Aviation finance in Italy: overview
A Q&A guide to aviation finance in Italy.
This Q&A provides a high level overview of key practical issues including financing options for purchasing aircraft; registration and deregistration requirements; transfer of title; security, including aircraft mortgages; transfer of security; enforcement of security and repossession; and application of the Cape Town Convention.
To compare answers across multiple jurisdictions, visit the Aviation Finance Country Q&A tool.
The Q&A is part of the global guide to aviation finance. For a full list of jurisdictional Q&As visit www.practicallaw.com/aviationfinance-guide.
The issues commonly arising in relation to the financing of aircraft are related to taxes and the enforcement of liens in the case of breach of a lease and/or insolvency.
In particular, the importation of an aircraft into Italy is generally subject to:
VAT at a rate of 22%.
Customs duties at a rate of about 4%.
An aircraft can be imported at zero rate customs duties and zero rate VAT if the importer is a qualifying international airline.
Withholding taxes are generally due at a rate of 30% of the rent payable under a lease. Double taxation treaties in force between Italy and the lessor's country can provide for reduced rates. For example:
The double taxation treaty between Italy and Germany provides for withholding tax at a rate of 5%.
The double taxation treaty between Italy and Ireland provides that no withholding is applicable.
See Questions 18 to 26 for further information on repossession and the enforcement of liens.
Registration and deregistration requirements
The National Aircraft Registry (Registro Aeronautico Nazionale) is the Italian registry of aircraft, which is kept by the Italian Civil Aviation Authority (Ente Nazionale per l'AviazioneCivile) (ENAC). The Registry is an owner registry, but can also register aircraft operators (if different from the owner). To be registered as an owner, the applicant must provide evidence of compliance with the nationality requirements set out in Article 756 of the Italian Navigation Code.
In particular, to satisfy the nationality requirements, the aircraft must be owned fully or in majority by any of the following:
State, regions, provinces, municipalities and any other Italian or EU member state's public or private body.
Italian citizens or citizens of other EU member states.
Companies established or with registered offices in Italy or other EU member states, and whose share capital is owned wholly or in majority by Italian or EU citizens.
Italian or other EU member states' body corporates whose:
share capital is owned wholly or in majority by Italian or EU citizens; and
president and the majority of directors (including the managing director) are Italian or EU citizens.
The owner of an aircraft making an application must file the following documents (among others):
The application for registration signed by the owner.
A notarised (and apostilled, if required) deed providing evidence of the ownership interest in the aircraft.
An updated extract from the competent Chamber of Commerce.
A certificate of non-registration (for new aircraft) or a certificate of deregistration (for used aircraft) issued by the civil aviation authority of the aircraft's country of origin.
A copy of the application for the issuance of an aircraft certificate of airworthiness by the operational department of ENAC.
Additionally, it is possible to register aircraft that are effectively operated (but not owned) by companies holding an EU air carrier licence (Article 756, second paragraph, Italian Navigation Code). In this case, the aircraft is registered in the name of the EU operator. The title that is the basis for the registration (for example, a lease) and details of the aircraft owner must be registered at the Aircraft Registry, and must also be mentioned on the certificate of registration of the relevant aircraft.
Currently, ENAC fees for aircraft registration are:
EUR104 for aircraft with a maximum take-off weight (MTOW) of less than 5,700 kilograms.
EUR206 for aircraft with a MTOW equal to or higher than 5,700 kilograms.
Mortgages are registered with the Italian Aircraft Registry. Unregistered mortgages are null and void.
The mortgage registration procedure first requires the execution of a mortgage deed by the aircraft owner (mortgagor) before a notary public. The notarised mortgage deed must be filed with the Italian Public Registry of Private Deeds. The mortgage deed is then filed with the Italian Aircraft Registry, along with:
An application for registration signed by the mortgagor.
Enrolment notes (note di trascrizione) summarising details of the mortgagor, the mortgagee, the aircraft and the secured amount.
The original certificate of registration of the aircraft.
