by Matthieu de Varax and Charles Derollez
Commisimpex, a company incorporated in the Republic of the Congo, has been in dispute for several years against the State of Congo over unpaid commercial claims and has conducted litigation in the courts of many jurisdictions, including Belgium, the United States and France.
This article discusses the French authorisation of seizure of an aircraft by Commisimpex and the ensuing sale of the aircraft by public auction in France.
On 27 February 2020, in connection with previous proceedings, the Paris court of appeal authorised Commisimpex to conduct enforcement measures on any of Congo’s assets, including aircraft, to the exception of assets used or destined to be used in the State’s diplomatic missions.
Based on the above decision, in 2020, Commisimpex had a notification of arrest delivered by a bailiff for the seizure and sale of the presidential aircraft of Congo, a 2014 Dassault Aviation Falcon 7X aircraft bearing the Congolese registration mark TN-ELS. This action was to secure the repayment of Commisimpex’s claims.
At the time it was seized, the aircraft was in Mérignac (in the outskirts of Bordeaux in France) where it was undergoing maintenance at the local Dassault Falcon Service facility.
Although vigorously contested by Congo, the aircraft seizure was confirmed by a judgment from the judicial court of Bordeaux on 13 December 2022, and later on by a ruling from the Bordeaux court of appeal on 29 June 2023, thus authorising the sale of the aircraft by public auction.
Pursuant to article R.123-9 of the French civil aviation code, when the owner of an aircraft is not domiciled in France or when the aircraft is of foreign nationality, any creditor of that owner has the right to request the precautionary seizure of the aircraft from the judicial judge which has jurisdiction over the place of landing. Once seized, the aircraft will go through an auction process for its public sale (unless of course the owner settles its claim with the requesting creditor). The terms of the sale and the starting price are fixed by the court.
The auction took place on 3 October 2023. Despite having completed only 1,181 flight hours, the aircraft was listed at a modest €7 million asking price. The sole bidder of the auction for the aircraft ended up snatching it for only €7.1 million after a one-minute auction. In accordance with French rules, the purchaser was also ordered to pay the costs of the procedure, as well as Dassault Falcon Service’s invoice for storing and maintaining the aircraft since 8 June 2020 for an amount of approximately €850,000.
Given the asking price, this relatively recent aircraft that had completed a low amount of flight hours raised much interest in the business aviation community. The Falcon 7X is a successful aircraft and demand for the model remains high. Its market value is well in excess of the asking price.
The reason for the lower auction price might be due to public statements by Congolese authorities that they would resist any attempt to deregister the aircraft. Potential buyers (and there were many) were probably put off by the likely impossibility to obtain a deregistration. This is because, in accordance with international civil aviation rules, a civil aviation authority may not register an aircraft unless it has been presented with the written confirmation from the preceding registry that the aircraft has been deregistered. The identity of the purchaser has not been disclosed. It is assumed that they already have a designated purpose in mind for the aircraft. The next few weeks will tell us if the aircraft was purchased to be dismantled or if a deal was eventually struck with the Congolese authorities.