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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. Budget sovereignty
- III. Budget process
- IV. Budget resolution
- Bibliography
- Materials
In a nutshell
The FDPIC drafts its budget independently and submits it to the Federal Council via the Federal Chancellery (FC). The latter submits it unchanged to the Federal Assembly for approval. This budget process, in which the FC and the Federal Council forward the FDPIC's budget unchanged and may not amend it, strengthens the independence of the FDPIC as a supervisory authority.
I. General
1 Budget sovereignty, the budget process and the budget decision are fundamental to the independence of the FDPIC as a supervisory authority (Art. 43 n. 4). Only those who independently decide on their budget are free to perform their tasks within the framework of the legal mandate. Indeed, functional independence presupposes a certain degree of financial or material independence.
2 Art. 45 describes the process through which the FDPIC's budget passes. The FDPIC's budget includes staff salaries, which make up by far the largest part of the budget, room rent, non-personnel IT expenses, consulting expenses, and other operating expenses. The provision is linked to Art. 43 para. 5 FADP, which already provides in connection with the position of the FDPIC that the Commissioner has his or her own budget.
3 Art. 45 FADP was included in the Federal Data Protection Act with the total revision of 25 September 2020 (entry into force 1.9.2023). The provision was proposed by Parliament and is not yet in the Federal Council's draft. In particular, the Commissioner felt that the regulation of his budget should be aligned with the regulation for the Federal Audit Office. The old data protection law of 19 June 1992 provided in Art. 26 para. 4 aDSG (now Art. 43 para. 5 FADP) only that the Commissioner had his or her own budget. Under the old law, the Federal Council was not yet obliged to adopt the FDPIC's draft budget unchanged. Moreover, the FDPIC did not yet have the possibility to present his or her budget to the Federal Assembly itself (see the new Art. 142 para. 2 and 3 third sentence ParlA).
II. Budget sovereignty
4 Budget sovereignty means that the FDPIC draws up its budget independently. Budgetary sovereignty forms an essential part of the independence of the FDPIC. The FDPIC should independently determine what resources it needs to carry out its statutory tasks. In the area of data protection, this concerns the investigation of violations of data protection regulations (Art. 49 ff. FADP), administrative assistance (Art. 54 f. FADP), tasks related to data disclosure abroad (Art. 16 FADP), consultation on data protection impact assessments (Art. 23 FADP), as well as register management, information, awareness-raising and cooperation (Art. 56 ff. FADP). The administrative assignment of the FDPIC to the Federal Chancellery only affects the budget process and does not affect the budgetary sovereignty of the FDPIC (Art. 43 N. 19 ff).
III. Budget process
5 After the FDPIC has prepared its draft budget independently, it submits it to the Federal Council via the Federal Chancellery, to which it is administratively assigned (Art. 43 para. 4 second sentence FADP). Pursuant to Art. 142 para. 2 of the Parliament Act (ParlA), the Federal Council must include the draft budget and the FDPIC's accounts unchanged in its draft budget and accounts of the Confederation. The same applies to the estimates and accounts of the Federal Assembly, the federal courts, the Federal Audit Office, the Office of the Attorney General of Switzerland and the supervisory authority over the Office of the Attorney General of Switzerland. The common feature of the institutions mentioned is their independence from the Federal Council. In their actions, the aforementioned institutions are bound only by the law and not by the instructions of the Federal Council. The Constitution itself (in the case of the Federal Assembly and the Federal Supreme Court) or a federal law (in the case of the Swiss Federal Audit Office, the Office of the Attorney General of Switzerland as well as its supervisory authority) explicitly state the independence of the organizational units mentioned.
6 Art. 45 FADP is based on the solution adopted for the supervisory authority over intelligence activities when submitted via the department (cf. Art. 4 of the Ordinance of 16 August 2017 on the Supervision of Intelligence Activities, VAND). The Swiss Federal Audit Office, SFAO, on the other hand, submits its annual estimate directly to the Federal Council (cf. Art. 2 para. 3 FKG) - without going through the Federal Department of Finance, to which the SFAO is attached (Art. 1 para. 3 FKG).