The mortgage is registered with the Italian Aircraft Registry and recorded on the registration certificate of the relevant aircraft.
Only mortgages drafted or translated into the Italian language can be registered.
Mortgages are registered for the relevant secured amount and extend to the whole aircraft, including airframe, engine(s) and spare parts, except if these are owned by a different person whose title results from a written document having an undisputable date under Article 2704 of the Italian Civil Code (see Question 9, Engine).
Fees are payable to the Italian Civil Aviation Authority for registration of a mortgage over an aircraft registered with the Italian Aircraft Registry. The current fees vary from EUR104 to EUR1,328, depending on the secured amount.
The registration of an aircraft mortgage with the Italian Public Registry of Private Deeds requires the payment of a tax to the Italian tax authorities either:
For a flat amount of EUR200.
At a rate of 0.5% of the actual amount secured by the mortgage.
The flat amount only applies if the mortgage is granted directly by the borrower to the lender as security for its own payment obligations under a credit facility.
Aircraft leases can be registered with the Italian Aircraft Registry. Registration is mandatory for aircraft leases with a term exceeding six months (Article 939bis, Italian Navigation Code).
Registration is made by filing with the Italian Aircraft Registry a copy of the relevant lease agreement, previously filed with the Italian Public Registry of Private Deeds. If the lease agreement is in a foreign language, the Italian Public Registry of Private Deeds and the Italian Aircraft Registry will request a sworn translation into Italian.
The effect of registration of an aircraft is to:
Provide evidence and constitute proof of aircraft ownership (Articles 750 to 755, Italian Navigation Code).
Admit the aircraft to navigation (Article 749, Italian Navigation Code).
Provide evidence of the aircraft operator (if different from the owner) (Article 874, Italian Navigation Code).
The effect of registration of an aircraft mortgage is to:
Provide public notice of the existence of the mortgage to third parties.
Grant the mortgagee priority over all subsequent mortgages (that is, mortgages with a lower rank).
Create a right in rem over the aircraft in favour of the mortgagee, which will automatically follow the aircraft even in the case of subsequent transfers of title to the aircraft.
Prevent any modifications to the essential features of the aircraft from being made without the mortgagee's prior express consent.
Prevent deregistration of the aircraft without the prior release/cancellation of the mortgage.
The registration of an aircraft lease does not create any security or priority over other unsecured creditors of the owner.
The main purposes of registration are to:
Give evidence of the operator of the aircraft (Article 874, Italian Navigation Code).
Satisfy the requirement of undisputable date under Article 2704 of the Italian Civil Code (see Question 9, Engine).
The Italian Civil Aviation Authority (ENAC) issues aircraft certificates of airworthiness in accordance with Part 21, subpart H, of Regulation (EU) 748/2012 laying down and implementing the rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations.
The procedure for obtaining a certificate of airworthiness is set out in detail in the Italian Civil Aviation Authority (ENAC) Circular NAV-25E of 23 December 2015. The request for a certificate of airworthiness must be:
Submitted through a specific application form (ENAC-21A-174).
Signed by a duly appointed representative of the applicant operator.
Addressed to the competent ENAC operational department having competence over the location in which the relevant aircraft is based.
The application form ENAC-21A-174 can only be submitted after filing an application for aircraft registration with the Italian Aircraft Registry, and must include certain representations and technical enclosures attesting:
To the existence of the conditions to safely operate the aircraft.
That the aircraft and related equipment:
are approved by the European Aviation Safety Agency (EASA);
have been installed in accordance with the applicable EASA rules;
are functioning well; and
are under current maintenance.
On satisfactory evaluation of the prescribed requirements, ENAC issues a certificate of airworthiness and a related airworthiness review certificate (EASA Form 15a or 15b).
Deregistration of an aircraft from the Italian Aircraft Registry is governed by Article 760 of the Italian Navigation Code, which provides that an aircraft is deregistered in the following cases:
On the occurrence, or assumption, of loss of the aircraft.
