Dr. Fassbender Rechtsanwälte | Zwangsvollstreckung Schweiz

Enforcement in Switzerland of claims titled in Germany

Enforcement in Switzerland of claims titled in Germany

In principle, any claim in Switzerland can be submitted to debt collection (enforcement). This is comparable to the initiation of dunning proceedings in Germany. However, you must also take this route if you already have a claim that has been titled in Germany (court judgment, enforcement order, cost assessment order, etc.). If the debtor then raises a so-called legal proposal within the 10-day period and thus blocks further enforcement actions, one can take privileged court proceedings (so-called opening of a legal action) with the already existing German enforcement title in order to have the court cancel the legal proposal. Privileged because this court procedure is cheaper and faster than a normal civil action, mostly in writing and limited to only a few objections of the debtor. Betreibungsverfahren Schweiz

In the context of the opening of a judgment, the judge in Switzerland must recognize the German judgment and declare it enforceable in Switzerland. The requirements for this are regulated in the international treaty "Lugano Convention" (the old Lugano Convention of 1988 and the revised Lugano Convention, which has been in force in Switzerland since 01.01.2011).

A special feature in the context of recognition applies to judgments in which the defendant has not entered an appearance. In Germany, these are mainly judgments by default and enforcement orders, which can also be maintenance orders. According to Art. 34 No. 2 revLugÜ, these decisions are only recognized if it is proven that the debtor was served with the document instituting the proceedings in due time. In the case of a judgment by default, proof must be furnished that the statement of claim was served, and in the case of an enforcement order, proof must be furnished that the order for payment was served. This proof is provided for titles issued after 01.01.2011 by submitting the form in Annex V to the Lugano Convention. The form is issued by the German court. For titles issued before 01.01.2011, the old Lugano Convention in its version of 1988 applies. At that time, there was no Annex V, which is why some courts in Switzerland refer to the provisions of national law on service. This is regulated in Germany according to § 182 ZPO with the certificate of service, which must then be presented for recognition in Switzerland.

It should be noted at this point that Switzerland has lodged an objection to Art. 34 No. 2 last HS revLugÜ and therefore this exception does not apply.Betreibungsverfahren Schweiz


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