirement to have local directors as shareholders?

Under Swiss law, there is a requirement that at least one person (either a member of the board or a member of the management) authorised to represent the company must be a Swiss resident. On the other hand, there are no requirements to have local shareholders (except of a Swiss association).

Do you need to have a local office or physical presence to register an aircraft?

Swiss companies must have a physical presence in Switzerland. With respect to foreign entities which desire to be registered as an owner in the Swiss Aircraft Register, they must declare to the FOCA a domicile in Switzerland for notification purposes (which can be maintained at the Swiss AOC operator) (art. 9 para. 1 of the implementation regulation of the Federal Aircraft Register).

What continuing requirements are there to keep an aircraft registered?

An aircraft shall be automatically deregistered from the Swiss Aircraft Register if a condition of the inscription is no longer met (including the ownership requirements described above) or if the owner has not paid any fees which are due to the FOCA (art. 11 para. 1 let. b of the Ordinance on the Aviation (OAA).

Inspections and CoAs

What are the requirements for a Certificate of Airworthiness?

The aircraft must first be registered with the Swiss Aircraft Register. In accordance with art. 4 of the FOCA ordinance on the aircraft examination, the FOCA can decide to perform a physical inspection of the aircraft. The FOCA delivers the Certificate of Airworthiness on satisfactory completion of the documentation review and of the physical inspection (if any).

What is the inspection interval for a Certificate of Airworthiness/how often does the registry inspect aircraft?

Aircraft registered in the Swiss Aircraft Register must either undergo an annual airworthiness review (EASA aircraft) or a review every two years (Annex II aircraft). If the airworthiness review for an aircraft is due, ideally a review should be carried out in the 90-day period before the expiry date of the airworthiness review certificate or the confirmation of review. Aircraft without a valid airworthiness review certificate or a valid confirmation of review may no longer be operated. Infringements of this rule may lead to criminal prosecution.

What operational requirements are there?

Commercial aviation companies are required to hold an Air Operator Certificate (AOC) and, as a rule, also have to possess an operating licence in order to fly in Switzerland. In order to obtain these documents they have to comply with the legal, operational and economic conditions that are specified in Swiss and European legislation.

Where are the inspectors based?

The FOCA is based in Ittingen in the Canton of Bern but it also has an office in Zürich at the Zürich airport. Inspectors are based both in Bern and in Zürich.

Registration costs and service

What is the initial cost to register an aircraft?

In order to register an aircraft in the Swiss Aircraft Register, the applicant must pay CHF 110 to reserve the aircraft markings. The fees due to the FOCA for the registration itself vary depending on the type of aircraft (between CHF 300 to CHF 600).

There is an additional fee due in case the approval of a maintenance programme is required which is calculated according to the time spent for such exam.

For the registration in the Swiss Aircraft Record, the fees vary between CHF 195 and CHF 10,320 depending on the take-off weight of the aircraft (CHF 9 per 100 kg).

What are the annual costs for aircraft registration?

FOCA's fees for the renewal of Certificate of Airworthiness amount to CHF 110, plus inspection costs (see below), if applicable.

In addition, there is a general fee ranging between CHF 200 and CHF 600 (depending on the type of aircraft) which is invoiced by the FOCA on a yearly basis for the act of routine surveillance of the aircraft. Regarding the navigability exam, the costs vary depending on the time spent by the FOCA (up to a maximum amount of CHF 30,000 (depending on the type of aircraft)).

What is the average time needed to register an aircraft?

The process to register an aircraft in the Swiss Aircraft Register takes approximately two weeks.

How much does it cost to register a mortgage?

The fees charged by the FOCA for the registration of a mortgage depend on the value of the secured amount: (i) 2% up to CHF 2,000,000; and (ii) 1% up to CHF 1,000,000. In any case, the fees charged by the FOCA for the registration of a mortgage in the Swiss Aircraft Record shall not be below CHF 385 and shall not exceed CHF 17,200.

Is there a cost to register a priority notice?

Priority notices are not available.

Financing and de-registration

Is there a requirement for a governing law of mortgage?

The mortgage agreement must be governed by Swiss law. That being said, the mortgage agreement can be drafted in English and is generally similar to international standards.

Can financiers file a priority notice of their interests?

Priority notices are not available.

Can financiers file a Deregistration Power of Attorney/Irrevocable Deregistration Power of Attorney (IDERA)?

Deregistration powers of attorney can be filed with the FOCA. Is there a public mortgage registry? In Switzerland, mortgages are recorded in the Swiss Aircraft Record, which is public, together with ownership title and other interests and not in a separate mortgage register.

Is it easy for financiers to perfect a mortgage?

It is rather simple to apply for the registration and perfection of the mortgage. The mortgage agreement must be filed together with the application for recordation which must be approved by the FOCA. The application for recordation of the aircraft in the Swiss Aircraft Record is published in the Swiss Official Gazette which allows any objecting parties to notify the FOCA of their objection within 30 days from the date of publication.

