Relocation of the debtor to a neighbouring country: Cross-border enforcement of claims in the relationship between Switzerland and Germany

Invoices that are not being paid, or failure to comply with payment reminders, is extremely frustrating for creditors in both Switzerland and Germany. For this reason, both the Swiss and German legal systems offer creditors a simple and efficient way of enforcing their claims: in Switzerland through debt enforcement and in Germany through dunning procedures.

Debt enforcement proceedings in Switzerland

The debt enforcement procedure is regulated in the Swiss Federal Act on Debt Enforcement and Bankruptcy (SchKG). If the creditor has an outstanding claim against the debtor, they can initiate debt enforcement proceedings at the competent debt enforcement office. The debt collection office will then issue a payment order requiring the debtor to pay the claim. It should be noted that when the order for payment is issued, the existence, due date, amount, or enforceability of the claim is not examined.

If the debtor pays the outstanding claim after receiving the payment order, this payment leads to the suspension of the debt enforcement procedure. Alternatively, the debtor can contest the claim, i.e. lodge a legal objection. If the creditor then wants to enforce the outstanding claim, they must remove the legal objection, i.e. have the claim examined by the courts. This can be done either in ordinary civil proceedings (or, if the amount in dispute is less than CHF 30’000, in simplified civil proceedings) for the removal of the legal objection, or in a so-called summary proceeding. Which procedure is chosen, depends on whether and in which document the creditor’s claim is established. If a court decision (enforceable judgement or enforceable order) has been issued or the claim has been acknowledged by the debtor in a signed form, then removal of the legal objection can be granted in summary proceedings. In all other cases, an ordinary (or simplified) procedure must be followed.

If the debtor does not lodge a legal objection or pay the debt enforced, the creditor may, after the expiry of a period of 20 days from the date of delivery of the payment order, demand the continuation of the debt enforcement procedure, i.e. the seizure of a person’s property in the case of natural persons and the bankruptcy of the debtor in the case of companies registered in the Commercial Register.

Dunning procedures in Germany

Dunning procedures are governed by the German Code of Civil Procedure (D-ZPO). The creditor initiates the dunning procedure by filing an application for the issuance of a dunning order with the competent dunning court. The application can be completed online ( and must then be printed, signed, and sent by post to the competent dunning court. In the next step, the dunning court will issue a dunning order. This includes a request to the debtor to settle the creditor’s claim within two weeks of service.

If the debtor pays the outstanding claim after receiving the dunning order, the dunning procedure is terminated. Alternatively, the debtor can lodge an objection or remain inactive. In the event of an objection, the matter is referred to the competent court and the creditor is asked to substantiate their claim. If the court rules in favour of the creditor, the creditor receives an enforceable judgment and can proceed with the enforcement of the outstanding claim.

If the debtor does not object to the order for payment and remains inactive, the competent dunning court issues the so-called enforcement order at the creditor’s request (at the earliest two weeks after service of the order for payment). Even after the enforcement order has been served, the debtor has three options: (1) to pay the outstanding amount, (2) to lodge an objection against the enforcement order or (3) to remain inactive. If the debtor pays after receiving the enforcement order, the dunning procedure is stopped. If the debtor files an objection within two weeks of service of the enforcement title, the case is transferred to the competent court, at the end of which, and in the best case scenario, there is an enforceable judgment in favour of the creditor. If the debtor remains inactive after receipt of the enforcement order and does not file an objection, the enforcement order becomes legally binding. The creditor can then instruct the competent enforcement authorities to enforce on the basis of the enforcement order.

Departure of the debtor

With today’s international interdependence, cross-border business relationships are nothing unusual. However, creditors are often at a loss if the debtor fails to meet their payment obligations and the creditor commences enforcement proceedings or dunning procedures at the debtor’s current place of residence or registered office when the debtor moves from Switzerland to Germany or vice versa during the course of the proceedings.

Since both Switzerland and Germany are members of the Lugano Convention (LugÜ), this can help to solve the problem in such cases, at least in part. According to the Lugano Convention, the courts of the state in which enforcement is to take place are competent for enforcement proceedings. If the debtor moves his residence across the border, the possibility of enforcement in the country of origin is usually lost and the creditor has to sue the debtor in their new place of residence. However, if the creditor had already commenced enforcement proceedings at the time of the debtor’s departure and a decision had already been given which is recognisable under the Lugano Convention, the proceedings against the debtor may be continued at the debtor’s new place of residence abroad.

Debtor’s departure from Switzerland to Germany

If the debtor moves from Switzerland to Germany during the debt enforcement proceedings, the creditor does not always have to initiate new proceedings against the debtor in Germany in order to enforce their outstanding claim. If there has already been a judgement in Switzerland removing debtor’s objection, the enforcement can be continued in Germany. In order to do so, a confirmation of legal effect must first be obtained from the Swiss court that issued the judgment in accordance with Articles 54 and 58 of the Lugano Convention. In doing so, the Swiss court confirms that the judgment is enforceable in the country of origin, i.e. in Switzerland. In a second step, the judgment that removes the debtor’s objection must be declared enforceable by the competent German court and enforcement must then be commenced in Germany.

Debtor’s departure from Germany to Switzerland

If a debtor moves from Germany to Switzerland during an ongoing dunning procedure, the question of whether the enforcement proceedings can be continued in Switzerland is reversed. If an enforcement order has already been issued in the German dunning procedure and served on the debtor, it can be recognised by the competent Swiss court in accordance with the Lugano Convention and enforcement can be continued in Switzerland.

If you have any further questions regarding the enforcement of your cross-border claim, please do not hesitate to contact us. Based on the expertise of our specialists Katharina Lux and Simon Fricker in Swiss and German civil and enforcement law, we will be happy to support you in both the national and cross-border enforcement of your claims.

Simon Fricker
Attorney at Law Certified Specialist SBA Employment Law
[email protected]
Katharina Lux
Ass. iur., LL.M., Attorney at Law
[email protected]

More news & Articles