After being dismantled.
Failure to comply with the nationality requirements provided under Article 756 of the Italian Navigation Code.
Registration in the aircraft registry of another state.
Delivery to the owner in the cases set out in Article 756, second paragraph of the Italian Navigation Code.
Application of the owner to register the aircraft in the registry of another EU state.
In the case of deregistration for loss of nationality and/or registration in the aircraft registry of another state, the Italian Civil Aviation Authority (ENAC) must, after receipt of the deregistration application, publish a notice of deregistration inviting interested persons to claim any credit or right within a term of 60 days both:
At its local office having jurisdiction on the district in which the aircraft is normally located when grounded.
In the Italian Aircraft Registry.
On expiration of the 60-day period, the aircraft can be deregistered, provided that either:
No creditor of the owner has made objections against deregistration.
If objections were made, any claim has been resolved in accordance with paragraphs three and five of Article 759 of the Italian Navigation Code (that is, decided in a final judgment or waived, satisfied or secured by a bank guarantee deposited by the owner).
In the case of urgency, an aircraft can be deregistered before the expiration of the 60-day period, provided that a bank guarantee is filed with the Italian Aircraft Registry as security for the value of the aircraft, as appraised by the competent appraisers of ENAC.
To deregister an aircraft from the Italian Aircraft Registry, an application form (available on ENAC's website (www.enac.gov.it)) must be:
Executed by a duly empowered representative of the owner or Italian operator (depending on whether the aircraft is registered in the name of the owner or the Italian operator).
Filed with Italian Navigation Registry in accordance with Article 760 of the Italian Navigation Code.
Accompanied by the original certificate of registration and certificate of airworthiness.
A deregistration certificate can be obtained from ENAC, which usually forwards the deregistration notice to the civil aviation authority of the country where the aircraft is re-registered (if relevant).
Deregistration usually takes between two to five business days from filing of all the required documents in the prescribed form (that is, original, notarised, apostilled, if relevant, and so on).
To discharge or cancel a registered mortgage, the mortgagee must give its consent to the cancellation. This consent must be set out in a document executed and notarised before a notary (Italian, or, if non-Italian, subject to any apostille requirement) by the legal representative of the mortgagee or its duly empowered attorney-in-fact. This document is called a mortgage cancellation deed.
The mortgage cancellation deed must be filed with the Italian Aircraft Registry, along with:
An application signed by the owner of the aircraft requesting the cancellation of the mortgage.
Two notices of the cancellation.
The original aircraft registration certificate.
The relevant security is discharged on cancellation of the mortgage.
Cancellation of a mortgage usually takes between two to five business days from filing of all the required documents in the prescribed form.
Cancellation of an aircraft lease occurs either:
At the expiry of the relevant term.
On filing of the relevant termination documents with the Italian Aircraft Registry (such as termination notices, termination deeds and judgments recognising the termination of the lease).
After cancellation of the aircraft lease, the lessee cannot lawfully operate the aircraft anymore.
The Italian Aircraft Registry can issue written confirmation of the cancellation on request.
Transfer of title
Legal title to an aircraft registered in the Italian Aircraft Registry can be transferred by means of a bilateral agreement (aircraft sale and purchase agreement), but not a unilateral bill of sale.
An aircraft sale and purchase agreement must be:
Notarised (that is, a public notary must certify the identity and powers of the relevant signatories).
Filed with the Italian Public Registry of Private Deeds.
An aircraft sale and purchase agreement can also be executed abroad by the parties and notarised by a foreign public notary. In this case, the notarised (and apostilled, when required) agreement must be filed with the Italian Public Registry of Private Deeds with its translation into Italian.
An aircraft sale and purchase agreement must also be filed with the Italian Aircraft Registry to be enforceable against third parties (effect of public disclosure) (Article 2684, Italian Civil Code; Article 865, Italian Navigation Code).
