Facts
The Canton of Basel-Stadt, represented by the Tax Administration of Basel-Stadt, pursued A. (appellee) in debt enforcement proceedings no. x of the Debt Enforcement Office of Basel-Stadt for cantonal taxes for the year 2000 and on 25 July 2019 filed a request for Rechtsöffnung with the Civil Court of the Canton of Basel-Stadt.
On 20 January 2020 the Civil Court granted definitive Rechtsöffnung in the amount of CHF 10'847.90 and dismissed the remaining request insofar as it concerned the debt enforcement costs of CHF 184.50 listed in the seizure loss certificate.
Before the Court of Appeal of the Canton of Basel-Stadt, the Canton sought provisional Rechtsöffnung for CHF 184.50, alternatively the transfer of these debt enforcement costs to the debtor, and subalternatively definitive Rechtsöffnung for that amount. The Court of Appeal dismissed the appeal on 17 April 2020.
The Canton lodged an appeal in civil matters, alternatively a subsidiary constitutional appeal, with the Federal Supreme Court. The Federal Supreme Court upheld the appeal.
The central issue was whether, for the debt enforcement costs of a concluded debt enforcement proceeding that are stated in the definitive seizure loss certificate of a public-law claim, provisional or definitive Rechtsöffnung may be granted, and whether these costs may be transferred to the debtor (Art. 68, Art. 80 para. 2 no. 2, Art. 149 DEBA).
Considerations
The definitive seizure loss certificate is an official confirmation that the claim could not be satisfied, or only insufficiently satisfied, in enforcement proceedings (Art. 149 para. 1 DEBA). It contains no novation and says nothing about the substantive existence of the claim, but it does constitute evidentiary indication. The debtor may still raise all objections, and the creditor may rely on the original enforcement title. The type of Rechtsöffnung is determined solely by the underlying Rechtsöffnung title.
For provisional Rechtsöffnung concerning debt enforcement costs, there is no acknowledgment of debt within the meaning of Art. 82 DEBA; moreover, the route of provisional Rechtsöffnung for public-law claims is in principle closed, since the public authority must first issue a decision. The refusal of provisional Rechtsöffnung is therefore not contrary to federal law.
The transfer of debt enforcement costs under Art. 68 DEBA concerns ongoing debt enforcement proceedings. The advance payment under Art. 68 para. 2 DEBA relates only to an ongoing debt enforcement proceeding, and the principle that the debtor bears the costs does not entitle the creditor to transfer costs already accrued in a concluded proceeding without further ado. No violation of Art. 68 DEBA arises in this respect.
The lower court assumed that Art. 80 DEBA is exhaustive and provides no definitive Rechtsöffnung for debt enforcement costs. The Federal Supreme Court rejects this view: upon conclusion of the proceeding, the debt enforcement office prepares a binding cost statement, which is reproduced in the seizure loss certificate and corresponds to a decision within the meaning of…