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- Art. 55 FC
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- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 123a FC
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- Art. 130 FC
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- Art. 11 CO
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- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 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. 52 FADP
- Art. 54 FADP
- Art. 55 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
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- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
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
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
In a nutshell
The FDPIC supervises the application of federal data protection provisions. Private individuals and legal entities as well as federal authorities are subject to the FDPIC's supervision. There are exceptions to the supervision of federal authorities based on the principle of separation of powers and to ensure the independence of the judiciary. Exemption from supervision does not mean that the exempt federal authorities are not required to comply with the provisions of the FADP when processing data. Exceptions to the material scope of the FADP are regulated in Art. 2 FADP.
I. General
A. Purpose of the standard and background
1 The general supervision of the FDPIC over the application of federal data protection provisions does not represent a change compared to the previous FADP (Art. 27 para. 1 aFADP). The main change is that Art. 4 FADP refers to the FDPIC and no longer to the commissioner, as was the case in Art. 27 aFADP. This is due to the fact that the revised FADP distinguishes between the FDPIC as an authority and the commissioner as the head of the authority. However, the term “commissioner” is not defined until Art. 43 para. 1 FADP.
2 Art. 4 FADP derives its significance primarily from the exceptions to the FDPIC's supervision in Art. 4 para. 2 FADP. Under the previous law, only the Federal Council was exempt from FDPIC supervision (Art. 27 para. 1 aDSG). The exception to FDPIC supervision now applies not only to the Federal Council, but also to other federal bodies. The list of exceptions in Art. 4 para. 2 FADP is exhaustive. The FADP does not provide for any exceptions to the FDPIC's supervision of private data processors.
3 The Federal Council was exempted from supervision by the FDPIC because the FDPIC cannot be the supervisory body of its own supervisory and electoral authority.
4 The exceptions for the Federal Assembly, the federal courts, the Office of the Attorney General of Switzerland and other federal authorities in relation to specific data processing operations, which have been newly added in para. 2, are based on similar considerations. They serve to implement the principle of separation of powers and are intended to guarantee the independence of the judiciary.
B. History
5 In the draft bill for the revision of the Data Protection Act of October 29, 2014, the supervision of federal bodies by the FDPIC was discussed, but the question of exceptions to this supervision was not addressed at that time.
6 Art. 2 para. 3 and 4 of the draft FADP contained exceptions to the FDPIC's supervision for the federal courts (para. 3) and the Federal Council and the Federal Assembly (para. 4). The exception for federal courts was justified on the grounds that, under the draft FADP, the FDPIC was to be given the power to issue rulings against federal bodies. This could have impaired the independence of the courts and the separation of powers. In addition, the Federal Administrative Court and the Federal Supreme Court are the appeal bodies for rulings issued by the FDPIC. This could have led to a situation where these two courts would have had to review decisions of the FDPIC against themselves.
7 In addition, according to Art. 2 para. 2 lit. c VE-DSG, the processing of personal data by independent federal judicial authorities in the exercise of their judicial functions should be exempted from the FADP and thus also from supervision by the FDPIC. This exception was also justified on the grounds that subjecting these judicial authorities to the supervision of the FDPIC could undermine the principle of separation of powers and the independence of the judiciary.
8 Art. 2 para. 2 lit. c and 3 and 4 VE-DSG were discussed and criticized during the consultation process. Among other things, it was criticized that certain terms were unclear (“independent judicial authorities”), that the exceptions would contradict the SEV 108 Convention, that the FDPIC should continue to supervise the courts but only be able to make recommendations to them, and that the exceptions in Art. 2 para. 3 and 4 VE-DSG should be systematically regulated in the section on the FDPIC and not in connection with the material scope of the FADP.
9 The criticisms raised in the consultation on the draft FADP were taken into account in that a new Art. 3 E-FADP was introduced in the 2017 FADP message, which deals exclusively with supervision by the FDPIC. This decision separated the issue of supervision from the issue of the material scope of the FADP, which is also correct from a dogmatic point of view. The content of Art. 3 E-DSG corresponds without deviation to the new Art. 4 FADP.
10 Art. 3 E-FADP and Art. 4 FADP were not discussed in the parliamentary deliberations. Instead, the Federal Council's proposal (Art. 3 E-FADP) was accepted without comment.
II. Supervision by the FDPIC
A. Supervision of the application of federal data protection provisions (para. 1)
11 Art. 4 para. 1 FADP stipulates that the FDPIC is responsible for supervising the application of federal data protection provisions. Private natural persons and legal entities as well as federal authorities are subject to the supervision of the FDPIC.
