In a nutshell

Art. 47a FADP clarifies the question of who decides on the recusal of the commissioner in the event of a dispute. The task is assigned to the president of the department of the Federal Administrative Court responsible for data protection. This solution preserves the independence of the commissioner and the fact that he or she is not bound by instructions.

I. History of origins

1 Art. 47a FADP was inserted into the totally revised FADP as part of the parliamentary initiative SPK-N 21.443. When drafting the implementing regulations on the employment relationship of the appointee, Parliament found that it was unclear who would decide on the appointee's recusal in the event of a dispute.

2 The usual responsibilities under federal personnel law (supervisor pursuant to Art. 94a para. 3 FOPI) and administrative procedural law (supervisory authority or collegiate authority to the exclusion of the member concerned pursuant to Art. 10 para. 2 APA) were out of the question due to the special position of the appointee. The United Federal Assembly or the Judicial Commission, which are in principle responsible for employer decisions vis-à-vis the Commissioner (cf. Art. 2 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"), were also out of the question as decision-making bodies due to the independence of the Commissioner or the fact that he or she is not bound by instructions.

3 Parliament filled this gap by entrusting the president of the department of the Federal Administrative Court responsible for data protection with the decision on a disputed recusal of the Commissioner. This competence is obvious, since the president of Division I of the Federal Administrative Court already performed special duties in the area of data protection under the previous law (cf. Art. 30 para. 2 and Art. 33 para. 2 aFADP).

II. Grounds for recusal of the Commissioner

4 The grounds for recusal of the Commissioner are generally governed by federal personnel law (Art. 43 para. 3 first sentence FADP in conjunction with. Art. 1 para. 2 of the Ordinance on the Employment Relationship of the Commissioner). Pursuant to Art. 94a para. 1 FOPI, the appointee shall recuse himself or herself if he or she could be biased in a matter due to a personal interest or for other reasons. The appearance of bias is sufficient (Art. 94a para. 1 FOPI). Art. 94a para. 2 FOPI lists (not exhaustively) the following grounds for partiality:

• the special closeness of relationship or personal friendship or enmity with natural and legal persons involved in or affected by a transaction or decision-making process (lit. a) and

• the existence of a job offer from a natural or legal person involved in or affected by a transaction or decision-making process (lit. b).

5 In contrast, in the context of an investigation into violations of data protection regulations, the provisions of administrative procedural law and thus the grounds for recusal under Art. 10 para. 1 FADP apply (Art. 94a para. 4 FOPI and Art. 52 para. 1 FADP). These include, among others:

• a personal interest in the matter (Art. 10 para. 1 lit. a APA),

• marriage, registered partnership or de facto cohabitation with a party (Art. 10 para. 1 lit. b APA),

• relationship or affinity with a party (Art. 10 para. 1 lit. bbis APA), and

• representation of a party or acting for a party in the same matter (Art. 10 para. 1 lit. c APA).

III. Decision on recusal

6 The grounds for recusal are of a mandatory nature. The commissioner must therefore take them into account on his or her own initiative and bring them to the attention of the persons involved. If the appointee withdraws, his or her deputy shall take over the business.

7 If, on the other hand, the Commissioner's recusal is disputed, the president of the department of the Federal Administrative Court responsible for data protection shall decide on the matter (Art. 47a FADP). This decision may be appealed to the Federal Supreme Court in public law matters (Art. 82 ff. and Art. 92 BGG).

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. 47a DSG, in: Baeriswyl Bruno/Pärli Kurt/Blonski Dominika (Hrsg.), Datenschutzgesetz, Stämpflis Handkommentar, 2. Aufl., Bern 2023.

Petermann Büttler Judith, Kommentierung zu Art. 47a DSG, in: Bieri Adrian/Powell Julian (Hrsg.), Datenschutzgesetz, Orell Füssli Kommentar, Zürich 2023.

Materials

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).