- The Federal Administrative Court qualifies the Weko notification that it cannot provide information as an order with legal effect (deferral pursuant to DPA 9).
- The FADP is applicable; third parties who are not parties to the proceedings may request information about personal data in proceedings pending before the SNB.
- The granting of information depends on a balancing of interests; the FAC refers the matter back to the Competition Commission for further clarification and consideration.
The FAC had in the present decision to decide on a request for information from the Competition Commission (Comco), requesting, among other things, a copy of a sanction order insofar as this related to the party entitled to information – which was not a party to the proceedings. The secretariat of the Weko rejected this request. The FAC upheld the appeal against this decision.
Initially, it was disputed whether the notification by the Weko that it could not comply with the request for information was a Order acted. The Federal Administrative Court answered this question in the affirmative. In particular, in the opinion of the FAC, the communication was based on the Achieving a legal effect aligned: The communication of the Weko that it was “currently” not possible for it to provide the information had to be considered here as a legally provided Postponement of the provision of information within the meaning of DSG 9 be understood. As a result, the legal relationship has been regulated in one of the forms provided by law, so that a legal effect is achieved.
The FADP was then applicable and in particular not excluded by FADP 2 II lit. c (no application to pending administrative proceedings), because this provision presupposes the pendency of proceedings “in the sense that the validity of the relevant procedural provisions is triggered” (BGE 138 III 425 E. 4.3). According to the BVGer, this must not only apply – as in the aforementioned BGE – in temporal terms, but also in personal terms: Since third parties not involved in the proceedings cannot invoke the corresponding procedural rights, they must also be able to invoke the right of access under data protection law with respect to their personal data processed in connection with proceedings that are themselves pending before the Federal Administrative Court.
As a result, the complainant was therefore able to submit a request for information to the Comco. It was questionable, however, whether a restriction had rightly been imposed, which was to be Weighing of interests is dependent. In this context, the complainant invoked its interest in controlling the lawfulness of the data processing in connection with the sanction order. It must also be able to clarify whether it is portrayed in the order in a way that damages its reputation in the context of behavior that violates antitrust law. The Weko, on the other hand, had argued that the complainant was first of all interested in inspecting the sanction order. However, the publication of the sanction order is contested and has not yet been decided in a legally binding manner. The FAC considers the complainant’s interests to be important, whereas the question of publication of the sanction order does not affect the question of information pursuant to FADP 8. Only the confidentiality interests of the companies affected by the investigation come into consideration here. It must therefore be clarified how these can be satisfied. The FAC therefore refers the matter back to the Comco,