Due to our presence both in Germany and Switzerland, we take over all activities necessary for you in the course of enforcement of foreign titles in the German speaking parts of Switzerland. (“Betreibung Schweiz”)
The official Swiss “Betreibungsverfahren”
Anyone who has passed a foreign judgment, which shows a debtor resident in Switzerland, has to deal with the issue of enforcement of such title in Switzerland. Even if a legally binding judgment has already been provided, the so-called “Betreibungsverfahren” in Switzerland must be passed through, which is divided into two sections:
1. the request for payment with the possibility of the debtor to object against further proceedings (so called “Rechtsvorschlag”)
2. and the official procedure itself. (so called “Pfändungsverfahren”)
The enforcement of foreign titles itself, called “Betreibung” in Switzerland, is governed by the provisions of the Federal Law on Debt Collection and Bankruptcy (SchKG).
In order to initiate this procedure at the place of residence or place of business of the debtor, the receivables shown in the title, converted into Swiss francs, shall be submitted with the corresponding form “Betreibungsbegehren.” It should be noted that there is no interest rate automatically added to the original claim amount by the public entities involved in the proceedings. Therefore some creativity is required in order to avoid loosing the interest part of such claims.
The debtor is then immediately given a so-called payment order (“Zahlungsbefehl”) to which she or he can react differently. Either the debtor pays or makes a legal proposal (“Rechtsvorschlag”) to defend herself or himself against the claimed amount or does not react at all. After such “Rechtsvorschlag”, the proceedings can for the Moment not be carried Forward, and the contested claim must be judicially reviewed (see below for the so called “Rechtsöffnungsverfahren”).
If the debtor does not react, the next step fo the procedures, the so called “Fortsetzungsbegehren” has to be initiated, in order to collect the Claim amount via the relevant tax offices. For this purpose, SchKG provides for two different procedures, depending on whether the debtor is a natural person (in such case the so called “Pfändung” has to be initiated), or whether it is a legal Entity or a natural Person registered in the commercial register (“Handelsregister”) (in such case the so called “Konkursbetreibung” is to be chosen).
In the so called “Betreibung auf Pfändung”, after the income situation and expenditures of the debtor have been determined, the “Betreibungsamt” shall, for one year, execute the forwarding of the initially calculated quota monthly, unless the claim has been settled in a shorter period through such periodic payments. After the end of such one year period, a so-called loss certificate (“Verlustschein”) is issued which may still be executable but in any case will stop any interest payments on the initial claim amount. From the date of issuance of the afore mentioned loss certificate, a new “Fortsetzungsbegehren” can be initiated within 6 months.
In the case of “Kunkursbetreibung”, the debtor’s company is granted a final payment period of 20 days (“Konkursandrohung”) before the creditor is given the opportunity to submit to the competent court the application for bankruptcy of the company. The creditor has to deposit a deposit in these proceedings, the amount of which is determined by the court, usually by the amount of around CHF 2’000.-. Unused funds will be refunded to the creditor. After the approval of the bankruptcy, the “Konkursamt” is now responsible for the further proceedings.
The so called “Rechtsöffnungsverfahren”
If the debtor has raised a legal complain against the enforcement procedures, the alleged claim must now be enforced by court. If, however, a foreign legally binding judgment has already been delivered, a much shortened and more cost-effective court proceeding, the so called “Rechtsöffnungsverfahren”, has to be initiated. In this case, if the prerequisites are met, the foreign judgment in Switzerland is recognized as if the verdict was from a Swiss court. (Exequatur)
The legal basis for this is the so-called “Lugano Abkommen” (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters), whereby there are both an old LugÜ of 1988 and a revised LugÜ signed in 2007. In this international treaty, it is regulated that verdicts made for example in Germany are recognized in principle without a new legal examination in Switzerland. The term “decision” also covers further verdicts regarding costs and alike. Depending on when the decision was taken and when the respective Lugano treaty was implemented in the Member States, different documents must be submitted to the Swiss court. There are particularities in the case of the proceedings in which the former defendant or opponent has not been present in court. It is essential that the proof of delivery of the document commenicing the proceedings be submitted in the legal proceedings, as required by the Lugano Convention.
If “Exequatur” is granted, the foreign decision shall be regarded as evidence of the legality of the claim. The debtor can now essentially only object to payment, deferment or statute of limitation, otherwise the court will abolish the legal proposal and the official “Betreibungsverfahren” (enforcement of foreign titles in Switzerland) may be continued.
Particularities
The Swiss authorities will usually not deliver to foreign adresses and also do not make payments to foreign countries and accounts. This makes the enforcement of foreign titles in Switzerland difficult or impossible for a foreign creditor who does not have a domicile in Switzerland. She or he can, however, hire a Swiss law firm to execute the proceedings for her or himself in Switzerland.
The associated additional costs for the enforcement of foreign titles in Switzerland may not be claimed back from the debtor according to SchKG. This is differently regulated in many other countries.
In order to get an overview of the costs associated with execution of foreign titles in Switzerland, you can use the button “Cost calculator”
Should you wish to initiate a mandate for the enforcement of foreign titles in Switzerland without further information from us, this is possible by means of the documents, which you find by pressing the button “Mandate Forms”. We would also be pleased to send you an individualized overview of the costs and the documents to be submitted, either in writing (by e-mail) or by telephone.