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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. Term of office and re-election (para. 1)
- III. Termination of employment by the Commissioner (para. 2)
- IV. Removal from office (para. 3)
- Bibliography
- Materials
In a nutshell
The provisions on the term of office, re-election and termination of the employment relationship are important for the independence of the appointee in various respects. In particular, the limitation of the term of office and the restrictive possibilities for terminating the employment relationship must be mentioned. The United Federal Assembly, and not the Judicial Commission, is declared responsible for any removal from office of the commissioner due to its drastic effects.
I. General
A. Purpose of the Norm
1 Art. 44 FADP regulates the commencement and term of office (para. 1; n. 6 ff.) as well as the termination of the Commissioner‘s employment (paras. 2 and 3; n. 10 ff.). For the independence of the appointee, the reasons and the procedure for the termination of the employment relationship are of particular importance. In this sense, Art. 44 FADP contributes to independent data protection supervision with the limited term of office of the Commissioner and the restrictive possibilities of removal from office.
B. Background and History
2 The limitation to two terms of re-election (Art. 44 para. 1 first sentence FADP; cf. n. 6) was already introduced during the first stage of the total revision of the FADP (data protection provisions for Schengen cooperation in criminal matters) in Art. 26a para. 1 aDSG. This took into account Art. 44 para. 1 lit. e of the Schengen-relevant Directive (EU) 2016/680. According to this provision, the Schengen states must regulate whether and - if so - how often the members of the data protection supervisory authority can be reappointed. The amendment to Art. 26a para. 1 aDSG entered into force on March 1, 2019.
3 In the second stage of the total revision of the FADP, the United Federal Assembly was designated as the electoral body of the Commissioner (see Art. 43 para. 1 FADP). As a result, the regulations on the term of office, re-election and termination of the term of office also had to be adapted. Among other things, it was specified that the term of office begins on January 1 following the start of the legislative period of the National Council (Art. 44 para. 1, second sentence FADP; cf. n. 8). In addition, the United Federal Assembly was declared competent to remove the Commissioner from office (Art. 44 para. 3 FADP; cf. n. 18). By contrast, the grounds for removal from office remain materially unchanged compared to the previous law (Art. 26a para. 3 aDSG) (cf. n. 13 ff.).
4 Finally, as part of the parliamentary initiative SPK-N 21.443, the termination of the employment relationship at the initiative of the Commissioner was revised in Art. 44 para. 2 FADP: Instead of the previous request for dismissal, a (unilateral) right of termination was enshrined (cf. n. 10 f.).
5 The parliament has controversially discussed whether the appointee should receive severance pay upon termination of his or her employment. In the draft of the SPK-N for the implementation of the parliamentary initiative 21.443, a new Art. 44 para. 4 FADP was envisaged, which - in deviation from the provisions of the federal personnel law - expressly excluded a severance payment. The justification for this provision was that the appointee was less politically exposed than other persons elected by the Federal Assembly (such as the Federal Prosecutor) or other high-ranking functions of the federal administration. Furthermore, the potential for conflict in the event of termination of the employment relationship was not so high as to justify severance pay. After the Federal Council, in its statement on parliamentary initiative 21.443, had come out in favor of severance pay in view of the equality of rights and the independence of the appointee, the SPK-N amended its draft decree and proposed severance pay analogous to the regulation for the Federal Public Prosecutor and the Federal Public Prosecutor and the Federal Public Prosecutor. the Federal Prosecutor and the first-instance federal judges (today: Art. 12 of the Ordinance of the Federal Assembly of 17 June 2022 on the Employment Relationship of the Head of the Federal Data Protection and Information Commissioner [hereinafter "Ordinance on the Employment Relationship of the Commissioner"]). The concerns regarding severance pay, on the other hand, should be examined in a general framework (i.e. not only for the Commissioner). The National Council and the Council of States agreed to this solution.
