Challenge of a payment of airport and air navigation fees by the Swissair bankruptcy estate

Facts

Swissair Swiss Air Transport Company Ltd. in bankruptcy liquidation (the appellant) filed a challenge action pursuant to Art. 288 DEBA against Flughafen Zürich AG (the respondent). Shortly before filing for a composition agreement, on 4 October 2001, Swissair had paid a total of CHF 21,832,491.70 in airport and air navigation fees to the respondent. The Commercial Court dismissed the action, whereupon the appellant filed an appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court partially upheld the appeal. For the airport fees of CHF 18,587,907.50, it affirmed the respondent's passive legitimacy. Regarding the air navigation fees of CHF 3,243,938.30, it denied the passive legitimacy, as Skyguide is to be considered the creditor and beneficiary of this payment.

With regard to the airport fees, the Federal Supreme Court affirmed the objective elements of the challenge under Art. 288 DEBA, as Swissair did not receive any realizable asset as consideration for the payment. The Federal Supreme Court also found the subjective element of intent to cause harm to be fulfilled. Although the Swissair management considered the payment to be operationally necessary to prevent damage from a prolonged grounding, they must have been aware that this would…