12 The wording “federal data protection provisions” emphasizes that the FDPIC does not only supervise the application of the provisions of the FADP. As under Art. 27 para. 1 aDSG, the FDPIC also monitors the sector-specific data protection provisions of the Confederation in accordance with Art. 4 para. 1 FADP. This refers to provisions relevant to data protection in other federal enactments as well as international treaties specific to data protection law.
13 The question of the FDPIC's supervision of federal bodies must be distinguished from the substantive application of the FADP to specific data processing operations carried out by federal bodies. Federal bodies may be subject to supervision by the FDPIC even if some of their data processing operations are excluded from the scope of the FADP under Art. 2 FADP. Conversely, certain federal bodies may be exempt from supervision by the FDPIC (Art. 4 para. 2 FADP), even if their data processing operations are not excluded from the material scope of the FADP under Art. 2 FADP. This applies, for example, to the Federal Council. The Federal Council is exempt from supervision by the FDPIC under Art. 4 para. 2 lit. b FADP, but must comply with the FADP for certain data processing operations. The same applies to the Federal Assembly. The Federal Assembly is now exempt from supervision. Under Art. 2 para. 2 lit. b FADP, certain data processing operations carried out by the Federal Assembly are also excluded from the material scope of the FADP, but not all.
B. Exceptions to supervision (para. 2)
1. Federal Assembly (lit. a)
14 The Federal Assembly is exempt from supervision by the FDPIC because otherwise the principle of separation of powers could be impaired.
15 With regard to the exemption of the Federal Assembly from supervision by the FDPIC, the question arises as to how far this exemption extends. The materials do not comment on this question.
16 With regard to Art. 2 para. 2 lit. b FADP, it is striking that the legislature distinguishes between the Federal Assembly, the federal councils and parliamentary commissions when referring to parliament. This suggests that the Federal Assembly refers to the collegiate body pursuant to Art. 148 FC. According to Art. 148 para. 2 FC, the Federal Assembly comprises the National Council and the Council of States. Therefore, the Federal Assembly should not only refer to the joint Federal Assembly as a specific body, but also to the National Council, the Council of States, and the joint Federal Assembly.
17 It is unclear whether the parliamentary commissions and the parliamentary services are also exempt from supervision by the FDPIC. The deliberations of the parliamentary commissions are exempt from the FADP (Art. 2 para. 2 lit. b FADP). However, this exemption only applies to the deliberations themselves and not, for example, to reports on these deliberations or publications. In view of the reasoning behind the exemption of the Federal Assembly, it nevertheless makes sense to also exempt the parliamentary commissions from the supervision of the FDPIC. With regard to the parliamentary services, the decisive factor is whether the data processing is directly related to parliamentary activities. Data processing that is not directly related to parliamentary activities is subject to supervision by the FDPIC.
2. Federal Council (lit. b)
18 According to the dispatch, the Federal Council was exempted from supervision by the FDPIC because otherwise the principle of separation of powers could be impaired.
19 The Federal Council refers to the collegiate body. The departments and the Federal Chancellery, on the other hand, are subject to supervision by the FDPIC.
20 The exemption of the Federal Council from supervision by the FDPIC was justified in Art. 27 para. 1 aDSG on the grounds that the electoral body of the Commissioner should not be subject to its supervision. However, the Commissioner is now elected by the United Federal Assembly (Art. 43 f. DSG). Art. 39 E-DSG also provided that the Commissioner was to be appointed by the Federal Council, subject to approval by the Federal Assembly. Therefore, Art. 3 para. 2 E-DSG exempted both the Federal Council and the Federal Assembly from supervision. However, a majority in the National Council then voted in favor of election by the Federal Assembly rather than by the Federal Council. The Council of States followed suit. Since the Federal Council is no longer the body responsible for electing the Commissioner, it is not clear why the Federal Council should continue to be exempt from supervision by the FDPIC. The fact that the Federal Council continues to be exempt from supervision by the FDPIC under Art. 4 para. 2 lit. b FADP is probably due to the fact that Parliament had adopted Art. 3 E-FADP before it dealt with the election of the Commissioner.
3. Federal courts (lit. c)
21 The federal courts are exempt from supervision by the FDPIC because otherwise the separation of powers and the independence of the judiciary could be impaired. This is because the FDPIC now has the power to issue orders to federal bodies (Art. 51 FADP). In addition, the Federal Administrative Court and the Federal Supreme Court are the appeal bodies for decisions of the FDPIC. Without the exemption from supervision, they would have to rule on FDPIC decisions against themselves as the appeal body.