II. Term of office and re-election (para. 1)
6 According to Art. 44 para. 1, first sentence, FADP, the term of office of the Commissioner is four years and may be renewed twice. The Commissioner may thus remain in office for a maximum of twelve years. According to the Federal Council‘s dispatch, this limitation on the term of office is intended to strengthen the independence of the commissioner.
7 After the expiry of the four-year term of office, the commissioner must be re-elected by the United Federal Assembly if he or she wishes to continue to exercise the office. In contrast to the previous law (Art. 26a para. 1bis aDSG) and in deviation from Art. 14 para. 2 lit. c BPG, there is no longer a tacit or automatic extension of the term of office. This promotes the democratic legitimacy of the appointee.
8Article 44 para. 1, second sentence, FADP sets the start of the term of office of the Commissioner at 1 January following the start of the legislative period of the National Council. In this way, the election is transferred to the newly composed parliament in each case. Art. 72 para. 2 FADP provides for a (one-time) exception in the event that, when the Commissioner is elected for the first time by the United Federal Assembly, the previous incumbent is elected. In this constellation, the new term of office of the Commissioner already begins on the day after the election (cf. Art. 72 n. 6 f.).
9 The appointee shall automatically leave office at the latest at the end of the year in which he or she reaches the age of 68 (Art. 4 para. 2 of the Ordinance on the Employment Relationship of the Appointee). By raising the age limit to 68, the Commissioner is treated in the same way as the federal judges and the Federal Prosecutor, who are also elected by the Federal Assembly.
III. Termination of employment by the Commissioner (para. 2)
10 The Commissioner may terminate the employment relationship at the end of any month by giving six months‘ notice (Art. 44 para. 2, first sentence, FADP). Whereas the previous law only gave him or her the option of requesting dismissal (Art. 26a para. 2 aDSG), the appointee can now unilaterally terminate the employment relationship by giving notice. Thus, an analogous provision to that of the Federal Prosecutor applies to the Commissioner.
11 The judicial commission may grant the commissioner a shorter notice period in individual cases if no substantial interests are opposed (Art. 44 para. 2 second sentence FADP). In doing so, it shall take into account the circumstances of the specific individual case, such as the transitional period until a new appointee or appointees may take office. A shortened notice period may be considered in particular in the case of health reasons.
IV. Removal from office (para. 3)
12 Art. 44 para. 3 FADP regulates the removal from office procedure. In terms of content, the provision corresponds to the previous regulation in Art. 26a para. 3 aDSG (cf. n. 13 ff.). However, it is now the United Federal Assembly, rather than the Federal Council, that is responsible for removing the Commissioner from office (cf. n. 18 ff.).
A. Requirements
13 In view of the high demands on the independence of the Commissioner, removal from office is only permissible in serious cases. The grounds are listed exhaustively in Art. 44 para. 3 FADP: The Commissioner may be removed from office if he or she has seriously violated official duties intentionally or through gross negligence (lit. a; n. 14 et seq.) or has permanently lost the ability to exercise the office (lit. b; n. 17).
1. Serious breach of official duties
14 The main duty of the Commissioner consists in the lawful and diligent performance of the duties assigned by law in the area of data protection and the principle of publicity. This includes, in particular, investigating breaches of data protection regulations (Art. 49 ff. FADP), but also advising private data processors or federal bodies and data subjects (Art. 58 para. 1 lit. a, c and d FADP), as well as numerous other duties, for example in connection with data disclosure abroad (Art. 16 para. 2 FADP), data protection impact assessment (Art. 23 FADP) or reporting breaches of data security (Art. 24 FADP). Other official duties include the duty of confidentiality (Art. 320 SCC, but cf. also Art. 20 para. 2 FoIA), the restriction of secondary employment (Art. 46 and 47 FADP) or the duty of residence (Art. 9 of the Ordinance on the Employment Relationship of the Commissioner).
15 Removal from office is not permissible for every breach of official duty. The breach must be serious and committed intentionally or through gross negligence (Art. 44 para. 3 lit. a FADP). In the case of a less serious breach of official duty, a warning by the judicial commission may be considered (cf. Art. 44a FADP).
