Debtors should not be able to discharge their financial obligations through abusive bankruptcy. At its meeting on October 25, 2023, the Federal Council enacted the necessary amendments to the law and ordinances, in particular the Federal Act on Debt Enforcement and Bankruptcy, with effect from January 1, 2025.
As a result, the hurdles to freeing oneself from debts to the detriment of creditors have become higher. If the debtor is registered in the Commercial Registry, claims under public law will no longer be pursued for seizure but for bankruptcy from January 1, 2025. These claims include, for example, tax arrears, fines or outstanding state pension contributions. Companies are therefore exposed to an increased risk of bankruptcy. Art. 43 no. 1 and 1bis SchKG, which excluded these claims from bankruptcy proceedings, will be deleted from the law.
This change has a major impact on companies and their creditors. This is because, unlike the previous procedure with loss certificates (‘Pfändungsverlustscheinen’), bankruptcy proceedings can put an end to a company’s activities. Only companies that are generally subject to bankruptcy are affected. Who is subject to bankruptcy is determined by Art. 39 para. 1 SchKG. Parliament justified the change by stating that debtors should no longer be able to misuse bankruptcy proceedings to avoid their financial obligations, such as salary payments or debts, and thus harm other people.
Private creditors benefit because the creditor who files for bankruptcy bears the costs. As the public sector is the most common creditor, private individuals can file their claim free of charge after the state has initiated bankruptcy proceedings. However, the deadline of 15 months for filing a bankruptcy petition must be observed. At the same time, this makes it more difficult for the authorities to enforce their claims, as they now have to go through the more complex bankruptcy proceedings.
The Federal Act on Combating Abusive Bankruptcy not only resulted in amendments to several laws, namely the Swiss Code of Obligations, the Debt Enforcement and Bankruptcy Act, the Swiss Criminal Code and the Federal Act on Direct Federal Taxation. As a result, the Commercial Register Ordinance and the Criminal Records Ordinance were also revised in order to provide the necessary implementing provisions for the implementation of the law.
From now on, bans on activities entered in the criminal register will be reported to the Federal Supervisory Authority for the Commercial Register, which will check whether a ban on activities is incompatible with entries in the commercial register. In addition, measures can be taken that go as far as deleting the person concerned from the commercial register. Furthermore, the cantonal tax authorities are obliged to notify the commercial register offices if a company has not submitted the annual financial statement required by law. These provisions strengthen cooperation between the authorities and prevent such companies from operating for long periods without keeping accounts and thus acting to the detriment of their creditors.
