-
- 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
-
- 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
-
- 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
-
- 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
-
- 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. No member of the Federal Assembly
- III. No member of the Federal Council
- IV. No other employment relationship with the Confederation
- Bibliography
In a nutshell
The commissioner may not be in any other employment relationship with the Confederation. In particular, simultaneous membership of the Federal Assembly or the Federal Council is incompatible with the commissioner's supervisory function. This is intended to avoid conflicts of interest and to strengthen the independence of the FDPIC.
I. General
1 The Commissioner may not be a member of the Federal Assembly or the Federal Council and may not have any other employment relationship with the Confederation. This is intended to exclude conflicts of interest arising from different and simultaneously exercised functions.
2 Art. 144 FC regulates incompatibilities between functions of members of the legislative, executive and judicial branches and is an expression of the separation of powers at federal level. Members of the National Council, the Council of States, the Federal Council and judges of the Federal Supreme Court cannot simultaneously belong to another of these authorities. Incompatibility rules are intended to prevent concentrations of power in one person, to prevent conflicts of interest, to safeguard the independence of office holders and to prevent impairments in the performance of their duties. Paragraph 3 of Art. 144 FC states that the law may provide for further incompatibilities. For members of Parliament, the incompatibility provisions are found in Art. 14 f. ParlA; for the members of the Federal Council and the Federal Chancellor, the professional incompatibilities are specified in Art. 60 GAOA.
3 Art. 46 FADP also constitutes a statutory incompatibility within the meaning of Art. 144 para. 3 FC. The provision on the incompatibility of the appointee on the basis of function corresponds to that for federal judges (Art. 6 para. 1 BGG, Art. 6 para. 1 VGG, Art. 44 para. 1 StBOG, similarly also Art. 10 para. 1 PatGG) and that for members of the supervisory authority over the Office of the Attorney General of Switzerland (Art. 24 para. 1 StBOG).
4 Art. 46 FADP was added to the Federal Data Protection Act by 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. Under the old Data Protection Act of June 19, 1992, questions of functional incompatibility had to be assessed from the perspective of secondary employment.
5 Functional incompatibility is a sine qua non for guaranteeing the independence of the Commissioner and therefore an outgrowth of the provisions of European law in Art. 15 para. 5 of the modernized 108+ Council of Europe Convention for the Protection of Individuals with regard to the Processing of Personal Data, Art. 42 para. 3 of the Schengen-related Directive (EU) 2016/680 and Art. 52 para. 3 of the European Union's General Data Protection Regulation 2016/679.
6 Art. 46 FADP provides for three incompatibilities for the Commissioner, which will be briefly discussed below. However, the incompatibilities apply solely to the Commissioner and not to his or her employees.
II. No member of the Federal Assembly
7 The appointee may not at the same time be a member of the Federal Assembly, i.e. of the National Council or the Council of States. Thus, in the event of election as a commissioner, the person elected must terminate any existing functions or employment before taking office.
8 Members of the Federal Assembly may be elected as commissioners, but must resign from Parliament by the time they take office at the latest. This has already been done in two out of three elections by the Federal Council. Conversely, pursuant to Art. 44 para. 2 FADP, the appointee may terminate his or her employment at the end of any month, subject to six months' notice, and subsequently take up a new position as a member of Parliament (or the Federal Council; see n. 9 below). Pursuant to Art. 44 para. 2 FADP, the Judicial Commission may grant the appointee a shorter notice period in such cases if no substantial interests are opposed.
III. No member of the Federal Council
9 The Commissioner may not at the same time be a member of the Federal Council. Even though, on the one hand, the Federal Council has no authority to issue instructions to the FDPIC (Art. 43 para. 4 FADP) and, on the other hand, the FDPIC may not exercise its supervisory function through the Federal Council (Art. 4 para. 2 lit. b FADP), conflicts of interest cannot be avoided and the independence of the FDPIC would not be guaranteed by such a personal union.
IV. No other employment relationship with the Confederation
10 The function of the Commissioner is also not compatible with other employment relationships that exist at the same time with the Confederation. Other employment relationships with the Confederation must therefore be terminated by the time the appointee takes office (cf. n. 8). This incompatibility constitutes a kind of subsidiary general clause in relation to the two specific incompatibilities relating to Parliament and the Federal Council. Against the background of the central importance of the independence of the Commissioner, such a broadly defined incompatibility rule is to be welcomed.
11 For reasons of constitutional competence, Art. 46 makes no statements on incompatibility with functions and employment at the cantonal or municipal level. Whether such offices and employment at the cantonal or communal level are compatible with the function of the head of the FDPIC must be examined in the case of secondary employment within the meaning of Art. 47 FADP. Conversely, secondary employment connected with an employment relationship with the Confederation is already inadmissible due to the incompatibility provision in Art. 46 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. 46 DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.
Petermann Büttler Judith, Kommentierung zu Art. 46 DSG, in: Bieri Adrian/Powell Julian (Hrsg.), Datenschutzgesetz, Orell Füssli Kommentar, Zürich 2023.
Schaub Lukas, Kommentierung zu Art. 144 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar zur Bundesverfassung, Basel 2015.