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This case once again demonstrates the aggressive and inappropriate behavior of debt collection agencies, even when a claim is unfounded. It also raises the question of whether the debt collection industry is at all capable of preventing such abusive situations, even if the Federal Council in its 2017 report in fulfillment of the postulate Comte 12.3641 relies on this self-regulation.
The Federal Council also believes that the current legal instruments are sufficient. However, it is the case that there is almost no case law in civil matters relating to debt collectors and that the few civil law decisions are unpublished first instance judgments. This gap suggests that debt collectors often drop the matter to avoid setting precedents. But few people even go to court. They are more likely to give in to pressure and pay the claims and the excessive and/or unfounded collection fees demanded of them.
In 2020, the collection industry launched a complaints body and implemented a code of conduct. To date, we are not aware of any results from the activities of this body. Although the body considers itself authorized to check whether the basic claims are justified, it refuses to comment on the question of fees. However, the Fédération romande des consommateurs (French-speaking consumer protection association) notes that complaints about debt collection agencies are steadily increasing and mainly concern the level of fees.
We thank the Federal Council for its answers to the following questions:
1. how can a uniform application of the law in the collection industry is guaranteed and Abuse prevented become?
2. how to make the practice of self-regulation of the industry transparent design and convince themselves of their effectiveness?
3. would the establishment of an independent Ombud Office, which could decide both on the practices of debt collectors and on the issue of fees, not ensure that debtors’ rights are better taken into account?
4. how can an independent Supervision be ensured about the practices of collection agencies to prevent abuses?
Statement of the Federal Council from 16.02.2022
1. as stated by the Federal Council in its report “Framework conditions for the practices of debt collection companies” of 22 March 2017 in response to the postulate Comte 12.3641 and in its response to the interpellation Michaud Gigon 21.3551 “Setting Limits on the Practices of Debt Collection Agencies,” see the Code of Obligations, the Criminal and unfair competition law as well as the Data protection law The existing rules provide options for taking action against inappropriate or aggressive practices on the part of debt collectors. In practice, the existing rules can be enforced by all available means, for example also by means of model lawsuits, pilot processes or, if necessary, also association lawsuits. This should prevent abuses and result in a uniform application of the law.
In this context, special information and awareness campaigns are also conceivable, with which, for example, consumer protection associations can play an active role in ensuring the correct and uniform application of existing law.
Once again, it is important to recall the supreme court rulings in which the Federal Supreme Court held that the threat of legal action as a means of exerting pressure to pay non-existent or unenforceable claims constitutes a criminal offense under criminal law. Coercion can fulfill (Art. 181 StGB, SR 311.0; cf. judgments of the Federal Supreme Court 6B_8/2017 E. 2 and 6B_1074/2016 E. 2.3).
2. as the Federal Council has stated on several occasions, he sees no need for action by the legislature (see comments on the Mo. flat 17.3561 and 20.3689; Reply to Ip. Michaud Gigon 21.3551), but welcomes the self-regulation of the industry. It is also incumbent on the industry to ensure the necessary transparency and to subject itself to these self-imposed regulations. From the Federal Council’s point of view, it would be desirable to ensure compliance with the legal requirements for the assertion of collection fees (see report of March 22, 2017, item 4.1).
3./4. The establishment of an independent Ombudsman’s Office or a supervisory authority could potentially facilitate law enforcement for debtors. However, the establishment and maintenance of such structures would considerable effort and high costs cause. Moreover, the government ordering of such measures represents a Encroachment on their economic freedom (Art. 27 and 94 BV), which may not be undertaken lightly. In its report “Framework conditions for the practices of debt collection companies” of March 22, 2017, the Federal Council assessed a comprehensive regulation of the debt collection industry as not proportionate and thus not justified in view of the already existing means. As mentioned, the Federal Council currently sees no reason to return to this assessment (see most recently response to Ip. Michaud Gigon 21.3551).