22 In order to meet the requirements of Directive (EU) 2016/680 and E-SEV 108, the federal courts must establish their own independent data protection supervisory authority. This supervisory authority should be structured in the same way as the FDPIC, unless the specific circumstances require otherwise.
4. Office of the Attorney General (lit. d)
23 The Office of the Attorney General is only excluded from supervision by the FDPIC when it processes personal data in the context of criminal proceedings. For other data processing (e.g. in the area of human resources), the Office of the Attorney General is subject to supervision by the FDPIC. The exception is again justified on the grounds of the separation of powers and the independence of the judiciary.
24 The federal police authorities remain subject to supervision by the FDPIC, even when acting on behalf of the Office of the Attorney General. The FDPIC applies the data protection provisions of the applicable procedural law (Art. 2 para. 3 FADP).
5. Federal authorities in relation to judicial activities or international mutual assistance in criminal matters (lit. e)
25 This exception is also justified by the principle of separation of powers and the independence of the judiciary.
26 Furthermore, the exception was justified in the legislative work on the grounds that the rights of the parties and those involved in proceedings are governed by procedural law, which offers them protection equivalent to that provided by the FADP.
27 Data processing that is not specifically related to judicial activities or international mutual assistance in criminal matters is not covered by the exception and is therefore subject to supervision by the FDPIC. Data processing by the administrative services of these authorities, such as the processing of personnel data, is therefore subject to supervision by the FDPIC.
28 The term “judicial activity” replaces the term “pending proceedings” in Art. 2 para. 2 lit. c aDSG.
29 The exception mainly concerns the Office of the Attorney General and the Federal Office of Justice. According to the Federal Council's declaration on Article 1 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, the Federal Office of Justice is to be regarded as a Swiss judicial authority within the meaning of the Convention. However, the exception is of limited scope. The FDPIC may review the lawfulness of data processing if a data subject asserts their rights under Article 11c E-IMAC.
30 Data processing by federal authorities in the context of administrative criminal proceedings is not covered by this exception.
Bibliography
Baeriswyl Bruno, Kommentierung zu Art. 4 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2022.
Drechsler Christian, Kommentierung zu Art. 2 DSG, in: Blechta Gabor-Paul/Vasella David (Hrsg.), Datenschutzgesetz/Öffentlichkeitsgesetz, Basler Kommentar, 4. Aufl., Basel 2024.
Huber René, Kommentierung zu Art. 4 DSG, in: Blechta Gabor-Paul/Vasella David (Hrsg.), Datenschutzgesetz/Öffentlichkeitsgesetz, Basler Kommentar, 4. Aufl., Basel 2024.
Jöhri Yvonne, Kommentierung zu Art. 27 aDSG, in: Rosenthal David/Jöhri Yvonne (Hrsg.), Handkommentar zum Datenschutzgesetz sowie weiteren, ausgewählten Bestimmungen, Zürich 2008.
Rosenthal David, Kommentierung zu Art. 2 aDSG, in: Rosenthal David/Jöhri Yvonne (Hrsg.), Handkommentar zum Datenschutzgesetz sowie weiteren, ausgewählten Bestimmungen, Zürich 2008.
Rudin Beat, Kommentierung zu Art. 2 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2022.
Waldmann Bernhard/Bickel Jürg, in: Belser Eva Maria/Epiney Astrid/Waldmann Bernhard, Datenschutzrecht – Grundlagen und öffentliches Recht, Bern 2011.
Waldmann Bernhard/Oeschger Magnus, in: Belser Eva Maria/Epiney Astrid/Waldmann Bernhard, Datenschutzrecht – Grundlagen und öffentliches Recht, Bern 2011.
Materials
Botschaft zum Bundesgesetz über die Totalrevision des Bundesgesetzes über den Datenschutz und die Änderung weiterer Erlasse zum Datenschutz vom 15.9.2017, BBI 2017 S. 6941 ff., abrufbar unter https://fedlex.data.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2017/2057/de/pdf-x/fedlex-data-admin-ch-eli-fga-2017-2057-de-pdf-x.pdf, besucht am 30.3.2023.
Botschaft zum Bundesgesetz über den Datenschutz vom 23.3.1988, BBI 1988 II S. 413 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1988/2_413_421_353/de, besucht am 30.3.2023.