Facts

The creditor A. S.A. obtained an attachment order from the Zurich District Court on 6 June 2023 for the enforcement of a judgment of the Tribunal d'arrondissement de Luxembourg, declared enforceable against B. Ltd.. In particular, an account of B. Ltd. held at Bank [C. AG] in Zurich was attached. D. S.A. continued enforcement proceedings No. y at the Zurich 1 Enforcement Office, which then seized three accounts of B. Ltd. at Bank C. AG (seizure No. z).

In the course of the realisation procedure, Bank [C. AG] informed the Enforcement Office that the attached and seized assets of B. Ltd. were blocked by the State Secretariat for Economic Affairs (SECO). SECO confirmed the block and cited Article 15(1) of the Ukraine Regulation (SR 946.231.176.72) as the legal basis. The block was not of a criminal nature but was imposed under the Ukraine Regulation. SECO requested the Enforcement Office to submit any judgment available for the examination of an application for an exemption.

On 8 July 2024, the Enforcement Office requested creditor A. S.A. to submit the judgment of the Tribunal d'arrondissement de Luxembourg for onward transmission to SECO for review. The creditor first filed a request for reconsideration and then a request for an extension of the deadline for submitting the judgment. By order of 30 July 2024, the Enforcement Office found that the creditor had not complied with the request and suspended the realisation procedure.

Against this order, creditor A. S.A. filed an appeal with the Zurich District Court on 7 August 2024, which was dismissed by decision of 12 September 2024. The subsequent appeal was also dismissed by the Higher Court of the Canton of Zurich by judgment of 14 November 2024. Finally, on 21 November 2024, the creditor filed a civil appeal with the Federal Supreme Court, seeking the annulment of the Enforcement Office’s order of 30 July 2024 and a declaration of its nullity. In the alternative, it requested the annulment of the order and the referral of the matter back to the Higher Court for a new assessment. It also sought an order for the Enforcement Office to resume and continue the enforcement and seizure proceedings immediately and independently of any decisions by SECO.

Considerations

The Federal Supreme Court examined in its judgment the relationship between enforcement under the DEBA and the asset freeze imposed by SECO under the Ukraine Regulation. The appellant complained in particular that the Higher Court had violated Article 44 DEBA by giving priority to the asset freeze over the enforcement proceedings.

Legal classification of the Ukraine Regulation and Article 44 DEBA: Article 44 DEBA provides that the realisation of assets that are subject to attachment under criminal or fiscal laws or under the FIAA shall be carried out in accordance with the relevant federal or cantonal provisions. The Federal Supreme Court has held in its case law, in particular in ATF 131 III 652, that regulations issued under Article 184(3) Cst. – such as asset freezes – are to be equated with criminal or fiscal laws and that Article 44 DEBA applies by analogy to them. This case law has since been confirmed in legal literature and in further judgments, in particular for regulations based on the EmbA.

Analogous application of Article 44 DEBA to the Ukraine Regulation: The Ukraine Regulation was issued by the Federal Council under Article 184(3) Cst. and Article 2 EmbA. The Federal Supreme Court found that both regulations directly based on Article 184(3) Cst. and those based on the EmbA are to be equated with the laws reserved in Article 44 DEBA. This follows from the Federal Supreme Court’s case law, which was established in ATF 131 III 652 and confirmed in later judgments such as 5F_2/2011. The legislature did not restrict this case law by introducing the RIAA and later the FIAA into Article 44 DEBA, but rather…