- The cooperation between FINMA, the PUE and the FOPH since 2020 is legally permissible and has improved the supervision of supplementary health insurance.
- Due to the new DPA, the GPK‑S recommends clarifying the legal basis (e.g. Art. 39 FINMASA) for the disclosure of data relevant to trade secrets.
The Control Committees (CC) and the Control Delegation (CCDel) of the Federal Assembly have published the 2025 Annual Report (BBl 2026 396). Among other things, the report on an investigation by the GPK‑S into supervisory activities in the area of supplementary health insurance is interesting.
Since 2020, the Swiss Financial Market Supervisory Authority (FINMA), price monitoring (PUE) and the Federal Office of Public Health (BAG) based on a Memorandum of Understanding (MoU). The question was whether there was a sufficient legal basis for this. An expert opinion prepared by the Federal Office of Justice (FOJ) confirmed that the previous exchange took place on a sufficient legal basis, Art. 39 para. 1 and 1bis FINMASA, Art. 34 para. 5 KVAG and Art. 62 KVAV:
On behalf of the Federal Council, the PUE and the FOPH intensified their cooperation with FINMA in the area of supplementary health insurance and formalized it from 2020 in a Memorandum of Understanding (MoU). The GPK‑S took note of the overall positive results of the increased cooperation – particularly in the area of on-site inspections and the supervision of service providers’ tariffs. The FOJ’s legal investigations also confirmed that the intensification of cooperation between the three authorities to date was lawful. The applicable law gives FINMA, the PUE and the FOPH sufficient leeway to exchange information in the form of information and documents as provided for in their MoU.
With the new DSG Trade secrets of legal entities as particularly sensitive data within the meaning of Art. 57r para. 2 let. b RVOG. The disclosure of such data by federal bodies requires a Basis in a law in the formal sense required (see here):
Whether the existing legal basis – in particular Art. 39 FINMASA – is sufficient for every exchange between FINMA, the PUE and the FOPH is unclear, which is why the CPC‑S recommends that an explicit provision on data disclosure be included in a future revision of FINMASA:
However, the Commission found that it would be useful to re-examine the legal basis for the disclosure of legal entities’ data relating to trade secrets. With the entry into force of the new Data Protection Act (DPA) on 1 September 2023, the requirements for the standard level of the legal basis required for the disclosure of such data were increased. Since then, this data has been considered particularly worthy of protection within the meaning of Article 57r paragraph 2 letter b of the Government and Administration Organization Act (RVOG), so that federal bodies may only disclose this data if «a law in the formal sense provides for this» (Art. 57s para. 2 RVOG). Against this background and depending on the future requirements for cooperation between FINMA, the PUE and the FOPH, it should therefore be examined whether a corresponding provision should be included in Article 39 FINMASA. The SIF has assured the GPK‑S that it will examine the corresponding need for action on the basis of the FOJ’s legal analyses in a future revision of the law.