16 In the doctrine, the obviously unjustified non-performance of statutory duties or (as a rule) a breach of official secrecy are qualified as serious breaches of official duty. Mere criticism of the manner in which the office is performed, on the other hand, cannot constitute grounds for removal from office. The breach of official duty must be of such a nature that it irrevocably damages confidence in the person and makes continuation in office appear unacceptable.
2. Permanent incapacity for office
17 Removal from office is permissible if the capacity to hold office has been permanently lost (Art. 44 para. 3 lit. b FADP). This is likely to apply only in exceptional cases. In particular, medical or illness-related reasons should be considered. However, family reasons are also possible. Finally, the official capacity may also be permanently lacking if the appointee is missing or has disappeared.
B. Procedure
18 The removal of a commissioner from office falls - along with his or her election - as one of the most important employer decisions within the competence of the United Federal Assembly. This is stated not only in Art. 44 para. 3 FADP, but also declaratorily in Art. 2 para. 1 of the Ordinance on the Employment Relationship of the Commissioner.
19 The Judicial Commission prepares a possible removal from office and submits the necessary motions to the United Federal Assembly (Art. 40a para. 1 lit. d ParlG and Art. 2 para. 2 of the Ordinance on the Employment Relationship of the Commissioner). As a rule, however, the Judicial Commission will first issue a warning for reasons of proportionality (Art. 44a FADP) before initiating proceedings for the removal from office.
20 Within the framework of the impeachment proceedings, the commissioner must be granted the right to be heard. In its principles of action on the procedure for impeachment or non-re-election, the Judicial Commission provides, among other things, that the person affected by the impeachment proceedings has the right, after completion of the investigation and before reporting to the United Federal Assembly, to comment in writing or orally on the results of the investigation and the reasons for the decision (Art. 7 para. 4 of the principles of action). Subsequently, the application of the Judicial Committee to the United Federal Assembly must contain a statement of the opinion of the person concerned (Art. 14 para. 2 lit. d of the Principles of Action).
21 If the United Federal Assembly decides to remove the Commissioner from office, the question arises as to whether this decision can be challenged in court. In principle, no legal remedy is available against decisions of the United Federal Assembly (Art. 189 para. 4 of the Federal Constitution). However, in its report on parliamentary initiative 21.443, the SPK-N refers to the more recent practice of the ECtHR, according to which the guarantee of legal recourse pursuant to Art. 6 para. 1 ECHR applies in the case of the dismissal of judges. The SPK-N considers it conceivable - rightly in our view - that this case law could be transferred to the commissioner, who also has a strong independence. In this case, the commissioner would have to be able to challenge a removal from office by the United Federal Assembly before a court (Federal Administrative Court, Federal Supreme Court, ECHR).
The opinion expressed reflects the personal opinion of the authorship and does not bind the Federal Office of Justice.
Bibliography
Baeriswyl Bruno, Kommentierung zu Art. 44 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Häner Isabelle, Die Ausgestaltung der Unabhängigkeit der Datenschutzaufsichtsbehörden in Bund und Kantonen, in: Epiney Astrid/Hänni Julia/Brülisauer, Flavia (Hrsg.), Die Unabhängigkeit der Aufsichtsbehörden. Und weitere aktuelle Fragen des Datenschutzrechts, Zürich/Basel/Genf 2012, S. 45‒69.
Petermann Büttler Judith, Kommentierung zu Art. 44 DSG, in: Bieri Adrian/Powell Julian (Hrsg.), Datenschutzgesetz, Orell Füssli Kommentar, Zürich 2023.
Materials
Gutachten des Bundesamtes für Justiz vom 23.10.2007 «Amtspflichten der Richterinnen und Richter der erstinstanzlichen Bundesgerichte».
Handlungsgrundsätze der Gerichtskommission vom 3.3.2011 zum Verfahren der Kommission im Hinblick auf eine Amtsenthebung oder eine Nichtwiederwahl (BBl 2012 S. 1271).
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 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).
Stellungnahme des Bundesrates vom 16.2.2022 zum 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. 432).