Facts
On 18 May 1977, the company Hebag-Hoka Elementfabriken AG was declared bankrupt. Although the movable and immovable assets were liquidated in 1977/1978, the schedule of claims has still not been established, four years after the opening of the bankruptcy. Ten creditors who had filed wage claims filed a complaint for unjustified delay with the cantonal supervisory authority. The President of the District Court upheld the complaint, but the Cantonal Court dismissed the creditors' appeal, finding that the delay was not due to a fault of the bankruptcy administrator, but to a general overload of the office. Six creditors then appealed to the Federal Tribunal.Considerations
The Federal Tribunal upheld the appeal. It considered that the cantonal supervisory authority had rightly found an unjustified delay in the bankruptcy proceedings. Although it is often impossible to close a bankruptcy within the six-month period provided for by law, it is unacceptable to leave proceedings pending for years, as is the case here. The fact that the schedule of claims has not yet been established four years after the opening of the bankruptcy is particularly worrying, when the law provides that this should be done within 20 days of the expiry of the deadline for filing claims.
However, the Federal Tribunal held that the cantonal authority could not simply order the bankruptcy administrator to immediately close the proceedings. Indeed, this would have the consequence of further delaying the other ongoing bankruptcy proceedings, which would be contrary to the principle of equal treatment. The cantonal authority should rather have taken measures to remedy the overload problems of the bankruptcy…