Walder Wyss has reviewed the amendments of the draft revised DPA to the proposal of the Federal Council of 15 September 2017 based on the flags published in the meantime updated. The current compilation contains the latest amendments to the draft based on the most recent decision of the Council of States (SR) on June 2, 2020, regarding the differences, i.e., as of today’s status current, consolidated version. It is found under the following link [corrected version of 11/08/20]
The following points are still open:
- Qualification of genetic data as personal data requiring special protection (Art. 4 lit. c E‑DSG): the National Council (NR) wants to classify only genetic data that uniquely identifies a natural person as personal data requiring special protection; the Federal Council and the Council of States want all genetic data to be subsumed under this category.
- Concept of high-risk profiling (Art. 4 lit. fbis E‑DSG): the NR follows a definition according to which profiling leading to personal data requiring special protection is to be understood as such. The SC follows a definition according to which “high-risk profiling” means profiling that entails a high risk for the personality or fundamental rights of the data subject by leading to a combination of data that allows an assessment of essential aspects of the personality of a natural person.
- Design of the grounds for justification (Art. 27 E‑DSG): In the opinion of the NR, there is no justification if the processed data are older than ten years. According to the SC, the data must be less than five years old, in line with the Federal Council’s proposal.
These points are to be discussed again by both chambers in a further round of differences settlement. If no agreement is reached after three rounds, the remaining differences will have to be settled in a settlement conference with a view to a positive outcome of the legislative project.