How long is the period during which a moratorium will be imposed in the event of a lessee or borrower insolvency?

A mortgagee cannot take possession of the aircraft (no self-help). Under Swiss law, an aircraft mortgage must be enforced through an enforcement procedure under the control of the debt-enforcement office of the domicile of the owner of the aircraft (for Swiss aircraft) or of the place where the aircraft is located (for foreign aircraft).

If the outcome of the proceedings is successful, the mortgagee may require the auction sale of the aircraft. A private sale may only be considered if all parties involved agree.

In the case of bankruptcy or insolvency, are aircraft typically deemed to be part of the lessee’s property?

In the event of the lessee's bankruptcy, the aircraft shall not be included in the lessee's property.

What are the requirements for deregistration of an aircraft?

The owner must complete a deregistration request (indicating, as the case may be, the country in which the aircraft is anticipated to be re-registered), irrespective of whether the aircraft is registered only with the Swiss Aircraft Register, or also with the Swiss Aircraft Record. In the latter instance, the aircraft will not be deregistered without the prior written consent of a mortgagee (if any).

What are the requirements for deregistration of mortgage?

The owner must complete a deregistration request and the mortgagee must also provide his prior written consent.

Cape Town

Has the jurisdiction ratified the Cape Town Convention?

Switzerland has signed but not yet ratified the Cape Town Convention.

Importing and exporting aircraft

Are there significant taxes or fees involved in importing an aircraft?

Swiss import duties apply at the rate of 7.7 % when the aircraft is not in Switzerland at the time of transfer but is subsequently customs cleared in Switzerland (which is generally the case for HB-registered aircraft).

Swiss import duties paid by the owner upon customs clearance of the aircraft may be recovered if the owner is registered as a Swiss VAT payer, which implies that the aircraft must be used for entrepreneurial purposes. This condition is denied if the aircraft is essentially or only used by its beneficial owner for his or her private needs. Also, an aircraft may not need to be imported depending on the aircraft’s effective operations (e.g. number of landings/take offs in Switzerland, parking time, performance of work in Switzerland) and the ownership structure (e.g. residence of the ultimate owner).

Is an Export Certificate of Airworthiness, licence of permit required to export an aircraft?

Yes.

How much does it cost to get an Export CofA and how long does it take to get one?

The cost for the Export Certificate of Airworthiness itself is calculated based on the same basis as for a Certificate of Airworthiness (see above). It can be issued quite quickly.

Are there significant taxes or fees involved in exporting aircraft?

There are no export taxes.

Judgements and arbitration

Will a court in this country recognise and enforce a judgement rendered by a New York State Court or a US federal judge?

Such judgements can be recognised and/or enforced through a dedicated procedure (recognition can also be requested as a preliminary issue). The reasons for which a judgement may not be recognised are limited and similar to those under the Lugano Convention (see below), except that they also include any lack of jurisdiction (jurisdiction is systematically checked) and the violation of fundamental principles relating to Swiss procedural law. A foreign judgement cannot be reviewed on its merits.

Will a court in your jurisdiction recognise and enforce a judgement rendered by an English court?

A judgement rendered by an English court will be recognised in Switzerland without any special procedure being required. The reasons for which the judgement may not be recognised are limited and include the cases in which the judgement:

  1. Is manifestly contrary to public policy in Switzerland
  2. Is irreconcilable with a final judgment involving the same dispute between the same parties
  3. Is infringing certain mandatory rules on jurisdiction
  4. The defendant was not served with the document that instituted the proceedings. The substance of the judgment cannot be reviewed.

Can the government of the country requisition or confiscate an aircraft without needing to pay compensation?

The government is not privileged in comparison to other individuals and there is no direct right to confiscate an aircraft. In the case of an enforceable right (i.e. a judgement or court order), the detention of an aircraft is possible under the Debt Collection and Bankruptcy Act. In accordance with section 272 DEBA, the sequestration is authorised by a judge, provided that the creditor makes it likely that (i) its claim exists, (ii) that the asset belongs to the debtor. The types of detention include the registration of an aircraft mortgage or even the auctioning of an aircraft.

Are any legislation or regulatory changes planned?

The Cape Town Convention ratification process is still on hold and is unlikely to be completed within the next few years.

Aircraft Operating Certificates

General comments: Are AOCs encouraged, how long does process take, etc?

The obtention of an AOC is a time-consuming process. It is hard to give an approximate duration for the process. As a general rule, the FOCA assesses that the certification process can take up to 600 working hours. A more detailed estimate regarding the timing is generally provided by the FOCA after the filing of the AOC application.

What is the process for obtaining an AOC?

In order to obtain an AOC (as well as for any subsequent modifications of the AOC), the process follows the ICAO 5-step model which is the following: (i) pre-application, (ii) formal application, (iii) document evaluation, (iv) inspection and demonstration and, finally, (v) the certification itself.

What are the nationality requirements for an AOC?

The ownership of the entity applying for the AOC must be composed of more than 50% of EU or Swiss nationals