There is no separate registry for engines in Italy. Accordingly, there are no particular requirements for the transfer of title to an engine severally from the airframe, provided that the relevant agreement has an "undisputable date" (Article 863, Italian Navigation Code). A deed has an undisputable date if it meets one of the following conditions (Article 2704, Italian Civil Code):
It is registered in the Italian Public Registry of Private Deeds.
The signature is certified by a notary public.
It has undergone and/or fulfilled any of the actions recognised or admitted by the law or case law for such purposes (for example, application of post stamps at an Italian post office).
An undisputable date is not required for:
Admissibility in evidence.
Enforceability of the transaction documents.
Validity, effectiveness and binding nature of the relevant deed.
The undisputable date is required to provide evidence of the prior date of the documents (that is, the date when they fulfilled any one of the requirements for an undisputable date) in the case of subsequent bankruptcy of an Italian party.
The only mortgages available over aircraft registered in Italy are those registered in the Italian Aircraft Registry.
The mortgage must be registered with the Italian Aircraft Registry to be effective against the debtor and third parties. Unregistered mortgages are null and void. See Question 4 for information on the applicable registration procedure.
Generally, a registered mortgage takes priority over other mortgages and charges over the aircraft. However, specific liens and rights have priority over both aircraft ownership and mortgage interests, including (Article 1023, Italian Navigation Code):
Judicial costs due to the state.
Expenses incurred in the common interest of creditors for enforcement measures against the aircraft (including for judicial court proceedings for the sale of the aircraft by public auction (procedura esecutiva)).
Wages of the captain and the crew.
Airport duties and similar charges and taxes.
Indemnities and rewards for providing assistance to and rescuing the aircraft.
death and/or bodily injury of passengers; and
loss of the cargo and/or baggage.
Spare parts cannot be subject to a mortgage distinct from the mortgage registered over the aircraft. Spare parts (when installed) are considered to be part of an aircraft, and are subject to any mortgage granted over the aircraft in its entirety.
Other forms of security can be taken over spare parts under a security agreement (which cannot be registered in the Italian Aircraft Registry), provided that the spare parts are both:
Segregated in areas of the relevant warehouses.
An aircraft lease can be assigned by way of security. To be valid, an assignment must:
Be in writing.
Be notified to, or accepted by, the assigned party.
Meet the undisputable date requirements (see Question 9).
Other forms of security
The only form of security that can be voluntarily granted over an aircraft and registered with the Italian Aircraft Registry, giving the secured party a right in rem over the aircraft, is a mortgage. Other forms of security interests can be taken over an aircraft, but these cannot be registered with the Italian Aircraft Registry. In particular, certain liens can arise by operation of law. See Question 11 regarding statutory liens established under Article 1023 of the Italian Navigation Code.
There is no registry for engines in Italy. Mortgages that are registered over the aircraft automatically extend to the engine, except when:
A different person has title to the engine.
The document of title meets the requirements for an undisputable date (see Question 9, Engine).
See Question 14.
Transfer of security
Generally, it is possible to transfer security interests over an aircraft. The transfer must be effected by an agreement executed in the same form as that prescribed for the creation of the security (that is, a notarial deed for mortgages, and a written agreement meeting the undisputable date requirements for other security interests).
Enforcement of security and repossession
Italian laws do not recognise self-help remedies. Therefore, mortgages can only be enforced through judicial proceedings. The only remedy available for enforcement of the mortgage is the sale of the relevant aircraft. Any action by the mortgagee against the aircraft and/or its owner, which is commenced for breach of the mortgagor's obligations (in particular for overdue payments), must be brought before the courts.
The mortgagee can start an enforcement action in accordance with the rules of the Italian Civil Procedure Code, requesting the competent court to:
Order the sale of the aircraft by public auction.
Satisfy the mortgagee's credit through the assignment of the sale proceeds (or a part of these proceeds).
The parties cannot agree to transfer title to the encumbered aircraft to the mortgagee if the mortgagor is in default of its obligations under the relevant agreement (for example, loan or credit facility). Any similar arrangement between the mortgagor and the mortgagee is null and void (Article 2744, Italian Civil Code). Additionally, the mortgagor cannot apply for the assignment of the aircraft through judicial proceedings.
