Continuation of debt enforcement proceedings against a company after the bankruptcy has not been opened due to insufficient assets

Facts

The company Krebser AG requested the continuation of debt enforcement proceedings against Radio Gard AG by way of attachment, after a previous composition proceeding could not be opened due to insufficient assets. However, the debt collection office in Berne notified Radio Gard AG of a bankruptcy threat. Krebser AG then filed a complaint against this decision, requesting the annulment of the bankruptcy threat and the continuation of the debt enforcement proceedings by way of attachment.

Considerations

The Court considered that when a bankruptcy has not been opened against a company due to a lack of assets and the creditor has not advanced the necessary costs according to Art. 169(2) DEBA, the company can only be pursued again by way of bankruptcy. An analogous application of Art. 230(3) DEBA, which allows the debtor to be pursued by way of attachment within two years of the suspension of the liquidation, is not justified in the present case. Indeed, the two situations differ, in particular, by the state of the debt…