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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- In a nutshell
- I. General
- II. Applicability of the FADP according to the principle of effect (Art. 3 para. 1 FADP)
- III. Conflict of laws in data processing operations under private law (Art. 3 para. 2 FADP)
- IV. Criminal Law Conflict of Laws (Art. 3 para. 2 FADP)
- Bibliography
In a nutshell
Art. 3 FADP establishes the so-called "impact principle", according to which the provisions of the FADP apply if the respective data processing operations are "noticeable" in Switzerland. This means that not only purely "Swiss" data processing operations are covered by the scope of application of the FADP, but also those constellations in which data processing is initiated abroad, but the consequences of the processing have an impact in Switzerland.
I. General
A. Background and purpose of the norm
1 Public law does not have a codified conflict of laws, unlike private and criminal law. In practice, therefore, the principle of territoriality applies to cross-border public law constellations: Swiss public law always applies when a factual situation occurs in Switzerland.
2 The criteria used to determine the applicable law include, in particular, the place of domicile or residence, the place of activity or the place of effect. According to the case law of the Federal Supreme Court, the so-called principle of effect is a "special manifestation" of the principle of territoriality: Facts that have occurred abroad can be taken into account by Swiss authorities if they have a "sufficient impact on the territory of Switzerland." However, the practice does not uniformly define when a sufficient connection to Switzerland exists within the meaning of the impact principle: generally, it is necessary that the impact is perceptible, significant, substantial or considerable.
3 Art. 3 FADP regulates the local application of the FADP in accordance with the general principles of application of public law and in particular the principle of impact.
B. History of origins
4 The old FADP did not contain any provisions on local application, nor did the draft for the new FADP. During the parliamentary deliberations, however, it was demanded that a provision on the territorial scope of application - which would ideally correspond to Art. 3 para. 1 and 2 DSGVO - be introduced. Accordingly, the FADP should also have applied if a controller or processor with an establishment outside of Switzerland processes data of persons in Switzerland in order to offer them goods or services (against payment or free of charge) or to monitor their behavior in Switzerland.
5 Based on the already existing conflict-of-law rules, in particular in private law, the legislator came to the conclusion during the consultation that the concerns of the persons affected by (international) data processing could be sufficiently taken into account by anchoring the principle of effect defined by case law as well as an explicit reference to the provisions of the Federal Act of 20 March 1981 on International Mutual Assistance in Criminal Matters (IMAC, SR 351.1) or criminal law. Accordingly, the discussed regulation analogous to Art. 3 para. 1 and 2 DSGVO was dropped.
II. Applicability of the FADP according to the principle of effect (Art. 3 para. 1 FADP)
6 The provisions of the FADP apply on the basis of the effect principle if the respective data processing operations have an effect in Switzerland. Thus, not only purely "Swiss" data processing operations are covered by the scope of application of the FADP, but also those constellations in which data processing is initiated abroad, but the consequences of the processing are "noticeable" in Switzerland.
III. Conflict of laws in data processing operations under private law (Art. 3 para. 2 FADP)
7 In the context of private law, the PILA regulates which law is applicable for Swiss courts in international relations; in the context of data protection law, Art. 139 para. 1 PILA must be observed. According to this, the aggrieved person has a broad right to choose the law applicable to his or her case. Specifically, the aggrieved person has the option to decide whether the law of the state applies,
in which he or she has his or her habitual residence (para. 1 lit. a),
in which the author of the infringement has his establishment or habitual residence (para. 1 lit. b), or
in which the success of the infringing act occurs (para. 1 lit. c).
8 Thus, the injured person has the possibility to choose the law that is most favorable to him. In order to preserve this advantage, the FADP explicitly states that the PILA shall apply to private law claims.
IV. Criminal Law Conflict of Laws (Art. 3 para. 2 FADP)
9 The criminal provisions of the FADP (Art. 60 et seq.) are part of the secondary criminal law, which means that their territorial application is determined by the principles of the SCC (cf. Art. 333 para. 1 in conjunction with Art. 104 and Art. 3 et seq. SCC): According to the individual protection principle enshrined in the SCC, anyone who violates the legal interests of Swiss nationals abroad is in principle liable to prosecution. In view of this already existing conflict-of-laws rule, the FADP refers to the Criminal Code and does not contain its own specifications on the territorial scope of application in the criminal law context.
The author gives her personal assessment in this commentary.
Bibliography
Rudin Beat, Kommentierung zu Art. 3 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Häfelin Ulrich/Müller Georg/Uhlmann Felix, Allgemeines Verwaltungsrecht, 8. Aufl. 2020, Zürich/St. Gallen.