Recently posted in the National Law Review an article by attorney John I. Karesh of Vedder Price P.C. regarding lessors will no longer receive an aircraft operator’s statement of account from Eurocontrol via e-mail.
Eurocontrol has implemented a change to the way lessors, lenders and security trustees can audit the Eurocontrol accounts of lessees. Effective September 1, 2011, lessors will no longer receive an aircraft operator’s statement of account from Eurocontrol via e-mail. In an attempt to provide better security, Eurocontrol will now provide such statements only upon the lessor’s request via a secured extranet system called CEFA (Central Route Charges Office Extranet for Airspace Users). We have been advised by Eurocontrol that lenders and security trustees also will be granted access to CEFA under the same protocol. In order to gain access, the requesting party needs to complete an Agreement (available on Eurocontrol’s website). Once the Agreement is completed and received by Eurocontrol, the requesting party can view an operator’s statement of account online 24/7. Access is free. However, requesting parties must obtain approval from each operator whose statement of account they wish to view by having the operator sign an Authorization Letter in the prescribed form.
Because lenders and lessors must execute the Agreement, they should take note that the Agreement contains various noteworthy provisions including the following: Article 4 provides that to the extent permitted by national law, in the event of a dispute, Eurocontrol’s data, including metadata, shall be admissible in court and shall constitute evidence of the facts contained therein unless contrary evidence is adduced. Section 9.2 provides that once a statement of account becomes available on CEFA, it shall be deemed received by the “Leasing Company,” which agrees to proactively and regularly check the CEFA site. Article 13 contains various provisions concerning confidentiality and protection of data. Section 14.2 requires the Leasing Company to indemnify Eurocontrol against any claims for damages made by third parties where the claims or damages are due to a fault of the Leasing Company. Article 15 provides that without prejudice to any mandatory national law, the transmission of electronic data under the Agreement shall be governed by Belgian law. Article 16 provides that any dispute arising out of or in connection with the Agreement shall be referred to the Brussels Court of First Instance (Belgium), which shall have sole jurisdiction.
Also, Section 17.3 provides that the Agreement is for an indefinite period, but either party may terminate it on not less than three months’ written notice, and that Eurocontrol is entitled to terminate or suspend the Agreement in a case foreseen under the confidentiality and protection of data provisions (Section 13.1) or if all authorizations to release Statements of Account to the lessor have been withdrawn. Section 17.4 provides that access to the Statements of Account of an Aircraft Operator will be terminated without notice in case of the withdrawal of the authorization to release such Statements of Account. However, the prescribed form of Authorization Letter provides that it may only be revoked or amended by written instructions from the operator and lessor.
The foregoing is merely a summary of a few of the provisions of the Agreement. All provisions should carefully be reviewed before signing. However, it appears the only way lessors, lenders and security trustees can obtain the statement of an operator’s account is by means of the Authorization Letter and signed Agreement.
© 2011 Vedder Price P.C.