The mortgagee can request interim and and/or precautionary measures to prevent the aircraft from taking off.
The length of the enforcement procedure can vary from court to court, and usually takes no less than one year.
Creditors cannot commence or continue enforcement and precautionary measures proceedings against the assets of an insolvent company once the relevant insolvency procedure has been filed (stay of proceedings rule) (Article 168, Italian Bankruptcy Law (Royal Decree no. 267 dated 16 March 1942, as amended)).
Italian courts must recognise and enforce final, valid and conclusive judgments rendered by European courts having jurisdiction over any action or proceeding arising out of, or relating to, the enforcement of a mortgage in accordance with, and subject to, the provisions of Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Italian courts must recognise and enforce final, valid and conclusive judgments rendered by non-European courts having jurisdiction over any action or proceeding arising out of, or relating to, the enforcement of a mortgage, without review of the merits, if the following requirements are met (Article 64, Law No. 218/95):
The foreign judgment was rendered by a foreign judge who was competent to settle the dispute under the Italian rules on competence.
The defendant was duly notified of the proceedings commenced by the other party under the law of the place where the proceedings were held.
The claimant and defendant filed their claim/defence with the foreign court or default by one of the parties was declared according to the law of the place where the proceedings were held.
The foreign judgment is final (res judicata) according to the law of the place where the proceedings were held.
The foreign judgment is not contrary to any other Italian judgment issued in relation to the same subject matter, and which became final according to Italian law.
There are no other proceedings pending before the Italian courts between the same parties with regards to the same subject matter.
The foreign judgment is not contrary to Italian legal rules of public policy.
The interested party must file an application for recognition of a foreign judgment before the Italian court of appeal of the place where the party against whom the foreign judgment should be executed resides or is domiciled. The application must contain evidence that all the above requirements are satisfied. The relevant Italian court of appeal must issue a decree recognising the foreign judgment in Italy. The foreign judgment can then be served on the other party and enforced.
Other forms of security
No self-help remedies are available under Italian law. Therefore, there is no procedure for repossession of an aircraft under other forms of security interests. Any interested party must start enforcement proceedings according the Italian Civil Procedure Code (see Question 19).
However, the Italian Civil Aviation Authority can prevent the aircraft from taking off on warning the airport manager or the Italian Air Traffic Control Authority (Ente nazionale Assistenza Volo) (ENAV) in the case of any default in the payment of taxes, duties or fees, including fees pertaining to ENAV (such as overflight or terminal charges) (Article 802, Italian Navigation Code).
There are no self-help remedies available in Italy enabling a lessor to repossess an aircraft without judicial intervention following termination of a lease. Under Italian laws, the lessor must obtain a judicial order of the competent court to take possession of the aircraft in the case of the lessee's failure to co-operate.
To take possession of an aircraft before the expiration of a lease, the lessor can either:
Enforce a foreign judgment in Italy, provided that it meets the conditions for enforcement (see Question 21).
Bring an action before the Italian competent court requesting:
an injunction for the return of the aircraft under Article 633 of the Italian Civil Procedure Code (decreto ingiuntivo), which can be granted without notice to the lessee, and either be immediately enforceable or subject to a waiting period of 40 days for possible objection by the lessee; and/or
precautionary measures, including seizure/attachment of the aircraft.
Whether an injunction is immediately enforceable will depend on the event of default and the evidence that the lessor can provide to the court on its right to repossess. If the injunction issued is subject to a 40-day period, an ordinary legal proceeding will start and the lessor can request an order of temporary enforcement (provvisoria esecutorietà) provided that the lessee's objection is not:
Based on written evidence.
Immediately assessable by the judge at the first hearing (which must be called not earlier than 90 days after service of the lessee's objection against the injunction).
