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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
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- Art. 22 PRA
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- 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. Electoral Body (para. 1).
- III. Eligibility (para. 2)
- IV. Employment relationship (para. 3)
- V. Implementing provisions on the employment relationship (para. 3bis)
- VI. Independence and assignment (para. 4)
- VII. Secretariat, budget and personnel (para. 5)
- VIII. Assessment (para. 6)
- Bibliography
- Materials
In a nutshell
The election and position of the head of the FDPIC (the Commissioner) is crucial for the independence and legitimacy of the supervisory activity. The Commissioner is elected by the United Federal Assembly and exercises his or her function independently: The commissioner does not accept instructions, is not subject to the evaluation system in the BPG, and is only administratively assigned to the Federal Chancellery. He or she has a permanent secretariat and his or her own budget.
The election and removal from office of the appointee is the responsibility of the United Federal Assembly. The Judicial Commission is responsible for other employer decisions concerning the appointee. Federal personnel law applies to the employment relationship of the Commissioner only insofar as the FADP and its implementing provisions do not provide otherwise.
I. General
1 Art. 43 governs the election and position of the head of the FDPIC, who supervises the application of federal data protection regulations (Art. 4 para. 1 FADP).
2 Terminologically, the head of the FDPIC as a person must be distinguished from the FDPIC as an authority: If the person in question is the head of the Federal Data Protection and Information Commissioner, the term "the Commissioner" is used; if, on the other hand, the authority of the Federal Data Protection and Information Commissioner in the institutional sense is meant, the abbreviation "FDPIC" is used. In terms of personnel, the institution FDPIC includes not only the Commissioner but also, in particular, the Secretariat.
3 Whereas under the previous law the Commissioner was elected by the Federal Council and the election had to be approved by the United Federal Assembly (Art. 26 para. 1 aDSG), under the current law the United Federal Assembly is responsible for electing the Commissioner (Art. 43 para. 1 FADP). Election by the United Federal Assembly is intended to strengthen the independence of the Commissioner and his or her democratic legitimacy.
4 The focus of this provision on election and position is to guarantee the independence of the Commissioner as a person and of the FDPIC as an authority. The concept of independence includes institutional independence, functional independence and substantive independence.
Institutional independence means that the FDPIC is not organizationally subordinate to any other authority. However, this does not exclude an administrative assignment, as in the case of the FDPIC to the Federal Chancellery (BK) (see Art. 43 para. 4 second sentence FADP).
Functional independence requires that the FDPIC exercise his or her duties and powers independently, without receiving instructions from any body (see Art. 43 para. 4 first sentence FADP) and that the appointee is not subject to any system of evaluation pursuant to Art. 4 para. 3 BPG (see Art. 43 para. 6 FADP). The functional independence of the FDPIC is also ensured by the fact that the Commissioner is employed on a 100% basis (Art. 8 of the Ordinance on the Employment Relationship of the Commissioner), secondary employment is only possible to a very limited extent (Art. 46 and 47 FADP) and the Commissioner can only be removed from office in very restrictive exceptional cases (Art. 44 para. 3 FADP).
Material independence requires that the conditions and framework be created so that the FDPIC can exercise his or her duties and powers independently, i.e. not only on paper, but also actually have the possibility to fulfill his or her legal mandate independently. This material independence includes, in particular, that the FDPIC has a permanent secretariat and budget and is allowed to hire its staff independently (see Art. 43 para. 5 FADP).
5 The revision of this provision on the election, position and employment relationship of the Commissioner took place in three steps:
In a first step, Parliament strengthened the independence of the FDPIC by adopting the Federal Law of September 28, 2018, on the implementation of EU Directive 2016/680, which is part of the further development of the Schengen acquis.
In a second step, as part of the total revision of the Data Protection Act of September 25, 2020, Parliament further strengthened the independence of the FDPIC and stipulated that the Commissioner will now be elected by the United Federal Assembly. The change in the electoral body was only introduced during the parliamentary debate, contrary to the view of the Federal Council, which stuck to the previous solution. The parliamentary initiative Leutenegger Oberholzer 16.409 already demanded that the Commissioner be elected by the United Federal Assembly. In the parliamentary debate, the strengthening of the independence and position of the FDPIC and the increased democratic legitimacy were cited to argue for a change in the election procedure in favor of the United Federal Assembly. The Federal Council and the supporters of the previous solution feared a politicization of the election, which could be influenced by various interest groups in parliament, and emphasized that even under the previous solution, the United Federal Assembly must approve the election by the Federal Council and is thus involved.
