- The Federal Administrative Court confirms that COMCO may pass on data from completed cartel proceedings to a public authority by way of administrative assistance, provided that legal requirements are met.
- DSG 19 I lit. a permits limited information in the case of a specific, one-off request for the fulfillment of legal tasks; necessity and subsidiarity must be strictly examined.
- Disclosures are permitted if no business secrets are involved, suitable conditions exist and third-party interests worthy of protection are protected by redactions.
On August 23, 2016, the Federal Administrative Court ruled that the WEKO. may disclose data of a concluded antitrust case to a public authority by way of administrative assistance (Decision as PDF).
This question arose in connection with a sanction order concerning competition agreements in road construction and civil engineering in the canton of Zurich. These agreements between 16 companies from the construction industry concerned submissions in the canton of Zurich, in which the construction companies agreed on their bid prices and determined who should be awarded the contract. In the sanction order, however, the designations of the projects concerned were removed, so that third parties such as potentially aggrieved clients could not find out whether they had been harmed by the collusion. The municipality of Meilen therefore requested access to the relevant files and, in particular, information on whether it had awarded construction projects that were affected by unlawful competition agreements. The WEKO granted the municipality of Meilen access to the sanction order and to evidence insofar as these concerned tenders of the municipality of Meilen (and insofar as this did not reveal information disclosed by the self-advertiser). However, one of the companies concerned appealed to the FAC.
BGVer first rejects an access claim based on BGÖ:
- It is true that the antitrust proceedings fall as Administrative procedure not subject to the exclusion ground of BGÖ 3 I lit. a No. 2 (no application to criminal proceedings), although sanctions under KG 49a have a criminal or criminal-like character.
- However, DSG 19 I lit. a provides for a special right to information in the case of requests from bodies responsible for statutory duties, provided that the request concerns personal data. This special access provision takes precedence over BGÖ (BGÖ 4 lit. b; same as BGÖ 9 II in the result).
Application of the exception provision of DSG 19 I lit. a
DSG 19 I lit. a reads as follows:
Federal bodies may disclose personal data only if there is a legal basis for doing so within the meaning of Article 17 or if:
a. the data are indispensable for the recipient in the individual case for the fulfillment of its legal task; […].
This “general provision on administrative and legal assistance and implementing provision on general official secrecy” (Federal Council Dispatch on the FADP 1988, 469; cited by the Federal Administrative Court) gives concrete form to the constitutional principle of mutual (here: informal) administrative assistance (BV 44). However, as an exception to the requirement of the legal basis iSv DSG 17 I, it is to be applied only in individual cases and interpreted narrowly in each case. Disclosure pursuant to DSG 19 I lit. a is only permissible as follows:
- Disclosure upon request in individual cases, i.e. for a one-time purpose to perform a statutory task, not on a regular or even permanent basis;
- Disclosure only on concrete request with presentation of the relevant facts, with concrete designation of the requested information and documents and indication of the reason for the request; no request without a precise reason or concrete question, i.e. no “fishing expeditions”.
Damage coverage as a statutory duty
In the present case, it was disputed whether the request of the municipality of Meilen concerned a statutory task or “a general state policy objective”, and whether the procurement of evidence for the prosecution of civil claims is not in any case subject to private law. In this context, the BVGer states that the Duty to handle taxpayers’ money carefully among other things, demanded to enforce civil law claims against the participants of a submission cartel. This is even a legal task of “crucial importance”. The legal nature of any procedural means, such as an action for damages, is irrelevant.
Necessity of data disclosure (subsidiarity)
Disclosure in accordance with DSG 19 I lit. a is only permissible insofar as the data is required for the fulfillment of the statutory task. This results in two prerequisites:
- The data itself must be necessary for the performance of the task.
- The data cannot be obtained in any other way; i.e. the request for information must not be the easier way, but the only way.
The FAC considers both conditions to be met (and makes it clear that the unreasonableness of another path is equivalent to impossibility):
Joining the investigation procedure?
An accession of the municipality to the investigation procedure according to KG 43 I lit. a would have been “probably excluded” (and if such an accession had been possible, the further question would have arisen whether the municipality was entitled to party status).
Criminal charges for submission fraud?
The municipality could have filed criminal charges for submission fraud (StGB 144) against unknown persons. In this case, the files of the cartel proceedings would have had to be consulted by way of legal assistance (StPO 44). If the municipality had then constituted itself as a private plaintiff, it could have requested access to the files.
In the view of the FAC, however, it would be wrong to require the municipality of Meilen to take such action because the prospects of success of criminal proceedings were “extremely low” and the municipality was not even seeking criminal sanctions against the companies concerned. Against this background, the path via criminal proceedings would be a “massive waste of state resources” and a “misappropriated use of the criminal prosecution law”.
Inspection of files directly based on constitutional procedural guarantees?
Finally, the FAC wonders whether a right to inspect files could be derived directly from constitutional procedural guarantees. However, case law had affirmed such a right to inspect files for the purpose of initiating subsequent proceedings exclusively for natural or legal persons under private law who were obviously dependent on the inspection of files (cf. for instance 1A.253/2005 E. 3.6.4). However, this was not the case in the present case, because DSG 19 I lit. a substantiates the constitutionally guaranteed right to inspect files for a community and thus takes precedence.
Thus, the right to inspect files pursuant to DSG 19 I lit. a was to be affirmed in principle.
Limits to the right of inspection?
KG 25
According to DSG 19 IV lit. b, data disclosure must be refused, restricted or subject to conditions if required by legal secrecy obligations or special data protection regulations. In particular, DSG 19 I lit. a does not release from official secrecy or other special secrecy obligations. Here, therefore, KG 25 (official and business secrecy) had to be examined first. After a detailed investigation, the BVger comes to the following conclusions:
11.4 In summary, Art. 25 para. 2 KG does not exclude any use of the data obtained in antitrust investigation proceedings, including in particular their disclosure to third parties. Such a disclosure is permissible if the data is provided to a (potential) cartel victim, no trade or manufacturing secrets are affected by the disclosure and the data is used exclusively for antitrust purposes. This interpretation does not conflict with Art. 25 Para. 3 KG, since this provision does not establish an exclusive right of exploitation in favor of the price supervisor.
According to the above, a disclosure of the data in the specific case is permissible despite the fundamental prohibition of exploitation under Art. 25 para. 2 KG, provided that the data are exploited exclusively for the intended purpose, which must be ensured by imposing a condition (cf. E. 13.2.2 and 15). Consequently, Art. 25 para. 2 KG does not constitute a legal provision within the meaning of Art. 19 para. 4 let. b FADP which prohibited the lower instance from disclosing data. Furthermore, no other provisions are apparent which impose special secrecy obligations on the lower instance. Since the requirements for data disclosure pursuant to Art. 19 para. 1 let. a FADP are basically fulfilled in the present case (cf. E. 10), there is in particular also no breach of official secrecy.
Weighing of interests
According to DSG 19 IV lit. a, disclosure must be refused, restricted or subject to conditions if essential public interests or interests of a data subject that are obviously worthy of protection so require. The BVGer comes to the following conclusion:
12.5 In summary, in the present case, interests worthy of protection exist only with regard to any existing data of third-party companies, which require a restriction of data disclosure pursuant to Art. 19 para. 4 let. a FADP. If data of these companies is contained in the passages of the sanction order to be disclosed, these must be blacked out. Finally, all excerpts of the order which contain data of the self-indicator are not to be disclosed, as their disclosure is no longer disputed.
General processing principles
Finally, the FAC examines and affirms that the other data protection principles according to DPA 4 have also been complied with.