On March 5, 2021, the Federal Administrative Court addressed the issue in two rulings (A‑5706/2020 and A‑5709/2020) with the redaction request of a bank employee. She had requested that her personal data on the bank records of a customer be made anonymous after the documents had been redacted with a view to transmitting them by way of mutual legal assistance.
The Office of the Attorney General of Switzerland had rejected the request on the grounds that objections based on data protection law in any case “only possible to a limited extent” in the case of mutual legal assistance in criminal matters were. Specifically, it argued that (i) there was nothing to prevent disclosure to countries with an adequate level of data protection, (ii) this safeguard could not be invoked in the cases of Art. 11f (iii) disclosure in mutual assistance proceedings is to be “regarded a priori as generally permissible”, (iv) the DPA does not apply to mutual assistance proceedings in criminal matters, and (v) there are doubts as to the legitimacy of the appeal because, pursuant to Art. 9a a IRSV, only the account holder is personally and directly affected.
Of these arguments, the Federal Administrative Court dealt only with the fourth one by not acting on the appeal for formal reasons: on the one hand, the Office of the Attorney General of Switzerland in this matter is No admissible lower instance within the meaning of Art. 33 FAC (E. 2.2). On the other hand, the invoked reference provision of Art. 33 DPA does not lead any further here either, because while it generally assigns data protection proceedings to the federal administration of justice, the DPA in the area of international judicial assistance does not even not for use (Art. 2 para. 2 let. c FADP).
The Federal Criminal Court dismissed the two parallel appeals as unfounded in its decision of February 2, 2021 (RR.2020.308 and RR.2020.311).