In a third step, individual aspects of the employment relationship were specified at the legislative level and the Federal Assembly was given the authority to issue implementing provisions on the employment relationship of the commissioner (Parliamentary Initiative SPK-N 21.443). The amendments to the totally revised FADP associated with the parliamentary initiative SPK-N 21.443 as well as the newly created implementing provisions were adopted on June 17, 2022 and will enter into force at the same time as the total revision of the FADP (Sept. 1, 2023). They resulted in the independence of the commissioner also being reflected in the employment relationship.
6 Art. 43 para. 4 and 5 FADP remain unchanged in relation to the old law (Art. 26 para. 4 and 5 FADP), with Art. 43 para. 5 FADP being supplemented by Art. 45 FADP on the budget process. Art. 43 para. 3 first sentence corresponds to Art. 26 para. 2 FADP and was extended and by three sentences on the pension fund of the commissioner.
7 Art. 43 FADP adheres to the requirements of European law in Art. 15 of the modernized 108+ Council of Europe Convention for the Protection of Individuals with regard to the Processing of Personal Data, Art. 41 et seq. of the Schengen-relevant EU Directive 2016/680 and the standard for effective data protection supervision provided for in Art. 51 et seq. of the EU General Data Protection Regulation 2016/679 in connection with the EU Commission‘s adequacy decision (Art. 45 para. 2 lit. b EU General Data Protection Regulation).
II. Electoral Body (para. 1).
8 The United Federal Assembly shall elect the Commissioner. The Judicial Commission is responsible for advertising the position and preparing the election (Art. 40a para. 1 lit. d and para. 2 first sentence ParlA; see also Art. 2 of the Ordinance on the Employment Relationship of the Commissioner). The deputy of the Commissioner is not covered by the provision and is not elected by Parliament. The general provisions of federal personnel law apply to the deputy.
9 Art. 43 para. 1 FADP is based on Art. 168 para. 2 FC, according to which a law may authorize the Federal Assembly to elect persons other than those referred to in Art. 168 para. 1 FC (the members of the Federal Council, the Federal Chancellor, the judges of the Federal Supreme Court and the General). Examples are the Federal Prosecutor and the Deputy Federal Prosecutors as well as the members of the supervisory authority over the Office of the Attorney General (see Arts. 20 and 23 StBOG).
10 European law does not prescribe the procedure for electing the members of the data protection authority (see Art. 43 para. 1 of Directive (EU) 2016/680; also Art. 53 para. 1 of Regulation (EU) 2016/679). According to these legal acts, it is up to the Member States to ensure that the appointment is made in a transparent procedure and to provide for an appointment by the Parliament, the Government, the Head of State or an independent body entrusted with it under the law of the Member State.
III. Eligibility (para. 2)
11 According to para. 2, anyone who is entitled to vote in federal matters is eligible to be elected as a commissioner. Pursuant to Art. 136 para. 1 FC, all Swiss citizens who have reached the age of 18 and who are not incapacitated by reason of mental illness or infirmity are entitled to vote in federal matters. In particular, Swiss citizenship is consequently required for the office of commissioner.
12 This provision on eligibility, which is based on the right to vote, is found by analogy in other federal laws. It corresponds, for example, to Art. 20 para. 1bis StBOG for the election of the Federal Prosecutor and the Deputy Federal Prosecutors or Art. 5 para. 2 VGG for the election of judges of the Federal Administrative Court.
13 Requirements for the factual and personal suitability of the appointee are not explicitly stated in the FADP. However, they are derived from federal personnel law, which remains subsidiarily applicable to the appointee pursuant to Art. 43 para. 3 FADP, namely from the obligation to advertise the position publicly (cf. Art. 7 FADP in conjunction with Art. 22 BPV). Thus, the appointee must be a proven expert in the area of the FADP as well as the FoIA, who has personal integrity. However, the factual and personal suitability is not a prerequisite for eligibility, but is rather the responsibility of the electoral authority. The judicial commission responsible for preparing the election of the appointee shall already take into account the professional and personal suitability when advertising the position. The business audit commissions and the finance delegation shall be obliged to examine the professional and personal suitability of the appointee and to bring their findings to the attention of the court commission (Art. 40a para. 6 ParlA).
14 The appointee is not subject to a personal security check by the federal administration (Art. 29 para. 4 lit. ebis ISG), which means that the examination of security aspects is also the responsibility of the electoral body.
