The Cape Town Convention and Aircraft Protocol adopted in 2001 are mixed agreements falling partly under exclusive Community competence. In 2003, an agreement was reached within the EU for the adoption, but given that the situation has changed substantially after the enlargements and the Convention and Protocol are no longer open for signature, an amended proposal is necessary.

The Commission is proposing that the Community should conclude the Convention on International Interests in Mobile Equipment, "the Cape Town Convention", and its Protocol on matters specific to aircraft equipment, "the Aircraft Protocol", adopted at a Diplomatic Conference held in Cape Town from 29 October to 16 November 2001, under the combined auspices of the International Institute for the Unification of Private Law (UNIDROIT) and the International Civil Aviation Organisation (ICAO).

In 2002, the Commission presented two proposals for the signing and conclusion by the Community of these instruments. These proposals contained declarations to be made by the Community on the application of specific provisions of both instruments which affect Community law. Some disagreements over the provisions of the Convention and the Protocol in relation to certain specific situations between Member States, as well as the substantial change of the situation after the enlargements, delayed the process of adoption.

Since the Community has jurisdiction over certain matters governed by the Convention and its Aircraft Protocol, the Member States cannot ratify these instruments independently. Four Member States have signed the Convention and its Aircraft Protocol. Since the entry into force of the Cape Town Convention on 1 April 2004 and of its Aircraft Protocol on 1 March 2006, the Community cannot sign these international instruments and the 2003 proposal for the signing has become obsolete. However, the Community shall accede to the Convention and Aircraft Protocol by making the relevant declarations.

Against this background, this proposal meets the Commission's commitment made in the  the meeting of March 2008 of the Civil Law Committee and merges the draft Community declarations for the signature and conclusion into a proposal for one Council Decision on the conclusion.

The two instruments require that at the time of signature, acceptance, approval or accession, the Community must make a general declaration indicating the matters covered by the Convention and the Protocol which fall within the Community's jurisdiction, affecting Council Regulations (EC) Nº 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters and (EC) Nº 1346/2000 of 29 May 2000 on insolvency proceedings The proposal therefore drafts those declarations in order to enable the signature.

Therefore, in addition to the Declarations concerning the competence of the European Community over matters governed by the Cape Town Convention and the Aircraft Protocol in respect of which the Member States have transferred their competence to the Community, the Commission's recommendations for declarations on the proposals are:

• Interim relief: Commission points out that only measures which are provisional or protective are measures which, in the areas within its scope, are intended to maintain a de facto or de jure situation in order to safeguard rights which the court hearing the case is requested to recognise.
• Insolvency: The Commission considers that, where the primary insolvency jurisdiction is in a Member State, Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings should in any case be applicable instead of the Convention and the Aircraft Protocol. To achieve this objective and preserve certainty in the law, it recommends that the Community should not opt for full or partial application of either of the alternatives set out in Article XI of the Protocol.
• Jurisdiction of the place of registration: Given that the Convention allows the Contracting States not to apply the articles regarding this matter, the Commission recommends to do so, which will enable it to apply Regulation No 44/2001.

The Commission therefore proposes that the Council adopts the draft decision authorising conclusion of the UNIDROIT Convention on International Interests in Mobile Equipment and its Protocol on matters specific to aircraft equipment, by making the necessary declarations.

The Cape Town Treaty

The Cape Town Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, together usually referred to as the Cape Town Treaty, is an international treaty intended to standardize transactions involving movable property, particularly aircraft and aircraft engines. The treaty creates international standards for registration of ownership, security interests (liens), leases and conditional sales contracts, and various legal remedies for default in financing agreements, including repossession and the effect of particular states' bankruptcy laws.