In a nutshell

With the total revision of the FADP, the Federal Assembly becomes the electoral body and employer of the Commissioner. This has implications for the employment relationship. The new provisions on the employment relationship of the Commissioner will only apply after the first election by the United Federal Assembly. After the new data protection law comes into force on September 1, 2023, the previous law shall therefore continue to apply to the employment relationship until the Commissioner is elected by the United Federal Assembly.

I. General

1 With the total revision of the FADP, the Federal Assembly becomes the electing body and employer of the Commissioner. It is therefore responsible for regulating the Commissioner's employment relationship (cf. Art. 43 para. 3bis FADP). As part of the parliamentary initiative SPK-N 21.443, it has issued corresponding implementing provisions. In addition, the FADP also contains various provisions on the employment relationship of the appointee, namely regarding the term of office and its termination (Art. 44 FADP), disciplinary law (Art. 44a FADP) or secondary employment (Art. 47 FADP). Art. 72a FADP clarifies from when these new provisions apply to the appointee.

II. Transitional provision concerning the employment relationship of the appointee

2 The election of the Commissioner and the termination of his or her term of office are still subject to the previous law until the end of the legislative period in which the FADP enters into force (Art. 72 para. 1 FADP). Only when the appointee is elected by the United Federal Assembly can his or her employment relationship be governed by the new law. Art. 72a FADP therefore provides that the employment relationship of the appointee established under the previous law shall be governed by the previous law.

3 This means that after the new data protection law comes into force on 1 September 2023, the previous law will continue to apply to the employment relationship of the Commissioner until the first election by the United Federal Assembly. Thereafter, the totally revised or newly created provisions on the employment relationship of the Commissioner shall apply.

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

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).