Enforceability of a Swiss payment order in Austria

Austrian Request for a Preliminary Ruling to the European Court of Justice

By decision of 28 October 2025 (3 Ob 95/25d), the Austrian Supreme Court (Oberster Gerichtshof – OGH) referred a key and as yet unresolved legal question to the European Court of Justice (ECJ) for a preliminary ruling concerning the cross-border enforcement of payment orders under the 2007 Lugano Convention.

The subject of the proceedings is the question whether a payment order issued by a Swiss debt enforcement and bankruptcy office in the context of so-called “debt enforcement without a prior judgment” (titellose Betreibung) qualifies as a judgment within the meaning of Article 32 of the Lugano Convention and can therefore be declared enforceable in other Contracting States – in particular in Austria.

Background of the Proceedings

Our law firm represents the enforcing parties, who obtained a payment order in Switzerland to enforce outstanding fee claims. No objection was filed against this payment order, meaning that under Swiss law the continuation of enforcement proceedings is permissible.

The Austrian courts of first and second instance declared this payment order enforceable. However, due to differing views in legal scholarship and case law, the OGH considered that clarification under EU law was required and referred the question to the ECJ.

Key Arguments of the Enforcing Parties

In the proceedings, we argued in particular that the functional concept of a “court” under the Lugano Convention is decisive. According to this concept, what matters is not the formal designation or organizational classification of an authority, but rather whether it performs a judicial function in civil and commercial matters.

A central argument concerns the comparison with the Swedish debt recovery procedure:

Under the Regulation (EU) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation Recast – EuGVVO), the Swedish Enforcement Authority is expressly regarded as a “court” (Article 3(b) Brussels I Regulation Recast 2012), even though it is likewise an administrative authority. There, too, a payment order is initially issued without a substantive review; if the debtor lodges an objection, the creditor must pursue the claim through ordinary court proceedings.

The Swiss payment order shows structural parallels with this procedure:

• Initiation upon application by the creditor
• The debtor’s possibility to trigger adversarial proceedings by filing an objection (Rechtsvorschlag)
• Enforceability only if no objection is raised

In our view, this supports classifying the Swiss payment order as a functional equivalent to European order for payment procedures and thus as a “judgment” within the meaning of the Lugano Convention. What is decisive is that the debtor is, in any event, afforded the opportunity to initiate judicial proceedings before final enforcement takes place.

Significance of the ECJ’s Decision

The forthcoming decision of the ECJ will have far-reaching practical implications for the enforcement of claims between Switzerland and the EU Member States. It will clarify whether creditors can pursue enforcement within the EU directly on the basis of a Swiss payment order without prior substantive court proceedings.

The OGH has stayed the national proceedings pending receipt of the preliminary ruling.

As soon as the ECJ has reached a decision, we will promptly inform you here.