In a decision published on 16 January 2024, the Swiss Federal Supreme Court (“SFSC”) ruled on the enforceability of a foreign judgment in Switzerland (case no. 4A_547/2022 [in German]).
Factual background
The judgment in question was issued by the Cour de Cassation of France, i.e., a court of a Lugano Convention (“LC”) member state. With its cassation judgment, the Cour de Cassation set aside the judgment of the lower instance insofar as it had ordered the claimant in the French proceedings (and later the claimant before the Cantonal Supreme Court of Zurich and appellant before the SFSC) to pay a total of EUR 167,654.04 and in this point referred the case back to the lower instance. An enforcement certificate (corresponding to the standard form in annex V of the LC) was attached to the judgment. The claimant who apparently had paid the amount on the basis of the French judgment which subsequently had been set aside initiated both exequatur as well as attachment proceedings before the District Court of Zurich to obtain repayment of the EUR 167,654.04. Subsequently, a dispute arose about the enforceability of the French judgment in Switzerland.
The District Court of Zurich rejected the enforcement of the foreign judgment and the seizure of the assets located in Switzerland. The Cantonal High Court of Zurich upheld the District Court’s rejection (case no. RV220014-O/U [in German]), as it considered the cassation judgment of the French Cour de Cassation unenforceable. According to the High Court’s reasoning, a foreign judgment could only be declared enforceable if it is accessible for enforcement under Swiss law, i.e., if it explicitly obliges the other party for payment. The cassation judgment, by contrast, did not contain any obligation on the part of the respondent to repay a sum of money, but merely annulled part of the lower court’s decision and ordered the case to be referred back to the lower court and restored to the state it was in before the lower court’s decision was issued. In Switzerland, a judgment of this type in principle is not enforceable.
The claimant filed an appeal against this decision with the SFSC, arguing that the Cantonal Supreme Court of Zurich had erred in refusing to enforce the judgment by the Cour de Cassation of France. The main question before the SFSC was thus whether the French judgment, notably the enforcement certificate, has an enforceable content or not.
The accuracy of an enforcement certificate issued by a court of a Lugano Convention member state shall be assumed
According to the reasoning of the SFSC, the Swiss courts of both first and second instance violated the exequatur procedure according to the LC. The courts should have first assessed the judgment’s implications, considering French law and usual practices of the Cour de Cassation. Only if, according to this interpretation, the cassation judgment did not imply an obligation to perform that could be enforced in Switzerland through compulsory execution, should the declaration of enforceability be refused for lack of enforceable content. Conversely, if the cassation judgment is deemed to be a performance judgment under French law, the declaration of enforceability should be granted, provided that the obligation contained therein can be enforced in Switzerland without further proceedings through Swiss enforcement measures.
The SFSC also reminded that the Swiss courts’ interpretation is limited by the prohibition of révision au fond. Only if the tenor of the foreign enforcement certificate is extremely vague and cannot even be substantiated by means of interpretation (of the effet utile of the LC), the competent Swiss court may refuse the enforcement.
Ultimately, the Swiss courts of lower instances generally erred in handling the enforcement certificate by a court of a LC member state in an accurate manner. The enforcement certificate of a LC member state is intended to simplify and speed up the exequatur proceedings. This function aligns with the overarching goal of the Lugano Convention, aiming for the broadest possible recognition of judgments. Accordingly, the SFSC has emphasized that the enforcement court should operate on the principle that the Convention assumes an “automatic” recognition of foreign decisions, placing the burden of proof on the party opposing recognition.
Concluding remarks regarding exequatur proceedings under the LC
The recognition of foreign judgments was strengthened with the conclusion of the revised LC and the introduction of the so-called enforcement certificate. The LC provides for an autonomous and accelerated exequatur procedure. The aim of the LC is to liberalize and simplify enforcement and recognition amongst member states. According to the prevailing Swiss doctrine and jurisprudence, the accuracy of the information in the enforcement certificate shall be presumed. Only a dwindling number in doctrine still rejects this general presumption of the accuracy of such enforcement certificates.
The automatic character of the exequatur proceedings under the LC is also held by the European Court of Justice (cf. decision of 6 September 2012, Trade Agency, case no. C-619/10, ECLI:EU:C:2012:531, para. 41, hereafter a quote from para. 41): ‘In that context, the function ascribed to the certificate is specifically to facilitate, in the first stage of the procedure, the adoption of the declaration of enforceability of the judgment given in the Member State of origin, making its delivery almost automatic, as is expressly stated in recital 17 in the preamble to Regulation No 44/2001 [Brussels I Regulation].’ With its latest precedent, the SFSC confirmed that it rejects the enforceability of an enforcement certificate only in very rare cases, on the grounds of extremely vague or unsubstantiated wording.