The lessee can contest the interim or precautionary measures obtained by the lessor, and the time necessary to gain possession of the aircraft can vary depending on the relevant grounds submitted by the lessee.
As a general principle, the insolvency of the lessee and the absence of disputes about the lessee's default will expedite the repossession process. By contrast, disputes about sums to be paid, the claimant's right to repossession and/or the existence of any default under the lease will slow the process.
It can take one to two years to obtain a first instance judgment from a competent Italian court. A judgment is immediately enforceable, even if it is subject to appeal.
See Question 21.
Cape Town Convention
Italian Civil Aviation Authority (Ente Nazionale per l'Aviazione Civile) (ENAC)
www.enac.gov.it/servizio/info_in_english (English website)
Description. This is the official website of ENAC. The website is updated by ENAC with new technical regulations and new surveillance and control measures in the civil aviation field. The website is translated by ENAC for guidance only.
Ministry of Transport
Description. This is the official website of the Ministry of Transport, which contains up-to-date news on the regulation of Italian transport systems.
Italian Anti-trust Authority (Autorità Garante della Concorrenza e del Mercato) (AGCM)
Description. This is the official website of the AGCM, which provides access to official news, rulings and regulations that have an effect on free competition.
Italian Air Traffic Control Authority (Ente nazionale Assistenza Volo) (ENAV)
www.enav.it/portal/page/portal/PortaleENAV/Home_EN (English website)
Description. This the official website of ENAV, the company which provides air traffic control services and other essential services for air navigation in the Italian skies and at national airports, with a consistently improved level of safety, efficiency and regularity. The website publishes news and regulations (such as the Aeronautical Information Publication). This website is translated by ENAV for guidance only.
Laura Pierallini , Founder and name partner
Professional qualifications. Member of the Italian Bar; qualified to act before the Italian Supreme Court; Professor of Commercial Law and Air Law, LUISS University of Rome
Areas of practice. Aviation; corporate and commercial law; bankruptcy; anti-trust; finance.
Advising airlines and airport handlers on restructuring, and on bankruptcy and insolvency procedures.
Assisting in the negotiations of several lease agreements (narrow-body and wide-body aircraft).
Advising lessors and financiers on the assignment of the main part of Alitalia's fleet in connection with the transfer to a newly incorporated carrier partly owned by Etihad.
Advising on the sale and lease back of engines' fleet.
Assisting in the IPOs of Italian airlines and mergers and acquisitions of domestic airlines by foreign airlines.
Assisting in purchase transactions of private jets (including Bombardier Global 6000, Dassault Falcon 2000 LX, Dassault Falcon 50 EX, Dassault Falcon 900 EX and Gulfstream 4550).
Assisting in purchase and leasing transactions of helicopters (including Airbus Helicopters EC142T2 and Agusta Westland AW139).
Languages. Italian, English, French, Spanish
Committee member, European Air Law Association.
International Aviation Women's Association.
European Aviation Club.
Publications. Contributed to various publications on aviation law, and tourism and commercial law, including the following:
Italian chapter, Getting the Deal Through, Air Transport.
Italian chapter, Getting the Deal Through, Aviation Finance & Leasing.
International Law Office, Aviation.
Italian chapter, International Comparative Legal Guide, Aviation Law, Aircraft Finance and Aircraft Liens.
"EC Regulation No 261/2004 - Passengers' right to compensation in case of flight delay. Looking for a fair balance of interests. The role of the European Court of Justice and the risk to waist a chance of reform", Liber Amicorum John Balfour.
"Air Passenger Rights, Ten Years On", Michal Bobek, Jeremias Prassl.
Gianluigi Ascenzi, Partner
Professional qualifications. Member of the Italian Bar; qualified to act before the Italian Supreme Court
Areas of practice. All areas of aviation law, with a focus on commercial, cargo and private jet carrier transactions, structuring and negotiation of acquisitions, financing and leasing operations and portfolio sales; corporate governance; commercial law; regulatory compliance; M&A transactions; anti-trust issues; acquisition and management of assets.