Facts
On January 16, 2012, A. AG transferred the amount of CHF 77,947,760.- to the Swiss Confederation for the payment of Swiss mineral oil tax. A few days later, A. AG applied for a moratorium, which was provisionally approved on January 27, 2012 and definitively approved on March 27, 2012. The liquidators of A. AG in liquidation proceedings demanded the repayment of the mineral oil taxes paid in January 2012 from the Swiss Confederation on December 19, 2014 and February 17, 2015 and filed a paulian avoidance action against the Swiss Confederation with the High Court of the Canton of Bern on February 18, 2015.
Considerations
The Federal Supreme Court upheld the appeal of the Swiss Confederation and set aside the interim decision of the High Court of the Canton of Bern, in which it had affirmed its jurisdiction to adjudicate the avoidance action. The avoidance action pursuant to Art. 285 et seq. DEBA against the tax authorities belongs to the judicial matters of the DEBA, which are regulated by the CPC. However, it does not fall under the "actions against the Confederation" within the meaning of Art. 5 para. 1 lit. f CPC, for which a single cantonal instance is competent.
The Federal Supreme Court has determined that avoidance is an instrument in the service of equal treatment of creditors, the purpose of which is to reintroduce unlawfully alienated assets into the enforcement process from an enforcement law perspective. Art. 285 et seq. DEBA alone provides the basis for restoring the enforcement rights of the creditors by providing for liability from a particularly qualified set of facts (obligatio ex lege).…