Seizure of the aircraft in Poland
Polish Aviation Law provides inter alia possibility for seizure the debtor’s aircraft upon final court or arbitration judgement. It causes serious risk for foreign entrepreneurs, which operates in aviation sector and simultaneously have disputable claims with other entities.
Legal basis of seizure and enforcement proceedings
Final judgement of Polish court, as well as judgement of EU member state court poses legal base for the creditor to launch enforcement procedure in Poland. This entitles the Public Bailiff to carry out enforcement inter alia from movable properties (incl. aircrafts). Obviously each court judgement shall be issued after proper notification of the counter-party, as well as contradictory court litigation. However it shall be noted that due to various circumstances, sometimes final judgements are passed for enforcement despite of improper notification.
There are two categories of such situations depending on the level of debtors fault:
- the debtor was improperly notified (e.g. notification for wrong address) and did not have any knowledge of the court case
- the debtor was properly notified but he did not pick up the notification (or even court injunction) within 14 days or he simply disregarded the notification (or the injunction).
In above situations it is possible that the Courts injunction (if issued) becomes final and eligible for enforcement or the Court issues the judgement in absence being convinced that the debtor deliberately does not participate in the case despite of the notification.
In abovementioned situations it may be possible that the improperly notified judgement becomes final and poses a legal ground for enforcement. If this happens without debtors fault (first category of above), usually the debtor is equipped with various legal remedies allowing to restart or reopen improperly closed procedure. Measures are different depending on the type of mistake and time of learning about mistake by the debtor.
Enforcement procedure may consist of seizure of the aircraft and public sale. The fact that the aircraft is not owned by the debtor does not pose an obstacle to successful seizure and sale of the aircraft. The Public Bailiff is not obligated to verify ownership of the aircraft that is subject to seizure. This is confirmed by several court rulings, which have an impact on current Polish Courts rulings.
In case of seizure of the aircraft that is not owned by debtor, the owner has a right to exclude the aircraft from enforcement. Ownership by third party (not by the debtor) is a good enough reason to exclude the aircraft from enforcement.
Nevertheless there are at least three conditions that must be met in order to exclude the aircraft successfully from enforcement:
(a) the exclusion lawsuit must be successfully filled by the owner within 1 month deadline from the moment the owner learned about seizure of his property;
(b) the ownership of the aircraft shall be properly justified and documented;
(c) the court fee shall be paid – 5 % of the aircraft value, but not higher than 100,000 zł.
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