IV. Employment relationship (para. 3)
15 The employment relationship of the appointee is governed by the BPG, unless the FADP provides otherwise. Consequently, the BPG applies subsidiarily, in the event that the FADP does not provide for any special provisions. In the FADP, deviating or clarifying provisions can be found in the following places:
Art. 43 para. 1 and 2 FADP (election).
Art. 43 para. 3 FADP (pension fund)
Art. 43 para. 3bis FADP (legal basis for implementing provisions)
Art. 43 para. 4 first sentence FADP (independence and freedom to issue instructions)
Art. 43 para. 6 FADP (appraisal system)
Art. 44 para. 1 and 2 FADP (term of office and termination)
Art. 44 para. 3 FADP (removal from office)
Art. 44a FADP (warning)
Art. 46 FADP (incompatibility)
Art. 47 FADP (secondary employment)
Art. 47a FADP (recusal)
Art. 72 FADP (transitional provision)
Art. 72a FADP (transitional provision)
Deviations from federal personnel law are necessary in particular if the independence of the appointee or the special election procedure (election by the United Federal Assembly) so requires.
16 Art. 43 para. 3 then contains, in sentences 2-4, a clarifying provision for the appointee with regard to the occupational benefit scheme. Such a provision is necessary because, according to the SPK-N report, the BPG is not directly applicable here. Art. 43 para. 3 states that the appointee is insured with the Federal Pension Fund PUBLICA against the economic consequences of old age, disability and death until the age of 65. In addition, the appointee has the option of continuing to be insured against the economic consequences of old age until the end of the year in which he or she reaches the age of 68 (cf. also Art. 4 para. 2 of the Ordinance on the Employment Relationship of the Appointee), provided that the employment relationship is continued. This provision corresponds in substance to Art. 8 para. 2 and 3 of the Ordinance of the Federal Assembly of 1 October 2010 on the Employment Relationship and Salary of the Federal Prosecutor and the Deputy Federal Prosecutors (hereinafter: Ordinance on the Employment Relationship of the Federal Prosecutor, SR 173.712.23). The FDPIC finances the employer‘s savings contributions.
V. Implementing provisions on the employment relationship (para. 3bis)
17 Parliament, and not the Federal Council, is responsible for issuing the implementing provisions on the employment relationship of the Commissioner on the basis of his or her position as electoral body. The fact that the implementing provisions are issued by the electoral body is to be welcomed for reasons of coherence and preservation of independence. Parliament has taken this work in hand as part of the parliamentary initiative SPK-N 21.443 and adopted the "Ordinance on the Employment Relationship of the Head of the Federal Data Protection and Information Commissioner" on 17 June 2020.
18 The Ordinance of the Federal Assembly on the Employment Relationship of the Commissioner is based on Art. 43 para. 3bis FADP. Among other things, it states that
the most important employer decisions concerning the election of the appointee and the removal from office fall within the competence of the United Federal Assembly (purely declaratory reference in Art. 2 para. 1), while the Judicial Commission is responsible for the other employer decisions (e.g. job advertisement) concerning the appointee (Art. 2 para. 3).
the employment relationship of the appointee is established by an electoral decree of the Federal Assembly requiring approval (Art. 3 para. 1) and, unlike other magistrates, the appointee does not have to take an oath or a vow of conscientious obedience (Art. 3 para. 4).
the appointee shall retire from office at the latest at the end of the year in which he or she reaches the age of 68 (Art. 4 para. 2).
the appointee is classified in salary class 34 in accordance with Article 36 BPV (Art. 5 para. 1) and neither performance bonuses in accordance with Article 49 BPV nor spontaneous bonuses in accordance with Article 49a BPV can be paid (Art. 6 para. 1).
the appointee is insured for occupational benefits under the Federal Pension Plan (Art. 7).
the degree of employment of the appointee is 100 percent (Art. 8) and he or she must be domiciled in Switzerland (Art. 9).
the judicial commission is responsible for the release from official secrecy in accordance with Art. 320 no. 2 StGB (Art. 10).
a provisional suspension of the commissioner in office is only possible under the conditions of Art. 14 para. 5 VG and the provisions of federal personnel law (Art. 103 and 103a BPV) are excluded (Art. 11)).
the Judicial Commission may in principle award the appointee compensation amounting to a maximum of one year‘s salary in the event of termination of the employment relationship if the individual case justifies this (Art. 12; for the exceptions see Art. 12 para. 3 and for the reimbursement obligation see Art. 12 para. 5).
the data processing of personal data of the appointee within the scope of his or her employment is governed by the Ordinance on the Protection of Personal Data of Federal Personnel (BPDV), subject to the provisions of the Parliamentary Administration Ordinance (ParlVV) (Art. 13).
