Can an Italian creditor who has obtained an enforceable judicial decision request the conservatory seizure of assets located in Switzerland in order to safeguard their credit rights?
The answer is affirmative. This procedure is legally grounded in the rules governing the recognition and enforcement of foreign judicial decisions in Switzerland, with particular reference to the Lugano Convention (CLug), which regulates jurisdictional relations between member states. Another significant legal reference is the Swiss Federal Act on Debt Enforcement and Bankruptcy (LEF), which governs enforcement measures within Swiss territory.
The Lugano Convention, inspired by the EU Brussels I Regulation, applies not only to EU member states but also to third states that have ratified it, including Switzerland. It regulates the recognition and enforcement of judicial decisions in civil and commercial matters among the contracting states. Under this legal framework, Italian decisions, including judgments and payment orders, can be recognised in Switzerland and serve as the basis for enforcement proceedings, including precautionary measures such as the freezing of the debtor’s assets.
Conservatory seizure is a provisional measure aimed at ensuring the availability of the debtor’s assets and preventing their removal from enforcement action before the creditor’s claim is satisfied. It is a highly relevant tool for creditors, as it helps to prevent fraudulent disposals by the debtor.
To obtain a freezing order in Switzerland, the creditor must first demonstrate the existence of their claim, which must be based on an enforceable judicial decision. Additionally, the creditor must specifically identify seizable assets located in Switzerland, as well as their whereabouts. These assets may include bank accounts, real estate, salaries, or claims against third parties. However, the claim in question must not already be secured by other protective instruments such as pledges or mortgages.
The Italian judicial decision on which the request for seizure is based must be accompanied by a certificate attesting to its enforceability and must be submitted to the competent Swiss judicial authority. If the latter deems that the conditions established by the Lugano Convention and Swiss domestic law are met, it will issue the freezing order inaudita altera parte with urgency.
The Swiss judge is also responsible for examining the Italian judgment and verifying its conformity with the Lugano Convention through an exequatur decision, which allows for the enforcement of the measure in Switzerland.
Once issued, the freezing order is promptly notified to the debtor. As a provisional measure, it must be validated within a peremptory period of ten days from its issuance.
At this stage, the debtor has the opportunity to file an objection challenging the order. However, in compliance with the principles of efficiency and expediency governing this procedure, the objection does not have an automatic suspensive effect: the seizure remains effective even during the opposition proceedings, thereby preventing fraudulent manoeuvres aimed at evading enforcement action.
A fundamental aspect of this procedure is the provisional nature of the measure: the freezing order does not constitute a definitive enforcement of the claim but rather serves to preserve its guarantee. If the creditor subsequently obtains the definitive recognition of the decision in Switzerland, the seizure may be converted into an attachment, potentially leading to the realisation of assets to satisfy the claim. Conversely, if the proceedings do not conclude favourably for the creditor, the seizure will be lifted, and the debtor’s assets will be fully restored to their availability.
The conservatory seizure is thus an essential instrument for Italian creditors seeking to protect their claims in Switzerland. However, the procedure requires a rigorous demonstration of the prerequisites established by the applicable legal framework. Therefore, it is advisable to seek specialised legal counsel to effectively navigate the complexities of the procedure and maximise the chances of success.