7 In addition, according to Art. 142 para. 3, third sentence, ParlA, the FDPIC itself represents the draft of its estimates and accounts before the Federal Assembly. In principle, this should be done by the Commissioner. By comparison, for the SFAO, the financial delegation of the two federal chambers (Art. 51 ParlA) performs this task, whereas the Federal Supreme Court and the supervisory authority over the Office of the Attorney General of Switzerland also represent their estimates before Parliament, as does the FDPIC itself before the Federal Assembly (Art. 142 para. 3 ParlA).
8 The budget process can be summarized as follows:
The FDPIC prepares a draft budget that includes all necessary resources to conscientiously and dutifully fulfill its legally assigned duties as data protection and public information commissioner.
The FDPIC submits his draft budget to the Federal Chancellery, to which he is administratively assigned (Art. 43 para. 4 second sentence FADP).
The Federal Chancellery forwards the FDPIC's draft budget to the Federal Council.
The Federal Council forwards the FDPIC's draft budget unchanged to the Federal Assembly for approval (Art. 45 FADP). In concrete terms, this means that the Federal Council includes the FDPIC's draft budget and accounts unchanged in the federal budget and accounts (Art. 142 para. 2 ParlA) and submits the draft federal budget to the Federal Assembly. It does so in the form of a simple federal decree (Art. 143 para. 3 ParlA).
The Finance Committees of the two Councils discuss the estimates in advance (Art. 50 para. 1 ParlA). The councils are obliged to approve the budget (Art. 73 para. 3 ParlA).
The FDPIC presents its draft budget to the Federal Assembly (Art. 142 para. 3, third sentence).
The Federal Assembly is responsible for approving the FDPIC's draft budget. If, in the procedure for settling differences between the two Councils, a motion for agreement on the federal resolution on the federal budget is rejected, the resolution of the third deliberation providing for the lower amount is deemed to have been adopted (Art. 94 ParlA).
IV. Budget resolution
9 Parliament is responsible for deciding on the budget. In order for Parliament to be able to deliberate meaningfully on the FDPIC's budget request, the FDPIC must justify its budget.
10 The parliament may not attach any conditions or requirements to the approval of the budget; specifications on the use of funds or the setting of priorities are not permitted. The FDPIC may freely dispose of the funds granted within the scope of its legal mandate.
11 Article 15 para. 6 of the modernized 108+ Council of Europe Convention for the Protection of Individuals with regard to the Processing of Personal Data requires that the supervisory authority have the necessary means to effectively carry out its functions and exercise its powers. The Schengen-relevant EU Directive 2016/680 also provides in Art. 42 para. 4 that each supervisory authority must be provided with the resources it needs to effectively carry out its functions and exercise its powers, including in the context of mutual assistance, cooperation and participation. Furthermore, sufficient resources of the data protection supervisory authority are an essential criterion when assessing the adequacy of the level of data protection from the perspective of the EU Data Protection Regulation 2016/679 (cf. in this regard Art. 52 para. 4 in conjunction with Art. 45 para. 2 lit. b). Finally, the effectiveness of supervision depends on the available resources.
12 A budget that is insufficient to fulfill the tasks conferred by law calls into question the independence of supervision. Legal mechanisms to review the adequacy of the budget are lacking. At the same time, budget overruns owed to the fulfillment of statutory tasks are not considered a breach of official duty (Art. 44 para. 3 lit. a FADP).
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. 45 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Petermann Büttler Judith, Kommentierung zu Art. 45 DSG, in: Bieri Adrian/Powell Julian (Hrsg.), Datenschutzgesetz, Orell Füssli Kommentar, Zürich 2023.
Koller Stefan, Kommentierung zu Art. 142 ParlG, in: Graf Martin/Theler Cornelia/Wyss von Moritz (Hrsg.) Kommentar zum Parlamentsgesetz (ParlG), Basel 2014.
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).