VI. Independence and assignment (para. 4)
19 Pursuant to the first sentence of Art. 43 para. 4 FADP, the Commissioner shall exercise his or her function independently, without seeking or accepting instructions from any authority or third party. The freedom from instructions includes two elements: The appointee may neither actively seek nor passively accept instructions. This applies to instructions from other public authorities as well as from private third parties.
20 The FDPIC‘s freedom from instructions takes into account, in particular, the European law requirements for the independence of the data protection supervisory authority in Article 12bis para. 4 in the modernized 108+ Convention of the Council of Europe and Article 42 paras. 1 and 2 of the Schengen-relevant Directive (EU) 2016/680 as well as Article 52 paras. 1 and 2 of Regulation (EU) 2016/679 in connection with the EU Commission‘s adequacy decision (cf. Article 45 para. 2 lit. b of the EU General Data Protection Regulation 2016/679).
21 Even after the total revision of the FADP, the Commissioner or Commissioner and the permanent secretariat of the FDPIC constitute a decentralized administrative unit without legal personality (Art. 2 para. 3 GAOA in conjunction with. Art. 8 para. 1 lit. b RVOG in conjunction with. Annex 1 lit. A no. 2.1.1). Administratively, the FDPIC remains assigned to the Federal Chancellery (FC) as an authority (Art. 43 para. 4, second sentence), but is not institutionally subordinate to it. The FDPIC‘s task is to facilitate and support the FDPIC administratively, without affecting its independence. On the basis of a service agreement, the BK provides the FDPIC with a number of services in the areas of personnel administration, finances and office automation. Examples include the allocation of office space, the provision of appropriate ICT infrastructure and organizational support for the website. Despite its organizational integration into the federal administration, the FDPIC is not to be regarded as an actual administrative authority, but as a sui generis institution. The sui generis status is shaped by the FADP and other decrees. By ensuring the FDPIC‘s freedom from instructions, its institutional and functional independence is guaranteed.
22 The institutional and functional independence of the FDPIC, while at the same time being administratively assigned to the BK, is also reflected in the prescribed communication channel. Article 37 para. 1 FDPIC provides that the FDPIC communicates with the Federal Council through the Federal Chancellor. In this context, the Federal Chancellor is obliged to forward the proposals, opinions and reports unchanged to the Federal Council. However, the FDPIC does not submit reports for the attention of the Federal Assembly via the BK, but directly via the parliamentary services (Art. 37 para. 2 FADP).
23 The question arises as to whether there are more suitable solutions under administrative organization law for the FDPIC instead of the administrative assignment to the BK. However, an administrative assignment of the FDPIC to the parliamentary services would appear artificial, since there is no connection whatsoever between the tasks of the FDPIC and those of the parliamentary services. The complete abandonment of an administrative assignment, as is the case for the Federal Supreme Court, for example, would have the consequence that the cooperation between the FDPIC and the federal bodies would no longer be equally close if the Commissioner as a person or the FDPIC as an authority were no longer part of the federal administration.
VII. Secretariat, budget and personnel (para. 5)
24 Human and financial resources are crucial to the material independence of the FDPIC. Art. 43 para. 5 FADP therefore provides that the Commissioner shall have his or her own budget and a permanent secretariat. The budget process is regulated in Art. 45 FADP.
25 The FDPIC must have sufficient human and IT resources to fulfill his or her legal duties. For this purpose, the secretariat requires, in particular, legal, organizational, (security) technical and communication knowledge. As far as Switzerland‘s relations with the European Union are concerned, the provision of sufficient resources is also important, and in two respects: it constitutes an important element both with regard to the adequacy decision and with regard to the implementation of the Schengen acquis. Thus, the obligation to provide supervisory authorities with sufficient human, technical and financial resources, premises and infrastructures is enshrined in the European decrees (Article 12bis para. 5 of 108+ of the modernized Council of Europe Convention, Article 42 para. 4 of EU Directive 2016/680 and Article 52 para. 4 of EU Regulation 2016/679).
26 Article 43 para. 5, second sentence, FADP provides, as before, that the Commissioner hires his or her own staff and has certain competences in doing so. She or he signs the employment contracts, for example. However, the appointee is still not regarded as an employer under personnel or pension law within the meaning of the BPG for the employees of the Secretariat. According to Art. 3 para. 1 lit. a BPG, the employer is the Federal Council. Whether or not the commissioner is to have employer status in the future is to be clarified at the earliest opportunity at the formal legal level. According to Art. 36 para. 2 FDPIC, therefore, federal personnel law continues to apply to the employment relationship of the employees of the permanent secretariat of the FDPIC. The BPV, the VBPV and the BPDV therefore continue to apply to the employees of the secretariat.
