In a nutshell

The new data protection law will come into force on September 1, 2023. However, the previous law will continue to apply to the election and termination of the term of office of the Commissioner until the end of the 51st legislative term. According to this, the United Federal Assembly is the electoral body and responsible for the most important employer decisions.

I. General

1 The total revision of the FADP amends the procedure for appointing the Commissioner. The United Federal Assembly is now the sole electoral body and responsible for the most important employer decisions. In this way, the independence and democratic legitimacy of the Commissioner are to be strengthened. Transitional provisions are therefore necessary for the election and termination of the term of office of the Commissioner.

2 Art. 72 para. 1 FADP was introduced as part of the parliamentary deliberations on the total revision of the FADP. The provision was not yet included in the Federal Council's draft, as the Federal Council had retained the previous procedure for appointing the Commissioner (election by the Federal Council and approval by the Federal Assembly in accordance with Art. 26 para. 1 aFADP) as well as the previous responsibilities for employer decisions (in particular Art. 26a para. 3 concerning removal from office by the Federal Council).

3 Art. 72 para. 2 FADP was only included in the totally revised FADP in the course of the work on the parliamentary initiative SPK-N 21.443. This was necessary to close an unintentional loophole regarding the possible re-election of the previous commissioner (cf. n. 6 f.).

II. Transitional right regarding election and termination of the term of office (para. 1)

4 Art. 72 para. 1 FADP provides that the election of the Commissioner and the termination of his or her term of office shall continue to be governed by the previous law until the end of the legislative period in which the totally revised FADP enters into force.

5 The Federal Council has set the new data protection law to come into force on September 1, 2023. This means that the Commissioner can be elected by the United Federal Assembly for the first time as of the 2023 winter session. The Judicial Commission has announced that it plans to elect the Commissioner for the next term of office in the winter session of 2023. In this case, the new term of office of the Commissioner would in principle begin on 1 January 2024 (cf. Art. 44 para. 1, second sentence FADP).

III. Transitional right regarding the possible re-election of the current appointee (para. 2)

6 The current Commissioner was confirmed by the Federal Council on 10 April 2019 for a second term of office until the end of the 51st legislative term on 4 December 2023. He is running for a third (and final) term. The election is to be held by the United Federal Assembly (Art. 43 para. 1 FADP). In the event of a re-election, a start of office on 1 January 2024 would lead to an unintended gap (in particular from a personnel law perspective). This is because between December 4, 2023 and January 1, 2024, the current office holder would not have an employment relationship as an appointee. Consequently, he would in principle also have no rights or obligations arising from the employment relationship (namely no salary entitlement).

7 For the first election by the United Federal Assembly, Art. 72 para. 2 FADP therefore exceptionally advances the start of the term of office to the day after the election. However, this only applies in the case of a re-election of the current incumbent. Admittedly, even this solution does not achieve a seamless transition. However, the current appointee could at least resume his employment as soon as possible. During the transition period, the FDPIC would be headed by the deputy of the appointee.

The opinion expressed reflects the personal opinion of the authorship and does not bind the Federal Office of Justice.

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 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).