VIII. Assessment (para. 6)
27 The appointee is not subject to the appraisal system under Art. 4 para. 3 BPG. This appraisal system under the BPG forms the basis for performance-related remuneration and goal-oriented development of employees. Since the FDPIC performs his or her function independently and is not subject to any directives, he or she must be exempt from the appraisal system under the BPG. The fact that the performance of the appointee is not evaluated according to the appraisal system of the BPG is therefore the logical consequence of not being bound by instructions and corresponds to the other side of the coin. Those who are not bound by directives cannot be evaluated accordingly without compromising their independence.
28 Instead of performance-related remuneration with bonuses, a performance-independent salary development was provided for the head of the FDPIC according to the model of the Federal Prosecutor. According to Art. 5 para. 3 of the Ordinance on the Employment Relationship, the salary increases on 1 January of each year by three percent of the maximum amount of the salary category until it reaches this maximum amount (cf. Art. 6 para. 3 of the Ordinance on the Employment Relationship of the Federal Prosecutor).
29 The FDPIC‘s duty to report on its activities (Art. 57 FADP) is of central importance against the background of the lack of an evaluation system. In the case of breaches of official duty, there is also the possibility of a warning (Art. 44a FADP). In the event of a serious breach of official duties, removal from office (ultima ratio) (Art. 44 para. 3 FADP) or non-re-election by the Federal Assembly may be considered.
30 The Commissioner and the institution of the FDPIC are not free from any form of supervision. The activities of the FDPIC are subject to judicial review, as its rulings may be appealed all the way to the Federal Supreme Court. In addition, the FDPIC is subject to financial supervision by the Swiss Federal Audit Office (Art. 8 para. 1 lit. a FKG; cf. on Schengen-related requirements: Art. 42 para. 6 of EU Directive 2016/680). The manner of financial control must take into account the independence of the FDPIC. Finally, the FDPIC also remains subject to the supervision of the Federal Assembly (Art. 169 para. 1 FC). According to Art. 8 para. 2 FCA, the federal courts, the Federal Financial Market Supervisory Authority, the Federal Audit Oversight Authority, the supervisory authority over the Office of the Attorney General of Switzerland and the Office of the Attorney General of Switzerland are subject to financial supervision by the Federal Audit Office only to the extent that it serves the exercise of overall supervision by the Federal Assembly. In our opinion, a corresponding addition to Art. 8 para. 2 FKG to include the commissioner is at least worth considering for the purpose of strengthening his or her independence.
The view expressed reflects the personal opinion of the authors and does not bind the Federal Office of Justice.
Bibliography
Baeriswyl Bruno, Kommentierung zu Art. 43 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Huber René, Kommentierung zu Art. 43 DSG, in: Maurer-Lambrou, Urs/Blechta, Gabor-Paul (Hrsg.), Datenschutzgesetz/Öffentlichkeitsgesetz, Basler Kommentar, 3. Aufl., Basel 2014.
Petermann Büttler Judith, Kommentierung zu Art. 43 DSG, in: Bieri Adrian / Powell Julian (Hrsg.), Datenschutzgesetz, Orell Füssli Kommentar, Zürich 2023.
Materials
Botschaft des Bundesrates vom 15.9.2017 zum Bundesgesetz über die Totalrevision des Bundesgesetzes über den Datenschutz und die Änderung weiterer Erlasse zum Datenschutz (BBl 2017 S. 6941).
Bericht des Bundesamtes für Justiz von Oktober 2018 zum Bundesgesetz über die Umsetzung der Richtlinie (EU) 2016/680 zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten zum Zwecke der Verhütung, Ermittlung, Aufdeckung oder Verfolgung von Straftaten oder der Strafvollstreckung; Bericht der SPK-N vom 27.1.2022 zur parlamentarischen Initiative 21.443 «Verordnung über das Arbeitsverhältnis der Leiterin oder des Leiters des Eidgenössischen Datenschutz- und Öffentlichkeitsbeauftragten» (BBl 2022 S. 345).
Erläuternder Bericht des BJ zur Datenschutzverordnung DSV vom 31.8.2022.
30. Tätigkeitsbericht des EDÖB, 2022/2023.